1.3 Jurisprudential Thought

The development of U.S. law can be accounted for by experience but also by reference to several philosophical or scientific theories. The study and theory of law is known as jurisprudence. Below are several schools of jurisprudential thought that shape our understanding of the law.

Schools of Jurisprudential Thought

Natural Law

The view that all persons have inalienable natural rights is found in the natural law school of thought. Inalienable rights are those inherently possessed by all persons that may never be taken away. In this school of thought, there exists a higher or supreme universal law that governs all mankind, and its overarching and immutable principles must be reflected in legislation, specifically statutory law. For example, U.S. businesses with operations abroad often hire foreign employees. Under the natural law school of thought, the same laws that protect U.S. employees should apply to foreign employees as well. This broad view of human rights is reflected in significant documents such as the U.S. Constitution, the Magna Carta, and the United Nations Charter.

Historical Perspective

Under a historical perspective school of thought, law is seen as the summation of the rules governing social customs and human experience over time. Law changes in relation to society’s changing rules and customs. Someone subscribes to the historical school is more likely than those of other schools to follow precedent to solve contemporary issues.

Irrational Forces Perspective

The irrational forces school of thought provides that law is sometimes the result of societal reactions to unique events and is not founded upon reason. In other words, the law is a “knee-jerk” response by a legislative body to some stimuli. For example, some have argued that because many of the protections articulated in the Sarbanes-Oxley Act (which was designed to remedy accounting and other fraud in the corporate world) were already in place under pre-existing statutes, the act was the product of political forces rather than reason. Those forces demanded that Congress “do something.”

Legal Realism

Another view of law is the legal realism school of thought. Legal realists hold that judges should consider social and economic factors in interpreting the law and not necessarily be bound by precedent. This school of thought holds that laws may never be enforced uniformly because of the differing personal characteristics and backgrounds of judges and that the law must reflect society’s current circumstances. The reasoning goes that a female judge, for example, might be more inclined than a male judge to consider a legal decision's impact on women.

Sociological

An outgrowth of legal realism is the sociological school of thought which advocates for the use of law as a means of redistributing wealth or promoting social justice. A good example of this view is a housing or employment law developed to prohibit discrimination based upon race, gender, religion, or nation of origin.

Command

Some people view laws as the means by which a ruling class maintains control of society. This perspective is known as the command school of thought. Under this view, the law is not influenced by social forces, but by the needs of the ruling elites, political or otherwise. For example, during times of war, the federal government has enacted draft laws that required men of a certain age to serve in the military if they met certain requirements.

Critical Legal Studies

Related to command theory is the critical legal studies school of thought, which suggests that laws are a reflection of the sum of injustices of society and effectively maintain the social status quo. This view is different from the command theory in that it is a function of bias and not command. This school of thought advocates dismantling the scaffolding of hierarchical rules and replacing them with general concepts of fundamental fairness and environmental and social justice. For example, women often have difficulty legally proving that they have been raped because rape laws have mostly been written from a male perspective. Therefore, according to the critical legal studies school of thought, a judge should overlook those laws and use his or her subjective decision-making powers to determine whether an assault occurred.

Law and Economics

The law and economics school of thought provides that laws are a function of economic forces. Adherents to this view suggest that law should be designed to promote “market efficiencies.” An efficient, productive, and wealthy society is based on rules designed to promote those effects. For example, advocates of this theory suggest that U.S. society should put an end to the practice of appointing free counsel to prisoners who bring civil suits. They believe that the case is probably not worth bringing if a prisoner cannot find a lawyer who will take the case pro bono or on a contingency-fee basis.