From Wikipedia, the free encyclopedia For the jurisprudence of courts, see Case law. Concept of law redirects here. For the book by H. L. A. Hart, see The Concept of Law. Jurisprudence is the study and theory of law. Scholars in jurisprudence, also known as 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, civil law, and the law of nations.[1] General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:[2] Problems internal to law and legal systems as such. 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:[2] Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have.[2] Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are.[3] Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in sociology of law. Critical legal studies is a younger theory of jurisprudence that has developed since the 1970s. It is primarily a negative thesis that holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of the dominant social group.[4] Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.[5] A further relatively new field is known as therapeutic jurisprudence, concerned with the impact of legal processes on wellbeing and mental health. 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,[6] at a time when the word prudence had the now obsolete meaning of knowledge of or skill in a matter. The word may have come via the French jurisprudence, which is attested earlier. Natural law[edit] Main article: 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, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical Thomist position. Strongly related to theories of natural law are classical theories of justice, beginning in the West with Plato’s Republic. Aristotle is often said to be the father of natural law.[7] Like his philosophical forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon, δικαίον φυσικόν, Latin ius naturale). His association with natural law is largely due to the way in which he was interpreted by Thomas Aquinas.[8] This was based on Aquinas conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (= Book IV of the Eudemian Ethics). Aquinass influence was such as to affect a number of early translations of these passages,[9] though more recent translations render them more literally.[10] Aristotles theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls political justice derives from his discussion of the just as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes.[11] 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.[12][13] When a persons 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.[14] Particular or partial justice, by contrast, is the part of general justice or the individual virtue that is concerned with treating others equitably.[13] 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.[15] 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 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 Aristotles having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the particular laws that each people has set up for itself, there is a common law that is according to nature.[16] The context of this remark, however, suggests only that Aristotle thought 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;[17] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong.[18] Aristotles theoretical paternity of the natural law tradition is consequently disputed Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 – 7 March 1274) was a philosopher and theologian in the scholastic tradition, known as Doctor Angelicus, Doctor Universalis. He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. The work for which he is best known is the Summa Theologica. One of the thirty-five Doctors of the Church, he is considered by many Catholics to be the Churchs greatest theologian. Consequently, many institutions of learning 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. It is Gods plan for the universe. Man needs this, for without it he would totally lack direction. Natural law is the participation in the eternal law by rational human creatures, and is discovered by reason. Divine law is revealed in the scriptures and is Gods positive law for mankind. Human law is supported by reason and enacted for the common good.[19] 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 . . .[20] 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), Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contractarian[23] and believed that the law gained peoples tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, solitary, poor, nasty, brutish and short. It is commonly commented that Hobbes views about the core of human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place, and he felt absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.
Posted on: Sat, 15 Nov 2014 02:28:45 +0000
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