Jurisprudence

Jurisprudence

Overview

Jurisprudence is the theory
Theory
The English word theory was derived from a technical term in Ancient Greek philosophy. The word theoria, , meant "a looking at, viewing, beholding", and referring to contemplation or speculation, as opposed to action...

 and philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...

 of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

. 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, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

, civil law, and the law of nations.
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Encyclopedia

Jurisprudence is the theory
Theory
The English word theory was derived from a technical term in Ancient Greek philosophy. The word theoria, , meant "a looking at, viewing, beholding", and referring to contemplation or speculation, as opposed to action...

 and philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...

 of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

. 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, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

, civil law, and the law of nations. 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:
  • 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
    Natural law
    Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

    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
    Legal positivism
    Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

    , 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.
  • Legal realism
    Legal realism
    Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...

    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
    Sociology of law
    The sociology of law is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies...

    .
  • Critical legal studies
    Critical legal studies
    Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....

     
    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 group.


Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

 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.

The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning "law", and prudentia means "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628, 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
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....

 even if at its origins the discipline was a (periti) in the jus
Ius
Ius or Jus etymologically means "that which is binding" and comes from the same root as iungere, "to join." In ancient Rome it was used primarily to mean a right to which a citizen was entitled by virtue of his citizenship...

 of mos maiorum
Mos maiorum
The mos maiorum is the unwritten code from which the ancient Romans derived their social norms. It is the core concept of Roman traditionalism, distinguished from but in dynamic complement to written law. The mos maiorum The mos maiorum ("ancestral custom") is the unwritten code from which the...

 (traditional law), a body of oral law
Oral law
An oral law is a code of conduct in use in a given culture, religion or community application, by which a body of rules of human behaviour is transmitted by oral tradition and effectively respected, or the single rule that is orally transmitted....

s 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.

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 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.

In ancient Indian vedic society, the law or Dharma, as followed by Hindus was interpreted by use of "Manu Smrti" - a set of poems which defined sin and the remedies. They were said to be written between 200 BC - 200 AD. In fact, these were not codes of law but norms related to social obligations and ritual requirements of the era.

Under the Roman Empire
Roman Empire
The Roman Empire was the post-Republican period of the ancient Roman civilization, characterised by an autocratic form of government and large territorial holdings in Europe and around the Mediterranean....

, 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
Justinian I
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...

's Corpus Juris Civilis
Corpus Juris Civilis
The Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor...

 was born.

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, lex iniusta non est lex, 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
John Finnis
John Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...

, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical Thomist
Thomism
Thomism is the philosophical school that arose as a legacy of the work and thought of St. Thomas Aquinas, philosopher, theologian, and Doctor of the Church. In philosophy, his commentaries on Aristotle are his most lasting contribution...

 position.

Aristotle




Aristotle is often said to be the father of natural law. Like his philosophical forefathers, Socrates
Socrates
Socrates was a classical Greek Athenian philosopher. Credited as one of the founders of Western philosophy, he is an enigmatic figure known chiefly through the accounts of later classical writers, especially the writings of his students Plato and Xenophon, and the plays of his contemporary ...

 and Plato
Plato
Plato , was a Classical Greek philosopher, mathematician, student of Socrates, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. Along with his mentor, Socrates, and his student, Aristotle, Plato helped to lay the...

, Aristotle
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...

 posited the existence of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...

 or natural right (dikaion physikon, δικαίον φυσικόν, Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...

 ius naturale). His association with natural law is due largely to the interpretation given to him by Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...

. 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
Nicomachean Ethics
The Nicomachean Ethics is the name normally given to Aristotle's best known work on ethics. The English version of the title derives from Greek Ἠθικὰ Νικομάχεια, transliterated Ethika Nikomacheia, which is sometimes also given in the genitive form as Ἠθικῶν Νικομαχείων, Ethikōn Nikomacheiōn...

 (= Book IV of the Eudemian Ethics
Eudemian Ethics
The Eudemian Ethics is a work of philosophy by Aristotle. Its primary focus is on Ethics, making it one of the primary sources available for study of Aristotelian Ethics. It is named for Eudemus of Rhodes, a pupil of Aristotle who may also have had a hand in editing the final work...

). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.

Aristotle's theory of justice is bound up in his idea of the golden mean
Golden mean (philosophy)
In philosophy, especially that of Aristotle, the golden mean is the desirable middle between two extremes, one of excess and the other of deficiency. For example courage, a virtue, if taken to excess would manifest as recklessness and if deficient as cowardice....

. Indeed his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions 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. "Particular" or "Partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature here 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
Rhetoric (Aristotle)
Aristotle's Rhetoric is an ancient Greek treatise on the art of persuasion, dating from the 4th century BC. In Greek, it is titled ΤΕΧΝΗ ΡΗΤΟΡΙΚΗ, in Latin Ars Rhetorica. In English, its title varies: typically it is titled Rhetoric, the Art of Rhetoric, or a Treatise on...

, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

Thomas Aquinas




Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 – 7 March 1274) was a philosopher and theologian
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...

 in the scholastic
Scholasticism
Scholasticism is a method of critical thought which dominated teaching by the academics of medieval universities in Europe from about 1100–1500, and a program of employing that method in articulating and defending orthodoxy in an increasingly pluralistic context...

 tradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent of natural theology
Natural theology
Natural theology is a branch of theology based on reason and ordinary experience. Thus it is distinguished from revealed theology which is based on scripture and religious experiences of various kinds; and also from transcendental theology, theology from a priori reasoning.Marcus Terentius Varro ...

, and the father of the Thomistic
Thomism
Thomism is the philosophical school that arose as a legacy of the work and thought of St. Thomas Aquinas, philosopher, theologian, and Doctor of the Church. In philosophy, his commentaries on Aristotle are his most lasting contribution...

 school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church
Roman Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...

. The work for which he is best-known is the Summa Theologica
Summa Theologica
The Summa Theologiæ is the best-known work of Thomas Aquinas , and although unfinished, "one of the classics of the history of philosophy and one of the most influential works of Western literature." It is intended as a manual for beginners in theology and a compendium of all of the main...

. One of the thirty-three Doctors of the Church
Doctor of the Church
Doctor of the Church is a title given by a variety of Christian churches to individuals whom they recognize as having been of particular importance, particularly regarding their contribution to theology or doctrine.-Catholic Church:In the Catholic Church, this name is given to a saint from whose...

, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning
Institutions named after Thomas Aquinas
Institutions of learning named after Thomas Aquinas include the following:-References:...

 have been named after him.

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
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

 is the human "participation" in the eternal law in rational creatures and is discovered by reason. Divine law
Divine law
Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...

 is revealed in the scriptures and is Gods positive law for mankind. Human law is supported by reason and enacted for the common good. Natural law, of course, is based on "first principles":
. . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . . .

The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based.

Thomas Hobbes




In his treatise Leviathan, (1651)
Leviathan (book)
Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil — commonly called simply Leviathan — is a book written by Thomas Hobbes and published in 1651. Its name derives from the biblical Leviathan...

, Hobbes expresses a view of natural law as a precept
Precept
A precept is a commandment, instruction, or order intended as an authoritative rule of action.-Christianity:The term is encountered frequently in the Jewish and Christian Scriptures; e.g.:...

, or general rule, found out by reason
Reason
Reason is a term that refers to the capacity human beings have to make sense of things, to establish and verify facts, and to change or justify practices, institutions, and beliefs. It is closely associated with such characteristically human activities as philosophy, science, language, ...

, 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 contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...

arian and believed that the law gained peoples' tacit consent. He believed that society was formed from a state of nature
State of nature
State of nature is a term in political philosophy used in social contract theories to describe the hypothetical condition that preceded governments...

 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
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...

 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
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

, 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 () refers to the body of Islamic law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

. 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, 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 that refers to principles that lie behind the fiqh. Scholars hope that fiqh and sharia are in harmony in any given case, but this cannot be assured.

Early forms of logic in Islamic philosophy
Logic in Islamic philosophy
Logic played an important role in Islamic philosophy .Islamic Logic or mantiq is similar science to what is called Traditional Logic in Western Sciences.- External links :*Routledge Encyclopedia of Philosophy: , Routledge, 1998...

 were introduced in Islamic jurisprudence from the 7th century with the process of Qiyas
Qiyas
In Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...

. During the Islamic Golden Age
Islamic Golden Age
During the Islamic Golden Age philosophers, scientists and engineers of the Islamic world contributed enormously to technology and culture, both by preserving earlier traditions and by adding their own inventions and innovations...

, there was a logical debate among Islamic philosophers
Early Islamic philosophy
Early Islamic philosophy or classical Islamic philosophy is a period of intense philosophical development beginning in the 2nd century AH of the Islamic calendar and lasting until the 6th century AH...

 and jurists
Ulema
Ulama , also spelt ulema, refers to the educated class of Muslim legal scholars engaged in the several fields of Islamic studies. They are best known as the arbiters of shari‘a law...

 whether the term Qiyas refers to analogical reasoning, inductive reasoning
Inductive reasoning
Inductive reasoning, also known as induction or inductive logic, is a kind of reasoning that constructs or evaluates propositions that are abstractions of observations. It is commonly construed as a form of reasoning that makes generalizations based on individual instances...

 or categorical syllogism
Syllogism
A syllogism is a kind of logical argument in which one proposition is inferred from two or more others of a certain form...

. Some Islamic scholars argued that Qiyas refers to reasoning, which Ibn Hazm
Ibn Hazm
Abū Muḥammad ʿAlī ibn Aḥmad ibn Saʿīd ibn Ḥazm ) was an Andalusian philosopher, litterateur, psychologist, historian, jurist and theologian born in Córdoba, present-day Spain...

 (994-1064) disagreed with, arguing that Qiyas does not refer to inductive reasoning, but refers to categorical syllogism in a real
Reality
In philosophy, reality is the state of things as they actually exist, rather than as they may appear or might be imagined. In a wider definition, reality includes everything that is and has been, whether or not it is observable or comprehensible...

 sense and analogical reasoning in a metaphor
Metaphor
A metaphor is a literary figure of speech that uses an image, story or tangible thing to represent a less tangible thing or some intangible quality or idea; e.g., "Her eyes were glistening jewels." Metaphor may also be used for any rhetorical figures of speech that achieve their effects via...

ical sense. On the other hand, al-Ghazali
Al-Ghazali
Abu Hāmed Mohammad ibn Mohammad al-Ghazzālī , known as Algazel to the western medieval world, born and died in Tus, in the Khorasan province of Persia was a Persian Muslim theologian, jurist, philosopher, and mystic....

 (1058–1111) (and in modern times, Abu Muhammad Asem al-Maqdisi
Abu Muhammad Asem al-Maqdisi
Abu Muhammad al-Maqdisi or more fully Abu Muhammad Asem al-Maqdisi is the assumed name of Isam Mohammad Tahir al-BarqawiAbu Muhammad al-Maqdisi or more fully Abu Muhammad Asem al-Maqdisi (أبو محمد عصام المقدسي) is the assumed name of Isam Mohammad Tahir al-BarqawiAbu Muhammad al-Maqdisi or more...

) argued that Qiyas refers to analogical reasoning in a real sense and categorical syllogism in a metaphorical sense. Other Islamic scholars at the time, however, argued that the term Qiyas refers to both analogical reasoning and categorical syllogism in a real sense.

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
David Hume
David Hume was a Scottish philosopher, historian, economist, and essayist, known especially for his philosophical empiricism and skepticism. He was one of the most important figures in the history of Western philosophy and the Scottish Enlightenment...

 famously argued in A Treatise of Human Nature
A Treatise of Human Nature
A Treatise of Human Nature is a book by Scottish philosopher David Hume, first published in 1739–1740.The full title of the Treatise is 'A Treatise of Human Nature: Being an Attempt to introduce the experimental Method of Reasoning into Moral Subjects'. It contains the following sections:* Book 1:...

 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.

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
David Hume
David Hume was a Scottish philosopher, historian, economist, and essayist, known especially for his philosophical empiricism and skepticism. He was one of the most important figures in the history of Western philosophy and the Scottish Enlightenment...

), an avid prison reformer, advocate for democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...

, and strongly atheist. Bentham's views about law and jurisprudence were popularized by his student, John Austin
John Austin (legal philosopher)
John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence....

. Austin was the first chair of law at the new University of London
University of London
-20th century:Shortly after 6 Burlington Gardens was vacated, the University went through a period of rapid expansion. Bedford College, Royal Holloway and the London School of Economics all joined in 1900, Regent's Park College, which had affiliated in 1841 became an official divinity school of the...

 from 1829. Austin's utilitarian
Utilitarianism
Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness", by whatever means necessary. It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can...

 answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Contemporary legal positivists have long abandoned this view, and have criticised its oversimplification, H. L. A. Hart particularly.

Hans Kelsen



Hans Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common-law countries. His Pure Theory of Law
Pure Theory of Law
Pure Theory of Law is a book by legal theorist Hans Kelsen, first published in 1934 and in a greatly expanded second edition in 1960. The second edition appeared in English translation in 1967, as Pure Theory of Law, the first edition in English translation in 1992, as Introduction to the...

 aims to describe law as binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory of Law is the notion of a 'basic norm (Grundnorm)'—a hypothetical norm, presupposed by the jurist, from which in a hierarchy all 'lower' norms in a legal system, beginning with constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

, are understood to derive their authority or 'bindingness'. In this way, Kelsen contends, the bindingness of legal norms, their specifically 'legal' character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation.

H. L. A. Hart



In the Anglophone world, the pivotal writer was H. L. A. Hart
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....

, 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 revived analytical jurisprudence as an important theoretical debate in the twentieth century through his book The Concept of Law
The Concept of Law
The Concept of Law is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism within the framework of analytic philosophy...

. As the professor of jurisprudence at Oxford University, Hart argued that 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. A pivotal book on Hart was written by Neil MacCormick in 1981 (second edition due in 2007), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his recently published Institutions of Law, 2007). Other important critiques have included that of Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

, John Finnis
John Finnis
John Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...

, and Joseph Raz
Joseph Raz
Joseph Raz is a legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism. He has spent most of his career as professor of philosophy of law and a fellow of Balliol College, Oxford, and simultaneously as professor of law at Columbia University Law...

.

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.

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 criticised Hart's "soft social thesis" approach in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.

Ronald Dworkin




In his book Law's Empire 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 for 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 community.

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
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

, Jr., as the main precursor of American Legal Realism (other influences include
Roscoe Pound
Roscoe Pound
Nathan Roscoe Pound was a distinguished American legal scholar and educator. He was Dean of Harvard Law School from 1916 to 1936...

, Karl Llewellyn
Karl N. Llewellyn
Karl Nickerson Llewellyn was a prominent American jurisprudential scholar associated with the school of legal realism. The Journal of Legal Studies has identified Llewellyn as one of the twenty most cited American legal scholars of the 20th century.-Biography:He was born on May 22, 1893 in Seattle...

 and Justice Benjamin Cardozo
Benjamin N. Cardozo
Benjamin Nathan Cardozo was a well-known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style...

). 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.
The chief inspiration for Scandinavian legal realism many consider to be the works of Axel Hägerström
Axel Hägerström
Axel Anders Theodor Hägerström was a Swedish philosopher and jurist.Born in Vireda, Jönköping County Sweden, he was the son of a Church of Sweden pastor. As student at Uppsala University, he gave up theology for a career in philosophy...

. Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....

, feminist legal theory
Feminist legal theory
Feminist legal theory is based on the belief that the law has been instrumental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status...

, critical race theory
Critical race theory
Critical Race Theory is an academic discipline focused upon the intersection of race, law and power.Although no set of canonical doctrines or methodologies defines CRT, the movement is loosely unified by two common areas of inquiry...

, sociology of law
Sociology of law
The sociology of law is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies...

 and law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...

.

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
Friedrich Carl von Savigny
Friedrich Carl von Savigny was one of the most respected and influential 19th-century jurists and historians.-Early life and education:...

 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
Sanctions (law)
Sanctions are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Criminal sanctions can take the form of serious punishment, such as corporal or capital punishment, incarceration, or severe fines...

, 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
Virtue ethics
Virtue ethics describes the character of a moral agent as a driving force for ethical behavior, rather than rules , consequentialism , or social context .The difference between these four approaches to morality tends to lie more in the way moral dilemmas are...

 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
Aristotle
Aristotle was a Greek philosopher and polymath, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic, rhetoric, linguistics, politics, government, ethics, biology, and zoology...

 or Thomas Aquinas
Thomas Aquinas
Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...

 later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.

Deontology




Deontology is "the theory of duty or moral obligation." The philosopher Immanuel Kant
Immanuel Kant
Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....

 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
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

.

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
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...

. John Stuart Mill
John Stuart Mill
John Stuart Mill was a British philosopher, economist and civil servant. An influential contributor to social theory, political theory, and political economy, his conception of liberty justified the freedom of the individual in opposition to unlimited state control. He was a proponent of...

 was a pupil of Bentham's and was the torch bearer for utilitarian
Utilitarianism (book)
John Stuart Mill's book Utilitarianism is a philosophical defense of utilitarianism in ethics. The essay first appeared as a series of three articles published in Fraser's Magazine in 1861; the articles were collected and reprinted as a single book in 1863...

 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
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...

 tradition. Also see Lysander Spooner
Lysander Spooner
Lysander Spooner was an American individualist anarchist, political philosopher, Deist, abolitionist, supporter of the labor movement, legal theorist, and entrepreneur of the nineteenth century. He is also known for competing with the U.S...


John Rawls



John Rawls was an American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 philosopher, a professor
Professor
A professor is a scholarly teacher; the precise meaning of the term varies by country. Literally, professor derives from Latin as a "person who professes" being usually an expert in arts or sciences; a teacher of high rank...

 of political philosophy
Political philosophy
Political philosophy is the study of such topics as liberty, justice, property, rights, law, and the enforcement of a legal code by authority: what they are, why they are needed, what, if anything, makes a government legitimate, what rights and freedoms it should protect and why, what form it...

 at Harvard University
Harvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...

 and author of A Theory of Justice
A Theory of Justice
A Theory of Justice is a book of political philosophy and ethics by John Rawls. It was originally published in 1971 and revised in both 1975 and 1999. In A Theory of Justice, Rawls attempts to solve the problem of distributive justice by utilising a variant of the familiar device of the social...

 (1971), Political Liberalism, Justice as Fairness: A Restatement
Justice as Fairness: A Restatement
Justice as Fairness: A Restatement is a book of political philosophy by John Rawls, a revision of his classic A Theory of Justice. Cambridge, Massachusetts: Belknap Press, 2001. This shorter summary of the main arguments of Rawls' political philosophy was edited by Erin Kelly...

, and The Law of Peoples
The Law of Peoples
The Law of Peoples is American Philosopher John Rawls's work on international relations. First published in 1993 as a short article , in 1999 it was expanded and joined with another essay "The Idea of Public Reason Revisited" to form a full length book...

. 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 favour. 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's famous 'difference principle'. Justice is fairness, in the sense that the fairness of the original position of choice guarantees the fairness of the principles chosen in that position.

There are many other normative approaches to the philosophy of law, including critical legal studies
Critical legal studies
Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....

 and libertarian theories of law
Libertarian theories of law
Libertarian theories of law build upon classical liberal and individualist anarchist doctrines.The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of...

.

General

  • Analytical jurisprudence
    Analytical jurisprudence
    Analytical jurisprudence is a legal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A...

  • Artificial intelligence and law
    Artificial intelligence and law
    Artificial intelligence and Law is a subfield of artificial intelligence mainly concerned with applications of AI to legal informatics problems and original research on those problems...

  • Brocard (legal term)
  • Cautelary jurisprudence
    Cautelary jurisprudence
    Cautelary jurisprudence is law made in a precautionary way prior to or outside of the normal legislative enactment. It meant empirical, practical legal efforts aimed at solving individual cases, as distinguished from regular jurisprudence which sought to establish abstract rules under which...

  • Constitution
    Constitution
    A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

  • Constitutional law
    Constitutional law
    Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

  • Constitutionalism
    Constitutionalism
    Constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....

  • Constitutional economics
    Constitutional economics
    Constitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...

  • Critical legal studies
    Critical legal studies
    Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....

  • Critical race theory
    Critical race theory
    Critical Race Theory is an academic discipline focused upon the intersection of race, law and power.Although no set of canonical doctrines or methodologies defines CRT, the movement is loosely unified by two common areas of inquiry...

  • Defeasible reasoning
    Defeasible reasoning
    Defeasible reasoning is a kind of reasoning that is based on reasons that are defeasible, as opposed to the indefeasible reasons of deductive logic...

  • Divine law
    Divine law
    Divine law is any law that in the opinion of believers, comes directly from the will of God . Like natural law it is independent of the will of man, who cannot change it. However it may be revealed or not, so it may change in human perception in time through new revelation...

  • Feminist legal theory
    Feminist legal theory
    Feminist legal theory is based on the belief that the law has been instrumental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status...

  • Fiqh
    Fiqh
    Fiqh is Islamic jurisprudence. Fiqh is an expansion of the code of conduct expounded in the Quran, often supplemented by tradition and implemented by the rulings and interpretations of Islamic jurists....

  • International legal theory
  • Judicial activism
    Judicial activism
    Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

  • Justice
    Justice
    Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...

  • Law and economics
    Law and economics
    The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...

  • Legal formalism
    Legal formalism
    Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...

  • Legal pluralism
    Legal pluralism
    Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems...

  • Legal positivism
    Legal positivism
    Legal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...

  • Legal realism
    Legal realism
    Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...

  • Libertarian theories of law
    Libertarian theories of law
    Libertarian theories of law build upon classical liberal and individualist anarchist doctrines.The defining characteristics of libertarian legal theory are its insistence that the amount of government intervention should be kept to a minimum and the primary functions of law should be enforcement of...

  • Living Constitution
    Living Constitution
    The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...

  • Originalism
    Originalism
    In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...

  • Natural law
    Natural law
    Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...

  • New legal realism
    New legal realism
    New Legal Realism [NLR] is an emerging school of thought in U.S. legal philosophy.Although it draws on the older Legal Realism from the first half of the twentieth century, New Legal Realism differs in important ways. Notably, it moves beyond the older field’s emphasis on judges, courts, and...

  • Political jurisprudence
    Political jurisprudence
    Political jurisprudence is a legal theory that some judicial decisions are motivated more by politics than by unbiased judgment. According to Professor Martin Shapiro of University of California, Berkeley, who first noted the theory in 1964: "The core of political jurisprudence is a vision of...

  • Publius Iuventius Celsus
    Publius Iuventius Celsus
    Publius Iuventius Celsus Titus Aufidius Hoenius Severianus – the son of a little-known jurist of the same name, hence also Celsus filius – was, together with Julian, the most influential ancient Roman jurist of the High Classical era....

  • Rule of law
    Rule of law
    The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

  • Rule According to Higher Law
    Rule according to higher law
    The rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...

  • Sociology of law
    Sociology of law
    The sociology of law is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies...

  • Strict interpretation
  • Virtue jurisprudence
    Virtue jurisprudence
    In the philosophy of law, virtue jurisprudence is the name given to theories of law related to virtue ethics. By making the aretaic turn in legal theory, virtue jurisprudence focuses on the importance of character and human excellence or virtue to questions about the nature of law, the content of...



Philosopher A-Z

  • Robert Alexy
    Robert Alexy
    Robert Alexy is a jurist and a legal philosopher.Alexy studied law and philosophy at the University of Göttingen...

  • Thomas Aquinas
    Thomas Aquinas
    Thomas Aquinas, O.P. , also Thomas of Aquin or Aquino, was an Italian Dominican priest of the Catholic Church, and an immensely influential philosopher and theologian in the tradition of scholasticism, known as Doctor Angelicus, Doctor Communis, or Doctor Universalis...

  • Vilhelm Aubert
    Vilhelm Aubert
    Johan Vilhelm Aubert was an influential Norwegian sociologist. He was a professor at the University of Oslo from 1963 to his death, first at the Department of the Sociology of Law and then at the Department of the Sociology of Law...

  • John Austin (legal philosophy)
  • Jeremy Bentham
    Jeremy Bentham
    Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...

  • Emilio Betti
    Emilio Betti
    Emilio Betti was an Italian jurist, Roman Law scholar, philosopher and theologian. He is best known for his contributions to hermeneutics, part of a broad interest in interpretation...

  • Norberto Bobbio
    Norberto Bobbio
    Norberto Bobbio was an Italian philosopher of law and political sciences and a historian of political thought. He also wrote regularly for the Turin-based daily La Stampa....

  • Jean Carbonnier
    Jean Carbonnier
    Jean Carbonnier was a professor at the Faculty of Law at the University of Poitiers from 1937–1955, then at the Sorbonne until 1976....

  • António Castanheira Neves
    António Castanheira Neves
    António Castanheira Neves is a Portuguese legal philosopher and a professor emeritus at the law faculty of the University of Coimbra....

  • Giorgio Del Vecchio
    Giorgio Del Vecchio
    Giorgio Del Vecchio was a prominent Italian legal philosopher of the early 20th century. Among others he influenced the theories of Norberto Bobbio. He is famous for his book Justice....

  • Jacques Derrida
    Jacques Derrida
    Jacques Derrida was a French philosopher, born in French Algeria. He developed the critical theory known as deconstruction and his work has been labeled as post-structuralism and associated with postmodern philosophy...

  • Emile Durkheim
    Émile Durkheim
    David Émile Durkheim was a French sociologist. He formally established the academic discipline and, with Karl Marx and Max Weber, is commonly cited as the principal architect of modern social science and father of sociology.Much of Durkheim's work was concerned with how societies could maintain...

  • Ronald Dworkin
    Ronald Dworkin
    Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...

  • Eugen Ehrlich
    Eugen Ehrlich
    Eugen Ehrlich was an Austrian legal scholar and sociologist of law....

  • Joel Feinberg
    Joel Feinberg
    Joel Feinberg was an American political and social philosopher. He is known for his work in the fields of ethics, action theory, philosophy of law, and political philosophy as well as individual rights and the authority of the state...

  • John Finnis
    John Finnis
    John Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...

  • Lon L. Fuller
    Lon L. Fuller
    -Selected secondary bibliography:* Robert S Summers .* W. J. Witteveen and Wibren van der Burg .-External links:* from Harvard University Library*...

  • Theodor Geiger
    Theodor Geiger
    Theodor Julius Geiger was a German socialist lawyer and sociologist. He was Denmark's first professor of sociology, at the University of Åarhus.- Life :...

  • Robert P. George
    Robert P. George
    Robert P. George is McCormick Professor of Jurisprudence at Princeton University, where he lectures on constitutional interpretation, civil liberties and philosophy of law. He also serves as the director of the James Madison Program in American Ideals and Institutions...

  • Leslie Green (philosopher)
    Leslie Green (philosopher)
    Leslie Green is a leading scholar in the analytic philosophy of law, or jurisprudence as it is often called by academic lawyers.Born in Bridge of Weir, Renfrewshire, Scotland, and educated at Queen's University, Canada, and at Nuffield College, Oxford, he completed his dissertation—which...

  • Germain Grisez
    Germain Grisez
    Germain Gabriel Grisez is a Catholic moral theologian. Grisez is the author of the three-volume Way of the Lord Jesus. Grisez moves between the spheres of philosophy and theology, articulating a new form of natural law thinking, consonant with the teachings of the Roman Catholic magisterium.Grisez...

  • Georges Gurvitch
    Georges Gurvitch
    Georges Gurvitch was a Russian born French sociologist and jurist. One of the leading sociologists of his times, he was a specialist of the sociology of knowledge. In 1944 he founded the journal Cahiers internationaux de Sociologie. He held a chair in sociology at the Sorbonne in Paris.Gurvitch is...

  • Jürgen Habermas
    Jürgen Habermas
    Jürgen Habermas is a German sociologist and philosopher in the tradition of critical theory and pragmatism. He is perhaps best known for his theory on the concepts of 'communicative rationality' and the 'public sphere'...

  • H. L. A. Hart
    H. L. A. Hart
    Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....

  • Sterling Harwood
    Sterling Harwood
    Sterling Voss Harwood is an American professor, lecturer, author and attorney based in San Jose, California. His law practice primarily concerns family law, real estate law, personal injury cases, criminal law, and debtor/creditor/bankruptcy law.-Education:Prof. Harwood received his M.A. and Ph.D...

  • Friedrich Hayek
    Friedrich Hayek
    Friedrich August Hayek CH , born in Austria-Hungary as Friedrich August von Hayek, was an economist and philosopher best known for his defense of classical liberalism and free-market capitalism against socialist and collectivist thought...

  • Georg Wilhelm Friedrich Hegel
    Georg Wilhelm Friedrich Hegel
    Georg Wilhelm Friedrich Hegel was a German philosopher, one of the creators of German Idealism. His historicist and idealist account of reality as a whole revolutionized European philosophy and was an important precursor to Continental philosophy and Marxism.Hegel developed a comprehensive...


  • Wesley Newcomb Hohfeld
    Wesley Newcomb Hohfeld
    Wesley Newcomb Hohfeld was an American jurist. He was the author of the seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays .During his life he published only a handful of law journal articles...

  • Oliver Wendell Holmes, Jr.
    Oliver Wendell Holmes, Jr.
    Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

  • Immanuel Kant
    Immanuel Kant
    Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....

  • Hans Kelsen
  • Hans Köchler
    Hans Köchler
    Hans Köchler is a professor of philosophy at the University of Innsbruck, Austria, and president of the International Progress Organization, a non-governmental organization in consultative status with the United Nations...

  • Bruno Leoni
    Bruno Leoni
    Bruno Leoni was an Italian classical-liberal political philosopher and lawyer.Besides being editor for the political science journal Il Politico, Leoni was also involved as secretary and later president of the Mont Pelerin Society...

  • Karl Llewellyn
  • John Locke
    John Locke
    John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...

  • Niklas Luhmann
    Niklas Luhmann
    Niklas Luhmann was a German sociologist, and a prominent thinker in sociological systems theory.-Biography:...

  • David Lyons
    David Lyons
    David Lyons plays Number Eight for the Wallabies.-Playing career:From his debut in 2000 Lyons played 83 consecutive games for Waratahs, a record for Australian players. His run ended when a knee injury forced him to miss the start of the 2007 season...

  • Neil MacCormick
    Neil MacCormick
    Sir Neil MacCormick, QC, FBA, FRSE , or just Neil MacCormick, was a legal philosopher and Scottish politician. He was Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh from 1972 until 2008...

  • Karl Marx
    Karl Marx
    Karl Heinrich Marx was a German philosopher, economist, sociologist, historian, journalist, and revolutionary socialist. His ideas played a significant role in the development of social science and the socialist political movement...

  • Karl Olivecrona
    Karl Olivecrona
    Karl Olivecrona was a Swedish lawyer and legal philosopher: He studied law at Uppsala from 1915 to 1920 and was a pupil of Axel Hägerström, the spiritual father of Scandinavian legal realism. One of the internationally best-known Swedish legal theorists, Olivecrona was a professor of procedural...

  • Evgeny Pashukanis
    Evgeny Pashukanis
    Evgeny Bronislavovich Pashukanis was a Soviet legal scholar, best known for his work The General Theory of Law and Marxism.-Early life and October Revolution:...

  • Leon Petrazycki
    Leon Petrazycki
    Leon Petrazycki was a Polish philosopher, legal scholar and sociologist. He is considered one of the important forerunners of the sociology of law.- Life :Leon Petrażycki was born into the Polish gentry of the Vitebsk region in the Russian Empire...

  • Richard Posner
    Richard Posner
    Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...

  • Gustav Radbruch
    Gustav Radbruch
    Gustav Radbruch was a German legal scholar and politician. He served as Minister of Justice of the German Empire during the early Weimar period. Radbruch is also regarded as one of the most influential legal philosophers of the 20th century.-Life:Born at Lübeck, Radbruch studied law in Munich,...

  • John Rawls
    John Rawls
    John Bordley Rawls was an American philosopher and a leading figure in moral and political philosophy. He held the James Bryant Conant University Professorship at Harvard University....

  • Joseph Raz
    Joseph Raz
    Joseph Raz is a legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism. He has spent most of his career as professor of philosophy of law and a fellow of Balliol College, Oxford, and simultaneously as professor of law at Columbia University Law...

  • Adolf Reinach
    Adolf Reinach
    Adolf Bernhard Philipp Reinach , German philosopher, phenomenologist and law theorist.-Life and Works:...

  • Karl Renner
    Karl Renner
    Karl Renner was an Austrian politician. He was born in Untertannowitz in the Austro-Hungarian Empire and died in Vienna...

  • Friedrich Carl von Savigny
    Friedrich Carl von Savigny
    Friedrich Carl von Savigny was one of the most respected and influential 19th-century jurists and historians.-Early life and education:...

  • Quintus Mucius Scaevola Pontifex
    Quintus Mucius Scaevola Pontifex
    Quintus Mucius Scaevola Pontifex , the son of Publius Mucius Scaevola was a politician of the Roman Republic and an important early authority on Roman law. He is credited with founding the study of law as a systematic discipline...

  • Gunther Teubner
    Gunther Teubner
    Gunther Teubner is a German legal scholar and sociologist, best known for his works within the field of Social Theory of Law. He was Professor of Private Law at the University of Bremen from 1977 to 1981. From 1982 to 1991 he was associated with the European University Institute in Florence, Italy...

  • Renato Treves
    Renato Treves
    Renato Treves was born in Turin, Italy of a Jewish family. According to Vincenzo Ferrari, Treves "devoted his first academic study to the diffusion of Claude Henri de Saint-Simon's doctrines in Italy" before turning his attention to the neo-Kantian movement and Hans Kelsen's Pure Theory of...

  • Roberto Unger
  • Jeremy Waldron
    Jeremy Waldron
    Jeremy Waldron is professor of law and philosophy at the New York University School of Law and Chichele Professor of Social and Political Theory at All Souls College, Oxford University.-Career:...

  • Max Weber
    Max Weber
    Karl Emil Maximilian "Max" Weber was a German sociologist and political economist who profoundly influenced social theory, social research, and the discipline of sociology itself...



Further reading

  • Cotterrell, R. (1995). Law's Community: Legal Theory in Sociological Perspective. Oxford: Oxford University Press
    Oxford University Press
    Oxford University Press is the largest university press in the world. It is a department of the University of Oxford and is governed by a group of 15 academics appointed by the Vice-Chancellor known as the Delegates of the Press. They are headed by the Secretary to the Delegates, who serves as...

    .
  • Cotterrell, R. (2003). The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed. Oxford: Oxford University Press
    Oxford University Press
    Oxford University Press is the largest university press in the world. It is a department of the University of Oxford and is governed by a group of 15 academics appointed by the Vice-Chancellor known as the Delegates of the Press. They are headed by the Secretary to the Delegates, who serves as...

    .
  • Freeman, M.D.A. (2008). Lloyd's Introduction to Jurisprudence. 8th ed. London: Sweet and Maxwell.
  • Fruehwald, Edwin Scott, Law and Human Behavior: A Study in Behavioral Biology, Neuroscience, and the Law (Vandeplas 2011). ISBN 978-1-60042-144-0
  • Hartzler, H. Richard (1976). Justice, Legal Systems, and Social Structure. Port Washington, NY: Kennikat Press.
  • Hutchinson, Allan C., ed. (1989). Critical Legal Studies
    Critical legal studies
    Critical legal studies is a movement in legal thought that applied methods similar to those of critical theory to law. The abbreviations "CLS" and "Crit" are sometimes used to refer to the movement and its adherents....

    . Totowa, NJ: Roman & Littlefield.
  • Kempin, Jr., Frederick G. (1963). Legal History: Law and Social Change. Englewood Cliffs, NJ: Prentice-Hall.
  • Llewellyn, Karl N. (1986). Karl N. Llewellyn on Legal Realism. Birmingham, AL: Legal Classics Library. (Contains penetrating classic "The Bramble Bush" on nature of law).
  • Murphy, Cornelius F. (1977). Introduction to Law, Legal Process, and Procedure. St. Paul, MN: West Publishing.
  • Rawls, John (1999). A Theory of Justice, revised ed. Cambridge: Harvard University Press
    Harvard University Press
    Harvard University Press is a publishing house established on January 13, 1913, as a division of Harvard University, and focused on academic publishing. In 2005, it published 220 new titles. It is a member of the Association of American University Presses. Its current director is William P...

    . (Philosophical treatment of justice).
  • Wacks, Raymond (2009). Understanding Jurisprudence: An Introduction to Legal Theory Oxford University Press
    Oxford University Press
    Oxford University Press is the largest university press in the world. It is a department of the University of Oxford and is governed by a group of 15 academics appointed by the Vice-Chancellor known as the Delegates of the Press. They are headed by the Secretary to the Delegates, who serves as...

    .
  • Zinn, Howard (1990). Declarations of Independence: Cross-Examining American Ideology. New York: Harper Collins Publishers.

External links