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Phil of Law - Essay Example

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Phil of Law

Among the lawyers, it designates the instincts and emotions found in every human being, such as love for offspring. When natural law is applied, the jury uses the power of reasoning to give a verdict that is universally and morally accepted. Legal realism is contrary to the natural law. In legal realism theory, legal rules are based on the decision of the judiciary and are given in the interest of the majority of the population and policies of the public. This is contrary to the natural law, which is based on dogmatism. Legal realism defines the legal rights and duties as the court of law defines them (Tebbit 21). Legal realists claim that exercising the common law is subjective and the results are always inconsistent and incoherent. This claim is based on either political, social, or moral alignments or beliefs of the state and the judges. Positivism as a theory of law is a philosophy based on the information obtained from the senses, logical and mathematical analysis sourced from scientifically proved knowledge, which is valid and truthful (Tebbit 21). The empirical evidence sourced from verified data makes the society operate under the general laws of the physical world. Positivism declares the empirical sciences as the source of truth and knowledge, thereby rejecting cognitive reasoning. This theory emerged in response to the inability of the speculations in solving problems, which came up as a result of the expansion of the knowledge base of human being due to science. However, positivism is the contrast of natural law. It is always very clear, exact and does not subscribe to the beliefs of the society. Positivism postulates that laws written by the higher authority should be followed even if they are unjust or ethically acceptable. Positivism is advantageous because of its clarity, hence minimizing guesswork and binding people within its boundaries when making legal decisions. However, legal positivism may be disadvantageous because the majority might oppress the minority as in the case of the Fugitive Slave Law that oppressed the Blacks in America (Tebbit 21). Relating the theories of law to Shadrach Minkin’s ordeal, it is clear that the theories of law have been applied. In May 1850, Shadrach Minkin, a house slave in Virginia, escapes from his owner in Norfolk to Boston. Courtesy of the support in the free black society, he becomes a waiter. However, with the passing of the Fugitive Slave Law of 1850, where federal marshals were given power to arrest any fugitive slaves and remand them back to their employers, made it a reality to him. Under the new Fugitive Slave Law, slave refugees were denied basic civil liberties that are accorded to the other white citizens. These include trial by jury and the right of the accused to testify. In the case of Morris vs. the US, the verdict of the jury portrays the theory of legal realism in application. The jury applied their legal mandate on the case in the interest of the majority of people. It might have been seen that the jury were aligned on their political beliefs, but their verdict was in the interest of the majority of the population (Tebbit 21). It is clear that the jury acquitted the defendants who were believed to be guilty during trial just because they disagreed with the law. According to the jury’s argument, the law was not applicable in the case and its application was unjust. In the spirit of the theory of ...Show more


Date Philosophy of Law Theories are laid down principles and statements that try to explain a common fact or phenomenon. They are universally accepted and can be used to foresee a natural occurrence. Scholars have developed numerous theories of law, among them being Natural Law, Legal Realism, and Positivism…
Author : herbert28
Phil of Law essay example
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