Everay legal assistant must be able to articulate the American legal structure and the general legal principles which have evolved, and which continue to evolve, within it.
Law Defined
There are many definitions of the word law within the context of the practice of law, not to mention the system which is served by law practitioners. Each definition provides a slightly different perspective or nuance, but the general definition can best be describes as follows:
Law is a system of enforceable rules adopted by a controlling body to govern the conduct of a society.
Philosophies of American Law
A legal philosophy is a school of thought concerning the purpose of law and how it should operate. Several different legal philosophies are intertwined in the American legal system. Although they evolved at various points in history, they continue to impact the way in which our laws operate.
Natural Law-
This philosophy emphasized the individual's right to make personal choices as long as those choices do not interfere with another's right to make personal choices. The freedom of choice is a birthright; it is not conferred b anyone, and it cannot be taken away by anyone.
Legal Positivism-
This philosophy emphasized the institutional rule of law and distinguishes law from morality. If the process used to adopt a particular rule is just and if no other rule exists to carve out an exception to that rule, the legal positivist adheres to the rule.Legal Positivism is reflected in the maxim: Hard cases make bad law.
Sociological Jurisprudence-
This philosophy promotes societies values as the measuring stick for right and wrong; it evaluates a legal rule by looking at its social effect. If the effect is bad, the legal sociologist favors getting rid of the rule. Law is seen as a tool for social engineering.
Legal Realism-
This philosophy determines what reasonable people would do in a given situtaion and then sanctions that conduct. Legal realists treat legal rules as little more than rebuttable presumptions.
Different metods of legal reasoning can lead to different results. Therefore, we look not only at the controlling rule of law stated in a judicial opinion, but also at the reasoning used to support the stated rule.
No comments:
Post a Comment