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jurisprudence: West's Encyclopedia of American Law (Full Article) from Answers.com

This entry contains information applicable to United States law only.

From the Latin term juris prudentia, which means "the study, knowledge, or science of law"; in the United States, more broadly associated with the philosophy of law.

Legal philosophy has many aspects, with four types being the most common. The most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to constitutional law. Legal encyclopedias, law reviews, and law school textbooks frequently contain this type of jurisprudential scholarship.

The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The purpose of this interdisciplinary study is to enlighten each field of knowledge by sharing insights that have proved important to understanding essential features of the comparative disciplines.

The third type of jurisprudence raises fundamental questions about the law itself. These questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal concept. The Common Law (1881), written by Oliver Wendell Holmes, Jr., is a well-known example of this type of jurisprudence. It traces the evolution of civil and criminal responsibility from undeveloped societies where liability for injuries was based on subjective notions of revenge, to modern societies where liability is based on objective notions of reasonableness.

The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions, including, What is law? How does a trial or appellate court judge decide a case? Is a judge similar to a mathematician or a scientist applying autonomous and determinate rules and principles? Or is a judge more like a legislator who simply decides a case in favor of the most politically preferable outcome? Must a judge base a decision only on the written rules and regulations that have been enacted by the government? Or may a judge also be influenced by unwritten principles derived from theology, moral philosophy, and historical practice?

Four schools of jurisprudence have attempted to answer these questions: formalism proposes that law is a science, realism holds that law is just another name for politics, positivism suggests that law must be confined to the written rules and regulations enacted or recognized by the government, and naturalism maintains that the law must reflect eternal principles of justice and morality that exist independent of governmental recognition.

Modern U.S. legal thought began in 1870. In that year, Holmes, the father of the U.S. legal realist movement, wrote his first major essay for the American Law Review, and Christopher Columbus Langdell, the father of U.S. legal formalism, joined the faculty at Harvard Law School.

Legal formalism, also known as conceptualism, treats law like a math or science. Formalists believe that in the same way a mathematician or scientist identifies the relevant axioms, applies them to given data, and systematically reaches a demonstrable theorem, a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of a dispute. Judges derive relevant legal principles from various sources of legal authority, including state and federal constitutions, statutes, regulations, and case law.

For example, most states have enacted legislation that prohibits courts from probating a will that was not signed by two witnesses. If a court is presented with a number of wills to probate for the same estate, and only one of those wills has been witnessed by at least two persons, the court can quickly deduce the correct legal conclusion in a formalistic fashion: Each will that has been signed by fewer than two witnesses will have no legal effect, and only the will executed in compliance with the statutory requirements may be probated.

Formalists also apply common-law precedent in a syllogistic fashion. The "mailbox" rule is a common-law doctrine that stands for the proposition that an offer is deemed legally accepted when mailed by the offeree, not when received by the offeror. This bright-line rule enables courts to resolve most disputes in a simple and uncontroversial fashion. So long as the offeree mails the acceptance in a properly addressed envelope bearing the appropriate amount of postage, the acceptance will ordinarily be ruled valid.

Formalists also rely on inductive reasoning to settle legal disputes. Whereas deductive reasoning involves the application of general principles that will yield a specific rule when applied to the facts of a case, inductive reasoning starts with a number of specific rules and infers from them a broader legal principle that may be applied to comparable legal disputes in the future. Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), provides an example. In Griswold, the Supreme Court ruled that although no express provision of the federal Constitution guarantees the right to privacy, and although no precedent had established such a right, an individual's right to privacy can be inferred from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments and the cases interpreting them.

English jurist Sir Edward Coke was among the first to popularize the formalistic approach to law in Anglo-American history. Coke believed that the common law was "the peculiar science of judges." The common law, Coke said, represented the "artificial perfection of reason" obtained through "long study, observation, and experience." Coke also believed that only lawyers, judges, and others trained in the law could fully comprehend and apply this highest method of reasoning. The rest of society, including the king or queen of England, was not sufficiently learned to do so.

Langdell invigorated Coke's jurisprudence of artificial reason in the United States during the second half of the nineteenth century. Langdell compared the study of law to the study of science, and suggested that law school classrooms were the laboratories of jurisprudence. Judicial reasoning, Langdell believed, parallels the reasoning used in geometric proofs. He urged professors of law to classify and arrange legal principles much as a taxonomist organizes plant and animal life. Langdell articulated what has remained the orthodox school of thought in U.S. jurisprudence throughout the twentieth century.

Since the early 1970s, Professor Ronald M. Dworkin has been the foremost advocate of the formalist approach with some subtle variations. Although Dworkin stops short of explicitly comparing law to science and math, he maintains that law is best explained as a rational and cohesive system of principles that judges must apply with integrity. The principle of integrity requires that judges provide equal treatment to all litigants presenting legal claims that cannot honestly be distinguished. Application of this principle, Dworkin contends, will produce a "right answer" in all cases, even cases presenting knotty and polemical political questions, although every judge may not reach the same conclusion.

The realist movement, which began in the late eighteenth century and gained force during the administration of President Franklin D. Roosevelt, was the first to attack formalism. Realists held a skeptical attitude toward Langdellian legal science. "The life of the law has not been logic, it has been experience," Holmes wrote in 1881.

Based on their experience, realists held two beliefs. First, they believed that law is not a scientific enterprise in which deductive reasoning can be applied to reach a determinate outcome in every case. Instead, most litigation presents hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line is typically drawn in accordance with the political, economic, and psychological proclivities of the judge.

For example, when a court is asked to decide whether a harmful business activity is a common-law nuisance, the judge must ascertain whether the particular activity is reasonable. The judge does not base this determination on a precise algebraic equation. Instead, the judge balances the competing economic and social interests of the parties, and rules in favor of the litigant with the most persuasive case. Realists would thus contend that judges who are ideologically inclined to foster business growth will authorize the continuation of a harmful activity, whereas judges who are ideologically inclined to protect the environment will not.

Second, realists believed that because judges decide cases based on their political affiliation, the law tends always to lag behind social change. For example, the realists of the late nineteenth century saw a dramatic rise in the disparity between the wealth and working conditions of rich and poor U.S. citizens following the industrial revolution. To protect society's poorest and weakest members, many states began drafting legislation that established a minimum wage and maximum working hours for various classes of exploited workers. This legislation was part of the U.S. Progressive movement, which reflected many of the realists' concerns.

The Supreme Court began striking down such laws as an unconstitutional interference with the freedom of contract guaranteed by the Fourteenth Amendment of the U.S. Constitution. U.S. realists claimed that the Supreme Court justices were simply using the freedom-of-contract doctrine to hide the real basis of their decision, which was their personal adherence to free-market principles and laissez-faire economics. The realists argued that the free-market system was not really free at all. They believed that the economic structure of the United States was based on coercive laws such as the employment-at-will doctrine, which permits an employer to discharge an employee for almost any reason. These laws, the realists asserted, promote the interests of the most powerful U.S. citizens, leaving the rest of society to fend for itself.

Some realists only sought to demonstrate that law is neither autonomous, apolitical, nor determinate. For example, Jerome Frank, who coined the term legal realism and later became a judge on the U.S. Court of Appeals for the Second Circuit, emphasized the psychological foundation of judicial decision making, arguing that a judge's decision may be influenced by mundane things like what she or he ate for breakfast. Frank believed that it is deceptive for the legal profession to perpetuate the myth that the law is clearly knowable or precisely predictable, when it is so plastic and mutable. 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.

Since the mid-1960s, this theme has been echoed by the critical legal studies movement, which has applied the skeptical insights of the realists to attack courts for rendering decisions based on racial, sexist, and homophobic prejudices. For example, feminist legal scholars have pilloried the Supreme Court's decision in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), for offering women less protection against governmental discrimination than is afforded members of other minority groups. Gay legal scholars have similarly assailed the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), for failing to recognize a fundamental constitutional right to engage in homosexual sodomy.

Other realists, such as Roscoe Pound, were more interested in using the insights of their movement to reform the law. Pound was one of the original advocates of sociological jurisprudence in the United States. According to Pound, the aim of every law — whether constitutional, statutory, or case — should be to enhance the welfare of society. Jeremy Bentham, a legal philosopher in England, planted the seeds of sociological jurisprudence in the eighteenth century when he argued that the law must seek to achieve the greatest good for the greatest number of people in society. Bentham's theory, known as Utilitarianism, continues to influence legal thinkers in the United States.

Law and economics is one school of thought that traces its lineage to Benthamite jurisprudence. This school of thought, also known as economic analysis of the law, argues that judges must decide cases in order to maximize the wealth of society. According to law and economics exponents, each person in society is a rational maximizer of his or her own self-interest. Persons who rationally maximize their self-interest are willing to exchange something they value less for something they value more. For example, every day in the United States, people voluntarily give up their time, money, and liberty to acquire food, property, or peace of mind. This school of thought contends that the law must facilitate these voluntary exchanges to maximize the aggregate wealth of society.

Another school of thought Bentham influenced is known as legal pragmatism. Unlike law and economics exponents, legal pragmatists provide no formula for determining the best means to improve the welfare of society. Instead, pragmatists contend that judges must merely set a goal that they hope to achieve in resolving a particular legal dispute, such as the preservation of societal stability, the protection of individual rights, or the delineation of governmental powers and responsibilities. Judges must then draft the best court order to accomplish this goal. Pragmatists maintain that judges must choose the appropriate societal goal by weighing the value of competing interests presented by a lawsuit, and then using a "grab bag" of "anecdote, introspection, imagination, common sense, empathy, metaphor, analogy, precedent, custom, memory, experience, intuition, and induction" to reach the appropriate balance (Posner 1990, 73).

Pragmatism, sometimes called instrumentalism, is best exemplified by Justice Holmes's statement that courts "decide cases first, and determine the principle afterwards." This school of thought is associated with result-oriented jurisprudence, which focuses more on the consequences of a judicial decision than on how the relevant legal principles should be applied.

The realist-formalist dichotomy represents only half of the jurisprudential picture in the United States. The other half comprises a dialog between the positivist and natural-law schools of thought. This dialog revolves around the classic debate over the appropriate sources of law.

Positivists maintain that the only appropriate sources of law are rules and principles that have been expressly enacted or recognized by a governmental entity, like a state or federal legislature, administrative body, or court of law. These rules and principles may be properly considered law, positivists contend, because individuals may be held liable for disobeying them. Positivists believe that other sources for determining right and wrong, such as religion and contemporary morality, are only aspirational, and may not be legitimately consulted by judges when rendering a decision.

Natural-law proponents, or naturalists, agree that governmental rules and regulations are a legitimate source of law, but assert that they are not the only source. Naturalists believe that the law must be informed by eternal principles that existed before the formation of government and are independent of governmental recognition. Depending on the particular strain of natural law, these principles may be derived from theology, moral philosophy, human reason, historical practice, and individual conscience.

The dialog between positivists and naturalists has a long history. For many centuries, historians, theologians, and philosophers distinguished positivism from naturalism by distinguishing written law from unwritten law. For example, the Ten Commandments were inscribed on stone tablets, as were many of the laws of the ancient Greeks. Roman Emperor Justinian I (a.d. 482-565) reduced most of his country's laws to a voluminous written code. At the same time, Christian, Greek, and Roman thinkers all appealed to a higher law that transcended the written law promulgated by human beings.

Prior to the American Revolution, English philosophers continued this debate along the same lines. English political thinkers John Austin and Thomas Hobbes were strict positivists who believed that the only authority courts should recognize are the commands of the sovereign because only the sovereign is entrusted with the power to back up a command with military and police force. First intimated by Italian philosopher Niccol;ago Machiavelli, the "sovereign command" theory of law has been equated in the United States with the idea that might makes right.

Contrasted with the writings of Hobbes and Austin were the writings of John Locke in England and Thomas Jefferson in America. In his Second Treatise on Government (1690), Locke established the idea that all people are born with the inalienable right to life, liberty, and property. Locke's ruminations about individual rights that humans possess in the state of nature prior to the creation of government foreshadowed Jefferson's Declaration of Independence. In 1776, the Declaration announced the self-evident truth that "all men are created equal" and are "endowed by their Creator with certain inalienable Rights," including the right to "Life, Liberty and the pursuit of Happiness."

Both positivism and naturalism have had an enormous influence on how U.S. citizens think about law. The institution of African American slavery, which was recognized by the U.S. Constitution and legalized by legislation passed in the South prior to the Civil War (1861-65), was attacked by abolitionists who relied on higher-law principles of religion and conscience to challenge the moral foundations of human bondage. Following World War II, the Allied powers successfully prosecuted German government officials, industrialists, and military leaders in Nuremberg for committing genocide against European Jewry, even though the Nazi regime had passed laws authorizing such extermination. The Allies relied in part on the natural-law principle that human dignity is an inviolable right that no government may vitiate by written law.

Positivists and naturalists tend to converge in the area of historical jurisprudence. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute. Strictly speaking, history does not completely fall within the definition of either positivism or natural law. Historical events, like the Civil War, are not legislative enactments, although they may be the product of governmental policy. Nor do historical events embody eternal principles of morality, although they may be the product of clashing moral views. Yet, historical events shape both morality and law. Thus, many positivists and naturalists find a place for historical jurisprudence in their legal philosophy.

For example, Justice Holmes was considered a positivist to the extent that he believed that courts should defer to legislative judgment unless a particular statute clearly violates an express provision of the Constitution. But he qualified this stance when a given statute "infringe[s] on fundamental principles as they have been understood by the traditions of our people and our law" (Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). In such instances, Holmes felt, courts were justified in striking down a particular written law.

Benjamin N. Cardozo, considered an adherent of sociological jurisprudence by some and a realist by others, was another Supreme Court justice who incorporated history into his legal philosophy. When evaluating the merits of a claim brought under the Due Process Clauses of the Fifth and Fourteenth Amendments, Cardozo denied relief to claims that were not "implicit in the concept of ordered liberty" and the "principle[s] of justice [that are] so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]).

Each school of jurisprudence is not a self-contained body of thought. The lines separating positivism from realism and natural law from formalism often become blurry. The legal philosophy of Justice Holmes, for example, borrowed from the realist, positivist, pragmatic, and historical strains of thought.

In this regard, some scholars have observed that it is more appropriate to think of jurisprudence as a spectrum of legal thought, where the nuances of one thinker delicately blend with those of the next. Professor Harold Berman, of Harvard Law School, for example, has advocated the development of an integrative jurisprudence, which would assimilate into one philosophy the insights from each school of legal theory. The staying power of any body of legal thought, Berman has suggested, lies not in its name but in its ability to explain the enterprise of law.

See: Griswold v. Connecticut; gay and lesbian rights; Nuremberg Trials; Anarchism; Chicago School; Feminist Jurisprudence; Judicial Review; Law; Legal Education; Legal History; Roman Law; Socialism.

For the "jurisprudence" of courts, see Case law.

Philosophers of law ask "what is law?" and "what should it be?"

Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:

  • Natural law is the idea that there are unchangeable laws of nature which govern us, and that our laws and institutions should try to align with this natural law.
  • Analytic jurisprudence asks questions distinctive to legal philosophy like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may engage.
  • Normative jurisprudence asks what law ought to be. It is close to political philosophy, and includes questions of whether one ought to obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation, how judges ought to decide cases.

Modern jurisprudence and philosophy of law is dominated today primarily by Western academics. The ideas of the Western legal tradition have become so pervasive throughout the world that it is tempting to see them as universal. Historically, however, many philosophers from other traditions have discussed the same questions, from Islamic scholars to the ancient Greeks.

Etymology

The Latin word juris is the genitive form of jus meaning "law." So, juris means "of law" or "legal." Prudentia, meaning "knowledge" in Latin, translates into English as "prudence." The native English word is "wisdom," which originally also meant "knowledge."

History of jurisprudence

The Central Criminal Court of England and Wales

Jurisprudence already had this meaning in Ancient Rome, even if at its origins the discipline was a monopoly of the College of Pontiffs (Pontifex), which retained an exclusive power of judgment on facts, being the only experts (periti) in the jus of traditional law (mos maiorum, a body of oral laws and customs verbally transmitted "by father to son"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases.

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 equitative 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. Pontiffs 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 Republic, 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 degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivaled peaks of skill. It is about this activity that it has been said that Romans had developed an art out of the law.[weasel words]

After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Byzantine 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, 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 slogan that "an unjust law is no law at all", but as John Finnis, the most important of modern natural lawyers has argued, this slogan is a poor guide to the classical Thomist position.

Aristotle

Aristotle, by Francesco Hayez

Aristotle is often said to be the father of natural law.[1] Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). His association with natural law is due largely to the interpretation given to him by Thomas Aquinas.[2] 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' influence was such as to affect a number of early translations of these passages,[3] though more recent translations render them more literally.[4]

Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community;[5] were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.[6]

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.[7] The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was averse to the case being made, not that there actually was such a law;[8] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.[9] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

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 some 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 distinguish fiqh, which means understanding details and inferences drawn by scholars, from sharia that refers to principles that lie behind the fiqh. Scholars hope that fiqh and sharia are in harmony in any given case, but they cannot be sure.[10]

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 whether the term Qiyas refers to analogical reasoning, inductive reasoning or categorical syllogism. Some Islamic scholars argued that Qiyas refers to reasoning, which Ibn Hazm (994-1064) disagreed with, arguing that Qiyas does not refer to inductive reasoning, but refers to categorical syllogism in a real sense and 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, however, argued that the term Qiyas refers to both analogical reasoning and categorical syllogism in a real sense.[11]

Thomas Aquinas

Thomas Aquinas was the most important Western mediaeval legal scholar

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. These are the eternal, natural, human, and divine law. Eternal law is the decree of God which governs all creation. Natural law is the human "participation" in the eternal law and is discovered by reason.[12] 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 . . .[13]

The desire to live and to procreate are counted by Aquinas among those basic (natural) human values on which all human values are based. Human law is positive law: the natural law applied by governments to societies. Divine law is the specially revealed law in the scriptures.

Thomas Hobbes

Thomas Hobbes was an English Enlightenment scholar

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[14] 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, poore, 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. Fuller and scholar H.L.A. Hart were colleagues at Oxford University. One of the disagreements between Fuller, a natural lawyer, and Hart, a positivist, was whether Nazi law was so bad that it could no longer be considered law.

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...

Analytic jurisprudence

Analytic, or 'clarificatory' jurisprudence is using 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.[15] David Hume famously argued in A Treatise of Human Nature[1][16] 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 the 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 - is determined by social facts (or "sources')
  • What obedience the law is owed - is determined by moral considerations.

Bentham and Austin

Bentham's utilitarian theories remained dominant in law till 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".[17] Contemporary legal positivists have long abandoned this view, and have criticised its oversimplification, H.L.A. Hart particularly.

Hans Kelsen

Hans Kelsen

Main article: Hans Kelsen

Hans Kelsen is considered one of the preeminent jurists of the 20th century. He is most influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. Kelsen's pure theory of law described the law as being a set of social facts, which are normatively binding too. Law's normativity, meaning that we must obey it, derives from a basic rule which sits outside the law we can alter. It is a rule proscribing the validity of all others.

Kelsen was a Professor at several universities in Europe, notably the University of Vienna and the University of Cologne. In 1940, he moved to the United States, giving the Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations.

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.[18] As the chair of jurisprudence at Oxford University, Hart argued 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[2] 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, 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.[19] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.[20]

Ronald Dworkin

Ronald Dworkin sought a theory of law which would justify judges' ability to strike down democratically decided laws.

Ronald Dworkin is a leading philosopher. In his book 'Law's Empire'[21] 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. But of those interpretations that fit, 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

Oliver Wendell Holmes was a self-defined legal realist

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.[22] The chief inspiration for Scandinavian legal realism many consider to be the works of Axel Hägerström. Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, and law and economics.

The 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, [23] 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."[24] The philosopher Immanuel Kant formulated one influential deontological theory of law. He believed that morality is what if I do, would be good for everyone to do. 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. 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.[25] In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.

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' 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.

References

  1. ^ Shellens, "Aristotle on Natural Law."
  2. ^ Jaffa, Thomism and Aristotelianism.
  3. ^ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
  4. ^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
  5. ^ Nicomachean Ethics, Bk. V, ch. 6–7.
  6. ^ Politics, Bk. III, ch. 16.
  7. ^ Rhetoric 1373b2–8.
  8. ^ Shellens, "Aristotle on Natural Law," 75–81
  9. ^ "Natural Law," International Encyclopedia of the Social Sciences.
  10. ^ On the Sources of Islamic Law and Practices, The Journal of law and religion [0748-0814] Souaiaia yr:2005 vol:20 iss:1 pg:123
  11. ^ Wael B. Hallaq (1993), Ibn Taymiyya Against the Greek Logicians, p. 48. Oxford University Press, ISBN 0198240430.
  12. ^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995).
  13. ^ Summa, Q94a2.
  14. ^ Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
  15. ^ See H L A Hart, 'Positivism and the Separation of Law and Morals' (1958) 71 Harv. L. Rev. 593
  16. ^ David Hume, A Treatise of Human Nature (1739)
  17. ^ John Austin, The Providence of Jurisprudence Determined (1831)
  18. ^ H.L.A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8
  19. ^ Joseph Raz, The Authority of Law (1979) Oxford University Press
  20. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
  21. ^ Ronald Dworkin, Law's Empire (1986) Harvard University Press
  22. ^ “Jurisprudence”. West’s Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005.
  23. ^ Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
  24. ^ Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
  25. ^ see, Utilitarianism at Metalibri Digital Library

Further reading

See also

External links

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