Legal Philosophy Essay Example | Topics and Well Written Essays - 4250 words

Legal Philosophy - Essay Example It is not possible to choose one over the other and nor is it possible to stand in between and interrupt the constant tension brought about by it cyclic relation. Whether a particular legal philosophy is merely an abstraction or of practical value is one that is constantly changing in the highway of history where old philosophies are constantly revived and injected with new vigor and applied to new contexts which stimulate to further growth of jurisprudence itself. The application of legal philosophy is found in in a different branch of law, in law practice, legislation and judicial adjudication particularly, and because of this many are of the opinion that jurisprudence does not have value in day to day life. This problem is aggravated by the human errors of lawyers, public officials and other people educated in the nuances of law. The mental stimulations and practical value of jurisprudence is best studied and determined from the tension of the dichotomies of theoretical traditions particularly between legal positivism and natural legalism, legal formalism and legal realism, public choice theories and critical legal studies, liberal and socialist-progressive ideologies, indeterminacy/mystification and determinacy of judicial decisions, and of subjectivism and structuralism. Lon L. Fuller (1981)2, on the purpose of legal philosophy, says: As I see it, the object of legal philosophy is to give an effective and meaningful direction to the work of lawyers, judges, legislatures, and law teachers. If it leaves the activities of these men untouched, it it has no implications for the question of what they do with their working days, then legal philosophy is a failure. Legal Positivism versus Natural Law Theory. For legal positivists, rights are are such and are legal if and only if they are declared to be such by the sovereign legal authority. From their viewpoint, the government exists before the right. The sovereign, in the form of legislature or executive with constitutional legislative powers or an administrative body enacting regulations with status of law, being the exclusive source of law must grant a right otherwise it does not exist. The magistrate only enforces the strictures of the law. For legal positivists, the criterion for validity of law is posited by the sovereing and is other than morality because for them, "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though, in fact they have often done so. (Hart, p.181-2)3 The law as a social construct is the premise. The moral and political aspect of law is not denied, but positivism insists that the descriptive or conceptual