Jurisprudence is the theory In philosophy, theory refers to contemplation or speculation, as opposed to action. Theory is especially often contrasted to "practice" (Greek praxis, πρᾶξις) which is a concept that in its original Aristotelian context referred to actions done for their own sake. The other type of actions are those "technical" ones done and philosophy Philosophy is the study of general and fundamental problems concerning matters such as existence, knowledge, values, reason, mind, and language. It is distinguished from other ways of addressing fundamental questions by its critical, generally systematic approach and its reliance on rational argument. The word "philosophy" comes from the 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 The three major legal systems of the world today consist of civil law, common law and religious law. However, each country often develops variations on each system or incorporates many other features into the system and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law Natural law or the law of nature has been described as a law whose content is set by nature and that therefore has validity everywhere. As classically used, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. The phrase natural law is opposed to the positive law (which is man-made) of a given, civil law, and the law of nations Public international law concerns the structure and conduct of sovereign states, analogous entities, such as the Holy See, and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond domestic legal interpretation and enforcement.[1] General Jurisprudence can be broken into categories both by the types of questions scholars seek to address and by the theories of jurisprudence or schools of thought regarding how those questions are best to be answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:[2]

Answers to these questions come from four primary schools of thought in general jurisprudence:[2]

Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin Ronald Dworkin, QC, FBA is an American philosopher of law and scholar of constitutional law. He is Jeremy Bentham Professor of Law and Philosophy at University College London, Frank Henry Sommer Professor of Law at New York University, and has taught previously at Yale Law School and the University of Oxford. An influential contributor to both 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 In grammar, the genitive case is the case that marks a noun as modifying another noun. It often marks a noun as being the possessor of another noun but it can also indicate various relationships other than possession; certain verbs may take arguments in the genitive case; and it may have adverbial uses (see Adverbial genitive). Modern English does form of jus meaning "law", and prudentia means "knowledge". 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.

Contents

History of jurisprudence

The Central Criminal Court of England and Wales at the Old Bailey The Central Criminal Court in England, commonly known as the Old Bailey from the street in which it stands, is a court building in central London, one of a number of buildings housing the Crown Court. The Crown Court sitting at the Central Criminal Court deals with major criminal cases from Greater London and, in exceptional cases, from other

Jurisprudence already had this meaning in Ancient Rome Ancient Rome was a civilization that grew out of a small agricultural community founded on the Italian Peninsula as early as the 10th century BC. Located along the Mediterranean Sea, it became one of the largest empires in the ancient world even if at its origins the discipline was a (periti) in the jus of mos maiorum Mos Maiorum, literally translated as the “custom of the fathers/ancestors,” is the core concept of Roman traditionalism. The mos maiorum , was an unwritten code from which the Romans derived their societal norms. These customs were distinct from the laws that would be recorded in writing. Because positive law regulated few aspects of Roman (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. A 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.

In ancient Indian vedic society, the law or Dharma, as followed by Hindus was interpreted by use of "Manu Smrti"- a set of poems which defined sin and the remedies.They were said to be written between 200 BC- 200 AD. In fact, these were not codes of law but norms related to social obligations and ritual requirements of the era.

Under the Roman Empire The Roman Empire was the post-Republican phase of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean. The term is used to describe the Roman state during and after the time of the first emperor, Augustus, 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.

After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Byzantine Empire The Byzantine Empire was the Roman Empire as it existed during the Middle Ages, centered on the capital of Constantinople, and ruled by the Byzantine emperors, direct successors to the ancient Roman emperors. It was called the Roman Empire and also Romania (Greek: Ῥωμανία, Rhōmanía) by its inhabitants and neighbours. As the distinction (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian Flavius Petrus Sabbatius Iustinianus ; AD 483 – 13 or 14 November 565, known in English as Justinian I or Justinian the Great, was the second member of the Justinian Dynasty (after his uncle, Justin I) and Eastern Roman Emperor from 527 until his death. During his reign, Justinian sought to revive the greatness of the classical Roman Empire's Corpus Juris Civilis The Corpus Juris Civilis ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor. It is also referred to as the Code of Justinian was born.

Natural law

Main article: Natural law Natural law or the law of nature has been described as a law whose content is set by nature and that therefore has validity everywhere. As classically used, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. The phrase natural law is opposed to the positive law (which is man-made) of a given

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 John Finnis , is an Australian philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical Thomist Thomism is the philosophical school that arose as a legacy of the work and thought of St. Thomas Aquinas, a devout Catholic priest. The word comes from the name of its originator, whose Summa Theologica was one of the most influential documents in medieval philosophy and continues to be studied today in philosophy classes. In the encyclical position.

Aristotle

Aristotle Aristotle (384 BC – 322 BC) was a Greek philosopher, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, politics, government, ethics, biology, and zoology. Together with Plato and Socrates (Plato's teacher), Aristotle is one of the most, by Francesco Hayez Francesco Hayez was an Italian painter, the leading artist of Romanticism in mid-19th-century Milan, renowned for his grand historical paintings, political allegories and exceptionally fine portraits Main article: Aristotle Aristotle (384 BC – 322 BC) was a Greek philosopher, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, politics, government, ethics, biology, and zoology. Together with Plato and Socrates (Plato's teacher), Aristotle is one of the most

Aristotle is often said to be the father of natural law.[7] Like his philosophical forefathers, Socrates Socrates was a Classical Greek philosopher. Credited as one of the founders of Western philosophy, he is an enigmatic figure known chiefly through the accounts of later classical writers, especially the writings of his students Plato and Xenophon, and the plays of his contemporary Aristophanes. Many would claim that Plato's dialogues are the most and Plato Plato , was a Classical Greek philosopher, mathematician, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the foundations of Western philosophy and science. Plato was originally a, Aristotle Aristotle (384 BC – 322 BC) was a Greek philosopher, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, politics, government, ethics, biology, and zoology. Together with Plato and Socrates (Plato's teacher), Aristotle is one of the most posited the existence of natural justice Natural justice or procedural fairness is a legal philosophy used in some jurisdictions in the determination of just, or fair, processes in legal proceedings. The concept is very closely related to the principle of natural law which has been applied as a philosophical and practical principle in the law in several common law jurisdictions, or natural right (dikaion physikon, δικαίον φυσικόν, Latin Latin or sometimes Roman is an Italic language originally spoken in Latium and Ancient Rome. Although often considered a dead language, in view of the fact that it has no native, fluent speakers, Latin continues to be taught in schools and has been, and currently is, used in the process of new word production in modern languages from many ius naturale). His association with natural law is due largely to the interpretation given to him by Thomas Aquinas Saint Thomas Aquinas, O.P. was an Italian priest of the Catholic Church in the Dominican Order, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus and Doctor Communis. He is frequently referred to as Thomas because "Aquinas" refers to his residence rather than his surname.[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 Nicomachean Ethics is the name normally given to Aristotle's most well-known work on ethics (= Book IV of the Eudemian Ethics The Eudemian Ethics is a work of philosophy by Aristotle. Its primary focus is on Ethics. It is named for Eudemus of Rhodes, a pupil of Aristotle who may also have had a hand in editing the final work. Unlike the Magna Moralia, also called the Great Ethics, thought to be a summation written by Aristotle's followers, the Eudemian Ethics is). 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.[15] 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.[16] 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 here 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 Aristotle's Rhetoric is an ancient Greek treatise on the art of persuasion, dating from the fourth century BC. In Greek, it is titled ΤΕΧΝΗΣ ΡΗΤΟΡΙΚΗΣ, in Latin Ars Rhetorica. In English, its title varies: typically it is titled the Rhetoric, the Art of Rhetoric, or a Treatise on 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.[17] 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 adverse to the case being made, not that there actually was such a law;[18] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong.[19] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.[citation needed]

Sharia and Fiqh in Islam

The first Sura Al-Fatiha is the first chapter of the Muslim holy book, the Qur'an. Its seven verses are a prayer for God's guidance, and stress His lordship and mercy. This chapter has an essential role in daily prayers; Muslims recite the Surah Al-Fatiha seventeen times a day, at the start of each unit of prayer sura A Surah is a chapter of the Qur'an.There are 114 Surah in the Qur'an. The shortest Surah (Al-Kawthar) has only three ayah (verses) while the longest (Al-Baqara) contains 287 ayah (verses) in a Qur'anic manuscript by Hattat Aziz Efendi Hattat Aziz Efendi (Ottoman Turkish: خطاط عزیز افندی) was an Ottoman calligrapher. Main articles: Sharia Sharia is the sacred law of Islam. All Muslims believe Sharia is God's law, but they have differences between themselves as to exactly what it entails. Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries and cultures have and Fiqh Fiqh is Islamic jurisprudence. Fiqh is an expansion of the Sharia Islamic law—based directly on the Quran and Sunnah—that complements Shariah with evolving rulings/interpretations of Islamic jurists

Sharia (شَرِيعَةٌ) refers to the body of Islamic Islam (Arabic: الإسلام‎ al-’islām, pronounced [ʔislæːm] [note 1]) is the monotheistic religion articulated by the Qur’an, a text considered by its adherents to be the verbatim word of their one, incomparable God (Arabic: الله‎, Allāh), and by the Prophet of Islam Muhammad's teachings and normative example (in Arabic called law Law is a system of rules, usually enforced through a set of institutions. Laws can shape or reflect politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and. 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 Islam (Arabic: الإسلام‎ al-’islām, pronounced [ʔislæːm] [note 1]) is the monotheistic religion articulated by the Qur’an, a text considered by its adherents to be the verbatim word of their one, incomparable God (Arabic: الله‎, Allāh), and by the Prophet of Islam Muhammad's teachings and normative example (in Arabic called 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 this cannot be assured.[20]

Early forms of logic in Islamic philosophy Logic played an important role in Islamic philosophy. Islamic law and jurisprudence placed importance on formulating standards of argument, which gave rise to a novel approach to logic in Kalam, as seen in the method of qiyas. This approach, however, was later displaced to some extent by ideas from ancient Greek and Hellenistic philosophy with the were introduced in Islamic jurisprudence from the 7th century with the process of Qiyas In Sunni Islamic jurisprudence, the qiyas is the process of analogical reasoning in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, i.e., in order to make an analogy with a known injunction (nass) to a new injunction. As a result of this method, the ruling of the Sunnah and the Qur'an may be used as a means. During the Islamic Golden Age The Islamic Golden Age is traditionally dated from the mid-8th to the mid-13th century A.D. although it has been extended by one scholar to at least the 15th century. During this period, artists, engineers, scholars, poets, philosophers, geographers and traders in the Islamic world contributed to agriculture, the arts, economics, industry, law,, there was a logical debate among Islamic philosophers Early Islamic philosophy or classical Islamic philosophy is a period of intense philosophical development beginning in the 2nd century AH of the Islamic calendar and lasting until the 6th century AH (late 12th century CE). The period is known as the Islamic Golden Age, and the achievements of this period had a crucial influence in the development and jurists Ulama , also spelt ulema, refers to the educated class of Muslim legal scholars engaged in the several fields of Islamic studies. They are best known as the arbiters of shari‘a law. While the ulama are well versed in legal jurisprudence being Islamic lawyers, some of them also go on to specialize in other fields, such as philosophy, dialectical whether the term Qiyas refers to analogical reasoning Analogy is a cognitive process of transferring information from a particular subject to another particular subject (the target), and a linguistic expression corresponding to such a process. In a narrower sense, analogy is an inference or an argument from one particular to another particular, as opposed to deduction, induction, and abduction, where, inductive reasoning Inductive reasoning, also known as induction or inductive logic, is a type of reasoning that involves moving from a set of specific facts to a general conclusion. It uses premises from objects that have been examined to establish a conclusion about an object that has not been examined. It can also be seen as a form of theory-building, in which or categorical syllogism A syllogism or logical appeal is a kind of logical argument in which one proposition (the conclusion) is inferred from two others (the premises) of a certain form. 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.[21]

Thomas Aquinas

Thomas Aquinas was the most important Western medieval 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.[22] 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 . . .[23]

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 law as specially revealed in the scriptures and teachings of the apostles.

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[24] 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

Hume made the famous is-ought distinction Main article: 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.[25] David Hume famously argued in A Treatise of Human Nature[26] 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 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.

Bentham and Austin

Bentham's utilitarian theories remained dominant in law till the twentieth century 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".[27] 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.[28] 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 [29] 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.[30] 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.[31]

Ronald Dworkin

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

In his book Law's Empire[32] 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.[33] 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, sociology of law and law and economics.

The 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, [34] 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

Plato (left) and Aristotle (right), a detail of The School of Athens 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

Kant was a pre-eminent Enlightenment thinker Main article: Deontological ethics

Deontology is "the theory of duty or moral obligation."[35] The philosopher Immanuel Kant formulated one influential deontological theory of law. He argued that any rule we follow must be universalisable: we must be willing to will 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.[36] 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' 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.

See also

General

Philosopher A-Z

References

  1. ^ “Jurisprudence”, Black's Law Dictionary
  2. ^ a b c Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
  3. ^ Soper, "Legal Positivism", Cambridge Dictionary of Philosophy
  4. ^ Moore, “Critical Legal Studies", Cambridge Dictionary of Philosophy
  5. ^ Brooks, “Review of Dworkin and His Critics with Replies by Dworkin”, Modern Law Review, Vol. 69 No. 6
  6. ^ Oxford English Dictionary, 2nd edition 1989
  7. ^ Shellens, "Aristotle on Natural Law."
  8. ^ Jaffa, Thomism and Aristotelianism.
  9. ^ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
  10. ^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
  11. ^ "Nicomachean Ethics" Bk. II ch. 6
  12. ^ Terrence Irwin, trans. Nicomachean Ethics, 2nd Ed., Hackett Publishing
  13. ^ Nicomachean Ethics, Bk. V, ch. 3
  14. ^ "Nicomachean Ethics", Bk. V, ch. 1
  15. ^ Nicomachean Ethics, Bk. V, ch. 3
  16. ^ Nicomachean Ethics, Bk. V, ch. 7.
  17. ^ Rhetoric 1373b2–8.
  18. ^ Shellens, "Aristotle on Natural Law," 75–81
  19. ^ "Natural Law," International Encyclopedia of the Social Sciences.
  20. ^ 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
  21. ^ Wael B. Hallaq (1993), Ibn Taymiyya Against the Greek Logicians, p. 48. Oxford University Press, ISBN 0-19-824043-0.
  22. ^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995).
  23. ^ Summa, Q94a2.
  24. ^ Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
  25. ^ See H L A Hart, 'Positivism and the Separation of Law and Morals' (1958) 71 Harv. L. Rev. 593
  26. ^ David Hume, A Treatise of Human Nature (1739) Etext
  27. ^ John Austin, The Providence of Jurisprudence Determined (1831)
  28. ^ H. L. A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8
  29. ^ The University of Edinburgh
  30. ^ Joseph Raz, The Authority of Law (1979) Oxford University Press
  31. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
  32. ^ Ronald Dworkin, Law's Empire (1986) Harvard University Press
  33. ^ “Jurisprudence”. West’s Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005.
  34. ^ Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
  35. ^ Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
  36. ^ see, Utilitarianism at Metalibri Digital Library

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