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Philosophers of law ask "what is law, and what should it be?"
Modern jurisprudence began in the 18th century and was focused on the first principles of
natural law,
civil law, and the
law of nations.
General jurisprudence can be divided 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 internal to law and legal systems and
problems of law as a social institution that relates to the larger
political and social context in which it exists.
This article addresses three distinct branches of thought in general jurisprudence. Ancient
natural law
is the idea that there are rational objective limits to the power of
legislative rulers. The foundations of law are accessible through
reason, and it is from these laws of nature that human laws gain
whatever force they have.
Analytic jurisprudence rejects natural law's fusing of what law
is and what it ought to be. It espouses the use of a neutral point of
view and descriptive language when referring to aspects of legal
systems.
It encompasses such theories of jurisprudence as "legal positivism",
which holds that there is no necessary connection between law and
morality and that the force of law comes from basic social facts;
and "legal realism", which argues that the real-world practice of law
determines what law is, the law having the force that it does because of
what legislators, lawyers, and judges do with it.
Normative jurisprudence
is concerned with "evaluative" theories of law. It deals with what the
goal or purpose of law is, or what moral or political theories provide a
foundation for the law. It not only addresses the question "What is
law?", but also tries to determine what the proper function of law
should be, or what sorts of acts should be subject to legal sanctions,
and what sorts of punishment should be permitted.
Etymology
The English word is derived from the Latin maxim
jurisprudentia.
Juris is the
genitive form of
jus meaning law, and
prudentia
means prudence (also: discretion, foresight, forethought,
circumspection. It refers to the exercise of good judgment, common
sense, and caution, especially in the conduct of practical matters. The
word first appeared in written English in 1628, at a time when the word
prudence meant knowledge of, or skill in, a matter. It may have entered English via the French
jurisprudence, which appeared earlier.
History
Ancient Indian jurisprudence is mentioned in various
Dharmaśāstra texts, starting with the Dharmasutra of Bhodhayana.
Praetors established a working 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 would
then prescribe a remedy according to the facts of the case.
The sentences of the iudex were supposed to be simple
interpretations of the traditional customs, but—apart from considering
what traditional customs applied in each case—soon developed a more
equitable interpretation, coherently adapting the law to newer social
exigencies. The law was then adjusted with evolving institutiones (legal concepts), while remaining in the traditional mode. Praetors were replaced in the 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 practice of the law became more
academic. From the early Roman Empire to the 3rd century, a relevant
body of literature was produced by groups of scholars, including the
Proculians and
Sabinians. The scientific nature 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.
Natural law
In
its general sense, natural law theory may be compared to both
state-of-nature law and general law understood on the basis of being
analogous to the laws of physical science. Natural law is often
contrasted to positive law which asserts law as the product of human
activity and human volition.
Another approach to natural-law jurisprudence generally asserts
that human law must be in response to compelling reasons for action.
There are two readings of the natural-law jurisprudential stance.
- The Strong Natural Law Thesis holds that if a human law
fails to be in response to compelling reasons, then it is not properly a
"law" at all. This is captured, imperfectly, in the famous maxim: lex iniusta non est lex (an unjust law is no law at all).
- The Weak Natural Law Thesis holds that if a human law fails
to be in response to compelling reasons, then it can still be called a
"law", but it must be recognized as a defective law.
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 on.
John Finnis, the most important of modern natural barristers, has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical
Thomist position. Strongly related to theories of natural law are classical theories of
justice, beginning in the West with
Plato's
Republic.
Aristotle
Aristotle is often said to be the father of natural law. 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 largely due to how he was interpreted by
Thomas Aquinas. 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, though more recent translations render them more literally.
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. 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.
When a person's actions toward others are completely virtuous in all
matters, Aristotle calls them "just" in the sense of "general justice";
as such, this idea of justice is more or less coextensive with virtue.
"Particular" or "partial justice", by contrast, is the part of "general
justice" or the individual virtue that is concerned with treating
others equitably.
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.
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 are about the grounding of the morality enacted as
law, not the laws themselves.
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.
The context of this remark, however, suggests only that Aristotle
thought that it could be rhetorically advantageous to appeal to such a
law, especially when the "particular" law of one's own city was adverse
to the case being made, not that there actually was such a law. Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
Thomas Aquinas
Thomas Aquinas (Thomas of Aquin, or Aquino, c. 1225 – 7 March 1274) was an Italian 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-five
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, divine, and human:
- Eternal law refers to divine reason, known only to God. It is
God's plan for the universe. Man needs this plan, for without it he
would totally lack direction.
- Natural law is the "participation" in the eternal law by rational human creatures, and is discovered by reason.
- Divine law is revealed in the scriptures and is God's positive law for mankind.
- Human law is supported by reason and enacted for the common good.
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 ...
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.
School of Salamanca
Francisco de Vitoria was perhaps the first to develop a theory of
ius gentium
(the rights of peoples), and thus is an important figure in the
transition to modernity. He extrapolated his ideas of legitimate
sovereign power to international affairs, concluding that such affairs
ought to be determined by forms respecting of the rights of all and that
the common good of the world should take precedence before the good of
any single state. This meant that relations between states ought to pass
from being justified by force to being justified by law and justice.
Some scholars have upset the standard account of the origins of
International law, which emphasizes the seminal text
De iure belli ac pacis by Grotius, and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field.
Others, such as Koskenniemi, have argued that none of these humanist
and scholastic thinkers can be understood to have founded international
law in the modern sense, instead placing its origins in the post-1870
period.
Francisco Suárez, regarded as among the greatest scholastics after Aquinas, subdivided the concept of
ius gentium. Working with already well-formed categories, he carefully distinguished
ius inter gentes from
ius intra gentes.
Ius inter gentes
(which corresponds to modern international law) was something common to
the majority of countries, although, being positive law, not natural
law, it was not necessarily universal. On the other hand,
ius intra gentes, or civil law, is specific to each nation.
Thomas Hobbes
In his treatise,
Leviathan (1651), Hobbes expresses a view of natural law as a
precept—or general rule, founded on
reason—by
which a man is forbidden to do that which is destructive to his life,
to take away the means of preserving the same, or to omit that by which
he thinks it may best be preserved. Hobbes was a
social contractarian and believed that the law had peoples' tacit consent. He believed that society was formed from a
state of nature
to protect people from the state of war that would exist otherwise.
According to Hobbes, without an ordered society, life is, "solitary,
poor, nasty, brutish and short". It is commonly said that Hobbes's views
on human nature were influenced by his times. The
English Civil War
and the Cromwellian dictatorship had taken place; and, in reacting to
that, Hobbes felt that 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 defended a secular and procedural form of natural law. He
emphasised that the (natural) 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 argued, we are less inclined to recognize it as a
system of law, or to give it our respect. Thus, the law must have a
morality that goes beyond the societal rules under which laws are made.
John Finnis
Sophisticated positivist and natural law theories sometimes resemble
each other and may have certain points in common. 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. The natural law theorists of the distant past,
such as Aquinas and John Locke made no distinction between analytic and
normative jurisprudence, while modern natural law theorists, such as
John Finnis, who claim to be positivists, still argue that law is moral
by nature. In his book
Natural Law and Natural Rights (1980, 2011), John Finnis provides a restatement of natural law doctrine.
Analytic jurisprudence
Analytic, or "clarificatory", jurisprudence means taking a neutral
point of view and using descriptive language when referring to various
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.
David Hume argued, in
A Treatise of Human Nature, that people invariably slip from describing what the world
is to asserting that we therefore
ought to follow 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 from normative and evaluative questions pf what
ought to be done.
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 is a growing number of critics
who offer their own interpretations.
Historical school
Historical jurisprudence came to prominence during the debate on the proposed codification of German law. In his book
On the Vocation of Our Age for Legislation and Jurisprudence,
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. Historicists believe that law
originates with society.
Sociological jurisprudence
An effort to systematically to inform jurisprudence from sociological
insights developed 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.g. Ernst Fuchs,
Hermann Kantorowicz, and
Eugen Ehrlich)
encouraged the use of sociological insights in the development of legal
and juristic theory. The most internationally influential advocacy for a
"sociological jurisprudence" occurred in the United States, where,
throughout the first half of the twentieth century,
Roscoe Pound,
for many years the Dean of Harvard Law School, used this term to
characterise his legal philosophy. 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. In the 1930s, 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
legal philosophy in English-speaking countries in the present century,
it has attracted renewed interest.
Legal positivism
Positivism simply means that law is something that is "posited": laws
are validly made in accordance with socially accepted rules. The
positivist view of law can be seen to be based on two broad principles:
- Firstly, that laws may seek to enforce justice, morality, or any
other normative end, but their success or failure to do 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 (lex lata) - is determined by historical social practice (resulting in rules).
- What the law ought to be (lex ferenda) - is determined by moral considerations.
Bentham and Austin
Bentham's utilitarian theories remained dominant in law until the twentieth century
One of the earliest legal positivists was Jeremy Bentham. Along with
Hume, Bentham was an early and staunch supporter of the utilitarian
concept, and was an avid prison reformer, advocate for
democracy, and firm
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".
Contemporary legal positivists, H. L. A. Hart particularly, have long
abandoned this view, and have criticised its oversimplification.
Hans Kelsen
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
describes law as "binding norms", while at the same time refusing 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 all "lower" norms in the hierarchy of a
legal system, beginning with
constitutional law,
are understood to derive their authority or the extent to which they
are binding. Kelsen contends that the extent to which legal norms are
binding, 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 English-speaking world, the pivotal writer was
H. L. A. Hart, professor of jurisprudence at
Oxford University,
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, cannot 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 who
administer primary rules). Secondary rules are divided into rules of
adjudication (how to resolve legal disputes), rules of change (how laws
are amended), and the rule of recognition (how laws are identified as
valid). The "rule of recognition" is a customary practice of officials
(especially barristers and judges) who identify certain acts and
decisions as sources of law. In 1981, Neil MacCormick
wrote a pivotal book on Hart (second edition published in 2008), which
further refined and offered some important criticisms that led
MacCormick to develop his own theory (the best example of which is his
Institutions of Law, 2007). Other important critiques include those of Ronald Dworkin, John Finnis, and
Joseph Raz.
In recent years, debates on 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 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 is associated with the view that moral considerations may, but do not necessarily, determine the legal validity of a norm.
Joseph Raz
Some philosophers used to contend that positivism was the theory that
held that there was "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 criticized Hart's "soft social thesis" approach in The Authority of Law.
Raz argues that law is authority, identifiable purely through social
sources, without reference to moral reasoning. Any categorization of
rules beyond their role as authority is better left to sociology than to
jurisprudence.
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
as, and would be 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. Legal realism 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.
It has become 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 judges who are able to shape the outcome of cases based on their
personal values or policy choices. Many consider the chief inspiration for Scandinavian legal realism to be the works of
Axel Hägerström.
Critical legal studies
Critical legal studies
are a new theory of jurisprudence that has developed since the 1970s.
The theory can generally be 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".
It holds that the law is largely contradictory, and can be best
analyzed as an expression of the policy goals of a dominant social
group.
Critical rationalism
"daß die Suche nach dem Begriff des
Rechts, nach seinen Bezügen zur Wirklichkeit und nach der Gerechtigkeit
experimentierend voranschreitet, indem wir Problemlösungen versuchsweise
entwerfen, überprüfen und verbessern" (that we empirically search for
solutions to problems, which harmonize fairly with reality, by
projecting, testing and improving the solutions).
Legal interpretivism
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.
In his book
Law's Empire, Dworkin attacked
Hart
and the positivists for their refusal to treat law as a moral issue. He
argued 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 best moral
justification for the institutional facts and practices that we
intuitively regard as legal. It follows from 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 truths about the moral
justifications of the social and political practices of 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 moral 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 portrays the practices of the community in their best light, or
makes them "the best that they can be". But many writers have doubted
whether there is a single best moral justification for the
complex practices of any given community, and others have doubted
whether, even if there is, it should be counted as part of the law of
that community.
Therapeutic jurisprudence
Consequences of the operation of legal rules or legal procedures—or
of 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 impacts.
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
discussed below.
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
character in citizens. Historically, this approach has been mainly
associated with Aristotle or Thomas Aquinas. Contemporary virtue
jurisprudence is inspired by philosophical work on virtue ethics.
Deontology
Deontology is the "theory of duty or moral obligation". The philosopher
Immanuel Kant
formulated one influential deontological theory of law. He argued that
any rule we follow must be able to be universally applied, i.e. we must
be willing for everyone to follow that rule. A contemporary
deontological approach can be found in the work of the legal philosopher
Ronald Dworkin.
Utilitarianism
Mill believed law should create happiness
Utilitarianism is the view that the laws should be crafted so as to
produce the best consequences for the greatest number of people.
Historically, utilitarian thinking about law has been associated with
the philosopher Jeremy Bentham. John Stuart Mill was a pupil of
Bentham's and was the torch bearer for
utilitarian philosophy throughout the late nineteenth century.
In contemporary legal theory, the utilitarian approach is frequently
championed by scholars who work in the law and economics tradition.
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
method called "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 argued
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.
