Introduction
The word jurisprudence was derived from the Latin term juris prudentia, which is defined
as the study, knowledge, or science of the law.1 Today, most people sum up jurisprudence to
mean the philosophy of the law. This essay will explore the basic premises of the major schools
of jurisprudence as they pertain to biblical and natural law theory, legal positivism, legal realism,
and critical legal theory. We will also analyze the state of our country’s present legal landscape
and use sound logic to predict what the future of American jurisprudence will look like.
Biblical and Natural Law
People who advocate for natural law commonly define it in the way legal theorist, Nigel
Simmonds defined it. Simmonds stated, “law is an intrinsically moral idea, and that inquiry into
the nature of law is ultimately a form of moral enquiry, and that system debates about law’s
content can never wholly be separated from the philosophical inquiry into the nature of law as
such.”2 In short, most believers of natural law believe that it’s a moral concept. Other believers of
natural law believe in varying degrees of natural law; these degrees are organized into Aquina’s
four categories of law. The first category is Lex aeterna divine reason, or eternal law, this is
God’s plan for the world and without it we would have no direction. The second category is lex
divina, which is God’s positive law for mankind and is revealed in the Bible’s scriptures; this
may also be referred to as divine law. The third category is lex naturalis, or natural law where
participation of the eternal law is discovered by reason in rational creatures. The fourth, and
1Legal Information Institute. (n.d.).=Jurisprudence. Legal Information Institute.
https://www.law.cornell.edu/wex/jurisprudence#:~:text=Overview,means%20the%20philosophy%20of%20law.
2 Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford: Oxford University Press.
final, category is lex humana, or humanly posited law. Lex humana is enacted for the common
good and supported by reason. This category was created out of necessity because natural law is
not capable of solving many everyday problems.3
Legal Positivism
Legal positivism is the thesis that originated from nineteen century philosopher Auguste
Comte the existence and believes that the content of law depends on social facts and not on its
merits4. Legal positivism is adamant in its belief that laws are principles and rules created by
humans and enforced by the government. The theory rejects the belief that inherent moral
principles exist, or that the laws should be based on a higher power. Legal positivism can be
broken down into two categories: modern and classical. The five main points of classical legal
positivism are: “1. That laws are commands of human beings, 2. That there is no necessary
connection between law and morals, 3. That the analysis of legal concepts is worth pursuing,
distinct from sociological and historical enquiries and critical evaluation. 4.That a legal system is
a closed logical system in which correct decisions may be deduced from predetermined legal
rules by logical means alone. 5. non-cognitivism in ethics.5 On the other side, modern legal
positivism, created by philosophers HLA Hart and Hans Kelsen, believes that there is an
existence of fundamental rules that have been accepted by government officials that stipulate law
making procedures. Modern legal positivism is separated into three thesis, they are the pedigree
thesis, discretion thesis, and separability thesis. Our text describes the thesis differences by
stating, ““The separation thesis argues against the existence of necessary moral constraints on the
3 Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford: Oxford University Press.
4 Green, L., & Adams, T. Legal positivism. Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/entries/legal-positivism/
5 Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford: Oxford University Press.
content of law while the discretion thesis proclaims that judges decide hard cases by making new
law and lastly the pedigree thesis articulates necessary and sufficient conditions for legal validity
in respect of how or by whom law is promulgated.” 6 Currently, the American law is created
through the legislative process and enforced by the courts and judicial branch, much like legal
positivism promotes. Due to the similarities, I believe the future of American Law will be legal
positivism.
Legal Realism
Legal realism is a legal theory created on the belief that all law is created from=prevailing
social interests and public policy, as opposed to purely formalistic legal considerations.=Legal
realism is often thought of as a “naturalistic approach to law in that jurisprudence should emulate
the methods of natural science; that is, it should rely on empirical evidence and hypotheses that
have been tested against the reality of the world, rather than rely on theoretical assumptions
about the law.”7 Legal realism is the collective work of several philosophers and theorist but is
most often credited to the work of Jerome Frank, Oliver Holmes, and Karl Llewellyn. Followers
of legal realism believe that legal rules and punishments are not applied consistently to all
scenarios due to character traits and personalities of the court’s judges and for that reason, laws
should be created to reflect the present-day conditions of the community that they are intended
for. They think this should be achieved by ignoring precedence and using economic and social
position to come to their conclusion. Although legal realism seems to take a simplistic approach
to the law and positivism, they also believe in using scientific analysis when studying and
6 Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford: Oxford University Press.
7 Legal Information Institute. (n.d.-b).=Legal realism. Legal Information Institute. https://www.law.cornell.edu/wex/legal_realism
applying the law, our text states, “legal realists reject the single avenue of logic and seek to apply
numerous avenues of scientific inquiry including sociology and psychology.”8
Critical Legal Theory
Critical legal theory was first introduced in America in the early 1970s and is considered
by many to be a broad application of Marx’s theories. It is defined as a theory which believes
that the law is intertwined with social issues and has inherent social biases. Proponents of critical
legal theory believe that the law mainly supports the interest of those who created it.9 Critical
legal theorist reject the concept of the law being neutral, fair, or objective and instead regard it as
a result of political and social relations. The common idea behind critical legal theory is that the
foundation of law is not based on reason.
The Current and Future American Legal Landscape
The legal landscape in America can be defined as constantly evolving and complex.
Currently, I believe the schools of jurisprudence with the most influence are legal realism and
legal positivism, but critical legal theory also maintains a presence. Our Founding Fathers were
heavily influenced by the school of legal positivism, and therefore, it is obviously demonstrated
in America’s founding documents and earliest laws. Legal Realism is prevalent in the American
legal landscape because we live in a society where everyone is different, so judges have to resort
to applying and interpreting the law based on the social and economic factors of the communities
that they preside over. Although critical legal theory is a newer concept in America, it has gained
8 Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford: Oxford University Press.
9 Legal Information Institute. (n.d.-a).=Critical legal theory. Legal Information Institute.
https://www.law.cornell.edu/wex/critical_legal_theory#:~:text=Overview,those%20who%20create%20the%20law.=
popularity, especially in the world of higher education due to the current attention and
importance placed on equality and social justice within the legal system.
As for the future of the American legal landscape, I believe that with the social climate of
our country shifting, legal realism will take the forefront when it comes to how our courts and
legislature handle laws. Legal positivism will remain the pillar that it has always been in this
country but will take a back seat to our citizen’s current and future interest in applying the law
fairly while taking into consideration the person or community’s social and economic position.
References
Green, L., & Adams, T. (Legal positivism. Stanford Encyclopedia of Philosophy.
https://plato.stanford.edu/entries/legal-positivism/=
Legal Information Institute. (n.d.-a).=Critical legal theory. Legal Information Institute.
https://www.law.cornell.edu/wex/critical_legal_theory#:~:text=Overview,those%20who
%20create%20the%20law.=
Legal Information Institute. (n.d.).=Jurisprudence. Legal Information Institute.
https://www.law.cornell.edu/wex/jurisprudence#:~:text=Overview,means%20the
%20philosophy%20of%20law.
Legal Information Institute. (n.d.-b).=Legal realism. Legal Information Institute.
https://www.law.cornell.edu/wex/legal_realism=
Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford: Oxford
University Press.
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