Jurisprudence

• 1. Introduction

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  Jurisprudence, also called the theory or philosophy of law, asks a question that most working lawyers never need to ask. A lawyer wants to know what the law says on one issue in one jurisdiction. A philosopher of law looks instead for the features that law shares across cultures, times and places, hoping to assemble a universal definition from them.

  That ambition raises hard puzzles. What separates law from morality, from politics, or from simple practical reason? Can a rule be properly issued and firmly enforced, and still fail to count as law? Where do the rules of a legal system get their authority, and who decides what they mean?

  Then there is the question of purpose. Should law only be described as it stands, or should it be judged against some standard of what it ought to be? Thinkers have split sharply on that point for centuries, and the split shapes almost everything else in the field.

  This documentary follows the argument, from ancient texts to the theorists who still disagree today.

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• 2. Roman Roots

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  The word jurisprudence first appeared in written English in 1628. It descends from the Latin iurisprudentia, which joins iuris, the genitive form of ius, meaning law, to prudentia, meaning prudence. Prudence once covered discretion, foresight and circumspection, the habit of good judgment in practical affairs. In the seventeenth century it also meant knowledge of, or skill in, a matter. The English word may have arrived by way of French, where jurisprudence turned up earlier.

  The habit of theorising about law is far older than the word. Ancient jurisprudence begins with the Dharmaśāstra texts of India, among them the Dharmasutras of Āpastaṃba and Baudhāyana. In Ancient China, Daoists, Confucians and Legalists each put forward rival theories of law.

  Rome gave the subject its Latin name and much of its method. It began with the periti, experts in the jus mos maiorum, a body of oral laws and customs. Praetors then judged whether a single case could be prosecuted, either under the edicta, the annual announcement of prosecutable offences, or under additions made in extraordinary situations. A iudex, at first a magistrate and later a private individual appointed for one case, then prescribed a remedy to fit the facts.

  In theory the iudex only interpreted tradition. In practice the sentences soon grew more equitable, adapting the law to new social needs while keeping a traditional form. In the 3rd century BC, praetors were replaced by a lay body of prudentes. Admission required proof of competence or experience.

  Under the Roman Empire, schools of law appeared and the practice of law became more academic. From the early Empire to the 3rd century, groups of scholars such as the Proculians and Sabinians produced a body of literature. Its scientific character was unprecedented in ancient times. After the 3rd century, juris prudentia turned bureaucratic, with few notable authors. Legal study revived in depth in the Eastern Roman Empire of the 5th century, and from that movement came Justinian's Corpus Juris Civilis.

  The terms philosophy of law and jurisprudence are often used interchangeably. Jurisprudence sometimes stretches further, to forms of reasoning drawn from economics or sociology. Modern jurisprudence, as the field is now understood, began in the 18th century and rested on the first principles of natural law, civil law, and the law of nations.

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• 3. Reason Over Rulers

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  A single Latin maxim, lex iniusta non est lex, sums up one side of the oldest quarrel in legal philosophy. Its English form is "an unjust law is no law at all." Natural law theory holds that rulers' power has rational, objective limits. It says the foundations of law can be reached through reason, and that human laws draw their force from the laws of nature.

  In its moral form, the theory says law is inherent in nature and partly constitutive of morality. An objective moral order, standing outside every human legal system, underlies it. On this view, legislators can enact and even successfully enforce immoral laws. Those laws are still legally invalid, because "unjust" here means contrary to the natural law.

  Natural law is usually contrasted with positive law, which treats law as the product of human activity and will. It can also be compared with the law of a state of nature, or with the laws of physical science. A related approach says human law must respond to compelling reasons for action.

  That approach comes in two strengths. The strong thesis says a human law that fails to respond to compelling reasons is not properly a law at all. The weak thesis says such a rule can still be called law, but must be recognised as defective.

  Aristotle is often called the father of natural law, yet the title is disputed. Like Socrates and Plato before him, he posited natural justice or natural right, dikaion physikon in Greek and ius naturale in Latin. In Book V of the Nicomachean Ethics, he calls political justice partly a matter of nature and partly a matter of convention. His theory of justice is bound up with his idea of the golden mean, and he describes justice as a moral virtue lying between opposing vices.

  But Aristotle was describing a morality that gets enacted as law, not a system of law itself. His best evidence for a natural law comes from the Rhetoric. There he notes that, besides the particular laws each people sets up for itself, a common law exists according to nature. The context suggests only that appealing to such a law could help an argument, especially when a city's own law counted against one's case. He also judged some candidates for a universal natural law to be wrong.

  Much of the link between Aristotle and natural law comes from a later reader. Thomas Aquinas merged natural law with natural right, and his influence was strong enough to affect several early translations of these passages. More recent translations render them far more literally.

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• 4. Aquinas and His Heirs

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  Thomas Aquinas, author of the Summa Theologiae, is one of the thirty-five Doctors of the Church. He is the foremost classical proponent of natural theology and the father of the Thomistic school, which for a long time was the main philosophical approach of the Roman Catholic Church. Many Catholics consider him the Church's greatest theologian, and many institutions of learning carry his name.

  Aquinas distinguished four kinds of law. Eternal law is divine reason, known only to God, and it is God's plan for the universe. Without that plan, he held, humans would lack direction. Natural law is the participation of rational human creatures in the eternal law, and reason discovers it. Divine law is revealed in scripture as God's positive law for humanity. Human law is supported by reason and enacted for the common good.

  Natural law, for Aquinas, rests on first principles. In his words, "this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided." Every other precept of natural law builds on that one. He counted the desires to live and to procreate among the basic human values supporting all the rest.

  Francisco de Vitoria, of the School of Salamanca, was perhaps the first to develop a theory of ius gentium, the law of nations. He stretched his ideas of legitimate sovereign power to international affairs. Such affairs, he concluded, should follow forms that respect everyone's rights, and the common good of the world should outrank the good of any single state. Relations between states would then pass from being justified by force to being justified by law and justice.

  The usual account of the origins of international law credits De iure belli ac pacis by Hugo Grotius. Some scholars challenge that account and argue for Vitoria and, later, Suárez as forerunners or even founders. Others, such as Koskenniemi, say none of these humanist and scholastic thinkers founded international law in the modern sense. He places its origins after 1870.

  Francisco Suárez, regarded as among the greatest scholastics after Aquinas, split the idea of ius gentium in two. Ius inter gentes corresponds to modern international law. It was common to most countries but, being positive law rather than natural law, was not necessarily universal. Ius intra gentes, or civil law, belongs to each nation separately.

  Writing after World War II, Lon L. Fuller defended a secular and procedural form of natural law. He argued that law must meet formal requirements, such as being impartial and publicly knowable. The further a system of social control falls short of them, the less inclined we are to call it law or to respect it. Law therefore carries a morality that goes beyond the social rules under which laws are made.

  In the late 20th century, John Finnis revived interest in the tradition. His book Natural Law and Natural Rights, dated 1980 and 2011, restates the doctrine for a modern audience. Aquinas and John Locke, by contrast, made no distinction between describing law and judging it, a merger that a different school would set out to dismantle.

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• 5. The Sovereign's Commands

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  David Hume's A Treatise of Human Nature contains a short piece of logic on which analytic jurisprudence still rests. Hume observed that people invariably slip from describing how the world is to claiming that we therefore ought to act a certain way. As a matter of pure logic, an ought cannot follow from an is. Analysing the way things are must therefore be kept strictly apart from asking what ought to be done.

  Analytic jurisprudence, also called clarificatory jurisprudence, takes a neutral stance and uses descriptive language about legal systems. Its central questions are four. "What are laws?" "What is the law?" "What is the relationship between law and power/sociology?" And "What is the relationship between law and morality?" The leading answer is legal positivism, though a growing number of critics offer their own readings.

  Legal positivism holds that what a law says depends on social facts. It also holds that a legal system's existence is not constrained by morality.

  Thomas Hobbes, author of Leviathan, saw law as resting on the tacit consent of the people. He pictured society forming out of a state of nature to shield people from the state of war that would otherwise prevail. Without an ordered society, Hobbes wrote, life would be "solitary, poor, nasty, brutish and short." The English Civil War and the Cromwellian dictatorship are commonly said to have shaped his views. Reacting to them, he concluded that a civilised society rests on absolute authority held by a monarch whom subjects obey.

  Jeremy Bentham and John Austin gave positivism its early and blunt form. Both sought a descriptive account of law as it is. Austin put it this way: "The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry." In their picture, a society is governed by a sovereign with de facto authority. Laws flow from that authority as commands backed by sanctions for disobedience.

  Bentham was also an avid prison reformer, an advocate for democracy, and a firm atheist. His views on law were popularized by his student Austin, who became the first chair of law at the new University of London in 1829. Austin's answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience."

  H. L. A. Hart later attacked this command theory on one ground in particular. It could not explain why individuals comply with the law.

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• 6. Rules About Rules

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  The pedigree thesis, the separability thesis and the discretion thesis have traditionally defined legal positivism. The pedigree thesis says the right way to tell whether a directive is law is to look at its source. A directive issued by the proper official within a legitimate government is valid because of that origin, not because of its moral or practical merits.

  The separability thesis says law is conceptually distinct from morality. In its words, "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so." Positivists disagree about how far this goes. The discretion thesis holds that judges create new law when they decide cases that existing law leaves undetermined.

  Hans Kelsen is considered one of the preeminent jurists of the 20th century. He was highly influential in Europe and Latin America, though less so in common law countries. His Pure Theory of Law describes law as "binding norms" while refusing to evaluate those norms, so that "legal science" stays separate from "legal politics."

  At its center sits the basic norm, or Grundnorm. This is a hypothetical norm, presupposed by the jurist, from which all lower norms in a legal system draw their authority, beginning with constitutional law. Kelsen contended that the binding force of legal norms can be understood without tracing it to a suprahuman source. He named God, personified Nature, and, of great importance in his time, a personified State or Nation.

  In the English-speaking world, the most influential legal positivist of the twentieth century was H. L. A. Hart, professor of jurisprudence at Oxford University. In The Concept of Law, Hart understood law as a system of social rules, and he rejected Kelsen's view that sanctions are essential to it. He claimed law is the union of primary and secondary rules. Primary rules require people to act or refrain from acting, creating duties for the governed.

  Secondary rules confer authority to create new primary rules or to modify existing ones. They divide into rules of adjudication, which settle how to resolve disputes, and rules of change, which govern how laws are amended. The third kind is the rule of recognition, a customary practice among officials, especially barristers and judges, who identify certain acts and decisions as sources of law. A legal system's validity derives from that rule.

  In 1981, Neil MacCormick wrote a pivotal book on Hart, with a second edition in 2008. Its refinements and criticisms led MacCormick to build his own theory, best seen in Institutions of Law, from 2007. Other important critiques came from Ronald Dworkin, John Finnis and Joseph Raz.

  Joseph Raz argued in his 1979 book The Authority of Law against bringing moral values into the explanation of law's validity. He attacked what he called the weak social thesis, and offered in its place the sources thesis. Law's authority, he said, can be identified purely through social sources, without moral reasoning. Raz is an exclusive, or hard, positivist. Hart and Jules Coleman are inclusive, or soft, positivists, who allow moral values to help explain validity. Wil Waluchow is a major proponent of the inclusive view.

  Some philosophers once claimed positivism meant there was no necessary connection between law and morality. Influential contemporary positivists, including Raz, John Gardner and Leslie Green, reject that slogan. Raz even claims it is a necessary truth that a legal system cannot have certain vices, since it cannot commit rape or murder.

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• 7. Judges and Society

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  In Germany, a dispute over the proposed codification of German law brought historical jurisprudence to prominence. Friedrich Carl von Savigny argued in On the Vocation of Our Age for Legislation and Jurisprudence that Germany lacked a legal language able to support a code. The traditions, customs and beliefs of the German people, he said, included no belief in a code. Historicists hold that law originates with society.

  From the beginning of the twentieth century, as sociology established itself as a distinct social science, writers tried to inform jurisprudence with its insights. In Germany, Austria and France, the free law theorists Ernst Fuchs, Hermann Kantorowicz, Eugen Ehrlich and François Gény encouraged that effort. The most internationally influential advocate was Roscoe Pound, for many years Dean of Harvard Law School. Throughout the first half of the century he used the term sociological jurisprudence for his philosophy, and Julius Stone developed his ideas in Australia.

  In the 1930s, a significant split opened between the sociological jurists and the American legal realists. In the second half of the century, sociological jurisprudence declined as analytical legal philosophy took over. Growing criticism of dominant orientations in English-speaking legal philosophy has since revived interest in it. Its present focus is new forms of regulation, such as developing transnational law, and the links between law and culture in multicultural Western societies. It should be kept distinct from the sociology of law, a social science with no necessary commitment to juristic aims.

  Oliver Wendell Holmes opened The Common Law with the line "the life of the law has not been logic: it has been experience." The remark answered the legal formalism popular at the time through Christopher Columbus Langdell. In his article "The Path of the Law," Holmes argued that "the object of legal study...is prediction, the prediction of the incidence of the public force through the instrumentality of the courts." That idea became a foundation for the predictive theory of law.

  Legal realism holds that a theory of law should be descriptive and should explain why judges decide cases as they do. Its essential tenet is that humans make all law, so reasons beyond legal rules must be counted. For realists such as Jerome Frank, judges begin with the facts before them and then apply legal principles. Earlier theories had turned that method on its head. Karl Llewellyn, another founder of the American movement, believed law was little more than putty in the hands of judges, who could shape outcomes according to personal values or policy choices.

  The Scandinavian school of realism produced Alf Ross, Axel Hägerström and Karl Olivecrona. They argued that law can be explained by the empirical methods of social scientists, and they took a naturalist approach. Despite its decline in popularity, realism still influences critical legal studies, feminist legal theory, critical race theory, sociology of law, and law and economics.

  In 1977, a group of members of the Law and Society Association struck out in a new theoretical direction. Peter Gabel, Morton Horwitz, Duncan Kennedy, Karl Klare, Mark Tushnet and Roberto Unger developed what became critical legal studies. It has been called the first movement in American legal theory to espouse a committed Left political stance. It holds that law is largely contradictory and is best analysed as an expression of the policy goals of a dominant social group.

  Unger and others in the movement refused to take the question "how should judges decide cases?" as the defining problem of jurisprudence. Unger predicted that the new American legal analysis would draw out the democratic potential of free societies. He compared this to the way earlier capitalistic economies benefited from protecting private rights such as contracts and property.

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• 8. Interpretation and Purpose

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  In Law's Empire, the American legal philosopher Ronald Dworkin challenged the positivists who separate law from morality. He argued that law is an interpretive concept. It requires barristers to find the best-fitting and most just solution to a dispute, given their constitutional traditions. Law is not entirely a matter of social facts, he said, but includes the best moral justification for the practices that form a society's legal tradition.

  One consequence startles. On Dworkin's view, no one in a society may know what its laws are, because no one may know the best moral justification for its practices. His integrity theory gives interpretation two dimensions. A reading must first meet the criterion of fit. Among the readings that fit, the correct one portrays the community's practices in the best light.

  Many writers doubt that any single best moral justification exists for the complex practices of a community. Others doubt that, even if it does, it should count as part of that community's law.

  Normative jurisprudence asks a different family of questions. What is the goal or purpose of law? What is the proper function of law? Which acts deserve punishment, and which punishments should be allowed? What is justice, what rights do we have, and is there a duty to obey the law? What value has the rule of law?

  Virtue jurisprudence, tied historically to Aristotle and Thomas Aquinas, says laws should foster virtuous character in citizens. Deontology, the theory of duty or moral obligation, gave Immanuel Kant his influential theory of law. He argued that any rule we follow must be universally applicable, meaning we must be willing for everyone to follow it. Dworkin's work offers a contemporary deontological approach.

  Utilitarianism says laws should be crafted to produce the best consequences for the greatest number of people. Jeremy Bentham is its historical figure in law. John Stuart Mill, his pupil, carried the torch for utilitarian philosophy throughout the late nineteenth century. Today scholars in the law and economics tradition often champion it.

  John Rawls, a Harvard professor of political philosophy, published A Theory of Justice in 1971. He asked which principles of justice we would choose to govern a society's basic institutions from an original position behind a veil of ignorance. Imagine we do not know our race, sex, wealth, status or class, so that we cannot bias the choice in our own favour. Rawls argued we would choose the same political liberties for everyone, such as freedom of speech and the right to vote. We would accept inequality only where it supplies incentives for the economic well-being of all, especially the poorest. This is his difference principle.

  Therapeutic jurisprudence treats law as a social force. Its scholars use social science methods and data to measure how a legal rule or practice affects the psychological well-being of the people it touches. Experimental jurisprudence likewise investigates the makeup of legal concepts with social science rather than the philosophical methods of tradition.

  Some scholars have begun to ask what makes tort law, contract law and criminal law each distinctive. The line between tort law and criminal law has proved an especially fertile subject, and it bears on the wider difference between civil and criminal law.

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