Understanding the Relationship Between Law and Theory
Law is a set of rules governing people’s lives and relationships with one another. It shapes politics, economics, history and society in many ways.
Legal theory is the process by which we understand the relationship between law and the rest of human life. There are several different theories of law and legal reasoning, each with a unique emphasis and method of interpretation.
The most common are syllogism (applying the law to a given situation), analogy (using other laws or similar situations to draw conclusions) and argumentative theories. These are the basis of judicial decision-making and can also be used to help judges make decisions in their own courtrooms.
In some cases, these theories can become so pervasive that they are difficult to distinguish from law itself. For example, legal syllogism and analogy have both been found to be influential in civil law systems, while argumentative theories are more frequent in common law courts.
In Hohfeldian systems, rights function to provide a measure of normative control over right-holders and other right-objects, including the freedom to choose as a matter of choice how to exercise certain privileges or powers (Hart 1982: 183-3). These can be either active or passive (Lyons 1970; Sumner 1987: 29-30). They are also often associated with claim-rights and immunities.