Jurisprudence

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This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case.

jurisprudence

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: 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 , [25] 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. The effort to inform jurisprudence systematically with sociological insights developed strongly from the beginning of the twentieth century, as sociology began to establish itself as a distinct social science, especially in the United States and in continental Europe.

In Germany the work of the 'free law' theorists e. Ernst Fuchs, Hermann Kantorowicz and Eugen Ehrlich encouraged the use of sociological insights in judicial development of law and juristic theory. The most internationally influential advocacy of a 'sociological jurisprudence' occurred in the United States, where Roscoe Pound , for many years the Dean of Harvard Law School, used this term to characterise his legal philosophy throughout the first half of the twentieth century. In the United States many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence.

In Australia, Julius Stone strongly defended and developed Pound's ideas.

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In the s a significant split between the sociological jurists and the American legal realists emerged. In the second half of the twentieth century sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy but with increasing criticism of dominant orientations of Anglophone legal philosophy in the present century it has attracted renewed interest.

Positivism simply means that law is something that is "posited": 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.

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 strong 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 Austin's utilitarian answer to "what is law?

Hans Kelsen is considered one of the prominent 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.

In the Anglophone world, the pivotal writer was H. 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.

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.

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The "rule of recognition" is a customary practice of the officials especially barristers and judges that identifies certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil MacCormick [28] in second edition due in , 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 , 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.

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. Any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence.

Jurisprudence

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 and sociological jurisprudence. 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.

Karl Llewellyn, another founder of the U. Despite its decline in popularity, realism continues to influence a wide spectrum of jurisprudential schools today, including critical legal studies , feminist legal theory , critical race theory , sociology of law and law and economics. Critical legal studies are a younger theory of jurisprudence that has developed since the s. It can be generally traced to American legal realism and is considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective".

Karl Popper originated the theory of critical rationalism. According to Reinhold Zippelius many advances in law and jurisprudence take place by operations of critical rationalism. Contemporary philosopher of law Ronald Dworkin has advocated a more constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.

He argues that law is an 'interpretive' concept, that requires barristers 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.

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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 integrity theory of law , has two dimensions.

To count as an interpretation, the reading of a text must meet the criterion of fit. Of those interpretations that fit, however, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be. But many writers have doubted whether there is a single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that community.

Consequences from the operation of legal rules or legal procedures—or from the behavior of legal actors such as lawyers and judges —may be either beneficial therapeutic or harmful anti-therapeutic to people. Therapeutic jurisprudence "TJ" studies law as a social force or agent and uses social science methods and data to study the extent to which a legal rule or practice affects the psychological well-being of the people it affects.

In addition to the question, "What is 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 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.

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 is "the theory of duty or moral obligation.

He argued that any rule we follow must be able to be universally applied, i. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin. 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 philosopher Jeremy Bentham.

Jurisprudence

John Stuart Mill was a pupil of Bentham's and was the torch bearer for utilitarian philosophy through the late nineteenth century. 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.

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.

From Wikipedia, the free encyclopedia. For the "jurisprudence" of courts, see Case law. For the book by H. Hart, see The Concept of Law. This article has multiple issues. Please help improve it or discuss these issues on the talk page. Learn how and when to remove these template messages. This article may require copy editing for conciseness, neutrality, and verification. You can assist by editing it. June Learn how and when to remove this template message. This article possibly contains original research. Please improve it by verifying the claims made and adding inline citations.

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