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Philosophy
of law is concerned with the formulation of concepts and theories to aid in
understanding the nature of law, the sources of its authority, and its role in
society. In English-speaking countries the term "jurisprudence"
is often used synonymously and is invariably used in reference to particular
subdivisions of the field. |
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To the extent that
it implies some necessary link or coincidence with general philosophy, the
phrase "philosophy of law" may be somewhat misleading, for philosophy
of law is mostly untouched by the conflicts of different philosophical schools,
and its practitioners may without incongruity draw on diverse philosophical
outlooks--on Logical Positivism for some analytical problem of the structure of
legal orders and, simultaneously, on Existentialism for a problem of
sociological jurisprudence or justice, for example--without commitment in any
such instance to an entire philosophical outlook. (see also law)
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Nor can one treat
philosophy of law as a specialized branch of philosophy such as ethical or
political philosophy, epistemology, or logic, for in philosophy of law all these
branches may make contributions. Ideas that may illumine jurisprudential
problems must indeed be sought not only in philosophy but in all systematic
bodies of thought. Only if "philosophy" is interpreted in its least
technical and broadest sense does "philosophy of law" cease to be a
misnomer. |
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9.1.1.1
Various approaches.
For practical
reasons, such as to avoid overlappings, it is convenient to organize
jurisprudence into three principal branches only: analytical jurisprudence,
sociological jurisprudence, and the theory of justice. |
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The analytical
questions in jurisprudence are concerned with articulating the axioms, defining
the terms, and prescribing the methods that best enable one to view the legal
order (or part of it) as a self-consistent system and that maximize awareness of
its logical structure. Perhaps the most rigorous solutions are those which, like
that of Hans Kelsen, a
contemporary Austrian-American legal philosopher, attempt to identify structural
or relational features as being necessarily entailed in the meaning of legal
norms or in lawyers' intellectual operations with them (see below Pure
theory of law ).
Alternatively, the basis for logical structuring may be found in some imputed
attribute of law not itself inherently structural. The 19th-century English
legal philosopher John Austin,
for example, thought it an essential preliminary to his quest for a logical
system in law to clarify what was involved in his assumption that law always
consists of "commands." This clarification is important, but the claim
that such a clarified version of a common assumption necessarily amounts to an
analytical model of law seems unwarranted. (see also analysis)
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On more modest
levels, the analyst may seek to infuse clarity and orderliness into some
particular branch of a legal system or even into the applications of some
particular rule. Such work shades over, on the one hand, into ordinary legal
analysis and, on the other, into jurisprudential efforts to clarify the meaning
of particular legal terms. Analysis of a particular word or even a particular
branch of law will usually, by necessity, be particularist in the sense that it
works upon legal materials found only in one particular legal system. In between
particularism and universalism lie what are sometimes called comparative
approaches, in which analytical jurisprudence is applied to materials drawn from
more than one (but not from all) legal systems. |
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The sociological
questions in jurisprudence are concerned with the actual effects of the law upon
the complex of attitudes, behaviour, organization, environment, skills, and
powers involved in the maintenance of a particular society. Conversely,
sociological jurisprudence is also concerned with the effects of social
phenomena on both the substantive and procedural aspects of law, as well as on
the legislative, judicial, and other means of forming, operating, changing, and
disrupting the legal order. The fact that men in a given time and place hold
particular ideas and values, including ideals of justice,
is itself a fact the relation of which to law must be studied; but the focus is
sharply different from that in the study of theories of justice. Its focus is
descriptive, not normative; it is concerned with what is or with what goes on,
not with what ought to be or ought to go on. (see also social
science, normative ethics)
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The theory of
justice is concerned with the evaluation and criticism of law in terms of the
ideals or goals postulated for it. This involves the identification and
articulation of the values that the legal order seeks to realize. This aspect of
jurisprudence is inextricably interwoven with ethical and political philosophy,
and theories of justice thus tend to parallel the full range of ethical and
political philosophies. |
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A consideration of
fundamental importance in the philosophy of law is that of the distinction
between law and morality. The importance of the distinction is illustrated by
the main questions to which it gives rise: (1) How far and in what sense should
the law of a community seek
to give effect to its morality? (2) Is there a moral duty to obey the law even
when it does not embody morality, and, if so, are there any limits to this duty?
(3) When a legal rule directs conduct that morality forbids, which should the
citizen obey? (4) Is there ever (and, if so, when is there) a duty to overthrow
an entire legal system because of its conflict with morality? |
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In all these
questions the word "law" refers to the specialized form of social
control familiar in modern, secular, politically organized societies. The word
"morality" in the four questions may, however, refer to any of the
following: (1) the community's relevant factual behaviour patterns (its mores);
(2) its socially approved behaviour patterns, as sanctified by some widely held
rational or religious ideal, whether observed in practice or not (social
morality); or (3) the moral ideals accepted by each individual as binding on
himself and on others, whether or not those others agree (individual morality).
All these, like law, are means of controlling human conduct by setting normative
standards; and all three have a constantly changing interaction with each other,
as well as with law. |
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The fact that legal
and moral norms vary from
place to place and from one historical period to another lies in part behind a
persistent theme in the philosophy of law: the search for unchanging norms that
are universally valid. Clearly, the most certain way of establishing such norms
would be to base them on widely observed facts, such as man's social
propensities or the ubiquitous importance of kinship in social organization,
which supposedly reveal something fundamental about the nature of man and his
adjustment to the world. The attempt to base norms on some such category of
facts has for two millennia been associated with the concept of natural
law. This concept has many versions, the principal of which are
outlined in the historical survey below, but the significance of the topic
merits some separate preliminary discussions. |
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It has always been
possible to trace a mainstream of natural-law thought, flowing from Aristotle's
premise that the "nature" of any creature, from which obligations must
be derived, is what it will be in its fullest and most perfect development. For
man, this means what he is when the powers and qualities distinguishing him from
other creatures, namely, his reason and his impulse to social living, are fully
developed. Natural law embodies those obligations that will appear if mankind's
reason and sociality are fully unfolded. |
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A major difficulty
presented by this attempt to develop normative standards appears to be that it
is very difficult to demonstrate, let alone create a sense of obligation toward,
values that are only immanent. All theories of natural law, moreover, have found
it necessary to rely on what are essentially intuitions or preconceptions as to
what man's true nature is. All such theories acknowledge, for instance, that the
full development or fulfillment of an entity is not the same as its mere
continued existence, that there may be a "warping" or
"impeding" of the natural tendencies, so that what exists may then
"be said to be unsound or incorrect." Thus, mere factuality is not a
sufficient source of obligation. Similarly, St.
Thomas Aquinas himself, in identifying the "inclinations"
from which men may learn natural law, found it necessary to order these in
grades of inclination, so that those inclinations most closely related to reason
and sociality take priority over those concerned (for example) with procreation
and self-preservation. The criteria by which such a hierarchy is ordered must be
drawn from sources other than the factual inclinations themselves. The
"lower" grades (such as self-preservation) may well be based on
something like instinct; but the question arises at the higher grades whether
there is any comparable instinct by which men seek to find moral precepts
binding all of them in common. Aquinas here appealed to synderesis,
a kind of sympathetic understanding found in men, a disposition (habit) of the
practical intellect inclining them to the good and murmuring against evil.
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To derive from this
synderesis a universal natural law, however, it would be necessary to
demonstrate some "universal conscience" of all mankind. But natural
lawyers faced with the fact that men's consciences do not coincide explain that
conscience may err and reason be corrupt. Invocation of synderesis is in fact
helpful not as an account of how one may arrive at factually based normative
standards but as an illustration of the psychological tendency of men to assert
values. |
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9.1.2.1
The ancient world.
9.1.2.1.1
Greek
thought.
The major
contribution of Greece was a body of philosophical and cosmological ideals about
justice, more apt for orators' appeals to popular assemblies than for preceptual
application to day-to-day life situations. (see also Greek
law) |
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Early Greek cosmologies,
embedded in some of the earliest myths, had seen the individual as held within a
kind of transcending harmony of the universe, emanating from the divine law (logos)
and expressed in relation to human life in the law (nomos)
of the polis, the city-state. The later Sophists,
however, who examined critically all assumptions relating to life in the
city-state, pointed to the wide disparities in human law and morals and rejected
the claim that this human law (nomos) necessarily reflected any universal
law (logos). Taking man as "the measure of all things," they
rejected any claims of his law (nomos) to absolute value and saw law and
justice and values generally as created by men's reasons, in their multitudes
and generations, in all their individuated, relativistic, and historically
changing dimensions. |
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In the restless
intellectual and political climate of 5th-century Athens, Plato
was concerned to redefine the nature of justice by relating it to something far
more permanent and absolute than the nomos of the city-state. He assigned
"reality" to the unchanging archetypal forms--i.e., the
ideas--of things rather than to the ephemeral phenomena as superficially and
confusedly perceived by individual men unenlightened by philosophy. In the
utopia described in The Republic, Plato defines justice in an architectonic sense: justice prevails when the
state is ordered in accordance with the ideal forms ascertained by its
philosopher-kings and is thus unrelated to the nomos of the city-state.
There is no need for human law, since transcendental
knowledge rules. In his later thought, however, as revealed in Politicus
(the "Statesman") and the Laws, when he is concerned to describe a more practicable but nevertheless
"second best" state, Plato assigns to law a role almost as important
as that of knowledge in The Republic. A famous classification of states
given in Politicus is indeed based on the criterion of whether or not
they are ruled by law. The law as Plato here conceived it, however, was not mere
convention or the imperfect individual judgments of men but a reflection of the
common human reason in its full development. To this extent the rule of law
might approximate the ideal rule of knowledge envisaged in The Republic, for
in the inherited law of men is crystallized that much wisdom of which they are
capable. (see also idealism)
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And yet it was
difficult for Plato to find justification for such an argument in his basic
philosophical position, with its emphasis on the contrast between the mere
opinion of ordinary men and the transcendental knowledge of the philosopher.
Aristotle, who in common with Plato held a view of nature or reality that
transcended the variability of things as perceived by the senses, was, however,
able more successfully to defend the validity of a law resulting from the
practice of ordinary men. For Aristotle's transcendental reality is more firmly
related to things as they are: it comprises that which they will become as their
potentialities unfold in nature toward the end that is theirs in nature. Man,
in his nature, is moral, rational, and social, and his law may be judged by the
extent to which it facilitates the development of these innate qualities. |
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The Greek
conception of natural law underwent further refinement by the Stoic school of
philosophy, which became active toward the end of the 4th century BC. The Stoics
posited the existence of a natural law, the jus naturale, which was an
emanation of the lex aeterna, the law of reason of
the cosmos. The existence of an innate reason in men linked everyone with the
cosmic order and subjected all to a universally valid moral law. This latter
concept thoroughly infused Roman thinking, largely as a result of the influence
of Stoic philosophy on Rome. (see also Stoicism)
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Greek law scarcely
survived as a system, because it never developed a class of legal specialists or
abandoned its lay administrators or its popular tribunals of grotesque size. Roman
law, on the other hand, developed through the efforts of expert
jurisconsults (learned lawyers)
and praetors (magistrates)
into a permanent heritage of Western society. By its adoption into works such as
Cicero's De republica as well as in the work of the great jurisconsults,
Stoic speculation concerning reason and nature was brought onto the level of
precepts for concrete problem solving. The crude, tribal jus
civile ("civil law") of the Romans was thus
transformed into a natural-law-based jus
gentium (law applying to all people), a set of principles
common to all nations and appropriate, therefore, for application to foreigners
as well as Romans. |
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In the Talmud
there is an assertion that "Whatever decision of a mature scholar in the
presence of his teacher will yet derive from the Law
(Torah) that was already spoken to Moses on Mt. Sinai." In theory, this
presupposed that the Oral Law
must respect every jot and tittle of the revealed written law. Yet the richness,
ambivalences, and silences of what was written, in relation to a changing world,
still left the widest freedom to the scholarly reason of the rabbinical exegetes
into whose care both the written law and the Oral Law finally came. (see also Hebrew
literature, Jewish law)
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The operations of
the rabbinical schools and courts over many creative centuries, especially
during and following the first Babylonian Exile, resembled those of the great
Roman jurisconsults and the great judges of the common-law tradition. One Talmudic story tells of a doctrinal
rift between the majority of a rabbinical court led by a great rabbi and a
dissenting but no less great rabbi, in which the dissenter successfully summoned
the authentic voice of God onto his side of the argument. To this intervention
the majority of the court responded: "The law is not in heaven, the law has
been handed down to us on earth from Mt. Sinai, and we no longer take notice of
heavenly voices. . . ." And the story relates that, at that point, God said
with a smile to Elijah the prophet, with whom he was walking: "My children
have defeated me, my children have defeated me." But this was an indulgent
ratification, not an implacably cruel wrath such as the Greek god brought down
on the head of Prometheus. Thus, even against divine intervention, the learned
stood their ground, relying for the interpretation of the law on their own
wisdom and reason. |
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9.1.2.2.1
Augustine.
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St.
Augustine of Hippo,
in attempting to refute the pagan assertion that Christianity was responsible
for the decline of Roman power, reintroduced Stoic philosophy alongside
Judeo-Christian thought into the stream of modern jurisprudential speculation.
He placed God's reason beside God's will as the highest source of the
unchangeable, eternal, divine law binding directly on man and all other
creatures. The divine law was thus accessible to both man's reason and his faith
and was not, as St. Paul had largely concluded, the product of his will alone
and hence not rational in terms of human as opposed to divine reason. |
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At a second level,
Augustine placed the no less unchangeable natural law, being the divine law as
man is given the reason, heart, and soul to understand it. The third level, of
temporal, or positive, law
(for him, the Roman law of the Christian Roman Empire), was warranted by the
eternal divine law, even though it changed from time to time and from place to
place, so long as it respected the limits laid down by the divine and natural
law. This rationale of secular power, some have thought, preserved the idea of
government under law through the disintegration of the ancient world, for
recultivation in the revival of learning of the 12th and 13th centuries. (see
also secularism) |
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Aquinas, like
Augustine long before, succeeded in quieting momentarily the competing claims of
the will against the reason of God, the struggle between "voluntarism"
and "rationalism,"
as the underlying basis of the eternal and natural law. Aquinas, like Augustine,
gave a plausible place to both natural law and temporal (or positive) law under
the eternal law. Human, or positive, law is a creation of human reason for the
common good, within limits that natural law prescribes, so that even this
proceeds from right reason and therefore from the eternal law. Such positive law
as violated the natural and thus the eternal law "was not law" or
merely was not binding "in conscience." |
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The tendency to
make reason prevail over will (as in Plato's call for philosophers to be kings
or the Arab Averro?' call
for philosophers to interpret what is revealed) was challenged by a voluntarist
countermovement at Paris and Oxford in the quarter of a century after Aquinas'
death in 1274. A Franciscan, John Duns Scotus, insisted on the uniqueness of all
beings as finally traceable to the uniqueness of God's will. All precepts, even
of the divine law, depend on the single precept "Love God," and, since
not reason but will gives access to this, there is no natural law accessible to
man's reason. All that can be required of human, or positive, law is that it
must be "consonant" with the precept "Love God," or with any
other precept willed by God. |
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Machiavelli
presented himself (on one interpretation, at least) as seeking to escape from
both transcendent will and transcendent reason into the empirical, into life as
it is, observed through the eyes of a worldly man whose mind is uncluttered with
philosophical and theological preconceptions. He can be understood, in his own
words, to be seeking "what a principality is, the variety of such States,
how they are won, how they are held, how they are lost." This conception
was the more remarkable in 1513, since such an approach had then barely been
promulgated for study of the physical world. It had still, indeed, to await its
major manifesto in that sphere until Francis Bacon's Advancement
of Learning at the end of the century. (see also Empiricism)
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Even on the more
favourable view of Machiavelli's aim--i.e., as describing, rather than
prescribing, political behaviour--it remains true that he saw this description
as ancillary to the art of maintaining the state and its ruler, so that this
maintenance is a kind of end in itself. The omnipotence--unrestrained by law or
morality--that he both ascribes and prescribes to the prince is thus a product
not so much of his scientific detachment as of his tendency to view political
power as a value, as an end in itself. |
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The supremacy of
the human lawgiver, as posited by Machiavelli and in their diverse ways also by
the French and English political theorists Jean
Bodin and Thomas Hobbes
and others, interwove in the following centuries with continued insistence by
Grotius and others on the dominance of the divine reason and man's participation
in it, by which he has access to the natural law. |
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The Dutch political
and legal philosopher Hugo Grotius,
amid the political expediencies and anarchy of the Thirty
Years' War (1618-48), sought to introduce a degree of normative
restraint among the monarchical rulers of the newly emerged sovereign states of
Europe and to establish a basis in natural law for a rejection of raison
d'?at as a just cause for war, as well as for legal limits on the means and
modes of violence in war. Even if the wills of sovereign states form the basis
of the international order, Grotius argued, "the totality of the relations
between States" is still "governed by law." That law he found in
an updated version of the Stoic natural law, as naturalized into Roman law and
Christian theology. (see also Stoicism)
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With Grotius, as
with the Stoics, the normative or moral power of the natural law derives from
the fact that man's innate nature (itself part of the nature of the cosmos) and
his propensities are viewed as ideal or inherently good. In Grotius' own time,
however, there arose a skepticism toward such unfounded optimism, a skepticism
that underlies the thought of Hobbes. |
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With Hobbes
(1588-1679), as with the Greek Sophists, the nature of man is not the ideal
nature of Grotius and the Stoics. It is rather man's supposed actual nature,
before sociality and authority have tempered it. Man, in a state of nature, is
motivated by desires and aversions and most of all by the desire to preserve his
biological existence. This need for security is best met by all men vesting
their rights of self-help in a sovereign, whether that sovereign be a single man
or an assembly of men, and subjecting themselves to the laws of that sovereign,
or "great Leviathan." |
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The reason why men
must obey the law of the sovereign state, which is the only institution capable
of protecting men against each other, is thus based firmly in Hobbes's
conception of man's nature, albeit a very different conception from the idealist
premises of earlier theories of natural law. Natural-law theorizing after Hobbes
is thus divided into these two major streams. |
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By the beginning of
the 17th century the idea of applying natural law as a test of the validity of
the positive law (the law of the particular human jurisdiction) had passed from
the province of speculative writers to courts of law. The English jurist Lord Coke,
in Bonham's case in 1610, was already referring to the tradition that "when
an act of Parliament is against common right or reason or repugant or impossible
to be performed, the common law will control it, and adjudge such act to be
void." About a century before that, an English treatise known as "St.
Germain, Doctor and Student" had already presented a three-tier hierarchy
of the law of God, natural law (the law of reason), and human (positive) law,
obviously deriving from Augustine and Aquinas.
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In the United
States in the next century, constitutional theory became highly infused with
ideas of natural rights. The Declaration
of Independence, with its assertion of the self-evident rights of
life, liberty, and the pursuit of happiness, marked the beginning of a
continuing natural-law influence on American constitutional development. The
power of the judiciary to "review" legislation for consistency with a
written constitution was taken in the United States to import the power to
declare it void, constitutional law being analogized to natural law. Indeed,
American judicial statements of 1814, 1822, and 1831 asserted the power of the
judiciary to strike down statutes for violation not only of explicit
constitutional restraints but also of "eternal principles of justice which
no government has a right to disregard." The analogy of
constitutional and natural law did not necessarily require that the
power to strike down legislation should be a judicial power: this was not so in
ancient Rome, nor is it always so in modern civil-law countries. It is arguable
that such a judicial repository of the power of final review is unavoidable,
since the legislature cannot be expected to annul its own acts; and the
executive, even if it were not a party to such acts, is scarcely equipped for
the tasks of objective interpretation involved. Yet there are real difficulties
of policy and principle raised by giving the judiciary the final word. A
distinction must first of all be made among diverse constitutional restraints.
Safeguards for such rights as free speech and assembly and access to courts,
which help to assure the responsibility of rulers and to prevent the fall of
democracy into tyranny or demagoguery, may well be placed in the final custody
of judges. But, beyond this point, others have argued, judicial supremacy, in
enforcing restraints laid down by the Founding Fathers of an earlier generation,
may clearly constitute an obstacle to the implementation by the courts of a
society's present convictions. (see also American
law) |
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If man is the
measure of all things, as the Sophists
taught, then a given society of men is the measure of its culture, including its
moral and legal standards. In the modern period the French jurist and political
philosopher Montesquieu's De
l'esprit des lois (1748) and Lettres
persanes (1721) offered the thesis that a people's law and
justice are determined by the particular factors and environment that operate
upon them. They thus could not, as the natural-law theory of the time held, be
unchanging from age to age and from people to people. The French sociologist Auguste
Comte's Syst?e de
philosophie positive (1851-54), which set out to explain
positive laws, like other social facts, by reference to verified hypotheses
concerning cause and effect and interaction, was similarly antithetical to
natural-law theory as it had so far developed. To Comte, metaphysical
concepts about such abstractions as ideal essences belonged to a past stage in
man's intellectual development. And Darwin's On
the Origin of Species by Means of Natural Selection (1859), the
English philosopher Herbert Spencer's
positivism, and other related thinking of the period provided a biological model
of self-development of organisms and institutions through a struggle in which
survival was a function of challenge and response in the given environment.
Change and adaptation, rather than constancy and inviolability, were thus at the
heart of their system. (see also "Spirit
of Laws, The," ) |
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Under the
leadership of anthropologists, analyses of man's internal process of response to
the exigencies of existence within a particular culture--to conscious and
subconscious psychic drives and motivations--deeply affected the jurisprudential
study of law and society and helped to bring natural-law thinking to a
19th-century nadir. In the anthropologist Bronislaw
Malinowski's most mature statement on the matter, he distinguished
four major meanings of the word law as important in understanding the growth of
civilization. They included "laws of nature" in the scientific sense
of rules governing men's conscious adaptations to the environment; rules of
"efficiency" and "convenience" according to which the group
lives; rules for conflict adjustment; and rules about enforcement of the last
two. No conception of natural law, which had engaged earlier thinkers for two
millennia and more, was included. |
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Another line of
thought, which was also divorced from natural-law concepts, was contained in the
Idealist philosophy of Immanuel Kant.
Fundamental to Kant's ethical and jurisprudential reasoning is the premise that
all moral concepts have their basis wholly in a priori thought, that they can be
arrived at by reason alone, without reference to experience or recourse to
intuition of rules alleged immanent in experience. Man, furthermore, is a free
agent whose actions are determined by aims that he is at liberty to select. From
such premises Kant deduced the nature of an ideal law, in which is implicit a
theory or criterion of justice. This ideal law comprises the conditions under
which all members of society can enjoy the maximum freedom from subjection to
the arbitrary will of others. (see also a
priori knowledge, transcendental
idealism) |
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But Kant's
supposedly a priori concepts are in fact as transcendental
as anything natural lawyers have offered. It is thus not surprising that later
thinkers, such as Johann Fichte,
Kant's Idealist successor, had little difficulty in putting the new Kantian wine
into natural-law bottles. |
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The 20th century
saw a fresh attempt at the Kantian approach in the work of the German legal
philosopher Rudolf Stammler.
Adopting the Kantian position that knowledge is independent of sensory
experience, Stammler set out to discover pre-experiential categories, or
"pure forms," of thinking about law. Stammler arrived at a social
ideal of a "community of free-willing men," an ideal that he claimed
to have universal validity because of its supposed a priori basis. Having thus
arrived at a "pure" ideal of society, untainted by empirical content
deriving from sense perception, he felt able to formulate equally pure
principles for just law that would regulate his ideal society. Stammler's pure
idea of society comprised the harmony of individual and common purposes: his
pure idea of just law thus comprised those principles conducive to such
harmony--the mutual respect of individuals for each other's purposes and the
participation of all in the achievement of the common purposes. (see also Kantianism)
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The different
stream of Idealism flowing from Hegel's philosophy of history was fed into
jurisprudence by Josef Kohler,
Stammler's close predecessor in that subject in the Berlin University. His work
is still another effort to relate social facts and the norms of justice by
exposing the immanence of values in facts--in "civilization" in
Kohler's case. |
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In perspective,
these idealisms, despite their formal or philosophical antagonism to
"rationalism" and natural-law thinking, seem to have reinforced in the
age of the Industrial Revolution
the individualist and libertarian trends that natural law had built up
successively against medieval church and empire, the shackles of medieval
social, political, and economic organization, and 18th-century despotism. |
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9.1.2.3.1
Analytical
Positivism.
The early 19th
century witnessed a reaction against both Kantian Idealism and iusnaturalism
(natural-law theorizing). The scientific temper of the age, reflected in the
practical achievements of the early decades of the Industrial Revolution, was
not conducive to deductive reasoning from a priori hypotheses, which appeared an
impractical method of solving the problems of complex societies. Such problems
might better be approached via a thorough analysis of existing law and
institutions. This new climate of opinion came to be known as Positivism.
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Among the chief
meanings of Positivism in the legal-analytical sphere are the separation of law
as it is and law as it ought to be, stress on the analysis of legal concepts,
reliance on logical reasoning in the search for applicable law, and denial that
moral judgments can be based on observation and rational proof. Anglo-Saxon
analytical Positivism has directed itself mainly to the logical dissection,
appraisal, and clarification of the precept element of law, ignoring the
elements consisting of lawyers' traditional techniques and received ideals. By
the nature of its tasks, analytical jurisprudence does not concern itself with
either the facts surrounding or the consequences flowing from legal precepts or
with their ethical evaluation, though particular analysts may also be interested
in those matters. |
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Analytical
Positivism in England began with the work of the philosopher and legal reformer Jeremy
Bentham. His work influenced John Austin, the most outstanding figure
in English jurisprudence, who set out to analyze the notions pervading English
law. In order to delimit his subject, he defined positive law as the commands of
a sovereign addressed to political inferiors and backed by threats of evil in
the event of disobedience. Positive law might well be derived from moral
precepts and other sources, but such precepts become law only when commanded by
a sovereign. |
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The
analytical-Positivist attitude has continued to influence thinkers, although the
particular approach of Austin is now of historical interest only. Logical
analysis is clearly a tool that may be employed in many spheres of
jurisprudence, and its importance thus transcends the limits of any one school.
Analysis means little in itself; its value depends largely on the validity of
the premises from which the argument is made and on the relevance of the subject
matter that is chosen for analysis. The paramountcy for the analytical
Positivist of questions of logical order and consistency represents a
permissible deviation, yet still a deviation, from the wider concerns of
ordinary lawyers and students of law and society generally. This is not to say
that there is a necessary conflict between the requirements of justice among
changing social facts and those of logical consistency of precepts. It means
only that there is surely no necessary (nor indeed usual) coincidence between
them. |
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In discarding
speculative cosmology, the a priori, and the self-evident, 19th-century
historical jurisprudence opened the way for the search for the realities of law
through empirical observation--for a sociodescriptive rather than a
logico-analytical-Positivist jurisprudence. |
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The leading figure
in the historical school was the German jurist Friedrich
Karl von Savigny, who confronted the natural-law aspiration for a
universal human code with the singularity of the law of particular peoples
resulting from their unique sociocultural experiences. |
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For Savigny, law
rests on the Volksgeist, or innate popular consciousness; law par excellence is customary law.
He recognized, of course, that the details of a developed legal system do not
spring from simple group intuition. With maturity, both life and law become more
specialized and artificial, creating a dualism in more mature law. Part of such
a system still rests directly on the popular consciousness and way of life
("the political element"); but this becomes elaborated by jurists, be
they Roman jurisconsults or common-law judges, who in this respect represent the
community ("the technical element"). |
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Savigny's emphasis
on the need of legal change to respect the continuity of the Volksgeist offers
a pre-Darwinian concept of juristic evolution. The Volksgeist corresponds
to modern notions of social rather than biological inheritance. Savigny's sense
of the impotence of legislatures in the face of the restraints imposed by the Volksgeist
foreshadows modern recognition of the social and psychological limits of
effective legal action. |
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The English legal
historian Sir Henry Maine's
dual academic concern with both English law and Roman law challenged him to
explain their independent yet often parallel growths and may well have redeemed
him from Savigny-like overemphasis of national uniqueness. His concern led him
to a comparative historical jurisprudence seeking hypothetical "laws"
of development controlling all legal systems. He saw changes in substantive law
and in the machinery and modes of legal enforcement and growth as moving in pace
with certain recognizable stages in social growth, from primitive, kin-organized
society to the mature, complex commercial and industrial societies of Europe. |
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Maine's experience
in India after the publication of his Ancient Law in 1861 broadened his
interests so that he embraced less well known and less developed systems, such
as the Brehon, Hindu, Welsh, Germanic, Anglo-Saxon, and Hebrew. His breadth of
interest matched the concurrent growth in anthropological study of primitive
peoples. (see also "Ancient Law:
Its Connection with the Early History of Society, and Its Relation to Modern
Ideas") |
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Maine's work shows
the strong combined influence of the analogy of biological to social evolution
and of the Hegelian philosophy of history. The consequent, somewhat mechanistic
tenor of his interpretations resulted in his being accused by many
anthropologists and legal historians of making false assumptions concerning the
pattern and sequence of social development. |
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Certain residues of
the Marxist economic interpretation of history have won a central place in
sociological jurisprudence (see below Growth
of the sociological school ),
as indeed in most branches of social science. One such persistent trend of
thought is the close interrelatedness of legal, ethical, economic, and
psychological inquiries; another is the pre-eminence among these of economic
factors. According to Marxist doctrine, the political and judicial systems--the
state and the law--represent the superstructure of society, their nature being
determined by the economic base--the mode of production and exchange. The state
and its repressive law are but instruments of class domination, becoming
redundant under Communism, which has no need of coercion. During the transition
to full Communism, they would "wither away." There were, of course,
softenings of this bold doctrine in its original authors, with admissions that
the ethical or legal superstructure should not be seen as a merely passive
effect; and Lenin himself
pressed to extremes both the passion of the original thesis and its
qualifications. Lenin, indeed, saw state power as an essential weapon of the
proletarian dictatorship until the movement to a full Communist society should
be completed. (see also Marxism,
economic theory , socialism,
Soviet law) |
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The first
half-century of the Soviet Union, with its steady consolidation of state power
and its attendant law, has imposed the severest strains on the withering-away
prediction. The general tenor of explanation is that the "law" the
disappearance of which is prophesied refers only to the kind of coercive order
manifest in such instrumentalities as the courts, police, and jails of
capitalist countries. |
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Within these
sweeping theses of Marxist thinking, more modest subtheses have played a
valuable part. The Socialist jurist Karl
Renner, for example, in his Rechts-institute
des Privatrechts und ihre soziale Funktion (1929), was concerned to show
that the legal conception of ownership, formulated in early economies, had
profound new effects when continued as an institution of the 19th-century
economy. It then, through the law of property and contract, alienated into
private hands great segments of what should be in the public domain.
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Even more notable
are the German sociologist Max Weber's
studies of the correlations of socioeconomic and ethicojuristic change, freed of
the straitjacket of economic determinism. In these, the impact of unique factors
or combinations of factors in particular civilizations is taken into account,
including the existence of accepted systems of values, immediate and ultimate,
which may (and in Weber's view did) have a decisive effect on the emergence of
the Western capitalist system. |
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The historical
jurisprudence of the earlier part of the 19th century became subject to the
influence of the developing social sciences, which attempted to explain law in
its social context. The result was the emergence of a sociological school of
jurisprudence. |
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The early decades
of sociological jurisprudence combined 19th-century faith in progress, social
evolution, rationalism, humanitarianism, and political pluralism with a sanguine
belief that the Newtonian model of natural science would also hold for the
social sciences. It was affected by questions of whether the social sciences are
truly sciences, what their mutual boundaries are, and whether they can be
integrated or somehow transcended by some subject such as sociology or
anthropology. |
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An outstanding
figure of the early sociological school was a German, Rudolf
von Jhering, who in the 1860s contributed to the intellectual stream
a theory of justice predicated on a view of law as a social phenomenon. He saw
law as an outcome of the struggle of men to fulfill their purposes and of the
force that they marshal behind this. Another historical jurist, the German Otto
von Gierke, stirred a related interest with his emphasis on the
importance of the inner life and activities of groups and associations as
sources of binding social norms. This opened up jurisprudence to some
psychological issues. Gierke's work also contributed to the later American Neorealism
through its influence on Oliver Wendell
Holmes, Jr., and to the theory of the "living law" of the
Austrian jurist Eugen Ehrlich,
in the first decade of the 20th century. Ehrlich insisted on the profuse
norm-creating activities of the countless associations in which men are
involved. |
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At the beginning of
the 20th century a great variety of psychological hypotheses were brought to
bear on law. A theory of dynamic psychic drives, for example, was propounded by
an American sociologist, Lester F. Ward,
who argued that such drives could be utilized in social planning. Freud's
exploration of psychic activity on a subconscious level, as well as studies of
the nonrational and the irrational in the social process by the Italian and
German sociologists Vilfredo Pareto
and Max Weber, were also profoundly influential. |
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Iusnaturalism, in
the sense of the assertion of an order of norms for human conduct transcending
human will, to which the validity of positive law is subjected, has certainly
experienced a 20th-century revival. The massive human delinquencies of the
century, such as those of the Nazis,
have been important in stimulating these modern natural-law yearnings. The
revival, indeed, has rarely overthrown dominant Positivist positions, but it has
certainly reopened some questions that Positivists have not adequately faced. |
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Contributions to
this re-emergence have come from varied directions, rather than from a single
intellectual movement. They have often avoided explicit reference to natural law
and have even expressed hostility or ridicule toward it. The German Stammler and
the French jurist Fran?is G?y
were certainly among its pioneers. G?y's M?hode
d'interpr?ation (1899) displayed the inescapably creative (or lawmaking)
role of the judiciary even under a comprehensive code such as the Code
Napol?n. It led him to the questions of what are "the sources of
law" and where does the legislator's prescription fall short. Answers to
such questions must be based on the facts of each particular situation to be
adjusted--the legislator cannot impose his view on the court. This line of
thinking foreshadowed a variety of doctrines about "the nature of
things" or "the nature of facts," all of which shared the idea
that the decisive nature of a situation has its base in the facts for which men
seek governing law. The properties and circumstances of these facts themselves
afford immediate guidelines for just regulation. The fact situation, if only its
essence will be perceived, has the superior applicable norms immanent within it.
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In his Lehre
von dem richtigen Recht (1902), Stammler sought, as
described above, the a priori social principles of just law concerning respect
for and participation by all members. His call for "natural law with a
changing content" based on these a priori principles quickly became a
20th-century slogan. |
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Even as this
express reinvocation of natural law was proceeding, the French public lawyer L?n
Duguit was expressly denouncing it. Duguit's concern was to place law
and lawyers within what he saw to be the correct frame. This he found in ?ile Durkheim's Positivist sociology. This led him, with some
paradox for a contemner of natural law, to insist that law is but "le
produit spontan?des faits" ("the immediate result of the
facts"). The observed "facts" of social solidarity arising from
economic specialization of functions generated, Duguit argued, the society's
norms. Breach of these norms causes social disorder and a spontaneous movement
toward readjustment. Even a supreme legislator was bound (Duguit affirmed) by
this objective "rule of law," so that his acts violating it are void,
even apart from any other constitutional restraint. All this bears the clear
iusnaturalist mark of the assumed immanence in observed facts of a transcending
and overriding order. It pays cryptic homage to a natural law, fealty to which
Duguit denied. |
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The German legal
philosopher Gustav Radbruch's
turn toward natural law at the end of a life of great contributions to
democratic legal relativism and Positivism
was very different. Positivism, Radbruch argued, had encouraged German lawyers
to stand by at Nazi barbarism, declaring "Gesetz ist Gesetz"
("Law is Law"). Nor was Radbruch's turn to natural law in any way
cryptic. He came to declare quite openly that: (see also Analytical
Positivism) |
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where
justice is not even striven for, where equality which is the core of justice is
constantly denied in the enactment of positive law, there the law is not only
"unjust law" but lacks the nature of law altogether.
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The linkage with
the revived natural law of the legal institutionalism of the French legal
philosopher Maurice Hauriou
and the writer and historian Georges Renard is different
again. As with Duguit, the linkage is not proclaimed, but no overt hostility
disguised their obvious sympathy for Thomist positions. Theirs is a Catholic
version of institutionalism (which regards social
institutions such as the family or the corporation as expressing the social
reality underlying the law). The natural-law assumptions are apparent in the
insistence on "the principles of organization," the
"communion" of members in realizing "durable ideals," and
the placing of men's powers of organization into the service of such ideals, as
essential elements of any institution. For them, as for Duguit, the principles
of justice were principles of social organization, immanent and self-evident.
(see also Thomism)
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It has been
tempting for many to seek kinships between natural law and Existentialism,
as was attempted by the German legal philosopher Werner Maihofer.
Such efforts seem, however, destined to denature either Existentialism or
natural law itself. Even in all their varieties, Existentialist positions
approach no nearer to natural law than to assert that the traumas, anxieties,
and demands of mere "existence" confront men with fateful value
choices. Yet this is far short of asserting that any transcending principles of
harmony may be discoverable.
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Abstract symbols
such as "social solidarity," "the principles of social
organization," or "immanence in the facts of social life" are by
virtue of their ambiguity susceptible to misappropriation by absolutist
governments. The same may be said of Savigny's Volksgeist
notion, as witness its affinity to the racialism of Nazi law. Thus, while
the modern revival of natural law has been in part a revulsion from
totalitarianism, it can also be exploited to rationalize totalitarianism. |
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There is another
paradox also: The growth of the social sciences has invited restatement of
natural-law traditions in terms of social ideals. Yet the very complexity of the
social and economic orders and of their attendant sciences has placed forbidding
barriers before the aspiration to base justice or other values on
"objective" knowledge. Some have been tempted to hope that natural law
may somehow overleap such barriers. |
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In part, at least,
the influence of the distinguished legal philosopher Hans Kelsen's "pure
theory of law" reflects early 20th-century skepticism
about natural law and sociology, to both of which Kelsen opposed his claimed
purity of method; i.e., a method free from contamination by values of any
sort. |
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He asserted, first,
that legal theory was properly a science in the sense of an uncommitted,
value-free, methodical concern with a determined object of knowledge. Second, he
argued, legal theory must be isolated from psychological, sociological, and
ethical matters. Third, purity of method permits the analyst to see that every
legal system is in essence a hierarchy of norms in which every proposition is
dependent for its validity on another proposition. The justification for
describing any particular rule as law thus depends on whether there is some
other proposition standing behind it, imparting to it the quality of law. This
regression is continued until the Grundnorm, or "basic
norm," is arrived at. The basic norm derives its validity from
the fact that it has been accepted by some sufficient minimum number of people
in the community. |
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Kelsen's
assertion that norms can spring only from other norms seems but another way of
stating his rejection of the relevance of facts to values and, therefore, of
iusnaturalism and sociology to his pure science of law. Yet finally it has
seemed to many dubious whether the Kelsenite theory itself escaped the liaison
fatal between facts and norms; for, if all legal norms must finally hang on
the basic norm, then whatever it is that the basic norm hangs on must be nonlaw.
And whether the basic norm hangs on "habitual obedience to determinate
persons," as the English legal philosopher John Austin in effect proposed a
century before, or on "efficaciousness," as Kelsen proposed, what it
hangs on is fact rather than norm. Critics have complained that, at most points
in the creation of norms in Kelsen's system, what is decisive is the
intervention of acts of will of persons endowed by higher norms with norm-making
authority. The determination whether such acts of will have occurred is a
factual inquiry, to the decisiveness of which Kelsen's pure theory gave little
weight. |
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The American jurist
Oliver Wendell Holmes's
description of law in 1897 as "what the courts will do in fact" and of
the "real ground" of decisions as resting often in some
"inarticulate major premise" rather than in expressed reasons gave
20th-century legal realism
its central theme. |
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Certain features
are common to the "realist" jurists. They include (besides the
above-mentioned concern with "the law in action") stress on the social
purposiveness of law, on the endless flux in both society and law, on the need
to divorce the "is" and the "ought" for purposes of study
and to question all orthodox assumptions made by lawyers, and in particular on
the need to substitute more realistic working categories for current lawyers'
generalities. Among the orthodoxies thus challenged, these writers tended to
include the works of early sociological jurisprudence. Yet it is clear, from the
present perspective, that the concerns common to the realists and the more
orthodox sociological jurists were far more important than the ephemeral if
bitter conflicts that at first flared up between them. The American realists in
their important surviving contributions have for the most part reinforced,
clarified, and elaborated a number of main insights, notably about rule
uncertainty and fact uncertainty, which they shared with sociological
jurisprudence. |
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Scandinavian
realists, while temperamentally akin to their American colleagues, were rather
different in intellectual concerns. Methodologically, they invoked a somewhat
gross empiricism, leading them to deny that the law could be the subject of
scientific inquiry at all, since its concepts and principles are not founded on
spatial and temporal data of experience. Taking lawyers' talk of the will of the
sovereign very literally, they were concerned to show that there is no such will
of common content and that even legislators who enact a code are merely rubber
stamping what others drafted. |
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The Swedish jurist Axel
Hagerstr? insisted that the idea of rules of law as commands is an
idea not corresponding with facts. His disciple Karl Olivecrona
added that this false idea results from the syntactical imperative form used in
modern legislation. Such rules, he urged, were commands only in a depersonalized
sense. He preferred to describe them as "independent imperatives."
Such "imperative statements about imaginary actions, rights, duties"
may not be directed to any particular persons. Yet, even if some legal rules are
directed "so to say, into the air," others are certainly directed to
particular persons. If any form of imperative notion is to be preserved, it
should be one that accommodates both situations.
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Some of the
problems that these writings address are rather tied to the special experience
of their authors' own legal cultures. Others reach out independently toward
truths already reached earlier in Anglo-American jurisprudential scholarship,
especially as to the merely noetic and conceptual (rather than physical or
psychological) nature of rights, duties, and liabilities. |
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By the middle of
the 20th century, serious scholars no longer argued for or against the exclusive
imperium of either the analytical-logical, the justice-ethical, or the
sociological approach. Whether jurisprudence is a single field in some
scientific sense or whether its unity lies in the need to serve the intellectual
needs of those concerned with making, applying, improving, or generally
understanding law, all the above areas are included within it. (see also justice)
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A characteristic
feature of contemporary jurisprudence is what has come to be known as "the
revolt against formalism"; that is, against preoccupation with the
technical and logical aspects of law. It can be traced back to Savigny's
early 19th-century reaction against natural
law, to Jhering's
attacks on the German Pandectists
(commentators on Roman law), and to Maine
and the work of the anthropologists and early sociological jurists. Its early
pressure was toward broader and deeper history, toward recognition of the
organic nature of the processes of cultural growth, and toward problems of
social action and the value choices therein entailed. |
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In the United
States the legal philosopher Morton White identified five
later contributing strains of thought, in cluding the pragmatism of John
Dewey; the economist Thorstein
Veblen's institutionalism, rejecting both the abstractions of
classical political economy and the fatalism of the Marxist interpretation of
history; the revolt within jurisprudence of the American legal realists already
described; and the approach to history as no mere chronicle of kings and battles
but rather as a product of underlying economic forces and a guide to present and
future civilizations. (see also Marxism)
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The
sometimes-overhasty iconoclasms of this revolt have proved less important than
its positive affirmations. It has affirmed, for example, that the evaluating
activities of justice must somehow move alongside the describing activities of
sociological jurisprudence, that the choices of ethics, social policy, and
justice still remain to be made when all the empirics of social science are
done. The central question includes not merely what are the facts but also what
should be done about the facts. These affirmations reject any regression to
simple amoralism, stirring new temptations to return to natural law
or other intuitive absolutes. |
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There are important
advantages in the drive, characteristic of much contemporary social science, for
overall cognition of the social and legal orders and the identification of key
points for social action within them. But there are also dangers, for,
especially with subject matters such as the law, systematic theory and overall
cognition can rarely be of aid save in the rather long run, for which present
decision makers cannot usually wait. |
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The most eminent
pioneers and champions of modern sociological jurisprudence were Roscoe Pound in
the United States and Hermann
Kantorowicz in Europe. For both, the task of sociological
jurisprudence, though orientated mainly to practical administrative or
legislative problems, included that of framing hypotheses (as to the limits of
effective legal action, for example) on which to base general laws of the
operation of law in society. |
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As with the social
sciences, the principal methods available to sociological
jurisprudence are those of survey, statistical analysis, comparative
observation, and experimentation. The controls and corrections available usually
fall far short of those of the natural-science models. Much work in sociological
jurisprudence has merely brought to bear upon the law relevant findings from
other social sciences. But it may also generate its own findings, as it has done
in relation to traffic laws, control of moneylending, credit unions, bankruptcy
laws, the effect of antitrust practices or of poverty on legal rights, the
theory of appellate judicial decision making, and a host of other matters.
Examinations of the prehistory and aftercareers of convicted criminals and of
persons on probation or parole, probings of family and environmental influences
bearing on potential deviance, and attempts to identify decisive factors
predictive of future deviance are among the staples of sociological
jurisprudence. |
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Sociological
jurisprudence is confronted by the questions whether (and, if so, how and how
far) it is possible through empirical methods to approach central issues of
social action that involve value judgments. The fact that lawyers are
necessarily involved with ideas of obligation, values, and norms
sharpens this confrontation. A second group of problems arises from the high
level of individuality of men, groups, and societies, from the unending variety
of their emotions, roles, and expectations, and from the feedback effects on
human behaviour that the empirical observation and testing of that behaviour
brings about. (see also normative
ethics) |
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These problems give
central importance to efforts to develop frames of social knowledge that give
due place to both facts and values. Such inquiries show the great complexities
of values held and their intricate and dynamic relation to the physical and
cultural environments. |
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The study of law in
society thus shares with anthropology and other social sciences a central
interest in roles and functions as basic meaningful categories and in certain
mechanisms and channels whereby conduct is thought to become socially
meaningful. These notions are thought to permit the analysis of complex social
situations into more refined terms, such as constituent goals, tasks,
expectations, and allocated rights, powers, and duties. |
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As to the
mechanisms or channels through which conduct becomes socially meaningful,
earlier thought tended to explain social norms as built up from individual
instances through group usages and mores that then crystallize in institutions
such as law. Insofar as this suggests a cumulative movement or process, current
thought would regard it as oversimplified. The growth of socio-ethical
convictions is rather to be seen in terms of symbolic interaction between
individuals. A particular society may be seen, in this light, as a collection of
individuals with a culture that has been learned by symbolic communication from
other individuals back through time, enabling members to gauge their behaviour
to each other and to the society as a whole. |
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In his famous
program of 1911-12, Pound
formulated a series of rather practical objectives for the movement, including
making studies of the law in action, of the means of more effective legislation
and law enforcement (by creation of ministries of justice, for example), of
legal and judicial reasoning, of legal history in its social context, and of the
role of the legal profession. An early quip against the sociological school was
that it was like a great orchestra constantly tuning its instruments but never
actually playing. Yet many practical tasks have been performed, and the school
continued to show a gathering momentum and a widening range of concerns. |
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The maladjustments
and inadequacies of the law gave to early sociological jurisprudence an
intensely activist drive, directed to ad hoc remedies, and a great deal of the
relevant work is still of this nature. Especially since 1945, however, juristic
work on the relations of law and society has come into more fruitful contact
with other social sciences, leading in turn to greater stress on cognition of
the social and economic orders in their complex unity. Whatever the difficulties
of designs for an overall analysis
of the social system, some adjustment toward them is inevitable for sociological
jurisprudence. This is in part, no doubt, a result of the waning of interest in
many of the kinds of ad hoc problems with which it was initially concerned. But
the interest in sociological theory also results from growing awareness that
some problems require to be approached on a wider basis. This has created new
stirrings of the turn-of-the-century ambition that the study of law in society
become a specific branch of social science, concerned with framing and testing
general laws governing law as a social phenomenon. (Ju.S.)
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