Jurisprudence
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Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. The analytic side of jurisprudence seeks to ask questions like "what is law?", "what are the criteria for legal validity?", "what is the relationship between law and morality?". The normative side of jurisprudence is part of moral and political philosophy, and includes questions of whether we should obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation, etc. Jurisprudence can also refer to case law in common law, the body of law that is established through decisions of a particular court or court system.
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. However there are many philosophers dealing with the same questions in former times, from islamic scholars to the ancient greeks.
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[edit] Etymology
The Latin word juris is the genitive form of jus meaning "law." So, 'juris' means "of law" or "legal." In particular, 'juris' refers to oral legal tradition and to functional applications of law, to and in particular sets of facts and circumstances. The word "jury" is also an English form of 'jus/juris,' and juries do just as the term implies: apply law to facts and circumstances, and draw a conclusion therefrom on the defendant's culpability.
'Prudentia,' meaning "knowledge" in Latin, translates directly to English as "prudence." The native English word is "wisdom," which also originally meant "knowledge." In either case, one behaves prudently or wisely because one has knowledge of the possible consequences of a particular action.
[edit] History of jurisprudence
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 detained an exclusive power of judgement on facts, being the only experts (periti) in the jus of traditional law (mos maiorum, a body of oral laws and customs verbally transmitted "by father to son"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases.
Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitative interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Pontiffs were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience. And yet it is true.
Under the Roman Republic, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivalled peaks of skill. It is about this activity that it has been said that Romans had developed an art out of the law.
After 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.
[edit] Analytic jurisprudence
Analytic, or 'clarificatory' jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. The focus is on what the system is, not on what it should or ought to be. Thus when engaging in analytic jurisprudence moral questions and questions of value are only considered insofar as to describe them as questions of consideration but the analysis goes no further.
The most important questions of analytic jurisprudence are: What is a law? What is a legal system? What is the relationship between law and power/sociology? What is the relationship between law and justice/morality? Does every society have a legal system? How should we understand concepts like legal rights and legal obligations or duties?
Influential positions in modern analytic jurisprudence include legal positivism, natural law theory and legal interpretivism.
[edit] Positivism
Positivism simply means that the law is something that is "posited": laws are validly made in accordance with socially accepted rules. 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, whether or not it is just by some other standard.
Another principle is that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely. What the law is, is determined by social facts (or "sources'); what obedience the law is owed is determined by moral considerations.
Positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws. One of the early positivists was Jeremy Bentham, whose views were popularized by his student, John Austin. Both held that that law is the command of the sovereign backed by the threat of punishment. Contemporary legal positivism has long abandoned this view. In the twentieth century, two positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsen was the most influential, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence.
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. According to Hart, law is essentially a system of primary social rules that guide the conduct of law's subjects, and secondary rules that regulate how the primary rules may be changed, how disputes about them are to be adjudicated and, especially, how the primary rules are to be identified. Hart argues that this last function is peformed by a "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. Hart's theory, although widely admired, has also been criticized by a variety of late twentieth century philosophers of law, including Ronald Dworkin, John Finnis, and Joseph Raz.
In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled inclusive legal positivism, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case. 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). In fact, it is even unclear whether Hart himself held this view in its broad form, for he insisted both that to be a legal system rules must have a certain minimum content, which content overlaps with moral concerns, and that it must attain at least some degree of justice in the administration of laws.
[edit] Interpretivism
Interpretivism is the view, espoused mainly by Ronald Dworkin. 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 intutively 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 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.
[edit] Legal realism
Legal realism was a view popular with some Scandinavian and American writers. Sceptical in tone, it held that the law should be understood 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.
[edit] Natural law reasoning
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 summarized 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.
Other natural law theorists, notably Lon L. Fuller, emphasise 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.
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.
[edit] 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?
Three approaches have been influential in contemporary moral and political philosophy, and these approaches are reflected in normative theories of law:
- Utilitarianism is the view that the laws should be crafted so as to produce the best consequences. Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.
- Deontology is the view that the laws should protect individual autonomy, liberty, or rights. The philosopher Immanuel Kant formulated a deontological theory of law (but not the only possible). A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
- 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 with Aristotle. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.
[edit] Islamic jurisprudence
Fiqh is Islamic jurisprudence made up of the rulings of Islamic jurists to direct the lives of Muslims. A component of Islamic studies, Fiqh expounds the methodology by which Islamic law is derived from primary and secondary sources.
[edit] References
[edit] Further reading
- Important publications in philosophy of law
- Thomas Aquinas, Summa Contra Gentiles (many editions).
- Bruce L. Benson: Where Does Law Come From?
- Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).
- Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1986).
- Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986).
- Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997).
- Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1965).
- John Chipman Gray, The Nature and Sources of Law (Peter Smith, 1972, reprint).
- H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).
- H.L.A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968).
- Sterling Harwood, Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers, 1996).
- Georg Wilhelm Friedrich Hegel, Philosophy of Right (Oxford University Press 1967)
- Ian Farrell & Morten Ebbe Juul Nielsen, Legal Philosophy: 5 Questions, New York: Automatic Press / VIP, April 2007: [1]
- Oliver Wendell Holmes, Jr., The Common Law (Dover, 1991, reprint).
- Immanuel Kant, Metaphysics of Morals (Doctrine of Right) (Cambridge University Press 2000, reprint).
- Hans Kelsen, Pure Theory of Law (Lawbook Exchange Ltd., 2005, reprint).
- Duncan Kennedy, A Critique of Adjudication (Cambridge, MA: Harvard University Press, 1998).
- David Lyons, Ethics & The Rule of Law (Cambridge: Cambridge University Press, 1984).
- David Lyons, Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993).
- Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1979).
- Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1983, reprint).
- Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca, NY: Cornell University Press, 1982).
- Robert S. Summers, Lon Fuller (Stanford, CA: Stanford University Press, 1984).
- Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986).
- Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law: An Introduction to Jurisprudence (Boulder, CO: Westview Press, 1989).
[edit] See also
[edit] General
- Brocard
- Justice
- Fiqh
- Political jurisprudence
- Analytical jurisprudence
- Critical legal studies
- Judicial activism
- Jurisprudence
- Law and economics
- Legal formalism
- Legal positivism
- Legal realism
- Libertarian theories of law
- Natural law
- Virtue jurisprudence
[edit] Legal Philosophers
- Thomas Aquinas
- John Austin (legal philosophy)
- Jeremy Bentham
- Emilio Betti
- António Castanheira Neves
- Ronald Dworkin
- John Finnis
- Lon L. Fuller
- Leslie Green (philosopher)
- Robert P. George
- Germain Grisez
- H.L.A. Hart
- Georg Wilhelm Friedrich Hegel
- Oliver Wendell Holmes, Jr.
- Immanuel Kant
- Hans Kelsen
- Joel Feinberg
- David Lyons
- Neil MacCormick
- Karl Marx
- Gustav Radbruch
- Joseph Raz
- Jeremy Waldron
- von Savigny
- Roberto Unger
- John Rawls
[edit] External links
- [2] Navigate to page for Encyclopedia of the Science of Law (Mellen, 2002).
- John Witte, Jr: A Brief Biography of Dooyeweerd, based on Hendrik van Eikema Hommes, Inleiding tot de Wijsbegeerte van Herman Dooyeweerd (The Hague, 1982; pp 1-4,132)[3]
- LII Law about... Jurisprudence
- The Case of the Speluncean Explorers: Nine New Opinions, by Peter Suber (Routledge, 1998.) Lon Fuller's classic of jurisprudence brought up to date 50 years later.
- The Roman Law Library, incl. Responsa prudentium by Professor Yves Lassard and Alexandr Koptev.
- Evgeny Pashukanis - General Theory of Law and Marxism
- Internet Encyclopedia: Philosophy of Law
