Cecily Zamora
Perspectives of law refer to the various lenses through which law, as a system of norms and rules, can be viewed and interpreted. These perspectives encompass a range of philosophical, theoretical, and practical considerations that shape how individuals and societies understand and apply legal concepts. One key dimension is the separation of powers, which holds that law should be made by the legislature, interpreted by the judiciary, and enforced by the executive branch. Another perspective is legal theory, which forms the foundation of legal systems and includes approaches such as natural law theory, emphasizing moral principles, and legal positivism, which views law as a social construct separate from morality. Critical theories, such as critical race theory and feminist jurisprudence, expose biases and power structures within the legal system, highlighting how it often serves the interests of dominant groups. Legal realism, meanwhile, acknowledges the role of social, economic, and political influences in shaping the law and the active role of judges in its interpretation. These perspectives, and more, contribute to a complex understanding of law and its relationship with society.
| Characteristics | Values |
|---|---|
| Law is embedded in a particular polity context | Depends on the jurisdiction |
| Discussion about "disembedding" of the law from its polity context | Depends on the internal perspective and on hierarchical systems |
| The paradigmatic actor is a judge deciding a case | Seeking the "right" answer |
| Sovereign perspective | Evaluating the law in terms of better or worse |
| Lawmaking | Affirming, criticizing, or improving legal standards |
| Legal positivism | Emphasizes the separation of law from morality |
| Natural law theory | There are inherent moral principles that govern the creation and application of laws |
| Legal realism | The law is shaped by social, economic, and political influences |
| Rule of law | A durable system of laws, institutions, norms, and community commitment |
| Four universal principles: accountability, just law, open government, and accessible and impartial justice |
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What You'll Learn
The internal perspective and hierarchical systems
In reality, those engaging with the law, such as judges, lawyers, professors, and legislators, often adopt a more flexible approach. They may substitute elements of the internal perspective with functionally equivalent elements from other perspectives, such as the external or sovereign perspectives. By rapidly switching between different perspectives, they can navigate legal standards with a degree of independence from any single perspective.
The internal perspective is closely tied to the concept of legal disembedding, which refers to the idea of detaching the law from its specific political context. This concept has gained prominence with the rise of the nation-state, but it is important to recognize that it represents an idealized notion rather than the day-to-day reality of legal practice.
In contrast to the internal perspective, the sovereign perspective involves evaluating the law in relative terms, such as better or worse, with the aim of designing, affirming, criticizing, or improving legal standards. Those adopting the sovereign perspective are not bound by the legal standards they scrutinize but may be influenced by other unquestioned legal standards. They position themselves as exercising sovereign power, capable of deciding the "best" legal approach from a range of options to address a practical problem or pursue a project. This perspective is commonly taken by lawmakers, government employees, and occasionally judges when dealing with case law without precedent.
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The sovereign perspective
This perspective is one of several that legal protagonists may use, including judges, lawyers, professors, and legislators. They may substitute elements of the internal perspective with functionally equivalent elements of other perspectives, such as the sovereign perspective. By rapidly switching between different perspectives, they can generate, identify, and deal with legal standards with a degree of independence.
Another contrasting perspective is legal realism, which asserts that the law is shaped by social, economic, and political influences, and that judges actively interpret and apply laws. This perspective emphasises the importance of context, empirical analysis, and the practical consequences of legal decisions. It has contributed to the development of sociological jurisprudence and critical legal studies, which explore the social dimensions of law and its impact on marginalised groups. Critical legal studies scholars critique the inherent biases and power structures within the legal system, arguing that it often serves the interests of dominant social and economic groups.
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Natural law theory
The classical natural law theory of Thomas Aquinas focuses on the overlap between natural law moral and legal theories. According to Aquinas, rules of a positive legal system are "derived from natural law" and have their legal force from their part in this posited system. The neo-naturalism of John Finnis is a development of classical natural law theory, while the procedural naturalism of Lon L. Fuller rejects the idea that there are necessary substantive moral constraints on the content of the law.
The political-theoretical part of natural law theory explains and elaborates on the grounds and proper forms of governmental authority. It shows the similarities and differences between the practical authority of rulers and the theoretical authority of experts and persons of sound judgment. It justifies the need for governmental authority as a remedy for anarchy, injustice, and impoverishment, and promotes the idea of a "rule of law and not of men".
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Legal positivism
> The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.
Austin's view was influenced by the political philosophies of Hobbes and Hume, and elaborated by Jeremy Bentham (1748–1832), who held that law is the command of a sovereign backed by force. According to legal positivism, a law is valid not because it is intrinsically moral or just, but because it comes from a sovereign, is generally obeyed, and is backed up by sanctions. This is known as the "social thesis".
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Critical legal studies
CLS scholars believe that the law inherently supports the interests of those who create it, perpetuating a power dynamic that favours the historically privileged and disadvantages the underprivileged. This theory suggests that the wealthy and powerful utilise law as a tool for oppression to maintain their hierarchical position.
The key goals of CLS include demonstrating the ambiguity and potential preferential outcomes of supposedly impartial and rigid legal doctrines, as well as publicising the historical, social, economic, and psychological impacts of legal decisions. CLS scholars aim to demystify legal analysis and culture, striving for transparency in legal processes to gain the support of socially responsible citizens.
CLS scholars such as Duncan Kennedy and Karl Klare describe the movement as "concerned with the relationship of legal scholarship and practice to the struggle to create a more humane, egalitarian, and democratic society." The movement caused considerable controversy within legal academia, with members seeking to rebuild legal institutions as expressions of human coexistence rather than mere truce lines in a brutal and amoral conflict.
Despite facing criticism and opposition, the influence of CLS has been significant and pervasive, shaping debates about the legitimacy of law and inspiring subsequent iterations such as FemCrits and critical race theory.
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Frequently asked questions
The internal perspective perceives law as a normative framework, classifying answers as right versus wrong. It is taken by those who apply the law and see themselves bound by the normative statements of the legal standards applied.
The external perspective looks upon law as a factual framework and is taken by an observer or reporter "from without". This is primarily a descriptive approach, responding to a dichotomy of true and false.
Legal positivism emphasises the separation of law from morality. Legal positivists argue that laws are social constructs, created by human authority and enforced through institutions. The validity of a law is determined by its source, such as legislation or judicial precedent, rather than its moral content.
Natural law theory posits that there are inherent moral principles that govern the creation and application of laws. According to this perspective, laws must align with these higher moral principles to be considered just and valid.
Critical theories of law, such as critical legal studies and feminist jurisprudence, challenge traditional forms of legal philosophy. They explore the social dimensions of law and its impact on marginalised groups, highlighting how power structures and biases are embedded in the legal system.
