Legal Theory

All Rights Reserved ©

Chapter One: Legal Theory

Foundations in Law

What drives the U.S. legal system? THINK: Scales of Justice. What is in the picture of the scales of justice?

Legal Theories

Jurisprudence – “… the study, knowledge or science of law.”

Leads to theories on how the legal system has evolved.

What drives the legal theories

Individuals, history, the present

Socrates – Natural law

Civil War – 14th Amendment

Present – Privacy issues related to new technology

Chapter One: Legal Theory

Positive Law

Law that is written by a valid governmental entity should be obeyed.


Pros – Stability

Cons – Social status impacts outcomes


Institutionalized Slavery


The Death Penalty

Chapter One: Legal Theory

Natural Law – “… certain rights or values inherent by virtue of human nature, recognizable through reason.” Socrates, St. Thomas Aquinas, John Locke


What is problematic with the word “Reason” in the definition of natural law?

What impacts reason?

Given the above, is there room in the world for Natural Law in the legal system?

Chapter One: Legal Theory

Social Contract Theory – Society agrees to give up certain freedoms and rights in exchange for protection of the remaining rights which have not been abandoned.

How is that balanced in our legal system?

Bill of Rights

This is what we get?

What do we give up in exchange?

What could happen or is happening that would make U.S. citizens begin to question the balance.

Conclusion: Does the system pull a little from each theory, maybe, or can we conclude that one system is most relevant in our society? Explain.

Chapter One: Legal Theory

Purpose and Characteristics of the Legal System

Scales of Justice, what does it symbolize?


Does everybody get treated equally?

What generally dictates how one is treated in our legal system – why?


Flexibility v. Predictability

Is either more important – why?

Case Law Example: Brown v. Board of Education

Chapter One: Legal Theory

Flexible versus Predictable:

Brown v. Board of Education of Topeka Kansas, 347 U.S. 483 (1954)

Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896)

Defendant Plessy got arrested for using a whites only passenger car on at rather than the passenger car provided for “colored people.”

Precedent: The notion that judges follow previous dicta and holdings from previous cases …. In Plessy, ‘separate but equal is legal’ because the 14th amendment “(could) not have been intended to abolish distinctions based upon color, or to endorse social, as distinguished from political, equality. . . If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”

Brown v. Board of Education Holding: High schools across the country were segregated into white and non white based on the legal theory that as long as the educational facilities were equal – then you could separate races and not violated the 14th amendment of the constitution. “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal…”

Predictable or flexible or both. Discuss.

Chapter One: Legal Theory

Classifying Law:

Municipal – Toledo

County – Lucas

State – Ohio

Federal – U.S.

Common Law – Judge made law

Stare Decisis – Let the decision stand

Precedent – Previous ruling of law from cases gets applied to current and future cases

When do judges change Precedent?

Chapter One: Legal Theory

Changing Precedent

Case facts that are distinguishable (e.g. weapon was a knife in previous case whereas the current case it’s a gun);

Cases from different jurisdictions (e.g. Lucas county does not have to follow precedent in Fulton county. Ohio does not have to follow Michigan law.)

Changes in technology (e.g. a vcr recordings are not as damaging as file sharing);

Changes in the economic and social structures in place (e.g. A road from the farms to the cities brings more farm values to the city or visa versa).

See Antoine Jones case. Did GPS technology change the way we look at the 4th amendment and our “reasonable expectation of privacy?”

Chapter One: Legal Theory

Sources of Law

Constitution – Supreme Law of the land

Federal Statutes – Congress, Senate and House, signed by the President

State Statutes – State legislatures create, signed by state governor, must be in compliance and not violate the U.S. Constitution

Regulations – Regulations are created based on laws created by the state and federal legislators. Regulations are developed and promulgated by administrative agencies, such as EPA, SEC, DOE and so on. This area will be covered in the administrative law chapter.

Precedent – judges ruling is carried forward and used in future cases, where applicable..