{"id":21,"date":"2014-09-17T00:42:07","date_gmt":"2014-09-17T00:42:07","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&#038;p=21"},"modified":"2015-04-21T18:52:41","modified_gmt":"2015-04-21T18:52:41","slug":"1-2-schools-of-legal-thought","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/1-2-schools-of-legal-thought\/","title":{"raw":"Schools of Legal Thought","rendered":"Schools of Legal Thought"},"content":{"raw":"<div class=\"bcc-box bcc-highlight\">\r\n<h3>Learning Objectives<\/h3>\r\nBy the end of this section, you will be able to:\r\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\r\n\t<li>Distinguish different philosophies of law\u2014schools of legal thought\u2014and explain their relevance.<\/li>\r\n\t<li>Explain why natural law relates to the rights that the founders of the US political-legal system found important.<\/li>\r\n\t<li>Describe legal positivism and explain how it differs from natural law.<\/li>\r\n\t<li>Differentiate critical legal studies and ecofeminist legal perspectives from both natural law and legal positivist perspectives.<\/li>\r\n<\/ul>\r\n<\/div>\r\nThere are different schools (or philosophies) concerning what law is all about. Philosophy of law is also called <span class=\"im_margin_term\"><span class=\"im_glossterm\">jurisprudence<\/span><\/span>, and the two main schools are <span class=\"im_margin_term\"><span class=\"im_glossterm\">legal positivism<\/span><\/span> and <span class=\"im_margin_term\"><span class=\"im_glossterm\">natural law<\/span><\/span>. Although there are others (see Section 1.2.3 \"Other Schools of Legal Thought\"), these two are the most influential in how people think about the law.\r\n<div id=\"mayer_1.0-ch01_s02_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Legal Positivism: Law as Sovereign Command<\/h2>\r\nAs legal philosopher John Austin concisely put it, \u201cLaw is the command of a sovereign.\u201d Law is only law, in other words, if it comes from a recognized authority and can be enforced by that authority, or <span class=\"im_margin_term\"><span class=\"im_glossterm\">sovereign<\/span><\/span>\u2014such as a king, a president, or a dictator\u2014who has power within a defined area or territory. Positivism is a philosophical movement that claims that science provides the only knowledge precise enough to be worthwhile. But what are we to make of the social phenomena of laws?\r\n\r\nWe could examine existing <span class=\"im_margin_term\"><span class=\"im_glossterm\">statutes<\/span><\/span>\u2014executive orders, regulations, or judicial decisions\u2014in a fairly precise way to find out what the law says. For example, we could look at the posted speed limits on most US highways and conclude that the \u201ccorrect\u201d or \u201cright\u201d speed is no more than fifty-five miles per hour. Or we could look a little deeper and find out how the written law is usually applied. Doing so, we might conclude that sixty-one miles per hour is generally allowed by most state troopers, but that occasionally someone gets ticketed for doing fifty-seven miles per hour in a fifty-five miles per hour zone. Either approach is empirical, even if not rigorously scientific. The first approach, examining in a precise way what the rule itself says, is sometimes known as the \u201cpositivist\u201d school of legal thought. The second approach\u2014which relies on social context and the actual behavior of the principal actors who enforce the law\u2014is akin to the \u201clegal realist\u201d school of thought (see Section 1.2.3 \"Other Schools of Legal Thought\").\r\n\r\nPositivism has its limits and its critics. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children below a certain age be killed. Because it was the command of a sovereign, the decree was carried out (or, in legal jargon, the decree was \u201cexecuted\u201d). Suppose a group seizes power in a particular place and commands that women cannot attend school and can only be treated medically by women, even if their condition is life-threatening and women doctors are few and far between. Suppose also that this command is carried out, just because it is the law and is enforced with a vengeance. People who live there will undoubtedly question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally carried out. To avoid the law\u2019s impact, a citizen would have to flee the country entirely. During the Taliban rule in Afghanistan, from which this example is drawn, many did flee.\r\n\r\nThe positive-law school of legal thought would recognize the lawmaker\u2019s command as legitimate; questions about the law\u2019s morality or immorality would not be important. In contrast, the natural-law school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural, universal, or divine law. If a lawmaker issued a command that was in violation of natural law, a citizen would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch01_s02_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Natural Law<\/h2>\r\nThe natural-law school of thought emphasizes that law should be based on a universal moral order. Natural law was \u201cdiscovered\u201d by humans through the use of reason and by choosing between that which is good and that which is evil. Here is the definition of natural law according to the <em class=\"im_emphasis\">Cambridge Dictionary of Philosophy<\/em>: \u201cNatural law, also called the law of nature in moral and political philosophy, is an objective norm or set of objective norms governing human behavior, similar to the positive laws of a human ruler, but binding on all people alike and usually understood as involving a superhuman legislator.\u201d<span id=\"mayer_1.0-fn01_002\" class=\"im_footnote\"><em class=\"im_emphasis\">Cambridge Dictionary of Philosophy<\/em>, s.v. \u201cnatural law.\u201d<\/span>\r\n\r\nBoth the US Constitution and the United Nations (UN) Charter have an affinity for the natural-law outlook, as it emphasizes certain objective norms and rights of individuals and nations. The US Declaration of Independence embodies a natural-law philosophy. The following short extract should provide some sense of the deep beliefs in natural law held by those who signed the document.\r\n<blockquote>\r\n<div id=\"mayer_1.0-ch01_s02_s02_n01\" class=\"im_callout im_block\">\r\n<h3 class=\"im_title\">The Unanimous Declaration of the Thirteen United States of America<\/h3>\r\nJuly 4, 1776\r\n\r\nWhen in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature\u2019s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.\r\n\r\nWe 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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.\u2026\r\n\r\n<\/div><\/blockquote>\r\n<\/div>\r\nThe natural-law school has been very influential in American legal thinking. The idea that certain rights, for example, are \u201cunalienable\u201d (as expressed in the Declaration of Independence and in the writings of John Locke) is consistent with this view of the law. Individuals may have \u201cGod-given\u201d or \u201cnatural\u201d rights that government cannot legitimately take away. Government only by consent of the governed is a natural outgrowth of this view.\r\n\r\nCivil disobedience\u2014in the tradition of Henry Thoreau, Mahatma Gandhi, or Martin Luther King Jr.\u2014becomes a matter of morality over \u201cunnatural\u201d law. For example, in his \u201cLetter from Birmingham Jail,\u201d Martin Luther King Jr. claims that obeying an unjust law is not moral and that deliberately disobeying an unjust law is in fact a moral act that expresses \u201cthe highest respect for law\u201d: \u201cAn individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.\u2026One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.\u201d<span id=\"mayer_1.0-fn01_003\" class=\"im_footnote\">Martin Luther King Jr., \u201cLetter from Birmingham Jail.\u201d<\/span>\r\n\r\nLegal positivists, on the other hand, would say that we cannot know with real confidence what \u201cnatural\u201d law or \u201cuniversal\u201d law is. In studying law, we can most effectively learn by just looking at what the written law says, or by examining how it has been applied. In response, natural-law thinkers would argue that if we care about justice, every law and every legal system must be held accountable to some higher standard, however hard that may be to define.\r\n\r\nIt is easier to know what the law \u201cis\u201d than what the law \u201cshould be.\u201d Equal employment laws, for example, have specific statutes, rules, and decisions about racial discrimination. There are always difficult issues of interpretation and decision, which is why courts will resolve differing views. But how can we know the more fundamental \u201cought\u201d or \u201cshould\u201d of human equality? For example, how do we <em class=\"im_emphasis\">know<\/em> that \u201call men are created equal\u201d (from the Declaration of Independence)? Setting aside for the moment questions about the equality of women, or that of slaves, who were not counted as men with equal rights at the time of the declaration\u2014can the statement be empirically proven, or is it simply a matter of a priori knowledge? (<em class=\"im_emphasis\">A priori<\/em> means \u201cexisting in the mind prior to and independent of experience.\u201d) Or is the statement about equality a matter of faith or belief, not really provable either scientifically or rationally? The dialogue between natural-law theorists and more empirically oriented theories of \u201cwhat law is\u201d will raise similar questions. In this book, we will focus mostly on the law as it is, but not without also raising questions about what it could or should be.\r\n<div id=\"mayer_1.0-ch01_s02_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Other Schools of Legal Thought<\/h2>\r\nThe historical school of law believes that societies should base their legal decisions today on the examples of the past. Precedent would be more important than moral arguments.\r\n\r\nThe legal realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal realists pointed out that because life and society are constantly changing, certain laws and doctrines have to be altered or modernized in order to remain current. The social context of law was more important to legal realists than the formal application of precedent to current or future legal disputes. Rather than suppose that judges inevitably acted objectively in applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and would give legal decisions based on their beliefs and their own social context.\r\n\r\nThe legal realist view influenced the emergence of the critical legal studies (CLS) school of thought. The \u201cCrits\u201d believe that the social order (and the law) is dominated by those with power, wealth, and influence. Some Crits are clearly influenced by the economist Karl Marx and also by distributive justice theory (see Chapter 2 \"Corporate Social Responsibility and Business Ethics\"). The CLS school believes the wealthy have historically oppressed or exploited those with less wealth and have maintained social control through law. In so doing, the wealthy have perpetuated an unjust distribution of both rights and goods in society. Law is politics and is thus not neutral or value-free. The CLS movement would use the law to overturn the hierarchical structures of domination in the modern society.\r\n\r\nRelated to the CLS school, yet different, is the ecofeminist school of legal thought. This school emphasizes\u2014and would modify\u2014the long-standing domination of men over both women and the rest of the natural world. Ecofeminists would say that the same social mentality that leads to exploitation of women is at the root of man\u2019s exploitation and degradation of the natural environment. They would say that male ownership of land has led to a \u201cdominator culture,\u201d in which man is not so much a steward of the existing environment or those \u201csubordinate\u201d to him but is charged with making all that he controls economically \u201cproductive.\u201d Wives, children, land, and animals are valued as economic resources, and legal systems (until the nineteenth century) largely conferred rights only to men with land. Ecofeminists would say that even with increasing civil and political rights for women (such as the right to vote) and with some nations\u2019 recognizing the rights of children and animals and caring for the environment, the legacy of the past for most nations still confirms the preeminence of \u201cman\u201d and his dominance of both nature and women.\r\n<div id=\"mayer_1.0-ch01_s02_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\r\n<h3 class=\"im_title\">Key Takeaway<\/h3>\r\nEach of the various schools of legal thought has a particular view of what a legal system is or what it should be. The natural-law theorists emphasize the rights and duties of both government and the governed. Positive law takes as a given that law is simply the command of a sovereign, the political power that those governed will obey. Recent writings in the various legal schools of thought emphasize long-standing patterns of domination of the wealthy over others (the CLS school) and of men over women (ecofeminist legal theory).\r\n\r\n<\/div>\r\n<div class=\"bcc-box bcc-info\">\r\n<h3>Exercises<\/h3>\r\n<section id=\"self-check-questions\">\r\n<ol>\r\n\t<li>Vandana Shiva draws a picture of a stream in a forest. She says that in our society the stream is seen as unproductive if it is simply there, fulfilling the need for water of women\u2019s families and communities, until engineers come along and tinker with it, perhaps damming it and using it for generating hydropower. The same is true of a forest, unless it is replaced with a monoculture plantation of a commercial species. A forest may very well be productive\u2014protecting groundwater; creating oxygen; providing fruit, fuel, and craft materials for nearby inhabitants; and creating a habitat for animals that are also a valuable resource. She criticizes the view that if there is no monetary amount that can contribute to gross domestic product, neither the forest nor the river can be seen as a productive resource. Which school of legal thought does her criticism reflect?<\/li>\r\n\t<li>Anatole France said, \u201cThe law, in its majesty, forbids rich and poor alike from sleeping under bridges.\u201d Which school of legal thought is represented by this quote?<\/li>\r\n\t<li>Adolf Eichmann was a loyal member of the National Socialist Party in the Third Reich and worked hard under Hitler\u2019s government during World War II to round up Jewish people for incarceration\u2014and eventual extermination\u2014at labor camps like Auschwitz and Buchenwald. After an Israeli \u201cextraction team\u201d took him from Argentina to Israel, he was put on trial for \u201ccrimes against humanity.\u201d His defense was that he was \u201cjust following orders.\u201d Explain why Eichmann was not an adherent of the natural-law school of legal thought.<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\r\n<\/div>","rendered":"<div class=\"bcc-box bcc-highlight\">\n<h3>Learning Objectives<\/h3>\n<p>By the end of this section, you will be able to:<\/p>\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\n<li>Distinguish different philosophies of law\u2014schools of legal thought\u2014and explain their relevance.<\/li>\n<li>Explain why natural law relates to the rights that the founders of the US political-legal system found important.<\/li>\n<li>Describe legal positivism and explain how it differs from natural law.<\/li>\n<li>Differentiate critical legal studies and ecofeminist legal perspectives from both natural law and legal positivist perspectives.<\/li>\n<\/ul>\n<\/div>\n<p>There are different schools (or philosophies) concerning what law is all about. Philosophy of law is also called <span class=\"im_margin_term\"><span class=\"im_glossterm\">jurisprudence<\/span><\/span>, and the two main schools are <span class=\"im_margin_term\"><span class=\"im_glossterm\">legal positivism<\/span><\/span> and <span class=\"im_margin_term\"><span class=\"im_glossterm\">natural law<\/span><\/span>. Although there are others (see Section 1.2.3 &#8220;Other Schools of Legal Thought&#8221;), these two are the most influential in how people think about the law.<\/p>\n<div id=\"mayer_1.0-ch01_s02_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Legal Positivism: Law as Sovereign Command<\/h2>\n<p>As legal philosopher John Austin concisely put it, \u201cLaw is the command of a sovereign.\u201d Law is only law, in other words, if it comes from a recognized authority and can be enforced by that authority, or <span class=\"im_margin_term\"><span class=\"im_glossterm\">sovereign<\/span><\/span>\u2014such as a king, a president, or a dictator\u2014who has power within a defined area or territory. Positivism is a philosophical movement that claims that science provides the only knowledge precise enough to be worthwhile. But what are we to make of the social phenomena of laws?<\/p>\n<p>We could examine existing <span class=\"im_margin_term\"><span class=\"im_glossterm\">statutes<\/span><\/span>\u2014executive orders, regulations, or judicial decisions\u2014in a fairly precise way to find out what the law says. For example, we could look at the posted speed limits on most US highways and conclude that the \u201ccorrect\u201d or \u201cright\u201d speed is no more than fifty-five miles per hour. Or we could look a little deeper and find out how the written law is usually applied. Doing so, we might conclude that sixty-one miles per hour is generally allowed by most state troopers, but that occasionally someone gets ticketed for doing fifty-seven miles per hour in a fifty-five miles per hour zone. Either approach is empirical, even if not rigorously scientific. The first approach, examining in a precise way what the rule itself says, is sometimes known as the \u201cpositivist\u201d school of legal thought. The second approach\u2014which relies on social context and the actual behavior of the principal actors who enforce the law\u2014is akin to the \u201clegal realist\u201d school of thought (see Section 1.2.3 &#8220;Other Schools of Legal Thought&#8221;).<\/p>\n<p>Positivism has its limits and its critics. New Testament readers may recall that King Herod, fearing the birth of a Messiah, issued a decree that all male children below a certain age be killed. Because it was the command of a sovereign, the decree was carried out (or, in legal jargon, the decree was \u201cexecuted\u201d). Suppose a group seizes power in a particular place and commands that women cannot attend school and can only be treated medically by women, even if their condition is life-threatening and women doctors are few and far between. Suppose also that this command is carried out, just because it is the law and is enforced with a vengeance. People who live there will undoubtedly question the wisdom, justice, or goodness of such a law, but it is law nonetheless and is generally carried out. To avoid the law\u2019s impact, a citizen would have to flee the country entirely. During the Taliban rule in Afghanistan, from which this example is drawn, many did flee.<\/p>\n<p>The positive-law school of legal thought would recognize the lawmaker\u2019s command as legitimate; questions about the law\u2019s morality or immorality would not be important. In contrast, the natural-law school of legal thought would refuse to recognize the legitimacy of laws that did not conform to natural, universal, or divine law. If a lawmaker issued a command that was in violation of natural law, a citizen would be morally justified in demonstrating civil disobedience. For example, in refusing to give up her seat to a white person, Rosa Parks believed that she was refusing to obey an unjust law.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch01_s02_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Natural Law<\/h2>\n<p>The natural-law school of thought emphasizes that law should be based on a universal moral order. Natural law was \u201cdiscovered\u201d by humans through the use of reason and by choosing between that which is good and that which is evil. Here is the definition of natural law according to the <em class=\"im_emphasis\">Cambridge Dictionary of Philosophy<\/em>: \u201cNatural law, also called the law of nature in moral and political philosophy, is an objective norm or set of objective norms governing human behavior, similar to the positive laws of a human ruler, but binding on all people alike and usually understood as involving a superhuman legislator.\u201d<span id=\"mayer_1.0-fn01_002\" class=\"im_footnote\"><em class=\"im_emphasis\">Cambridge Dictionary of Philosophy<\/em>, s.v. \u201cnatural law.\u201d<\/span><\/p>\n<p>Both the US Constitution and the United Nations (UN) Charter have an affinity for the natural-law outlook, as it emphasizes certain objective norms and rights of individuals and nations. The US Declaration of Independence embodies a natural-law philosophy. The following short extract should provide some sense of the deep beliefs in natural law held by those who signed the document.<\/p>\n<blockquote>\n<div id=\"mayer_1.0-ch01_s02_s02_n01\" class=\"im_callout im_block\">\n<h3 class=\"im_title\">The Unanimous Declaration of the Thirteen United States of America<\/h3>\n<p>July 4, 1776<\/p>\n<p>When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature\u2019s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.<\/p>\n<p>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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.\u2026<\/p>\n<\/div>\n<\/blockquote>\n<\/div>\n<p>The natural-law school has been very influential in American legal thinking. The idea that certain rights, for example, are \u201cunalienable\u201d (as expressed in the Declaration of Independence and in the writings of John Locke) is consistent with this view of the law. Individuals may have \u201cGod-given\u201d or \u201cnatural\u201d rights that government cannot legitimately take away. Government only by consent of the governed is a natural outgrowth of this view.<\/p>\n<p>Civil disobedience\u2014in the tradition of Henry Thoreau, Mahatma Gandhi, or Martin Luther King Jr.\u2014becomes a matter of morality over \u201cunnatural\u201d law. For example, in his \u201cLetter from Birmingham Jail,\u201d Martin Luther King Jr. claims that obeying an unjust law is not moral and that deliberately disobeying an unjust law is in fact a moral act that expresses \u201cthe highest respect for law\u201d: \u201cAn individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.\u2026One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.\u201d<span id=\"mayer_1.0-fn01_003\" class=\"im_footnote\">Martin Luther King Jr., \u201cLetter from Birmingham Jail.\u201d<\/span><\/p>\n<p>Legal positivists, on the other hand, would say that we cannot know with real confidence what \u201cnatural\u201d law or \u201cuniversal\u201d law is. In studying law, we can most effectively learn by just looking at what the written law says, or by examining how it has been applied. In response, natural-law thinkers would argue that if we care about justice, every law and every legal system must be held accountable to some higher standard, however hard that may be to define.<\/p>\n<p>It is easier to know what the law \u201cis\u201d than what the law \u201cshould be.\u201d Equal employment laws, for example, have specific statutes, rules, and decisions about racial discrimination. There are always difficult issues of interpretation and decision, which is why courts will resolve differing views. But how can we know the more fundamental \u201cought\u201d or \u201cshould\u201d of human equality? For example, how do we <em class=\"im_emphasis\">know<\/em> that \u201call men are created equal\u201d (from the Declaration of Independence)? Setting aside for the moment questions about the equality of women, or that of slaves, who were not counted as men with equal rights at the time of the declaration\u2014can the statement be empirically proven, or is it simply a matter of a priori knowledge? (<em class=\"im_emphasis\">A priori<\/em> means \u201cexisting in the mind prior to and independent of experience.\u201d) Or is the statement about equality a matter of faith or belief, not really provable either scientifically or rationally? The dialogue between natural-law theorists and more empirically oriented theories of \u201cwhat law is\u201d will raise similar questions. In this book, we will focus mostly on the law as it is, but not without also raising questions about what it could or should be.<\/p>\n<div id=\"mayer_1.0-ch01_s02_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Other Schools of Legal Thought<\/h2>\n<p>The historical school of law believes that societies should base their legal decisions today on the examples of the past. Precedent would be more important than moral arguments.<\/p>\n<p>The legal realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal realists pointed out that because life and society are constantly changing, certain laws and doctrines have to be altered or modernized in order to remain current. The social context of law was more important to legal realists than the formal application of precedent to current or future legal disputes. Rather than suppose that judges inevitably acted objectively in applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and would give legal decisions based on their beliefs and their own social context.<\/p>\n<p>The legal realist view influenced the emergence of the critical legal studies (CLS) school of thought. The \u201cCrits\u201d believe that the social order (and the law) is dominated by those with power, wealth, and influence. Some Crits are clearly influenced by the economist Karl Marx and also by distributive justice theory (see Chapter 2 &#8220;Corporate Social Responsibility and Business Ethics&#8221;). The CLS school believes the wealthy have historically oppressed or exploited those with less wealth and have maintained social control through law. In so doing, the wealthy have perpetuated an unjust distribution of both rights and goods in society. Law is politics and is thus not neutral or value-free. The CLS movement would use the law to overturn the hierarchical structures of domination in the modern society.<\/p>\n<p>Related to the CLS school, yet different, is the ecofeminist school of legal thought. This school emphasizes\u2014and would modify\u2014the long-standing domination of men over both women and the rest of the natural world. Ecofeminists would say that the same social mentality that leads to exploitation of women is at the root of man\u2019s exploitation and degradation of the natural environment. They would say that male ownership of land has led to a \u201cdominator culture,\u201d in which man is not so much a steward of the existing environment or those \u201csubordinate\u201d to him but is charged with making all that he controls economically \u201cproductive.\u201d Wives, children, land, and animals are valued as economic resources, and legal systems (until the nineteenth century) largely conferred rights only to men with land. Ecofeminists would say that even with increasing civil and political rights for women (such as the right to vote) and with some nations\u2019 recognizing the rights of children and animals and caring for the environment, the legacy of the past for most nations still confirms the preeminence of \u201cman\u201d and his dominance of both nature and women.<\/p>\n<div id=\"mayer_1.0-ch01_s02_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\n<h3 class=\"im_title\">Key Takeaway<\/h3>\n<p>Each of the various schools of legal thought has a particular view of what a legal system is or what it should be. The natural-law theorists emphasize the rights and duties of both government and the governed. Positive law takes as a given that law is simply the command of a sovereign, the political power that those governed will obey. Recent writings in the various legal schools of thought emphasize long-standing patterns of domination of the wealthy over others (the CLS school) and of men over women (ecofeminist legal theory).<\/p>\n<\/div>\n<div class=\"bcc-box bcc-info\">\n<h3>Exercises<\/h3>\n<section id=\"self-check-questions\">\n<ol>\n<li>Vandana Shiva draws a picture of a stream in a forest. She says that in our society the stream is seen as unproductive if it is simply there, fulfilling the need for water of women\u2019s families and communities, until engineers come along and tinker with it, perhaps damming it and using it for generating hydropower. The same is true of a forest, unless it is replaced with a monoculture plantation of a commercial species. A forest may very well be productive\u2014protecting groundwater; creating oxygen; providing fruit, fuel, and craft materials for nearby inhabitants; and creating a habitat for animals that are also a valuable resource. She criticizes the view that if there is no monetary amount that can contribute to gross domestic product, neither the forest nor the river can be seen as a productive resource. Which school of legal thought does her criticism reflect?<\/li>\n<li>Anatole France said, \u201cThe law, in its majesty, forbids rich and poor alike from sleeping under bridges.\u201d Which school of legal thought is represented by this quote?<\/li>\n<li>Adolf Eichmann was a loyal member of the National Socialist Party in the Third Reich and worked hard under Hitler\u2019s government during World War II to round up Jewish people for incarceration\u2014and eventual extermination\u2014at labor camps like Auschwitz and Buchenwald. After an Israeli \u201cextraction team\u201d took him from Argentina to Israel, he was put on trial for \u201ccrimes against humanity.\u201d His defense was that he was \u201cjust following orders.\u201d Explain why Eichmann was not an adherent of the natural-law school of legal thought.<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-21\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>Business and the Legal Environment. <strong>Authored by<\/strong>: Anonymous. <strong>Provided by<\/strong>: Anonymous. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\">http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by-nc-sa\/4.0\/\">CC BY-NC-SA: Attribution-NonCommercial-ShareAlike<\/a><\/em><\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section>","protected":false},"author":5,"menu_order":1,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"Business and the Legal Environment\",\"author\":\"Anonymous\",\"organization\":\"Anonymous\",\"url\":\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\",\"project\":\"\",\"license\":\"cc-by-nc-sa\",\"license_terms\":\"\"}]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":""},"chapter-type":[],"contributor":[],"license":[],"class_list":["post-21","chapter","type-chapter","status-publish","hentry"],"part":783,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/21","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/users\/5"}],"version-history":[{"count":4,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/21\/revisions"}],"predecessor-version":[{"id":1268,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/21\/revisions\/1268"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/parts\/783"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/21\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/media?parent=21"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapter-type?post=21"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/contributor?post=21"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/license?post=21"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}