1.3 Jurisprudential Thought

The view that all persons have inalienable, natural rights is found in the natural law school of thought.  Inalienable rights are those inherently possessed by all persons and which may never be taken away.  Under this view, there exists a higher or supreme universal law, which governs all mankind, and its overarching and immutable principles must be reflected in legislation - created statutory law. For example, U.S. businesses with operations abroad often hire foreign employees. Under the natural law school of thought, the same laws that protect U.S. employees should apply to foreign employees as well. This broad view of human rights is reflected in the U.S. Constitution, the Magna Carta, and the U.S. Nations Charter.

Under a historical perspective school of thought the view that laws are the summation of the rules governing social customs and human experience over time , law is seen as the summation of the rules governing social customs and human experience over time. Law changes in relation to society’s changing rules and customs. A subscriber of the historical school is more likely than those of other schools to follow precedent to solve contemporary issues.

The irrational forces perspective school of thought provides that law is sometimes the result of societal reactions to unique events and is not founded upon reason. In other words, the law is a “knee-jerk” response by a legislative body to some stimuli. For example, some have argued that because many of the protections articulated in the Sarbanes-Oxley Act - which was designed to remedy accounting and other fraud in the corporate world - were already in place under pre-existing statutes, it was the product of political forces rather than reason.  Those forces demanded that Congress “do something.”

Another view of law is the legal realism school of thought. Legal realists hold that judges should consider social and economic factors in interpreting the law and not necessarily be bound by precedent. This school of thought holds that laws may never be enforced uniformly because of the differing personal characteristics and backgrounds of judges, and that the law must reflect society’s current circumstances. The reasoning goes that a female judge, for example, might be more inclined than a male judge to consider a legal decision's impact on women.

An outgrowth of legal realism is the sociological school of thought which advocates for the use of a law as a means of redistributing wealth or promoting social justice. Law developed to prohibit discrimination - based upon race, gender, religion, or nation of origin - in housing and employment is a good example of this view.

Some view laws as the means by which a ruling class maintains control of society. This is known as the command school of thought.  Under this view, the law is not influenced by social forces, but by the needs of the ruling elites, political or otherwise. For example, during times of war, the federal government has enacted draft laws that required men of a certain age to serve in the military if they met certain requirements.

Related to the command theory is the critical legal studies school of thought, which suggests that laws are a reflection of the sum of injustices of society and are used to maintain the power status quo by elites over the needs of the people. This school of thought advocates dismantling the scaffolding of hierarchical rules and replacing them with general concepts of fundamental fairness and environmental and social justice. For example, women often have difficulty legally proving that they have been raped because rape laws have mostly been written from a male perspective. Therefore, according to this school, a judge should overlook those laws and use his or her subjective decision-making powers to determine whether an assault occurred.

The law and economics school of thought provides that laws are a function of economic forces. Adherents to this view suggest that law should be designed to promote “market efficiencies.” An efficient, productive and wealthy society is based on rules designed to promote that effect. For example, advocates of this theory suggest that our society should put an end to the practice of appointing free counsel to prisoners who bring civil suits. They believe that the case is probably not worth bringing if a prisoner cannot find a lawyer who will take the case pro bono or on a contingency-fee basis.