This research paper explores the relationship between law and morality through the critical analysis of various jurisprudential theories used to explain how legal systems behave including Natural Law, Legal Positivism, Legal Interpretivism, Legal Realism, Critical Legal Studies and Law and Economics. Natural Law asserts that the foundation of any legal system should be based on the assumption that there is an innate morality or rightness in the world. According to Legal Positivism, only laws written by humans have real authority, and it is up to us to choose which laws to follow and which to disregard. Legal Interpretivism contends that laws can be interpreted in order to better meet society’s shifting requirements and that laws are not set in stone. A more pragmatic approach is taken by Legal Realism, which emphasises the need for legal judgments to be grounded in facts and scientific data. Critical Legal Studies examine law from a critical stance, challenging the underlying presumptions and intentions of every statute. Finally, Law and Economics uses economic theories to critique the legal system. All six theories offer an insight into the area of legal theory and each has unique advantages and disadvantages.
When Morality Became Law
If one was to replace every use of the word “law” in a law textbook with the word “moral,” a reader would not be able to make much sense of the book past its title. Perhaps a few thousand years ago the moral thing to do was not to poison your fellow after a dispute. Thus, laws were made to legitimise innate inclinations of right or wrong.
Nowadays, morals cannot define how long a person can park in a specific lot on a specific day, but man-made laws can. It is generally assumed that all laws are based on a certain moral compass. Though this is not necessarily wrong, these assumptions pertain to “Natural Law” – or the shared backbone all people hold themselves up by – “the innate inclinations of right or wrong”. Working back to front, the evolution of law can be understood – first with the seeds of Natural Law, then the meiosis of the past millennia, and finally, the fruit of modern day courtrooms and justice systems.
Fate or Scripture
One core attribute shared by the different faces of law is that of malleability. “Law” is an umbrella term, which is interpreted and reinterpreted by those who work within it. The values of Natural Law are the ways in which the word “natural” derives from a god, according to St Aquinas , and fate or “natural force” according to Aristotle (Wacks, 2005; Augustyn, 2023). A person’s nature is understood when their limits, actions, and motives are understood beforehand- whether it be from past experience or judgement from their surroundings or peers. For instance, people understand that killing a human is unjustified due to ethical beliefs that it violates the continuation of life, whilst executing the assaulter for doing so may be morally justified in order to prevent harming other citizens.
If a man were to cheat his friend in a game of poker, and the laws they abided by were that of natural (god) law, his friend would perhaps quote the bible or reference a priest. If it were fate, on the other hand, the friend would accept that there was never a different outcome, other than his friend cheating, and would begin to work toward a better future. This is, of course, where a slightly absurd dichotomy is present. Human-made law is necessary to cure this. A plain person walking down the street is not different from another, equally plain person on the same street. Both of those people are real, not abstract points at infinity.
Political v. Personal Morality
Ronald Dworkin spoke of two moralities: personal and political (Clayton, 2014). Personal morality describes the preservation of life – one’s own, and one’s capacity for another. Political morality refers to the moral obligations citizens regard their laws with.
What if what is accepted as natural by the majority is not accepted by the minority? If a pregnant woman’s illness would heavily impact and possibly kill both her unborn child and herself, it could be said that a termination would be the moral decision – two deaths will always be worse than none in this school of thought. Abortion has recently become a heavily discussed topic, especially with the overturning of Roe v. Wade. Due to certain decisions which would seem logical and moral to some, but blasphemous and unacceptable to others, man-made law is vital in supporting the “Natural Law” of a circumstance. Descartes’ saying, “I think, therefore I am,” changes to “I think, therefore I should,” or, “I understand what I should do, and thus I shall do it.” Man-made law gives Natural Law the freedom it does not inherently possess – it solidifies an accepted concept into a quotable system, and (usually) security.
Natural Law is believed to exist without the foundation of a pre-existing political jurisdiction or typical understanding of law (Corporate Finance Institute, 2022) due to its heavy reliance on human nature. This has resulted in arguments against the theory’s simplicity as being incapable of adapting to complex legal situations. However, the ignorance of unpredictable results or emotions allows Natural Law to be widely accepted, and the only aim for individuals is to achieve this state (Unkantrolable, 2017) in order for them to gain self-encouragement to avoid what they consider as wrongdoings, while guiding them towards values that are fair and just (Olaposi, 2018).
An important question to ask is whether or not human nature is truly universal. Similarly to how individuals experience and understand colours slightly differently, human perspectives also vary. There are certain things we accept as true – red is red – but there is also brick red and maroon, as well as individuals who experience colourblindness.
Similarly, there are people who may experience or view “human nature” differently. But what does this really mean? Though someone may not personally see turquoise as turquoise, instead always referring to it as blue in their head, they experience a personal level of consistency in their experience of the colour. Natural Law (in conjunction with morality) has been the basis for every legal decision in the past millennia, supported by the brace of man-made law, which in turn has attempted to support the consistency human interaction with legality and morality.
The Theory of Legal Positivism
Legal Positivism contends that legal systems exclusively consist of positive law (Hart, 1958). Legal Positivism holds that the terms “law” and “positive norms,” that is, “norms created by the legislator or regarded as common law or case law,” are interchangeable (Butler, 2003). Social norms can be called “law” if they meet the formal requirements of origin, enforcement, and effectiveness. Legal Positivism is not solely based on the ideas of law on human rights, reason, or divine mandates. Legal Positivism does not imply an ethical defence of the law’s provisions or a stance in favour of or against legal compliance. Positivists only evaluate laws based on their methods of creation, not on considerations of justice or humanity. This involves the idea that when judges rule on matters that do not obviously come under a legal rule, they create new law. It is possible to think of making law as either deciding to carry out specific legal acts or as allowing such practices (Butler, 2003).
The most persuasive arguments against Legal Positivism arise, in one way or another, from the assumption that morality is not given enough credit. A theory that stresses on the reality of law would seem to add little to our understanding of the importance of law in ensuring that human life runs smoothly, the value placed on the rule of law, and how morally charged legal language and practice are. Consequently, opponents of positivism contend that the most significant characteristics of law are not its source-based nature but rather its ability to advance the common good, protect human rights, or uphold the integrity of government (Leslie and Adams, 2019).
Comparison of Fuller v Hart
According to Fuller, there are eight principles that govern the morality of law:
- The rules must be expressed in general terms;
- The rules must be publicly promulgated;
- The rules must be (for the most part) prospective in effect;
- The rules must be expressed in understandable terms;
- The rules must be consistent with one another;
- The rules must not require conduct beyond the powers of the affected parties;
- The rules must not be changed so frequently that the subject cannot rely on them; and
- The rules must be administered in a manner consistent with their wording (Fuller, 1958).
Thus, the inherent positive moral value of the law is two-fold: contributing to a condition of social order, and respecting human autonomy as laws govern behaviour. Fuller claims that morality is formed by such internal principles. According to Fuller, these morally important goals can only be attained by a system of rules that at the very least adheres to the legality principles, hence following that they are morality. These moral principles, which are internal and thus reflect a conceptual relationship between law and morality that is incompatible with the separability thesis, are embedded into the prerequisites for the existence of the law (Himma, N.D.).
In contrast, according to Hart, every action has its own internal standards of efficacy, including morally righteous activities like passing laws and unlawful acts like poisoning. But it follows that they are different from moral standards insofar as such efficacy criteria clash with morality, as they do in the instance of poisoning. Hart therefore comes to the conclusion that they do not establish a conceptual relationship between law and morality, despite admitting that something akin to Fuller’s eight principles is embedded into the existence requirements for law. Hart’s second argument contends that the concept of law should not include additional moral requirements for moral or policy reasons: The positivist idea would still be the better one for people to retain even if we could convince them to change their minds about it since it makes clear the moral dilemmas associated with opposing a misuse of power (Leslie and Adams, 2019).
The concept of a necessary link is the only challenging factor. Hart interprets “necessity” broadly and liberally. In terms of the notion of necessity in social studies, he holds no greater commitment than the idea that a necessary relation is one that cannot fail to hold. In particular, he makes no attempt to capitalise on any potential advantage that could arise from claiming that what is biologically or psychologically required is not actually necessary (Cullison, 1985). He makes room for contextual, stable empirical facts that are dependent on factors such as our shared fragility, bodily embodiment, and mortality, and are thus “reflected in whole structures of our thought and language” (Hart, 1961). According to him, life in a completely conventional social order is likely to become unpredictable, conservative, and ineffective as societies grow in size, mobility, and diversity. Therefore, law can be considered as a remedy for those at fault (Cullison, 1985).
In 1958, Hart presented the following hypothetical:
“A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about aeroplanes? Are these, as we say, to be called “vehicles” for the purpose of the rule or not?” (Hart, 1958).
The difficulty is that there are countless possible interpretations of the word “vehicle” in the legal context. This is due to the fact that, as a general phrase in law, the term derives its meaning from the entanglements of many different webs, which are frequently referred to as linguistic, cognitive, moral, political, institutional, or cultural webs. The term “vehicle” has meanings in the rule that are implicit in understandings of parks, laws, their effects, their roles and potential applications within the legal system, their “public” nature for citizens and public servants, and their significance in light of legal notions like justification, prosecutorial discretion, and many others (Schlag, 1999).
This is not just in reference to parks and cars; rather it is about parks and cars in the context of a legal statute, a legal code, and a certain cultural practice. As Hart justified, it is possible to argue that the term “vehicle” actually has a fundamentally established meaning that should be upheld in law. In Hart’s eyes, an automobile was simply a vehicle. Yet, this claim – that the word “vehicle” has a fundamental meaning apart from and distinct from the remainder of the sentence – is merely a legal manoeuvre. And even if Hart were right – which is debatable – there is still a need to argue that it determines or ought to determine what the ordinance’s meaning is. To put it another way, there is a necessity to argue that what constitutes law is determined by his linguistic beliefs, correct as they may be. Since the settled core of meaning is a “key element” (note the tautology) of actual law, Hart argues that it must be respected. He also attempts to safeguard the integrity of this central element from the impact of policy analysis. Hart protects the hard core of established meaning from the effects of reconsideration in light of social policy, not because of any linguistic scruples, which is why he filed the brief for the protection of that core (Hart, 1958).
Further, Hart’s legal point could also be a legal move. In response, Fuller attempted to reintegrate the word “vehicle” into the context of the rest of the rule. Fuller argued that Hart’s atomistic interpretation strategy, which assumes that the word “vehicle” has meaning in and of itself, would result in absurdity. This would cause the regulation to be interpreted in ludicrous ways. However, once more, this language argument served to address a legal issue. Fuller opposed Hart not only on linguistic grounds, but also on the grounds that Hart’s atomistic word-parsing would undermine a purposive understanding of the legal rule (Schlag, 1999).
The above theorists employ rhetorical techniques that are predicated on an assertion – whether overt or subtle – that the meaning of the ordinance they uphold is necessary for or allowed by law. They all assert, quite logically, that they learn how to understand the law properly from the law itself. They all assert that the understanding they have is the correct approach which supersedes all others (Schlag, 1999).
The Theory of Legal Interpretivism
Legal Interpretivism is often associated with Dworkin who stimulated a large debate about the widely controversial relationship between law and morality. He argued for an interpretation of the law that places a strong emphasis on its moral implications, the importance of respecting rights, and justice as fairness (Dworkin, 1986). Generations of attorneys and judges all over the world have been influenced by Dworkin’s theories, which have had a long-lasting influence on the study of public law and philosophy.
Dworkin was best known for his theory of Legal Interpretivism which stresses the role judges and legal authorities play in interpreting the law. Legal interpretivists argue that laws are not fixed and that they can be interpreted. They also argue that judges should use their discernment and discretion to understand and interpret the law such that it reflects its fundamental values. In “Law’s Empire”, Dworkin explores legal obligations and the extent to which legal rights or obligations can be applied in a given scenario (Schlag, 1999).
In Chapter 1, Dworkin uses “Elmer’s case” as an example of a “hard case,” specifically to show the role of legal interpretation in the context of a case. Elmer knew that his grandfather left an estate to him. In fear of his grandfather changing his will, Elmer murdered him and was later apprehended. The grandfather’s daughters sued the administrator of will and demanded that the property be given to them. The New York Statute of Wills kept quiet as they felt compelled by the law to give it to Elmer but were torn between what the law actually was and what the statute really meant when properly read (Dworkin, 1986).
In this case, Dworkin’s emphasis on the word “interpretivism” is clear as we agree on literal words but not in the second sense. The judges disagreed on the impact of the statute’s words on Elmer’s and the daughters’ legal rights. Judge Gray read the law literally, and explained that if the estate went to the daughters, it would be a further punishment to Elmer, ultimately ruling in his favour. However, Judge Earl argued that if the statute did not have any consequences, the legislators would not have accepted it given that they had thought it through. Furthermore, he dissented by arguing that no one should profit from their wrongdoings (Dworkin, 1986). The most vital point of the case was not about whether the law was right or wrong; it was a disagreement on what the law was and what the statute really meant.
The discretion thesis, which is often linked to positivism, holds that courts should have the discretion to enact new laws when deciding complex cases. According to this theory, a judge cannot decide a case that does not obviously fall under a lawful rule by interpreting or applying the law; rather, they must make or proclaim a law that did not already exist at the time the case was decided. Thus, the discretion thesis suggests that judges have quasi-legislative competence to enact laws in instances that cannot be resolved by simply applying the law. Yet, a large portion of positivists view the discretion thesis as a provisional assertion that holds for some but not all potential legal systems (Himma, N.D.).
For instance, Hart acknowledged that cases which do not clearly fall under a rule will inevitably arise but conceded that a rule of recognition could limit judges’ ability to enact law by requiring them to “disclaim jurisdiction or to refer the points not regulated by the existing law to the legislature to decide” (Hart, 1961). However, according to Dworkin, the thesis of which judges only have discretion in the sense of exercising judgement is trivially accurate, whereas the claim that judges have discretion in the sense that their decisions cannot be overturned by a superior authority is untrue. Through amendments of the constitution or proceedings in Congress, even the Supreme Court can be overturned. Dworkin contends that because judges are not constrained by any legal requirements, the discretion thesis means that they have the authority to make legislation-like decisions in difficult instances. Dworkin believed that pre-existing law always contained the correct solution to such situations. Of course, finding the correct solution occasionally requires a judge with superior intellect, but it can always be found in existing legislation (Himma, N.D.). Dworkin contends that a judge can take property from a defendant in a difficult case without violating the principles of justice since the correct resolution to even the most difficult legal disputes is always a component of current law Dworkin, 1986).
The Theory of Legal Realism
When simply asking “what is law?”, the question is best answered by a legal realist through the prediction of the decisions that judges would make. According to Legal Realism, jurisprudence should follow the techniques of natural science by depending on empirical data. Global discoveries must be used to test hypotheses. Legal realists come to the conclusion that legal science can only evaluate the law using the value-free instruments of natural science, as opposed to engaging in philosophical investigation into the nature and function of the law, which is different and distinct from the law itself. In fact, Legal Realism holds that the law cannot be simply understood in isolation from how it is applied in reality. By identifying the fundamental elements of law in areas such as judicial decisions made and their acceptance or rejection of prior precedent and the doctrine of final judgment, this demonstrates the significance of understanding the factors taken into account in judicial decision-making (Verma, 2021).
Most legal scholars agree that the realists’ main goal of rejecting “formalistic” or “mechanical” legal conceptions and legal logic has been successful, even though other aspects of Legal Realism are still seen as naive or outdated. Nowadays, it is widely acknowledged that law is not and cannot be an exact science and that it is crucial to determine what judges actually do, rather than what they claim to do, when making decisions. As recent debates on judicial independence and discipline have shown, legal professionals frequently disagree on when it is proper for judges to “make law” as opposed to merely “implement” or “apply” existing legislation. However, no one has challenged the realists’ main claim, which holds that judges are always strongly influenced by their political beliefs, moral values, psychological traits, and other non-legal factors. Therefore, according to the relativistic viewpoint, the legal decision in a case will depend on the political, cultural, and religious beliefs of the presiding judge and is therefore only as good as what a particular court determines on a given day (West’s Encyclopedia of American Law, 2023).
Legal Realism v. Legal Positivism
Moreover, Legal Positivism and Legal Realism are frequently contrasted. According to legal positivists, all law is good law and derives from social origins. As a result, there are legal problems that cannot be resolved by the law alone. Yet, legal realists assert that, at least in appellate cases, judicial decisions are not fully dictated by positive law because they tend to assume that all law is positive. Then, are realists legal positivists? The doctrines are similar in outlook and disposition. Their divergent perspectives on the sources of law represent one significant distinction. Many legal sources, at least for judges, are regarded as binding, according to positivists. Legal realists maintain that many sources are only permissive; even domestic statutes and cases frequently have little additional weight. This, in addition to the more well-known causes of ambiguity accepted by both positivists and realists, contribute to the realist’s perception that the law is only loosely controlling in court and frequently overridden by policy and preference concerns (Schlag, 1999).
Natural Law in Relation to Legal Realism
In order to look upon morality in relation to law more holistically, Natural Law (the root of all law), and Legal Realism (the criticism of executors of law) must be compared and contrasted. Natural Law concludes that within each person there is a moral starting line which people use to apply themselves to the world. Legal Realism, on the other hand, states that all judges and lawyers are affected by social interest and personal belief systems. This appears to be two completely opposing ideas. However, while we all have an understanding of right or wrong, the manifestations of right or wrong are different from person to person – just as how one may spell “colour” as “colour,” or “color.” A criminal may have beaten a man to death, but because the public pities the defendant and wants him to have a second chance, a judge may be inclined to give the criminal a lighter or shorter sentence. Or in a simpler case: a woman parks her car by a hospital and as she rushes her child to urgent care, she forgets to pay for her parking. One judge may be a “stickler,” believing that every person should follow every law, even when in a heightened emotional state; another judge may empathise with the mother, considering, “Would I have done the same?”. The distinguishing factor between “Natural Law” and “Legal Realism” is that Natural Law is one shared moral view – “thou shalt not kill” – and Legal Realism is how each person applies their own morals to the legally performed manifestation of said view (Cornell Law School, N.D.). The comparison between the two schools of thought is extremely interesting as they are very similar, whilst carrying a few key differences.
Legal Realism and U.S. Voting Rights
By understanding Legal Realism, we can better understand how major historic events shaped judicial decisions – for example, the civil rights movement of the 1960s, and how it led to the “Voting Rights Act.” The Voting Rights Act of 1965 was signed by former U.S. President, Lyndon B. Johnson. After months of protesting, media coverage, and violence, Johnson agreed to sign this act into force, attempting to terminate the discrimination against Black voters. Of course, this does not mean that there is no discrimination when it comes to modern day voting. However, the question is not with regard to modern politicians, but with regard to President Johnson. There is a saying that diamonds are coal under pressure, and that very well may be what Johnson was experiencing. Legal realists believe that judges heavily consider social interest. During the civil rights movement, the main concerns of individuals were related to other people. The supreme court was not necessarily inclined to give African-Americans their right to vote, and could have very well dragged the process on for longer and longer. But, how many “Selmas” could the American government afford? At some point, push came to shove, and legislators were slammed into the reality of what people were willing to do for their rights. At the time that the media was growing internationally, eyes from all over the globe were watching the oppression of thousands of innocent people over a simple matter. President Johnson and his government were under intense scrutiny, leading them to create and pass the Voting Rights Act.
Legal Realism as a Whole
Legal Realism provides a deeper understanding of how the law is applied. Though much of the theory is not taken very seriously, it is an honest subject which analyses judges and their decisions. Legal Realism is how one may objectively understand legal proceedings, new and historical. Through this, two more schools of thought arise: Critical Legal Studies, and Legal Positivism. As one delves deeper into “the law,” one recognises Legal Realism as a necessary starting point in supporting their critical abilities.
Critical Legal Studies
What are Critical Legal Studies?
Critical Legal Studies is an interdisciplinary perspective on the law. It is rooted in Marxist legal thought and challenges traditional legal theses by critiquing the implications of the law and its operation (Neacsu, 2000). Critical Legal Studies, otherwise known as CLS, is associated with examining how power and privilege are implanted in legal systems, practices, and rules, and aims to challenge these systems to advocate for social justice (Cornell Law School, N. D.). CLS theorists critique accepted rules and institutions of the legal system, along with the values these systems uphold.
Differences Within Critical Legal Studies
Critical Legal Studies is the belief that law is inherently related to social injustice. As the law is a projection of law makers, in Legal Realism, judge decisions are affected by their personal beliefs, and social pressure. Legal Realism and Critical Legal Studies can be tied to what they actually criticise – the execution of law. Both schools of thought understand that, oftentimes, law in the modern world is neither true, nor fair. While law (mostly) deals with human life and how it may and may not express itself, it is an umbrella system that can be too easily skirted or used against others. Whether done by a judge holding a personal prejudice, or a whole legal statute, certain theories (such as those relating to Critical Legal Studies) are intrinsic in combating oppression in the law.
As previously discussed, Legal Realism is based in empirical evidence, and the personal beliefs of judges presiding over a case. Critical Legal Studies is a mirror and scalpel to this, exposing law as the reflection of hundreds of previous court decisions. By discussing Critical Legal Studies, one shines a light on the inequalities in legal and political history. In understanding the subject better, people – not just judges, lawyers, and future lawyers – gain an important perspective on who has and has had influence in our governments, learning how to avoid future injustices.
Case Study: Roe v. Wade
Roe v Wade was a landmark decision of the Supreme Court case from 1973 that made abortion legal in the United States. This resulted in a heated debate on whether, or to what extent, abortion should be legal, who decides the legality of it, and what role it plays in moral and religious prospects.
The case was first introduced by Norma McCorvey under the legal pseudonym “Jane Roe” who was pregnant with her third child and wanted an abortion. However, she lived in Texas, where abortion was illegal unless concerning life-threatening situations. With the help of her attorneys, Roe filed a lawsuit against Henry Wade, the local district attorney, asserting that the abortion law was unconstitutional (Duignan, 2023). Roe alleged that the Due Process Clause of the Fourteenth Amendment of the United States Constitution which states “…nor shall any state deprive any person of life, liberty, or property, without the process of law” shields a pregnant woman’s right to an abortion. However, the Supreme Court disagreed with Roe’s claim of an absolute right to abort the foetus and tried to deflect her argument by placing the State’s interest in regulating abortion first. In the end, Roe won the case and abortion was legalised (Duignan, 2023).
Because of this ruling, gender equality and feminism were improved greatly in the US, as it set a precedent for women’s right to choose whether or not they wanted to have a child, giving them control over their bodies and reproductive choices. However, in 2022, Roe v Wade was overturned. Therefore, this right no longer exists, which leaves women with little or no autonomy over their decisions regarding their bodies.
This disproportionately affects women from lower-income backgrounds who are unable to access abortions due to financial problems whereas women from a more privileged background may be able to access other countries where abortions are legal to terminate their pregnancy. This further widens the inequality gap between women from different socioeconomic backgrounds (Linder, 2021).
Additionally, banning abortion has an indirect impact on gender equality. An unplanned pregnancy can significantly disrupt a woman’s career and build upon any existing financial issues. With limited to no access to abortions, many women are forced to leave the workforce or compromise on other goals or priorities they may have (Linder, 2021).
Finally, the overturn of Roe v Wade also impacts women who have been raped. The law makes no exceptions for rape, which is an established violation of women’s rights (OHCHR, 2020) but is keeping the rapist’s child not a further punishment? With this example, we can see the fundamental role CLS plays in legal systems and institutions; it points out the flaws of laws, and advocates for change.
Critical Legal Studies will be continuously necessary through legal history. By studying major points in time, wherein legal action played a role, one is able to look back, then look forward, and improve. In taking a pick-axe to previous rulings or law, people may better yet understand the systems which work against them, and work their hardest to break them down, or reverse them. As of 2022, Roe v. Wade has been overruled. Using CLS, those directly affected by this injustice can influence future lawmakers and politicians to truly support and protect all of their people.
Law and Economics
Law and Economics is a field of study that examines the relationship between Law and Economics. It is a separate field from Natural Law, Legal Positivism, Legal Interpretivism, Legal Realism, and Critical Legal Studies. It seeks to analyse the effects of law on economic activity, taking into account the different forms of transaction costs and incentives associated with them (Butler, 2003). Law and Economics also focuses on how market conditions and economic efficiency can be improved (Butler, 2003).
Richard A. Posner
Many consider Richard A. Posner (1939 – now) to be one of the most influential figures in Law and Economics. This is largely due to the immense contributions he has made to this field of law. He has penned numerous First Amendment rulings and works that address First Amendment-related topics (Hudson, 2018). Posner also covers a variety of subjects in his books including “The Problems of Jurisprudence” (1990) and “Overcoming Law” (1995) in which he questions freedom of speech, among other topics. In “Not a Suicide Pact: The Constitution in a Time of National Emergency” (2006), Posner argues that constitutional rights must be eased during emergencies as he argued that “law must be adjective to necessity born of emergency” (Posner, 2006).
Case Study: How Antitrust Failed Workers
To further explain the theory of Law and Economics, Eric Posner, Richard Posner’s son and a well-known Lawyer (Moyn, 2020), wrote a book “How Antitrust Failed Workers” which describes the problem of antitrust in the USA. Antitrust is meant to protect consumers: it prevents monopolies from limiting the public’s personal computing decisions or overpricing products (Gillespie, 2021). In Posner’s book, he argues that antitrust law should protect workers too. This is because of the fact that employers have unrestrained power over wages and working conditions. Posner writes, “Antitrust law should police labour markets just as it policies product markets,” indicating that raising wages and product prices have the same effect on the economy and lower-income Americans.
Law and Economics is vital in the legal field as it considers the economic effects of rulings and the effect of economic ruling on both corporations and people. It strives to show how the law affects economic outcomes and how these economic outcomes affect the economy, market and daily lives of people. Through Law and Economics, inequality, wealth gaps and inefficiency are pointed out in order to ensure justice, fairness and equality. Posner claims that Antitrust laws don’t distinguish between a monopoly (where a company is the only producer) and a monopsony (when a company is the only producer) (Gillespie, 2021). In his book, Posner points out the growing inequality and slow wage growth due to the ever-growing power monopolies and employers hold in a market and uses economic concepts to do so.
Concluding Law and Morality
Law and morality are intrinsically connected and have been for the past two and a half thousand years. Because of this longevity, law has given rise to different schools of thought – some contrasting, some in agreement. Jurisprudence is the binding force of these theories, ensuring that, while they differ, they all point to the same place. Looking into history, following evolution and great historical events – from Hammurabi, to St. Aquinas, to Dworkin – the contributions great philosophers and men of the law made, were inevitable. Thus, it is paramount for those who hold an interest in the law – whether professionally or personally – to read and learn about these aforementioned theories and writings, in order to become decisive, and form their equally valuable opinions.
Finally, law shares a strong correlation with various areas of morality, in which Legal Positivism, Legal Interpretivism, and Legal Realism are connected by the theory of jurisprudence. Each connection that law has with morality carries both advantages and disadvantages: Natural Law is judged by personal beliefs and claims, however actions that may be considered by a sample of individuals may not be applicable to the majority. This disadvantage is shared with Legal Positivism, in which its emphasis on the specificity of law by the government may result in oppression by the majority of a population. Frequently compared with Legal Positivism, Legal Realism displays that the avoidance of logic within legal claims is widely agreed upon, however its other factions are considered by the majority to be dated. Legal Interpretivism allows judges to express their judgements without any restraints made by the law, although this has been argued to not apply to all jurisdiction systems. To gain a thorough understanding of the entirety of the law, one should consider the extent of adaptability and acceptance within different sectors of the population.
Augustyn, A., “Natural Law – Natural Law in the Enlightenment and the Modern Era” (Encyclopedia Britannica, 2023) <https://www.britannica.com/topic/natural-law/Natural-law-in-the-Enlightenment-and-the-modern-era> accessed 13 February 2023
Butler, B. E., “Law and Economics” (Internet Encyclopedia of Philosophy, 2003) <https://iep.utm.edu/law-and-economics/> accessed 3 March 2023
Clayton, M. and Stemplowska, Z., “Dignified Morality” (2014) CSSJ Working Papers Series
Cornell Law School, “Legal Realism” (Legal Information Institute, unknown publication year) <https://www.law.cornell.edu/wex/legal_realism> accessed 12 February 2023
Cornell Law School, “Legal Realism” (Legal Information Institute, unknown publication year) <https://www.law.cornell.edu/wex/critical_legal_theory> accessed 12 February 2023
Corporate Finance Institute, “Natural Law” (Corporate Finance Institute, 14 Mar 2013) <https://corporatefinanceinstitute.com/resources/esg/natural-law/> accessed [unknown access date]
Culison, A. D., “Morality and the Foundations of Legal Positivism” (1985) 20 Valparaiso University Law Review 61
Duignan, B., “Roe v. Wade” (Encyclopedia Britannica, 2023) <https://www.britannica.com/topic/Supreme-Court-of-the-United-States/Select-decisions-of-the-U-S-Supreme-Court> accessed [unknown access date]
Dworkin, R., Law’s Empire (1986)
Fuller, L., “Positivism and Fidelity to Law – A Reply to Professor Hart” (1958) 71 Harvard Law Review 630
Galbiati, R. and Vertova, P., “How Laws Affect Behaviour: Obligations, Incentives, and Cooperative Behaviour” (2014) 38 International Review of Law and Economics 48
Gillespie, B. B., “How Antitrust Failed the American Worker” (University of Chicago Law School, 2021) <https://www.law.uchicago.edu/news/how-antitrust-failed-american-worker> accessed 3 March 2023
Hart, H. L. A., “Positivism and the Separation of Law and Morals” (1958) 71 Harvard Law Review 593
Hart, H. L. A., The Concept of Law (OUP 1961)
Himma, K. E., “Legal Positivism” (Internet Encyclopedia of Philosophy, unknown publication year) <https://iep.utm.edu/legalpos/> accessed [unknown access date]
Hudson, D. L., “Richard Posner” (The First Amendment Encyclopedia, 2009) <https://www.mtsu.edu/first-amendment/article/1351/richard-posner> accessed 3rd March 2023
Investopedia, “Natural Law in Ethics” (Investopedia, 23 Jan 2023) <https://www.investopedia.com/terms/n/natural-law.asp> accessed [unknown access date]
Jain, V., “Legal Realism and Legal Positivism” (iPleaders, 5 Jan 2021) <https://blog.ipleaders.in/legal-realism-legal-positivism/> accessed [unknown access date]
Law Teacher, “Legal Positivism of Law” (Law Teacher, 27 Jul 2022) <https://www.lawteacher.net/free-law-essays/jurisprudence/legal-positivism-of-law.php> accessed [unknown access date]
Leslie, G. and Adams, T., “Legal Positivism” (Stanford Encyclopedia of Philosophy, 2019) <https://plato.stanford.edu/entries/legal-positivism/#MoraPrinBounLaw> accessed [unknown access date]
Linder, D., “Arguments in Roe v Wade” (Exploring Constitutional Law, 2021) <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/Roeargs.htm> accessed [unknown access date]
Moyn, S., “Does “the Resistance” actually want more democracy or less?” (The Nation, 2020) <https://www.thenation.com/article/culture/eric-posner-demagogues-playbook/> accessed [unknown access date]
Neacsu, E., “CLS Stands for Critical Legal Studies, if Anyone Remembers” (2000) 8(2) Journal of Law and Policy 415
OHCHR (Office of the High Commissioner of Human Rights), “Rape as a grave and systematic human rights violation and gender-based violation against women” (OHCHR, 2020) <https://www.ohchr.org/en/calls-for-input/rape-grave-and-systematic-human-rights-violation-and-gender-based-violence-against> accessed [unknown access date]
Olaposi, I., “Natural Theory of Law: Merits and Demerits – Inioluwa Olaposi” (Law Global Hub, 24 Nov 2018) <https://www.lawglobalhub.com/natural-theory-of-law-merits-and-demerits/> accessed [unknown access date]
Posner, R., Not a Suicide Pact: The Constitution in a Time of National Emergency (OUP 2006)
Queen, J., “What is Legal Positivism?” (My Law Questions, 26 Feb 2023) <https://www.mylawquestions.com/what-is-legal-positivism.htm> accessed [unknown access date]
Rubin, P. H., “Law and Economics” (Econlib, 27 Jun 2018) <https://www.econlib.org/library/Enc/LawandEconomics.html> accessed [unknown access date]
Schlag, P., “No Vehicles in the Park” (1999) 23 Seattle University Law Review 381
Unkantrolable, “Strengths and Weaknesses of Natural Law” (Unkantrolable, 24 Jan 2017) <https://unkantrolablerpe.wordpress.com/2017/01/25/strengths-and-weaknesses-of-natural-law/> accessed [unknown access date]
Verma, Ayush et al. “Legal Realism and Legal Positivism.” (IPleaders, 5 Jan. 2021) <https://blog.ipleaders.in/legal-realism-legal-positivism/> Accessed [unknown access date]
Wacks, R., Understanding Jurisprudence: An Introduction to Legal Theory (OUP 2005)
West’s Encyclopedia of American Law, “Legal Realism” (Encyclopedia.com, 22 Feb 2023) <https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/legal-realism> accessed 5 March 2023