The Moral Dimension of Law and Law Practice
Michael Ambrosio, Professor of Law, Seton Hall University School of Law, The Moral Dimension of Law and Law Practice
A lawyer’s philosophy of law will inevitably reflect a philosophy of lawyering. Although there are many schools of legal philosophy and a wide divergence of views, even among those who share the same general theory of law, all legal theories can be divided into two or three distinct categories, namely natural law, legal positivism, and legal realism. Inasmuch as legal realism is considered a movement rather than a separate theory of law, for present purposes legal realism can be considered as a form of positivism, especially because it is a descriptive theory that adopts a central tenet of positivism that law and morality are separate and distinct spheres. Proponents of natural law assert that law and morals are interconnected, that law is a form of practical reason and that the purpose of law is to promote justice and the common good. Since the Ancient Greeks first coin the term “natural law,” the natural law tradition has been remarkably resilient through periods of growth and decline. Legal Positivism emerged in the middle of the 19th century as a response to exaggerated claims of proponents of natural law. Legal positivists view law as an aggregate of rules for the violation of which a sanction or punishment is imposed. For positivists law is a product of legislative will and a means of exercising political power and preserving social order. Their focus is on the validity and clarity of law as it is and not its merit.
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