Chapter Two
Jurisprudence
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
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. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:
Natural law is 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 asks 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 asks what law should be like. It overlaps with 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.
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.
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 directly to English as "prudence." The native English word is "wisdom," which also originally meant "knowledge."
"Prudence" means caution, cautiousness, care, carefulness. Manoj Mashalkar, Ph.D. Scholar.
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, which detained 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"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases[1].
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 evaluative Institutions (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. 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 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.
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 natural law
Aristotle
Aristotle is often said to be the father of natural law.[2] Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right. His association with natural law is due largely to the interpretation given to him 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' 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. 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.[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.[7][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
Sharia refers to the body of Islamic law. 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 Muslim principles of jurisprudence. 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, which 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
Saint Thomas Aquinas (1225 –1274) was a 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, which was long 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-three 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. 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.][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. Divine law is the specially revealed law in the scriptures.
Thomas Hobbes
In his treatise Leviathan, (1649), 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. Hobbes was a social contractarian[13] and believed that the law gained peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. 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
Lon Fuller
Writing after World War II, Lon L. Fuller notably emphasized 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. 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.
Analytic jurisprudence:
Analytic jurisprudence is using 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.[14] David Hume famously argued in A Treatise of Human Nature [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. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analyzing 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 the 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 social facts (or "sources')
What obedience the law is owed - is determined by moral considerations
Bentham and Austin
One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly 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".[16] Contemporary legal positivists have long abandoned this view, and have criticized its oversimplification, H.L.A. Hart particularly.
Hans Kelsen
Hans Kelsen is considered one of the preeminent jurists of the 20th century. He is most influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. Kelsen's pure theory of law described the law as being a set of social facts, which are normatively binding too. Law's normatively, 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. 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. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations.
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. 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.[17] As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of rules'.
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. 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.
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. 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.[18] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorization of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.[19]
Ronald Dworkin
Ronald Dworkin is a leading philosopher, and was Hart's star pupil at Oxford. 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 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 communi.
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). 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, 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, 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
retaic 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 eontology is "the theory of duty or moral obligation."[21] The philosopher Immanuel Kant formulated one influential deontological theory of law. He believed that morality is what if I do, would be good for everyone to do. 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. 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.[23][22] 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 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 favor. 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.
[1] For more details see, Denis Caulfield Heron ,An Introduction to the History of Jurisprudence, Adamant Media Corporation,1995.
[2] Shellens, "Aristotle on Natural Law".
[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,1985,pp243-250.
[5] Nicomachean Ethics.pp 6 –7.
[6] Politics, Bk. III, ch. 16.
[7] Rhetoric 1373,pp2–8.
[8] Shellens, "Aristotle on Natural Law". pp 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 Souaiaia:2005 vol:20 iss:1, p123.
[11] Louis Pojman, Ethics,Belmont, CA: Wadsworth Publishing Company, 1995.
[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,pp593.
[15] David Hume, A Treatise of Human Nature 1739.
[16] John Austin, The Providence of Jurisprudence Determined ,unknown in print,
[17] H.L.A. Hart, The Concept of Law ,Oxford University Press,1961
[18] Joseph Raz, The Authority of Law,Oxford University Press.1979.pp43-45
[19] Joseph Raz, The Authority of Law ch. 2,1979.
[20] Ronald Dworkin, Law's Empire , Harvard University Press.1986
[21] Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
[22] see, Utilitarianism at Metalibri Digital Library.
Jurisprudence
Dr Khalil Hussein
Professor at Lebanese University
Director of studies at Lebanese Parliament
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. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:
Natural law is 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 asks 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 asks what law should be like. It overlaps with 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.
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.
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 directly to English as "prudence." The native English word is "wisdom," which also originally meant "knowledge."
"Prudence" means caution, cautiousness, care, carefulness. Manoj Mashalkar, Ph.D. Scholar.
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, which detained 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"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases[1].
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 evaluative Institutions (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. 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 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.
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 natural law
Aristotle
Aristotle is often said to be the father of natural law.[2] Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right. His association with natural law is due largely to the interpretation given to him 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' 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. 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.[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.[7][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
Sharia refers to the body of Islamic law. 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 Muslim principles of jurisprudence. 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, which 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
Saint Thomas Aquinas (1225 –1274) was a 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, which was long 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-three 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. 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.][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. Divine law is the specially revealed law in the scriptures.
Thomas Hobbes
In his treatise Leviathan, (1649), 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. Hobbes was a social contractarian[13] and believed that the law gained peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. 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
Lon Fuller
Writing after World War II, Lon L. Fuller notably emphasized 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. 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.
Analytic jurisprudence:
Analytic jurisprudence is using 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.[14] David Hume famously argued in A Treatise of Human Nature [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. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analyzing 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 the 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 social facts (or "sources')
What obedience the law is owed - is determined by moral considerations
Bentham and Austin
One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly 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".[16] Contemporary legal positivists have long abandoned this view, and have criticized its oversimplification, H.L.A. Hart particularly.
Hans Kelsen
Hans Kelsen is considered one of the preeminent jurists of the 20th century. He is most influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. Kelsen's pure theory of law described the law as being a set of social facts, which are normatively binding too. Law's normatively, 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. 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. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations.
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. 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.[17] As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of rules'.
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. 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.
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. 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.[18] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorization of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.[19]
Ronald Dworkin
Ronald Dworkin is a leading philosopher, and was Hart's star pupil at Oxford. 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 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 communi.
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). 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, 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, 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
retaic 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 eontology is "the theory of duty or moral obligation."[21] The philosopher Immanuel Kant formulated one influential deontological theory of law. He believed that morality is what if I do, would be good for everyone to do. 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. 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.[23][22] 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 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 favor. 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.
[1] For more details see, Denis Caulfield Heron ,An Introduction to the History of Jurisprudence, Adamant Media Corporation,1995.
[2] Shellens, "Aristotle on Natural Law".
[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,1985,pp243-250.
[5] Nicomachean Ethics.pp 6 –7.
[6] Politics, Bk. III, ch. 16.
[7] Rhetoric 1373,pp2–8.
[8] Shellens, "Aristotle on Natural Law". pp 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 Souaiaia:2005 vol:20 iss:1, p123.
[11] Louis Pojman, Ethics,Belmont, CA: Wadsworth Publishing Company, 1995.
[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,pp593.
[15] David Hume, A Treatise of Human Nature 1739.
[16] John Austin, The Providence of Jurisprudence Determined ,unknown in print,
[17] H.L.A. Hart, The Concept of Law ,Oxford University Press,1961
[18] Joseph Raz, The Authority of Law,Oxford University Press.1979.pp43-45
[19] Joseph Raz, The Authority of Law ch. 2,1979.
[20] Ronald Dworkin, Law's Empire , Harvard University Press.1986
[21] Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
[22] see, Utilitarianism at Metalibri Digital Library.
