Jurisprudence

Jurisprudenceis thestudyandtheoryoflaw. Scholars of jurisprudence, also known asjuristsor legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning,legal systemsand of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of thenatural law, civil law, and thelaw of nations.[1]General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:[2]1. Problems internal to law and legal systems as such.

2. Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Answers to these questions come from four primary schools of thought in general jurisprudence:[2] Natural lawis the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason and it is from these laws of nature that human-created laws gain whatever force they have.[2] Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are.[3] Legal realismis a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, barristers and judges do with it. Similar approaches have been developed in many different ways insociology of law.

Critical legal studiesis a younger theory of jurisprudence that has developed since the 1970s. It is primarily a negative thesis that holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of the dominant social group.[4]Also of note is the work of the contemporary Philosopher of LawRonald Dworkinwho has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.[5]A further relatively new field is known astherapeutic jurisprudence, concerned with the impact of legal processes on wellbeing andmental health.

The English term is based on the Latin wordjurisprudentia:jurisis thegenitiveform ofjusmeaning "law", andprudentiameans "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628,[6]at a time when the wordprudencehad the now obsolete meaning of "knowledge of or skill in a matter". The word may have come via the Frenchjurisprudence, which is attested earlier.

1History of jurisprudence 2Natural law 3Analytic jurisprudence 4Normative jurisprudence 5See also 6References 7Further reading 8External linksHistory of jurisprudence[edit]Ancient Indian jurisprudence is available in variousDharmastratexts starting from the Dharmasutra of Bhodhayana. Jurisprudence already had this meaning[citation needed]inAncient Romeeven if at its origins the discipline was a (periti) in thejusofmos maiorum(traditional law), a body oforal lawsand customs verbally transmitted "by father to son". Praetors established a workable body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex then would judge a remedy according to the facts of the case.

Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitable interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutiveInstitutiones(legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body ofprudentes. Admission to this body was conditional upon proof of competence or experience.

Under theRoman Empire, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including theProculiansandSabinians. The scientific depth of the studies was unprecedented in ancient times.

After the 3rd century,Juris prudentiabecame a more bureaucratic activity, with few notable authors. It was during theEastern Roman Empire(5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement thatJustinian'sCorpus Juris Civiliswas born.

Natural law

Main article:Natural lawNatural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maximan unjust law is not a true law,lex iniusta non est lex, in which 'unjust' is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good'. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the maxim that "an unjust law is no law at all", but asJohn Finnis, the most important of modern natural barristers have argued, this maxim is a poor guide to the classicalThomistposition. Strongly related to theories of natural law are classical theories ofjustice, beginning in the West withPlatosRepublic.

Aristotle[edit]Main article:Aristotle

Aristotle, byFrancesco HayezAristotle is often said to be the father of natural law.[7]Like his philosophical forefathersSocratesandPlato,Aristotleposited the existence ofnatural justiceor natural right (dikaion physikon, ,Latinius naturale). His association with natural law is largely due to the way in which he was interpreted byThomas Aquinas.[8]This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of theNicomachean Ethics(= Book IV of theEudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages,[9]though more recent translations render them more literally.[10]Aristotle's theory of justice is bound up in his idea of thegolden mean. Indeed his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes.[11]His longest discussion of his theory of justice occurs inNicomachean Ethicsand begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice.[12]

HYPERLINK "https://en.wikipedia.org/wiki/Jurisprudence" \l "cite_note-ReferenceA-13" [13]When a person's actions are completely virtuous in all matters in relation to others, Aristotle calls her "just" in the sense of "general justice;" as such this idea of justice is more or less coextensive with virtue.[14]"Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably.[13]Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention.[15]This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves. The passage here is silent as to that question.

The best evidence of Aristotle's having thought there was a natural law comes from theRhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.[16]The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that there actually was such a law;[17]Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong.[18]Aristotle's theoretical paternity of the natural law tradition is consequently disputed.[citation needed]Thomas Aquinas[edit]

Thomas Aquinaswas the most important Western medieval legalscholarMain article:Thomas AquinasSaint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. 1225 7 March 1274) was aphilosopherand theologian in thescholastictradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent ofnatural theology, and the father of theThomisticschool of philosophy, for a long time the primary philosophical approach of theRoman Catholic Church. The work for which he is best known is theSumma Theologica. One of the thirty-fiveDoctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, manyinstitutions of learninghave been named after him.

Aquinas distinguished four kinds of law: eternal, natural, human and divine:

Eternal law refers to divine reason, known only to God. It is God's plan for the universe. Man needs this, for without it he would totally lack direction.

Natural law is the "participation" in the eternal law by rational human creatures, and is discovered by reason.

Divine lawis revealed in the scriptures and is God's positive law for mankind.

Human lawis supported by reason and enacted for the common good.[19]Natural law, of course, is based on "first principles":

. . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . . .[20]The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based.

School of Salamanca[edit]Main article:School of SalamancaFrancisco de Vitoriawas perhaps the first to develop a theory ofius gentium(the rights of peoples), and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to society at the international level, concluding that this scope as well ought to be ruled by just forms respectable of the rights of all. The common good of the world is of a category superior to the good of each state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice. Some scholars have upset the standard account of the origins of International law, which emphasises the seminal textDe iure belli ac pacisby Grotius, and argued for Vitoria and, later, Surez's importance as forerunners and, potentially, founders of the field.[21]Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have founded international law in the modern sense, instead placing its origins in the post-1870 period.[22]Francisco Surez, regarded as among the greatest scholastics after Aquinas, subdivided the concept ofius gentium. Working with already well-formed categories, he carefully distinguishedius inter gentesfromius intra gentes.Ius inter gentes(which corresponds to modern international law) was something common to the majority of countries, although, being positive law, not natural law, was not necessarily universal. On the other hand,ius intra gentes, or civil law, is specific to each nation.

Thomas Hobbes[edit]Main article:Thomas HobbesIn his treatiseLeviathan, (1651), Hobbes expresses a view of natural law as aprecept, or general rule, found out byreason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was asocial contractarian[23]and believed that the law gained peoples' tacit consent. He believed that society was formed from astate of natureto protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, "solitary, poor, nasty, brutish and short". It is commonly commented that Hobbes' views about the core of human nature were influenced by his times. TheEnglish Civil Warand the Cromwellian dictatorship had taken place, and he felt absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.

Lon Fuller[edit]Main article:Lon L. FullerWriting afterWorld War II, Lon L. Fuller notably emphasised that the law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made.

John Finnis[edit]Main article:John FinnisSophisticated positivist and natural law theories sometimes resemble each other more than the above descriptions might suggest, and they may concede certain points to the other "side". Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. In particular, the older natural lawyers, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence. But modern natural lawyers, such as John Finnis claim to be positivists, while still arguing that law is a basically moral creature.

Sharia and Fiqh in Islam[edit]Main articles:ShariaandFiqhSharia () refers to the body ofIslamiclaw. The term means "way" or "path"; it is the legal framework within which public and most private aspects of life are regulated for those living in a legal system based onIslamicprinciples of jurisprudence. Fiqh is the term for Islamic jurisprudence, made up of the rulings of Islamic jurists. A component of Islamic studies, Fiqh expounds the methodology by which Islamic law is derived from primary and secondary sources.

Mainstream Islam distinguishesfiqh, which means understanding the details and inferences drawn by scholars, fromsharia, which refers to the principles behind thefiqh. Scholars hope thatfiqhandshariaare in harmony in any given case, but this cannot be assured.[24]Early forms oflogic in Islamic philosophywere introduced in Islamic jurisprudence from the 7th century with the process ofQiyas. During theIslamic Golden Age, there was a logical debate amongIslamic philosophersandjuristsover whether the termQiyasrefers toanalogical reasoning,inductive reasoningor categoricalsyllogism. Some Islamic scholars argued thatQiyasrefers to reasoning.Ibn Hazm(994-1064) disagreed with this, arguing thatQiyasrefers rather to categorical syllogism in arealsense and to analogical reasoning in ametaphoricalsense. On the other hand,al-Ghazali(10581111) argued thatQiyasrefers to analogical reasoning in a real sense and categorical syllogism in a metaphorical sense. Other Islamic scholars at the time argued that the termQiyasrefers to both analogical reasoning and categorical syllogism in a real sense.[25]Analytic jurisprudence[edit]Main article:Analytic jurisprudenceAnalytic, or 'clarificatory', jurisprudence means the use of a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be.[26]David Humefamously argued inA Treatise of Human Nature[27]that people invariably slip between describing that the worldisa certain way to saying therefore weoughtto conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that weoughtto do something merely because somethingisthe case. So analysing and clarifying the way the worldismust be treated as a strictly separate question to normative and evaluativeoughtquestions.

The most important questions of analytic jurisprudence are: "What are laws?"; "What isthelaw?"; "What is the relationship between law and power/sociology?"; and "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics who offer their own interpretations.

Legal positivists[edit]Main article:Legal positivismPositivism simply means that law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it isjustby some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.

What the lawis(lex lata) - is determined by historical social practice (resulting in rules)

What the lawought to be(lex ferenda) - is determined by moral considerations.

Bentham and Austin[edit]

Bentham'sutilitarian theories remained dominant in law until the twentieth century

Main articles:Jeremy BenthamandJohn Austin (legal philosopher)One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along withHume), an avid prison reformer, advocate fordemocracy, and stronglyatheist. Bentham's views about law and jurisprudence were popularized by his student,John Austin. Austin was the first chair of law at the newUniversity of Londonfrom 1829. Austin'sutilitariananswer 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".[28]Contemporary legal positivists have long abandoned this view, and have criticised its oversimplification, H. L. A. Hart particularly.

Hans Kelsen[edit]Main article:Hans KelsenHans Kelsen is considered one of the prominent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common-law countries. HisPure Theory of Lawaims to describe law as binding norms while at the same time refusing, itself, to evaluate those norms. That is, 'legal science' is to be separated from 'legal politics'. Central to the Pure Theory of Law is the notion of a 'basic norm (Grundnorm)'a hypothetical norm, presupposed by the jurist, from which in a hierarchy all 'lower' norms in alegal system, beginning withconstitutional law, are understood to derive their authority or 'bindingness'. In this way, Kelsen contends, the bindingness of legal norms, their specifically 'legal' character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature orof great importance in his timea personified State or Nation.

H. L. A. Hart[edit]Main article:H. L. A. HartIn th Anglophone world, the pivotal writer wasH. L. A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, can not be grounded in non-normative social facts. Hart revived analytical jurisprudence as an important theoretical debate in the twentieth century through his bookThe Concept of Law.[29]As the professor of jurisprudence atOxford University, Hart argued that law is a 'system of rules'.

Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). The "rule of recognition" is a customary practice of the officials (especially barristers and judges) that identifies certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil MacCormick[30]in 1981 (second edition due in 2007), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his recently publishedInstitutions of Law, 2007). Other important critiques have included that ofRonald Dworkin,John Finnis, andJoseph Raz.

In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes calledexclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeledinclusive legal positivism, a major proponent of which is Wil Waluchow, and it is associated with the view that moral considerationsmaydetermine the legal validity of a norm, but that it is not necessary that this is the case.

Joseph Raz[edit]Main article:Joseph RazSome philosophers used to contend that positivism was the theory that there is "no necessary connection" between law and morality; but influential contemporary positivists, including Joseph Raz, John Gardner, and Leslie Green, reject that view. As Raz points out, it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder).

Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis" approach inThe Authority of Law.[31]Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence.[32]Ronald Dworkin[edit]Main articles:Ronald DworkinandInterpretivism (legal)In his bookLaw's Empire[33]Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, that requires barristers to find the best-fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. It follows on Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some moral truths about the justifications for the practices in that society. It is consistent with Dworkin's viewin contrast with the views of legal positivists or legal realiststhatno-onein a society may know what its laws are, because no-one may know the best justification for its practices.

Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion offit. Of those interpretations that fit, however, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of themthe best that they can be. But many writers have doubted whether thereisa single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that community.

Legal realism[edit]

Oliver Wendell Holmeswas a self-styled legal realist

Main article:Legal realismLegal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.

It has become quite common today to identify JusticeOliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences includeRoscoe Pound,Karl Llewellynand JusticeBenjamin Cardozo). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases.[34]The chief inspiration for Scandinavian legal realism many consider to be the works ofAxel Hgerstrm. Despite its decline in popularity, realism continues to influence a wide spectrum of jurisprudential schools today, includingcritical legal studies,feminist legal theory,critical race theory,sociology of lawandlaw and economics.[35]Historical School[edit]Main article:German Historical SchoolHistorical jurisprudence came to prominence during the German debate over the proposed codification of German law. In his bookOn the Vocation of Our Age for Legislation and Jurisprudence,[36]Friedrich Carl von Savignyargued that Germany did not have a legal language that would support codification because the traditions, customs and beliefs of the German people did not include a belief in a code. The Historicists believe that the law originates with society.

Normative jurisprudence[edit]Main article:Political philosophyIn addition to the question, "What is law?", legal philosophy is also concerned with normative, or "evaluative" theories of law. What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject topunishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? Some of the different schools and leading thinkers are as follows.

Virtue jurisprudence[edit]

Plato(left) andAristotle(right), a detail ofThe School of AthensMain article:Virtue jurisprudenceAretaic moral theories such as contemporaryvirtue ethicsemphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens. Historically, this approach is associated mainly withAristotleorThomas Aquinaslater. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.

Deontology[edit]Main article:Deontological ethicsDeontology is "the theory of duty or moral obligation."[37]The philosopherImmanuel Kantformulated one influential deontological theory of law. He argued that any rule we follow must be able to be universally applied, i.e. we must be willing for everyone to follow that rule. A contemporary deontological approach can be found in the work of the legal philosopherRonald Dworkin.

Utilitarianism[edit]

Millbelieved law should create happiness

Main article:UtilitarianismSee also:Lysander SpoonerUtilitarianism is the view that the laws should be crafted so as to produce the best consequences for the greatest number of people possible. Historically, utilitarian thinking about law is associated with the great philosopher,Jeremy Bentham.John Stuart Millwas a pupil of Bentham's and was the torch bearer forutilitarianphilosophy through the late nineteenth century.[38]In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in thelaw and economicstradition.[35]John Rawls[edit]Main articles:John RawlsandA Theory of JusticeJohn Rawls was anAmericanphilosopher, aprofessorofpolitical philosophyatHarvard Universityand author ofA Theory of Justice(1971),Political Liberalism,Justice as Fairness: A Restatement, andThe Law of Peoples. He is widely considered one of the most important English-language political philosophers of the 20th century. His theory of justice uses a device called the original position to ask us which principles of justice we would choose to regulate the basic institutions of our society if we were behind a 'veil of ignorance.' Imagine we do not know who we are - our race, sex, wealth status, class, or any distinguishing feature - so that we would not be biased in our own favour. Rawls argues from this 'original position' that we would choose exactly the same political liberties for everyone, like freedom of speech, the right to vote and so on. Also, we would choose a system where there is only inequality because that produces incentives enough for the economic well-being of all society, especially the poorest. This is Rawls's famous 'difference principle'. Justice is fairness, in the sense that the fairness of the original position of choice guarantees the fairness of the principles chosen in that position.

There are many other normative approaches to the philosophy of law, includingcritical legal studiesandlibertarian theories of law.

The Concept of Law

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Photo of the cover of The Concept of Law

The Concept of Law(ISBN 0-19-876122-8) is the most famous work of thelegal philosopherH. L. A. Hart. It was first published in 1961 and develops Hart's theory oflegal positivism(the view that laws are rules made by human beings and that there is no inherent or necessary connection between law andmorality) within the framework ofanalytic philosophy. In this work, Hart sets out to write an essay of descriptivesociologyandanalytical jurisprudence.The Concept of Lawprovides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is the relation between law and morality?". Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".[1]As a result Hart's book has remained "one of the most influential works in modern legal philosophy",[2]and is also considered a "founding text of analytical legal philosophy",[3]as well as "the most successful work of analytical jurisprudence ever to appear in the common law world"[4]Contents

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1Background 2Austin's "Command theory" 3Social habits, rules, and laws 4See also 5ReferencesBackground[edit]"The Concept of Law" emerged from a set of lectures Hart delivered in 1952. The lectures were preceded by Hart's Holmes lecture,Positivism and the Separation of Law and MoralsatHarvard Law School. The book developed a sophisticated view of legal positivism.

Among the ideas developed in the book are:

A critique ofJohn Austin'stheory that law is the command of the sovereign backed by the threat of punishment.

A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows the creation, alteration, or extinction of primary rules.

A distinction between the internal and external points of view of law and rules, close to (and influenced by)Max Weber's distinction between the sociological and the legal perspectives of law.

The idea of therule of recognition, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the rule of recognition as an evolution fromHans Kelsen's "Grundnorm", or "basic norm".

A reply toRonald Dworkin, who criticized legal positivism in general and especially Hart's account of law inTaking Rights Seriously(1977),A Matter of Principle(1985) andLaw's Empire(1986).

Austin's "Command theory"[edit]The starting point for the discussion is Hart's dissatisfaction withJohn Austin's "Command Theory": a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application. Hart likens Austin's theory to the role of agunmanin abankand tries to establish the differences between the gunman's orders and those made by law. (For instance, the gunman forces us to obey but we may not feel inclined to obey him. Presumably, obedience to the law comes with a different feeling.)

Hart identifies three such important differences: content, origin, and range. In terms of content, not all laws are imperative orcoercive. Some are facilitative, allowing us to createcontractsand other legal relations.

Austin believed that every legal system had to have asovereignwho creates the law (origin) while remaining unaffected by it (range), such as the bank scene's gunman, who is the only source of commands and who is not subject to other's commands. Hart argues that this is an inaccurate description of law, noting that laws may have several sources and legislators are very often subject to the laws they create.

Social habits, rules, and laws[edit]Hart draws a distinction between a socialhabit(which people follow habitually but where breaking the habit does not bring about opprobrium - going to the cinema on Thursday for example) and a social rule (where breaking the rule is seen as wrong - neglecting to take off one's hat upon entering a church, for example). We feel in some sense bound by social rules and laws frequently appear to be types of social rule.

There are two perspectives to this: the external aspect, which is the independently observable fact that people do tend to obey the rule with regularity, and the internal aspect which is the feeling by an individual of being in some sense obligated to follow the rule, otherwise known as the critical reflective attitude. It is from this internal sense that the law acquires its normative quality. The obedience by the populace of a rule is called efficacy. No law can be said to be efficacious unless followed by the majority of the populace. Though an average citizen in a modern state with a developed legal system may feel the internal aspect and be compelled to follow the laws, it is more important for the officials of the society/peoples to have the internal aspect since it is up to them to follow the constitutional provisions which, if they wish, could ignore without accountability. Yet, the officials must use the internal aspect and accept the standards as guiding their behaviour in addition to also guiding the behaviour of other officials.

But laws are more than rules of conduct. Laws can be divided up into two sorts: primary rules (rules of conduct) and secondary rules (rules addressed to officials and which set out to affect the operation of primary rules). Secondary rules deal with three problems: first the problem of uncertainty about what the law is (the secondary rule for this dilemma is called the rule of recognition and states the criteria of validity of a law), second the problem of rigidity of rules (which requires rules of change allowing laws to be varied), and third the problem of how to resolve legal disputes (from which rules of adjudication arise). A legal system is "the union of primary and secondary rules."

Lastly, Hart lets us know that laws are much broader in scope than coercive orders, contrary to the "command theory" of Austin. Frequently laws are enabling and so allow citizens to carry out authoritative acts such as the making of wills or contracts which have legal effect.

Natural law

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For other uses, seeNatural law (disambiguation).

Thomas Aquinas, the leading proponent of natural law.

Natural law, or thelaw of nature(Latin:lex naturalis; ius naturale), is aphilosophy of lawthat is determined bynature, and so is universal.[1]Classically, natural law refers to the use of reason to analyzehuman nature both social and personal and deduce binding rules of moral behavior from it. Natural law is often contrasted with thepositive lawof a given political community,society, orstate.[2]In legal theory, on the other hand, the interpretation of positive law requires some reference to natural law. On this understanding of natural law, natural law can be invoked to criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself. Somejuristsand scholars use natural law synonymously withnatural justiceornatural right(Latinius naturale),[3]while others distinguish between natural law and natural right.[1]Although natural law is often conflated withcommon law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.[4]Natural law theories have, however, exercised a profound influence on the development ofEnglishcommon law,[5]and have featured greatly in thephilosophiesofThomas Aquinas,Alberico Gentili,Francisco Surez,Richard Hooker,Thomas Hobbes,Hugo Grotius,Samuel von Pufendorf,John Locke,Francis Hutcheson,Jean Jacques Burlamaqui,Emmerich de Vattel,Cesare BeccariaandFrancesco Mario Pagano. Because of the intersection between natural law andnatural rights, it has been cited as a component in theUnited States Declaration of Independenceand theConstitution of the United States, as well as in theDeclaration of the Rights of Man and of the Citizen.Declarationismstates that the founding of the United States is based on Natural law.

Natural Law andconsent of the governed(John Locke) are the Foundation of the American Declaration of Independence, Constitution and Bill of Rights. (See "Laws of Nature" First Paragraph Declaration of Independence[6]) Consent of the Governed, derived from the John Locke's Natural Law Social Contract, replaced the Old World Governance Doctrine of the Divine Right of Kings.

Contents

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1History 1.1Plato 1.2Aristotle 1.3Stoic natural law 1.4Cicero 1.5English jurisprudence 1.6American jurisprudence 1.7Islamic natural law 1.8Hobbes 1.9Cumberland's rebuttal of Hobbes 1.10Liberal natural law 2Contemporary Christian understanding 3In contemporary jurisprudence 4See also 5Notes 6References 7External linksHistory[edit]The use of natural law, in its various incarnations, has varied widely through its history. There are a number of different theories of natural law, differing from each other with respect to the role that morality plays in determining the authority of legal norms. This article deals with its usages separately rather than attempt to unify them into a single theory.

Plato[edit]This sectionpossibly containsoriginal research.Pleaseimprove itbyverifyingthe claims made and addinginline citations. Statements consisting only of original research should be removed.(May 2011)

AlthoughPlatodoes not have an explicit theory of natural law (he rarely used the phrase 'natural law' except inGorgias484 andTimaeus83e), his concept of nature, according to John Wild, contains some of the elements found in many natural law theories.[7]According to Plato we live in an orderly universe.[8]At the basis of this orderly universe or nature are theforms, most fundamentally theForm of the Good, which Plato describes as "the brightest region of Being".[9]The Form of the Good is the cause of all things and when it is seen it leads a person to act wisely.[10]In theSymposium, the Good is closely identified with the Beautiful.[11]Also in theSymposium, Plato describes how the experience of the Beautiful by Socrates enables him to resist the temptations of wealth and sex.[12]In theRepublic, the ideal community is, "...a city which would be established in accordance with nature."[13]Aristotle[edit]

Plato (left) and Aristotle (right), a detail ofThe School of Athens, a fresco byRaphael.

Greek philosophyemphasized the distinction between "nature" (physis,) on the one hand and "law", "custom", or "convention" (nomos,) on the other. What the law commanded varied from place to place, but what was "by nature" should be the same everywhere. A "law of nature" would therefore have had the flavor more of a paradox than something that obviously existed.[1]Against theconventionalismthat the distinction between nature and custom could engender,Socratesand his philosophic heirs,PlatoandAristotle, posited the existence ofnatural justiceor natural right (dikaion physikon, ,Latinius naturale). Of these, Aristotle is often said to be the father of natural law.[3]Aristotle's association with natural law may be due to the interpretation given to his works byThomas Aquinas.[14]But whether Aquinas correctly read Aristotle is a disputed question. According to some, Aquinas conflates the natural law and natural right, the latter of which Aristotle posits in Book V of theNicomachean Ethics(Book IV of theEudemian Ethics). According to this interpretation, Aquinas's influence was such as to affect a number of early translations of these passages in an unfortunate manner, though more recent translations render them more literally.[15]Aristotle notes thatnatural justiceis a species of political justice, viz. the scheme ofdistributiveandcorrective justicethat would be established under the best political community; were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in thePoliticsthat the best regime may not rule by law at all.[16]The best evidence of Aristotle's having thought there was a natural law comes from theRhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.[17]Specifically, he quotes Sophocles and Empedocles:

Universal lawis the law of Nature. For there really is, as every one to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other. It is this that Sophocles' Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she means that it was just by nature:

"Not of to-day or yesterday it is, But lives eternal: none can date its birth."

And so Empedocles, when he bids us kill no living creature, says that doing this is not just for some people while unjust for others:

"Nay, but, an all-embracing law, through the realms of the sky Unbroken it stretcheth, and over the earth's immensity."[18]Some critics believe that the context of this remark suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was averse to the case being made, not that there actually was such a law;[3]Moreover, they claim that Aristotle considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.[1]Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

Stoic natural law[edit]The development of this tradition ofnatural justiceinto one of natural law is usually attributed to theStoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world.[19][full citation needed]Whereas the "higher" law Aristotle suggested one could appeal to was emphaticallynatural, in contradistinction to being the result ofdivinepositivelegislation, the Stoic natural law was indifferent to the divine or natural source of the law: the Stoics asserted the existence of a rational and purposeful order to the universe (adivineoreternal law), and the means by which a rational being lived in accordance with this order was the natural law, which spelled out action that accorded with virtue.[1]As the English historian A. J. Carlyle (18611943) notes:

There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature."[20]Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it.[21]Natural law first appeared among the stoics who believed that God is everywhere and in everyone. Within humans is a "divine spark" which helps them to live in accordance with nature. The stoics felt that there was a way in which the universe had been designed and natural law helped us to harmonise with this.

Cicero[edit]

Marcus Tullius CiceroCicerowrote in hisDe Legibusthat both justice and law derive their origin from what nature has given to man, from what the human mind embraces, from the function of man, and from what serves to unite humanity.[22]For Cicero, natural law obliges us to contribute to the general good of the larger society.[23]The purpose of positive laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' thereinheresthe idea and principle of choosing what is just and true."[24]Law, for Cicero, "ought to be a reformer of vice and an incentive to virtue."[25]Cicero expressed the view that "the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits."[23]Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution. The jurisprudence of theRoman Empirewas rooted in Cicero, who held "an extraordinary grip ... upon the imagination of posterity" as "the medium for the propagation of those ideas which informed the law and institutions of the empire."[26]Cicero's conception of natural law "found its way to later centuries notably through the writings ofSaint Isidore of Sevilleand theDecretum of Gratian."[27]Thomas Aquinas, in his summary of medieval natural law, quoted Cicero's statement that "nature" and "custom" were the sources of a society's laws.[28]The Renaissance Italian historianLeonardo Brunipraised Cicero as the man "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence."[29]The legal culture of Elizabethan England, exemplified bySir Edward Coke, was "steeped in Ciceronian rhetoric."[30]The Scottish moral philosopherFrancis Hutcheson, as a student at Glasgow, "was attracted most by Cicero, for whom he always professed the greatest admiration."[31]More generally in eighteenth-century Great Britain, Cicero's name was a household word among educated people.[31]Likewise, "in the admiration of early Americans Cicero took pride of place as orator, political theorist, stylist, and moralist."[32]The British polemicistThomas Gordon"incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively shaped early American political culture."[33]Cicero's description of the immutable, eternal, and universal natural law was quoted byBurlamaqui[34]and later by the American revolutionary legal scholarJames Wilson.[35]Cicero becameJohn Adams's "foremost model of public service, republican virtue, and forensic eloquence."[36]Adams wrote of Cicero that "as all the ages of the world have not produced a greater statesman and philosopher united in the same character, his authority should have great weight."[37]Thomas Jefferson"first encountered Cicero as a schoolboy learning Latin, and continued to read his letters and discourses as long as he lived. He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked upon Cicero's life, with his love of study and aristocratic country life, as a model for his own."[38]Jefferson described Cicero as "the father of eloquence and philosophy."[39]Some earlyChurch Fathers, especially those in theWest, sought to incorporate natural law intoChristianity. The most notable among these wasAugustine of Hippo, who equated natural law with man'sprelapsarianstate; as such, a life according to nature was no longer possible and men needed instead to seek salvation through thedivine lawandgraceofJesus Christ.

In the twelfth century,Gratianequated the natural law with divine law. A century later, St.Thomas Aquinasin hisSumma TheologicaI-II qq. 90106, restored Natural Law to its independent state, asserting natural law as the rational creature's participation in the eternal law.[40]Yet, since human reason could not fully comprehend theEternal law, it needed to be supplemented by revealedDivine law. (See alsoBiblical law in Christianity.) Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law.'[41]At this point, the natural law was not only used to pass judgment on the moral worth of various laws, but also to determine what the law said in the first place. This principle laid the seed for possible societal tension with reference to tyrants.[42]The natural law was inherentlyteleologicalanddeontologicalin that although it is aimed at goodness, it is entirely focused on the ethicalness of actions, rather than the consequence. The specific content of the natural law was therefore determined by a conception of what things constituted happiness, be they temporal satisfaction or salvation. Thestate, in being bound by the natural law, was conceived as an institution directed at bringing its subjects to true happiness.

In the 16th century, theSchool of Salamanca(Francisco Surez,Francisco de Vitoria, etc.) further developed a philosophy of natural law. After theChurch of Englandbroke from Rome, theEnglishtheologianRichard HookeradaptedThomisticnotions of natural law toAnglicanism. There are five important principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society.[43]Those who see biblical support for the doctrine of natural law often point toPaul'sEpistle to the Romans: "For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another. (Romans 2:1415). The intellectual historian A. J. Carlyle has commented on this passage, "There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' inCicero, a law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St Paul recognized as the revealed law of God. It is in this sense that St Paul's words are taken by the Fathers of the fourth and fifth centuries likeSt Hilary of Poitiers,St Ambrose, andSt Augustine, and there seems no reason to doubt the correctness of their interpretation."[44]English jurisprudence[edit]Heinrich A. Rommen remarked upon "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence ofHenry de Bracton(d. 1268) andSir John Fortescue(d. cir. 1476)."[45]Bracton's translator notes that Bracton "was a trained jurist with the principles and distinctions of Roman jurisprudence firmly in mind"; but Bracton adapted such principles to English purposes rather than copying slavishly.[46]In particular, Bracton turned the imperial Roman maxim that "the will of the prince is law" on its head, insisting that the king isunderthe law.[47]The legal historian Charles F. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural rights."[48]Bracton considered justice to be the "fountain-head" from which "all rights arise."[49]For his definition of justice, Bracton quoted the twelfth-century Italian juristAzo: "'Justice is the constant and unfailing will to give to each his right.'"[50]Bracton's work was the second legal treatise studied by the young apprentice lawyerThomas Jefferson.[51]Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries."[52]The legal scholarEllis Sandozhas noted that "the historically ancient and the ontologically higher laweternal, divine, naturalare woven together to compose a single harmonious texture in Fortescue's account of English law."[53]As the legal historian Norman Doe explains: "Fortescue follows the general pattern set by Aquinas. The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law (also found inAccursiusand Bracton), after all, was 'a sacred sanction commanding what is virtuous [honesta] and forbidding the contrary.'"[54]Fortescue cited the great ItalianLeonardo Brunifor his statement that "virtue alone produces happiness."[55]Christopher St. Germain'sDoctor and Studentwas a classic of English jurisprudence,[56]and it was thoroughly annotated byThomas Jefferson.[57]St. Germain informs his readers that English lawyers generally don't use the phrase "law of nature," but rather use "reason" as the preferred synonym.[58]

HYPERLINK "https://en.wikipedia.org/wiki/Natural_law" \l "cite_note-59" [59]Norman Doe notes that St. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated."[60]Sir Edward Coke was the preeminent jurist of his time.[61]Coke's preeminence extended across the ocean: "For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason."[62][63]Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things."[64]For Coke, human nature determined the purpose of law; and law was superior to any one man's reason or will.[65]Coke's discussion of natural law appears in his report ofCalvin's Case(1608): "The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction." In this case the judges found that "the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that the law of nature was before any judicial or municipal law: fourthly, that the law of nature is immutable." To support these findings, the assembled judges (as reported by Coke, who was one of them) cited as authoritiesAristotle,Cicero, and theApostle Paul; as well as Bracton, Fortescue, andSt. Germain.[66]As early as the thirteenth century, it was held that "the law of nature...is the ground of all laws"[67]and by the Chancellor and Judges that "it is required by the law of nature that every person, before he can be punish'd, ought to be present; and if absent by contumacy, he ought to be summoned and make default.".[68]

HYPERLINK "https://en.wikipedia.org/wiki/Natural_law" \l "cite_note-69" [69]Further, in 1824, we find it held that "proceedings in our Courts are founded upon the law of England, and that law is again founded upon the law of nature and the revealed law of God. If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it."[70]American jurisprudence[edit]TheU.S. Declaration of Independencestates that it has become necessary for the people of the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them". Some early American lawyers and judges perceived natural law as too tenuous, amorphous and evanescent a legal basis for grounding concreterightsandgovernmental limitations.[4]Natural law did, however, serve as authority for legal claims and rights in some judicial decisions, legislative acts, and legal pronouncements.[71]Robert Lowry Clinton argues that theU.S. Constitutionrests on acommon lawfoundation and the common law, in turn, rests on a classical natural law foundation.[72]Islamic natural law[edit]Ab Rayhn al-Brn, anIslamic scholarandpolymathscientist, understood natural law as the survival of the fittest. He argued that theantagonismbetweenhumanbeings can only be overcome through adivine law, which he believed to have been sent throughprophets. This is also the position of theAsharischool, the largest school of Sunni theology.[73]Averroes(Ibn Rushd), in his treatise onJustice and Jihadand his commentary on Plato'sRepublic, writes that the human mind can know of the unlawfulness of killing and stealing and thus of the fivemaqasidor higher intents of the Islamicshariaor to protect religion, life, property, offspring, and reason. The concept of natural law entered the mainstream ofWestern culturethrough his Aristotelian commentaries, influencing the subsequentAverroistmovement and the writings ofThomas Aquinas.[74]TheMaturidischool, the second largest school of Sunni theology, posits the existence of a form of natural law.Abu Mansur al-Maturidistated that the human mind could know of the existence of God and the major forms of 'good' and 'evil' without the help of revelation. Al-Maturidi gives the example of stealing, which is known to be evil by reason alone due to man's working hard for his property. Killing, fornication, and drinking alcohol were all 'evils' the human mind could know of according to al-Maturidi. The concept ofIstislahinIslamic lawbears some similarities to the natural law tradition in the West, as exemplified byThomas Aquinas. However, whereas natural law deems good what is self-evidently good, according as it tends towards the fulfilment of the person,istislahcalls good whatever is connected to one of five "basic goods".Al-Ghazaliabstracted these "basic goods" from the legal precepts in the Qur'an and Sunnah: they are religion, life, reason, lineage and property. Some add also "honour".Ibn Qayyim Al-Jawziyyaalso posited that human reason could discern between 'great sins' and good deeds.[citation needed]Hobbes[edit]

Thomas Hobbes

By the 17th Century, theMedievalteleologicalview came under intense criticism from some quarters.Thomas Hobbesinstead founded acontractualist theoryoflegal positivismon what all men could agree upon: what they sought (happiness) was subject to contention, but a broad consensus could form around what they feared (violent death at the hands of another). The natural law was how a rational human being, seeking to survive and prosper, would act. Natural law, therefore, was discovered by considering humankind'snatural rights, whereas previously it could be said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born.Jeremy Bentham's modifications onlegal positivismfurther developed the theory.

As used byThomas Hobbesin his treatisesLeviathanandDe Cive, natural law is "aprecept, or general rule, found out byreason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved."[75]According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan ("of the first and second natural laws; and of contracts"); the others in chapter XV ("of other laws of nature").

The first Law of nature isthat every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war.

The second Law of nature isthat a man be willing, when others are so too, as far forth, as for peace, and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself. The third Law isthat men perform their covenants made.In this law of nature consisteth the fountain and original of justice... when a covenant is made, then to break it is unjust and the definition of injustice is no other than the not performance of covenant. And whatsoever is not unjust is just.

The fourth Law isthat a man which receiveth benefit from another of mere grace, endeavour that he which giveth it, have no reasonable cause to repent him of his good will.Breach of this law is called ingratitude.

The fifth Law is complaisance:that every man strive to accommodate himself to the rest.The observers of this law may be called sociable; the contrary, stubborn, insociable, froward, intractable.

The sixth Law isthat upon caution of the future time, a man ought to pardon the offences past of them that repenting, desire it. The seventh Law isthat in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow. The eighth Law isthat no man by deed, word, countenance, or gesture, declare hatred or contempt of another.The breach of which law is commonly called contumely.

The ninth Law isthat every man acknowledge another for his equal by nature.The breach of this precept is pride.

The tenth law isthat at the entrance into the conditions of peace, no man require to reserve to himself any right, which he is not content should be reserved to every one of the rest.The breach of this precept is arrogance, and observers of the precept are called modest.

The eleventh law is thatif a man be trusted to judge between man and man, that he deal equally between them. The twelfth law isthat such things as cannot be divided, be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right. The thirteenth law isthe entire right, or else...the first possession(in the case of alternating use), of a thing thatcan neither be divided nor enjoyed in commonshould be determined by lottery.

The fourteenth law is thatthose things which cannot be enjoyed in common, nor divided, ought to be adjudged to the first possessor; and in some cases to the first born, as acquired by lot. The fifteenth law is thatall men that mediate peace be allowed safe conduct. The sixteenth law isthat they that are at controversie, submit their Right to the judgement of an Arbitrator. The seventeenth law isthat no man is a fit Arbitrator in his own cause. The eighteenth law is that no man should serve as a judge in a case ifgreater profit, or honour, or pleasure apparently ariseth [for him] out of the victory of one party, than of the other. The nineteenth law is that in a disagreement of fact, the judge should not give more weight to the testimony of one party than another, and absent other evidence, should give credit to the testimony of other witnesses.

Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition,[76]disregarding the traditional association of virtue with happiness,[77]and likewise re-defining "law" to remove any notion of the promotion of the common good.[78]Hobbes has no use forAristotle's association of nature with human perfection, inverting Aristotle's use of the word "nature." Hobbes posits a primitive, unconnected state of nature in which men, having a "natural proclivity...to hurt each other" also have "a Right to every thing, even to one anothers body";[79]and "nothing can be Unjust" in this "warre of every man against every man" in which human life is "solitary, poore, nasty, brutish, and short."[80]RejectingCicero's view that men join in society primarily through "a certain social spirit which nature has implanted in man,"[81]Hobbes declares that men join in society simply for the purpose of "getting themselves out from that miserable condition of Warre, which is necessarily consequent...to the naturall Passions of men, when there is no visible Power to keep them in awe."[82]As part of his campaign against the classical idea of natural human sociability, Hobbes inverts that fundamental natural legal maxim, the Golden Rule. Hobbes's version is"Do not that to another, which thou wouldst not have done to thy selfe."[83]Cumberland's rebuttal of Hobbes[edit]The English clericRichard Cumberlandwrote a lengthy and influential attack on Hobbes's depiction of individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that in the eighteenth century, Cumberland was commonly placed alongsideAlberico Gentili,Hugo GrotiusandSamuel Pufendorf"in the triumvirate of seventeenth-century founders of the 'modern' school of natural law."[84]The eighteenth-century philosophersShaftesburyandHutcheson"were obviously inspired in part by Cumberland."[85]Historian Jon Parkin likewise describes Cumberland's work as "one of the most important works of ethical and political theory of the seventeenth century."[86]Parkin observes that much of Cumberland's material "is derived from RomanStoicism, particularly from the work ofCicero, as "Cumberland deliberately cast his engagement with Hobbes in the mould of Cicero's debate between the Stoics, who believed that nature could provide an objective morality, andEpicureans, who argued that morality was human, conventional and self-interested."[87]In doing so, Cumberland de-emphasized the overlay of Christian dogma (in particular, the doctrine of "original sin" and the corresponding presumption that humans are incapable of "perfecting" themselves without divine intervention) that had accreted to natural law in the Middle Ages.

By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of hisTreatise of the Laws of Naturethat "all the Laws of Nature are reduc'd to that one, of Benevolence toward all Rationals."[88]He later clarifies: "By the nameRationalsI beg leave to understand, as wellGodasMan; and I do it upon the Authority of Cicero." Cumberland argues that the mature development ("perfection") of human nature involves the individual human willing and acting for the common good.[89]For Cumberland, human interdependence precludes Hobbes's natural right of each individual to wage war against all the rest for personal survival. However, Haakonssen warns against reading Cumberland as a proponent of "enlightened self-interest." Rather, the "proper moral love of humanity" is "a disinterested love of God through love of humanity in ourselves as well as others."[90]Cumberland concludes that actions "principally conducive to our Happiness" are those that promote "the Honour and Glory of God" and also "Charity and Justice towards men."[91]Cumberland emphasizes that desiring the well-being of our fellow humans is essential to the "pursuit of our own Happiness."[92]He cites "reason" as the authority for his conclusion that happiness consists in "the most extensive Benevolence," but he also mentions as "Essential Ingredients of Happiness" the "Benevolent Affections," meaning "Love and Benevolence towards others," as well as "that Joy, which arises from their Happiness."[93]Liberal natural law[edit]

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Dr Alberico Gentili, the founder of the science of international law.

Liberal natural law grew out of themedievalChristian natural law theories and out ofHobbes'revision of natural law, sometimes in an uneasy balance of the two.

Sir Alberico GentiliandHugo Grotiusbased their philosophies of international law on natural law. In particular, his writings onfreedom of the seasandjust war theorydirectly appealed to natural law. About natural law itself, he wrote that "even the will of anomnipotentbeing cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is noGodor that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famousargumentetiamsi daremus(non esse Deum), that made natural law no longer dependent on theology. However, German church-historians Ernst Wolf and M. Elze disagreed and claimed that Grotius' concept of natural law did have a theological basis.[94]In Grotius' view, theOld Testamentcontained moral precepts (e.g. theDecalogue) whichChristconfirmed and therefore were still valid. Moreover, they were useful in explaining the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other.[95]In a similar way,Samuel Pufendorfgave natural law a theological foundation and applied it to his concepts of government andinternational law.[96]John Lockeincorporated natural law into many of his theories and philosophy, especially inTwo Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that ofAquinas(filtered throughRichard Hooker) orHobbes'radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbeseancontractualistgrounds. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.[97]While Locke spoke in the language of natural law, the content of this law was by and large protective ofnatural rights, and it was this language that later liberal thinkers preferred. Political philosopherJeremy Waldronhas pointed out that Locke's political thought was based on "a particular set of Protestant Christian assumptions."[98]To Locke, the content of natural law was identical with biblical ethics as laid down especially in theDecalogue,Christ's teaching and exemplary life, and St. Paul's admonitions.[99]Locke derived the concept of basic human equality, including theequality of the sexes("Adam and Eve"), fromGenesis 1, 2628, the starting-point of the theological doctrine ofImago Dei.[100]One of the consequences is that as all humans are created equally free, governments need the consent of the governed.[101]Thomas Jefferson, arguably echoing Locke, appealed tounalienable rightsin theDeclaration of Independence, "We hold these truths to be self-evident, that all men arecreatedequal, that they are endowed by theirCreatorwith certain unalienable Rights, that among these areLife, Liberty and the pursuit of Happiness."[102]The Lockean idea that governments need theconsent of the governedwas also fundamental to the Declaration of Independence, as the American Revolutionaries used it as justification for their separation from the British crown.[103]The Belgian philosopher of lawFrank van Dunis one among those who are elaborating a secular conception[104]of natural law in the liberal tradition.LibertariantheoristMurray Rothbardargues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus."[105]Ludwig von Misesstates that he relaid the general sociological and economic foundations of the liberal doctrine upon utilitarianism, rather than natural law, but R.A. Gonce argues that "the reality of the argument constituting his system overwhelms his denial."[106]David Gordonnotes, "When most people speak of natural law, what they have in mind is the contention that morality can be derived from human nature. If human beings are rational animals of such-and-such a sort, then the moral virtues are...(filling in the blanks is the difficult part)."[107]However, a secular critique of the natural law doctrine was stated byPierre Charronin hisDe la sagesse(1601): "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and (in the opinion of many) unnatural that is not approved in many countries, and authorized by their customs."

Contemporary Christian understanding[edit]Theneutralityof this article isdisputed.Relevant discussion may be found on thetalk page. Please do not remove this message until thedispute is resolved.(October 2014)

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Thomas AquinasTheRoman Catholic Churchholds the view of natural law provided by St.Thomas Aquinas,[108]particularly in hisSumma Theologiae, and often as filtered through theSchool of Salamanca. This view is also shared by someProtestantchurches,[109]and was delineated byC.S. Lewisin his worksMere ChristianityandThe Abolition of Man.[110]The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical (orsoulperhaps), and that the two are inextricably linked.[111]Humans are capable of discerning the difference betweengood and evilbecause they have aconscience.[112]There are many manifestations of the good that we can pursue. Some, likeprocreation, are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings.[113]To know what is right, one must use one's reason and apply it to Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided."[114]St. Thomas explains that:

there belongs to the natural law, first, certain most general precepts, that are known to all; and secondly, certain secondary and more detailed precepts, which are, as it were, conclusions following closely from first principles. As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's hearts. But it is blotted out in the case of a particular action, insofar as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above (77, 2). But as to the other, i.e., the secondary precepts, the natural law can be blotted out from the human heart, either by evil persuasions, just as in speculative matters errors occur in respect of necessary conclusions; or by vicious customs and corrupt habits, as among some men, theft, and even unnatural vices, as the Apostle states (Rm. i), were not esteemed sinful.[115]However, while the primary and immediate precepts cannot be "blotted out", the secondary precepts can be. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility. Any rule that helps man to live up to the primary or subsidiary precepts can be a secondary precept, for example:

Drunkenness is wrong because it injures one's health, and worse, destroys one's ability to reason, which is fundamental to man as a rational animal (i.e., does not support self-preservation).

Theft is wrong because it destroys social relations, and man is by nature a social animal (i.e., does not support the subsidiary precept of living in society).

Natural moral law is concerned with both exterior and interior acts, also known as action and motive. Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping an old lady across the road (good exterior act) to impress someone (bad interior act) is wrong. However, good intentions don't always lead to good actions. The motive must coincide with the cardinal or theological virtues.Cardinal virtuesare acquired through reason applied to nature; they are:

1. Prudence2. Justice3. Temperance4. FortitudeThetheological virtuesare:

1. Faith2. Hope3. CharityAccording to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a man who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to his lack of self-control and desire for pleasure, despite his good intentions, he will find himself swaying from the moral path.

In contemporary jurisprudence[edit]Injurisprudence,natural lawcan refer to the several doctrines:

Thatjust lawsareimmanentin nature; that is, they can be "discovered" or "found" but not "created" by such things as abill of rights;

That they can emerge by the natural process of resolving conflicts, as embodied by the evolutionary process of the common law; or

That the meaning of law is such that its content cannot be determined except by reference to moral principles. These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws.

Whereaslegal positivismwould say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust law.Legal interpretivism, famously defended in the English-speaking world byRonald Dworkin, claims to have a position different from both natural law and positivism.

BesidesutilitarianismandKantianism, natural law jurisprudence has in common withvirtue ethicsthat it is a live option for afirst principlesethics theory inanalytic philosophy.

The concept of natural law was very important in the development of the Englishcommon law. In the struggles betweenParliamentand themonarch, Parliament often made reference to theFundamental Laws of England, which were at times said to embody natural law principles sincetime immemorialand set limits on the power of the monarchy. According toWilliam Blackstone, however, natural law might be useful in determining the content of the common law and in deciding cases ofequity, but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates oflegal positivism, likeJeremy Bentham, have also been staunch critics of the common law.

Natural law jurisprudence is currently undergoing a period of reformulation (as is legal positivism). The most prominent contemporary natural law jurist, AustralianJohn Finnis, is based in Oxford, but there are also AmericansGermain Grisez,Robert P. George, and CanadianJoseph Boyle. All have tried to construct a new version of natural law. The 19th-centuryanarchistand legal theorist,Lysander Spooner, was also a figure in the expression of modern natural law.

"New Natural Law" as it is sometimes called, originated with Grisez. It focuses on "basic human goods," such as human life, knowledge, and aesthetic experience, which areself-evidentlyand intrinsically worthwhile, and states that these goods reveal themselves as beingincommensurablewith one another.

The tensions between the natural law and the positive law have played, and continue to play a key role in the development ofinternational law.[116]Legal positivism

From Wikipedia, the free encyclopedia

For the book by Norberto Bobbio, seeLegal Positivism (book).

Legal positivismis a school of thought ofphilosophy of lawandjurisprudence, largely developed by eighteenth and nineteenth-century legal thinkers such asJeremy BenthamandJohn Austin. However, the most prominent figure in the history of legal positivism isH. L. A. Hart, whose workThe Concept of Lawcaused a fundamental re-thinking of the positivist doctrine and its relationship with the other principal theories of law. In more recent years the central claims of legal positivism have come under attack fromRonald Dworkin.

Although the positivist position is complex, the central claim of legal positivism is the following:

"In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits."[1]Contents

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1Legal validity and the sources of law 2Legal positivism and legal realism 3History 3.1Jeremy Bentham 3.2John Austin 3.3Hans Kelsen 3.4H. L. A. Hart 3.5Joseph Raz 4See also 5References 6Further readingLegal validity and the sources of law[edit]In the positivist view, the "source" of a law is the establishment of that law by some socially recognized legal authority. The "merits" of a law are a separate issue: it may be a "bad law" by some standard, but if it was added to the system by a legitimate authority, it is still a law.

The Stanford Encyclopedia of Philosophy summarizes the distinction between merit and source like so: "The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is asocial construction."[2]Legal positivism does not claim that the laws so identified should be followed or obeyed or that there is value in having clear, identifiable rules (although some positivists may also make these claims). Indeed, the laws of a legal system may be quite unjust, and the state may be quite illegitimate. As a result there may be no obligation to obey them. Moreover, the fact that a law has been identified by a court as valid provides no guidance as to whether the court should apply it in a particular case. As John Gardner has said, legal positivism is 'normatively inert'; it is a theory of law, not a theory of legal practice, adjudication, or political obligation. Legal positivists believe that intellectual clarity is best achieved by leaving these questions to a separate investigation.

Legal positivism and legal realism[edit]Legal positivism should be distinguished fromlegal realismand such legal realists. The differences are both analytically and normatively important. Both systems consider that law is a human construct. Unlike the American realists, positivists believe that in many instances the law provides reasonably determinate guidance to its subjects and to judges, at least in trial courts.

Niklas Luhmannasserts "We can reduce... positive law to a formula, that law is not only posited (that is, selected) through decision, but also is valid by the power of decision (thus contingent and changeable)."[3]However, no positivist has ever asserted that law is made valid by anyone's decision. In Hart's opinion, the validity of law is a matter of the customary and collective practices of the courts. As for the moral validity of law, both positivists and realists maintain that this is a matter of moralprinciples. 'The power of decision' has no essential role in either, since individual decision rarely suffices to create a social practice of recognition, and it would be implausible to suppose that moral principles are made so by anyone's decision.[citation needed]History[edit]Jeremy Bentham[edit]Main article:Jeremy Bentham

Jeremy BenthamIn English-language philosophy, legal positivism begins with the work of Jeremy Bentham, theutilitarianphilosopher. Bentham made a sharp distinction between people he called:

Expositors- those who explained what the law in practice was; and

Censors- those who criticised the law in practice and compared it to their notions of what it ought to be.

The philosophy of law, considered strictly, was to explain the real laws of the expositors, rather than the criticisms of the censors.

Bentham was also noted for calling natural law "nonsense upon stilts."

John Austin[edit]Main article:John Austin (legal philosopher)

John Austin (legal philosopher)The distinguishing feature of a legal system is the existence of a sovereign whose authority is recognized by most members of a society, the authority of which is enforced by the use of sanctions, but which is not bound by any human superior. The criterion for validity of a legal rule in such a society is that it has the warrant of the sovereign and will be enforced by the sovereign power and its agents.

The three basic tenets of Austin's positivism are:

laws are commands issued by the uncommanded commander, i.e. the sovereign;

such commands are enforced by sanctions; and

a sovereign is one who is obeyed by the majority.

Austin considered the law as commands from a sovereign that are enforced by threat of sanction. In determining 'a sovereign', Austin recognized it is one whom society obeys habitually. This sovereign can be a single person or a collective sovereign such as Parliament, with a number of individuals, with each having various authoritative powers. Austin's theory is also somewhat brief in his explanations of Constitutions, International Law, non-sanctioned rules, or law thatgivesrights. Insofar as non-sanctioned rules and laws thatallowpersons to do things, such ascontract law, Austin said that failure to obey the rules does result in sanctions; however, such sanctions are in the form of "the sanction of nullity."

Austin was greatly influenced in his philosophy by Jeremy Bentham.

Hans Kelsen[edit]Main article:Hans KelsenKelsen's is considered a very strict and scientifically understood type of legal positivism. It is based on the idea of aGrundnorm, a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. For Kelsen, "sovereignty" was a loaded concept: "We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition."

His theory has disciples among scholars of public law worldwide. His disciples developed "schools" of thought to extend his theories, such as the Vienna School in Austria and the Brno School in Czechoslovakia. In English-speaking countries, H. L. A. Hart and Joseph Raz are perhaps the most well-known authors who were influenced by Kelsen, though both differed from Kelsen's theories in several respects.

H. L. A. Hart[edit]Main article:H. L. A. HartH. L. A. Hart later addressed Austin. Hart liked Austin's theory of a sovereign, but claimed that Austin's Command Theory failed in several important respects. In the bookThe Concept of Law, Hart outlined several key points: Among the many ideas developed in this book are:

A critique ofJohn Austin'stheory that law is the command of the sovereign enfor