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

  • Legislature is supreme
  • Nothing the legislature does can be wrong unless it directly conflicts with a higher positive law (the Constitution)