Issues
Three Jurisprudential Schools
- Natural Law
- Positivism
- Legal Realism
Natural Law
The mind of God
- God knows what is right and what is wrong
- We, as humans, can just guess
- Legislative law is a guess at what God’s law is; however, we should give it a very strong presumption of being correct
- Court decisions are an Opinion of what God’s law is; however, we should give them a very strong presumption of being correct
God gave us, as human beings, certain rights
- Liberty
- Life
- Equal Rights and Responsibilities
- The Right to choose our own form of government (Constitutional Republic)
These Natural (Fundamental) Rights can overrule man-made law, but it must be absolutely clear that the man-made law violates the Natural Law
Legal Realism
- Started in the 1800s
- Conservative Wigs in North and Democrats in the South did not like what legislatures and lower courts were doing
- They stacked the Supreme Court with these Legal Realists
- Since the courts interpreted the law, they could say it meant whatever they wanted it to be
Positivism
- In the mid-1800’s the new Republican Party began putting Positivists on the Courts
- Positivists said:
–There is no Natural Law, only the legislature can make law
–Once the legislature makes law it does not matter if it is good or bad, it must be enforced
- Positivists said:
- Legislature is supreme
- Nothing the legislature does can be wrong unless it directly conflicts with a higher positive law (the Constitution)