Jurisprudence
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For the "jurisprudence" of courts, see Case law.
"Concept of law" redirects here. For the book by H. L. A. Hart, see The Concept of Law.
- (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.
- 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]
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.
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History of jurisprudence
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
Main article: 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
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]
. . . 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
Main article: School of Salamanca
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
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
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
Main article: 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
Main article: Legal positivism
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
Main articles: Jeremy Bentham and John Austin (legal philosopher)
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
Main article: 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
Main articles: Ronald Dworkin and Interpretivism (legal)
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
Main article: German 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
Main article: Political philosophy
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
Main article: 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
Main article: Deontological ethics
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
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
Main articles: John Rawls and A Theory of Justice
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.
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