• One school is sometimes called “exclusive legal positivism” and is associated with the view that the legal validity of a norm can never depend on its moral correctness.

  • It follows from 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 truths about the moral
    justifications of the social and political practices of that society.

  • Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action.

  • The essential tenet of legal realism is that all law is made by humans and thus should account for reasons besides legal rules that led to a legal decision.

  • According to him, law is not entirely based on social facts, but includes the best moral justification for the institutional facts and practices that form a society’s legal

  • The theory can generally be traced to American legal realism and is considered “the first movement in legal theory and legal scholarship in the United States to have espoused
    a committed Left political stance and perspective”.

  • 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 judges who are able to shape
    the outcome of cases based on their personal values or policy choices.

  • The best evidence of Aristotle’s having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the “particular” laws that each people
    has set up for itself, there is a “common” law that is according to nature.

  • The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists,
    such as John Finnis, who claim to be positivists, still argue that law is moral by nature.

  • John Finnis, one of the most important of modern natural lawyers,[11] has argued that the maxim “an unjust law is no law at all” is a poor guide to the classical Thomist position.

  • In The Concept of Law, Hart rejected Kelsen’s views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative
    social facts.

  • But many writers have doubted whether there is a single best moral justification for the complex practices of any given community, and others have doubted whether, even if
    there is, it should be counted as part of the law of that community.

  • [61][62][63] His theory of justice uses a method called “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”.

  • [18] 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.

  • Before legal realism, theories of jurisprudence turned this method around where judges were thought to begin with legal principles and then look to facts.

  • A second school is labeled “inclusive legal positivism”, a major proponent of which is Wil Waluchow, and is associated with the view that moral considerations may, but do
    not necessarily, determine the legal validity of a norm.

  • Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that
    relates to the larger political and social context in which it exists.

  • • The weak natural law thesis holds that if a human law fails to be in response to compelling reasons, then it can still be called a “law”, but it must be recognised as a
    defective law.

  • His Pure Theory of Law describes law as “binding norms”, while at the same time refusing to evaluate those norms.

  • He argues that the term “justice” actually refers to two different but related ideas: general justice and particular justice.

  • [53] Critical legal studies[edit] Critical legal studies are a new theory of jurisprudence that has developed since the 1970s.

  • [50] The Scandinavian school of legal realism argued that law can be explained through the empirical methods used by social scientists.

  • [20] This can be taken as a statement that is similar to the views of modern natural law theorists.

  • At the start of Holmes’s The Common Law, he claims that “[t]he life of the law has not been logic: it has been experience”.

  • • 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 God’s positive
    law for mankind • Human law is supported by reason and enacted for the common good.

  • Natural law[edit] In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on the basis of being analogous to the laws
    of physical science.

  • Legal realism is the view that a theory of law should be descriptive and account for the reasons why judges decide cases as they do.

  • [3] It encompasses such theories of jurisprudence as legal positivism, which holds that there is no necessary connection between law and morality and that the force of law
    comes from basic social facts;[4] and “legal realism”, which argues that the real-world practice of law determines what law is, the law having the force that it does because of what legislators, lawyers, and judges do with it.

  • [52] Despite its decline in popularity, legal realism continues to influence a wide spectrum of jurisprudential schools today, including critical legal studies, feminist legal
    theory, critical race theory, sociology of law, and law and economics.

  • 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.

  • [42] He formulates the weak social thesis as “(a) Sometimes the identification of some laws turn on moral arguments, but also with, (b) In all legal systems the identification
    of some law turns on moral argument.

  • 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 moral justification for its practices.

  • It deals with what the goal or purpose of law is, or what moral or political theories provide a foundation for the law.

  • [29] Analytic jurisprudence Analytic, or “clarificatory”, jurisprudence means taking a neutral point of view and using descriptive language when referring to various aspects
    of legal systems.

  • [3] David Hume argued, in A Treatise of Human Nature,[30] that people invariably slip from describing what the world is to asserting that we therefore ought to follow a particular
    course of action.

  • • The strong natural law thesis holds that if a human law fails to be in response to compelling reasons, then it is not properly a “law” at all.

  • [56] In his book Law’s Empire,[57] Dworkin argued that law is an “interpretive” concept that requires barristers to find the best-fitting and most just solution to a legal
    dispute, given their constitutional traditions.

  • [1] General jurisprudence can be divided 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.

  • “, legal philosophy is also concerned with normative, or “evaluative” theories of law.

  • The foundations of law are accessible through reason, and it is from these laws of nature that human laws gain whatever force they have.

  • [55] Legal interpretivism[edit] Main article: Interpretivism (legal) American legal philosopher Ronald Dworkin’s legal theory attacks legal positivists that separate law’s
    content from morality.

  • [27] Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have founded international law in the modern sense,
    instead placing its origins in the post-1870 period.

  • One important debate is within legal positivism.

  • This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be.

  • Therapeutic jurisprudence (“TJ”) studies law as a social force (or agent) and uses social science methods and data to study the extent to which a legal rule or practice affects
    the psychological well-being of the people it impacts.

  • He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of
    all and that the common good of the world should take precedence before the good of any single state.

  • Austin explained the descriptive focus for legal positivism by saying, “The existence of law is one thing; its merit and demerit another.

  • Kelsen contends that the extent to which legal norms are binding, 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.

  • Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers.

  • In the second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical
    legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest.

  • Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition.

  • “, but also tries to determine what the proper function of law should be, or what sorts of acts should be subject to legal sanctions, and what sorts of punishment should be

  • That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law.

  • John Finnis[edit] Main article: John Finnis Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common.

  • Hart argued that the law should be understood as a system of social rules.

  • Unlike experimental jurisprudence, which seeks to investigate the content of folk legal concepts using the methods of social science,[5] the traditional method of both natural
    law and analytic jurisprudence is philosophical analysis.

  • [21] 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 one’s own city was adverse to the case being made, not that there actually was such a law.

  • [44] Raz suggests that any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence.

  • [60] In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.

  • “[49] For the American legal realists of the early twentieth century, legal realism sought to describe the way judges decide cases.

  • [45] Some philosophers used to contend that positivism was the theory that held that there was “no necessary connection” between law and morality; but influential contemporary
    positivists—including Joseph Raz, John Gardner, and Leslie Green—reject that view.

  • 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.

  • Sociological jurisprudence[edit] Main article: Sociology of Law An effort to systematically inform jurisprudence from sociological insights developed from the beginning of
    the twentieth century, as sociology began to establish itself as a distinct social science, especially in the United States and in continental Europe.

  • [54] It holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of a dominant social group.

  • Modern jurisprudence began in the 18th century and was based on the first principles of natural law, civil law, and the law of nations.

  • There are two separate schools of legal realism: American legal realism and Scandinavian legal realism.

  • [32] Within legal positivism, theorists agree that law’s content is a product of social facts, but theorists disagree whether law’s validity can be explained by incorporating
    moral values.

  • [22] Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong.

  • In recent years, debates on the nature of law have become increasingly fine-grained.

  • [a] Legal positivism[edit] Main article: Legal positivism Legal positivism is the view that the content of law is dependent on social facts and that a legal system’s existence
    is not constrained by morality.


Works Cited

[‘Garner 2009, Jurisprudence entry.
2. ^ Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
3. ^ Jump up to:a b See H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harv. L. Rev. 593
4. ^ Soper, “Legal Positivism”,
Cambridge Dictionary of Philosophy
5. ^ Sommers, Roseanna (23 July 2021). “Experimental jurisprudence”. Science. 373 (6553): 394–395. Bibcode:2021Sci…373..394S. doi:10.1126/science.abf0711. ISSN 0036-8075. PMID 34437107. S2CID 236179587.
6. ^
“jurisprudence – Wiktionary”. en.wiktionary.org. Retrieved 24 May 2019.
7. ^ Oxford English Dictionary, 2nd edition 1989
8. ^ Katju, Markandey (27 November 2010). “Ancient Indian Jurisprudence” (PDF). Banaras Hindu University. Archived from the
original (PDF) on 4 November 2011. Retrieved 11 April 2019.
9. ^ Chang, Wejen (Spring 2010). “Classical Chinese Jurisprudence and the Development of the Chinese Legal System”. Tsinghua China Law Review. 2 (2). Archived from the original on 18 December
2021. Retrieved 27 June 2019.
10. ^ Adolf Berger, s.v. iudex, Encyclopedic Dictionary of Roman Law (American Philological Society, 1953, 1991), p. 518.
11. ^ Golding, Martin P.; Edmundson, William A., eds. (2013). The Blackwell Guide to the Philosophy
of Law and Legal Theory. Malden, Massachusetts: Blackwell Publishing. ISBN 9781782683131. OCLC 841495455.
12. ^ Shellens, “Aristotle on Natural Law.”
13. ^ Jaffa, Thomism and Aristotelianism.
14. ^ H. Rackham, trans., Nicomachean Ethics, Loeb
Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
15. ^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
16. ^ “Nicomachean Ethics” Bk. II ch. 6
17. ^ Nicomachean Ethics. Translated
by Irwin, Terrence (2nd ed.).
18. ^ Jump up to:a b Nicomachean Ethics, Bk. V, ch. 3
19. ^ “Nicomachean Ethics”, Bk. V, ch. 1
20. ^ Nicomachean Ethics, Bk. V, ch. 7.
21. ^ Rhetoric 1373b2–8.
22. ^ Shellens, “Aristotle on Natural Law”, 75–81
23. ^
“Natural Law”, International Encyclopedia of the Social Sciences.
24. ^ “Greek Theory of Natural Law”.
25. ^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995)
26. ^ “Summa Theologica”.
27. ^ e.g. James Brown Scott, cited
in Cavallar, The Rights of Strangers: theories of international hospitality, the global community, and political justice since Vitoria, p.164
28. ^ Koskenniemi: “International Law and raison d’état: Rethinking the Prehistory of International Law”,
in Kingsbury & Strausmann, The Roman Foundations of the Law of Nations, pp. 297–339
29. ^ Finnis, John (1980). Natural Law and Natural Rights. Oxford: Clarendon Press. pp. 18–19.
30. ^ David Hume, A Treatise of Human Nature (1739) Etext Archived
20 August 2006 at the Wayback Machine
31. ^ Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
32. ^ Green, Leslie (Spring 2018). “Legal Positivism”. The Stanford Encyclopedia
of Philosophy. Archived from the original on 4 December 2023.
33. ^ Murphy 2006, pp. 132–135.
34. ^ Himma, Kenneth Einar. “Legal Positivism”. The Internet Encyclopedia of Philosophy. Retrieved 31 May 2019.
35. ^ Martinich, A.P. (2013). Hobbes.
New York: Routledge. p. 54. ISBN 9781135180799.
36. ^ Hobbes, Thomas (1668). “Of the Natural Condition of Mankind”. In Curley, Edwin (ed.). Leviathan: With selected variants from the Latin edition of 1668. Hackett Publishing. p. 76. ISBN 9781603844857.
37. ^
Austin, John (1832). The province of jurisprudence determined ; and, the uses of the study of jurisprudence. Indianapolis, IN: Hackett Pub. p. 184. ISBN 0872204332. OCLC 39539515.
38. ^ John Austin, The Providence of Jurisprudence Determined (1831)
39. ^
Hart 2012, pp. 79–99.
40. ^ Hart 2012, p. 81.
41. ^ “The University of Edinburgh”. Archived from the original on 1 June 2006. Retrieved 24 May 2006.
42. ^ Raz, Joseph (1979). The Authority of Law: Essays on Law and Morality. Oxford: Oxford University
Press. p. 45. ISBN 9780199573561.
43. ^ Jump up to:a b Raz, Joseph (1979). The Authority of Law: Essays on Law and Morality. Oxford: Oxford University Press. p. 47. ISBN 9780199573561.
44. ^ Raz, Joseph (1979). The Authority of Law: Essays on
Law and Morality. Oxford: Oxford University Press. pp. 47–48. ISBN 9780199573561.
45. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
46. ^ Leiter, Brian (December 1997). “Rethinking Legal Realism: Toward a Naturalized Jurisprudence”. Texas Law
Review. 76: 268.
47. ^ Holmes, O.W. Jr. (1881). The Common Law. Boston: Little, Brown, and Co. p. 1.
48. ^ Langdell, C.C. (1871). A Selection of Cases on the Law of Contracts. Boston: Little, Brown, and Co. pp. vi.
49. ^ Holmes, O.W. (1897).
“The Path of the Law”. Harvard Law Review. 10 (8): 457–478. doi:10.2307/1322028. JSTOR 1322028.
50. ^ “Jurisprudence”. West’s Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005.
51. ^ Schauer, Frederick
(2009). Thinking Like a Lawyer. Cambridge: Harvard University Press. pp. 124 n.1. ISBN 9780674032705.
52. ^ Olivecrona, Karl (1971). Law as Fact. London: Stevens & Sons. pp. vii. ISBN 978-0420432506.
53. ^ Jump up to:a b Grechenig & Gelter 2008,
pp. 295–360.
54. ^ Alan Hunt, “The Theory of Critical Legal Studies”, Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. See [1]. DOI, 10.1093/ojls/6.1.1.
55. ^ Moore, “Critical Legal Studies”, Cambridge Dictionary of Philosophy
56. ^
Brooks, “Review of Dworkin and His Critics with Replies by Dworkin”, Modern Law Review, vol. 69 no. 6
57. ^ Ronald Dworkin, Law’s Empire (1986) Harvard University Press
58. ^ Wexler, David B; Perlin, Michael L; Vols, Michel; et al. (December
2016). “Editorial: Current Issues in Therapeutic Jurisprudence”. QUT Law Review. 16 (3): 1–3. doi:10.5204/qutlr.v16i3.692. ISSN 2201-7275.
59. ^ Webster’s New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
60. ^ see, Utilitarianism
Archived 5 May 2007 at the Wayback Machine at Metalibri Digital Library
61. ^ Nussbaum, Martha (20 July 2001). “The Enduring Significance of John Rawls” (PDF). The Chronicle of Higher Education. John Rawls, who turned 80 this year, is the most distinguished
moral and political philosopher of our age.
62. ^ Dorf, Michael C. (11 December 2002). “In Praise of John Rawls, The Man Who Made Moral Philosophy Respectable Again – And Whose Views Also Profoundly Informed American Legal Thought”. FindLaw. Rawls
remained the most important American philosopher since John Dewey.
63. ^ Jedediah, Purdy (29 October 2019). “What John Rawls Missed”. The New Republic. John Rawls, who died in 2002, was the most influential American philosopher of the twentieth
1. ^ For full discussion see Cotterrell 2018
b. Garner, Bryan A. (2009). Black’s law dictionary (9th ed.). Saint Paul, Minnesota, US: West. ISBN 978-0-314-19949-2.
c. Grechenig, Kristoffel R.; Gelter, Martin (2008). “The
Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism”. Hastings International and Comparative Law Review. 31 (1) (published 3 March 2010): 295–360. Archived from the original on 13 March 2020.
d. Hart, H.
L. A. (2012) [1964]. The Concept of Law (3rd ed.). Oxford: Oxford University Press.
e. Murphy, Mark C. (2006). Philosophy of law: the fundamentals. Malden, MA: Blackwell. ISBN 9781405129466. OCLC 62281976.
Photo credit: https://www.flickr.com/photos/haahr/5891485349/’]