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. (See jurisprudence.)
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 law.)
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.
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.
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
social science.)
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.
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?
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.
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.
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.
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.
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.
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.
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.
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
idealism, transcendentalism.)
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.
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
Stoicism.)
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.
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
Jewish law.)
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.
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
secularism.)
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." (See
voluntarism,
rationalism.)
The
tendency to make reason prevail over will (as in Plato's call for philosophers
to be kings or the Arab Averroës'
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.
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
Empiricism.)
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.
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.
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'état
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
Stoicism.)
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.
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."
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.
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.
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
Constitution of
the United States of America.)
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
Système
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
Montesquieu, Charles-Louis
de Secondat 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.
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
idealism, a
priori knowledge, transcendental
idealism.)
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. (See
transcendentalism.)
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
Kantianism.)
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.
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.
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.
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.
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.
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.
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.
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.
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").
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.
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. (See
Maine, Sir Henry
James Sumner.)
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
"Ancient Law: Its
Connection with the Early History 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.
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
Marxism, socialism,
Socialist law.)
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.
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.
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.
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.
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.
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. (See
Gierke, Otto Friedrich
von.)
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.
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. (See
National Socialism.)
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 François
Gény were certainly among its pioneers. Gény's Méthode
d'interprétation (1899) displayed the inescapably creative (or
lawmaking) role of the judiciary even under a comprehensive code such as
the Code Napoléon.
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.
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. (See
"Theory of Justice,
The,".)
Even
as this express reinvocation of natural law was proceeding, the French
public lawyer Léon
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
Émile Durkheim's
Positivist sociology. This led him, with some paradox for a contemner of
natural law, to insist that law is but "le produit spontané 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.
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:
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. 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
Thomism.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
The
Swedish jurist Axel Hagerström 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. (See
Hägerström,
Axel.)
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.
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.
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. (See
Savigny, Friedrich
Karl von, Maine,
Sir Henry James Sumner.)
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
Marxism.)
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. (See
law.)
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.
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.
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.
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
norm, normative
ethics.)
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.
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.
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.
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.
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.
To
cite this page:
Problems of the philosophy of law
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.
Analytical jurisprudence
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 analysis.)
Sociological
jurisprudence
The theory of justice
Law, morality, and natural law
Historical survey of legal theories
The ancient world
Greek
thought
Roman thought
Hebrew
thought
The Middle Ages
Augustine
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.
Scholasticism
The Renaissance period to the 18th century
Machiavelli
Natural law and social-contract
theory
Judicial supremacy
Decline of natural law
"Idealism" and justice
The 19th and 20th centuries
Analytical
Positivism
Historical Positivism
Economic
interpretations
Sociological jurisprudence
Revival of natural-law theories
(See
positivism,
Analytical Positivism.)
Pure
theory of law
Modern schools of realism
The status of contemporary philosophy of law
Growth of the sociological school
The future of sociological jurisprudence
(Ju.S.)
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