Theories of Law

Law is a body of rules ordering human conduct in society, and it has developed through history on the strength of a set of theories that explain its foundation, its nature and its ends. The best known of these theories follow.

Natural Law Theory:

The central idea: this theory rests on the existence of a natural law drawn from human nature, from reason and from logic. It holds that there are universal, unalterable laws springing from moral values and from natural justice.

Its leading figures: Aristotle, Thomas Aquinas, Hugo Grotius.

Applications: human rights are treated as an extension of this theory, being rights that cannot be surrendered.

Legal Positivism:

The central idea: law is the product of human will, resting solely on the rules laid down by legislators or the competent authorities, whatever their moral content.

Its leading figures: John Austin, Hans Kelsen, H. L. A. Hart.

Founding principles: the separation of law from morality — law draws its legitimacy from its source, not from its moral content.

Social Contract Theory:

The central idea: law arises out of an agreement among individuals to found an ordered society, surrendering some of their natural rights in return for security and order.

Its leading figures: Thomas Hobbes, John Locke, Jean-Jacques Rousseau.

Why it matters: it sets out the relationship between the individual and authority, and the foundation of legal legitimacy.

Legal Realism:

The central idea: it recognises that written law is not always applied in the same way, and that the actual practice of judges and authorities is what gives law its shape in fact.

Its leading figures: Oliver Wendell Holmes, Karl Llewellyn.

Application: it is used in analyzing judicial decisions, to understand how laws are applied in practice.

Marxist Legal Theory:

The central idea: law is an instrument in the hands of the ruling class, serving to preserve its command of the means of production and to justify social inequality.

Its leading figures: Karl Marx, Friedrich Engels.

Applications: it is used in analyzing the law of socialist systems and in the legal critique of capitalism.

The Historical School of Jurisprudence:

The central idea: it attends to the development of law over time, out of the traditions and customs of a society.

Its leading figure: Friedrich Carl von Savigny.

Applications: reading laws under their historical setting.

Rights Theory:

The central idea: it treats individual rights as the foundation on which law is built.

Its leading figure: Ronald Dworkin.

Why it matters: it is used to assess laws by how far they respect and protect individual rights.

Utilitarian Theory:

The central idea: it seeks the greatest possible benefit for the greatest number. Laws are judged by their practical results.

Its leading figures: Jeremy Bentham, John Stuart Mill.

Applications: it is used in framing policies and laws aimed at improving the welfare of society.

Sovereignty Theory:

The central idea: law draws its force from the sovereignty of the state, which is the sole source of legal legitimacy.

Its leading figures: Jean Bodin, Thomas Hobbes.

Why it matters: it brings out the place of political authority in making and applying law.

Each of these theories offers a different vantage on whunder the law is and how it works. In contemporary legal practice they often overlap.