Jurisprudence is
the theory and philosophy of law. Scholars of jurisprudence, or legal theorists
(including legal philosophers and social theorists of law), hope to obtain a
deeper understanding of the nature of law, of legal reasoning, legal systems
and of legal institutions. Modern jurisprudence began in the 18th century and
was focused on the first principles of the natural law, civil law, and the law
of nations.[1] General jurisprudence can be broken into categories both by the
type of question scholars seek to answer and by the theories of jurisprudence,
or schools of thought, regarding how those questions are best answered.
Contemporary philosophy of law, which deals with general jurisprudence,
addresses problems in two rough groups:[2]
1.) Problems
internal to law and legal systems as such.
2.) Problems of
law as a particular social institution as it relates to the larger political
and social situation in which it exists.
Answers to these
questions come from four primary schools of thought in general
jurisprudence:[2]
Natural law is
the idea that there are rational objective limits to the power of legislative
rulers. The foundations of law are accessible through human reason and it is
from these laws of nature that human-created laws gain whatever force they
have.[2]
Legal positivism,
by contrast to natural law, holds that there is no necessary connection between
law and morality and that the force of law comes from some basic social facts
although positivists differ on what those facts are.[3]
Legal realism is
a third theory of jurisprudence which argues that the real world practice of
law is what determines what law is; the law has the force that it does because
of what legislators, judges, and executives do with it. Similar approaches have
been developed in many different ways in sociology of law.
Critical legal
studies is a younger theory of jurisprudence that has developed since the 1970s
which is primarily a negative thesis that the law is largely contradictory and
can be best analyzed as an expression of the policy goals of the dominant
social group.[4]
Also of note is
the work of the contemporary Philosopher of Law Ronald Dworkin who has
advocated a constructivist theory of jurisprudence that can be characterized as
a middle path between natural law theories and positivist theories of general
jurisprudence.[5]
The English term
is based on the Latin word jurisprudentia: juris is the genitive form of jus
meaning "law", and prudentia means "prudence" (also:
discretion, foresight, forethought, circumspection; refers to the exercise of
good judgment, common sense, and even caution, especially in the conduct of
practical matters). The word is first attested in English in 1628,[6] at a time
when the word prudence had the now obsolete meaning of "knowledge of or
skill in a matter". The word may have come via the French jurisprudence,
which is attested earlier.
History of jurisprudence
Jurisprudence already had this meaning in
Ancient Rome even if at its origins the discipline was a (periti) in the jus of
mos maiorum (traditional law), a body of oral laws and customs verbally
transmitted "by father to son". Praetors established a workable body
of laws by judging whether or not singular cases were capable of being
prosecuted either by the edicta, the annual pronunciation of prosecutable
offense, or in extraordinary situations, additions made to the edicta. An iudex
then would judge a remedy according to the facts of the case.
Their sentences were supposed to be simple
interpretations of the traditional customs, but effectively it was an activity
that, apart from formally reconsidering for each case what precisely was
traditionally in the legal habits, soon turned also to a more equitable interpretation,
coherently adapting the law to the newer social instances. The law was then
implemented with new evolutive Institutiones (legal concepts), while remaining
in the traditional scheme. Praetors were replaced in 3rd century BC by a laical
body of prudentes. Admission to this body was conditional upon proof of
competence or experience.
Under the Roman Empire, schools of law were
created, and the activity constantly became more academic. In the age from the
early Roman Empire to the 3rd century, a relevant literature was produced by
some notable groups including the Proculians and Sabinians. The scientific
depth of the studies was unprecedented in ancient times.
After the 3rd century, Juris prudentia became
a more bureaucratic activity, with few notable authors. It was during the
Eastern Roman Empire (5th century) that legal studies were once again
undertaken in depth, and it is from this cultural movement that Justinian's
Corpus Juris Civilis was born.
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.[citation needed] 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.
Natural law
Natural law theory asserts that there are laws
that are immanent in nature, to which enacted laws should correspond as closely
as possible. This view is frequently summarised by the maxim an unjust law is
not a true law, lex iniusta non est lex, in which 'unjust' is defined as
contrary to natural law. Natural law is closely associated with morality and,
in historically influential versions, with the intentions of God. To
oversimplify its concepts somewhat, natural law theory attempts to identify a
moral compass to guide the lawmaking power of the state and to promote 'the
good'. Notions of an objective moral order, external to human legal systems,
underlie natural law. What is right or wrong can vary according to the
interests one is focused upon. Natural law is sometimes identified with the
maxim that "an unjust law is no law at all", but as John Finnis, the
most important of modern natural lawyers has argued, this maxim is a poor guide
to the classical Thomist position.
Aristotle
Aristotle is often said to be the father of
natural law.[7] Like his philosophical forefathers, Socrates and Plato,
Aristotle posited the existence of natural justice or natural right (dikaion
physikon, δικαίον φυσικόν, Latin ius naturale). His association with natural
law is due largely to the interpretation given to him by Thomas Aquinas.[8]
This was based on Aquinas' conflation of natural law and natural right, the
latter of which Aristotle posits in Book V of the Nicomachean Ethics (= Book IV
of the Eudemian Ethics). Aquinas's influence was such as to affect a number of
early translations of these passages,[9] though more recent translations render
them more literally.[10]
Aristotle's theory of justice is bound up in
his idea of the golden mean. Indeed his treatment of what he calls
"political justice" derives from his discussion of "the
just" as a moral virtue derived as the mean between opposing vices, just
like every other virtue he describes.[11] His longest discussion of his theory
of justice occurs in Nicomachean Ethics and begins by asking what sort of mean
a just act is. He argues that the term "justice" actually refers to
two different but related ideas: general justice and particular
justice.[12][13] When a person's actions are completely virtuous in all matters
in relation to others, Aristotle calls her "just" in the sense of
"general justice;" as such this idea of justice is more or less
coextensive with virtue.[14] "Particular" or "Partial
justice", by contrast, is the part of "general justice" or the
individual virtue that is concerned with treating others equitably.[13]
Aristotle moves from this unqualified discussion of justice to a qualified view
of political justice, by which he means something close to the subject of
modern jurisprudence. Of political justice, Aristotle argues that it is partly
derived from nature and partly a matter of convention.[15] This can be taken as
a statement that is similar to the views of modern natural law theorists. But
it must also be remembered that Aristotle is describing a view of morality, not
a system of law, and therefore his remarks as to nature 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, where Aristotle notes
that, aside from the "particular" laws that each people has set up
for itself, there is a "common" law that is according to nature.[16]
The context of this remark, however, suggests only that Aristotle 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;[17] Aristotle, moreover,
considered two of the three candidates for a universally valid, natural law
suggested in this passage to be wrong.[18] Aristotle's theoretical paternity of
the natural law tradition is consequently disputed.
Thomas Aquinas
Saint Thomas Aquinas [Thomas of Aquin, or
Aquino] (c. 1225 – 7 March 1274) was a philosopher and theologian in the
scholastic tradition, known as "Doctor Angelicus, Doctor
Universalis". He is the foremost classical proponent of natural theology,
and the father of the Thomistic school of philosophy, for a long time the
primary philosophical approach of the Roman Catholic Church. The work for which
he is best-known is the Summa Theologica. One of the thirty-three Doctors of
the Church, he is considered by many Catholics to be the Church's greatest
theologian. Consequently, many institutions of learning have been named after
him.
Aquinas distinguished four kinds of law:
eternal, natural, human and divine. Eternal law refers to divine reason, known
only to God, God's plan for the universe; man needs this, without which he
would totally lack direction. Natural law is the human
"participation" in the eternal law in rational creatures and is
discovered by reason. Divine law is revealed in the scriptures and is Gods
positive law for mankind. Human law is supported by reason and enacted for the
common good.[19] Natural law, of course, is based on "first
principles":
. . . this is the first precept of the law,
that good is to be done and promoted, and evil is to be avoided. All other
precepts of the natural law are based on this . . .[20]
The desires to live and to procreate are
counted by Aquinas among those basic (natural) human values on which all other
human values are based.
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[21] and
believed that the law gained peoples' tacit consent. He believed that society
was formed from a state of nature to protect people from the state of war
between mankind that exists otherwise. Life is, without an ordered society,
"solitary, poor, nasty, brutish and short". It is commonly commented
that Hobbes' views about the core of human nature were influenced by his times.
The English Civil War and the Cromwellian dictatorship had taken place, and he
felt absolute authority vested in a monarch, whose subjects obeyed the law, was
the basis of a civilized society.
Lon Fuller
Writing after World War II, Lon L. Fuller
notably emphasised that the law must meet certain formal requirements (such as
being impartial and publicly knowable). To the extent that an institutional
system of social control falls short of these requirements, Fuller argues, we
are less inclined to recognise it as a system of law, or to give it our
respect. Thus, law has an internal morality that goes beyond the social rules
by which valid laws are made.
John Finnis
Sophisticated positivist and natural law
theories sometimes resemble each other more than the above descriptions might
suggest, and they may concede certain points to the other "side".
Identifying a particular theorist as a positivist or a natural law theorist
sometimes involves matters of emphasis and degree, and the particular
influences on the theorist's work. In particular, the older natural lawyers,
such as Aquinas and John Locke made no distinction between analytic and
normative jurisprudence. But modern natural lawyers, such as John Finnis claim
to be positivists, while still arguing that law is a basically moral creature.
Sharia and Fiqh in Islam
Sharia (شَرِيعَةٌ) refers to the
body of Islamic law. The term means "way" or "path"; it is
the legal framework within which public and most private aspects of life are
regulated for those living in a legal system based on Islamic principles of
jurisprudence. Fiqh is the term for Islamic jurisprudence, made up of the
rulings of Islamic jurists. A component of Islamic studies, Fiqh expounds the
methodology by which Islamic law is derived from primary and secondary sources.
Mainstream Islam 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.[22]
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.[23]
Analytic jurisprudence
Analytic, or 'clarificatory', jurisprudence
means the use of a neutral point of view and descriptive language when
referring to the aspects of legal systems. This was a philosophical development
that rejected natural law's fusing of what law is and what it ought to be.[24]
David Hume famously argued in A Treatise of Human Nature[25] that people
invariably slip between describing that the world is a certain way to saying
therefore we ought to conclude on a particular course of action. But as a
matter of pure logic, one cannot conclude that we ought to do something merely
because something is the case. So analysing and clarifying the way the world is
must be treated as a strictly separate question to normative and evaluative
ought questions.
The most important questions of analytic
jurisprudence are: "What are laws?"; "What is the law?";
"What is the relationship between law and power/sociology?"; and
"What is the relationship between law and morality?" Legal positivism
is the dominant theory, although there are a growing number of critics, who
offer their own interpretations.
Legal positivists
Positivism simply means that law is something
that is "posited": laws are validly made in accordance with socially
accepted rules. The positivist view on law can be seen to cover two broad
principles: Firstly, that laws may seek to enforce justice, morality, or any
other normative end, but their success or failure in doing so does not
determine their validity. Provided a law is properly formed, in accordance with
the rules recognized in the society concerned, it is a valid law, regardless of
whether it is just by some other standard. Secondly, that law is nothing more
than a set of rules to provide order and governance of society. No legal
positivist, however, argues that it follows that the law is therefore to be
obeyed, no matter what. This is seen as a separate question entirely.
What the law is - is determined by historical
social practice (resulting in rules)
What the law ought to be" - is determined
by moral considerations.
Bentham and Austin
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".[26] Contemporary
legal positivists have long abandoned this view, and have criticised its
oversimplification, H. L. A. Hart particularly.
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
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.[27] As the professor of jurisprudence at Oxford University,
Hart argued that law is a 'system of rules'.
Rules, said Hart, are divided into primary
rules (rules of conduct) and secondary rules (rules addressed to officials to
administer primary rules). Secondary rules are divided into rules of
adjudication (to resolve legal disputes), rules of change (allowing laws to be
varied) and the rule of recognition (allowing laws to be identified as valid).
The "rule of recognition", a customary practice of the officials
(especially judges) that identifies certain acts and decisions as sources of
law. A pivotal book on Hart was written by Neil MacCormick [28] in 1981 (second
edition due in 2007), which further refined and offered some important
criticisms that led MacCormick to develop his own theory (the best example of
which is his recently published Institutions of Law, 2007). Other important
critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz.
In recent years, debates about the nature of
law have become increasingly fine-grained. One important debate is within legal
positivism. One school is sometimes called exclusive legal positivism, and it
is associated with the view that the legal validity of a norm can never depend
on its moral correctness. A second school is labeled inclusive legal
positivism, a major proponent of which is Wil Waluchow, and it is associated
with the view that moral considerations may determine the legal validity of a
norm, but that it is not necessary that this is the case.
Joseph Raz
Some philosophers used to contend that
positivism was the theory that there is "no necessary connection"
between law and morality; but influential contemporary positivists, including
Joseph Raz, John Gardner, and Leslie Green, reject that view. As Raz points
out, it is a necessary truth that there are vices that a legal system cannot
possibly have (for example, it cannot commit rape or murder).
Joseph Raz defends the positivist outlook, but
criticised Hart's "soft social thesis" approach in The Authority of
Law.[29] 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.[30]
Ronald Dworkin
In his book Law's Empire[31] 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
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.[32] 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, feminist legal theory, critical race
theory, sociology of law and law and economics.
Historical School
Historical jurisprudence came to prominence
during the German debate over the proposed codification of German law. In his
book On the Vocation of Our Age for Legislation and Jurisprudence,[33]
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
Deontology is "the theory of duty or
moral obligation."[34] 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
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.[35] In contemporary legal theory, the utilitarian
approach is frequently championed by scholars who work in the law and economics
tradition. Also see Lysander Spooner
John Rawls
John Rawls was an American philosopher, a
professor of political philosophy at Harvard University and author of A Theory
of Justice (1971), Political Liberalism, Justice as Fairness: A Restatement,
and The Law of Peoples. He is widely considered one of the most important
English-language political philosophers of the 20th century. His theory of
justice uses a device called the original position to ask us which principles
of justice we would choose to regulate the basic institutions of our society if
we were behind a 'veil of ignorance.' Imagine we do not know who we are - our
race, sex, wealth status, class, or any distinguishing feature - so that we
would not be biased in our own favour. Rawls argues from this 'original
position' that we would choose exactly the same political liberties for
everyone, like freedom of speech, the right to vote and so on. Also, we would
choose a system where there is only inequality because that produces incentives
enough for the economic well-being of all society, especially the poorest. This
is Rawls's famous 'difference principle'. Justice is fairness, in the sense
that the fairness of the original position of choice guarantees the fairness of
the principles chosen in that position.
There are many other normative approaches to
the philosophy of law, including critical legal studies and libertarian
theories of law.
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