The Nature of Law
A quick and dirty primer on how we talk about law and institutional justice today.
For a Natural Lawyer, there’s an element of law that exists independently, apart from and preceding the law as encoded by humans. In order for human laws to be valid, The Natural Law theorist says that they must align with a higher, eternal, or universal law. The Legal Positivist disagrees with the position that legal validity comes from such an alignment. The law, as a human artifact, derives its validity entirely from how humans interact with it. Whether or not a law is legitimate is a social -not natural- proposition. If people recognize a law as valid, it is.
Natural and Positive Law address questions of jurisprudence with the liberal assumption that justice can be defined as an equal application of the law to all of its subjects. This focus on blind procedural justice -and the attitude that the biggest questions of jurisprudence concern the interpretation and application of law- can sometimes risk ignoring examinations of how law was formed, promulgated and applied in the past, and how those facts affect precedence today.
The feminist critique of traditional liberal jurisprudence points out that, for most of history, the law has been made, interpreted, and applied exclusively by men. A legal system developed without half of its subjects present poses a challenge to conventional ideas of how the law should be described and evaluated. Critical Race Theory expands the critique, adding that, not only were women excluded from the construction of the law and the establishment of its precedents, but so were persons of color — especially in the Anglo-American legal system that dominates modern law.
The Feminist Critique and Critical Race Theory open the door to still more criticism about who was and continues to be excluded from participation in the constructing and interpreting the law. They show that the project of jurisprudence will remain incomplete without a fundamental reexamination of its core structures that includes the perspectives of everyone it constrains and protects. Without this perspective, the liberal legal project risks remaining forever unrealized.
The main difference between the traditional and critical views is that the former at times addresses law in a vacuum, treating it as equally applicable, uniformly just or unjust, and improvable primarily through judicial interpretation. The critical view questions the justice of the structures themselves, examining the fairness of the principles upon which it is founded while looking for ways to extend its protections in more just ways.
Understanding the basic nexus upon which modern legal discourse takes place helps us to orient ourselves in discussions and debates about the nature of the law, and how it applies to modern issues of legal and institutional justice.