Jurisprudence
From Wikipedia, the free encyclopedia
For the "jurisprudence" of courts, see
Case law.
Philosophers of law ask "what is law?" and "what should it be?"
Jurisprudence is the
study and
theory of
law.
Scholars of jurisprudence, or legal theorists (including legal
philosophers and social theorists of law), hope to obtain a deeper
understanding of the nature of law, of legal reasoning,
legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the
natural law, civil law, and the
law of nations.
[1]
General jurisprudence can be broken into categories both by the type of
question scholars seek to answer and by the theories of jurisprudence,
or schools of thought, regarding how those questions are best answered.
Contemporary philosophy of law, which deals with general jurisprudence,
addresses problems in two rough groups:
[2]
- (1.) Problems internal to law and legal systems as such.
- (2.) Problems of law as a particular social institution as it
relates to the larger political and social situation in which it exists.
Answers to these questions come from four primary schools of thought in general jurisprudence:
[2]
- Natural law
is the idea that there are rational objective limits to the power of
legislative rulers. The foundations of law are accessible through human
reason and it is from these laws of nature that human-created laws gain
whatever force they have.[2]
- Legal positivism,
by contrast to natural law, holds that there is no necessary connection
between law and morality and that the force of law comes from some
basic social facts. Legal positivists differ on what those facts are.[3]
- Legal realism
is a third theory of jurisprudence which argues that the real world
practice of law is what determines what law is; the law has the force
that it does because of what legislators, judges, and executives do with
it. Similar approaches have been developed in many different ways in sociology of law.
- Critical legal studies
is a younger theory of jurisprudence that has developed since the
1970s. It is primarily a negative thesis that holds that the law is
largely contradictory, and can be best analyzed as an expression of the
policy goals of the dominant social group.[4]
Also of note is the work of the contemporary Philosopher of Law
Ronald Dworkin
who has advocated a constructivist theory of jurisprudence that can be
characterized as a middle path between natural law theories and
positivist theories of general jurisprudence.
[5]
The English term is based on the Latin word
jurisprudentia:
juris is the
genitive form of
jus meaning "law", and
prudentia
means "prudence" (also: discretion, foresight, forethought,
circumspection; refers to the exercise of good judgment, common sense,
and even caution, especially in the conduct of practical matters). The
word is first attested in English in 1628,
[6] at a time when the word
prudence had the now obsolete meaning of "knowledge of or skill in a matter". The word may have come via the French
jurisprudence, which is attested earlier.
History of jurisprudence
The Central Criminal Court of England and Wales at the
Old Bailey
Jurisprudence already had this meaning in
Ancient Rome even if at its origins the discipline was a (
periti) in the
jus of
mos maiorum (traditional law), a body of
oral laws
and customs verbally transmitted "by father to son". Praetors
established a workable body of laws by judging whether or not singular
cases were capable of being prosecuted either by the edicta, the annual
pronunciation of prosecutable offense, or in extraordinary situations,
additions made to the edicta. An iudex then would judge a remedy
according to the facts of the case.
Their sentences were supposed to be simple interpretations of the
traditional customs, but effectively it was an activity that, apart from
formally reconsidering for each case what precisely was traditionally
in the legal habits, soon turned also to a more equitable
interpretation, coherently adapting the law to the newer social
instances. The law was then implemented with new evolutive
Institutiones (legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body of
prudentes. Admission to this body was conditional upon proof of competence or experience.
Under the
Roman Empire,
schools of law were created, and the activity constantly became more
academic. In the age from the early Roman Empire to the 3rd century, a
relevant literature was produced by some notable groups including the
Proculians and
Sabinians. The scientific depth of the studies was unprecedented in ancient times.
After the 3rd century,
Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the
Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that
Justinian's
Corpus Juris Civilis was born.
Natural law
Main article:
Natural law
Natural law theory asserts that there are laws that are immanent in
nature, to which enacted laws should correspond as closely as possible.
This view is frequently summarised by the maxim
an unjust law is not a true law,
lex iniusta non est lex,
in which 'unjust' is defined as contrary to natural law. Natural law is
closely associated with morality and, in historically influential
versions, with the intentions of God. To oversimplify its concepts
somewhat, natural law theory attempts to identify a moral compass to
guide the lawmaking power of the state and to promote 'the good'.
Notions of an objective moral order, external to human legal systems,
underlie natural law. What is right or wrong can vary according to the
interests one is focused upon. Natural law is sometimes identified with
the maxim that "an unjust law is no law at all", but as
John Finnis, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical
Thomist position.
Aristotle
Aristotle is often said to be the father of natural law.
[7] Like his philosophical forefathers
Socrates and
Plato,
Aristotle posited the existence of
natural justice or natural right (
dikaion physikon,
δικαίον φυσικόν,
Latin ius naturale). His association with natural law is largely due to the way in which he was interpreted by
Thomas Aquinas.
[8] This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the
Nicomachean Ethics (= Book IV of the
Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages,
[9] though more recent translations render them more literally.
[10]
Aristotle's theory of justice is bound up in his idea of the
golden mean.
Indeed his treatment of what he calls "political justice" derives from
his discussion of "the just" as a moral virtue derived as the mean
between opposing vices, just like every other virtue he describes.
[11] His longest discussion of his theory of justice occurs in
Nicomachean Ethics
and begins by asking what sort of mean a just act is. He argues that
the term "justice" actually refers to two different but related ideas:
general justice and particular justice.
[12][13]
When a person's actions are completely virtuous in all matters in
relation to others, Aristotle calls her "just" in the sense of "general
justice;" as such this idea of justice is more or less coextensive with
virtue.
[14]
"Particular" or "partial justice", by contrast, is the part of "general
justice" or the individual virtue that is concerned with treating
others equitably.
[13]
Aristotle moves from this unqualified discussion of justice to a
qualified view of political justice, by which he means something close
to the subject of modern jurisprudence. Of political justice, Aristotle
argues that it is partly derived from nature and partly a matter of
convention.
[15]
This can be taken as a statement that is similar to the views of modern
natural law theorists. But it must also be remembered that Aristotle is
describing a view of morality, not a system of law, and therefore his
remarks as to nature are about the grounding of the morality enacted as
law, not the laws themselves. The passage here is silent as to that
question.
The best evidence of Aristotle's having thought there was a natural law comes from the
Rhetoric,
where Aristotle notes that, aside from the "particular" laws that each
people has set up for itself, there is a "common" law that is according
to nature.
[16]
The context of this remark, however, suggests only that Aristotle
thought that it could be rhetorically advantageous to appeal to such a
law, especially when the "particular" law of ones' own city was adverse
to the case being made, not that there actually was such a law;
[17]
Aristotle, moreover, considered two of the three candidates for a
universally valid, natural law suggested in this passage to be wrong.
[18] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
[citation needed]
Thomas Aquinas
Main article:
Thomas Aquinas
Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 – 7 March 1274) was a
philosopher and
theologian in the
scholastic tradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent of
natural theology, and the father of the
Thomistic school of philosophy, for a long time the primary philosophical approach of the
Roman Catholic Church. The work for which he is best-known is the
Summa Theologica. One of the thirty-three
Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many
institutions of learning have been named after him.
Aquinas distinguished four kinds of law: eternal, natural, human and divine:
- Eternal law refers to divine reason, known only to God. It is God's
plan for the universe. Man needs this, for without it he would totally
lack direction.
- Natural law is the "participation" in the eternal law by rational human creatures, and is discovered by reason.
- Divine law is revealed in the scriptures and is God's positive law for mankind.
- Human law is supported by reason and enacted for the common good.[19]
Natural law, of course, is based on "first principles":
. . . this is the first precept of the law, that good is to be
done and promoted, and evil is to be avoided. All other precepts of the
natural law are based on this . . .[20]
The desires to live and to procreate are counted by Aquinas among
those basic (natural) human values on which all other human values are
based.
School of Salamanca
The
School of Salamanca reformulated natural law, concluding that all humans are equal and have the same rights to life and liberty
Francisco de Vitoria was perhaps the first to develop a theory of
ius gentium
(the rights of peoples), and thus is an important figure in the
transition to modernity. He extrapolated his ideas of legitimate
sovereign power to society at the international level, concluding that
this scope as well ought to be ruled by just forms respectable of the
rights of all. The common good of the world is of a category superior to
the good of each state. This meant that relations between states ought
to pass from being justified by force to being justified by law and
justice. Some scholars have upset the standard account of the origins of
International law, which emphasises the seminal text
De iure belli ac pacis by Grotius, and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field.
[21]
Others, such as Koskenniemi, have argued that none of these humanist
and scholastic thinkers can be understood to have founded international
law in the modern sense, instead placing its origins in the post-1870
period.
[22]
Francisco Suárez, regarded as among the greatest scholastics after Aquinas, subdivided the concept of
ius gentium. Working with already well-formed categories, he carefully distinguished
ius inter gentes from
ius intra gentes.
Ius inter gentes
(which corresponds to modern international law) was something common to
the majority of countries, although, being positive law, not natural
law, was not necessarily universal. On the other hand,
ius intra gentes, or civil law, is specific to each nation.
Thomas Hobbes
Main article:
Thomas Hobbes
In his treatise
Leviathan, (1651), Hobbes expresses a view of natural law as a
precept, or general rule, found out by
reason,
by which a man is forbidden to do that which is destructive of his
life, or takes away the means of preserving the same; and to omit that
by which he thinks it may best be preserved. Hobbes was a
social contractarian[23] and believed that the law gained peoples' tacit consent. He believed that society was formed from a
state of nature
to protect people from the state of war between mankind that exists
otherwise. Life is, without an ordered society, "solitary, poor, nasty,
brutish and short". It is commonly commented that Hobbes' views about
the core of human nature were influenced by his times. The
English Civil War
and the Cromwellian dictatorship had taken place, and he felt absolute
authority vested in a monarch, whose subjects obeyed the law, was the
basis of a civilized society.
Lon Fuller
Main article:
Lon L. Fuller
Writing after
World War II,
Lon L. Fuller notably emphasised that the law must meet certain formal
requirements (such as being impartial and publicly knowable). To the
extent that an institutional system of social control falls short of
these requirements, Fuller argues, we are less inclined to recognise it
as a system of law, or to give it our respect. Thus, law has an internal
morality that goes beyond the social rules by which valid laws are
made.
John Finnis
Main article:
John Finnis
Sophisticated positivist and natural law theories sometimes resemble
each other more than the above descriptions might suggest, and they may
concede certain points to the other "side". Identifying a particular
theorist as a positivist or a natural law theorist sometimes involves
matters of emphasis and degree, and the particular influences on the
theorist's work. In particular, the older natural lawyers, such as
Aquinas and John Locke made no distinction between analytic and
normative jurisprudence. But modern natural lawyers, such as John Finnis
claim to be positivists, while still arguing that law is a basically
moral creature.
Sharia and Fiqh in Islam
Main articles:
Sharia and
Fiqh
Sharia (
شَرِيعَةٌ) refers to the body of
Islamic law.
The term means "way" or "path"; it is the legal framework within which
public and most private aspects of life are regulated for those living
in a legal system based on
Islamic
principles of jurisprudence. Fiqh is the term for Islamic
jurisprudence, made up of the rulings of Islamic jurists. A component of
Islamic studies, Fiqh expounds the methodology by which Islamic law is
derived from primary and secondary sources.
Mainstream Islam distinguishes
fiqh, which means understanding the details and inferences drawn by scholars, from
sharia, which refers to the principles behind the
fiqh. Scholars hope that
fiqh and
sharia are in harmony in any given case, but this cannot be assured.
[24]
Early forms of
logic in Islamic philosophy were introduced in Islamic jurisprudence from the 7th century with the process of
Qiyas. During the
Islamic Golden Age, there was a logical debate among
Islamic philosophers and
jurists over whether the term
Qiyas refers to
analogical reasoning,
inductive reasoning or categorical
syllogism. Some Islamic scholars argued that
Qiyas refers to reasoning.
Ibn Hazm (994-1064) disagreed with this, arguing that
Qiyas refers rather to categorical syllogism in a
real sense and to analogical reasoning in a
metaphorical sense. On the other hand,
al-Ghazali (1058–1111) (and in modern times,
Abu Muhammad Asem al-Maqdisi) argued that
Qiyas
refers to analogical reasoning in a real sense and categorical
syllogism in a metaphorical sense. Other Islamic scholars at the time
argued that the term
Qiyas refers to both analogical reasoning and categorical syllogism in a real sense.
[25]
Analytic jurisprudence
Analytic, or 'clarificatory', jurisprudence means the use of a
neutral point of view and descriptive language when referring to the
aspects of legal systems. This was a philosophical development that
rejected natural law's fusing of what law is and what it ought to be.
[26] David Hume famously argued in
A Treatise of Human Nature[27] that people invariably slip between describing that the world
is a certain way to saying therefore we
ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we
ought to do something merely because something
is the case. So analysing and clarifying the way the world
is must be treated as a strictly separate question to normative and evaluative
ought questions.
The most important questions of analytic jurisprudence are: "What are laws?"; "What is
the
law?"; "What is the relationship between law and power/sociology?"; and
"What is the relationship between law and morality?" Legal positivism
is the dominant theory, although there are a growing number of critics,
who offer their own interpretations.
Legal positivists
Positivism simply means that law is something that is "posited": laws
are validly made in accordance with socially accepted rules. The
positivist view on law can be seen to cover two broad principles:
Firstly, that laws may seek to enforce justice, morality, or any other
normative end, but their success or failure in doing so does not
determine their validity. Provided a law is properly formed, in
accordance with the rules recognized in the society concerned, it is a
valid law, regardless of whether it is
just by some other
standard. Secondly, that law is nothing more than a set of rules to
provide order and governance of society. No legal positivist, however,
argues that it follows that the law is therefore to be obeyed, no matter
what. This is seen as a separate question entirely.
- What the law is (lex lata) - is determined by historical social practice (resulting in rules)
- What the law ought to be (lex ferenda) - is determined by moral considerations.
Bentham and Austin
Bentham's utilitarian theories remained dominant in law until the twentieth century
One of the earliest legal positivists was Jeremy Bentham. Bentham was
an early and staunch supporter of the utilitarian concept (along with
Hume), an avid prison reformer, advocate for
democracy, and strongly
atheist. Bentham's views about law and jurisprudence were popularized by his student,
John Austin. Austin was the first chair of law at the new
University of London from 1829. Austin's
utilitarian
answer to "what is law?" was that law is "commands, backed by threat of
sanctions, from a sovereign, to whom people have a habit of obedience".
[28]
Contemporary legal positivists have long abandoned this view, and have
criticised its oversimplification, H. L. A. Hart particularly.
Hans Kelsen
Main article:
Hans Kelsen
Hans Kelsen is considered one of the preeminent jurists of the 20th
century and has been highly influential in Europe and Latin America,
although less so in common-law countries. His
Pure Theory of Law
aims to describe law as binding norms while at the same time refusing,
itself, to evaluate those norms. That is, 'legal science' is to be
separated from 'legal politics'. Central to the Pure Theory of Law is
the notion of a 'basic norm (
Grundnorm)'—a hypothetical norm, presupposed by the jurist, from which in a hierarchy all 'lower' norms in a
legal system, beginning with
constitutional law,
are understood to derive their authority or 'bindingness'. In this way,
Kelsen contends, the bindingness of legal norms, their specifically
'legal' character, can be understood without tracing it ultimately to
some suprahuman source such as God, personified Nature or—of great
importance in his time—a personified State or Nation.
H. L. A. Hart
Main article:
H. L. A. Hart
In the Anglophone world, the pivotal writer was
H. L. A. Hart,
who argued that the law should be understood as a system of social
rules. Hart rejected Kelsen's views that sanctions were essential to law
and that a normative social phenomenon, like law, can not be grounded
in non-normative social facts. Hart revived analytical jurisprudence as
an important theoretical debate in the twentieth century through his
book
The Concept of Law.
[29] As the professor of jurisprudence at
Oxford University, Hart argued that law is a 'system of rules'.
Rules, said Hart, are divided into primary rules (rules of conduct)
and secondary rules (rules addressed to officials to administer primary
rules). Secondary rules are divided into rules of adjudication (to
resolve legal disputes), rules of change (allowing laws to be varied)
and the rule of recognition (allowing laws to be identified as valid).
The "rule of recognition", a customary practice of the officials
(especially judges) that identifies certain acts and decisions as
sources of law. A pivotal book on Hart was written by Neil MacCormick
[30]
in 1981 (second edition due in 2007), which further refined and offered
some important criticisms that led MacCormick to develop his own theory
(the best example of which is his recently published
Institutions of Law, 2007). Other important critiques have included that of
Ronald Dworkin,
John Finnis, and
Joseph Raz.
In recent years, debates about the nature of law have become
increasingly fine-grained. One important debate is within legal
positivism. One school is sometimes called
exclusive legal positivism,
and it is associated with the view that the legal validity of a norm
can never depend on its moral correctness. A second school is labeled
inclusive legal positivism, a major proponent of which is Wil Waluchow, and it is associated with the view that moral considerations
may determine the legal validity of a norm, but that it is not necessary that this is the case.
Joseph Raz
Some philosophers used to contend that positivism was the theory that
there is "no necessary connection" between law and morality; but
influential contemporary positivists, including Joseph Raz, John
Gardner, and Leslie Green, reject that view. As Raz points out, it is a
necessary truth that there are vices that a legal system cannot possibly
have (for example, it cannot commit rape or murder).
Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis" approach in
The Authority of Law.
[31]
Raz argues that law is authority, identifiable purely through social
sources, without reference to moral reasoning. Any categorisation of
rules beyond their role as authority is better left to sociology than to
jurisprudence.
[32]
Ronald Dworkin
Ronald Dworkin sought a theory of law which would justify judges' ability to strike down democratically decided laws.
In his book
Law's Empire[33]
Dworkin attacked Hart and the positivists for their refusal to treat
law as a moral issue. Dworkin argues that law is an 'interpretive'
concept, that requires judges to find the best-fitting and most just
solution to a legal dispute, given their constitutional traditions.
According to him, law is not entirely based on social facts, but
includes the morally best justification for the institutional facts and
practices that we intuitively regard as legal. It follows on Dworkin's
view that one cannot know whether a society has a legal system in force,
or what any of its laws are, until one knows some moral truths about
the justifications for the practices in that society. It is consistent
with Dworkin's view—in contrast with the views of legal positivists or
legal realists—that
no-one in a society may know what its laws are, because no-one may know the best justification for its practices.
Interpretation, according to Dworkin's law as integrity theory, has
two dimensions. To count as an interpretation, the reading of a text
must meet the criterion of
fit. Of those interpretations that
fit, however, Dworkin maintains that the correct interpretation is the
one that puts the political practices of the community in their best
light, or makes of them
the best that they can be. But many writers have doubted whether there
is
a single best justification for the complex practices of any given
community, and others have doubted whether, even if there are, they
should be counted as part of the law of that community.
Legal realism
Main article:
Legal realism
Legal realism was a view popular with some Scandinavian and American
writers. Skeptical in tone, it held that the law should be understood
and determined by the actual practices of courts, law offices, and
police stations, rather than as the rules and doctrines set forth in
statutes or learned treatises. It had some affinities with the sociology
of law. The essential tenet of legal realism is that all law is made by
human beings and, thus, is subject to human foibles, frailties and
imperfections.
It has become quite common today to identify Justice
Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include
Roscoe Pound,
Karl Llewellyn and Justice
Benjamin Cardozo).
Karl Llewellyn, another founder of the U.S. legal realism movement,
similarly believed that the law is little more than putty in the hands
of a judge who is able to shape the outcome of a case based on personal
biases.
[34] The chief inspiration for Scandinavian legal realism many consider to be the works of
Axel Hägerström.
Despite its decline in facial popularity, realism continues to
influence a wide spectrum of jurisprudential schools today, including
critical legal studies,
feminist legal theory,
critical race theory,
sociology of law and
law and economics.
Historical School
Historical jurisprudence came to prominence during the German debate over the proposed codification of German law. In his book
On the Vocation of Our Age for Legislation and Jurisprudence,
[35] Friedrich Carl von Savigny
argued that Germany did not have a legal language that would support
codification because the traditions, customs and beliefs of the German
people did not include a belief in a code. The Historicists believe that
the law originates with society.
Normative jurisprudence
In addition to the question, "What is law?", legal philosophy is also
concerned with normative, or "evaluative" theories of law. What is the
goal or purpose of law? What moral or political theories provide a
foundation for the law? What is the proper function of law? What sorts
of acts should be subject to
punishment,
and what sorts of punishment should be permitted? What is justice? What
rights do we have? Is there a duty to obey the law? What value has the
rule of law? Some of the different schools and leading thinkers are as
follows.
Virtue jurisprudence
Aretaic moral theories such as contemporary
virtue ethics
emphasize the role of character in morality. Virtue jurisprudence is
the view that the laws should promote the development of virtuous
characters by citizens. Historically, this approach is associated mainly
with
Aristotle or
Thomas Aquinas later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
Deontology
Kant was a pre-eminent Enlightenment thinker
Deontology is "the theory of duty or moral obligation."
[36] The philosopher
Immanuel Kant
formulated one influential deontological theory of law. He argued that
any rule we follow must be able to be universally applied, i.e. we must
be willing for everyone to follow that rule. A contemporary
deontological approach can be found in the work of the legal philosopher
Ronald Dworkin.
Utilitarianism
Mill believed law should create happiness
Main article:
Utilitarianism
Utilitarianism is the view that the laws should be crafted so as to
produce the best consequences for the greatest number of people
possible. Historically, utilitarian thinking about law is associated
with the great philosopher,
Jeremy Bentham.
John Stuart Mill was a pupil of Bentham's and was the torch bearer for
utilitarian philosophy through the late nineteenth century.
[37] In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the
law and economics tradition. Also see
Lysander Spooner.
John Rawls
John Rawls was an
American philosopher, a
professor of
political philosophy at
Harvard University and author of
A Theory of Justice (1971),
Political Liberalism,
Justice as Fairness: A Restatement, and
The Law of Peoples.
He is widely considered one of the most important English-language
political philosophers of the 20th century. His theory of justice uses a
device called the original position to ask us which principles of
justice we would choose to regulate the basic institutions of our
society if we were behind a 'veil of ignorance.' Imagine we do not know
who we are - our race, sex, wealth status, class, or any distinguishing
feature - so that we would not be biased in our own favour. Rawls argues
from this 'original position' that we would choose exactly the same
political liberties for everyone, like freedom of speech, the right to
vote and so on. Also, we would choose a system where there is only
inequality because that produces incentives enough for the economic
well-being of all society, especially the poorest. This is Rawls's
famous 'difference principle'. Justice is fairness, in the sense that
the fairness of the original position of choice guarantees the fairness
of the principles chosen in that position.
There are many other normative approaches to the philosophy of law, including
critical legal studies and
libertarian theories of law.
