Theories that influences Changes in laws

Document Type:Research Paper

Subject Area:Law

Document 1

Natural law, legal positivism, and social changes theory are some of the theories that show how changes in law come about. Additionally, these theories also show the underlying principles that guide the decision of the courts when setting precedents or deviating for precedents thus creating new precedents and case laws. This analysis will revisit past cases to determine how the aforementioned theories bring changes to law. Natural Law Theory According to Cahill (2016), it is impossible for anyone to speak about a moral approach to legal practice without stating the philosophy of law and his or her underlying moral philosophy. In natural law jurisprudence, there are two aspects that come out clearly. First, the legal order constitutes the moral order. Second, the moral order can be modified by the legal order (Cahill, 2016). On that note, it can be said that a law cannot be unjust while a just law can create, alter, and discharge moral obligations (Cahill, 2016). Jurisprudence serves the virtue of justice. Jurisprudence determines the just nature o human law while justice drives men to enact, obey and enforce laws that are just. A similar account of natural law is given by George (2001). According to George (2001), natural law is built on western cultural traditions of thoughts, laws, and politics. According to the traditions in question, a law is good or bad (just or unjust) depending on its degree of conformity to natural laws that are not made by anyone (George, 2001). The American constitution is firmly founded on natural law because it seeks to conform to a just political order (George, 2001).

Sign up to view the full document!

This explains why there are institutions formed by the constitutions to protect human rights in a manner that conforms to natural laws (George, 2001). This explains why the constitutions respects freedoms and rights not as privileges or opportunities accorded by the state, but as principles of natural law, which must be protected and respected by the state. Human rights theories are based on normative perspectives because they require people to be just and to treat others equally (George, 2001). Natural law, therefore, creates jurisprudence by dictating people’s actions to be guided by morals. Such moral grounds as espoused above can be subjected to the legal process. This is exactly what happened in the Conestoga v. Secretary, 2013). This decision by the court indicates how natural law influences changes in law (Finnis, 2012). By the fact that there is no precedent in the case at hand, the Court creates a new jurisprudence to be applied in similar cases in future (Conestoga v.

Sign up to view the full document!

Secretary, 2013). The judges used the theory of natural law in an interpretive manner to decide that corporations cannot be termed as persons for the purposes of the First Amendment and RFPA because corporations lack all the qualities of natural persons. According to the legal dictionary, the term person was defined to include corporations. Further, the judges also based their interpretation on RFPA, but divorced it from the first Amendment. In their argument, the judges argued that corporations have a right to claim religious protection under RFPA. Under this monumental ruling, the Court decided that by denying medical insurance cover to its employees based on religious beliefs about contraceptives, Hobby Lobby Stores was not in violation of the Obamacare mandate, but rather protecting its religious freedom (Hobby Lobby, 2013). Conversely, this ruling further set a precedent for future disputes because judges can use the case to determine arguments of a substantial nature as to whether for-profit corporations can practice religion.

Sign up to view the full document!

This deviates from the natural law or interpretive jurisprudential theory, which posits that laws should be interpreted based on values, morals, and perspectives of the decision makers. The case Riggs v. Palmer (1889) is one of the cases where the differences between legal positivism and interpretive legal theories arise. In the case at hand the defendant killed his grandfather to expedite his receiving of his portion of his grandfather’s estate. Palmer was indicted for murder but still was to receive the inheritance (Riggs, 1889). United States (1892). The holy trinity Church entered into contract with Walpole Warren a resident of England to come to New York as a church minister. The tenth court claimed that the church had committed a crime under a 1885 Act of Congress that prohibited the entering into contract that would see Americans pay for passage and transportation of Aliens from abroad in exchange of cheap labor upon reaching America (Holy Trinity Church, 1892).

Sign up to view the full document!

Justice Brewer argued that the tenth circuit has erred in declaring that the church had violated the statute by paying for Warren’s passage and transportation into America where he would act as a reverend for the Holy Trinity Church in New York (Holy Trinity Church, 1892). In interpreting the law, Justice Brewer laid a monumental precedent in which he argued that professionals could not be termed as laborers because it is the unskilled laborers that were causing the current problem, which the Act of Congress was attempting to remedy. Social Changes Over the years changes in the society have taken place and many issues thought as orthodox and immoral have gained consensus and widely accepted. This has changed how laws are interpreted as well as created jurisprudence. Some of those issues are same sex marriages and abortion.

Sign up to view the full document!

Traditionally, same sex marriages had been prohibited in America with many states embedding in their constitutions the definition of marriage as a union between man and woman only. However, over the years such provisions have been termed unconstitutional and a violation of human rights especially the rights of the LGBT community. This change can follow natural laws or positivist theories a blend of the two can also be applied because sociological views relate to the values, morals, unwritten rules underlying the lives of the people. Conclusion In the above analysis it is clear that every decision made by a judge is based on rules or some philosophy. Although the judges do not make these philosophies or rules known, the approach in interpretation of the law or cases clearly tells an observer what guided the judge’s decision.

Sign up to view the full document!

From the above analysis it is clear that each case is a manifestation of theories that influence changes in law and sets jurisprudence. In some instances, the judges issue different cases for rules that have similar facts. Available at: http://scholarship. law. stjohns. edu/tcl/vol4/iss1/5 Church of Holy Trinity v. United States, 143 U. Dworkin, Ronald. Hart's Postscript and the Character of Political Philosophy, Oxford Journal of Legal Studies. ledproxy2. uwindsor. ca/pdf/01436503/v24i0001/1_hpatcopp. Rev. Available at: http://ir. lawnet. fordham. edu/flr/vol69/iss6/1 Hart, H. windsor. ca/reserves/Fall2017/02-48-461-1Cradock/Hart. pdf Hobby Lobby Stores v. Sebelius, No. th Cir. Y. Roe v. Wade, 410 U. S. S.

Sign up to view the full document!

From $10 to earn access

Only on Studyloop

Original template

Downloadable