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Wednesday, December 7, 2011

Commands, Rules, Facts: A Study of Jurisprudence (Ally Lynch; Essay 2)

Allyson Lynch

Dr. Oliver

PHIL 1030-017

5 December 2011

Commands, Rules, Facts: A Study of Jurisprudence

Introduction

“Solitary, poor, nasty, brutish, and short”, was how Thomas Hobbes describes life without an ordered Society (Jurisprudence, 5). Law has helped protect and promote ordered societies since ancient civilizations; jurisprudence is defined as the philosophy of law. Of course, this definition is not fully developed in regard to what jurisprudence fully consists of. When asked, “what is jurisprudence?”, Julius Stone, a jurisprudent, himself, writes, “a chaos of approaches to a chaos of topics, chaotically determined”, which exemplifies the wide range of this branch of philosophical study (Tur, 150). The English term is derived from the Latin word jurisprudential, which translates to “law prudence” (Jurisprudence, 1). Jurisprudents, or law philosophers, ask the basic questions, “what is law?”, and ,“what should it be?”, and hope to gain deeper understanding of the nature of law, legal institutions, legal systems, and legal reasoning. After these basic questions are asked, general jurisprudence is broken into categories by both the type of questions jurisprudents seek to answer and the schools of thought concerning how those questions are answered best; these groups are then further specified. Modern jurisprudence began in the eighteenth century and was interested in the first doctrines of natural law, civil law, and law of nations. Now, contemporary philosophy of law addresses problems in two rough groups: “problems internal to law and legal systems as such” and, secondly, “problems of law as a particular social institution as it relates to the larger political and social situation in which it exists” (Jurisprudence, 1). There are four primary schools of thought: natural law, legal positivism, legal realism, and critical legal studies, however, many other philosophies and theories of jurisprudence exist. This study of jurisprudence will focus on the history of the philosophy, several different branches and schools of thought, and prominent influencers in the philosophy.

History

Over time, jurisprudence has grown and changed but its roots date centuries back. In Ancient Rome, mos maiorum, or traditional law, was practiced by a body of customs and oral laws that were verbally transmitted from father to son (Jurisprudence, 2). Praetors, or magistrates, established a legal system by judging whether cases were capable of being prosecuted either by edicta, the yearly articulation of prosecutable offense, or, in extreme cases, if additions needed to be made. The iudex would then prosecute a sentence based on the case. These sentences were intended to be continuations of traditional customs but they started to adapt to newer social happenings. New Institutiones, or legal concepts, were implemented in law while it remained in the traditional scheme (Jurisprudence, 3). Later, in the third century B.C., Praetors were replaced with a group of prudentes, which had to have experience or proof of ability. Jurisprudents originated during this time as periti, theological advisors or consultants related to the Catholic Church. In the Ancient Indian Vedic society, the source of their Dharma, or law, was a set of poems that defined sin and remedies known as “Manu Smrti” (Jurisprudence, 3). These were not codes of law but social and ritual obligations of the time. Schools of law and relevant literature were created under the Roman Empire until the third century. After this time, Juris prudentia became a bureaucratic activity and it was not until the fifth century under the Eastern Roman Empire that legal studies and philosophies were explored in depth. Early practices of judgment in Islamic jurisprudence, known as fiqh, began in the seventh century when Islamic philosophers and jurists debated whether the process of “Qiyas” referred to analogical reasoning, inductive reasoning, or categorical syllogism (Jurisprudence, 6). These differing opinions led to differing groups of fiqh. This is just an early example of how different opinions in regard to concepts and understanding of law lead to many branches and schools of thought in jurisprudence.

Branches and Schools of Thought

Natural Law

Natural law theory has been closely associated with morality and is often summarized by the saying, “an unjust law is not a true law” (Jurisprudence, 3). This theory emphasizes that laws found in nature should parallel closely enacted laws. In natural law theory, the guide of a moral compass is to be used to direct lawmaking so that good is promoted. Aristotle is often known as the, “father of natural law” (Jurisprudence, 4). He bases his opinions of political justice on “the just” and moral virtue. He discusses the idea of justice is in Nicomachean Ethics where he describes the two related ideas of justice: general justice, when a person’s actions are totally virtuous in every matter, and particular justice, the part of general justice that is concerned with equality of others; this is how he hopes for law to exist. There has been controversy over whether or not Aristotle was a total naturalist, however, because he stated that,

“ the politically just… is only partly conventional and is also partly natural… human laws and conventions vary whereas natural laws seem to be unchanging [however]…the natural as well as the conventional is changeable: If anything just exists by nature, it will have changeable rather than fixed universal principles. If there is any fixed principle in nature… it is that of the best, or good” (Winthrop, 1207).

This view contradicts what many naturalists would say and thus, there has been debate over the “father of naturalism”. A second notable influence on the theory is Thomas Aquinas who described natural law as the human participation in the external law, divine reason known to God, discovered by reason (Jurisprudence, 5). Thomas Hobbes’ opinion differed, however, as he described natural law as a general rule found by reason that makes it wrong to disturb the preservation of life. After World War II, naturalists began to emphasize different requirements for law. Lon Fuller was one of these jurisprudents that stated, “the law must meet certain formal requirements (such as being impartial and publically knowable)” (Jurisprudence, 5). Fuller continued by saying that if the system does not abide by these requirements, people are less apt to recognize it as a system of law which exhibits that law has an internal integrity by which valid laws are made. Now, naturalist jurisprudents tend to believe in legal positivism while still holding on to the fact that law is moral.

Analytic Jurisprudence

Analytic jurisprudence is also known as “clarificatory” jurisprudence. It is sometimes defined as involving, “the analysis of general legal concepts such as rights, duties, sanctions, rules, liberty, etc., rather than those peculiar to one specific legal system” (Tur, 152). Many common questions analytic jurisprudents, therefore, are: “what are laws?”, “what is the relationship between law and power?”, “what is the relationship between law and morality when determining rights?” (Jurisprudence, 7). They also make use of David Hume’s “is-ought” distinction; this causes for the separation of analyzing what law is from evaluative questions of what law ought be which people often do not do. There are various schools of thought and influential people under this approach to jurisprudence.

Legal Positivism

The antithesis of natural law is legal positivism, which has a central tenet of separation between law and morality. This idea provides that, “the existence of laws is not dependent on their satisfying any particular moral values of universal application to all legal systems; the existence of laws depends then upon their being established through decisions of human begins in society” (Pino, 516). This ensues further, then, that a valid law is not determined by whether it carries out its purpose, whether moral or not in nature, but by it being constructed properly in harmony with the rules and standards recognized in that specific culture or society. In regard to Hume’s “is-ought” distinction, John Austin once described law as, “commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience”, but this has been abandoned by modern positivists because of over simplification and now to, “what the law is- is determined by historical social practice (resulting in rules). What the law ought to be- is determined by moral considerations” (Jurisprudence, 7). There are three main positivistic conceptions: methodological, theoretical, and ideological. Methodological positivism is characterized by a factual, value-free approach to studying law. The theoretical positivism conception is a group of theories regarding law that includes, “an imperative theory of law in which the key concepts are the ones of sovereignty and command; a theory of legal sources in which statute supposed to be a coherent and comprehensive whole; and a theory of legal interpretation, conceived of as a merely mechanical and logical enterprise” (Piro, 518). Ideological positivism is the final conception and describes that people have a moral obligation to obey positive law. Through his writing of The Concept of Law, H.L.A Hart revived analytical jurisprudence as an important philosophical debate. Hart described laws as, “a system of social rules”, that could be divided in to two main categories: primary rules, or rules of conduct, and secondary rules, or rules addressed to officials to administer primary rules (Jurisprudence, 8). Secondary rules are further divided into rules of adjudication, which are used to resolve legal disputes, rules of change, which allow laws to be varied, and the rule of recognition, which provides for the validation of laws. Joseph Raz, a fellow positivist, criticized Hart’s, “soft social thesis approach”, and argues, “law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorization of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence” (Jurisprudence, 9). In recent years, the school of positivism has divided into two branches known as exclusive legal positivism and inclusive legal positivism; this demonstrates the ever-evolving nature of jurisprudence.

Legal Realism

Skeptical in nature, legal realism’s essential tenet is that, “all law is made by human beings and, thus, is subject to human foibles, frailties, and imperfections” (Jurisprudence, 9). Legal realists believe that the law has the power the person in control of it wants it to posses. This idea is perfectly articulated when Karl Liewellyn stated, “Within the law, I say, therefore, rules guide, but they do not control decision. There is no precedent the judge may not at his need either file down to razor thinness or expand into a bludgeon. Why should you expect the ethics of the game to be different from the game itself?” (Wilkins, 469). Despite its prominence, especially in law school teachings, legal realism has been generally confined to the abstract realm of theory or the ongoing debate of jurisprudence interpretation. The main precursor of American Legal Realism was Justice Oliver Wendell Holmes, Jr. Even though the facial popularity of legal realism has subsided, it continues to have influence in jurisprudential schools today such as critical legal studies, feminist legal theory, and law and economics (Jurisprudence, 10).

Other Notable Philosophies

There are other numerous branches of jurisprudence outside of natural law, legal positivism, and legal realism. One of these studies is normative jurisprudence, which is concerned with evaluative theories of law and inquires questions such as, “what is the goal or purpose of law?”, “what is justice?”, and “what acts should be permitted” (Jurisprudence, 10). The philosophy of law under normative jurisprudence that emphasizes the role of character and virtue is known as virtue jurisprudence. This view holds that laws should promote development of virtue and morality. Other sub branches include deontology, which is the theory of duty or moral obligation promoted by a very famous jurisprudent Ronald Dworkin, and Utilitarianism, which says laws should be made so that the best outcome reaches the largest amount of people. John Rawls is said to be the most influential political philosopher of the twentieth century and he promoted the theory of using a “veil of ignorance” to determine what principles should be chosen to regulate the institutions of our society. He stated that this “original position” would promote us to choose the same political liberties for everyone and it would be just. He believed that justice is fairness and this is known as his famous “difference principle” (Jurisprudence, 11). Finally, the critical legal studies movement bases itself off of two main tendencies: the seeing past of contemporary doctrine and focusing on the manipulability character of doctoral agreement and, secondly, the thesis that law and legal reflect and reshape the social divisions and hierarchies inherent in types of social organizations (Unger, 563). The numerous schools of thought and influences allow there to be jurisprudent discussions unendingly.

Conclusion

The philosophies of law are ever-changing and growing. This long history of jurisprudence has allowed it to cultivate immensely. Although there are numerous schools of thought, they all seek at least one central question: what is law? Concluding this study, I see law as a body of regulations and provisions that aim at the overall well-being of a society and its peoples, however, it also is, sometimes, taken advantage of and manipulated. Now to tackle the question, what should it be?

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