Different Approaches to the Study of Law

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The study of law is a discipline with a long history. Many legal traditions with various intellectual roots have led to different approaches to the study of law over time. The traditional approaches of analytic jurisprudence include natural law theory and legal jurisprudence; however, the subject has grown to include normative and critical approaches as well.

Analytical Approaches

  • The traditional approaches to the study of law are collectively referred to as the "analytical approaches." This category includes natural law theory and legal positivism. Natural law theory states that laws are derived from universal moral principles, whether God-given or based in nature. Legal positivism states that laws are derived from social contracts and agreed-upon principles. The point of divergence between natural law theory and legal positivism is on the question of morality. Natural law theorists believe that law and morality are inseparable, whereas legal positivists believe that a law is a law whether it is moral.

Normative Approaches

  • Normative approaches to the study of law are concerned with the limits of the scope and extent of legal authority. The questions raised in normative jurisprudence include whether it is justifiable to limit freedoms, whether it is always necessary to obey the law, and to what extent punishment is justified by law. Legal moralism says that it is OK to punish behaviors that conflict with society's agreed upon moral views. Legal paternalism says that the state has the legal authority to protect people from their own actions. The difference between the two approaches is the importance of harm. According to legal moralists, behavior that harms no one can be illegal; according to legal paternalists, behavior that harms anyone, including oneself, can and should be illegal.

Critical Approaches

  • Critical approaches to the study of law examine the power dynamics underlying existing legal philosophies. Critical approaches ask questions such as "Who wrote the laws?" and "What power structure are they meant to serve?" Critical approaches include legal realism, critical legal studies and "outsider" legal theory. Legal realism goes beyond theoretical questions to ask the "how" of the judicial decision making process (i.e. how judges really make decisions). Critical legal studies asks how the legal system is structured to serve the interests of capitalists. "Outsider" approaches (e.g., feminist jurisprudence) ask how the law is structured to serve the interests of the majority at the expense of minorities.

Academic Approaches

  • Over the years, much has been written about the law in disciplines other than law. Philosophical, sociological and anthropological approaches to law consider legal questions in the context of broader theoretical issues. Philosophy concerns itself with macro-level legal questions, such as "What is the meaning of justice?" and "What is the role of law in society?" Anthropology concerns itself with the differences and similarities between laws in different countries. Sociology asks how social norms and power structures influence the law and overlaps frequently with critical legal studies.

References

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