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Title   Jurisprudence (Legal skills for non-lawyers)

Lecturer    Irina Chinkarenko

Institution    Sakhalin State University

Country    Russia

Introduction:

The course is meant for the students of the humanitarian and technical faculties.

Studying the course students are expected to learn basic legal terminology and operate with it, to understand legal concepts and principles, to extend their understanding and critical interpretation of legal information.

The skills acquired from this course are to help students to make use of legislating acts, to know more about their main rights and duties and the way they are guaranteed in the state, and understand the necessity of the lawful behavior for social development.

Lectures:

1. Introduction: historical and theoretical basics.

a. Pre-state society. b. Historical types of state and law rise: Asian and European. c. Interrelation of law and state.

Seminar: Social regulating

A. Preconditions of social regulating. B. Social rules. C. Types of social rules: customs, traditions, religious rules, moral standards,

rules of law.

2. What the law is.

a. Legal restraint of the freedom in a society. b. The system of generally obliging standards which are settled and defended

by the state.

Seminar: Types of law understanding.

A. Natural law. B. Legal positivism. C. Integrative conception: jus-naturalism.

3. The system of law.

a. Sources of law: legislative acts, cases, tacit law. b. Rule of law. c. System of legislation in the Russian Federation. d. Remedial and substantive law.

Seminar: Branches of law: objects, subjects, regulating methods, main sources.

A. Constitutional law. B. Administrative law. C. Civil law. D. Labour law. E. Criminal law. F. International private law. G. Family law. H. International public law.

4. Legal relations.

a. Subjects and objects of law, legal capacity. b. Rights and duties correspondence. c. Types of legal relations.

Seminar: Solving tasks.

To analyze the example of legal relations and define: object, subject, main rights and duties of the subject, type of relations, branch of legislation which these relations are regulating by.

5. Law–breaking and legal responsibility.

a. Types of law-breaking. b. Lawful behaviour. c. Types and conditions of legal responsibility.

Seminar: Working with legislative acts (Constitution, Criminal Code, Civil Code,

Administrative Code, Civil Process Code, Arbitration Code).

To find out rules of law which settle the legal responsibility from two or more of proposed legislative acts. To define the type of legal responsibility. To compare the remedies of legal correction in different branches of legislation.

6. What the state is.

a. The state indications: territory, population, independence, taxes, public power, law.

b. State functions. c. Separation of powers and binding of the state by the law.

Seminar: Providing effective social organization.

Pre-reading list for the seminar includes legislative acts extracts from constitutional, municipal, administrative, tax, process (arbitration, civil, criminal), custom law.

The task is to collect the main remedies of the state settled by laws of every branch and explain how it influences to the social organization, what the state legal aims and methods are.

The final aim is to discuss the correspondence of public and private methods of social regulating.

7. The state structure.

a. The territorial organization of the state. b. The form of governing. c. The main principles of public power managing: authoritarian and democratic.

Seminar: Democracy: values and defects.

1. Democracy as a form of governing (republic – basic principles, types). 2. Democracy as a territorial organization (federations, unitary states as a result

of democratic ideas operating). 3. Democratic principles. 4. Russia – what we are as a result of democratic ideas operating.

Every lecture is provided by the seminar. Seminars are to help students to fix and practically comprehend their knowledge from lecture information.

The course is provided by the mandatory reading list:

The reading list contains Cyrillic characters, please download it >> here <<.

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Top Ten Legal SkillsBy Sally Kane, About.com Guide

See More About:

paralegal skills lawyer careers law firm life legal education career advancement tips

While legal positions vary greatly in scope and responsibility, there are several core legal skills that are required in most legal functions. If you are considering a career in the law, it is wise to polish these top ten legal skills to excel in today’s competitive legal market.

1. Oral Communication

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Language is one of the most fundamental tools of the legal professional. Legal professionals must:

Convey information in a clear, concise, and logical manner. Communicate persuasively. Advocate a position or a cause. Master legal terminology. Develop keen listening skills.

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2. Written Communication

From writing simple correspondence to drafting complex legal documents, writing is an integral function of nearly every legal position. Legal professionals must:

Master the stylistic and mechanical aspects of writing. Master the fundamentals of English grammar. Learn how to write organized, concise and persuasive prose. Draft effective legal documents such as motions, briefs, memorandums, resolutions and

legal agreements.

3. Client Service

In the client-focused legal industry, serving the client honestly, capably and responsibly is crucial to success. Legal professionals must master:

Rainmaking and client development skills. Customer service skills. Client communication skills.

4. Analytical and Logical Reasoning

Legal professionals must learn to review and assimilate large volumes of complex information in an efficient and effective manner. Legal analytical and logical reasoning skills include:

Reviewing complex written documents, drawing inferences and making connections among legal authorities.

Developing logical thinking, organization and problem-solving abilities. Structuring and evaluating arguments. Using inductive and deductive reasoning to draw inferences and reach conclusions.

5. Legal Research

Researching legal concepts, case law, judicial opinions, statutes, regulations and other information is an important legal skill. Legal professionals must:

Master legal research techniques. Learn how to locate and analyze legal authority. Master the art of statutory interpretation. Learn proper legal citation. Master legal research software applications and Internet research.

6. Technology

Technology is changing the legal landscape and is an integral part of every legal function. To remain effective in their jobs, legal professionals must:

Master a variety of word processing, presentation, time and billing, and practice-related software applications.

Master communications technology including e-mails, voice messaging systems, videoconferencing and related technology.

Become familiar with electronic discovery, computerized litigation support and document management software.

Become proficient with legal research software and Internet research. Develop the tech know-how to make wise technology decisions.

7. Knowledge of Substantive Law and Legal Procedure

All legal professionals, even those at the bottom of the legal career chain, must have a basic knowledge of substantive law and legal procedure. Legal professionals must have a general knowledge of:

Local, state and federal court systems. Relevant filing deadlines. Fundamental principles of law in the practice areas in which they work. Relevant legal terminology.

8. Time Management

In a profession based on a business model (billable hours) that ties productivity to financial gain, legal professionals are under constant pressure to bill time and manage large workloads. Therefore, legal professionals must develop:

Superior multi-tasking skills. A strong work ethic. The ability to juggle competing priorities. The ability to meet tight deadlines. Calendar management skills.

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9. Organization

In order to manage large volumes of data and documents, legal professionals must develop top-notch organizational skills, including:

The ability to sort, order and manage large volumes of exhibits, documents, files, evidence, data and other information.

The ability to identify objectives, catalogue data and create an effective organization structure from massive amounts of unrelated information.

The ability to use technology applications that assist in managing case-related data.

10. Teamwork

Legal professionals do not work in a vacuum. Even solo practitioners must rely on secretaries and support staff and team up with co-counsel, experts and vendors to deliver legal services. Moreover, since the needs of the client may transcend the skills of one attorney, one paralegal or one practice group, teamwork is essential to individual and organizational success. Teamwork skills include:

Collaborating with others to reach a common goal. Coordinating and sharing information and knowledge. Cultivating relationships with colleagues, staff, clients, experts, vendors and others. Attending and participating in team events, meetings and conferences. Question: What skills to Lawyers need?

Answer: First, lawyers need to be able to speak and write clearly. Most of the practice of

law is conducted by speaking or writing to other people, so a strong ability with language is very important.

Second, lawyers need to be able to think logically. The practice of law is really all about interpreting how the laws will apply to a particular case and this is done through a process of logical thinking that is learned in law school.

Third, lawyers need to be good at dealing with people. Much of what a lawyer does is talking to people, negotiating and building relationships. So 'people skills' are very important to lawyers.

What lawyers don't necessarily need is to be strong-willed or tough-minded. Contrary to what you may see in the movies, most successful lawyers don't get that way by yelling at people or bossing others around. Most good lawyers are well liked by their clients and other lawyers.

Finally, from an educational standpoint, here's what you need to become a lawyer: -A bachelor's degree from a university or college, -A Juris Doctor degree in law from a law school, and -To pass the Bar Examination in the state in which you want to work. It takes about eight years after the end of high school to become a lawyer

Core competence: 6 new skills now required of lawyersBy Jordan Furlong | Published: July 4, 2008

Up till now, the necessary and sufficient skill set for lawyers has looked something like this (in alphabetical order):

Analytical ability Attention to detail Logical reasoning Persuasiveness Sound judgment Writing ability (okay, that one’s apparently optional for some)

This list doesn’t include such characteristics as knowledge of the law, courtroom presence, or integrity — these aren’t “skills,” per se, so much as information one acquires or basic elements of one’s character. Even innovation, which I prize so highly, is first and foremost an attitude and willingness to think and act differently.

Rather, I’m concerned here with actual skill: a ready proficiency or applied ability acquired and developed through training and experience. Your degree of character, diligence and intelligence are innate characteristics; skills are what you acquire through their application. If you possessed these six skills in sufficient abundance, you were fully qualified to practise law.

Well, not anymore. From this point onwards, while these skills remain necessary, they’re no longer sufficient: they constitute only half of the set necessary to practise law competently, effectively and competitively. Here’s the new six-pack, the other half of tomorrow’s — no, today’s — minimum skills kit for lawyers (again in alphabetical order).

1. Collaboration skills. This isn’t just about “working well in a team,” essential as that is. This is about the ability to function in a multi-party work environment such that the process and outcome transcend the collective contribution — the whole surpasses the sum of the parts. Thanks to technological and social advances, this is how work is going to be done from now on. Lawyers who collaborate well possess the ability to identify and bring out the best others have to offer, to submerge their own positions and egos where necessary, in order to reach the optimal client outcome. Collaborative lawyers trust the wisdom of the group; lone wolves and isolationists don’t do any good anymore.

2. Emotional intelligence. If you just rolled your eyes at this entry, you probably subscribe to the belief, drilled into us in law school and in practice, that lawyers have to detach themselves emotionally from their cases and clients in order to offer the best advice. That’s idiotic. Clients need our empathy, perspective and personal connection to feel whole and satisfied; colleagues need our engagement, respect and understanding to be their best and help us succeed; everyone needs us to listen better than we do. Distant, detached lawyers are relics of the 20th century — the market no longer wants a lawyer who’s only half a person.

3. Financial literacy. This is a widespread issue, recently identified by The Economist as a factor in the subprime meltdown and other economic woes. But there’s no excuse for lawyers to remain so steadfastly clueless about money: running a business, balancing a ledger, understanding tax principles, working with statistics, calculating profit margins, even explaining the rationale behind their fees. Too many lawyers with Arts degrees just shrug and say, “I was never good with numbers” or “They never taught me that in law school.” Not good enough: every client and every case involves money in some way, and every lawyer in private practice is running a business of one size or another. Financial literacy is essential.

4. Project management. It’s a growing refrain among clients, a chorus of frustration that most lawyers have zero skills in project management. Some lawyers wouldn’t even be able to define it: planning, organizing, and managing resources to successfully complete specific objectives while maintaining scope, quality, time and budget restrictions. Lawyers seem pathologically unwilling to estimate time or budget costs (invoking the almighty “it depends” clause) and incapable of creating and managing a plan of action, presumably for fear of failing or being caught shorthanded. But today, everybody project-manages: it’s SOP in corporate life, and lawyers are the only ones in the business chain who seem to have missed the memo.

5. Technological affinity. Gerry Riskin recently called out the legal profession in a timely post on this subject: “too many lawyers pride themselves on their IT incompetencies, believing that it makes them somehow charming and brilliant.” Lawyers have grown accustomed to going unchallenged on their technological backwardness, and even tech-savvy new lawyers eventually succumb to firms’ glacial pace of tech adaptation. Here is a fact: technological affinity is a core competence of lawyering. If you can’t effectively and efficiently use e-mail, the Internet, and

mobile telephony, you might as well just stay home. And if you don’t care to learn about RSS, instant messaging, Adobe Acrobat and the like, clients and colleagues will pass you by.

6. Time management. Virtually every lawyer I meet says the same things: “I’m just so busy. I have so much to do. I don’t have any time for myself.” And yes, law is demanding, hard work. But a substantial part of lawyers’ difficulties in this regard lie with their inability to prioritize their tasks and manage their time. Lawyers are terrible at saying “no,” they’re awful at delegating work into more efficient channels, and amazingly, many are still compensated not by the tasks they accomplish but by how long they take to do them. Lawyers who won’t or can’t learn to manage their time will continue to blame their Blackberrys for their difficulties, if they don’t burn out or get fired first.

So there you have it: six core skills that lawyers simply must possess if they want to make a living in the 21st century. Law schools need to teach them; governing bodies need to test for them; law firms need to make their lawyers expert in them. They’re not optional, there are no excused absences, and the test is starting right about now.

Skills Needed to be a LawyerBy an eHow Contributor

Being a lawyer demands strong skills of oratory methods, critical analysis and observation. To top that off, a lawyer should have total knowledge of state and federal law in order to argue her cases. Another prerequisite is willingness to spend at least six years at both college and graduate school. Lastly, any lawyer who lacks passion for justice is sure to fail.

People Skills

1. Lawyers interact with a huge diversity of clients. Therefore, they must demonstrate excellent communication skills, sympathy and patience.

Observational Skills

2. Lawyers must be able to spot the holes in an opposing party's argument during a trial. They also spend a lot of time reading case materials, which requires keen attention to detail.

Memorizational Skills

3. Lawyers must have a tremendous working knowledge of both state and federal laws. During their education, they learn these laws and other procedural courtroom knowledge in order to gain their license to practice law.

Analytical Skills

4. Lawyers must have probing analytical skills in order to develop their arguments. These skills must be strong enough to debunk the opposing party's argument and sway a jury to the lawyer's side.

Oratory Skills

5. Lawyers must clarify their arguments clearly and emphatically. Lawyers who use sloppy language or show disinterest in their cases bode ill for success.

Will a certain major enhance my chances for admission to law school?

The answer to this question is No. You should major in whatever topic you are interested in studying. Our research shows that there is no one major that the law schools prefer and, likewise, there is no major that they particularly dislike. Because grades are so important, you should major in a subject you like because your grades will probably be higher in that major.

Like most colleges, Clark does not have a "prelaw curriculum," although we do offer many law-related courses in many departments. In fact, most law schools dislike prelaw majors or prescribed prelaw curricula. The best thing you can do to prepare yourself for law school is to study something that interests you. The theory behind this approach is that if you are interested in your courses, you will be motivated to achieve high levels of academic performance. It is this demonstrated commitment to learning that is the most important factor in the law school admissions process.

There are, however, three basic areas in which prelaw students need to develop proficiency:

1. Effectiveness in the comprehension and use of oral and written language. 2. In-depth understanding of human institutions and values. 3. Analytical and critical thinking.

Choosing electives that will strengthen your aptitude in these areas will greatly assist you when you are a student of law. Demonstrating competence in these fields will make you an appealing candidate for admission at law schools. The prelaw adviser has a list of courses recommended for prelaw students.

How important are language skills?

Language is the most important working tool used by the lawyer. Whether it be effectively negotiating a contract, examining a witness in court, preparing an appellate brief, or just grasping the exact meanings of legal provisions, the lawyer must understand the precise meanings of words. To facilitate the development of language skills, students should pursue courses that will give them adequate practice in:

Expression: vocabulary, usage, grammar, organized presentation, structure of language, and clarity of statement in both writing and speaking.

Comprehension: concentration and effective recollection in reading and listening skills

Both expression and comprehension require a sensitivity to the fluidity of language-the various meanings of words in different times and contexts, shades of meanings, interpretive problems, and the hazards in use of ambiguous terms. Also, skilled expression, especially for the lawyer, requires knowledge of the deceptiveness of language-emotionally charged words, catch phrases, hidden meanings, and empty generalizations.

Most Verbal Expression (VE) classes at Clark University, regardless of discipline, stress the fundamentals of language. Student research projects are also key to developing these skills. Taking a variety of courses with strong writing and research components can strengthen language skills.

What do lawyers need to know about human institutions and values?

A good lawyer must have insight into information about the institutions and values which concern the public at large, since it is the lawyer who is a force in shaping such institutions. Such insight comes from intensive study to a substantial depth in selected areas, rather than from attempts to skim all the large areas. Your major, minor, and concentrations will have an impact on your development in this area.

Why do lawyers need creative power in thinking?

Perhaps the lawyer's most valuable asset is the power to think clearly, carefully, and independently. The role of the lawyer involves constant problem-solving and sound judgment. Creative power in thinking has as its prerequisite the acquisition of skills in research, use of facts, inductive, deductive, and analytic reasoning, critical analysis, and the systematic formulation of principles and concepts.

Classes that stress critical thinking can include: English, history, philosophy, geography, and government; all classes in the natural sciences, lab courses in psychology, classes involving research methods in the social sciences; and all courses in computer science and mathematics. You should take challenging courses in all disciplines to strengthen your skills. Courses in philosophy that stress logic and analytic reasoning skills can also be beneficial to the development of critical thinking skills and can help to prepare for the Law School Admission Test (LSAT).

Remember, you should only major in a discipline because you find the subject matter appealing; the key to academic success is to pursue what you enjoy. Whatever your major, you will have ample opportunity to sample other departments when you choose electives. In selecting those classes that fulfill the perspective requirements of the Program of Liberal Studies, you will find

that many of them concentrate on the areas outlined and will assist you in your future as a lawyer.

Do grade options have an impact on my chances for admissions?

Law schools do not like to see several pass/fail or credit/no credit classes on an applicant's transcript because they are an obstacle in evaluating a student's academic performance. Whether it is a fair assumption or not, admissions committees may assume that a student elected the pass/fail option because the student anticipated that doing so would allow him/her to do less work in the class and not be penalized for it by having a low grade affect his/her GPA. The other assumption might be that the student feared receiving a low grade in a course with a high degree of difficulty and could avoid doing so by electing the pass/fail option. As a general rule, the first two pass/fail courses are overlooked, but after two, they may recompute your GPA, counting a pass as a "C" or even a "C-." Taking an internship as pass/fail is generally fine.

Will a few poor grades really hurt my chances for admission?

Don't let anyone kid you--your first year grades are very important if you plan to apply to law school! But, your "academic trend" is also taken into consideration by law schools. A student who has earned high grades in analytic and advanced courses, but whose GPA has been lowered by a few low grades in less demanding and introductory courses taken in the first year, might be regarded as a stronger candidate than the student who has earned a high GPA by taking introductory classes in the junior or senior year. Moreover, the law schools may overlook a low grade that was earned in the first or second year if they see an improvement in academic performance in the junior and senior year. On the other hand, law schools will react unfavorably to an applicant with a strong first year grade point average which drops each successive year due to poor performance in advanced courses.

How important are extracurricular activities?

It is the extent of your involvement in extracurricular organizations, not your nominal association, that is considered both by the law schools and by those who will write your letters of recommendation; mere membership counts for very little. Active participation, as demonstrated by long-term commitment in leadership roles, indicates maturity, motivation, and direction.

Your depth of extracurricular dedication could be an important part of the admissions process. A career in law requires that you work well with people and know how to balance various aspects of your life. A student who strikes a balance between a real commitment to a few extracurricular organizations while maintaining a high level of academic achievement will be a strong applicant.

Do law schools value community service work?

Beyond extracurricular involvement, students should be involved with some type of community service because the law schools want their students to have a sensitivity toward the needs of society. However, the only reason to be involved in community service is because you care enough to be involved, and a true commitment to your community would then be highlighted in one of your letters of recommendation.

Do law schools care about law related activities, internships, and employment?

Meaningful involvement in law-related activities can be of great value in two ways. It proves to the law schools that your desire to study law is well-considered, and it also serves as an excellent way for you to discover the area and extent of your own interest in law. There are a few ways to achieve this end.

Join the Prelaw Society. It is an easy way of being involved in a law-related activity on campus. Another way of demonstrating your interest in the law is via legal internships and/or

employment. Clark has many legal internships available for academic credit. They range from working in a law firm in Worcester to being a probation assistant. Also, the Washington Center and Washington Semester programs have hundreds of law-related internships available. Some students do law-related internships abroad as well. If you are interested in pursuing an internship, make an appointment with the Internship Coordinator in Career Services. Legal employment on your summer vacation offers yet another opportunity for firsthand experience in the field of law and demonstrates to the law schools your seriousness about the pursuit of a legal career.

 

Read more: http://www.clarku.edu/departments/prelaw/skills.cfm#ixzz1EyXWrCqJ

Skills required for success as a law studentHome > Subject areas > Studying law > Skills required for success as a law student

‘What does law do?’ ‘How does it do what it does?’ and ‘How should it do what it does?’ are all basic questions that have engaged the minds of philosophers and lawyers for more than two thousand years. For students with the right aptitude, who are prepared to work hard at developing their analytical skills, the academic study of law offers the possibility of engaging with challenging questions such as these and of developing the kind of transferable skills which many employers value highly.

Working hard Learning the law Linguistic and analytical skills

Working hard

Law students require a variety of aptitudes and, to use a more specifically practical word, skills. Reduced to their most basic, what is required is an aptitude for hard work, coupled with an analytical mind, which enjoys the challenge of expressing difficult ideas clearly. Furthermore, there is no escaping the fact that much of the hard work will involve a great deal of reading and note-taking; and much of this, will, at least in the short term, be heavy going and unexciting. However, if undertaken properly, this work, will over a period of time, accumulate into a substantial body of knowledge, which can then be applied to the key tasks of writing essays and solving problems, by way of both coursework and examination.

It is important to emphasise the need for hard work as an essential part of studying law, because far too many students are tempted to think that they can succeed by relying on what they imagine to be their natural ability, without bothering to add the expenditure of effort. To take an analogy, some people prefer the more or less instant gratification, which comes from watching a television adaptation of a classic novel to the rather more laborious process of reading the novel itself. Those who prefer watching television to reading the book are less likely to study law successfully, unless they rapidly acquire a taste for text-based materials.

Learning the law

It is also important to emphasise that studying law is a cumulative process. This means that you must absorb, understand and retain at least the main principles of every subject that you study, so that you will be able to apply them to other subjects later on. For example, you will need a sound grasp of foundation subjects such as contract law and administrative law before you can progress successfully to subjects such as employment law and environmental law.

Incidentally, it is often said that lawyers neither know nor need to know any more law than other people, but that they simply need to know where to look it up. While it is of course, true that many lawyers do frequently look things up, there are various reasons why it is quite simply untrue to say that they neither know nor need to know any more law than other people do.

The first point is that, in common with members of other learned professions, lawyers are expected to know a lot of material. There are several reasons why this is so.

1. First, as a matter of psychology, clients are unlikely to have much confidence in lawyers who plainly know no law.

2. Secondly, lawyers who have to spend time on getting themselves onto an equal footing with their more knowledgeable competitors before they can start spending time on the key task of giving advice or providing other professional services will have to charge more than their competitors charge. It follows that lawyers who do not know the law will be at a commercial disadvantage against competitors who do know a lot of law, since those who know the least will have to charge the most.

3. Thirdly, having found the law, you need to be able to understand it. This requires both a good grasp of that area of law known as legal method (so that you can understand and apply the sources you have looked up), and a wider knowledge of the law relating to various topics. After all, there is no point in looking up a legal rule, which seems to dispose of your case if you are unaware of another and more authoritative rule, which will prevail.

Consider this example:

Suppose your client’s widowed mother has died without leaving a will, and that your client is her only child. If you simply look up the Act of Parliament dealing with inheritance of property in situations where there is no will, you will conclude that your client is entitled to inherit the whole of his or her mother’s estate. However, suppose that your client killed his or her mother. This may have been by murder or manslaughter, or, perhaps more probably, by being the driver of a car in which the mother was a passenger and which was involved in an accident for which your client was responsible and as a result of which the mother died.

The Act of Parliament which lays down the rules of succession where there is no will makes no mention of the fact that those rules are subject to an additional set of rules, which seek to prevent people benefiting from their own wrongdoing. He additional rules, which originated in the courts but have since been developed by another Act of Parliament, may or may not (depending on all circumstances of the case) prevent your client from inheriting. It follows that a lawyer who merely identifies the first Act of Parliament, but who is unaware of the additional rules contained in both case law and the later Act of Parliament, may give bad advice.

4. Fourthly there will be many occasions in professional practice when it is simply impossible to look up the law and lawyers must, therefore, rely on their legal knowledge. For example, they may be in a meeting with clients, or appearing as advocates in court, when only a few textbooks may be available, and pressure of time may mean that even these can be used only to jog the memory, rather than as sources on which to base research.

Linguistic and analytical skills

Quite apart from the capacity to work hard, law students require good linguistic and analytical skills. Although these may sound like, and in some cases will indeed be, two distinct skills, in practical terms they often merge into one. For example, take an Act of Parliament, which, among other things, prohibits the possession of obscene articles for publication for gain, except where publication is

‘justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.’

Clearly this exception would apply to the depiction of nudity in classical art and to the publication of photographs of human genitals in medical textbooks. But what about cases involving articles which are plainly obscene on any sensible meaning of the word? Can the defence argue that such articles are nevertheless lawful because they help some people to release their frustrations through sexual fantasies, and that the consequent reduction in the number of sexual offences is plainly the object of general concern?

A linguistically perceptive response to this question would proceed on the following lines. If the exception applies to any ‘objects of general concern,’ why did Parliament specify the preceding categories (namely ‘science, literature, art or learning’)? Is it not reasonable therefore, to interpret the words ‘other objects of general concern’ as being limited to other things of the same kind as those, which are specified? Thus the argument for the defence does not justify the application of the exception.

Furthermore, and quite apart from purely linguistic considerations, when the content of the argument for the defence is analysed, it becomes plain that what is really being claimed is that the availability of obscene articles can be justified simply on the ground that they are obscene. It is difficult to see how anyone could reasonably regard this as a credible interpretation of an Act of Parliament, which was passed in order to subject obscene articles to strict controls.

As a final point on the need for good language skills, it may be useful to consider a classical legal anecdote. The story is told of a judge who, having listened patiently to an advocate who was making a long and learned submission, said, “Well, Mr Smith, having listened to all you have had to say, I must confess that I am none the wiser.’ ‘Perhaps not, my Lord,’ replied the advocate, ‘but at least your Lordship is better informed.’ Whether or not you find this funny may be a good indicator of whether you are sufficiently sensitive to nuances of meanings to be likely to succeed as a law student.

How Law is Made

What is a law?

A law is a rule or set of rules made by the Parliament. Laws made by the Parliament of NSW (also known as 'legislation') include acts and statutory instruments.

The Passage of Legislation

Law making in NSW follows a similar pattern to that used in most other Australian States, the Australian Federal Parliament and the British Parliament, where there is a bicameral or two house Parliament. Under a bicameral system, bills (or proposed laws) pass through several stages in both of the Houses of Parliament, before being sent to the Governor for assent. Bills that have received assent are known as acts.

Bills can be introduced into either House of Parliament, with the exception of money bills (see below) which must originate in the Legislative Assembly. Bills introduced by ministers are considered during the time allocated for government business, usually on Tuesday and Wednesday of a sitting week. Bills introduced by private members are considered during the time allocated for general business, usually on the last sitting day of the week.

Types of Bills

Public Bills - The most common type of bills introduced into the Parliament of NSW are 'public bills', which deal with matters of general public interest. Public bills may be introduced by either a minister or parliamentary secretary on behalf of the government or by a private member representing his or her electorate.

Cognate Bills - Cognate bills are bills which are related to each other in terms of subject matter and are presented to the Parliament as a package for simultaneous consideration.

Money Bills - Money or 'Appropriation' bills are public bills which set a tax or propose the spending of money for a particular purpose. Money bills follow the same passage through both Houses as other bills, however, provision exists under the Constitution Act for the Governor to give his assent where the 'other House' does not agree to pass a money bill.

Initiating a Bill

Government Public Bills -

Government bills stem from party policies, pressure from community groups, the media or public opinion, advice from government departments or even because of court decisions. When the Government decides that laws are needed, the minister concerned submits a proposal to the Cabinet (a meeting of all ministers) for approval.

A draft bill is prepared by the Parliamentary Counsel acting under instructions from the minister and the minister's department. This draft may go through several revisions before being finally prepared for introduction to the Parliament.

Copies of draft bills are not available on the Parliament's website, however, some exposure drafts may be accessed from the Parliamentary Counsel's website. Any questions concerning draft bills should be referred to the office of the minister responsible for the bill.

Private Member's Public Bills - Private members can also initiate a bill in response to pressure from their constituents, community groups, the media or public opinion. A draft bill is prepared by Parliamentary Counsel, acting under instructions from the private member. After community consultation, the member introduces the bill into the Parliament.

The Parliamentary Process

Notice of Motion -

A bill is initiated when a Minister or private member gives a notice of motion seeking leave (permission) to introduce a bill, usually on the next sitting day. During the Routine of Business, the Presiding Officer or Chair of each House will call for notices of motions for bills. Government ministers followed by private members who wish to introduce a bill rise and say: "Mr Speaker, I desire to give notice that tomorrow I shall move that leave be given to bring in the [Bill Title] bill".

The full text of the notice, including the long title of the bill, is published in the 'Notices of Motions and Orders of the Day' for the next sitting day.

Introduction and First Reading -

At a subsequent sitting, the Chair will call on the notice of motion for the bill. The minister/member will then move a motion to introduce the bill. If the motion is agreed to, the minister/member says: "Mr Speaker, I bring up the bill" and hands three copies to the Clerk. The Clerk reads the short title of the bill (known as the first reading) and the bill becomes a public document. Copies of the bill are then made available via the Parliament's website.

The minister/member then makes a speech outlining the principles of the bill (the second reading speech). After the speech, unless Standing Orders have been suspended to allow urgent consideration of the bill, debate is then adjourned for five clear days.

Second Reading - During the second reading debate, members express their opinions about the principles of the bill. At the conclusion of the debate, a vote is taken on the question "that this bill be now read a second time". If the House agrees, the bill proceeds to either the committee stage (if there are amendments to be considered) or directly to the third reading stage. If the House disagrees, then the bill is defeated.

Committee of the Whole (optional) -

If a member wishes to amend a bill, the House forms itself into a "Committee of the Whole" to deal with the bill in detail. During this stage the Presiding Officer leaves the Chair and the Mace (in the Legislative Assembly) or Black Rod (in the Legislative Council) is placed under the Table. The Chairman of Committees presides over the Committee and, at the end of this stage, reports the bill to the Speaker with or without amendments.

Where a bill has been amended, a second print version, incorporating the amendments, is prepared by the Parliamentary Counsel. The bill then proceeds to the third reading stage, unless a motion is agreed to that the bill be recommitted for further consideration.

Third Reading - After the bill has passed the second reading or the committee stage, a vote is taken on the question "that this bill be now read a third time". If this is agreed to, the bill has passed all stages in the House of origin. The short title of the bill is read again and the bill is sent, with a message, to the other House for consideration.

Consideration by the other House - The Presiding Officer or Chair advises the House that a message has been received seeking concurrence with a bill. (This replaces the notice of motion stage in the House of origin.) The bill then proceeds through the first, second, committee (if required) and third reading stages before being returned to the House of origin, either with the House's agreement or with amendments for consideration by the House of origin.

Consideration of Amendments by the House of Origin -

The Committee of the Whole also considers bills that have been returned from the other House with amendments. If the committee agrees to those amendments, the bill is sent to the Governor for assent. If, however, the committee disagrees, both Houses exchange messages until agreement is reached or the bill is set aside.

Where a Bill (other than a Bill appropriating revenue) is amended by the Other House, the Bill is returned to the House of Origin for consideration of those amendments. If the House of Origin agrees with the amendments, the Bill is forwarded to the Governor for assent. However, if the House of Origin does not agree, both Houses exchange messages until the Bill either passes both Houses or is laid aside. Where agreement cannot be reached, and the House of Origin does not wish to lay the bill aside, a conference and joint sitting of both Houses can be held to discuss the Bill. If necessary, the Legislative Assembly can then submit the Bill to the people of NSW by referendum, under s.5B of the Constitution Act 1902.

Under s.5A of the Constitution Act 1902, the Legislative Assembly may direct that any Bill appropriating revenue be presented to the Governor for assent where that Bill has been rejected, not passed or amended by the Legislative Council without the agreement of the Legislative Assembly.

Assent -

Once a bill has passed both Houses, it is forwarded to the Governor for assent or agreement. The Governor seeks an opinion from the Crown Solicitor as to the constitutionality of the bill. Once satisfied, the bill receives final approval at a meeting of the Executive Council and is signed by the Governor into law.

The bill is then allocated a number by the Parliament and the original signed copy is sent to the Registrar-General for safe keeping as an historical record of the State of NSW.

Commencement - An act comes into force 28 days after it is assented to, or on a day or days to be appointed by proclamation. A clause, stating whether the act comes into force by assent or proclamation, usually appears at the beginning of each bill.

When an act or clauses of an act come into force by proclamation, this date is determined by the minister who, on behalf of the Governor, places an announcement in the Government Gazette shortly before the date of commencement. It should be noted that not all clauses of an act will come into force at the same time.

The Government is required to lodge notification with the Parliament of all legislation remaining unproclaimed after 90 days.

Information about the commencement dates of acts can be obtained from the "Weekly Acts Tables" section under "Legislation Guides" on the Parliamentary Counsel's web site.

Private Bills -

A private member may also introduce a 'private bill' (not to be confused with a private member's public bill) which deals only with specific private matters which affect a private person or body. This type is bill is rare in NSW, with the most recent example being the Tamworth Tourist Information Centre Act of 1992.

Unlike private member's public bills which are introduced to the Parliament by way of a notice of motion, a private bill requires the publication of a notice in the Government Gazette followed, after a period of three months, by the lodgement of a petition accompanied by a copy of the proposed bill. After completion of the first reading stage, the bill is referred to a select committee for consideration. The bill is then returned to the Parliament for consideration, and if passed in the usual way, is presented to the Governor for assent. Unlike public acts, private acts are not numbered.

Statutory Instruments -

Statutory instruments are rules, regulations, by-laws, ordinances, rules of the court or proclamations made under certain acts. Statutory instruments are published in the NSW Government Gazette and a notice providing details of the instrument and gazette number is then tabled in both Houses of Parliament. Statutory instruments are not debated in the Parliament unless a member of either House lodges a motion to disallow part or all of that rule or instrument within 15 sitting days of the tabling of the notice.

Career Alternatives for Lawyers

By Janice Mucalov, LL.B., September 2009

Introduction Valuable legal skills Alternative career fields for lawyers Informational interviews Searching for a position

o Job websiteso Legal and general recruiters o Networkingo Seminars

The details

o How long will it take to find another position?o Straddling two jobso Older vs. younger lawyers

Case studies: three lawyers who found new careers o Paralegal instructoro Entrepreneuro Writer

Additional reading List of non-traditional jobs List of transferable legal skills

Introduction

If you’ve been thinking about quitting the practice of law, you’re not alone. Canadian statistics are hard to come by, but in the US, up to 40 per cent of lawyers want to leave the profession, and an estimated 40,000 lawyers walk away from their jobs each year.

Take heart – there are options. And you don’t have to throw your legal training out the window either. In fact, lawyers are well suited to a surprising number of alternative careers that utilize or draw upon a legal background. Of course, you already know about in-house counsel positions, contract lawyering and legal research jobs. But did you also know you could become a paralegal course instructor, compliance officer, policy analyst or corporate privacy advisor? Or how about a speech writer, immigration consultant or employee benefits manager?

In recent years, a whole mini-industry has sprung up to assist lawyers seeking non-traditional jobs. Legal career coaches, niche job posting websites, courses, specialized recruiters and several textbooks are all available to help you find a rewarding alternative career.

Consider simple changes first

But before firing off any resignation letter, think small. You might not need to actually split from the profession to be happy. A successful change could be as simple as getting more comfortable where you are, advises Monica Parker, a lawyer-turned-career coach for lawyers seeking alternative vocations and author of The Unhappy Lawyer.

Perhaps develop more outside interests – this may be enough to add the joy you’re missing in your life. If you want more personal and family time, change your relationships with the people you work with, so you can say “no” and set boundaries. Or shift from working with one partner to another if it’s a personality issue. If the firm culture is the culprit, switch to another firm.

Possible changes fall along a spectrum, says Parker:

1. Stay put and initiate simple changes2. Change practice groups or law firms3. Move into a law-related field4. Make a total career change outside of law

Consider whether less drastic changes will suffice before embarking on a whole new career as a chef or physiotherapist.

Valuable legal skills

Don’t take for granted all that you’ve learned in law school and private practice. You are armed with a number of skills that make you highly marketable in many fields within, touching on or outside the law.

Your problem solving, analytical, presentation, negotiation and conflict resolution skills all translate well to business, notes Randi Bean, the president of Life After Law.com, a Toronto-based recruitment and counselling firm that places lawyers in careers outside the traditional practice of law.

Likewise, your marketing and client/business development skills are handy for shifting into a career selling products like legal software to lawyers, adds Bean. And estate planning knowledge and experience is useful for moving to a bank or insurance company.

Your research skills, writing talents and critical thinking abilities are also highly prized in many other careers, observes Parker.

Need more examples? See the List of transferable legal skills at the end of this article.

Alternative career fields

So what can you usefully do with a law degree (besides practice law)? The options are many and varied. Lawyers have successfully found positions in all sorts of related fields. Here are a few of the most common:

Education and academic administration

How about a career in legal education or academic administration? Opportunities exist to teach in paralegal colleges and continuing legal education societies, without requiring a Masters degree in law. Legal knowledge is also useful in non-teaching positions at universities, such as a student complaints officer, disability services coordinator or student affairs director. Law schools, in particular, welcome legally-trained individuals to work in admissions, alumni relations, career services and law libraries.

Banking and finance

If you have experience in securities, trusts and estates, tax or banking law, you can parlay that into a career in the banking and finance industry. Positions include:  risk manager, estate planning advisor, trust officer, financial planner, commercial loans officer and mutual fund administrator.

Conflict resolution

Arbitration, mediation and negotiation are growing fields employing individuals with legal backgrounds as arbitrators and mediators. Labour unions, hospitals, school associations, universities and government agencies all hire professionals with strong communication and dispute resolution skills. Note that mediation positions may not be full-time – mediators tend to be retained on a contract basis to assist with a specific dispute. Former practitioners also participate in the training of alternative dispute resolution services.

Government and politics

The federal and provincial governments often hire lawyers as policy analysts to gather and research information, analyze issues in written reports and coordinate the development of strategic policy. Matters involving policy related issues range from health and transportation to education and the environment. Politics is another popular field for lawyers. Positions include speech writer, political fundraiser, campaign manager, lobbyist or even political candidate.

Human resources

Companies need talented professionals to recruit new people and oversee their staff. You can work as a hiring coordinator, human resources administrator or training manager. And don’t forget working within the legal profession as a non-lawyer – inside knowledge of the legal industry makes you well suited for a job as a law firm administrator, head of associate recruiting, marketing director or professional development manager.

Legal consulting

Some lawyers consult to law firms in law office management, marketing and client development. If you’re tech-savvy, you can put your knowledge about legal software to work as an information technology consultant. With a nursing background, you can work as a legal nurse consultant, reviewing medical records in medical malpractice and personal injury cases, providing advice to the lawyers involved and acting as an expert witness.

Legal writing, editing and publishing

A lawyer’s research and writing skills are particularly useful. Several lawyers work as freelance legal writers and editors – contributing articles for legal publications, writing do-it-yourself law books and researching/writing booklets on legal topics like divorce and landlord/tenancy matters for poverty law groups and government-funded organizations. Other one-time lawyers are now legal or business columnists for newspapers and magazines. Still others write content for law

firm websites or are full-time editors for bar association newsletters and law, business or accounting publications.

Informational interviews

Informational interviews are very important before making a jump. “This is where you get into other people’s brains and find out if what you think is a really sexy job is in fact great,” says Bean. “As a general rule, people are happy to talk about themselves, especially if someone has referred you.” Studies show that the most successful job-hunters interview many individuals just for information before they ever go out on a job interview.

You must make it clear, however, that your purpose in talking to the person is simply to learn more about their job or field, not actual employment (although an informational interview sometimes does lead to work).

What do you say in your initial phone call?

I saw your name in a recent newspaper article. I’ve been thinking about changing careers and would like to learn as much as I can about XX.

XX gave me your name and told me you are also a lawyer who has made a career switch into XX. I’m thinking of doing something similar and I’d love to know how your job has worked for you.

Be direct and ask if you can meet the person for a 15-minute coffee to talk about their work.

Here are some sample questions to ask when you meet:

How did you get involved in this type of work? What’s the best way to get started in a career in this field? Is this a growing field? Are specific qualifications required or can a person learn “on the job”? What are some of your tasks and duties? What is your typical day at work like? What do you like most about what you do? What do you like the least? What range of compensation could a person in this field expect? Do you have any suggestions to help me break into this field? Can you suggest someone else I should talk to for more information?

At the end, follow up with a short thank-you e-mail or note.

Searching for a position

So you know what field you want to pursue and you’re ready to start your job search. Now you need a roadmap or plan, says Bean. It’s not useful to haphazardly send out general resumes. Who are you going to apply to? What are you “selling”? Why should people hire you? (This will mean editing your resume to highlight strengths such as project management or conflict resolution.)

Job Websites

The career sections of newspapers and certain job websites are an obvious starting point for any career change. Recognize, however, that many positions aren’t advertised. “Any advertised job is only the tip of the iceberg,” says Bean. “There is a hidden job market.” Still, check out the following websites. Recent searches for this article yielded the job postings below.

Total Legal Jobs

This website is the source of Canadian legal jobs backed by LexisNexis Canada. Recent job postings:

clinic director of Toronto’s Parkdale Community Legal Services manager of municipal prosecutions for the City of Calgary legal recruiter with Advocate Placement (Toronto) assistant general manager (trading documentation) at CIBC in downtown Toronto

Workopolis

Check your city for location-based positions. Recent job postings under the “legal” category include:

CEO for the non-profit Canadian Nurses Protective Society (Ottawa) student judicial affairs officer for Kwantlen Polytechnic University (Greater Vancouver) senior compliance consultant with Standard Life Canada (Montreal) student abuse investigation advisor for the Toronto District School Board commercial director of infrastructure projects for the Vancouver Transportation Division of SNC-

Lavalin Inc. legal and finance product writer/editor for Carswell in Toronto intellectual property advisor for Cirque du Soleil (Montreal)

Monster

Recent job postings:

paralegal instructor at Algonquin Careers Academy (Ottawa) assistant vice-president (taxation) at HSBC in Vancouver human resources consultant with Everest College of Business (Toronto)

CraigsList

Positions for lawyers are even posted on CraigsList. Check under “Legal/Paralegal” in the Jobs section. Recent job postings:

business development specialist in the marketing department of a large Vancouver law firm intellectual asset manager for a Waterloo-based company

Government Job websites

Careers in the federal public service

Some provincial government sites:

British Columbia Ontario

Also check out your local municipality’s website.

Legal and General Recruiters

The following recruitment firms specialize in placing lawyers in the Canadian marketplace.

Life After Law

Headed by a former practising lawyer, Randi Bean, Life After Law.com is a recruitment firm devoted to placing lawyers in careers outside the traditional practice of law.

Recent job postings:

director of procurement for a health-related governmental agency (Toronto) legal retirement consultant (pensions) for a global financial management consulting firm

(Montreal) legal specialist in export compliance with a global information services company (Vancouver)

Counsel Network

Recent job posting:

policy analyst with WorkSafeBC (Richmond, BC)

ZSA

Recent job posting:

claims manager for the Law Society of BC’s Lawyer’s Insurance Fund (Vancouver)

RainMaker Group

Recent job posting:

director of legal and business affairs for Score Media (Toronto)

Robert Half Legal

Marsden International

NagataConnex Executive Legal Search

Networking

It may sound trite, but talking to people and networking is the most likely way to find a position, say both Bean and Parker. For example, if you’re interested in working in organizational development at a company or institution, you could join your local OD association and have coffee with someone there to find out more about careers in the field, suggests Parker.

Ask friends, family, neighbours, colleagues, business associates and former law school professors for leads. Consider sending out a standard email inquiry to select individuals about your interest in making a career change. (You may have to swear some people to secrecy, but you can’t make a shift without talking to others.) When you get a lead, ask them who to contact at their firm or company to find out about open jobs. Also ask if they’d be willing to help set up an interview for you.

Seminars

Law schools and bar associations sometimes offer seminars on career changes for lawyers or law grads. For example, the Women’s Law Association of Ontario recently partnered with the Law Society of Upper Canada in hosting the third annual evening panel presentation on “Alternative Careers for Women in Law” in Toronto on May 6, 2009.

The details

How long will it take to find another position?

That depends. Although some lawyers will be able to shift quickly, others will find that it does take time. Allow yourself six to nine months to secure another position, suggests Parker.

Certain practice areas lend themselves to a more seamless transition than others, notes Bean. If you’re a patent lawyer, it should be fairly easy to find work as an intellectual property manager. Similiarly, an employment lawyer could probably land a position in human resources or industrial relations without too much trouble.

Don’t despair if your first job isn’t the right one. “For a lot of lawyers, it’s a common occurrence to test the waters outside the profession, then step back in, before finally deciding to make a break,” says Parker. After teaching a semester at Harvard Law School, she returned to practising law for another four years before taking coaching classes and embarking on her new career.

Straddling two jobs

Searching for a new position will be time consuming. And it can be challenging to find something else while still working as a lawyer. “If you’re really serious about making a change, you may need to quit your current job,” says Bean.

Still, it’s possible to explore some ideas without scrapping the safety net of your day job. Says Parker:  “You can read books, conduct informational interviews, take classes in the field you’re interested in and ask to do paid or unpaid internships at nights or on weekends in the other job.” She started preparing a business plan, saving money and coaching clients over a 10-month period before finally abandoning private practice. “I left when I had the sense of certainty that I could do this.”

Older vs. younger lawyers

Senior lawyers tend to be more demanding in their expectations; it will likely take longer for them to find a suitable position than a young associate.

Compensation may also be an issue, especially if a senior lawyer is hoping to match existing earnings. Dollar for dollar, many alternative careers won’t be as lucrative as private practice. On the other hand, an older lawyer whose finances are in good shape may be in a better position to take a pay cut than a younger person with a mortgage.

Many organizations welcome the expertise of senior lawyers, says Bean. Older practitioners often have the business skills to go along with the legal skills. If you sport a grey hair or two, you shouldn’t have to justify why you are considering a career change, she says, and you should be talking to senior management when looking for a position (not the junior HR person).

Case studies: Three lawyers with non-traditional careers

Karen Yip, Paralegal instructor

Legal backgroundAfter articling, Karen Yip practised corporate law and commercial real estate for five years with Davis, a large Vancouver firm, then worked on a contract basis for an individual lawyer for two or so more years. 

New careerYip has a full-time tenured position as an instructor at Vancouver’s Capilano College (recently accredited as a university), teaching mainly in the paralegal and legal assistant departments. She puts in 20 hours a week at the college plus additional time at home on course preparation and marking.

Reason for career change“I was searching for more work/life balance.” As a contractor, the hours were sometimes gruelling, the work was sporadic and Yip was the responsible lawyer on certain files. “It was very difficult with a five-month old baby at the time.”

Finding a new positionAn acquaintance at the Lion’s Club introduced Yip to a coordinator at Capilano College, who asked her to do a guest lecture. That was popular enough to create a mini-course, which eventually led to teaching part-time and then full-time.

Most valued legal skillsBeing able to impart real life stories and legal cases, together with an understanding of everyone’s role in a law firm, has been very helpful in teaching, says Yip.

The money“I’m earning less than a practising lawyer, but then again, I’m not working 14-hour days, seven days a week.” A lawyer-cum-paralegal instructor could expect between $60,000 to $85,000 for full-time work plus benefits. Tenured instructors may also receive a pension.

Happiness quotient“I love doing what I’m doing. The students are wonderful – I get group hugs from them.”

Best advice“Persevere. You will find what you want to do.” Yip adds that teaching opportunities are always available.

Martin Perelmuter, Entrepreneur

Legal backgroundMartin Perelmuter articled with and then worked at Goodmans in Toronto for six months as a corporate commercial and securities lawyer.

New careerPerelmuter is president and co-founder of Speakers’ Spotlight. The agency represents over 600 speakers (including Justin Trudeau, Pamela Wallin and Adrienne Clarkson) and has snagged speaking engagements for clients around the world.

Reason for career change“I’m an entrepreneur by nature, and I felt that I wanted more control over my life. I also wanted to deal with people, not paper.”

Finding a new positionAfter Perelmuter and his wife helped promote her uncle’s seminars in 1995, they decided to quit their jobs and launch their own agency. “We took an entrepreneurial leap of faith,” Perelmuter recalls. “We were 25, young, and had no kids and no mortgage. We didn’t have a lot to lose.” It also helped that their business wasn’t capital-intensive. The first year, they operated in “survival mode,” making 75 to 100 calls a day from home to meeting planners and conference organizers and living partially on savings. The business took off in their second year, and they hired an employee to help them. By their fourth year, they had moved into a small office in downtown Toronto. Speakers’ Spotlight now has 23 full-time staff, and Perelmuter was a finalist in the Ernst & Young Entrepreneur of the Year Awards for 2008 and 2009.

Most valued legal skillsSeveral skills gained while practising have proved very useful, says Perelmuter – handling volumes of work; understanding the importance of client service and the value of getting back to clients promptly; a disciplined work ethic; and attention to detail (“We’re sending out booking contracts every day here.”). He has also had to “unlearn” some lawyering traits like risk management. “In business, a lot of things are based on trust and you rely on your gut more, whereas in law, you have to plan for every possible contingency.”

The money“When I made the decision to leave, I thought I’d never earn as much as I would at the firm. But I’m as well off or better financially now than if I had stayed in law.”

Happiness quotient“I’m fortunate that I’m doing something I really love to do. I have a chance to work with some pretty amazing people.”

Best advice“You’ve got one life – and one chance – so you have to take a good look at your priorities and values and find something enjoyable, where you also feel that you’re making a positive impact. If you’re not looking forward to going to work every day, you owe it to yourself to try something else.”

Valerie Mutton, Writer

Legal background Valerie Mutton practised family and criminal law for 15 years with a partner in Bowmanville, near Toronto.

New careerA full-time freelance writer for six years now, Mutton has an eclectic mix of writing work. She contributes women’s pieces for MORE, Oxygen and Today’s Parent magazines; writes about legal issues for the National and The Lawyers Weekly; has written story lines for CSI board games; and is working on her second murder mystery (her first is currently out with an agent).

Reason for career change“I started feeling like I wanted something different in my life. Practicing law wasn’t fun anymore.” Mutton still keeps a hand in the law, however, with occasional shifts giving advice at family law information centres (funded by legal aid).

Finding a new positionMutton has always enjoyed writing – she once wrote and delivered a farewell address for a judge’s retirement party in poetry. While still practicing, she took writing courses at her local community college on magazine and fiction writing and also penned a few articles. As a result, she says that transferring her focus from private practice to writing wasn’t too difficult, especially as her finances were in order. After deciding to change careers, it only took a month to shut the door on her law office. She joined a couple of writers’ associations that meet monthly

for support, professional development and networking. Writing assignments from The Lawyers Weekly (she knew a contact there) and the National (she emailed the editor explaining that she was an available lawyer-turned-writer) soon followed.

Most valued legal skills“The interviewing skills I gained as a lawyer have been really helpful. I can usually get the quotes I need within 15 minutes of being on the phone.”

The moneyWriters with legal backgrounds may earn anywhere from $30,000 to $75,000 a year. Government or corporate writing contracts tend to pay more than articles for non-legal publications. There’s usually little overhead, and freelancers can write off their home office expenses.

Happiness quotient“I’m very happy, but I do miss the bar. We have a very collegial bar here, so I still go to law association meetings and arrange lunches with former colleagues.”

Best advice“Don’t romanticize your second career. Do your research and know what you’re getting into.”

Additional reading

There are several useful books dealing with career changes for lawyers:

What Can You Do With a Law Degree? A Lawyer’s Guide to Career Alternatives Inside, Outside & Around the Law by Deborah Arron.

The Unhappy Lawyer by Monica Parker. Judgment Reversed: Alternative Careers for Lawyers by Jeffrey Strausser. The Lawyer’s Career Change Handbook: More than 300 Things You Can Do With a Law Degree by

Hindi Greenberg. JD Preferred: 400+ Things You Can do With a Law Degree (Other Than Practice Law), published

by Federal Reports, Inc. Alternative Careers for Lawyers by Hillary Mantis.

Also check out the following online articles:

“What Else Can I Do With My LL.B.?” “Exploring Alternate Careers for Lawyers”

List of non-traditional jobs for lawyers

AdministratorArbitrator or mediatorAuditorBusiness analyst

Investigator Labour negotiatorLaw librarianLaw professor

Buyer or procurement analystCareer counsellorClaims advisorCompliance officerCommercial loan administratorConference developerConsumer advocateContinuing legal education instructorContracts administratorCorporate trainerDirector of career services at a university or  collegeEditorEmployee benefits managerEstate planning specialistEthics officerExecutive director of a non-profit organizationFinancial aid administratorFundraiserImmigration officer or consultantInsurance broker

LSAT tutorLegal correspondent for a newspaper or magazineLegal technology consultantLobbyistManagement consultantMarketing or sales representativeOmbudspersonPolicy analystPolitical advisorParalegal instructorPrivacy law consultantProbation officerProject managerProperty developer or managerRecruiterSeminar leaderSpeakerSpecial events or meeting/conference plannerSports agentWriter or journalist

List of transferable legal skills

The following legal skills identified on Life After Law are valued in non-traditional jobs for lawyers:

Ability to work independentlyAnalytical thinkingAttention to detailAwareness of risk or liabilityBrainstormingBudgetingCommunicationConflict ResolutionCounsellingCreativityDecision makingDisciplineDissemination of informationEntrepreneurialFact analysisIdentification of issuesInnovationInterpersonal skills

Multi-Tasking NegotiationOrganizational skillsPersuasionPresentation skillsPrioritizationProblem SolvingProfessionalismProject ManagementPublic SpeakingResearchSalesSelf-DirectionStrategizingStress ManagementSupervisorySynthesis of informationTeamwork

Interpretation of documentsLearningManagementMediation

Time ManagementTroubleshootingWriting

Law firms place considerable emphasis upon academic achievement. At university level, most firms look for candidates with a 2.1 minimum, plus relevant work experience and extracurricular activities.

However, as well as academic achievements, transferable skills are also extremely important. Recruiters from three law firms explain which transferable skills they look for in applicants…

Problem-solving skills

’The lawyer who can only see problems will not have many clients,’ says Karen Frost, Training and Recruitment Assistant at Walker Morris. ’A crucial skill for all lawyers is the ability to solve problems. A good lawyer won’t just spot potential problems, but will also offer a solution.

’The starting point for any solution needs to be a thorough understanding of a client’s concerns, objectives and resources. There is no "one size fits all" solution, and a solution is reached by weighing up the different options and then deciding which one best meets those concerns and objectives.

’It can be difficult for students to show a prospective employer what problem-solving skills they have – but problem-solving is a skill that most of us demonstrate each day. For example, what do you do when your rent cheque bounces?

’Most employers will not expect a candidate to demonstrate problem-solving skills in a legal environment, but an employer will expect a candidate to show that when faced with a problem they can think practically, and give a sensible and effective solution.’

Communication skills

Lucy Hutchinson, HR Officer at Field Fisher Waterhouse, emphasises the importance of good communication skills: ’With the vast majority of applicants similar in academic and extracurricular achievement, demonstrating strong communication skills can be the difference between success and failure in achieving a training contract.

’Trainees must have the ability to build strong working relationships with their colleagues and – most crucially – clients. Recruiters need to see a demonstration of the people skills required to build these relationships and work effectively within the firm.

’Interviews are a great opportunity to shine in this area. Make sure you re-read your application form before the interview and think about the questions which may be asked. Being prepared means that you are more likely to give clear, well-structured answers. When answering questions

that ask you to draw on past experiences, use examples that will allow you to give evidence of key competencies such as leadership skills and problem-solving. Make sure to keep your answers focused on the question posed – don’t go off on a tangent and provide information that is not relevant.’

Commercial awareness

Kerry Jarred, Graduate Recruitment Manager at Herbert Smith, has the following advice: ’Commercial awareness is a key skill that any future legal employer will expect you to demonstrate during the application process.

’At Herbert Smith, we consider it an essential competency in any of our future trainees and so assess it throughout our entire recruitment process both on the application form, in your case study and during your interview.

’Commercial awareness is the ability to view situations from a commercial or business perspective. It requires you to look at a situation from different angles, asking yourselves "who are the key stakeholders in this situation? What would they be concerned about? What questions would they ask?"

’When working within a business where clients are one of our highest priorities, we need to ensure that we understand every aspect of their business before we are able to provide them with the most relevant legal advice’

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Legal positivism is a school of thought in philosophy of law and jurisprudence. The principal claims of modern legal positivism are that:

There is no inherent or necessary connection between the validity conditions of law and ethics or morality.

Laws are rules made, whether deliberately or unintentionally, by human beings.

Contents

[hide]

1 Legal positivism and ethics 2 Legal positivism and legal realism 3 History

o 3.1 Jeremy Bentham o 3.2 John Austin o 3.3 Hans Kelsen o 3.4 H.L.A. Hart o 3.5 Joseph Raz

4 See also 5 References 6 Further reading

[edit] Legal positivism and ethics

The relation of ethics to natural law is difficult. Legal positivism states that there is no inherent or necessary connection between the validity of a law on the one hand, and ethics or morality on the other. Therefore, in legal positivism, the law is seen as being conceptually separate (though of course not separated in practice) from moral and ethical values, and it simply sees the law as being posited by lawmakers, who are humans.

Although a positivist's view of law is that it is ultimately a matter of human custom or convention, this does not entail or presuppose that positivists endorse laws of any particular content, or the view that valid law is always to be obeyed by citizens or applied by judges. On the flip side, legal positivism by itself gives no real basis for arguing against the validity of any law based on its particular content, no matter how abhorrent to common morality. The positivist argument is solely about the nature of law as a human institution.

[edit] Legal positivism and legal realism

Legal positivism should be distinguished from legal realism and such legal realists as Oliver Wendell Holmes, Jr. The differences are both analytically and normatively important.

Both systems believe that law is a human construct, but unlike the American realists, positivists believe that in many instances the law provides reasonably determinate guidance to its subjects, and to judges, at least in trial courts.

Niklas Luhmann asserts "We can reduce... positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable)."[1] But no positivist has ever asserted that law is made valid through anyone's decision. On Hart's view, the validity of law is a matter of the customary and collective practices

of the courts. And as far as the moral validity of law is concerned, all positivists—and realists—maintain that this is a matter of moral principles. 'The power of decision,' plays no essential role in either, since individual decision rarely suffices to create a social practice of recognition, and it would be implausible to suppose that sound moral principles are made so by anyone's decision.

[edit] History

[edit] Jeremy Bentham

Main article: Jeremy Bentham

Jeremy Bentham

In English speaking philosophy, legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. Bentham drew a sharp distinction between people he called:

Expositors - those who explained what the law in practice was; and Censors - those who criticised the law in practice and compared it to their notions of what it

ought to be.

The philosophy of law, strictly considered, was to explain the real laws of the expositors, rather than the criticisms of the censors.

Bentham was also noted for calling natural law "nonsense upon stilts."

[edit] John Austin

Main article: John Austin (legal philosopher)

The distinguishing feature of a legal system is the existence of a sovereign whose authority is recognized by most members of a society, whose authority is enforced through the use of sanctions, but who is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it bears the warrant of the sovereign and will be enforced by the sovereign power and its agents.

The three basic points of Austin's positivism are:

the law is command issued by the uncommanded commander—the sovereign; such commands are backed by sanctions; and a sovereign is one who is obeyed by the majority

Austin viewed the law as commands from a sovereign that are backed by a threat of sanction. In determining 'a sovereign', Austin recognized it as one who society obeys habitually. This sovereign can be a single person or a body, like sovereign-many - Parliament, comprising numerous individuals, each with varying authoritative powers. Austin's theory also falls somewhat short in his explanations of Constitutions, International Law, non-sanctioned rules, or law that gives rights. Insofar as non-sanctioned rules and laws that allow persons to do things, for instance contract law, Austin says failure to adhere to the rules does indeed lead to sanctions; however, such sanctions are in the form of "the sanction of nullity." In this way he defined law primarily in terms of the power to control others. This definition of law was criticised by the 20th century legal philosopher H. L. A. Hart, who said that it was analogous to a gunman backing up his demands with a threat of violence.

Austin was greatly influenced in his approach by Jeremy Bentham.

[edit] Hans Kelsen

Main article: Hans Kelsen

Kelsen's is considered a very strict and scientifically understood type of legal positivism. It is based on the idea of a Grundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. For Kelsen, "sovereignty" was a loaded concept: "We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition."

His theory has followers among scholars of public law worldwide. His disciples developed "schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In the English-speaking world, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both departed from Kelsen's theories in several respects.

[edit] H.L.A. Hart

Main article: H. L. A. Hart

H. L. A. Hart later addressed Austin. Hart liked Austin's theory of a sovereign, but felt that Austin's Command Theory failed in several important ways. In the book The Concept of Law, Hart outlined several key points: Among the many ideas developed in this book are:

A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.

A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law.

A distinction between primary and secondary legal rules, where a primary rule governs conduct, such as criminal law and a secondary rules govern the procedural methods by which primary rules are enforced, prosecuted and so on. Hart specifically enumerates three secondary rules; they are:

The Rule of Recognition, the rule by which any member of society may check to find out what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said by a ruler. Hart viewed the concept of rule of recognition as an evolution from Hans Kelsen's "Grundnorm", or "basic norm."

The Rule of Change, the rule by which existing primary rules might be created, altered or deleted.

The Rule of Adjudication, the rule by which the society might determine when a rule has been broken and prescribe a remedy.

A late reply (1994 Edition) to Ronald Dworkin, who criticized legal positivism in general and especially Hart's account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).

[edit] Joseph Raz

Main article: Joseph Raz

A pupil of H. L. A. Hart, Raz has been important in continuing Hart's arguments of legal positivism since Hart's death. This included editing a second edition of Hart's 'The Concept of Law', with an additional section including Hart's responses to other philosophers' criticisms of his work.

Raz has also argued, contrary to Hart,[2] that the validity of a law can never depend on its morality.[3]

[edit] See also

Constitution in exile Critical legal studies Leslie Green International legal theory Interpretivism (legal) Georg Jellinek

Judicial activism Legal formalism Legal naturalism Legal realism Legalism (Chinese

philosophy) Libertarian theories of law

Living Constitution Natural law Philosophy of law Positive law Rule according to higher

law Strict constructionism Translating "law" to other

European languages

[edit] References

1. ̂ Luhmann, 19872. ̂ H.L.A. Hart The Concept of Law (2nd ed., Oxford, Clarendon Press, 1994) at 2503. ̂ Joseph Raz The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979)

at 47-50.

[edit] Further reading

Internet Encyclopedia of Philosophy entry by Kenneth Einar Himma Stanford Encyclopedia of Philosophy entry by Leslie Green Daniel Z. Epstein (2007). SSRN.com, Law's 'I'

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Natural law

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For other uses, see Natural law (disambiguation).

Natural law or the law of nature (Latin: lex naturalis) has been described as a law whose content is set by nature and that therefore is universal.[1] As classically used, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. The phrase natural law is opposed to the positive law (meaning "man-made law", not "good law"; cf. posit) of a given political community, society, or nation-state, and thus can function as a standard by which to criticize that law.[2] In natural law jurisprudence, on the other hand, the content of positive law cannot be known without some reference to the natural law (or something like it). Used in this way, natural law can be invoked to criticize decisions about the statutes, but less so to criticize the law itself. Some use natural law synonymously with natural justice or natural right (Latin ius naturale), although most contemporary political and legal theorists separate the two.[who?][citation needed]

Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.[3] Natural law theories have, however, exercised a profound influence on the development of English common law,[4] and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in United States Declaration of Independence and the Constitution of the United States. The essence of Declarationism is that the founding of the United States is based on Natural law.

Contents

[hide]

1 History o 1.1 Aristotle o 1.2 Stoic natural law o 1.3 Cicero o 1.4 Christian natural law

o 1.5 English jurisprudence o 1.6 American jurisprudence o 1.7 Islamic natural law o 1.8 Hobbes o 1.9 Cumberland's rebuttal of Hobbes o 1.10 Liberal natural law

2 Contemporary Catholic understanding 3 In contemporary jurisprudence 4 See also 5 Notes 6 References 7 External links

[edit] History

The use of natural law, in its various incarnations, has varied widely through its history. There are a number of different theories of natural law, differing from each other with respect to the role that morality plays in determining the authority of legal norms. This article will deal with its usages separately rather than attempt to unify them into a single theory.

[edit] Aristotle

Greek philosophy emphasized the distinction between "nature" (physis, φúσις) on the one hand and "law", "custom", or "convention" (nomos, νóμος) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have had the flavor more of a paradox than something which obviously existed.[1] Against the conventionalism that the distinction between nature and custom could engender, Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law.[5]

Aristotle's association with natural law is due largely to the interpretation given to his works by Thomas Aquinas.[6] This was based on Aquinas's conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages,[7] though more recent translations render them more literally.[8] Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.[9]

The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a

law, especially when the "particular" law of one's own city was averse to the case being made, not that there actually was such a law;[10] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.[1] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

[edit] Stoic natural law

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world.[11] Whereas the "higher" law to which Aristotle suggested one could appeal was emphatically natural, in contradistinction to being the result of divine positive legislation, the Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (a divine or eternal law), and the means by which a rational being lived in accordance with this order was the natural law, which spelled out action that accorded with virtue.[1]

As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." [12] Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it." [13]

[edit] Cicero

Cicero wrote in his De Legibus that both justice and law derive their origin from God.[14] For Cicero, natural law obliges us to contribute to the general good of the larger society.[15] The purpose of positive laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true."[16] Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue."[17] Cicero expressed the view that "the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits."[15]

Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution. The jurisprudence of the Roman Empire was rooted in Cicero, who held "an extraordinary grip . . . upon the imagination of posterity" as "the medium for the propagation of those ideas which informed the law and institutions of the empire."[18] Cicero's conception of natural law "found its way to later centuries notably through the writings of Saint Isidore of Seville and the Decretum of Gratian."[19] Thomas Aquinas, in his summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's laws.[20]

The Renaissance Florentine chancellor Leonardo Bruni praised Cicero as the man "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence."[21] The legal culture of Elizabethan England, exemplified by Sir Edward Coke, was "steeped in Ciceronian rhetoric."[22] The Scottish moral philosopher Francis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration."[23] More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people.[24] Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and moralist."[25]

The libertarian English polemicist Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively shaped early American political culture."[26] Cicero's description of the immutable, eternal, and universal natural law was quoted by Burlamaqui [27] and later by the American revolutionary legal scholar James Wilson.[28] Cicero became John Adams's "foremost model of public service, republican virtue, and forensic eloquence."[29] Adams wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher united in the same character, his authority should have great weight."[30] Thomas Jefferson "first encountered Cicero as a schoolboy learning Latin, and continued to read his letters and discourses as long as he lived. He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked upon Cicero's life, with his love of study and aristocratic country life, as a model for his own."[31] Jefferson described Cicero as "the father of eloquence and philosophy."[32]

[edit] Christian natural law

This section needs additional citations for verification.Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (April 2009)

See also: Biblical law in Christianity

Paul of Tarsus wrote in his Epistle to the Romans: "For when Gentiles, who do not have the law, by nature do the things contained in the law, these, although not having the law, are a law unto themselves, their conscience also bearing witness."[33] The intellectual historian A.J. Carlyle has commented on this passage as follows:

"There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' in Cicero, a law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St Paul recognized as the revealed law of God. It is in this sense that St Paul's words are taken by the Fathers of the fourth and fifth centuries like St Hilary of Poitiers, St Ambrose, and St Augustine, and there seems no reason to doubt the correctness of their interpretation."[34]

Some early Church Fathers, especially those in the West, sought to incorporate natural law into Christianity. The most notable among these was Augustine of Hippo, who equated natural law with man's prelapsarian state; as such, a life according to nature was no longer possible and men needed instead to seek salvation through the divine law and grace of Jesus Christ.

In the Twelfth Century, Gratian equated the natural law with divine law. A century later, St. Thomas Aquinas in his Summa Theologiae I-II qq. 90-106, restored Natural Law to its independent state, asserting natural law as the rational creature's participation in the eternal law. Yet, since human reason could not fully comprehend the Eternal law, it needed to be supplemented by revealed Divine law. (See also Biblical law in Christianity.) Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law.'[35] At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what the law said in the first place. This principle laid the seed for possible societal tension with reference to tyrants.[36]

The natural law was inherently teleological and deontological in that although it is aimed at goodness, it is entirely focused on the ethicalness of actions, rather than the consequence. The specific content of the natural law was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction or salvation. The state, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness.

In the 16th century, the School of Salamanca (Francisco Suárez, Francisco de Vitoria, etc.) further developed a philosophy of natural law. After the Church of England broke from Rome, the English theologian Richard Hooker adapted Thomistic notions of natural law to Anglicanism.

[edit] English jurisprudence

Heinrich A. Rommen has observed "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton (d. 1268) and Sir John Fortescue (d. cir. 1476).[37]

Charles H. McIlwain has referred to Bracton's De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), as "the most important law-book of medieval England."[38] Bracton's translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly.[39] In particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting that the king is under the law.[40] Sir Edward Coke famously quoted this point from Bracton in a face-to-face dispute with King James I.[41][42] The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural rights."[43] Bracton considered justice to be the "fountain-head" from which "all rights arise."[44] For his definition of justice, Bracton quoted the twelfth-century Italian jurist Azo: "'Justice is the constant and unfailing will to give to each his right.'"[45] Bracton's work was the second legal treatise studied by the young apprentice lawyer Thomas Jefferson.[46]

Sir John Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries."[47] The legal scholar Ellis Sandoz has noted that "the historically ancient and the ontologically higher

law--eternal, divine, natural--are woven together to compose a single harmonious texture in Fortescue's account of English law."[48] As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found in Accursius and Bracton), after all, was 'a sacred sanction commanding what is virtuous [honesta] and forbidding the contrary.'"[49] Fortescue cited Leonardo Bruni for his statement that "virtue alone produces happiness."[50] The prosecutor in the seventeenth-century trial of King Charles I cited Fortescue as "the most famous authority" for the doctrine that "the Kings of England are trusted with a limited power to govern by law," and that "the King is not above the law, but the law above the King."[51]

Christopher St. Germain's Doctor and Student was a classic of English jurisprudence,[52] and it was thoroughly annotated by Thomas Jefferson.[53] St. Germain informs his readers that English lawyers generally don't use the phrase "law of nature," but rather use "reason" as the preferred synonym.[54][55] Norman Doe notes that St. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated."[56]

St. Germain summarizes the law of reason as follows: "The law of reason teacheth, that good is to be loved, and evil is to be fled: also that thou shalt do to another, that thou wouldest another should do unto thee; and that we may do nothing against truth; and that a man must live peacefully with others; that justice is to be done to every man; and also that wrong is not to be done to any man; and that also a trespasser is worthy to be punished...[and that] it is lawful to put away force with force; and that it is lawful for every man to defend himself and his goods against an unlawful power."[57] Property is an important consideration for St. Germain: "The law of secondary reason general is grounded and derived of the general law, or general custom of property… all things that be derived by reason out of the said law of property, be called the law of reason secondary general, for the law of property is generally kept in all countries."[54]

Sir Edward Coke was the preeminent jurist of his time. As his recent editor has written, once Coke said that something was the law, almost everyone agreed.[58] Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."[59] Thomas Jefferson wrote to James Madison that before the Revolution, the first volume of Coke's Institutes of the Laws of England "was the universal elementary book of law students, and a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties." [60]

Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things."[61] For Coke, human nature determined the purpose of law; and law was superior to any one man's reason or will.[62] Coke's discussion of natural law appears in his report of Calvin's Case (1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as

authorities Aristotle, Cicero, and the Apostle Paul; as well as Bracton, Fortescue, and St. Germain.[63]

[edit] American jurisprudence

The U.S. Declaration of Independence states that it has become necessary for the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some early American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal basis for grounding concrete rights and governmental limitations.[3] Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements.[64] Robert Lowry Clinton argues that the U.S. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation.[65]

[edit] Islamic natural law

Abū Rayhān al-Bīrūnī, an Islamic scholar and polymath scientist, understood natural law as the law of the jungle. He argued that the antagonism between human beings can only be overcome through a divine law, which he believed to have been sent through prophets. This is also the position of the Ashari school, the largest school of Sunni theology.[66] Averroes (Ibn Rushd), in his treatise on Justice and Jihad and his commentary on Plato's Republic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia or to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream of Western culture through his Aristotelian commentaries, influencing the subsequent Averroist movement and the writings of Thomas Aquinas.[67]

The Maturidi school, the second largest school of Sunni theology, posits the existence of a form of natural law. Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing which is known to be evil by reason alone due to man's working hard for his property. Killing, fornication, and drinking alcohol were all 'evils' which the human mind could know of according to al-Maturidi. The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good that which is known self-evidently to be good, according as it tends towards the fulfilment of the person, istislah calls good whatever is connected to one of five "basic goods". Al-Ghazali abstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour". Ibn Qayyim Al-Jawziyya also posited that human reason could discern between 'great sins' and good deeds.[citation needed]

[edit] Hobbes

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By the 17th Century, the Medieval teleological view came under intense criticism from some quarters. Thomas Hobbes instead founded a contractualist theory of legal positivism on what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. It was discovered by considering humankind's natural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born. Jeremy Bentham's modifications on legal positivism further developed the theory.

As used by Thomas Hobbes in his treatises Leviathan and De Cive, natural law is "a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved."[68]

According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan ("of the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").

The first Law of nature is that every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war.

The second Law of nature is that a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.

The third Law is that men perform their covenants made. In this law of nature consisteth the fountain and original of justice... when a covenant is made, then to break it is unjust and the definition of injustice is no other than the not performance of covenant. And whatsoever is not unjust is just.

The fourth Law is that a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will. Breach of this law is called ingratitude.

The fifth Law is complaisance: that every man strive to accommodate himself to the rest. The observers of this law may be called sociable; the contrary, stubborn, insociable, froward, intractable.

The sixth Law is that upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it.

The seventh Law is that in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow.

The eighth Law is that no man by deed, word, countenance, or gesture, declare hatred or contempt of another. The breach of which law is commonly called contumely.

The ninth Law is that every man acknowledge another for his equal by nature. The breach of this precept is pride.

The tenth law is that at the entrance into the conditions of peace, no man require to reserve to himself any right, which he is not content should be reserved to every one of the rest. The breach of this precept is arrogance, and observers of the precept are called modest.

The eleventh law is that if a man be trusted to judge between man and man, that he deal equally between them.

The twelfth law is that such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right.

The thirteenth law is the entire right, or else...the first possession (in the case of alternating use), of a thing that can neither be divided nor enjoyed in common should be determined by lottery.

The fourteenth law is that those things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot.

The fifteenth law is that all men that mediate peace be allowed safe conduct. The sixteenth law is that they that are at controversie, submit their Right to the judgement of an

Arbitrator. The seventeenth law is that no man is a fit Arbitrator in his own cause. The eighteenth law is that no man should serve as a judge in a case if greater profit, or honour,

or pleasure apparently ariseth [for him] out of the victory of one party, than of the other. The nineteenth law is that in a disagreement of fact, the judge should not give more weight to

the testimony of one party than another, and absent other evidence, should give credit to the testimony of other witnesses.

Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition,[69] disregarding the traditional association of virtue with happiness,[70] and likewise re-defining "law" to remove any notion of the promotion of the common good.[71] Hobbes has no use for Aristotle's association of nature with human perfection, inverting Aristotle's use of the word "nature." Hobbes posits a primitive, unconnected state of nature in which men, having a "natural proclivity...to hurt each other" also have "a Right to every thing, even to one anothers body";[72] and "nothing can be Unjust" in this "warre of every man against every man" in which human life is "solitary, poore, nasty, brutish, and short."[73] Rejecting Cicero's view that men join in society primarily through "a certain social spirit which nature has implanted in man,"[74] Hobbes declares that men join in society simply for the purpose of "getting themselves out from that miserable condition of Warre, which is necessarily consequent...to the naturall Passions of men, when there is no visible Power to keep them in awe."[75] As part of his campaign against the classical idea of natural human sociability, Hobbes inverts that fundamental natural legal maxim, the Golden Rule. Hobbes's version is "Do not that to another, which thou wouldst not have done to thy selfe."[76]

[edit] Cumberland's rebuttal of Hobbes

The English cleric Richard Cumberland wrote a lengthy and influential attack on Hobbes's depiction of individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that in the eighteenth century, Cumberland was commonly placed alongside Hugo Grotius and Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural law."[77] The eighteenth-century philosophers Shaftesbury and Hutcheson "were obviously inspired in part by Cumberland."[78] Historian Jon Parkin likewise describes Cumberland's work as "one of the most important works of ethical and

political theory of the seventeenth century."[79] Parkin observes that much of Cumberland's material "is derived from Roman Stoicism, particularly from the work of Cicero, as "Cumberland deliberately cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed that nature could provide an objective morality, and Epicureans, who argued that morality was human, conventional and self-interested." [80] In doing so, Cumberland de-emphasized the overlay of Christian dogma (in particular, the doctrine of "original sin" and the corresponding presumption that humans are incapable of "perfecting" themselves without divine intervention) that had accreted to natural law in the Middle Ages.

By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise of the Laws of Nature that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all Rationals." [81] He later clarifies: "By the name Rationals I beg leave to understand, as well God as Man; and I do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human nature involves the individual human willing and acting for the common good.[82] For Cumberland, human interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "enlightened self-interest." Rather, the "proper moral love of humanity" is "a disinterested love of God through love of humanity in ourselves as well as others."[83] Cumberland concludes that actions "principally conducive to our Happiness" are those which promote "the Honour and Glory of God" and also "Charity and Justice towards men."[84] Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness."[85] He cites "reason" as the authority for his conclusion that happiness consists in "the most extensive Benevolence," but he also mentions as "Essential Ingredients of Happiness" the "Benevolent Affections," meaning "Love and Benevolence towards others," as well as "that Joy, which arises from their Happiness."[86]

[edit] Liberal natural law

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Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes' revision of natural law, sometimes in an uneasy balance of the two.

Hugo Grotius based his philosophy of international law on natural law. In particular, his writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas (filtered through Richard Hooker) or Hobbes' radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesean contractualist grounds. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.[87]

While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights, and it was this language that later liberal thinkers preferred. Thomas Jefferson, arguably echoing Locke, appealed to unalienable rights in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."[88]

The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception [1] of natural law in the liberal tradition. Libertarian theorist Murray Rothbard argues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus."[89] Ludwig von Mises states that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism, rather than natural law, but R.A. Gonce argues that "the reality of the argument constituting his system overwhelms his denial."[90] David Gordon notes, "When most people speak of natural law, what they have in mind is the contention that morality can be derived from human nature. If human beings are rational animals of such-and-such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."[91]

However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse (1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs."

[edit] Contemporary Catholic understanding

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The Roman Catholic Church holds the view of natural law set forth by Thomas Aquinas,[92] particularly in his Summa Theologica, and often as filtered through the School of Salamanca. This view is also shared by some Protestant churches.[93]

The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (or soul perhaps), and that the two are inextricably linked.[94] Humans are capable of discerning the difference between good and evil because they have a conscience.[95] There are many manifestations of the good that we can pursue. Some, like procreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.[96]

To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided."[97] St. Thomas explains that:

there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's hearts. But it is blotted out in the case of a particular action, insofar as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (77, 2). But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rm. i), were not esteemed sinful.[98]

However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept, for example:

Drunkenness is wrong because it injures one's health, and worse, destroys one's ability to reason, which is fundamental to man as a rational animal (i.e. does not support self preservation).

Theft is wrong because it destroys social relations, and man is by nature a social animal (i.e. does not support the subsidiary precept of living in society).

Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good intentions don't always lead to good actions. The motive must coincide with the cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are:

1. Prudence 2. Justice 3. Temperance 4. Fortitude

The theological virtues are:

1. Faith 2. Hope 3. Charity

According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to his lack of self control and desire for pleasure, despite his good intentions, he will find himself swaying from the moral path.

[edit] In contemporary jurisprudence

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In jurisprudence, natural law can refer to the several doctrines:

That just laws are immanent in nature; that is, they can be "discovered" or "found" but not "created" by such things as a bill of rights;

That they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary process of the common law; or

That the meaning of law is such that its content cannot be determined except by reference to moral principles. These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws.

Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust law. Legal interpretivism, famously defended in the English speaking world by Ronald Dworkin, claims to have a position different from both natural law and positivism.

Besides utilitarianism and Kantianism, natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy.

The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch, Parliament often made reference to the Fundamental Laws of England which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy. According to William Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases of equity, but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism, like Jeremy Bentham, have also been staunch critics of the common law.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most prominent contemporary natural law jurist, Australian John Finnis, is based in Oxford, but there are also Americans Germain Grisez, Robert P. George, and Canadian

Joseph Boyle. All have tried to construct a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner, was also a figure in the expression of modern natural law.

"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on "basic human goods," such as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another.

The tensions between natural law and positive law have played, and continue to play a key role in the development of international law.[99]

[edit] See also

Aristotle Thomas Aquinas Jean Barbeyrac Richard Cumberland Declarationism John Finnis Hugo Grotius Thomas Hobbes International legal theory John Locke Legal positivism Lysander Spooner Moral realism Natural justice Natural order Natural rights Naturalistic fallacy Non-aggression principle Orders of creation Samuel von Pufendorf Purposive theory Rule of law Rule according to higher law School of Salamanca Spontaneous order Stoicism Substantive due process Unenumerated rights Xeer

[edit] Notes

1. ^ a b c d "Natural Law," International Encyclopedia of the Social Sciences.2. ̂ Natural Law3. ^ a b Douglas E. Edlin (Jul., 2006), "Judicial Review without a Constitution", Polity (Palgrave

Macmillan Journals) 38 (3): 345–368, doi:10.1057/palgrave.polity.2300065, http://www.jstor.org/stable/3877071.

4. ̂ Blackstone, Commentaries on the Laws of England5. ̂ Shellens, "Aristotle on Natural Law."6. ̂ Jaffa, Thomism and Aristotelianism.7. ̂ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans.

(revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.8. ̂ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing9. ̂ R. Corbett, "The Question of Natural Law in Aristotle," History of Political Thought 30, no. 2

(Summer 2009): 229–50; cf. Aristotle, Nicomachean Ethics, Bk. V, ch. 6–7; Politics, Bk. III, ch. 16.10. ̂ Shellens, "Aristotle on Natural Law," 75–81; cf. Rhetoric 1373b2–8.11. ̂ Lloyd's Introduction to Jurisprudence Seventh Edition.12. ̂ A.J. Carlyle, A History of Medieval Political Theory in the West, vol. 1 (Edinburgh, 1903). pp. 8,9.13. ̂ Charles H. McIlwain, The Growth of Political Thought in the West: From the Greeks to the End

of the Middle Ages (New York, 1932), pp. 114-15.14. ̂ Francis Barham, Introduction to The Political Works of Marcus Tullius Cicero,

http://oll.libertyfund.org/index.php?option=com_content&task=view&id=747&Itemid=28415. ^ a b Barham16. ̂ Cicero, De Legibus (Keyes translation), bk. 2, sec. 11.17. ̂ Cicero, De Legibus (Keyes translation), bk. 1, sec. 58.18. ̂ Charles Norris Cochrane, Christianity and Classical Culture: A Study of Thought and Action from

Augustus to Augustine (New York: Oxford University Press, 1957), p. 39.19. ̂ Edward S. Corwin, The "Higher Law" Background of American Constitutional Law (Ithaca, N.Y.:

Cornell University Press, 1955), pp. 17-18.20. ̂ Thomas Aquinas, Treatise on Law (Summa Theologica, Questions 90-97), ed. Stanley Parry

(Chicago: Henry Regnery Company, 1969), p. 1821. ̂ Quoted in Quentin Skinner, The Foundations of Modern Political Thought(Cambridge, 1978),

vol. 1, p.89.22. ̂ Allen D. Boyer, "Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law

Tradition," in Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke, ed. Allen D. Boyer (Indianapolis: Liberty Fund, 2004), pp. 224-25.

23. ̂ William Robert Scott, Francis Hutcheson: His Life, Teaching, and Position in the History of Philosophy (Cambridge, 1900; repr. New York: Augustus M. Kelley, 1966), p. 15

24. ̂ W.R. Scott, p. 16525. ̂ Meyer Reinhold, Classica Americana: The Greek and Roman Heritage in the United States

(Detroit, Mich: Wayne State University Press, 1984), p. 150.26. ̂ Stephen Botein, "Cicero as Role Model for Early American Lawyers: A Case Study in Classical

'Influence'", The Classical Journal, 73, no. 4 (Apr.-May 1978), p. 315.27. ̂ Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, trans. Thomas Nugent

(Indianapolis: The Liberty Fund, 2006; orig. 1763), bk. 1, pt. 2, ch. 5, sec. 11 (p. 172).28. ̂ James Wilson, "Of the Law of Nature," in The Works of James Wilson, ed. Robert Green

McCloskey (Cambridge, Mass.: Harvard University Press, 1967), vol. 1, pp. 145-4629. ̂ James M. Farrell, "John Adams's Autobiography: The Ciceronian Paradigm and the Quest for

Fame," The New England Quarterly, 62, no. 4 (Dec. 1989), 506.

30. ̂ John Adams, A Defence of the Constitutions of Government of the United States of America, 3rd edition (Philadelphia, 1797; repr. Darmstadt, Germany: Scientia Verlag Aalen, 1979), 1: xvii-xviii

31. ̂ Jefferson's Literary Commonplace Book, trans. and ed. Douglas L. Wilson (Princeton, N.J.: Princeton University Press, 1989), p. 159.

32. ̂ Jefferson to Amos J. Cook, 21 Jan. 1816; quoted in Jefferson's Literary Commonplace Book, p. 161.

33. ̂ http://bible.cc/romans/2-14.htm34. ̂ A.J. Carlyle, A History of Medieval Political Theory in the West, vol. 1, p. 83.35. ̂ Summa Theologicae, Q. 95, A. 2.36. ̂ Burns, "Aquinas's Two Doctrines of Natural Law."37. ̂ "Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy,

trans. and rev. Thomas R. Hanley (n.p.:B. Herder Book Co., 1947, Indianapolis: Liberty Fund, 1998), pp. 100-101.

38. ̂ Charles Howard McIlwain, The Growth of Political Thought in the West: From the Greeks to the End of the Middle Ages (New York: The Macmillan Company, 1932), p. 185.

39. ̂ Samuel E. Thorne, "Translator's Introduction," in Henry de Bracton, Of the Laws and Customs of England, trans. Samuel E. Thorne (Cambridge, Mass: Harvard University Press, Belknap Press and The Selden Society, 1968), vol. 1, p. xxxiii.

40. ̂ Charles Howard McIlwain, Constitutionalism: Ancient and Modern, rev. ed. (Ithaca, N.Y.: Great Seal Books, Cornell University Press, 1958; orig. 1947), pp. 71-89.

41. ̂ Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston: Little, Brown and Co., 1956), pp. 305-306.

42. ̂ Coke, "Prohibitions del Roy," in The Selected Writings of Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003), vol. 1, p. 481.

43. ̂ Charles F. Mullett, Fundamental Law and the American Revolution 1760-1776 (New York: Octagon Books, 1966, orig. 1933), p. 33.

44. ̂ Bracton, Of the Laws and Customs of England, vol. 2, p. 22.45. ̂ Bracton, Of the Laws and Customs of England, vol. 2, p.2346. ̂ Imogene E. Brown, American Aristides: A Biography of George Wythe (East Brunswick, N.J.:

Associated University Presses, 1981), p. 77.47. ̂ Harold Dexter Hazeltine, "General Preface: The Age of Littleton and Fortescue," in Sir John

Fortescue, De Laudibus Legum Anglie, ed. and trans. S. B. Chrimes (Cambridge: Cambridge University Press, 1949), pp. l, xxviii.

48. ̂ Ellis Sandoz, "Editor's Introduction," in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, ed. Ellis Sandoz (Columbia, Mo.: University of Missouri Press, 1993), 7.

49. ̂ Norman Doe, Fundamental Authority in Late Medieval English Law (Cambridge: Cambridge University Press, 1990), p. 49.

50. ̂ Sir John Fortescue, De Laudibus Legum Anglie, ed. and trans. S. B. Chrimes (Cambridge: Cambridge University Press, 1949), p. l1.

51. ̂ J. G. Muddiman, Trial of King Charles the First (Edinburgh and London: William Hodge & Company, 1928), p. 235.

52. ̂ Paul Vinogradoff, "Reason and Conscience in Sixteenth-Century Jurisprudence," The Law Quarterly Review, 96 (Oct. 1908), 373-74.

53. ̂ Charles F. Mullett, Fundamental Law and the American Revolution 1760-1776 (New York: Octagon Books, 1966, orig. 1933), 39.

54. ^ a b Doctor and Student, bk. 1, ch. 5.

55. ̂ Norman Doe, Fundamental Authority in Late Medieval English Law (Cambridge: Cambridge University Press, 1990), 112-13.

56. ̂ Norman Doe, Fundamental Authority in Late Medieval English Law(Cambridge: Cambridge University Press, 1990), p. 113, note 23, citing Thomas Aquinas, Summa Theologica, 1a, 2ae, 90, 4.

57. ̂ Christopher St. Germain, Doctor and Student, bk. 1, ch. 2. http://www.lonang.com/exlibris/stgermain/index.html

58. ̂ Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003), vol. 1, p. xxvii.

59. ̂ John Phillip Reid, In a Defiant Stance: The Conditions of Law in Massachusetts Bay, The Irish Comparison, and the Coming of the American Revolution (University Park, Penn.: The Pennsylvania State University Press, 1977), 71.

60. ̂ Jefferson to Madison, Feb. 17, 1826, The Writings of Thomas Jefferson, vol. 16, p. 155.61. ̂ John Underwood Lewis, "Sir Edward Coke (1552-1634): His Theory of 'Artificial Reason' as a

Context for Modern Basic Legal Theory," in Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke, ed. Allen D. Boyer (Indianapolis: Liberty Fund, 2004), pp. 108-109; citing Edward Coke, First Part of the Institutes, 319b.

62. ̂ Lewis, "Sir Edward Coke (1552-1634): His Theory of 'Artificial Reason' as a Context for Modern Basic Legal Theory,", p. 120.

63. ̂ Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003), vol. 1, pp. 195-97.

64. ̂ Reid, John Phillip (1986), Constitutional History of the American Revolution: The Authority of Rights, University of Wisconsin Press, pp. 90–91

65. ̂ Clinton, Robert Lowry (1997), God and Man in the Law: The Foundations of Anglo-American Constitutionalism, University Press of Kansas

66. ̂ Corbin, Henry, History of Islamic Philosophy, Translated by Liadain Sherrard, Philip Sherrard, London; Kegan Paul International in association with Islamic Publications for The Institute of Ismaili Studies, pp. 39, ISBN 0710304161

67. ̂ Roeber, A. G. (October 2001), "What the Law Requires Is Written on Their Hearts: Noachic and Natural Law among German-Speakers in Early Modern North America", The William and Mary Quarterly, Third Series 58 (4): 883–912 [887]

68. ̂ Hobbes, Leviathan, pt. 1, ch. 14 (p. 64)69. ̂ Paul A. Rahe, Republics Ancient and Modern: Classical Republicanism and the American

Revolution (Chapel Hill, 1992), pp. 372-7370. ̂ A Hobbes Dictionary: http://www.blackwellreference.com/public/tocnode?

id=g9780631192626_chunk_g978063119262612_ss1-271. ̂ James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of

American Constitutionalism (Lawrence, Kansas, 1992), 71; see also John Phillip Reid, "In the Taught Tradition: The Meaning of Law in Massachusetts-Bay Two-Hundred Years Ago," Suffolk University Law Review 14 (1980), 938-40.

72. ̂ Thomas Hobbes, De Cive (The Citizen), ed. Sterling P. Lamprecht (New York, 1949; orig. 1642), ch. 2, sec. 2 (p. 29).

73. ̂ Thomas Hobbes, Leviathan, or the Matter, Forme, & Power of a Common-Wealth Ecclesiasticall and Civill (Mineola, N.Y., 2006; orig. 1651), pt. 1, ch. 14 (p. 72); p. 1, ch. 13 (pp. 21, 70).

74. ̂ Cicero, De re publica (Keyes translation), bk. 1, ch. 25, sec. 3975. ̂ Hobbes, Leviathan, pt. 2, ch. 17 (p. 93)76. ̂ Hobbes, Leviathan, pt. 1, ch. 15 (p. 79)(emphasis in original). See also Rahe, Republics Ancient

and Modern, p. 387.

77. ̂ Knud Haakonssen, "The Character and Obligation of Natural Law according to Richard Cumberland," in English Philosophy in the Age of Locke, ed. M.A. Stewart (Oxford, 2000), 29.

78. ̂ Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (Cambridge, 1996), 51.

79. ̂ Jon Parkin, Science, Religion and Politics in Restoration England: Richard Cumberland's De Legibus Naturae (Bury St. Edmunds, United Kingdom, 1999), 8.

80. ̂ Parkin, 8.81. ̂ Richard Cumberland, A Treatise of the Laws of Nature, trans. John Maxwell (Indianapolis,

2005; orig. 1727), "Contents" (p. 237). Cumberland's treatise was originally published in Latin in 1672. A Latin edition was published in Germany in 1684.

82. ̂ Cumberland, ch. 1, sec. 33 (p. 356)83. ̂ Haakonssen, "The Character and Obligation of Natural Law according to Richard Cumberland,"

pp. 34, 35.84. ̂ Cumberland, ch. 5, sec. 13 (pp. 523-24).85. ̂ Cumberland, ch. 5, sec. 12 (p. 525)86. ̂ Cumberland, ch. 5, sec. 15 (pp. 527-28).87. ̂ John Locke, Two Treatises of Government, Second Treatise, Chapter 13, §14988. ̂ Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988), 209.89. ̂ Rothbard, Murray, "Natural Law Versus Positive Law", The Ethics of Liberty, pp. 17,

http://mises.org/rothbard/ethics.pdf90. ̂ R. A. Gonce (Apr., 1973), "Natural Law and Ludwig von Mises' Praxeology and Economic

Science", Southern Economic Journal (Southern Economic Journal) 39 (4): 490–507, doi:10.2307/1056701, http://www.jstor.org/stable/1056701.

91. ̂ Gordon, David, Review of In Defense of Natural Law by Robert George, Ludwig von Mises Institute, http://mises.org/misesreview_detail.aspx?control=129

92. ̂ Pope John Paul II, Veritatis Splendor, n. 44; International Theological Commission, The Search for Universal Ethics: A New Look at the Natural Law, n. 37.

93. ̂ A Biblical Case for Natural Law, by David VanDrunen. Studies in Christian Social Ethics and Economics, no. 1. Grand Rapids: Acton Institute, 2006.

94. ̂ Pope John Paul II, Veritatis Splendor, n. 48.95. ̂ Pope John Paul II, Veritatis Splendor, n. 54 ff.96. ̂ International Theological Commission, The Search for Universal Ethics: A New Look at the

Natural Law, n. 46.97. ̂ Summa Theologica I-II, Q. 94, A. 2.98. ̂ Summa Theologica I-II, Q. 94, A. 6.99. ̂ Prabhakar Singh, From "narcissistic" positive international law to "universal" natural

international law: the dialectics of "absentee colonialism", African Journal of International and Comparative Law, 2008, 16(1), 56-82

[edit] References

Adams, John . 1797. A Defence of the Constitutions of Government of the United States of America. 3rd edition. Philadelphia; repr. Darmstadt, Germany: Scientia Verlag Aalen, 1979.

Aristotle . Nicomachean Ethics. ———.Aristotle. Rhetoric. ———. Politics. Aquinas . Summa Theologica.

Barham, Francis. Introduction to The Political Works of Marcus Tullius Cicero. Blackstone, William . 1765–9. Commentaries on the Laws of England. Botein, Stephen. 1978. "Cicero as Role Model for Early American Lawyers: A Case Study in

Classical 'Influence'". The Classical Journal 73, no. 4 (Apr.-May). Boyer, Allen D. 2004. "Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law

Tradition." in Law, Liberty, and Parliament: Selected Essays on the Writings of Sir Edward Coke, ed. Allen D. Boyer. Indianapolis: Liberty Fund.

Burlamaqui, Jean Jacques. 1763. The Principles of Natural and Politic Law. Trans. Thomas Nugent. Repr., Indianapolis: The Liberty Fund, 2006.

Burns, Tony. 2000. "Aquinas's Two Doctrines of Natural Law." Political Studies 48. Pp. 929–946. Carlyle, A.J. 1903. A History of Medieval Political Theory in the West. vol. 1. Edinburgh. Cicero . De Legibus. Cochrane, Charles Norris . 1957. Christianity and Classical Culture: A Study of Thought and Action

from Augustus to Augustine. Oxford: Oxford University Press. Corbett, R. J. 2009. "The Question of Natural Law in Aristotle." History of Political Thought 30,

no. 2 (Summer): 229–50 Corwin, Edward S. 1955. The "Higher Law" Background of American Constitutional Law. Ithaca,

N.Y.: Cornell University Press. Edlin, Douglas E. 2006. "Judicial Review Without a Constitition." Polity 38, no. 3 (July): 345–368. Farrell, James M. 1989. "John Adams's Autobiography: The Ciceronian Paradigm and the Quest

for Fame." The New England Quarterly 62, no. 4 (Dec. ). Haakonssen, Knud. 1996. Natural Law and Moral Philosophy: From Grotius to the Scottish

Enlightenment. Cambridge, UK: Cambridge University Press. ———. 2000. "The Character and Obligation of Natural Law according to Richard Cumberland."

In English Philosophy in the Age of Locke, ed. M.A. Stewart. Oxford. Jaffa, Harry V . 1952. Thomism and Aristotelianism. Chicago: University of Chicago Press. Jefferson's Literary Commonplace Book. Trans. and ed. Douglas L. Wilson. Princeton, N.J.:

Princeton University Press, 1989. McIlwain, Charles Howard. 1932. The Growth of Political Thought in the West: From the Greeks

to the End of the Middle Ages. New York: The Macmillan Company. "Natural Law." International Encyclopedia of the Social Sciences. New York, 1968. Reinhold, Meyer. 1984. Classica Americana: The Greek and Roman Heritage in the United States.

Detroit: Wayne State University Press. Rommen, Heinrich A. 1947. The Natural Law: A Study in Legal and Social History and Philosophy.

Trans. and rev. Thomas R. Hanley. B. Herder Book Co.; repr. Indianapolis: Liberty Fund, 1998. Scott, William Robert. 1900. Francis Hutcheson: His Life, Teaching, and Position in the History of

Philosophy Cambridge; repr. New York: Augustus M. Kelley, 1966. Shellens, Max Salomon. 1959. "Aristotle on Natural Law." Natural Law Forum 4, no. 1. Pp. 72–

100. Skinner, Quentin . 1978. The Foundations of Modern Political Thought. Cambridge. Wilson,James. 1967. The Works of James Wilson. Ed. Robert Green McCloskey. Cambridge,

Mass.: Harvard University Press.

[edit] External links

Lex Naturalis, Ius Naturalis: Law as Positive Reasoning and Natural Rationality by Eric Engle, (Elias Clarke, 2010).

Stanford Encyclopedia of Philosophy : o The Natural Law Tradition in Ethics , by Mark Murphy, 2002.o Aquinas' Moral, Political, and Legal Philosophy , by John Finnis, 2005.o Natural Law Theories , by John Finnis, 2007.

Aquinas on natural law Natural Law explained, evaluated and applied A clear introduction to Natural Law Catholic Encyclopedia "Natural Law" Internet Encyclopedia of Philosophy Entry 'Natural Law' by Kenneth Einar Himma Daniel Z. Epstein "Law's 'I'" 2007. McElroy, Wendy The Non-Absurdity of Natural Law, The Freeman, February 1998, Vol. 48, No. 2,

pp. 108–111

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Sociology of law

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The sociology of law (or legal sociology) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies.[1] While some socio-legal scholars see the sociology of law as "necessarily" belonging to the discipline of sociology,[2] others see it as a field of research caught up in the disciplinary tensions and competitions between the two established disciplines of law and sociology.[3] Yet, others regard it neither as a sub-discipline of sociology nor as a branch of legal studies and, instead, present it as a field of research on its own right within a broader social science tradition. For example, Roger Cotterrell describes the sociology of law without reference to mainstream sociology as "the systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience".[4]

Irrespective of whether the sociology of law is defined as a sub-discipline of sociology, an approach within legal studies, or a field of research in its own right, it remains intellectually dependent mainly on mainstream sociology, and to lesser extent on other social sciences such as social anthropology, political science, social policy, criminology and psychology, i.e. it draws on social theories and employs social scientific methods to study law, legal institutions and legal behaviour.[5]

More specifically, the sociology of law consists of various sociological approaches to the study of law in society, which empirically examine and theorize the interaction between law and legal institutions, on the one hand, and other (non-legal) social institutions and social factors, on the other.[6] Areas of socio-legal inquiry include the social development of legal institutions, forms of social control, legal regulation, the interaction between legal cultures, the social construction of legal issues, legal profession, and the relation between law and social change.

The sociology of law also benefits from and occasionally draws on research conducted within other fields such as comparative law, critical legal studies, jurisprudence, legal theory, law and economics and law and literature.

Contents

[hide]

1 Intellectual Origins 2 Sociological Approaches to the Study of Law

o 2.1 Modern Sociology of Law o 2.2 Law and Society o 2.3 Sociological Jurisprudence

3 Socio-Legal Studies 4 Sociology of Law in Britain 5 Devising a Sociological Concept of Law 6 Contemporary Perspectives

o 6.1 Legal Pluralism o 6.2 Autopoiesis o 6.3 Legal Cultures o 6.4 Feminism o 6.5 Globalization

7 See also 8 Professional Associations or Societies 9 Journals 10 Research Centres 11 Notes 12 References 13 External links

[edit] Intellectual Origins

Max Weber

The roots of the sociology of law can be traced back to the works of sociologists and jurists of the turn of the previous century. The relationship between law and society was sociologically explored in the seminal works of both Max Weber and Émile Durkheim. The writings on law by these classical sociologists are foundational to the entire sociology of law today.[7] A number of other scholars, mainly jurists, also employed social scientific theories and methods in an attempt to develop sociological theories of law. Notably among these were Leon Petrazycki, Eugen Ehrlich and Georges Gurvitch.

For Max Weber, a so-called "legal rational form" as a type of domination within society, is not attributable to people but to abstract norms.[8] He understood the body of coherent and calculable law in terms of a rational-legal authority. Such coherent and calculable law formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[9] Central to the development of modern law is the formal rationalisation of law on the basis of general procedures that are applied equally and fairly to all. Modern rationalised law is also codified and impersonal in its application to specific cases. In general, Weber's standpoint can be described as an external approach to law that studies the empirical characteristics of law, as opposed to the internal perspective of the legal sciences and the moral approach of the philosophy of law.[10]

Émile Durkheim

Émile Durkheim wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[11] Over time, law has undergone a transformation from repressive law to restitutive law. Restitutive law operates in societies in which there is a high degree of individual variation and emphasis on personal rights and

responsibilities.[12] For Durkheim, law is an indicator of the mode of integration of a society, which can be mechanical, among identical parts, or organic, among differentiated parts such as in industrialized societies. Durkheim also argued that a sociology of law should be developed alongside, and in close connection with, a sociology of morals, studying the development of value systems reflected in law.[13]

In Fundamental Principles of the Sociology of Law, Eugen Ehrlich developed a sociological approach to the study of law by focusing on how social networks and groups organized social life.[14] He explored the relationship between law and general social norms and distinguished between "positive law," consisting of the compulsive norms of state requiring official enforcement, and "living law," consisting of the rules of conduct that people in fact obeyed and which dominated social life. The latter emerged spontaneously as people interacted with each other to form social associations.[15]

The center of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself, and must be sought there at the present time".

– Eugen Ehrlich, Fundamental Principles of the Sociology of Law [16]

This was subjected to criticism by the advocates of legal positivism such as jurist Hans Kelsen for its distinction between "law created by the state and law produced by the organisational imperatives of non-state social associations".[17] According to Kelsen, Ehrlich had confused Sein ("is") and Sollen ("ought").[18] However, some argued that Ehrlich was distinguishing between positive (or state) law, which lawyers learn and apply, and other forms of 'law', what Ehrlich called "living law", that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.[19]

Leon Petrazycki

Leon Petrazycki distinguished between forms of "official law," supported by the state, and "intuitive law," consisting of legal experiences that, in turn, consist of a complex of psychic processes in the mind of the individual with no reference to outside authorities.[20] Petrazycki's work addressed sociological problems and his method was empirical, since he maintained that one could gain knowledge of objects or relationships only by observation. However, he couched his theory in the language of cognitive psychology and moral philosophy rather than sociology. Consequently, his contribution to the development of sociology of law remains largely unrecognized.[21] For example, Petrazycki's "intuitive law" influenced not only the development of Georges Gurvitch's concept of "social law" (see below), which in turn has left its mark on socio-legal theorising, but also the work of later socio-legal scholars. Among those who were directly inspired by Petrazycki's work is the Polish legal sociologist Adam Podgórecki.[22]

Theodor Geiger developed a close-knit analysis of the Marxist theory of law. He highlighted how law becomes a "factor in social transformation in democratic societies of the kind that are governed by the consent expressed by universal suffrage of the population practised at regular intervals".[23] Geiger went on to developed the salient characteristics of his antimetaphysical thinking, until he exceeded it with practical nihilism. Geiger's nihilism of values paved the way for a form of legal nihilism, which encourages the construction of a sober democracy "that is capable of raising conflict to the intellectual level and of anaesthetising feelings, as it is aware of its own inability to make any proclamation of value, ethics or policy about the nature of truth".[24]

Georges Gurvitch was interested in the fusion of simultaneous manifestation of law in various forms and at various levels of social interaction. His aim was to devise the concept of "social law" as a law of integration and cooperation.[25] Gurvitch's social law was an integral part of his general sociology. "It is also one of the early sociological contributions to the theory of legal pluralism, since it challenged all conceptions of law based on a single source of legal, political, or moral authority".[26]

[edit] Sociological Approaches to the Study of Law

[edit] Modern Sociology of Law

The sociology of law became clearly established as an academic field of learning and empirical research after the Second World War.[27] After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of the Talcott Parsons, for instance, law is conceived as an essential mechanism of social control[citation needed]. In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged. Critical sociologists[who?] developed a perspective of law as an instrument of power[citation needed]. However, other theorists in the sociology of law, such as Philip Selznick, argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well[citation needed]. Still other scholars, most notably the American sociologist Donald Black, developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology. Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann, who sees law as normatively closed, but cognitively open system (autopoiesis is discussed below under Contemporary Perspectives).[28]

All collective human life is directly or indirectly shaped by law. Law is like knowledge, an essential and all-pervasive fact of the social condition.

– Niklas Luhmann, A Sociological Theory of Law [29]

Social philosopher Jürgen Habermas disagrees with Luhmann and argues that the law can do a better job as a 'system' institution' by representing more faithfully the interests of everyday people in the 'lifeworld'. Yet another sociological theory of law and lawyers is that of Pierre Bourdieu and his followers, who see law as a social field in which actors struggle for cultural, symbolic and economic capital and in so doing develop the reproductive professional habitus of the lawyer.[30] In several continental European countries empirical research in sociology of law developed strongly from the 1960s and 1970s. In Poland the work of Adam Podgórecki and his associates (often influenced by Petrazycki's ideas) was especially notable; in Sweden empirical research in sociology of law in this period was pioneered especially by Per Stjernquist, and in Norway by Vilhelm Aubert.

In more recent years, a very wide range of theories has emerged in the sociology of law as a result of the proliferation of theories in sociology at large. Among the recent influences can be mentioned the work of the French philosopher Michel Foucault, the German social theorist Jürgen Habermas, feminism, postmodernism and deconstruction, neo-Marxism, and behaviorism. The variety of theoretical influences in the sociology of law has also marked the broader law and society field. The multi-disciplinary law and society field remains very popular, while the disciplinary speciality field of the sociology of law is also "better organized than ever in institutional and professional respects."[31]

[edit] Law and Society

Law and Society is an American movement, which was established after the Second World War through the initiative mainly of sociologists who had a vested interest in the study of law.[32] The rationale of the Law and Society movement is subtly summed up in two short sentences by Lawrence Friedman: "Law is a massive vital presence in the United States. It is too important to be left to lawyers".[33] Its founders believed that the "study of law and legal institutions in their social context could be constituted as a scholarly field distinguished by its commitment to interdisciplinary dialogue and multidisciplinary research methods".[34] The establishment of the Law and Society Association in 1964 and of the Law and society Review in 1966 guaranteed continuity in the scholarly activities of the Law and Society movement and allowed its members to influence legal education and policy-making in the US.[35]

The main difference between the sociology of law and Law and Society is that the latter does not limit itself theoretically or methodologically to sociology and tries instead to accommodate insights from all social science disciplines.[36] "Not only does it provides a home for sociologists and social anthropologists and political scientists with an interest in law, it also tries to incorporate psychologists and economists who study law." [37]

During 1970s and 1980s a number of original empirical studies were conducted by Law and Society scholars on conflict and dispute resolution. In his early work, William Felstiner, for

example, focused on alternative ways to solve conflicts (avoidance, mediation, litigation etc.). Together with Richard Abel and Austin Sarat, Felstiner developed the idea of a disputes pyramid and the formula "naming, blaming, claiming", which refers to different stages of conflict resolution and levels of the pyramid.[38]

[edit] Sociological Jurisprudence

The sociology of law is often distinguished from sociological jurisprudence. The latter is not primarily concerned with debates within mainstream sociology and instead engages with some of the debates within jurisprudence and legal theory. Sociological jurisprudence seeks to base legal arguments on sociological insights and, unlike legal theory, is concerned with the mundane practices that create legal institutions and social operations which reproduce legal systems over time. It was developed in the United States by Roscoe Pound and by earlier jurists, such as Eugen Ehrlich and Georges Gurvitch, in Europe.[39]

Although distinguishing between different branches of the social scientific studies of law allows us to explain and analyse the development of the sociology of law in relation to mainstream sociology and legal studies, such potentially artificial distinctions are not necessarily fruitful for the development of the field as whole. For the social scientific studies of law to transcend the theoretical and empirical limits, which currently define their scope, they need to go beyond such artificial distinctions.[40]

[edit] Socio-Legal Studies

'Socio-Legal Studies' in the UK has grown mainly out of the interest of law schools in promoting interdisciplinary studies of law.[41] Whether regarded as an emerging discipline, sub-discipline or a methodological approach, it is often viewed in light of its relationship to, and oppositional role within, law.[42] It should not, therefore, be confused with the legal sociology of many West European countries or the Law and Society scholarship in the US, which foster much stronger disciplinary ties with social sciences. In the past, it has been presented as the applied branch of the sociology of law and criticised for being empiricist and atheoretical.[43] Max Travers, for example, regards Socio-Legal Studies as a subfield of social policy, 'mainly concerned with influencing or serving government policy in the provision of legal services'[44] and adds that it "has given up any aspirations it once had to develop general theories about the policy process".[45]

Socio-Legal Methods of Investigation

The sociology of law has no methods of investigation which have been developed specifically for conducting socio-legal research. Instead, it employs a wide variety of social scientific methods, including qualitative and quantitative research techniques, to explore law and legal phenomena. Positivistic[46] as well as interpretive (such as discourse analysis) and ethnographic [47] approaches to data collection and analysis is used within the socio-legal field.[48]

[edit] Sociology of Law in Britain

Sociology of law was a small, but developing, sub-field of British sociology at the time when Campbell and Wiles wrote their review of law and society research in 1976. Unfortunately, despite its initial promise, it has remained a small field. Very few empirical sociological studies are published each year. Nevertheless, there have been some excellent studies, representing a variety of sociological traditions. The two most popular approaches during the 1960s and 1970s were interactionism and Marxism.

Symbolic Interactionism and Marxism

Interactionism had become popular in America in the 1950s and 1960s as a politically radical alternative to structural-functionalism. Instead of viewing society as a system regulating and controlling the actions of individuals, interactionists argued that sociology should address what people were doing in particular situations, and how they understood their own actions.[49] The sociology of deviance, which included topics such as crime, homosexuality, and mental illness, became the focus for these theoretical debates. Functionalists had portrayed crime as a problem to be managed by the legal system. Labeling theorists, by contrast, focused on the process of law-making and enforcement: how crime was constructed as a problem. A number of British sociologists, and some researchers in law schools, have drawn on these ideas in writing about law and crime.[50]

The most influential sociological approach during this period was, however, Marxism—which claimed to offer a scientific and comprehensive understanding of society as a whole in the same way as structural-functionalism, although with the emphasis on the struggle between different groups for material advantage, rather than value-consensus. This approach caught the imagination of many people with left-wing political views in law schools, but it also generated some interesting empirical studies. These included historical studies about how particular statutes were used to advance the interests of dominant economic groups, and also Pat Carlen's memorable ethnography,[51] which combined analytic resources from Marxism and interactionism, especially the sociology of Erving Goffman, in writing about magistrates' courts.

The Oxford Centre for Socio-Legal Studies

The 1980s were also a fruitful time for sociology of law in Britain, mainly because Donald Harris deliberately set out to create the conditions for a fruitful exchange between lawyers and sociologists at the University of Oxford Centre for Socio-Legal Studies. He was fortunate enough to recruit a number of young and talented social scientists, including J. Maxwell Atkinson and Robert Dingwall who were interested in ethnomethodology, conversation analysis, and the sociology of the professions, and Doreen McBarnet who became something of a cult figure on the left after publishing her doctoral thesis,[52] which advanced a particularly clear and vigorous Marxist analysis of the criminal justice system. Ethnomethodology has not previously been mentioned in this review, and tends to be over-looked by many reviewers in this field since it cannot easily be assimilated to their theoretical interests. One can note, however, that it has always offered a more radical and thorough-going way of theorizing action than interactionism (although the two approaches have a lot in common when compared to traditions that view society as a structural whole, like Marxism or structural-functionalism). During his time at the center, J. Maxwell Atkinson collaborated with Paul Drew, a sociologist at the University of

York, in what became the first conversation analytic study of courtroom interaction, using transcripts of coroner's hearings in Northern Ireland.[53]

Another area of interest developed at Oxford during this period was the sociology of the professions. Robert Dingwall and Philip Lewis[54] edited what remains an interesting and theoretically diverse collection, bringing together specialists from the sociology of law and medicine. The best known study to date has, however, been published by an American legal scholar[55] who employed ideas and concepts from functionalist, Marxist, and Weberian sociology to explain the high incomes and status that British lawyers enjoyed for most of the twentieth century.

Recent Developments

Since the 1980s, relatively few empirical studies of law and legal institutions have been conducted by British sociologists, i.e. studies which are empirical and at the same time engage with the theoretical concerns of sociology.[56] There are, however, some exceptions. To begin with, sociology of law, along with so many areas of academic work, has been enlivened and renewed through engagement with feminism. There has been a great deal of interest in the implications of Foucault's ideas on governmentality for understanding law,[57] and also in continental thinkers such as Niklas Luhmann and Pierre Bourdieu. Again, one can argue that rather fewer empirical studies have been produced than one might have hoped, but a great deal of interesting work has been published.

A second exception is to be found in the works of researchers who have employed resources from ethnomethodology and symbolic interactionism in studying legal settings.[58] This type of research is clearly sociological rather than socio-legal research because it continually engages in debate with other theoretical traditions in sociology. Max Travers' doctoral thesis about the work of a firm of criminal lawyers took other sociologists, and especially Marxists, to task for not addressing or respecting how lawyers and clients understand their own actions (a standard argument used by ethnomethodologists in debates with structural traditions in the discipline). It also, however, explored issues raised by legal thinkers like Cotterrell in their critique of structural traditions in sociology of law: the extent to which social science can address the content of legal practice.

[edit] Devising a Sociological Concept of Law

In contrast to the traditional understanding of law (see the separate entry on law), the sociology of law does not normally view and define the law only as a system of rules, doctrine and decisions, which exist independently of the society out of which it has emerged. The rule-based aspect of law is, admittedly, important, but provides an inadequate basis for describing, analysing and understanding law in its societal context.[59] Thus, legal sociology regards law as a set of institutional practices which have evolved over time and developed in relation to, and through interaction with, cultural, economic and socio-political structures and institutions. As a modern social system, law does strive to gain and retain its autonomy to function independently of other social institutions and systems such as religion, polity and economy. Yet, it remains historically and functionally linked to these other institutions. Thus, one of the objectives of the

sociology of law remains to devise empirical methodologies capable of describing and explaining modern law's interdependence with other social institutions.[60]

Some influential approaches within the sociology of law have challenged definitions of law in terms of official (state) law (see for example Eugen Ehrlich's concept of "living law" and Georges Gurvitch's "social law"). From this standpoint, law is understood broadly to include not only the legal system and formal (or official) legal institutions and processes, but also various informal (or unofficial) forms of nomativity and regulation which are generated within groups, associations and communities. The sociological studies of law are, thus, not limited to analysing how the rules or institutions of the legal system interact with social class, gender, race, religion, sexuality and other social categories. They also focus on how the internal normative orderings of various groups and "communities", such as the community of lawyers, businessmen, scientists, members of political parties, or members of the Mafia, interact with each other. In short, law is studied as an integral and constitutive part of social institutions, groupings and communities. This approach is developed further under the section on legal pluralism.[61]

[edit] Contemporary Perspectives

[edit] Legal Pluralism

Legal pluralism is a concept developed by some legal sociologists and social anthropologists "to describe multiple layers of law, usually with different sources of legitimacy, that exist within a single state or society".[62] It is also defined "as a situation in which two or more legal systems coexist in the same social field".[63] Legal pluralists define law broadly to include not only the system of courts and judges backed by the coercive power of the state, but also the "non-legal forms of normative ordering".[64] Legal pluralism consists of many different methodological approaches and as a concept, it embraces "diverse and often contested perspectives on law, ranging from the recognition of different legal orders within the nation-state, to a more far reaching and open-ended concept of law that does not necessarily depend on state recognition for validity. This latter concept of law may come into being whenever two or more legal systems exist in the same social field".[65]

The ideology of legal positivism has had such a powerful hold on the imagination of lawyers and social scientists that its picture of the legal world has been able successfully to masquerade as fact and has formed the foundation stone of social and legal theory.

– John Griffiths, "What is Legal Pluralism"[66]

Legal pluralism has occupied a central position in socio-legal theorising from the very beginning of the sociology of law. The sociological theories of Eugen Ehrlich and Georges Gurvitch were early sociological contributions to legal pluralism. It has, moreover, provided the most enduring topic of socio-legal debate over many decades within both the sociology of law and legal anthropology.[67] and has received more than its share of criticism from the proponents of the various schools of legal positivism.[68] The critics often ask: "How is law distinguished in a pluralist view from other normative systems? What makes a social rule system legal?".[69]

The controversy arises mainly "from the claim that the only true law is the law made and enforced by the modern state".[70] This standpoint is also known as "legal centralism". From a legal centralist standpoint, John Griffiths writes, "law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administrated by a single set of sttae institutions.[71] Thus, according to legal centralism, "customary laws and religious laws are not propoerly called 'law' except in so far as state has chosen to adopt and treat any such normative order as part of its own law".[72]

A distinction is often made between the "weak" and the "strong" versions of legal pluralism. The "weak" version does not necessarily question the main assumptions of "legal centralism", but only recognises that within the domain of the Western state law other legal systems, such as customary or Islamic law, may also have an autonomous (co-)existence.[73] Thus, the "weak" version does not consider other forms of normative ordering as law. As Tamanaha, one of the critics of legal pluralism, puts it: "Normative ordering is, well, normative ordering. Law is something else, something that we isolate out and call law…".[74] The "strong" version, on the other hand, rejects all legal centralist and formalist models of law, as "a myth, an ideal, a claim, an illusion,"[75] regarding state law as one among many forms of law or forms of social ordering. It insists that modern law is plural, that it is private as well as public, but most importantly "the national (public official) legal system is often a secondary rather than the primary locus of regulation".[76]

The criticism directed at legal pluralism often uses the basic assumptions of legal positivism to question the validity of theories of legal pluralism which aim at criticising those very (positivistic) assumptions.[77] As Roger Cotterrell explains, the pluralist conception should be understood as part of "the legal sociologist's effort to broaden perspectives on law. A legal sociologist's specification of law might be different from that presupposed by a lawyer in practice, but it will relate (indeed, in some way incorporate) the latter because it must (if it is to reflect legal experience) take account of lawyers' perspectives on law. Thus a pluralist approach in legal theory is likely to recognise what lawyers typically recognize as law, but may see this law as one species of a larger genus, or treat lawyers' conception of law as reflecting particular perspectives determined by particular objectives".[78]

[edit] Autopoiesis

Humberto Maturana and Francisco Varela originally coined the concept of autopoiesis within theoretical biology to describe the self-reproduction of living cells through self-reference.[79] This concept was later borrowed, reconstructed in sociological terms, and introduced into the sociology of law by Niklas Luhmann.[80] Luhmann's systems theory transcends the classical understanding of object/subject by regarding communication (and not 'action') as the basic element of any social system. He breaks with traditional systems theory of Talcott Parsons and descriptions based on cybernetic feedback loops and structural understandings of self-organisation of the 1960s. This allows him to work towards devising a solution to the problem of the humanised 'subject'.[81]

"Perhaps the most challenging idea incorporated in the theory of autopoiesis is that social systems should not be defined in terms of human agency or norms, but of communications.

Communication is in turn the unity of utterance, information and understanding and constitutes social systems by recursively reproducing communication. This sociologically radical thesis, which raises the fear of a dehumanised theory of law and society, attempts to highlight the fact that social systems are constituted by communicative."[82]

According to Roger Cotterrell, "Luhmann... treats the theory as the basis for all general sociological analysis of social systems and their mutual relations.[83] But its theoretical claims about law's autonomy are very powerful postulates, presented in advance of (and even, perhaps, in place of) the kind of detailed empirical study of social and legal change that comparatists and most legal sociologists are likely to favour. The postulates of autopoiesis theory do not so much guide empirical research as explain conclusively how to interpret whatever this research may discover." [84]

[edit] Legal Cultures

Legal culture is one of the central concepts of the sociology of law. The study of legal cultures may, at the same time, be regarded as one of the general approaches within the sociology of law.

As a concept, it refers to "relatively stable patterns of legally-oriented social behaviour and attitudes," and as such is regarded as a subcategory of the concept of culture.[85] It is a relatively new concept which, according to David Nelken, can be traced to "terms like legal tradition or legal style, which have a much longer history in comparative law or in early political science. It presupposes and invites us to explore the existence of systematic variations in patterns in 'law in the books' and 'law in action,' and, above all, in the relation between them".[86]

As an approach, it focuses on the cultural aspects of law, legal behaviour and legal institutions and, thus, has affinity with cultural anthropology, legal pluralism, and comparative law.

Lawrence M. Friedman is among socio-legal scholars who introduced the idea of legal culture into the sociology of law. For Friedman, legal culture "refers to public knowledge of and attitudes and behaviour patterns toward the legal system".[87] It can also consist of "bodies of custom organically related to the culture as a whole.[88] Friedman stresses the plurality of legal cultures and points out that one can explore legal cultures at different levels of abstraction, e.g. at the level of the legal system, the state, the country, or the community. Friedman is also known for introducing the distinction between the "internal" and "external" legal cultures. Somewhat oversimplified, the former refers to the general attitudes and perceptions of law among the functionaries of the legal system, such as the judiciary, while the latter can refer to the attitude of the citizenry to the legal system or to law and order generally.

[edit] Feminism

Law has always been regarded as one of the important sites of political struggle for the feminist movement. As pointed out by Ruth Fletcher feminist engagement with the law has taken many forms through the years, which also indicates their successful merging of theory and practice: "Through litigation, campaigns for reform and legal education, feminists have engaged explicitly with law and the legal profession. In taking on the provisions of specialist advice services,

women's groups have played a role in making law accessible to those in need. By subjecting legal concepts and methods to critical analysis, feminists have questioned the terms of legal debate." [89]

[edit] Globalization

Globalization is often defined in terms of economic processes which bring about radical cultural developments at the level of world society. Although law is an essential ingredient of the process of globalization - and important studies of law and globalization were already conducted in the 1990s by, for example, Yves Dezalay and Bryant Garth[90] and Volkmar Gessner[91] - law's importance for creating and maintaining the globalization processes are often neglected within the sociology of globalization and remain, arguably, somewhat underdeveloped within the sociology of law.[92]

As pointed out by Halliday and Osinsky, "Economic globalization cannot be understood apart from global business regulation and the legal construction of the markets on which it increasingly depends. Cultural globalization cannot be explained without attention to intellectual property rights institutionalized in law and global governance regimes. The globalization of protections for vulnerable populations cannot be comprehended without tracing the impact of international criminal and humanitarian law or international tribunals. Global contestation over the institutions of democracy and state building cannot be meaningful unless considered in relation to constitutionalism." [93]

The socio-legal approaches to the study of globalization and global society often overlap with, or make use of, studies of legal cultures and legal pluralism.[94]

[edit] See also

Rule of law Rule According to Higher Law

Individuals:

Vilhelm Aubert Jean Carbonnier Émile Durkheim Eugen Ehrlich William L.F. Felstiner Lawrence M. Friedman Theodor Geiger Niklas Luhmann Bronisław Malinowski Adam Podgórecki Roscoe Pound Philip Selznick Per Stjernquist

Renato Treves William Graham Sumner Nicholas Timasheff Max Weber

[edit] Professional Associations or Societies

Research Committee on Sociology of Law [95]

Socio-Legal Studies Association

International Institute for the Sociology of Law

Law and Society Association

Vereinigung für Recht und Gesellschaft

The Law and Society Association of Australia and New Zealand Inc. http://www.lsaanz.org/index.html

Canadian Law and Society Association / Association canadienne droit et société (CLSA/ACDS) http://www.acds-clsa.org/

RT 13 (Thematic Network) sociology of law of the French Sociological Association http://www.afs-socio.fr/rt13.html .

Sociedad argentina de sociología jurídica http://sasju.dyndns.org/

Associazione di studi su diritto e società (Italy) http://www.dirittoesocieta.it

Japanese Association of Sociology of Law http://wwwsoc.nii.ac.jp/hosha/english/eindex.htm

[edit] Journals

The Nordic Journal of Law and Justice [1]

Zeitschrift für Rechtssoziologie [2]

Law and Society Review

The Journal of Law and Society [3]

Journal of Empirical Legal Studies

Canadian Journal of Law and Society / Revue Canadienne Droit et Société / (since 1985) http://www.utpjournals.com/cjls/cjls.html

Canadian Journal of Women and the Law (since 1985) http://www.utpjournals.com/cjwl/cjwl.html

Droit et Société (Paris, France, since 1985) http://www.reds.msh-paris.fr/publications/revue/revue-en-ligne.htm

International Journal of the Sociology of Law (since 1978) http://www.elsevier.com/wps/find/journaldescription.cws_home/622848/...

Revue interdisciplinaire d'études juridiques (Brussels, Belgium, since 1978)

Social & Legal Studies (London, United Kingdom, since 1992) http://sls.sagepub.com/

Sociologia del Diritto (Milan, Italy, since 1974 ) http://www.francoangeli.it/riviste/sommario.asp?IDRivista=51

[edit] Research Centres

Baldy Center for Law and Social Policy http://www.law.buffalo.edu/baldycenter/

Centre d'étude, de technique et d'évaluation législatives Université de Genève http://www.unige.ch/droit/cetel/

Centre for Law and Society, School of Law, University of Edinburgh http://www.law.ed.ac.uk/cls/

Centre for Socio-Legal Research - University of Capetown, South Africa http://www.uct.ac.za/depts/slr/

Centre for Socio-Legal Studies - University of Natal, South Africa http://www.csls.org.za/

Center for Socio-Legal Studies - University of Oxford http://www.csls.ox.ac.uk/

Centre for the Study of Law and Society, California, Berkeley, USA http://www.law.berkeley.edu/institutes/csls/about.html / newly: http://law.berkeley.edu/centers/csls/

European Academy for Law and Legislation (http://www.eall.eu/)

Foundation for Law, Justice and Society, Wolfson College, Oxford http://www.fljs.org

Institute of Global Law http://www.ucl.ac.uk/laws/global_law/

Institute of Law and Social Sciences, Meiji University, Tokyo, Japan http://www.meiji.ac.jp/dai_in/law/support/html/english/e_index.html

Institute for Legal Studies, University of Wisconsin, USA http://www.law.wisc.edu/ils/

International Institute for the Sociology of Law, Oñati http://www.iisj.net/

Justice Policy Research Centre - University of Newcastle, Australia http://www.newcastle.edu.au/school/law/jprc/index.html

Laboratoire de sociologie juridique (Paris 2) http://www.u-paris2.fr/52075380/0/fiche___laboratoire/&RH=LABO

Legal Intersections Research Centre - University of Wollongong, Canada http://www.uow.edu.au/law/LIRC

Observatório Permanente da Justiça Portuguesa (Coimbra) http://opj.ces.uc.pt/portugues/apresentacao/

Oxford Centre for Family Law and Policy, UK http://www.spsw.ox.ac.uk/fileadmin/static/Oxflap/

Research Institute for Law, Politics & Justice Keele University http://www.keele.ac.uk/research/lpj/index.htm

[edit] Notes

1. ̂ For various definitions of the sociology of law see: Ehrlich 1936 (orig 1912); Timasheff 1939; Pound 1943; Selznik 1965, Aubert 1969 and 1980, Black 1972, Stjernquist 1983, Hydén 1986, Tomasic 1987, Ferrari 1989, Podgorecki 1991, Cotterrell 1992, Banakar 2003; Mathiesen 2005, Deflem 2008, Travers 2009, Nelken 2009.

2. ̂ See Deflem 2008:33. ̂ Banakar 2003 and 2009.4. ̂ Cotterrell 2007.5. ̂ Banakar and Travers 2005, pp. 1-25.6. ̂ See Black 1976; Cotterrell 1992; Hunt 1993; Santos 2002; Banakar 2003; Banakar and Travers

2002; Ferrari 1989; Luhmann 1985; Trevino 2008; Travers 2009, Nelken 2009.7. ̂ Deflem, 2007.8. ̂ Rheinstein, Max Weber on Law and Economy in Society, 3369. ̂ Jary, Collins Dictionary of Sociology, 63610. ̂ For a discussion on Weber's typology see Kronman 1983: 8-14.11. ̂ Johnson, The Blackwell Dictionary of Sociology, 15612. ̂ Cotterrell, 1999.13. ̂ For a discussion see Cotterrell 1999.14. ̂ Ehrlich 1936 (orig. 1912).15. ̂ Ziegert 1979.

16. ̂ Ehrlich, 1936: 390.17. ̂ For a discussion see Banakar 2008.18. ̂ For a presentation of this debate and references to the original sources of the debate see van

Klink 2006. For an analysis of the debate between Kelsen and Ehrlich see Banakar 2008. Banakar argues that Kelsen could not help but missing the point that Ehrlich was making by his distinction.

19. ̂ Rottleuthner, La Sociologie du Droit en Allemagne, 109* Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521

20. ̂ Petrazycki1955.21. ̂ Banakar 2006; also see Podgórecki 1980; Kurczewski 2009.22. ̂ See Podgórecki 1991.23. ̂ Ghezzi 2007.24. ̂ Ghezzi 2007.25. ̂ see Gurvitch, Georges, L'idée du droit social (1932)26. ̂ Banakar 2000.27. ̂ For a discussion on the emergence of the "sociological movement" in law after World War II

see Deflem 2009: 1.28. ̂ See Luhmann 2004 and 1995.29. ̂ Niklas Luhmann, 1985: 1.30. ̂ See for example Dezalay and Garth 1996.31. ̂ Deflem 2007.32. ̂ Friedman 1986.33. ̂ Friedman 1986:780.34. ̂ Austin et al, 1998:2.35. ̂ See Munger 1998 and Simon 1999.36. ̂ For an example see Friedman 1975.37. ̂ For a discussion see Banakar 200938. ̂ "See, Felstiner, Abel and Sarat 1981.39. ̂ See Banakar 200240. ̂ Banakar 2009.41. ̂ Banakar 200942. ̂ Thomas 1997.43. ̂ Campbell 1976.44. ̂ Travers 200145. ̂ Travers 2001: 26.46. ̂ See Black 1976.47. ̂ See Travers 1997, Flood 2005 and 1979.48. ̂ For an overview of various methods see Banakar and Travers 2005.49. ̂ See, for example, Becker 1963.50. ̂ See, for example, Paterson 1982; Flood 1983.51. ̂ Pat Carlen 1976.52. ̂ Doreen McBarnet 198153. ̂ Atkinson and Drew, 197954. ̂ Robert Dingwall and Philip Lewis 1983.55. ̂ Abel 198856. ̂ Travers 2001.57. ̂ Hunt and Wickham 199458. ̂ Travers 1997; 1999.

59. ̂ Banakar 2009; Nelken 2009.60. ̂ For a discussion see Banakar and Travers 2005 and Banakar 2009.61. ̂ For studies of legal pluralism see Dalberg-Larsen 2000; Merry 1988; Chiba 1989; John Griffiths

1986; Olgiati 2009.62. ̂ Olgiati 2007; also see Olgiati 2009.63. ̂ Sally Engle Merry 1988.64. ̂ Merry 1988.65. ̂ Ann Griffiths 2002.66. ̂ John Griffiths, 1986:5.67. ̂ Banakar 2003.68. ̂ See for example Tamanaha 2001.69. ̂ Cotterrell 2006: 3770. ̂ Woodman 2008: 25.71. ̂ John Griffiths 1986: 3)72. ̂ Woodman 2008: 25.73. ̂ Ann Griffiths, 2002: 291.74. ̂ Tamanaha 1993: 1999.75. ̂ John Griffiths 1986: 4.76. ̂ Galanter 1981: 20.77. ̂ See Banakar 200878. ̂ Cotterrell 2006: 3779. ̂ Maturana and Varela 1980.80. ̂ See Ziegert 2002.81. ̂ Luhmann 2004.82. ̂ Banakar and Max Travers 2005: 28.83. ̂ Luhmann 1995.84. ̂ Cotterrell 2006: 138.85. ̂ Nelken, 2004: 1.86. ̂ Nelken 2007.87. ̂ Friedman, 1975, p. 193. But for criticism of the vagueness of this and other formulations of the

concept of legal culture in sociology of law, see Cotterrell, 2006, ch. 588. ̂ Friedman, 1975, p. 19489. ̂ Fletcher 2002.90. ̂ Dezalay and Garth 1996.91. ̂ Gessner and Budak 1998.92. ̂ For one of the relatively early empirical studies see Dezalay and Garth 1996. For a collection of

empirical studies of law and globalization see Gessner and Budak 1998.93. ̂ Halliday and Osinsk 2006.94. ̂ See Teubner 1996; Feest and Nelken 2007, Friedman and Perez-Perdomo 2003.95. ̂ (RCSL)http://rcsl.iscte.pt/

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Ziegert, Klaus A. (2002) "The Thick Description of Law: An Introduction to Niklas Luhmann's Theory of Operatively Closed Systems" in R Banakar and M Travers, (eds), An Introduction to Law and Social Theory (Oxford, Hart Publishing).

Ziegert, Klaus A. (1979). "The Sociology behind Eugen Ehrlich's Sociology of Law." International Journal of Sociology of Law 7: 225-73.

[edit] External links

The Nordic Journal of Law and Justice [6] Zeitschrift für Rechtssoziologie [7] The Journal of Law and Society [8]

American Sociological Association Section: Sociology of Law International Sociological Association: Research Committee on Sociology of Law RC12 Socoflaw.net: Website of Mathieu Deflem's Sociology of Law (Cambridge University Press, 2008) Socio-Legal Studies Association Law and Society Association Foundation for Law, Justice and Society

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