Philosophy of law | irobot-roomba.info
This essay provides a concise overview of "Law and Society" which covers historical and Using the URL or DOI link below will ensure access to this page indefinitely A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY, 2ND. Before your advising appointment, print out a copy of the worksheet(s). Fill in the Philosophy or Philosophy/Law & Society courses you have already He is especially interested in the nature of explanation and its relationship to the world. Traditionally, philosophy of law proceeds by articulating and defending branch of philosophy that investigates the nature of law, especially in its relation to human . framework of rules and institutions through which a society is constituted.
The jus gentium, however, is immutable. Lucas de Penna — discussed jurisprudential questions in detail. Law is the articulation of the ethical virtue of justice, and reason is the foundation of law. At the same time he maintained, as did many civilians, that the prince's lordship rests on divine authority. The ruler is responsible to God alone and not to the people; law is not the expression of the will of the community.
Nonetheless, although the prince is unfettered by the laws, bad laws those that contradict divine law have no binding force. It is not clear, in Lucas's view, whether the obligation to obey law derives primarily from the rationality of law or from the divine grant of authority to the ruler. Later Renaissance bodin Jean Bodin —the great exponent of unlimited sovereignty under natural law whose views were apparently influenced by the fourteenth-century civilians, like them appears to have had difficulty in adapting Christian legal thought to the conditions of the secular nation-state.
In his Six Books of the Commonwealth Bodin was emphatic that "law is nothing else than the command of the sovereign in his exercise of sovereign power. Bodin's endorsement of the command theory also appears in his treatment of custom. The relative weights of positive law and custom had long been debated by the medieval lawyers, but Bodin was one of the first to hold that custom owes its legal authority to the sufferance of the ruler.
In this he anticipated the idea of tacit command expressed by Thomas Hobbes and John Austin. According to Vitoria, the jus gentium either belongs to or is derivable from the natural law and consists in prescriptions for the common good in the widest sense, namely, for the international community. Rights and obligations are thus conferred upon nations acting through their rulers.
Many positivists trace the origin of natural-law thinking to the tendency to confuse these two types of law. The reference to stability is notable: Laws generally survive both the lawgiver and the populace living when they are enacted, and they are valid until abrogated. Although Aquinas briefly discussed jus naturale as contrasted with jus positivum Summa Theologiae II—II, 57the concept of a "natural right" was almost entirely absent from his thought.
His attitude was quite remote from eighteenth-century natural-law and natural-right theorists, who thought that a perfect system of law could be deduced from the natural law. He developed their notion of a "just war," a topic that was still discussed by Hans Kelsen — and other twentieth-century theorists concerned with the problem of sanctions in international law.
Just wars presuppose the existence of laws governing relations between sovereign states; such laws have their origin in natural law and in treaties, which in turn presuppose precepts of the law of nature. The denial of the existence of natural law supposes that men are egoistically motivated, accepting law as a "second best. Therein lies the origin of law, which would be binding whether or not God exists. This statement has been regarded by historians as epoch making; they claim that Grotius separated jurisprudence from theology.
More important, perhaps, is the tendency in Grotius and others who followed him to identify natural law with certain rational principles of social organization, and thus to loosen its tie with the Stoic metaphysical conception of the law of nature. Seventeenth to Late Nineteenth Centuries hobbes and montesquieu Thomas Hobbes — was perhaps the most important of the seventeenth-century legal philosophers.
His break with the tradition of natural law provoked much controversy. Hobbes employed the terminology of "natural right," "laws of nature," and "right reason. There is no right reason in nature Elements of Law II, 10, 8.
The natural condition of humankind is one of perpetual war, in which common standards of conduct are absent. There is no right or wrong, justice or injustice, mine or thine in this situation. The crucial steps in Hobbes's theory are the identifications of society with politically organized society and of justice with positive law.
Laws are the commands of the sovereign; it is in reference to such commands that the members of a society evaluate the rightness or justness of their behavior. An "unjust law" is an absurdity; nor can there be legal limitations on the exercise of sovereign power. No writer has put forward a positivistic conception of law with greater style and forcefulness than Hobbes.
Difficulties in his position emerge from his concession that although the sovereign cannot commit an injustice, he may commit iniquity; the idea of injury to God in the state of nature; and the treatment of conscience in De Cive. Hobbes solved the problem of the source of the obligation to obey the sovereign's command by his " social contract " doctrine, the interpretation of which is still discussed by scholars.
His unfinished Dialogue between a Philosopher and a Student of the Common Laws of England examines various doctrines of the English law as put forward by Sir Edward Cokeand it is notable for its critical examination of Coke's statement that reason is the life of the law. The Second Treatise of Civil Government by Locke, primarily an attack on Robert Filmer's " divine right " theory, contains certain implied criticisms of Hobbes. Its interest for legal philosophy lies in its use of a version of the social contract to treat the question of the obligation to obey the law, its conception of limitations on sovereign power, and its individualistic view of natural inalienable rights, particularly rights in property.
Locke's influence was enormous, and his view of natural rights had a profound effect on the development of law in the United States.
A new approach to the understanding of law and its institutions was put forward by Baron de Montesquieu — He, too, spoke the language of natural law and defined laws as "necessary relations arising from the nature of things" The Spirit of the Laws I, 1. But his special importance lies in his attempt to study legal institutions by a comparative historical method, stressing the environmental factors that affect the development of law.
This suggestion had been anticipated by Bodin, and Giambattista Vico — had also applied a historical method to the study of Roman law, but Vico's work had little immediate influence. Montesquieu's doctrine of the separation of powers had an extraordinary influence.
His sharp separation of judicial from legislative and executive power reinforced the conception that the judge is a mere mouthpiece of the law and that judges merely declare the existing law but never make it.
Inin his Reflections on the Revolution in France, Edmund Burke turned the historical approach to a practical political use when he protested against proceeding a priori in the "science of constructing a commonwealth. The keynote of his legal philosophy was inspired by Jean-Jacques Rousseau —who set as the problem of his Social Contract the reconciliation of social coercion and individual freedom. Kant's legal philosophy may be called a philosophy of justice in which the concept of freedom plays a central role.
Kant sought a systematic understanding of the principles underlying all positive laws that would enable us to decide whether these laws are in accordance with moral principles.
Positive law "proceeds from the will of a legislator," and any viable legal system will take into account the particular conditions of the given society. With these conditions the theory of law has no concern.
The theory is an application of the results of moral philosophy to the conditions of "men considered merely as men. A law Gesetz is a formula expressing "the necessity" of an action. Juridical and moral laws are distinguished in that the former regulate external conduct irrespective of its motives. But this does not mean that a judge should necessarily ignore the lawbreaker's motives when passing sentence upon him. Any man, as a morally free agent, is entitled to express his freedom in activity so long as it does not interfere with the similar freedom that others possess.
This is the principle underlying all legislation and "right. The necessary and sufficient condition for legal punishment is that the juridical law has been broken. It must be recognized, however, that the domain of such law is restricted by the limits of compulsion.
While it is morally wrong to save one's own life by killing another, even where this is the only expedient, it can never be made legally wrong to kill in such a case. The principle of law receives content in Kant's application of it to particular private rights in external things and in his analysis of the methods for acquiring such rights.
Kant's influence on jurisprudence, after being somewhat eclipsed by Hegelianism, reemerged at the end of the nineteenth century. One of the most important neo-Kantians was Rudolf Stammler —who invented, but eventually discarded, the phrase "natural law with variable content. He defined law as "exceptionless binding volition.
Of the influences on Bentham, two may be briefly noted. David Hume — argued that moral distinctions are not derived from reason; passion, or sentiment, is the ultimate foundation of moral judgment.
Justice is grounded in utility. Second, the Italian criminologist Cesare Beccaria —in his Of Crimes and Punishmentssubjected the existing institutions of criminal law and methods of punishment to relentless criticism. His standard of judgment was whether "the greatest happiness of the greatest number" was maximized. Bentham acknowledged his debt to Beccaria, and this "principle of utility" was the base of Bentham's voluminous projected "codes.
In his The Limits of Jurisprudence Defined published in he defined a law as the expression of "the will of a sovereign in a state. Inthe year of his death, the Reform Act was passed, largely as a result of the work of his followers. Mill's On Liberty is an attempt to treat the limits of legal coercion by the state along modified utilitarian lines. In legal philosophy Bentham's influence affected the English-speaking world especially through the thought of John Austin —the seminal figure in English and American legal positivism and analytic jurisprudence.
Austin tried to find a clear demarcation of the boundaries of positive law, which would be antecedent to a "general jurisprudence" comprising the analyses of such "principles, notions, and distinctions" as duty, right, and punishment, which are found in every legal system; these analyses in turn were to be employed in "particular jurisprudence," the systematic exposition of some given body of law.
Austin began by distinguishing "law properly so called" and "law improperly so called. The last notion led Austin to his famous and influential analysis of "sovereignty"; "laws strictly so called" positive laws are the commands of political superiors to political inferiors. From this it follows that international law is merely "positive international morality" rather than law in a strict sense.
Some writers, viewing this as an unfortunate and perhaps dangerous consequence, were led to various revisions of Austinianism. Austin's "separation" of law and morality is often taken as the hallmark of legal positivism. Yet Austin was a utilitarian; in distinguishing between the law that is and the law that ought to be, he did not mean that law is not subject to rational moral criticism grounded in utility, which he took to be the index to the law of God.
At this point Austin was influenced by such "theological utilitarians" as William Paley. Austin's views were subjected to vigorous discussion both without and within the traditions of positivism and analytical jurisprudence. And as the disciplines of history, anthropology, and ethnology assumed an increasing importance during the nineteenth century, rival approaches to the understanding of law developed.
Thus, Sir Henry Maine —who formulated the historical law that legal development is a movement from status to contract, argued in his Early History of Institutions London, that the command-sovereignty theory of law has no application in a primitive community, where law is largely customary and the political "sovereign," who has the power of life or death over his subjects, never makes law.
The Austinian view can be saved only by maintaining the fiction that what the "sovereign" permits, he commands. Nonetheless, Austin had many followers at the turn of the twentieth century, such as T. Holland — and J. Salmond —who attempted to preserve the imperative and coercion aspects of his theory while introducing revisions. The role of the courts was increasingly emphasized. Acknowledging his debt to Austin, Gray defined law as "the rules which the courts [of the State] lay down for the determination of legal rights and duties.
All law is judge-made. The machinery of the state stands in the background and provides the coercive element, which does not enter into the definition of "law.
Law and Society - Oxford Handbooks
In his Philosophy of Right, G. Hegel — developed some Kantian themes in his own characteristic way. Law and social-political institutions belong to the realm of "objective spirit," in which interpersonal relationships, reflecting an underlying freedom, receive their concrete manifestations.
In attempting to show the rightness and the rationality of various legal relationships and institutions in given moments of the development of "spirit," and in seeing them as natural growths, Hegel formulated a theory of law and the state that was easily combined with various historical, functional, and institutional approaches to legal phenomena.
Friedrich Karl von Savigny — is often regarded as the founder of the historical school. His Of the Vocation of Our Age for Legislation and Jurisprudence was published before Hegel's work and was probably influenced by Johann Gottlieb Fichte but not by Fichte's Grundlage des Naturrechts,whose notion of the "folk-spirit" was widely known.
Law, like language, originates spontaneously in the common consciousness of a people, who constitute an organic being. Both the legislator and the jurist may articulate this law, but they no more invent or make it than does the grammarian who codifies a natural language.
Savigny believed that to accept his conception of law was to reject the older notions of natural law; nevertheless, it is often claimed that Savigny's conception was merely a new kind of natural law standing above, and judging, the positive law.
Otto von Gierke —the author of Das deutsche Genossenschaftsrecht, clearly fits into the tradition of the historical school.
- Requirements for Philosophy or Philosophy/Law & Society
- Philosophy of law
- PHILOSOPHY OF LAW, HISTORY OF
Carter —to severe criticism. It should be noted that Maine's views have nothing in common with those of Savigny; in Maine's work the metaphysics of the Volksgeist is entirely absent.
Late Nineteenth Century to Mid-Twentieth Century jhering and german positivism Rudolf von Jhering —eminent both as a historian of law and as a legal theorist, rejected both Hegel and Savigny: Hegel, for holding the law to be an expression of the general will and for failing to see how utilitarian factors and interests determine the existence of law; Savigny, for regarding law as a spontaneous expression of subconscious forces and for failing to see the role of the conscious struggle for protection of interests.
However, Jhering shared the broad cultural orientation of many of the Hegelians, and he was grateful to Savigny for having overthrown the doctrine of "immutable" natural law. Jhering's contribution was to insist that legal phenomena cannot be comprehended without a systematic understanding of the purposes that give rise to them, the study of the ends grounded in social life without which there would be no legal rules.
Without purpose there is no will. At the same time there are strong strains of positivism in Jhering: Law is defined as "the sum of the rules of constraint which obtain in a state" Der Zweck im Recht, p. In this respect he was close to the German positivists, who emphasized the imperative character of law. Karl Binding —an influential positivist, defined law as "only the clarified legal volition [Rechtswille ] of a source of law [Rechtsquelle ]" Die Normen und ihre Uebertretung, p.
In this period the slogan of German positivism, "All law is positive law," emerged. Yet Jhering opposed many of the claims of the analytical positivists; his essay "Scherz und Ernst in der Jurisprudenz" Leipzig, ridiculed their "heaven of jurisprudential concepts. Hermann Kantorowicz regarded Jhering as the fountainhead of both the "sociological" and "free-law" schools. The former term covers too wide a group of writers to be surveyed here, some of whom were concerned solely with empirical work, while others combined empirical work with a philosophical outlook.
Proponents of the jurisprudence of interests Interessenjurisprudenz eschewed Jhering's inquiries into the metaphysical and moral bases of purposes, claiming that he did not sufficiently attend to the conflict of interest behind laws; law reflects dominant interest.
Similar analyses were made in the United States; for example, the "pressure-group" theory of politics advanced by A. Bentley [—] in The Process of Government, Chicago, Much attention was devoted to the analysis of the judicial process and the role that the "balancing" of interests plays in it. As Philipp Heck, one of its leading exponents, remarked: This sentiment was endorsed by the closely allied "free-law" movement.
According to this group, "legal logic" and the "jurisprudence of conceptions" are inadequate for achieving practicable and just decisions. The judge not only perforce frequently goes beyond the statute law, but he also often ought to go beyond it. The "free-law" writers undertook the normative task of supplying guidelines for the exercise of judicial discretion, and the judicial function was assimilated to the legislative function.
The focus on such problems reflected the enormous change, occasioned by the industrialization of Western society, in the functions of the state. No longer did the nation-state exist merely to keep the peace or protect preexisting rights; rather, it played a positive role in promoting social and individual welfare.
The philosophy of law thus became increasingly concerned with the detailed working out of the foundations of legal policy. Llewellyn — and other representatives of legal realist tendencies, summarized his Grundlegung der Soziologie des Rechts as follows: The "inner order" of an association is the basic form of law.law relating to societies
Ehrlich also engaged in empirical study of the "legal facts" Rechtstatsachen and "living law" of various communities in the Austro-Hungarian Empire. Ehrlich may thus be said to have considered custom as law in its own right. However, many positivists would argue that he was not able to account for the normative character of custom. Central to the Marxist position are the notions of "class" usually defined in terms of legal relationship to property and the means of production and "class interest," which leads to the analysis of the role of law in different societies with differing class structures.
Addressing their critics, Karl Marx and Friedrich Engels wrote: This suggests that law is merely part of the ideological superstructure and has no effect on the material organization of society. It raises the question of whether law exists in all societies—for instance, in primitive society or in the "classless" society arising after the triumph of socialism—and the further question of the nature and function of law in the transitional period from capitalism to socialism.
The issue of "revolutionary legality" or "socialist legality" was treated by V. Pashukanis, and Andrei Vishinsky. An important Marxist study of the relationship between law and the economy is that of the Austrian socialist Karl Renner Die Rechtsinstitute des Privatrechts und ihre soziale Funktion, Influenced by the epistemology of the neo-Kantians, Kelsen distinguished sharply between the "is" and the "ought," and consequently between the natural sciences and disciplines, such as legal science, which study "normative" phenomena.
Legal science is a descriptive science—prescriptive and valuational questions cannot be scientific—and Kelsen's "pure theory" aimed at providing the conceptual tools for studying any given legal system irrespective of its content. The theory is "pure" in that it is divorced from any ideological or sociological elements; it attempts to treat a legal system simply as a system of norms.
Kelsen's view was thus similar to the analytical jurisprudence of Austin, but Kelsen regarded legal norms as "de-psychologized commands. Legal systems are sets of coercive norms arranged in hierarchical fashion; lower norms are the "concretizations" of higher norms. In Kelsen's analysis the "dualisms" of state and law and public and private law disappear, and the relationship between international law and national legal systems is seen in a fresh light.
Unlike Kelsen, Gustav Radbruch — did not found a school. His position, which he called relativism, has many affinities with that of Kelsen; but Radbruch maintained that law, which is a cultural phenomenon, can be understood only in relation to the values that men strive to realize through it.
He attempted to analyze these values in relation to legal institutions, showing the "antinomies" among these values that led to his relativism. World War II raised the question in the minds of many legal philosophers whether the separation of law and morals of legal positivism, which was popular in Germany, contributed to the rise of Nazism.
Concern over this problem seems to have caused Radbruch to move away from his earlier relativism toward a kind of natural-law position. This may account for its sociological and realistic tone.
The erudite Roscoe Pound — was its most prolific writer. Pound recognized the influence of Josef Kohler — and his notion of jural postulates and, especially, of Jhering. The pragmatism of William James also contributed to the development of his views. Introducing a distinction between "law in books" and "law in action," he maintained the need for a close study of the actual operation of legal institutions.
On both scores his influence in the United States has been momentous, but it is difficult to summarize his position; he is often associated with a "social engineering" approach to law. Law contains both precepts and ideal elements. Among precepts Pound distinguished rules, principles, conceptions, doctrines, and standards. It is pointless to isolate some canonical form to which all laws are reducible. The ideal element consists of received ideals "of the end of law, and hence of what legal precepts should be and how they should be applied.
In his later years Pound moved toward a kind of natural-law thinking, arguing for a more intimate connection between law and morality; he abjured the realist tendencies, which had been influenced by his earlier thought, as "give it up" philosophies. It is exceedingly difficult to characterize the legal realists; they disclaim a common doctrine but recognize an interest in a common set of problems.
Holmes presented in that article his famous definition of law as "the prophecies of what the courts will do in fact. When the judge asks what the law is on some matter, he is not trying to predict what he will decide. Bingham was one of the first realists.
In "What Is the Law? Laws are really judicial decisions, and the so-called rules or principles are among the mentally causative factors behind the decision. The latter fact is important, as the kinds of legal systems in Europe and the Anglophone world have varied widely through the last several millennia. Although the shape and structure of those systems cannot be discussed in any detail here, it should nonetheless be noted that a robust understanding of each of the major theories and texts in the history of philosophy of law requires some acquaintance with the legal systems of the cities and states in which a given theory was developed.
Law and Society
As a result, Aristotle theorized about law primarily on the model of general rules of action enacted by legislation and revisable by direct vote or other plebiscitary means. To take a different example, starting in the 17th century many British and later other Anglophone philosophers of law argued for the central importance of judicial institutions for the very existence of a legal system and debated the idea of legal reasoning as a distinct sort of deliberative activity.
More recently, increasing attention has been paid to the related question of how the language of the law is to be correctly interpreted. Some theorists, beginning in the early 20th century, even found it fruitful to think about the nature of law primarily from the point of view of legal professionals such as judges or lawyers. That development is surely to be at least partly explained by the fact that those theorists reflected on law almost exclusively within advanced common law systems—i.
Ancient Greece The abstract concept of law is acknowledged, though not discussed, in the poems of Homer and Hesiod in the 8th—7th century bce.
In the Greek histories and literature of the 6th and 5th centuries bce, however, one finds the first articulation of ideas about law that have had enduring influence in the West: They do whatever it bids. The great dramatist Sophoclesin his tragedy Antigone, first made salient the important idea that the requirements of law and morality may conflict. Out of familial duty, Antigone flouts the order and buries the body, thereby herself risking punishment by death.
The relevant Greek term, nomos, varied widely in meaning across contextsoften referring simply to convention or practice. In his dialogue Crito, Plato fictionally cast his teacher, Socratesimprisoned and sentenced to death for impiety and corrupting the youngas faced with a choice between accepting the death penalty and escaping, thereby disobeying the law. In the dialogue Socrates makes the provocative argument, on behalf of the laws of Athens, that since he has received the benefits and protections of living under law for his entire life and has never left the city out of protest, he is obligated either to obey its laws or to persuade the state that they should not be enforced against him.
Since he has failed at his trial in the latter task, he must respect the laws by obeying their commands, regardless of their content. Because of its universal nature, a law can sometimes fail to apply, or apply only indeterminately, to a novel case unforeseen by the legislator. Detail of a Roman copy 2nd century bce of a Greek alabaster portrait bust of Aristotle, c. He shared the common Greek view that, as a general principle, law had a share in eternal divine wisdom.
As such, it was an instrument by which to constrain the exercise of political power, particularly that of tyrants, whose policies represented only their own interests and not the good of the community.
The Romans established new legal forms and institutions as well as the first legal professionals and administrators.
This practice culminated in the Digest Digestaassembled by the Byzantine emperor Justinian I reigned — cea work that eventually served as the basis of many modern legal systems of western Europe. But whereas Greek law faded in influence, the Greek legacy in the philosophy of law was to endure for several centuries, extending through the Middle Agesduring which there were many refinements and extensions of Greek themes and ideas, particularly within the Christian tradition.
In his work De republica On the Republiche famously held, echoing Sophocles, that: This more-capacious conception of law set rather strict moral conditions that putative positive human-created law must meet in order to qualify as real law: Natural-law theory was given its first systematic treatment by the great Christian philosopher St. He claimed, in terms clearer than in previous theories, that law had by nature a distinctive point or purpose.
In the most-abstract sense, the purpose of law is to serve the common good of a political community. More concretely, law is a promulgated plan of coordination whereby a society can realize goods both tangible and intangible that cannot be achieved by other means. Painting of Thomas Aquinas; attributed to Botticelli, — This derivation can occur in two ways.
First, law can be derived by a kind of immediate deduction from moral principles, such that there is a direct correspondence in content between a moral and a legal rule.
For example, from the moral principle that murder is wrong, the legal prohibition of homicide may be formulated and enacted. Second, law can be derived from morality by a more-indirect process, which Aquinas called in Latin determinatio—determination or specification of how a general moral principle applies in specific circumstances to facilitate human coordination.
Much of positive law, he claimed, was derived from morality in this second way. A standard modern example is traffic laws requiring that people drive on one side of the road or the other.