Evolving Theories of Law

Our modern legal system has evolved, many times over. The term "evolution" is usually associated with biological evolution, but this concept can describe how we as human beings have evolved mentally, emotionally, and socially over the course of history. Anthropological research in this area has provided evidence of customs and traditions that were adopted by aboriginal societies (Becker, 1968). Eventually feudal empires were established, and powerful Lords offered protection in exchange for obedience and labor (Tyler, 1990). This period of history can be attributed to the “natural law” tradition. Natural law theory is the earliest of all theories. It was developed in Greece by philosophers like Heraclitus, Socrates, Plato, and Aristotle. It was then followed by other philosophers like Gairus, Cicero, Aquinas, Grotius, Hobbes, Lock, Rousseau, Kant, and Hume. In their studies of the relation between nature and society, these philosophers have arrived at the conclusion that there are two types of law that govern social relations. According to Becker (1968), one of them is made by human beings to control one another (positive laws) and the other is made by the Divine or “Enlightened King” (natural laws). Religious scholars have advocated for natural law as they believe that humans are a creation of nature and nature itself dictates how they should live. Some scholars of natural law, however, insist that through nature human beings can understand what is right and what is wrong. According to this theory, what is good and what is evil is already known to humans upon birth; anything which harms a human’s mind, body or being is wrong (Becker, 1968).

Theories of natural law circle around what is considered moral or immoral. Therefore, there is a link between the morals of humans and the law they follow. The Declaration of Independence?and the?Bill of Rights?are both heavily based on natural law. Thomas Jefferson even cited natural law in the Declaration of Independence, calling it 'the laws of Nature and of Nature's God (Tyler, 1990). The Age of Enlightenment, however, challenged assumptions of moral righteousness and emphasized human “reason” to objectively evaluate evidence to administer justice. In this new world, it became critically important for the law to appear as a rational system (Tyler, 1990).?Blackstone described the "science of law" which he conceived had been "committed to his charge, to be cultivated, methodized and explained." According to Becker (1968), he urged the prospective lawyer "to lay the foundation for his future labors in a solid scientifical method," and reminded him that "law is to be considered not only as a matter of practice but also as a rational science." The dominant philosophy on which many criminal or penal systems are based is the capacity?theory?of responsibility. This theory assumes that most people in the society can fully evaluate the consequences of their decisions. If they “choose” to break the law, it is because it is intentional, and the individual is immoral. Some schools of thought have challenged capacity theory by arguing that some people follow the law simply because they perceive the legal institutions and authorities as legitimate. According to Bottoms & Tankebe (2012), perceived legitimacy can significantly predict the likelihood an individual “chooses” to be obedient. One of the most influential psychological approaches to explaining the link between legitimacy and obedience for the law is legitimacy theory (Tankebe, 2013).

Critical legal perspectives, including “realism” first emerged during the 1970s (Tyler, 2000). Advocates of this approach challenge the contradictions of the legal and political systems. They argue that the purpose of the law should be to promote social justice and welfare for all, not just the dominant few. It is argued that those who have historically colonized and controlled populations around the world may continue to use legal processes and tools to perpetuate inequality (Bottoms & Tankebe, 2012). In line with this paradigm shift, TJ inherently favors outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation. In addition to formal applications in judging and lawyering, TJ’s application has expanded to fields such as: family law, education settings, forensic psychology, psychiatry, elder law, employment law, and military law. Moreover, we find international adopters in many lands, including Canada, France, Sweden, Australia, New Zealand, and even Pakistan.

References

Becker, G. S. (1968). Crime and punishment: An economic approach. Journal of Political Economy, 76, 169–217. Retrieved from: https://www.nber.org/books/beck74-1

Bottoms, A., & Tankebe, J. (2012). Beyond procedural justice: A dialogic approach to legitimacy in criminal justice. Journal of Criminal Law and Criminology, 102, 119–170. https://dx.doi.org/0091-4169/12/10201-0119.

Tankebe, J. (2013). Viewing things differently: The dimensions of public perceptions of police legitimacy. Criminology, 51, 103–135. https://dx.doi.org/10.1111/j.1745- 9125.2012.00291.x.

Tyler, T. R. (1990). Why people obey the law. Oxford: Princeton University Press.

Tyler, T. R. (2000). Social justice: Outcome and procedure. International Journal of Psychology, 35, 117-125. https:// dx.doi.org/10.1080/002075900399411.

Tyler, T. R. (2001). Public trust and confidence in legal authorities: What do majority and minority group members want from the law and legal institutions? Behavioral Science and the Law, 19, 215-235. https://dx.doi.org/10. 1002/bsl.438.