Скачать или смотреть Natural, Positivist, and Realist Schools of Jurisprudence

1. Natural Law School
Natural Law is the belief that there is an inherent moral order in the universe that human laws should reflect. This philosophy posits that laws are not merely man-made rules but must align with universal principles derived from human nature, reason, or divine will.

Core Principles:
Morality as the Foundation of Law:

Natural Law asserts that there is a higher, universal moral order that dictates what is just and unjust.
Laws should reflect these universal principles, such as justice, fairness, and human dignity.
Objective and Universal Standards:

Unlike laws that vary across societies, natural law principles are constant and unchanging.
For instance, the concept of justice or equality is timeless and applies universally.
Legitimacy through Alignment with Morality:

A law is valid only if it aligns with these inherent moral principles.
Laws that conflict with natural law (e.g., those permitting slavery or genocide) are considered unjust and illegitimate.
Strengths:
Provides a moral critique of unjust laws.
Influences the development of human rights and constitutional law.
Emphasizes the dignity and equality of all individuals.
Criticisms:
Defining universal moral principles can be subjective and culturally biased.
Can conflict with democratic principles if moral laws are deemed to supersede popular consensus.
Relevance:
Natural Law underpins frameworks like human rights law and international humanitarian law. Concepts such as equality, liberty, and justice trace their philosophical roots to this school.

2. Legal Positivism School
Legal Positivism separates law from morality, focusing on the structure, processes, and authority that create legal systems. It emphasizes that a law’s validity comes from its proper enactment, not its ethical content.

Core Principles:
Separation of Law and Morality:

Legal Positivists argue that moral judgments are subjective and that the law’s validity should be based on its source, not its ethical implications.
For example, a tax law may be deemed valid even if it seems unfair to some.
Law as a Social Construct:

Laws are human-made systems established by governments or recognized authorities.
The process of lawmaking (e.g., parliamentary procedures) is more critical than its moral evaluation.
Focus on Legal Certainty:

Positivism emphasizes consistency, predictability, and clarity in the law.
Citizens should know what the law is and how it will be enforced, ensuring stability.
Strengths:
Encourages objectivity and neutrality in legal interpretation.
Provides a clear framework for analyzing the validity of laws.
Supports democratic governance by upholding the rule of law.
Criticisms:
Ignores moral considerations, allowing potentially unjust laws to stand.
Can lead to "legalism," where procedural correctness outweighs ethical reasoning.
Relevance:
Legal Positivism underpins most modern legal systems, including codified laws and constitutions. Its principles guide courts and legislatures in ensuring procedural fairness.

3. Legal Realism School
Legal Realism challenges the idea that laws are fixed, objective, or abstract rules. Instead, it emphasizes that laws are shaped and applied by human actors influenced by personal biases, social norms, and practical considerations.

Core Principles:
Law in Action vs. Law in Books:

Legal Realists argue that the true nature of law lies in how it is applied by judges, lawyers, and enforcers, not merely in written statutes or codes.
For example, a judge’s interpretation of a contract may depend on current economic realities rather than rigid adherence to its text.
Social Context Matters:

Laws are influenced by societal norms, cultural values, and economic conditions.
Legal Realists study how laws evolve in response to societal changes and challenges.
Judicial Decision-Making is Not Neutral:

Judges are not impartial decision-makers; their rulings are shaped by their experiences, biases, and the political climate.
Realists believe that understanding these influences is key to predicting legal outcomes.
Strengths:
Offers a practical understanding of how laws operate in the real world.
Highlights the role of human judgment and discretion in the legal system.
Encourages lawmaking that considers societal needs and practical consequences.
Criticisms:
Can undermine respect for the rule of law by emphasizing judicial subjectivity.
Risks promoting unpredictability if decisions deviate too far from established norms.
Relevance:
Legal Realism is influential in modern jurisprudence, particularly in areas like socio-legal studies and critical legal theory. It has shaped fields like employment law, where courts consider social justice and economic conditions.