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For the "jurisprudence" of courts, see Case law. Case law' (also known as decisional law or judicial precedent) is that body of reported Judicial opinions in countries that have Common law

Jurisprudence is the theory and philosophy of law. The word theory has many distinct meanings in different fields of Knowledge, depending on their methodologies and the context of discussion. Philosophy is the study of general problems concerning matters such as existence knowledge truth beauty justice validity mind and language Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society 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. The three major legal systems of the world today consist of civil law, Common law and Religious law. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:

Natural law
The idea that there are unchangeable laws of nature which govern us, and that our institutions should try to match this natural law.
Analytic jurisprudence
Asking questions 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
Asking what law ought to be. It overlaps with moral and 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. Political philosophy is the study of questions about the City, Government, Politics, Liberty, Justice, Property, Rights

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.

Contents

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
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"). 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 The College of Pontiffs or Collegium Pontificum ( Collegium in Latin means a board or committee rather than an educational institution was a body of the An oral law is a Code of conduct in use in a given Culture, Religion or community application by which a body of rules of human behaviour is transmitted Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases. In Law, a sentence forms the final act of a Judge -ruled process and also the symbolic principal act connected to his function

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. The Roman Republic was the phase of the ancient Roman civilization characterized by a Republican form of government a period which began with the overthrow of the 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 Roman Empire was the post-Republican phase of the ancient Roman civilization, characterised by an autocratic form of government and large territorial Members of one of the two important schools of Law in Rome during the 1st and 2nd centuries CE 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. Art refers to a diverse range of Human activities creations and expressions that are appealing to the Senses or Emotions of a human individual

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. Flavius Petrus Sabbatius Iustinianus ( Greek: Φλάβιος Πέτρος Σαββάτιος Ιουστινιανός; known in English as Justinian I or The Corpus Juris Civilis ("Body of Civil Law" is the modern name for a collection of fundamental works in Jurisprudence, issued from 529

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. Natural law or the law of nature ( Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by Nature and that 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. 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. John Finnis (born 1940 is an Australian philosopher specializing in the Philosophy of law. Thomism is the philosophical school that arose as a legacy of the work and thought of Thomas Aquinas.

Aristotle

Aristotle, by Francesco Hayez
Aristotle, by Francesco Hayez
Main article: Aristotle

Aristotle is often said to be the father of natural law. Aristotle (Greek Aristotélēs) (384 BC – 322 BC was a Greek philosopher a student of Plato and teacher of Alexander the Great. [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). SOCRATES is the European Community action programme in the field of Education. Biography Early life Birth and family Plato was born in Athens Greece Aristotle (Greek Aristotélēs) (384 BC – 322 BC was a Greek philosopher a student of Plato and teacher of Alexander the Great. Natural justice or procedural fairness is a legal philosophy used in some jurisdictions in the determination of just or fair, processes in legal proceedings Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. 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). Nicomachean Ethics (sometimes spelled "Nichomachean" or Ta Ethika, is a work by Aristotle on Virtue and Moral character which The Eudemian Ethics (sometimes abbreviated EE in scholarly works is a work of Philosophy by Aristotle. 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. 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 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. Distributive justice concerns what is just or right with respect to the allocation of goods in a society Restorative Justice is commonly known as a Theory of criminal justice that focuses on crime as an act against another individual or community rather than the state [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. Aristotle 's Rhetoric is an ancient Greek treatise on the art of persuasion dating from the fourth century BCE [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

The first sura in a Qur'anic manuscript by Hattat Aziz Efendi.
The first sura in a Qur'anic manuscript by Hattat Aziz Efendi. Sura Al-Fatiha ( سورة الفاتحة, Sūratu al-Fātihah, "The Opening" is the first chapter of the Muslim holy Sura (sometimes spelt "Surah" ar سورة, plural "Suwar" ar سور is an Arabic term literally meaning "something enclosed or surrounded Hattat Aziz Efendi (1871-1934 was an Ottoman calligrapher.
Main articles: Sharia and Fiqh

Sharia (شَرِيعَةٌ) refers to the body of Islamic law. Sharia ( Arabic: ar شريعة) is the body of Islamic Religious law. Fiqh ( Arabic: فقه, fɪqəh is Islamic Jurisprudence. Fiqh is an expansion of the Sharia Islamic law—based directly on the For other meanings including people named 'Islam' see Islam (disambiguation. Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society 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. For other meanings including people named 'Islam' see Islam (disambiguation. 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]

Thomas Aquinas

Thomas Aquinas was the most important Western mediaeval legal scholar
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". Events 161 - Roman Emperor Antoninus Pius dies and is succeeded by co-Emperors Marcus Aurelius and Lucius Verus Philosophy is the study of general problems concerning matters such as existence knowledge truth beauty justice validity mind and language Theology is the study of a god or the gods from a religious perspective Scholasticism was the dominant form of theology and philosophy in the Latin West in the Middle Ages, particularly in the 12th 13th and 14th centuries He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, which was a long the primary philosophical approach of the Roman Catholic Church. Natural theology is a branch of Theology based on Reason and ordinary Experience, explaining the gods rationally as part of the physical world Thomism is the philosophical school that arose as a legacy of the work and thought of Thomas Aquinas. The work for which he is best-known is the Summa Theologica. The Summa Theologica (or the Summa Theologiae or simply the Summa, written 1265 &ndash 1274) is the most famous One of the thirty-three Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Doctor of the Church ( Latin doctor, teacher from Latin docere, to teach is a title given by a variety of Christian Churches to individuals Consequently, many institutions of learning have been named after him. See also Thomas Aquinas Institutions of learning named after Thomas Aquinas include the following

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. Natural law or the law of nature ( Latin: lex naturalis) is a theory that posits the existence of a law whose content is set by Nature and that [11] 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 . . . [12]

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. Positive law is a legal term that is sometimes understood to have more than one meaning Divine law is the specially revealed law in the scriptures.

Thomas Hobbes

Thomas Hobbes was an English Enlightenment scholar
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. Thomas Hobbes (born 5 April 1588died 4 December 1679 was an English philosopher, whose famous 1651 book Leviathan established the foundation Leviathan or The Matter Forme and Power of a Common Wealth Ecclesiasticall and Civil, commonly called Leviathan, is a book written by Thomas A Precept (from the Latin præcipere, to teach is a commandment instruction or order intended as an authoritative rule of action Reason involves the ability to think understand and draw Conclusions in an Abstract way as in Human thinking Hobbes was a social contractarian[13] and believed that the law gained peoples' tacit consent. Social contract describes a broad class of republican theories whose subjects are implied agreements by which people form Nations and maintain a Social order He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. State of nature is a term in Political philosophy used in Social contract theories to describe the hypothetical condition of humanity before the State 's 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. The English Civil War (1642-1651 was a series of armed conflicts and political machinations between Parliamentarians and Royalists.

Lon Fuller

Main article: Lon L. Fuller

Writing after World War II, Lon L. Lon Luvois Fuller (1902–1978 was a noted legal philosopher, who wrote The Morality of Law in 1964 discussing the connection between law and morality World War II, or the Second World War, (often abbreviated WWII) was a global military conflict which involved a majority of the world's nations, including 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 Hart were colleagues at Oxford University. Jurisprudence is the Theory and Philosophy of Law. Scholars of jurisprudence or legal philosophers hope to obtain a deeper understanding of the nature 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. Jurisprudence is the Theory and Philosophy of Law. Scholars of jurisprudence or legal philosophers hope to obtain a deeper understanding of the nature Nazism, which was a short name for National Socialism (Nationalsozialismus refers primarily to the Ideology and practices of the National Socialist German

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". John Finnis (born 1940 is an Australian philosopher specializing in the Philosophy of law. 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
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. In Meta-ethics, the is-ought problem was raised by David Hume ( Scottish Philosopher and Historian, 1711 &ndash Analytical jurisprudence is a Legal theory that draws on the resources of modern Analytical philosophy to try to understand the nature of law This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. [14] David Hume famously argued in A Treatise of Human Nature[1][15] 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. David Hume (26 April 1711 25 August 1776 Scottish Philosopher, Economist, and Historian is an important figure in Western philosophy A Treatise of Human Nature is a book by Scottish philosopher David Hume, first published in 1739 – 1740. 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. Legal positivism is a school of thought in Jurisprudence and the Philosophy of law. 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
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. Jeremy Bentham ( IPA: or) (15 February 1748&ndash6 June 1832 was an English Jurist, Philosopher, and legal and Social reformer John Austin (1790 - 1859 was a noted British Jurist and published extensively concerning the philosophy of law and Jurisprudence. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. David Hume (26 April 1711 25 August 1776 Scottish Philosopher, Economist, and Historian is an important figure in Western philosophy Democracy is a form of government in which the supreme power is held completely by the people under a free electoral system Atheism Bentham's views about law and jurisprudence were popularized by his student, John Austin. John Austin (1790 - 1859 was a noted British Jurist and published extensively concerning the philosophy of law and Jurisprudence. Austin was the first chair of law at the new University of London from 1829. The University of London is a university based primarily in London, England, UK. 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". Utilitarianism is the idea that the moral worth of an action is solely determined by its contribution to overall Utility, that is its contribution to happiness [16] 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. Hans Kelsen ( October 11, 1881 – April 19, 1973) was an Austrian American Jurist. The twentieth century of the Common Era began on He is most influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. Basic norm ( Grundnorm) is a concept created by Hans Kelsen, a Jurist and legal philosopher. It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. The three major legal systems of the world today consist of civil law, Common law and Religious law. Constitutional law is the study of foundational or basic Laws of nation states and other political organizations 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 around Europe, notably the University of Vienna. The University of Vienna (Universität Wien is a Public university located in Vienna, Austria. 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. Year 1940 ( MCMXL) was a Leap year starting on Monday (link will display the full 1940 calendar of the Gregorian calendar. The United States of America —commonly referred to as the Harvard Law School (also known as Harvard Law or HLS) is one of the professional Graduate schools of Harvard University. Year 1942 ( MCMXLII) was a Common year starting on Thursday (the link will display the full 1942 calendar of the Gregorian calendar. Political science is a branch of Social sciences that deals with the theory and practice of Politics and the description and analysis of Political systems The University of California Berkeley (also referred to as Cal, Berkeley and UC Berkeley) is a major research university located in Berkeley Year 1945 ( MCMXLV) was a Common year starting on Monday (link will display the full calendar During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations. International law is the term commonly used for referring to the system of implicit and explicit agreements that bind together nation-states in adherence to recognized values and standards The United Nations ( UN) is an International organization whose stated aims are to facilitate cooperation in International law, International security

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. Herbert Lionel Adolphus Hart (1907-1992 was an influential English-speaking legal philosopher of the twentieth century. Herbert Lionel Adolphus Hart (1907-1992 was an influential English-speaking legal philosopher of the twentieth century. 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 really revived analytical jurisprudence as an important theoretical debate in the twentieth century through his book The Concept of Law. The Concept of Law (ISBN 0-19-876122-8 is the most famous work of the legal philosopher H [17] As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of rules'. The University of Oxford (informally "Oxford University" or simply "Oxford" located in the city of Oxford, Oxfordshire, England is the

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. Ronald Dworkin, QC, FBA (born December 11, 1931) is an American Legal philosopher, currently professor of Jurisprudence John Finnis (born 1940 is an Australian philosopher specializing in the Philosophy of law. Joseph Raz (יוסף רז born 1939) is an influential legal, moral and political Philosopher.

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

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. Joseph Raz (יוסף רז born 1939) is an influential legal, moral and political Philosopher. 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. [18] 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. [19]

Ronald Dworkin

Main articles: Ronald Dworkin and Interpretivism

Ronald Dworkin is a leading philosopher. Ronald Dworkin, QC, FBA (born December 11, 1931) is an American Legal philosopher, currently professor of Jurisprudence In his book 'Law's Empire'[20] 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
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. Legal realism is a family of theories about the nature of Law developed in the first half of the 20th century in the United States ( American Legal Realism 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. Oliver Wendell Holmes Jr ( March 8, 1841 &ndash March 6, 1935) was an American Jurist who served on the Supreme , as the main precursor of American Legal Realism (other influences include Roscoe Pound, Karl Llewellyn and Justice Benjamin Cardozo). Nathan Roscoe Pound ( October 27, 1870 &ndash June 30, 1964) was a distinguished American legal scholar and educator Karl N Llewellyn (1893–1962 was a prominent American jurisprudential scholar associated with the school of Legal realism. Benjamin Nathan Cardozo ( May 24, 1870 &ndash July 9, 1938) was a well-known American Lawyer and Jurist, remembered 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. [21] The chief inspiration for Scandinavian legal realism many consider to be the works of Axel Hägerström. Axel Anders Theodor Hägerström ( September 6, 1868 – July 7, 1939) was a Swedish Philosopher and Jurist 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. For more on the abbreviation "Crit" see Crit (disambiguation Critical legal studies refers to a movement in legal thought Duncan Kennedy (b 1942 in Washington DC) is the Carter Professor of General Jurisprudence at Harvard Law School. Roberto Mangabeira Unger (b 1947 Rio de Janeiro) is a Brazilian contemporary social theorist politician and Law professor at Harvard Law School Feminist legal theory is based on the belief that the law has been instrumental in women's historical subordination Critical Race Theory (CRT is the branch of Critical legal studies concerned with issues of Racism and racial subordination and Discrimination. Law and Economics, or economic analysis of law is an approach to Legal theory that applies methods of Economics to law

The Historical School

Main article: German Historical School

Historical jurisprudence came to prominence during the German debate over the proposed codification of German law. This is an article about a school of thought in the area of Law. In his book On the Vocation of Our Age for Legislation and Jurisprudence, [22] 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. Friedrich Carl von Savigny ( February 21, 1779 in Frankfurt am Main - 25 October, 1861 in Berlin) was one of the most respected 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. Political philosophy is the study of questions about the City, Government, Politics, Liberty, Justice, Property, Rights 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. Sanctions are usually monetary fines, levied against a party to a Legal action or his/her Attorney, for violating rules of procedure

Virtue jurisprudence

Plato (left) and Aristotle (right), a detail of The School of Athens
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. Biography Early life Birth and family Plato was born in Athens Greece The School of Athens, or it Scuola di Atene in Italian, is one of the most famous Paintings by the Italian Renaissance artist In the philosophy of law, virtue jurisprudence is the name given to theories of law related to virtue ethics. Virtue theory is a branch of Moral philosophy that emphasizes character rather than rules or consequences as the key element of ethical thinking 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. Aristotle (Greek Aristotélēs) (384 BC – 322 BC was a Greek philosopher a student of Plato and teacher of Alexander the Great. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.

Deontology

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

Deontology is "the theory of duty or moral obligation. Deontological ethics or deontology (from Greek grc δέον deon, "obligation duty" and grc -λογία -logia) is an "[23] The philosopher Immanuel Kant formulated one influential deontological theory of law. Immanuel Kant (ɪmanuəl kant 22 April 1724 12 February 1804 was an 18th-century German Philosopher from the Prussian city of Königsberg He believed that morality is that which if one person does, would also be good for everyone to do. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin. Ronald Dworkin, QC, FBA (born December 11, 1931) is an American Legal philosopher, currently professor of Jurisprudence

Utilitarianism

Mill believed law should create happiness
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. Utilitarianism is the idea that the moral worth of an action is solely determined by its contribution to overall Utility, that is its contribution to happiness Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. Jeremy Bentham ( IPA: or) (15 February 1748&ndash6 June 1832 was an English Jurist, Philosopher, and legal and Social reformer John Stuart Mill was a pupil of Bentham's and was the torch bearer for utilitarian philosophy through the late nineteenth century. John Stuart Mill (20 May 1806 &ndash 8 May 1873 British Philosopher, political economist, civil servant and Member of Parliament, was an influential John Stuart Mill 's book Utilitarianism is a philosophical defense of Utilitarianism in Ethics. [24] In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition. Law and Economics, or economic analysis of law is an approach to Legal theory that applies methods of Economics to law

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. John Rawls ( February 21, 1921  &ndash November 24, 2002) was an American Philosopher, a Professor of A Theory of Justice is a widely-read book of political and Moral philosophy by John Rawls. The United States of America —commonly referred to as the Philosophy is the study of general problems concerning matters such as existence knowledge truth beauty justice validity mind and language The meaning of the word professor ( Latin: professor, person who professes to be an expert in some art or science teacher of highest rank) varies Political philosophy is the study of questions about the City, Government, Politics, Liberty, Justice, Property, Rights A Theory of Justice is a widely-read book of political and Moral philosophy by John Rawls. Year 1971 ( MCMLXXI) was a Common year starting on Friday (link will display full calendar of the 1971 Gregorian calendar. This article is about John Rawls's book 'Political Liberalism Justice as Fairness A Restatement is a book of Political philosophy by John Rawls, a revision of his classic A Theory of Justice The Law of Peoples is American Philosopher John Rawls 's work on International relations. 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. For more on the abbreviation "Crit" see Crit (disambiguation Critical legal studies refers to a movement in legal thought Libertarian theories of law build upon classical liberal and individualist anarchist doctrines

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. ^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995). Louis Paul Pojman ( April 22, 1935 - October 15, 2005) (pronounced Poyman was an American philosopher and professor who received a D Belmont is a city in San Mateo County, California, United States. California ( is a US state on the West Coast of the United States, along the Pacific Ocean.
  12. ^ Summa, Q94a2.
  13. ^ Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
  14. ^ See H L A Hart, 'Positivism and the Separation of Law and Morals' (1958) 71 Harv. L. Rev. 593
  15. ^ David Hume, A Treatise of Human Nature (1739)
  16. ^ John Austin, The Providence of Jurisprudence Determined (1831)
  17. ^ H. L. A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8
  18. ^ Joseph Raz, The Authority of Law (1979) Oxford University Press
  19. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
  20. ^ Ronald Dworkin, Law's Empire (1986) Harvard University Press
  21. ^ “Jurisprudence”. West’s Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005.
  22. ^ Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans. , 1831)
  23. ^ Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
  24. ^ see, Utilitarianism at Metalibri Digital Library

Further reading

See also Important publications in philosophy of law

See also

External links

Dictionary

jurisprudence

-noun

  1. (law) The philosophy, science and study of law and decisions based on the interpretation thereof
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