LJU4801 LEGAL PHILOSOPHY LATEST
STUDY SUMMARY.
, LEGAL PHILOSOPHY SUMMARY
STUDY UNIT 1
Legal theory is both a discussion of law in general and focused on a particular legal system.
We look at a group of social systems, but as a means of understanding better our own legal
system.
It concerns thought about law, its nature, function (on the broadest possible basis) and about
its adaptation, improvement and reform.
Classifying Legal Philosophies
• The Pre-Modern Way of Thinking About Law
Pre-modern legal philosophies are concerned about the good of the community as a whole
(this is also called the common good), as opposed to the particular interests of the individual.
Pre-modern thinking also relies heavily on metaphysical or religious beliefs about the world.
It is therefore thinking committed to both the community and a particular religious or
metaphysical world-view. Because of this, they also believe in natural law. The pre-modern
approach dominated thinking in the Western world up to the 16th century and is still the
dominant mode of thinking in Christian, Muslim, Judaic and African legal philosophy, to
name but a few. In this study guide we will be looking at three kinds of pre-modern thinking:
➢ Greek Philosophy
➢ Medieval Philosophy
➢ African Legal Thinking
• The Modern Way of Thinking: Early and Late
Modern legal philosophies attempt to replace blind religious faith (associated with the
church’s domination in the West until the 16th century) with the scientific and rational
investigation of law and legal rules. Impressed by the progress made by the natural
sciences; early modern legal philosophers desired to distinguish clearly between facts and
values and to turn law into a value-free social science. In this process they rejected natural
law as metaphysical nonsense that must be replaced with the scientific method. Early
modern philosophers had faith in the ability of science to rid the legal system of all irrational
and ineffective rules. In this study guide we will be studying three kinds of early modern
philosophies:
➢ Social Contractarians
➢ Legal Positivism
➢ American Realism
Late modern philosophers share with early modern thinkers the belief that legal rules cannot
be based on religious faith but should be rationally investigated, justified and applied. They
differ from early modern thinkers because they believe that rational debate about shared
values is possible and necessary. Finally all modern thinkers place emphasis on the
individual, rather than on the common good. This belief in individualism is their most lasting
legacy and is enshrined in most modern constitutions. We will be looking at two very
influential late modern legal philosophers:
➢ Ronald Dworkin
➢ John Rawls
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,• Post-Modern Philosophies
Post-modern legal philosophers share the late modern sense of crisis. But their solution is
different. They do not believe the crisis can be resolved by appealing to universal values or
principles. Because society has become more pluralistic, we need to find different solutions.
Post-modern philosophers therefore criticise the idea of a rational legal order, and explore
what modern philosophers regard as irrational modes of thinking as alternatives to legal
science. In this study guide we will be discussing two post-modern philosophies:
➢ Critical Legal Studies
➢ Feminist Legal Thought
Post-modern philosophers reject the individualism and rationalism of their predecessors.
Instead they use deconstruction and other methods to criticise traditional legal thinking. In
many ways they represent an MTV (Music TV) approach to philosophy – they criticise legal
thinking, but they don't prescribe what the answer should be. Like a good music video on
MTV that leaves you to find your own story, they give you a range of options and expect you
to actively participate to find a better solution!
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, STUDY UNIT 2
Pre-Modern Legal Philosophies
Pre-modern society
The societies, within which pre-modern legal thinking thrives, are quite different from the
typical twentieth-century societies familiar to most of us. These are relatively small and fairly
homogenous societies. They are small communities where people share the same basic
values, ideas and practices. They are therefore not pluralist in nature.
A homogenous society – a society where everyone looks, thinks, acts and believes exactly
the same. A pluralist (or heterogeneous) society is the opposite: one where people look,
think, act and believe differently from one another.
Premodern thinkers look at their societies and think that they are the way they are because
of a higher, natural or God-given order. But this higher order cannot be seen or felt. As a
result they assume that it must exist beyond the physical world that humans inhabit. And
because that is the realm that the gods occupy, they also assume that god/gods created this
natural order.
Metaphysical thinking is therefore the result of a connection between religious belief and a
specific kind of social order. Therefore, not only is there a natural social order, but this order
has its origin in some form of belief in god/gods.
Lastly the homogenous nature of the society makes it easier to advance the idea of the
common good. After all, if everyone agrees on the basic conditions of this society, then
acting in the interest of the community will also mean acting in one's own self-interest. As a
result there is no conflict between individual and community!
Characteristics of Pre-Modern Legal Thinking
The characteristics of pre-modern legal thinking are:
• In the first place it is assumed that there is a natural order or natural harmony that
applies to social life and the law. This means that social arrangements and laws are
assumed to be part of nature and therefore cannot be criticised. After all, if you cannot
question the law of gravity then, in the same way, you cannot question the natural way in
which society is structured. In legal thinking this meant that the hierarchical structure of
these societies were never questioned and were, in fact, justified.
• In the second place the belief in the common good also played a role. Here the
assumption is that the community is more important than the individual. That is why
terms like "human rights" are inappropriate for this type of thinking, at least in the
individualistic meaning that we usually attach to this term. It also means that the idea of
individual rights being in conflict with the interests of the group is unthinkable.
• In the third place the metaphysical assumptions about reality led to the development of
the theory of natural law. The idea of a reality beyond the physical was interpreted to
mean that a separate set of laws exists metaphysically and this natural law provided the
yardstick for human (positive) laws. In other words, there is an objective reality "out
there" by which we (as lawyers) can measure our laws to determine if they are just or
unjust. This has been a particularly influential idea in the history of legal thinking and one
that is, in fact, still very popular.
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