The Philosophy of Law (Essay Sample)

Discussion Post on The Philosophy of LawNameInstitutional Affiliation Discussion Post on The Philosophy of Law Society and its hope for improvement should govern the law and operate to shape the existing legal order. Ideally, the law and society are all in a state of flux. However, as Wacks (2014) argues, society, in its state of fluctuation, is faster than the law. Therefore, the law should be shaped by the social beliefs, customs, and norms existing in society at a specific period in time. Since laws should reflect the values of society, then it should also be true that society should govern and shape the law to ensure that it attains its aim of improvement. The laws adopted in a society should be a reflection of the values and beliefs in such a society and not the other way round. Ideally, “social order is maintained by a system of beliefs which are accepted as ‘common sense’ and part of the natural order—even by those who are actually subordinated to it” (115). It is from the hegemonic consciousness and the universally accepted principles in society that laws should be formed. Society should operate in such a manner that what is universally accepted as good and bad, ethical and immoral, should be used to shape the provisions of the law. While the strengths of legal realism are the flexibility of the law and the ability to benefit all groups of people, its weaknesses are bias and benefits to the elite. According to legal realism, “Decisions are reached on the basis of a judicial consideration of what seems fair on the facts of the case, rather than on the basis of the applicable legal rule” (Wacks, 2014, p.110). Therefore, the first strength is that legal realism allows for laws to be flexible and for the judges to examine the underlying facts of a case and reformulate the applicable rules to arrive at a just decision. Additionally, legal realism appreciates that the law is in flux and that society changes faster than the law; therefore, allowing judges to apply the law based on their moral and political considerations can lead to justice for all groups of people. However, a weakness of legal realism is that it leads to bias in decision-making because “judicial decisions in indeterminate cases are influenced by the judge’s political and moral convictions—not by legal considerations” (Wacks, 2014, p.110). Additionally, because the judges rely on their scholarly and elite reasoning to make decisions, they might only benefit those in the upper socia...