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Jurisprudence or legal theory is the theoretical study of law , principally by philosophers but, from the twentieth century, also by social scientists. Scholars of jurisprudence, also known as jurists or legal theorists, hope to obtain a deeper understanding of legal reasoning , legal systems , legal institutions , and the role of law in society. 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.
Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems, and problems of law as a particular social institution as law relates to the larger political and social situation in which it exists.
This article distinguishes three distinct branches of thought in general jurisprudence. To begin with, ancient natural law , as a major branch and theory of jurisprudence, 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-created laws gain whatever force they have. It espouses the use of a neutral point of view and descriptive language when referring to aspects of legal systems.
For example, legal positivism , holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Thirdly, 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.
Besides the question "What is law? The English word is based on the Latin maxim jurisprudentia: The word is first attested in English in , [5] at a time when the word prudence had the meaning of "knowledge of or skill in a matter".
The word may have come via the French jurisprudence , which is attested earlier. 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. 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 equitable interpretation, coherently adapting the law to the newer social instances.
The law was then implemented with new evolutive Institutiones legal concepts , while remaining in the traditional scheme. 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 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 scientific depth 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.
In its general context, natural law theory may be compared to both state-of-nature law and general law understood on the basis of an analogy to the physical laws of 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 may be supported by decisive reasons for action. In other words, there must be a compelling rationale behind following human law.
There are two readings of the natural law jurisprudential stance. 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 barristers [ citation needed ] has argued, this maxim 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 is often said to be the father of natural law. His association with natural law is largely due to the way in which he was interpreted by Thomas Aquinas. Aquinas's influence was such as to affect a number of early translations of these passages, [9] 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. He argues that the term "justice" actually refers to two different but related ideas: Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention.
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 passage here is silent as to that question. 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.
Thomas Aquinas, [Thomas of Aquin, or Aquino] c. 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. 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.
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 society at the international level, concluding that this scope as well ought to be ruled by just forms respectable of the rights of all. The common good of the world is of a category superior to the good of each state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice.
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, was not necessarily universal. On the other hand, ius intra gentes , or civil law, is specific to each nation. In his treatise Leviathan, , 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 [23] 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, poor, 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.
Fuller defended a secular and procedural form of natural law. He notably 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 argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made.
Sophisticated positivist and natural law theories sometimes resemble each other more than the above descriptions might suggest, and they may concede certain points to the other "side".
Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. In particular, the older natural lawyers, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence. But modern natural lawyers, such as John Finnis claim to be positivists, while still arguing that law is a basically moral creature. His book Natural Law and Natural Rights , is a restatement of natural law doctrine.
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.
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: 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 , [25] 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. The effort to inform jurisprudence systematically with sociological insights developed strongly 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. Ernst Fuchs, Hermann Kantorowicz and Eugen Ehrlich encouraged the use of sociological insights in judicial development of law and juristic theory.
The most internationally influential advocacy of a 'sociological jurisprudence' occurred in the United States, where Roscoe Pound , for many years the Dean of Harvard Law School, used this term to characterise his legal philosophy throughout the first half of the twentieth century.
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 s 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 Anglophone legal philosophy in the present century it has attracted renewed interest.
Positivism simply means that law is something that is "posited": 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. 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 strong atheist.