Chapter 2 Nature of law and legal reasoning The nature of law what is law Jurisprudence study of legal philosophy Ideal conceptions Natural Law body of principle of right and justice existing for all peoples irrespective of time and culture cannot create natural law but can discover its principles through reasoned thinking informed intuition of what is fair and just discovered by reason universally valid Positivist Conceptions law laid down by the duly constituted authority body of rules imposed by a sovereign or sovereign body immoral command of a duly constituted authority is still law differ from natural law theorists ought to be Historical Conceptions embodiment of a society s customs incident product of more mature legal systems rather than distinguishing characteristic of all law custom is the chief manifestation of law and evolve with social development custom may influence and become the basis of positive law as custom and cultural value changes so does the direction of positive law Greater social acceptance Sociological conceptions Law is the sum of what the law books permit and what human behavior provides Closely associated wit the historical view In present human conduct Bring about law reforms to have legal rules that reflect human experience Similarity between historical and sociological treat human conduct as the source of law Differences historical long range perspective sociological immediate experience Not necessarily in conflict with positivist approach Sociological change the law to bring it into line with human conduct Stretch to its limits this logic would reduce formal law to its least influential level if people chose to ignore it Realist Conceptions looks beyond logic and reasoning and examines what actually occurs in the legal process closely allied to sociological both view life experiences as affecting the development of law focused primarily on the social influences affecting the judicial decision making process Product of various social influences on official discretion Critical Conceptions judges make law in such a way as to preserve the existing political and economic order a way to preserve the existing political and economic order Economic Conceptions Law is an instrument by which efficient economic outcomes are achieved Affirms a link between law and economic activity Good law reflects good economics Feminist jurisprudence Liberal feminists traditional legal doctrines of individual rights expose ways in which women have not been treated equally with men and seek to correct the injustice Cultural feminists call for reevaluating the law in light of culture of caring Radical feminists view law as a means of male dominance that perpetuates the oppression Source of Law Legislature Organized body of persons having the authority to make laws for a political unit e g congress Law created by a legislature are called statutes enactments acts or legislation Called written law Legislation refers either to the process by which a statute is enacted or to the statue itself Satisfy constituents demands or to call public attention Send to the floor of the house of congress Begins as a bill introduced in either the house of representatives or senate When both houses pass similar but different bill develop compromise bill then forward to president Executive Also makes law lawmaking authority is limited by applicable constitutional provisions consists of president the cabinet and the agencies and bureaus operating under the president s authority Presidential authority over foreign affairs derived from the presidential power to make treaties subject to the advice and consent of 2 3 of the senate Presidential authority over domestic affairs limited by the supreme court interpretation of the constitution Judiciary when court decides a dispute it makes a law judge made law is referred to common law refers to those area of law that have been developed principally by the courts refined and shaped into a more precise statement of law a court s application of a statute to a particular case gives meaning to the statute Administrative agencies have power to affect the rights of private parties housed in the executive branch of government but are created by the legislature traditionally execute investigating administering and prosecuting may make law in much the same way that the legislative executive and judicial branches Legal Reasoning Methods and doctrines developed by courts to guide their decision making Uses prior cases to decide a present controversy Doctrine of stare decisis Stare decisis let the decision stand past judicial decision are applied to decide present controversies Decision is a full fledged precedent only for future like cases that is for future cases involving the same material facts Other jurisdictions may find its reasoning persuasive and follow It when considering similar cases in their jurisdictions Fairness inconsistent of same kind of factual disputes seem unfair predictability Recognize the way in which the method looks forward Often carefully considers the future effects of a decision Obiter Dictum Words of an opinion entirely unnecessary for the decision of the case A remark made or opinion expressed by a judge in a decision upon a cause by the way that is incidentally or collaterally and not directly upon the question before the court or upon a point not necessarily involved in the determination of the cause or introduced by way of illustration or analogy or argument Such are not binding as precedent Lack precedential value may have some persuasive effect on a future decision of the court Some common rationales used to support legal reasoning Decision of appellate courts in which the judges are divided in their decisions Settled before trial or are disposed of routinely by the trial courts Disagree about what the role of law is or should be in a given case Dissenting opinions have no precedential effect they can register a dissent in the hope of persuading a future court to overrule the present decision Relies heavily on rules and precedent May also disagree on the probable social effects of their decision relies heavily on policy Rule Based Rationales Deal with the meaning to be given to the words in cases and statutes One side asserts that the language of a past case or statute established one rule while the other side disagrees asserting that the rule is something else altogether Formalist reasoning takes the word in a case or statute out