School Of Thought

Submitted By kaa09e
Words: 830
Pages: 4

The philosophical approaches to law play a major role in how a judge decides to apply the law to different cases. The four major schools of legal thought used to interpret and apply the law are known as the natural law, the positivist law, the historical law and legal realism. Depending on which school of thought a judge prefers will affect the outcome of some said case even when said case has the same elements as a previously tried case. Therefore, the outcome of said case can and usually does differ from previous tried cases. Below I will briefly discuss each school of thought and the pros and cons of each. The first school of legal thought is that of natural law. Natural law is one of the oldest schools of thought and has existed since 384-322 B.C.E. It can be best described as universal law and it applies to not just the people of a single nation but all of humankind. A few examples of these universal laws are murder which involves taking the life of someone else and caring for children who otherwise could not care for themselves. The basis for this school of thought is predicated not on a set of written rules but those that all humans for the most part find morally acceptable. This line of thought seems good and moral however, it is so general that it can be difficult to apply in a smaller case by case basis. That is where the positivist school comes into play. Whereas, natural law applies to the masses, positivist can better be used in a case by case basis. The positivist school of legal thought is the written law of a nation at a given point in time and those who follow it believe there is no law higher or greater than that of what is written. This is the polar opposite of natural law and negates the reasoning behind a law, like whether it is good or bad, and accepts the law solely because it written out of fear of anarchy. The good thing about this law is that it can be easier to apply on a case to case basis, but the downside is that in order for what may seem to be a bad law changed, one must have the law re-written before the law can actually be changed, which could take quite a bit of time. The third school of legal thought is the historical. This school of thought focuses primarily on the history of legal decisions and outcomes from the pasts and applies the same rationale to make judgments today. Its motto is if it isn’t broken then don’t change it. This line of thought is good in the sense that it creates precedents and continuity. The common law term known as “stare decisis” follows these very same principles in, that future cases must be ruled in the same way as previous cases were, unless there is a very good reason to depart from that. The pros of this are that it creates consistency in rulings and lays the foundation for how future cases should be ruled. However, on the other hand it does not take into