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 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. 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.
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 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.
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.
Aretaic moral theories such as contemporary virtue ethics emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens. Historically, this approach is associated mainly with Aristotle or Thomas Aquinas later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
Deontology is "the theory of duty or moral obligation."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 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. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition. Also see Lysander Spooner
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
5. Oxford English Dictionary, 2nd edition 1989
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.
13. David Hume, A Treatise of Human Nature (1739) Etext
14. John Austin, The Providence of Jurisprudence Determined (1831)
15. H.L.A. Hart, The Concept of Law1961 Oxford University Press, ISBN0-19-876122-8
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.