Rakesh Soni
Philosophy
of law or Jurisprudence is the theory of law. Scholars of jurisprudence, or legal
theorists (including legal philosophers and social theorists of law), hope to
obtain a deeper understanding of the nature of law, of legal reasoning and of legal institutions. Modern
jurisprudence began in the 18th century and was focused on the first principles
of the natural law, civil law, and the law of nations.1
General jurisprudence can be broken into categories both by the type of
question scholars seek to answer and by the theories of jurisprudence, or
schools of thought, regarding how those questions are best to be answered.
Contemporary
philosophy of law, which deals with general jurisprudence, addresses problems
in two rough groups:2
- 1. Problems
internal to law and legal systems as such.
- 2. Problems
of law as a particular social institution as it relates to the larger
political and social situation in which it exists.
Answers to these questions come from four primary schools of
thought in general jurisprudence:
·
Natural law is the idea that there are rational objective limits
to the power of legislative rulers. The foundations of law are accessible
through human reason and it is from these laws of nature that human created
laws gain whatever force they have.
·
Legal Positivism, by contrast to natural law, holds that
there is no necessary connection between law and morality and that the force of
law comes from some basic social facts although positivists differ on what
those facts are.3
·
Legal Realism is a third theory of jurisprudence which argues that
the real world practice of law is what determines what law is; the law has the
force that it does because of what legislators, judges, and executives do with
it. Similar approaches have been developed in many different ways in Sociology of law.
·
Critical Legal
Studies is a
younger theory of jurisprudence that has developed since the 1970s which is
primarily a negative thesis that the law is largely contradictory and can be
best analyzed as an expression of the policy goals of the dominant social group4
Also of note is the work of the contemporary Philosopher of
Law Ronald
Dworkin who has
advocated a constructivist theory of jurisprudence that can be characterized as
a middle path between natural law theories and positivist theories of general
jurisprudence.5
The English
term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning "law", and prudentia means "knowledge". The word
is first attested in English in 1628,6 at a time when the word prudence had the now obsolete meaning of
"knowledge of or skill in a matter". The word may have come via the
French jurisprudence, which is attested earlier.
History of jurisprudence
Jurisprudence
already had this meaning in Ancient Rome even if at its origins the
discipline was a (periti) in the jus of mos
maiorum
(traditional law), a body of oral laws and customs verbally transmitted
"by father to son". Praetors established a workable body of laws by
judging whether or not singular cases were capable of being prosecuted either
by the edicta, the annual pronunciation of prosecutable offense, or in
extraordinary situations, additions made to the edicta. An iudex then would
judge a remedy according to the facts of the case.
Natural law
Natural law
theory asserts that there are laws that are immanent in nature, to which
enacted laws should correspond as closely as possible. This view is frequently
summarised by the maxim an unjust law is not a true law, in which
'unjust' is defined as contrary to natural law. Natural law is closely
associated with morality and, in historically influential versions, with the
intentions of God. To oversimplify its concepts somewhat, natural law theory
attempts to identify a moral compass to guide the lawmaking power of the state
and to promote 'the good'. Notions of an objective moral order, external to
human legal systems, underlie natural law. What is right or wrong can vary
according to the interests one is focused upon. Natural law is sometimes
identified with the maxim that "an unjust law is no law at all", but
as John Finnis, the most important of modern
natural lawyers has argued, this maxim is a poor guide to the classical Thomist position.
Aristotle- Aristotle is often
said to be the father of natural law.8 Like his philosophical
forefathers, Socrates and Plato, Aristotle posited the
existence of natural justice or natural right. 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.9 He argues that the term
"justice" actually refers to two different but related ideas: general
justice and particular justice.10 When a person's actions are
completely virtuous in all matters in relation to others, Aristotle calls her
"just" in the sense of "general justice;" as such this idea
of justice is more or less coextensive with virtue.11
"Particular" or "Partial justice", by contrast, is the part
of "general justice" or the individual virtue that is concerned with
treating others equitably.
Thomas Aquinas- Saint
Aquinas distinguished four kinds of law: eternal, natural, human and divine.
Eternal law refers to divine reason, known only to God, God's plan for the
universe; man needs this, without which he would totally lack direction. Natural law is the human
"participation" in the eternal law in rational creatures and is
discovered by reason. Divine law is revealed in the scriptures and is
Gods positive law for mankind. Human law is supported by reason and enacted for the common
good.12
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.
Lon Fuller- Lon L. Fuller notably emphasised that
the law must meet certain formal requirements (such as being impartial and
publicly knowable). To the extent that an institutional system of social
control falls short of these requirements, Fuller argues, we are less inclined
to recognise it as a system of law, or to give it our respect. Thus, law has an
internal morality that goes beyond the social rules by which valid laws are
made.
John Finnis- Sophisticated
positivist and natural law theories sometimes resemble each other more than the
above descriptions might suggest, and they may concede certain points to the
other "side". Identifying a particular theorist as a positivist or a
natural law theorist sometimes involves matters of emphasis and degree, and the
particular influences on the theorist's work. In particular, the older natural
lawyers, such as Aquinas and John Locke made no distinction between analytic
and normative jurisprudence. But modern natural lawyers, such as John Finnis
claim to be positivists, while still arguing that law is a basically moral
creature.
Sharia and
Fiqh in Islam.
Sharia (شَرِيعَةٌ)
refers to the body of Islamic law.
The term means "way" or "path"; it is the legal framework
within which public and most private aspects of life are regulated for those
living in a legal system based on Islamic principles of jurisprudence. Fiqh is
the term for Islamic jurisprudence. fiqh, which means understanding
details and inferences drawn by scholars, from sharia that refers to
principles that lie behind the fiqh.13
Early forms
of logic in Islamic philosophy were introduced in Islamic jurisprudence from the 7th
century with the process of Qiyas. The term Qiyas refers to analogical
reasoning or
categorical syllogism.14
Analytic
jurisprudence- Analytic,
or 'clarificatory', jurisprudence means the use of a neutral point of view and
descriptive language when referring to the aspects of legal systems. This was a
philosophical development that rejected natural law's fusing of what law is and
what it ought to be.[24] David Hume famously argued in A Treatise of Human Nature15 that people invariably slip between describing that the
world is a certain way to saying therefore we ought to conclude
on a particular course of action. But as a matter of pure logic, one cannot
conclude that we ought to do something merely because something is
the case. So analysing and clarifying the way the world is must be
treated as a strictly separate question to normative and evaluative ought
questions.
The most
important questions of analytic jurisprudence are: "What are laws?";
"What is the law?"; "What is the relationship between law
and power/sociology?"; and "What is the relationship between law and
morality?" Legal positivism is the dominant theory, although there are a
growing number of critics, who offer their own interpretations.
Legal positivists
Positivism
simply means that law is something that is "posited": laws are
validly made in accordance with socially accepted rules. The positivist view on
law can be seen to cover two broad principles: Firstly, that laws may seek to
enforce justice, morality, or any other normative end, but their success or
failure in doing so does not determine their validity. Provided a law is
properly formed, in accordance with the rules recognized in the society
concerned, it is a valid law, regardless of whether it is just by some
other standard. Secondly, that law is nothing more than a set of rules to
provide order and governance of society. No legal positivist, however, argues
that it follows that the law is therefore to be obeyed, no matter what. This is
seen as a separate question entirely.
· What the law is - is determined by
historical social practice (resulting in rules)
·
What
the law ought to be" - is determined by moral considerations.
One of the earliest legal positivists
was Jeremy Bentham. Bentham's views about law and jurisprudence were
popularized by his student. 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"16 Hans Kelsen is considered one of the
preeminent jurists of the 20th century. His Pure
Theory of Law aims to
describe law as binding norms. H. L. A. Hart argued that the law should be understood as a
system of social rules. Hart rejected Kelsen's views that sanctions were
essential to law and that a normative social phenomenon, like law, can not be
grounded in non-normative social facts. Hart revived analytical jurisprudence
as an important theoretical debate in the twentieth century through his book The
Concept of Law.17
As the professor of jurisprudence at Oxford University, Hart argued that law is a 'system
of rules'.
In recent
years, debates about the nature of law have become increasingly fine-grained.
One important debate is within legal positivism. One school is sometimes called
exclusive legal
positivism, and
it is associated with the view that the legal validity of a norm can never
depend on its moral correctness. A second school is labeled inclusive legal
positivism, a
major proponent of which is Wil Waluchow, and it is associated with the view
that moral considerations may determine the legal validity of a norm,
but that it is not necessary that this is the case.
Some philosophers
used to contend that positivism was the theory that there is "no necessary
connection" between law and morality; but influential contemporary
positivists, including Joseph Raz, John
Gardner, and Leslie Green, reject that view. As Raz points out, it is a
necessary truth that there are vices that a legal system cannot possibly have
(for example, it cannot commit rape or murder).
Legal realism
Legal
realism was a view popular with some Scandinavian and American writers.
Skeptical in tone, it held that the law should be understood and determined by
the actual practices of courts, law offices, and police stations, rather than
as the rules and doctrines set forth in statutes or learned treatises. It had
some affinities with the sociology of law. The essential tenet of legal realism
is that all law is made by human beings and, thus, is subject to human foibles,
frailties and imperfections.
It has
become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences
include Roscoe
Pound, Karl Llewellyn and Justice Benjamin
Cardozo). Karl
Llewellyn, another founder of the U.S. legal realism movement, similarly
believed that the law is little more than putty in the hands of a judge who is
able to shape the outcome of a case based on personal biases.21 The
chief inspiration for Scandinavian legal realism many consider to be the works
of Axel
Hägerström. Despite
its decline in facial popularity, realists continue to influence a wide
spectrum of jurisprudential schools today, including critical
legal studies
(scholars such as Duncan
Kennedy and Roberto Unger), feminist
legal theory, critical
race theory, sociology of law and law and economics.
The Historical School
Historical
jurisprudence came to prominence during the German debate over the proposed
codification of German law. In his book On the Vocation of Our Age for
Legislation and Jurisprudence,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. The Historicists believe that the
law originates with society.
Normative
jurisprudence
In addition
to the question, "What is law?", legal philosophy is also concerned
with normative, or "evaluative" theories of law. What is the goal or
purpose of law? What moral or political theories provide a foundation for the
law? What is the proper function of law? What sorts of acts should be subject
to punishment, and what sorts of punishment should
be permitted? What is justice? What rights do we have? Is there a duty to obey
the law? What value has the rule of law? Some of the different schools and
leading thinkers are as follows.
Virtue
jurisprudence
Aretaic
moral theories such as contemporary virtue ethics emphasize the role of character in
morality. Virtue jurisprudence is the view that the laws should promote the
development of virtuous characters by citizens. Historically, this approach is
associated mainly with Aristotle or Thomas Aquinas later. Contemporary virtue
jurisprudence is inspired by philosophical work on virtue ethics.
Deontology
Deontology
is "the theory of duty or moral obligation."23 The
philosopher Immanuel
Kant formulated one
influential deontological theory of law. He argued that any rule we follow must
be universalisable: we must be willing to will everyone to follow that rule. A
contemporary deontological approach can be found in the work of the legal
philosopher Ronald
Dworkin.
Utilitarianism
Utilitarianism
is the view that the laws should be crafted so as to produce the best
consequences for the greatest number of people possible. Historically,
utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the
torch bearer for utilitarian philosophy through the late
nineteenth century.[35] In contemporary legal theory, the
utilitarian approach is frequently championed by scholars who work in the law and economics tradition. Also see Lysander Spooner
References
1.
"Jurisprudence", Black's Law
Dictionary
2.
Shiner,
"Philosophy of Law", Cambridge Dictionary of Philosophy
3.
Soper,
"Legal Positivism", Cambridge Dictionary of Philosophy
4.
Moore, "Critical Legal Studies", Cambridge
Dictionary of Philosophy
6.
Shellens, "Aristotle on Natural
Law."
7.
"Nicomachean Ethics" Bk. II ch. 6
8.
Terrence Irwin, trans. Nicomachean Ethics,
2nd Ed., Hackett Publishing
9.
Nicomachean Ethics, Bk. V, ch. 3
10. "Nicomachean Ethics", Bk. V, ch. 1.
11. Shellens, "Aristotle on Natural
Law," 75–81
12. "Natural Law," International
Encyclopedia of the Social Sciences.
14. John Austin, The Providence of
Jurisprudence Determined (1831)
16. Joseph Raz, The Authority of Law (1979)
Oxford University Press
Dr. Rakesh Soni
Assistant Professor (Philosophy),
I.G.National Tribal University, Amarkantak M. P.
