Jurisprudence

Jurisprudence is the study and theory of law.

Scholars of jurisprudence, also known as jurists or
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 systems and of legal institutions.
Modern jurisprudence began in the 18th century
and was focused on the first principles of
the natural law, civil law, and the law 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 law is 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 realism is 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 in sociology of law.
Critical legal studies is 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 Law Ronald Dworkin who 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

as therapeutic jurisprudence, concerned with the
impact of legal processes on wellbeing and mental
health.
The English term is based on the Latin
word jurisprudentia: juris is the genitive form
of jus meaning "law", and prudentia means
"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 word prudence had the now obsolete
meaning of "knowledge of or skill in a matter". The
word may have come via the French jurisprudence,
which is attested earlier.

1 History of jurisprudence
2 Natural law

3 Analytic jurisprudence

4 Normative jurisprudence

5 See also

6 References

7 Further reading

8 External links

History of jurisprudence[edit]

Ancient Indian jurisprudence is available in

various Dharmastra texts starting from the
Dharmasutra of Bhodhayana. Jurisprudence already
had this meaning[citation needed] in Ancient Rome even if
at its origins the discipline was a (periti) in
the jus of mos maiorum (traditional law), a body
of oral laws and 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
evolutive Institutiones (legal concepts), while
remaining in the traditional scheme. Praetors were
replaced in 3rd century BC by a laical body
of prudentes. Admission to this body was
conditional upon proof of competence or
experience.
Under the Roman 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
the Proculians and Sabinians. The scientific depth
of the studies was unprecedented in ancient times.
After the 3rd century, Juris prudentia became a
more bureaucratic activity, with few notable
authors. It was during the Eastern Roman
Empire (5th century) that legal studies were once
again undertaken in depth, and it is from this
cultural movement that Justinian's Corpus Juris
Civilis was born.
Natural law
Main article: Natural law
Natural 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 maxim an 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 as John Finnis, the most important of modern
natural barristers have argued, this maxim is a
poor guide to the classicalThomist position.
Strongly related to theories of natural law are
classical theories of justice, beginning in the West
with Platos Republic.
Aristotle[edit]
Main article: Aristotle

Aristotle, by Francesco Hayez

Aristotle is often said to be the father of natural
law.[7] Like his philosophical
forefathers Socrates and Plato, Aristotle posited the
existence of natural justice or natural right (dikaion
physikon, , Latin ius naturale). His
association with natural law is largely due to the
way in which he was interpreted by Thomas
Aquinas.[8] This was based on Aquinas' conflation of

natural law and natural right, the latter of which

Aristotle posits in Book V of the Nicomachean
Ethics (= Book IV of the Eudemian 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 the golden 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 in Nicomachean
Ethics and 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][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 the Rhetoric,
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 Aquinas was the most important Western

medieval legalscholar
Main article: Thomas Aquinas
Saint Thomas Aquinas [Thomas of Aquin, or
Aquino] (c. 1225 7 March 1274) was
a philosopher and theologian in
thescholastic tradition, known as "Doctor
Angelicus, Doctor Universalis". He is the foremost
classical proponent of natural theology, and the
father of the Thomistic school of philosophy, for a
long time the primary philosophical approach of
theRoman Catholic Church. The work for which he
is best known is the Summa Theologica. One of the
thirty-five Doctors of the Church, he is considered
by many Catholics to be the Church's greatest
theologian. Consequently, many institutions of
learning have 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 law is revealed in the scriptures and is
God's positive law for mankind.
Human law is 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 Salamanca
Francisco de Vitoria was perhaps the first to
develop a theory of ius 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 text De iure belli ac
pacis by 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
of ius gentium. Working with already well-formed
categories, he carefully distinguished ius inter
gentes from ius 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 Hobbes

In his treatise Leviathan, (1651), Hobbes expresses
a view of natural law as a precept, or general rule,
found out by reason, 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 a social
contractarian[23] and believed that the law gained
peoples' tacit consent. He believed that society
was formed from a state of nature to 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. The English Civil War and 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. Fuller
Writing after World 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 Finnis
Sophisticated 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: Sharia and Fiqh
) refers to the body of Islamic law.
Sharia (



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 on Islamic principles 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 distinguishes fiqh, which means
understanding the details and inferences drawn by
scholars, from sharia, which refers to the principles
behind thefiqh. Scholars hope
that fiqh and sharia are in harmony in any given
case, but this cannot be assured.[24]
Early forms of logic in Islamic philosophy were
introduced in Islamic jurisprudence from the 7th
century with the process of Qiyas. During
the Islamic Golden Age, there was a logical debate
among Islamic philosophers and jurists over
whether the term Qiyas refers to analogical
reasoning, inductive reasoning or
categoricalsyllogism. Some Islamic scholars argued
that Qiyas refers to reasoning. Ibn Hazm (9941064) disagreed with this, arguing that Qiyas refers
rather to categorical syllogism in a real sense and
to analogical reasoning in a metaphorical sense.
On the other hand, al-Ghazali (10581111) argued
that Qiyas refers to analogical reasoning in a real
sense and categorical syllogism in a metaphorical
sense. Other Islamic scholars at the time argued
that the term Qiyas refers to both analogical
reasoning and categorical syllogism in a real sense.
[25]

Analytic jurisprudence[edit]
Main article: Analytic jurisprudence

Analytic, 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 Hume famously
argued in A Treatise of Human Nature[27] that
people invariably slip between describing that the
world is a certain way to saying therefore
we ought to conclude on a particular course of
action. But as a matter of pure logic, one cannot
conclude that we ought to do something merely
because something is the case. So analysing and
clarifying the way the world ismust be treated as a
strictly separate question to normative and
evaluative ought questions.
The most important questions of analytic
jurisprudence are: "What are laws?"; "What
is the law?"; "What is the relationship between law
and power/sociology?"; and "What is the
relationship between law and morality?" 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 positivism
Positivism 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
is just by 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 law is (lex lata) - is determined by

historical social practice (resulting in rules)
What the law ought to be (lex ferenda) - is
determined by moral considerations.

Bentham and Austin[edit]

Bentham's utilitarian theories remained dominant

in law until the twentieth century
Main articles: Jeremy Bentham and John Austin
(legal philosopher)
One of the earliest legal positivists was Jeremy
Bentham. Bentham was an early and staunch
supporter of the utilitarian concept (along
with Hume), an avid prison reformer, advocate
for democracy, and strongly atheist. Bentham's
views about law and jurisprudence were
popularized by his student, John Austin. Austin was
the first chair of law at the new University of
London from 1829. Austin's utilitarian answer to
"what is law?" was that law is "commands, backed
by threat of sanctions, from a sovereign, to whom
people have a habit of obedience".
[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 Kelsen
Hans 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. His Pure Theory
of Law aims 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 a legal
system, beginning with constitutional 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. Hart
In th Anglophone world, the pivotal writer was H. 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 nonnormative social facts. Hart revived analytical
jurisprudence as an important theoretical debate in
the twentieth century through his book The
Concept of Law.[29] As the professor of
jurisprudence at Oxford 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 published Institutions of Law, 2007).
Other important critiques have included that
ofRonald Dworkin, John Finnis, and Joseph 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 called exclusive 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
labeled inclusive legal positivism, a major
proponent of which is Wil Waluchow, and it is
associated with the view that moral
considerations may determine the legal validity of
a norm, but that it is not necessary that this is the
case.
Joseph Raz[edit]
Main article: Joseph Raz
Some 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 in The
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 Dworkin and Interpretivism
(legal)
In his book Law'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
realiststhat no-one in 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 of fit. 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 them the best that they can be. But many
writers have doubted whether there is a 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 Holmes was a self-styled legal

realist
Main article: Legal realism
Legal 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
Justice Oliver Wendell Holmes, Jr., as the main
precursor of American Legal Realism (other
influences include Roscoe Pound, Karl

Llewellyn and Justice Benjamin 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 of Axel
Hgerstrm. Despite its decline in popularity,
realism continues to influence a wide spectrum of
jurisprudential schools today, including critical
legal studies, feminist legal theory, critical race
theory,sociology of law and law and economics.[35]
Historical School[edit]
Main article: German Historical School
Historical jurisprudence came to prominence
during the German debate over the proposed
codification of German law. In his book On the
Vocation of Our Age for Legislation and
Jurisprudence,[36] Friedrich Carl von Savigny argued
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 philosophy
In 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 to punishment, 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) and Aristotle (right), a detail of The

School of Athens
Main article: Virtue jurisprudence
Aretaic moral theories such as contemporary virtue
ethics emphasize 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 with Aristotle or Thomas

Aquinas later. Contemporary virtue jurisprudence is

inspired by philosophical work on virtue ethics.
Deontology[edit]
Main article: Deontological ethics
Deontology is "the theory of duty or moral
obligation."[37] The philosopher Immanuel
Kant formulated 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 philosopher Ronald
Dworkin.
Utilitarianism[edit]

Mill believed law should create happiness

Main article: Utilitarianism
See also: Lysander Spooner
Utilitarianism 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 Mill was a pupil of Bentham's
and was the torch bearer for utilitarian philosophy
through the late nineteenth century.[38] In
contemporary legal theory, the utilitarian approach
is frequently championed by scholars who work in
the law and economicstradition.[35]
John Rawls[edit]
Main articles: John Rawls and A Theory of Justice
John Rawls was an American philosopher,
a professor of political philosophy at Harvard
University and author of A Theory of
Justice (1971), Political Liberalism, Justice as
Fairness: A Restatement, and The 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, including critical legal
studies and libertarian 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 the legal philosopher H. L. A.
Hart. It was first published in 1961 and develops
Hart's theory of legal positivism (the view that laws
are rules made by human beings and that there is
no inherent or necessary connection between law
and morality) within the framework of analytic
philosophy. In this work, Hart sets out to write an
essay of descriptive sociology and analytical
jurisprudence. The Concept of Law provides 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
[hide]

1 Background
2 Austin's "Command theory"

3 Social habits, rules, and laws

4 See also

5 References

Background[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 Morals at Harvard Law
School. The book developed a sophisticated view of
legal positivism.
Among the ideas developed in the book are:

A critique of John Austin's theory 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 the rule 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 from Hans Kelsen's "Grundnorm", or
"basic norm".
A reply to Ronald Dworkin, who criticized legal
positivism in general and especially Hart's
account of law in Taking Rights
Seriously (1977), A Matter of Principle(1985)
and Law's Empire (1986).

Austin's "Command theory"[edit]

The starting point for the discussion is Hart's
dissatisfaction with John 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 a gunman in a bank and 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 or coercive. Some are
facilitative, allowing us to create contracts and
other legal relations.
Austin believed that every legal system had to
have a sovereign who 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
social habit (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
From Wikipedia, the free encyclopedia
For other uses, see Natural law (disambiguation).

Thomas Aquinas, the leading proponent of natural

law.
Natural law, or the law of nature (Latin: lex
naturalis; ius naturale), is a philosophy of law that
is determined by nature, and so is universal.
[1]
Classically, natural law refers to the use of

reason to analyze human nature both social and

personal and deduce binding rules of moral
behavior from it. Natural law is often contrasted
with the positive law of a given political
community, society, or state.[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. Some jurists and
scholars use natural law synonymously withnatural
justice or natural right (Latin ius naturale),[3] while
others distinguish between natural law and natural
right.[1]
Although natural law is often conflated
with common 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 of English common law,[5] and
have featured greatly in
the philosophies of Thomas 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

Beccaria and Francesco Mario Pagano. Because of
the intersection between natural law and natural
rights, it has been cited as a component in
the United States Declaration of Independence and
the Constitution of the United States, as well as in
theDeclaration of the Rights of Man and of the
Citizen. Declarationism states that the founding of
the United States is based on Natural law.
Natural Law and consent 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
[hide]

1 History
1.1 Plato

1.2 Aristotle

1.3 Stoic natural law

1.4 Cicero

1.5 English jurisprudence

1.6 American jurisprudence

1.7 Islamic natural law

1.8 Hobbes

1.9 Cumberland's rebuttal of Hobbes

1.10 Liberal natural law

2 Contemporary Christian understanding

3 In contemporary jurisprudence

4 See also

5 Notes

6 References

7 External links
History[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 section possibly
contains original
research. Please improve
it by verifying the claims made and
adding inline citations. Statements

consisting only of original research

should be removed. (May 2011)
Although Plato does not have an explicit theory of
natural law (he rarely used the phrase 'natural law'
except in Gorgias 484 and Timaeus 83e), 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 the forms, most fundamentally the Form
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 the Symposium,
the Good is closely identified with the Beautiful.
[11]
Also in the Symposium, Plato describes how the
experience of the Beautiful by Socrates enables
him to resist the temptations of wealth and sex.
[12]
In the Republic, the ideal community is, "...a city
which would be established in accordance with
nature."[13]
Aristotle[edit]

Plato (left) and Aristotle (right), a detail of The

School of Athens, a fresco byRaphael.
Greek philosophy emphasized 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 the conventionalism that the
distinction between nature and custom could
engender, Socrates and his philosophic
heirs,Plato and Aristotle, posited the existence
of natural justice or natural right (dikaion
physikon, , Latin ius 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 by Thomas
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
the Nicomachean Ethics (Book IV of the Eudemian
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 that natural

justice is a species of political justice, viz. the

scheme of distributive and corrective justice that
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 the Politics that
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 the Rhetoric,
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 law is 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 of natural
justice into one of natural law is usually attributed
to the Stoics. 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 emphatically natural, in
contradistinction to being the result
of divine positive legislation, 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
(a divine or eternal 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 Cicero

Cicero wrote in his De Legibus that 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' there inheres the
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
the Roman Empire was 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 of Saint Isidore of Seville and
the Decretum 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 historian Leonardo
Bruni praised 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 by Sir
Edward Coke, was "steeped in Ciceronian
rhetoric."[30] The Scottish moral philosopher Francis
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 polemicist Thomas
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 by Burlamaqui[34] and later by the
American revolutionary legal scholar James Wilson.
[35]
Cicero became John 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 early Church Fathers, especially those in
the West, sought to incorporate natural law
into Christianity. The most notable among these
was Augustine of Hippo, who equated natural law

with man's prelapsarian state; as such, a life

according to nature was no longer possible and
men needed instead to seek salvation through
the divine law and grace of Jesus Christ.
In the twelfth century, Gratian equated the natural
law with divine law. A century later, St. Thomas
Aquinas in his Summa Theologica I-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 the Eternal law,
it needed to be supplemented by revealed Divine
law. (See also Biblical 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
inherently teleological and deontological in 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.
The state, in being bound by the natural law, was
conceived as an institution directed at bringing its
subjects to true happiness.
In the 16th century, the School of
Salamanca (Francisco Surez, Francisco de Vitoria,
etc.) further developed a philosophy of natural law.
After the Church of England broke from Rome,
the English theologian Richard
Hooker adapted Thomistic notions of natural law
to Anglicanism. 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 to Paul's Epistle 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' in Cicero, 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 like St Hilary of Poitiers, St Ambrose,
and St 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 of Henry
de Bracton (d. 1268) and Sir 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 is under the 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 twelfthcentury Italian jurist Azo: "'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

lawyer Thomas 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 scholar Ellis
Sandoz has 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 in Accursius and Bracton), after all, was
'a sacred sanction commanding what is virtuous
[honesta] and forbidding the
contrary.'"[54] Fortescue cited the great
Italian Leonardo Bruni for his statement that "virtue
alone produces happiness."[55]
Christopher St. Germain's Doctor and Student was
a classic of English jurisprudence,[56] and it was
thoroughly annotated by Thomas 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]
[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 of Calvin'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
authorities Aristotle, Cicero, and the Apostle Paul;
as well as Bracton, Fortescue, and St. 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][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]
The U.S. Declaration of Independence states 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 concrete rights and governmental
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 the U.S. Constitution rests on a common
law foundation and the common law, in turn, rests
on a classical natural law foundation.[72]
Islamic natural law[edit]
Ab Rayhn al-Brn, an Islamic
scholar and polymath scientist, understood natural
law as the survival of the fittest. He argued that

the antagonism betweenhuman beings can only be

overcome through a divine law, which he believed
to have been sent through prophets. This is also
the position of the Ashari school, the largest school
of Sunni theology.[73] Averroes (Ibn Rushd), in his
treatise on Justice and Jihad and his commentary
on Plato's Republic, writes that the human mind
can know of the unlawfulness of killing and stealing
and thus of the five maqasid or higher intents of
the Islamic sharia or to protect religion, life,
property, offspring, and reason. The concept of
natural law entered the mainstream of Western
culture through his Aristotelian commentaries,
influencing the subsequent Averroistmovement and
the writings of Thomas Aquinas.[74]
The Maturidi school, the second largest school of
Sunni theology, posits the existence of a form of
natural law. Abu Mansur al-Maturidi stated 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 alMaturidi. The concept of Istislah in Islamic
law bears some similarities to the natural law
tradition in the West, as exemplified by Thomas
Aquinas. However, whereas natural law deems
good what is self-evidently good, according as it

tends towards the fulfilment of the

person, istislah calls good whatever is connected to
one of five "basic goods". Al-Ghazali abstracted
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-Jawziyya also posited that human
reason could discern between 'great sins' and good
deeds.[citation needed]
Hobbes[edit]

Thomas Hobbes
By the 17th Century, the Medieval teleological view
came under intense criticism from some
quarters. Thomas Hobbes instead founded
a contractualist theory of legal positivism on 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's natural 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 on legal
positivism further developed the theory.
As used by Thomas Hobbes in his
treatises Leviathan and De Cive, natural law is
"a precept, 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 is that 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 is that 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 is that 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 is that 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 is that upon caution of the future
time, a man ought to pardon the offences past of
them that repenting, desire it.
The seventh Law is that in revenges, men look
not at the greatness of the evil past, but the
greatness of the good to follow.

The eighth Law is that 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 is that every man acknowledge
another for his equal by nature. The breach of
this precept is pride.
The tenth law is that 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 that if a man be trusted to
judge between man and man, that he deal
equally between them.
The twelfth law is that 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 is the entire right, or
else...the first possession (in the case of
alternating use), of a thing that can neither be
divided nor enjoyed in commonshould be
determined by lottery.
The fourteenth law is that those 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 that all men that mediate

peace be allowed safe conduct.
The sixteenth law is that they that are at
controversie, submit their Right to the
judgement of an Arbitrator.
The seventeenth law is that 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 if greater 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 for Aristotle'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] Rejecting Cicero'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 cleric Richard Cumberland wrote 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
alongside Alberico Gentili, Hugo Grotius andSamuel
Pufendorf "in the triumvirate of seventeenth-

century founders of the 'modern' school of natural

law."[84] The eighteenth-century
philosophers Shaftesburyand Hutcheson "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
Roman Stoicism, particularly from the work
of Cicero, 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,
and Epicureans, 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
his Treatise of the Laws of Nature that "all the Laws
of Nature are reduc'd to that one, of Benevolence
toward all Rationals."[88] He later clarifies: "By the
name Rationals I beg leave to understand, as
well God as Man; 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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citations for verification. Please
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challenged and removed. (April 2009)

Dr Alberico Gentili, the founder of the science of

international law.
Liberal natural law grew out of
the medieval Christian natural law theories and out
of Hobbes' revision of natural law, sometimes in an
uneasy balance of the two.
Sir Alberico Gentili and Hugo Grotius based their
philosophies of international law on natural law. In
particular, his writings onfreedom of the
seas and just war theory directly appealed to
natural law. About natural law itself, he wrote that
"even the will of anomnipotent being cannot
change or abrogate" natural law, which "would
maintain its objective validity even if we should
assume the impossible, that there is no God or that
he does not care for human affairs." (De iure belli
ac pacis, Prolegomeni XI). This is the
famous argument etiamsi 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, the Old
Testament contained moral precepts (e.g.
the Decalogue) which Christ confirmed 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 Pufendorf gave natural
law a theological foundation and applied it to his
concepts of government andinternational law.[96]
John Locke incorporated natural law into many of
his theories and philosophy, especially in Two
Treatises of Government. There is considerable
debate about whether his conception of natural law
was more akin to that of Aquinas (filtered
through Richard Hooker) or Hobbes' radical
reinterpretation, though the effect of Locke's
understanding is usually phrased in terms of a
revision of Hobbes upon
Hobbesean contractualist grounds. 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
of natural rights, and it was this language that later
liberal thinkers preferred. Political

philosopher Jeremy Waldron has 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
the Decalogue, Christ's teaching and exemplary
life, and St. Paul's admonitions.[99] Locke derived
the concept of basic human equality, including
the equality of the sexes ("Adam and Eve"),
from Genesis 1, 2628, the starting-point of the
theological doctrine of Imago 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 to unalienable rights in
the Declaration of Independence, "We hold these
truths to be self-evident, that all men
are created equal, that they are endowed by
their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of
Happiness."[102] The Lockean idea that governments
need the consent of the governed was 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 law Frank van Dun is
one among those who are elaborating a secular
conception[104] of natural law in the liberal
tradition. Libertariantheorist Murray

Rothbard argues 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 Mises states 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 Gordon notes, "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 by Pierre Charron in his De 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]
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Thomas Aquinas
The Roman Catholic Church holds the view of
natural law provided by St. Thomas Aquinas,
[108]
particularly in his Summa Theologiae, and often
as filtered through the School of Salamanca. This
view is also shared by some Protestant churches,

[109]

and was delineated by C.S. Lewis in his

works Mere Christianity and The Abolition of Man.
[110]

The Catholic Church understands human beings to

consist of body and mind, the physical and the
non-physical (or soulperhaps), and that the two are
inextricably linked.[111] Humans are capable of
discerning the difference between good and
evilbecause they have a conscience.[112] There are
many manifestations of the good that we can
pursue. Some, like procreation, 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 selfpreservation).
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
virtues are acquired through reason applied to
nature; they are:
1.Prudence
2.Justice
3.Temperance
4.Fortitude
The theological virtues are:
1.Faith
2.Hope
3.Charity
According 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]

In jurisprudence, natural law can refer to the

several doctrines:

That just laws are immanent in nature; that is,

they can be "discovered" or "found" but not
"created" by such things as a bill 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.

Whereas legal positivism would 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 by Ronald Dworkin, claims
to have a position different from both natural law
and positivism.
Besides utilitarianism and Kantianism, natural law
jurisprudence has in common with virtue
ethics that it is a live option for a first
principles ethics theory in analytic philosophy.

The concept of natural law was very important in

the development of the English common law. In the
struggles between Parliament and the monarch,
Parliament often made reference to
the Fundamental Laws of England, which were at
times said to embody natural law principles
since time immemorial and set limits on the power
of the monarchy. According to William Blackstone,
however, natural law might be useful in
determining the content of the common law and in
deciding cases of equity, 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 of legal positivism,
like Jeremy 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 Americans Germain Grisez, Robert P.
George, and Canadian Joseph Boyle. All have tried
to construct a new version of natural law. The 19thcentury anarchist and 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 are self-evidently and

intrinsically worthwhile, and states that these
goods reveal themselves as
being incommensurable with one another.
The tensions between the natural law and the
positive law have played, and continue to play a
key role in the development of international law.[116]
Legal positivism
From Wikipedia, the free encyclopedia
For the book by Norberto Bobbio, see Legal
Positivism (book).
Legal positivism is a school of thought
of philosophy of law and jurisprudence, largely
developed by eighteenth and nineteenth-century
legal thinkers such asJeremy Bentham and John
Austin. However, the most prominent figure in the
history of legal positivism is H. L. A. Hart, whose
work The Concept of Law caused a fundamental rethinking 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 from Ronald
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
[hide]

1 Legal validity and the sources of law

2 Legal positivism and legal realism

3 History

3.1 Jeremy Bentham

3.2 John Austin

3.3 Hans Kelsen

3.4 H. L. A. Hart

3.5 Joseph Raz

4 See also

5 References

6 Further reading
Legal 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 a social
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 from legal
realism and 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 Luhmann asserts "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 moral principles. '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 Bentham
In English-language philosophy, legal positivism
begins with the work of Jeremy Bentham,
the utilitarian philosopher. 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 that gives rights.
Insofar as non-sanctioned rules and laws
that allow persons to do things, such as contract
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 Kelsen
Kelsen's is considered a very strict and
scientifically understood type of legal positivism. It
is based on the idea of a Grundnorm, 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 wellknown 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. Hart
H. 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 book The Concept of

Law, Hart outlined several key points: Among the
many ideas developed in this book are:

A critique of John Austin's theory that law is the

command of the sovereign enforced by the
threat of punishment.
A distinction between the internal and external
considerations of law and rules, close to (and
influenced by) Max Weber's distinction between
the sociological and the legal perspectives of law.
A distinction between primary and secondary
legal rules, such that a primary rule governs
conduct, such as criminal law and a secondary
rules govern the procedural methods by which
primary rules are enforced, prosecuted and so
on. Hart specifically enumerates three secondary
rules; they are:

The Rule of Recognition, the rule by which

any member of society may check to
discover what the primary rules of the
society are. In a simple society, Hart states,
the recognition rule might only be what is
written in a sacred book or what is said by a
ruler. Hart claimed the concept of rule of
recognition as an evolution from Hans
Kelsen's "Grundnorm", or "basic norm."

The Rule of Change, the rule by which

existing primary rules might be created,
altered or deleted.
The Rule of Adjudication, the rule by which
the society might determine when a rule has
been violated and prescribe a remedy.

A late reply (1994 Edition) to Ronald Dworkin,

who criticized legal positivism in general and
especially Hart's account of law in Taking
Rights Seriously (1977), A Matter of
Principle (1985) and Law's Empire (1986).

Joseph Raz[edit]
Main article: Joseph Raz
A pupil of H. L. A. Hart, Raz has been important
in continuing Hart's arguments of legal
positivism since Hart's death. This included
editing a second edition of Hart's 'The Concept of
Law', with an additional section including Hart's
responses to other philosophers' criticisms of his
work.
Raz has also argued, contrary to Hart,[4] that the
validity of a law can never depend on its
morality.[5]
Legal realism
From Wikipedia, the free encyclopedia
This article includes a list of
references, but its sources remain

unclear because it
has insufficient inline
citations. Please help to improve this
article by introducing more precise
citations. (March 2009)
See also: Scepticism in law
Legal realism is a school of legal philosophy that
is generally associated with the culmination of the
early 20th century attack on the orthodox claims of
late 19th century classical legal thought in
the United States, American legal realism.
[1]
American Legal Realism is often remembered for
its challenge to the classical legal claim that
orthodox legal institutions provided an autonomous
and self-executing system of legal discourse
untainted by politics. Unlike classical legal thought,
American legal realism worked vigorously to depict
the institution of law without denying or distorting
a picture of sharp moral, political, and social
conflict.[2] The most important legacy of American
legal realism is its challenge to the classical legal
claim that legal reasoning was separate and
autonomous from moral and political discourse.[1][3]
Contents
[hide]
1 Antecedents
1.1 Oliver Wendell Holmes, Jr.

1.1.1 The Common Law

1.1.2 "The Path of the Law"

2 American Legal Realisms Legacy

2.1 Critique of the market economy

2.1.1 Robert Lee Hales Coercion and

Distribution in a Supposedly Non-Coercive
State

3 Further explanation

4 Expanding influence

5 Continuing relevance

6 See also

7 References

8 External links
Antecedents[edit]
Although the American Legal Realist movement is
conventionally thought to have been confined to
the period between the two world wars, many of
the ideas that figured prominently in the Realists
teachings and writings were first developed by
dissidents among the preceding generation of
scholars.[4]
Oliver Wendell Holmes, Jr.[edit]
The most important of these forerunners
was Oliver Wendell Holmes, Jr., whose work has
had an especially powerful impact on American
Legal Realist thought.

The Common Law[edit]

Main article: The Common Law
Published in 1881, Holmess book The Common
Law heavily influenced American Legal Realist
thought, and some scholars have dubbed the book
to be Holmess masterpiece.[1] The book
commences with Holmess famous aphorism: The
life of the law has not been logic; it has been
experience. [5] The Common Law is susceptible to
many interpretations, and some Realists saw in it a
denunciation of all efforts to represent law as a
science".[4][6] Others read it as an assault on the
Classical legal conception of law as a coherent
system of fixed axioms from which particular rules
and decisions could be deduced.[4][5] Still others
construed it as a call for empirical, behaviorist
study of legal rules.[4][7] The debate will
undoubtedly continue, but one thing seems clear:
most realists found the book in some way
inspirational.[4] Indeed, Holmess famous aphorism
became the movements battle cry.[1]
"The Path of the Law"[edit]
Another of Holmess influential works was the
essay "The Path of the Law". Written originally as a
speech in 1897,[4] the main message of "The Path
of the Law" is that there is no basis in reason for
deciding which of the two contradictory legal
doctrines is correct.[1] To elaborate this message,
Holmes first turned to the distinction between law
and morals: The prophecies of what the courts will

do in fact, and nothing more pretentious, are what I

mean by the law.[5] If law is prophecy, Holmes
continues, we must reject the view of text writers
who tell you that law is something different from
what is decided by the courts of Massachusetts or
England, that it is a system of reason that is a
deduction from principles of ethics or admitted
axioms or what not, which may or may not coincide
with the decisions.[5]
Holmes next introduces his most important and
influential argument, the bad-man theory of law:
if we take the view of our friend the bad man we
shall find that he does not care two straws about
either the morality or the logic of the law. For the
bad man, legal duty signifies only a prophecy
that if he does certain things he will be subjected
to disagreeable consequences by way of
imprisonment or compulsory payment.[5] The bad
man concerns himself only with material
consequences. The sharp distinction Holmes draws
between law and morals had a powerful impact on
the thought of most Legal Realists, although it too
was construed in a variety of ways. Some thought
it justified separating the scientific study of legal
institutions from the distracting discourse of ethics.
[4]
Others treated Holmess argument as a useful
corrective to the confused understanding of law
and morality engendered by the traditional
American conception of natural rights, but
denounced as superficial and misleading the

positivistic conception of scientific method that

their comrades were extracting from it.[4][7]
The utilitarian or instrumental flavor of the "The
Path of the Law" also found favor with the realists.
The purpose of the law, Holmes insisted, was the
deterrence of undesirable social consequences: I
think that the judges themselves have failed
adequately to recognize their duty of weighing
considerations of social advantage.[4] Before the
Civil War, this conception of adjudication as a form
of social engineering had been widely shared by
American judges, but in the late nineteenth
century it had fallen out of favor.[1] One of the
aspirations of both Holmes and the realists was to
revive it.
Several of the specific doctrinal arguments made in
"The Path of the Law" were recapitulated or
elaborated in the more technical essays of the
realists. For example, Holmes drew upon his bad
man theory in developing what for the time was a
radical understanding of the nature of contractual
obligations. The duty to keep a contract at
common law means a prediction that you must pay
damages if you do not keep itand nothing else.
[4]
Only the confusion between legal and moral
ideas had led others to the conclusion that it was
immoral to breach a contract. An approach that
focuses solely on the consequences of breach,
Holmes conceded, stinks in the nostrils of those
who think it advantageous to get as much ethics

into the law as they can, but it is more accurate

and useful, he argued, than an approach that
concentrates on the moral obligations associated
with promises. On a more detailed level, Holmes
amplified his earlier criticisms of subjective
theories of contractual duties (which grounded
obligation in a meeting of the minds of putatively
contracting parties), offering instead an objective
theory (which acknowledged that judges do and
should give meaning to the language employed by
the parties because of some belief as to the
practice of the community or of a class, or because
of some opinion as to policy). This
characterization provided an important staging
ground for the realists assault on the classical
ideal of the neutral and self-regulating market
economy.[4]
Holmess remarks on torts in "The Path of the Law"
were even more innovative. Distancing himself
from the position he had adopted earlier in The
Common Law, Holmes contended that it is
impossible to answer definitely the question
whether a defendant who has injured someone but
whose conduct was not blameworthy should be
forced to pay damages to the victim. The choice
between the negligence principle (defendants
should be liable only if they were at fault) and the
strict liability principle (defendants should be liable
even if blameless), he now insisted, is a
concealed, half-conscious battle on the question of

legislative policy, and if any one thinks that it can

be settled deductively, or once for all, I only can
say that I think he is theoretically wrong, and that I
am certain that his conclusion will not be accepted
in practice.[4] Among the policy questions upon
which the choice turned was the degree to which
the losses associated with the myriad injuries
caused by modern industries (for example,
railroads, factories) should be borne by the public
at large (through increased prices for the goods
and services provided by those industries).[4] Loss
spreading arguments of this sort would figure
prominently in the realists writings on torts.[4]
American Legal Realisms Legacy[edit]
Critique of the market economy[edit]
In the late 19th century, orthodox Classical legal
thought embraced the idea that a self-executing,
decentralized, competitive market economy would
permit legal institutions to function as neutral,
apolitical, and impartial arbiters over the just
distribution of wealth.[1] Given the unequal
distribution of talent, energy, and luck,classical
legal thought posited that a self-executing,
decentralized, competitive market economy would
inevitably result in organized inequality. Thus, legal
institutions could function as neutral, apolitical,
and impartial arbiters because, in a market
economy, legal institutions only had to warrant an
equal opportunity for participants to compete. As if

by an invisible hand, classical legal thought

presumed that unequal results were just because
they reflected the unequal abilities that individuals
brought to the competitive race, and any attempt
to interfere with unequal results would ultimately
subvert the legitimacy of legal institutions.[1]
The will theory of contract law represented the
legal paradigm of classical legal thoughts
commitment to neutrality in what it believed to be
a self-executing, decentralized, competitive market
economy.[1] Under the will theory, the basis for
enforcing a contract was a meeting of minds or a
convergence of wills between contracting parties.
For example, if two parties contracted for the sale
of one thousand bushels of Grade A wheat at below
the prevailing market price, courts would not
attempt to judge the fairness of the contact.
Instead, courts presumed that, absent extreme
hardship or unusual circumstances, each party had
voluntarily agreed to perform their respective
duties under the terms of the contract, and that
the state merely served as the neutral enforcer of
the parties pre-existing voluntary agreement.
Generally, courts would not inquire into the
substantive fairness of a contract because they
presumed that a self-executing, decentralized,
competitive market economy assured the just
distribution of wealth through voluntary agreement
among individuals.[1]

In the early 20th century, as the spectacular

increase in corporate concentration amplified the
unequal distribution of wealth, American Legal
Realists launched their attack on the legitimacy of
a self-executing, decentralized, competitive market
economy.[1]
Robert Lee Hales Coercion and Distribution
in a Supposedly Non-Coercive State[edit]
Following in the anti-naturalist economic legacy
of Veblen, Ely, and Commons, Robert Lee Hale, a
lawyer and economist from Columbia University,
argued in "Coercion and Distribution in a
Supposedly Non-Coercive State" that the market
economy was in fact an organized form of coercion
of people without property by the property owners.
[8]
Hales basic goal was to attack the prevailing
vision of the market economy as a system of free
and voluntary exchange, and thereby to undermine
the claim that the law should simply reflect the
results arrived at in a neutral market.[1][8]
Hale sought to break the bright-line distinction
between voluntariness and coercion by portraying
conduct between market participants as a
reflection of power relations, rather than as some
abstract voluntary meeting of minds or
convergence of wills. Hale illustrated this point with
two central images: the laborer who does not
voluntarily choose to work, but rather is coerced
into working for fear of starvation; and the factory
owner whose coercive power is weakened by the

fact that both his customers and his laborers have

the power to make matters more or less
unpleasant for himthe customers through their
law-given power to withhold access to their cash,
the laborers through their actual power (neither
created nor destroyed by the law) to withhold their
services.[1][8] Hale recognized, however, that
popular thought generally did not recognize
conduct between market participants as
coercive", so he sought to show that conduct
between market participants was not purely
voluntary.
Hale characterized the difference between
conduct, private or governmental, that popular
recognition labels as coercive and conduct that
popular recognition does not label with that term
as a difference of degree rather than of kind. For
example, Hale asserted that the decision to
withhold not to buy in the market or not to
employ labor was simply another form of coercion
by the assertion of economic power.[8] [W]ere it
once recognized that nearly all incomes are the
result of private coercion, some with the help of
the state, some without it, it would then be plain
that to admit the coercive nature of the process
would not be to condemn it.[8] Since all market
transactions reflected the prior distribution of
property and entitlements, all conduct between
market participants inherently involved varying
degrees of coercion. Hale realized that the

undoubtedly coercive character of the pressure

exerted by the property-owner is disguised by the
conception of the market economy as a system of
free and voluntary exchange.[1] Therefore, Hale
asserted that the market economy is merely an
organized form of social coercion that could be
judged only by its social consequences.[8]
Hales most original insight was the view that the
market economy was the actual creator of property
and entitlements, rather than being a neutral
institution that reflected pre-existing property
rights.[1] Once it was understood that there could
be no such thing as a completely voluntary market,
there could also be no completely neutral market
because, one way or the other, there needed to be
rules on how to regulate (or not regulate) coercion.
For example, the legal rules governing the market
determined whether news was property, or
whether employers have the power to fire workers,
or whether economic coercion was legitimate (e.g.,
competition) or illegitimate (e.g., theft, duress). Far
from being neutral and natural, every market
regime created property and entitlements whose
value could not be independent of prior legal
norms for regulating coercion.[1] In other words,
Hale sought to demonstrate that there were no
pre-existing property rights prior to the legal rules
that defined them.
Hales underlying premise was that property is a
source of economic wealth only if some people are

prevented from using it in ways that are permitted

to other people.[9] If courts, for instance, should
prevent a man from breathing any air that had
been breathed by another (within, say a reasonable
statute of limitations), those individuals who
breathed most vigorously and were quickest and
wisest in selecting desirable locations in which to
breathe (or made the most advantageous contracts
with such individuals) would, by virtue of their
property right in certain volumes of air, come to
exercise and enjoy a peculiar economic advantage,
which might, through various modes of economic
exchange, be turned into other forms of economic
advantage such as the ownership of newspapers or
fine clothing. Thus, courts would be creating
economic wealth and property if they established
legal rules that defined the exploitation of air.
[10]
Furthermore, since any prospective change in
the legal rules that reduces the future value of
some recognized property right necessarily
reduces the present value of that property right as
well, Hale posited that the legal idea of property
reflected an abstract circularity.
Perhaps the most notorious example of circular
reasoning, and the most important specific
influence on Hales views about property, is that
involved in judicial determination of the fair rates
in which public utilities were entitled to charge
under the United States Constitution.[1] In the "Rate
Making Cases",[8] courts purported to ascertain the

present market value of the utilitys property, and

then to fix a price to the consumer which assured
the utility a fair rate of return upon that value.
[10]
However, the courts decisions could not have
been in fact based upon the present market value
of the utilitys property because present market
value is merely the present value of the expected
rates. Thus, the present market value of a utilitys
property was merely a function of the courts
decision rather than the recognition or discovery of
some preexisting value or property right. Since it
was the guarantee of a future income stream that
determined the present market value of a utilitys
property, the courts, in overseeing the
reasonableness of rates, were actually creating
property out of the materials of social fact,
commercial custom, and popular moral faiths or
prejudices.[7]
The "Rate Making Cases" enabled Hale to see that
there was no present market value independent of
the expected rate of return, and no economic value
independent of legal protection. The fact that
courts did not protect a purported property right
would make that purported property right
valueless, and the fact that it was valueless would
then be regarded as a reason for not protecting it.
Further explanation[edit]
Legal realism operates on a premise that is
adhered to, often unwittingly, by most laymen and

many who have legal training: that "the law",

whatever that may be, is concerned with and is
intrinsically tied to the real-world outcomes of
particular cases. Accepting this premise moves
jurisprudence, or the study of law in the abstract,
away from hypothetical predictions and closer to
empirical reflections of fact.
Proponents of legal realism say it is not concerned
with what the law should, or "ought to" be, but that
legal realism simply seeks to describe what the
law is. Proponents of legal formalism disagree,
saying that "law" is what is commanded by a
lawgiver, that judges are not lawgivers, and that
what judges do, while it might belong to the field of
law, is not "law" but legal practice.
Expanding influence[edit]
Many developments in legal thought have drawn
heavily from legal realism, including the writings
of Herman Oliphant (1884-1939) and the
development of the legal process school in the
1950s and 1960s, a theory that attempted to chart
a middle way between the extremes of realism
and formalism. Realism remains influential, and a
wide spectrum of jurisprudential schools today
have either taken its premises to greater extremes,
such as critical legal studies (scholars such
as Duncan Kennedy and Roberto Unger), feminist
legal theory, and critical race theory, particularly
at Harvard Law School, Columbia Law

School and Yale Law School, or more moderately,

such as law and economics (scholars such
as Richard Posner at the University of
Chicago and Richard Epstein at University of
Chicago and New York University School of Law)
and law and society (scholars such as Marc
Galanter and Stewart Macaulay at the University of
Wisconsin Law School).
Legal realism also influenced the recognition
of political science and studies of judicial behavior
therein as a specialized discipline within the social
sciences.
Continuing relevance[edit]
Legal realism emerged as an anti-formalist and
empirically oriented response to and rejection of
the legal formalism of Dean Christopher Columbus
Langdell and the American Law Institute (ALI), as
well as of the "mechanical jurisprudence" or
"science of law" with which both became
associated.
Legal realism
From Wikipedia, the free encyclopedia
This article includes a list of
references, but its sources remain
unclear because it
has insufficient inline
citations. Please help to improve this
article by introducing more precise

citations. (March 2009)

See also: Scepticism in law
Legal realism is a school of legal philosophy that
is generally associated with the culmination of the
early 20th century attack on the orthodox claims of
late 19th century classical legal thought in
the United States, American legal realism.
[1]
American Legal Realism is often remembered for
its challenge to the classical legal claim that
orthodox legal institutions provided an autonomous
and self-executing system of legal discourse
untainted by politics. Unlike classical legal thought,
American legal realism worked vigorously to depict
the institution of law without denying or distorting
a picture of sharp moral, political, and social
conflict.[2] The most important legacy of American
legal realism is its challenge to the classical legal
claim that legal reasoning was separate and
autonomous from moral and political discourse.[1][3]
Contents
[hide]
1 Antecedents
1.1 Oliver Wendell Holmes, Jr.

1.1.1 The Common Law

1.1.2 "The Path of the Law"

2 American Legal Realisms Legacy

2.1 Critique of the market economy

2.1.1 Robert Lee Hales Coercion and

Distribution in a Supposedly Non-Coercive
State

3 Further explanation

4 Expanding influence

5 Continuing relevance

6 See also

7 References

8 External links
Antecedents[edit]
Although the American Legal Realist movement is
conventionally thought to have been confined to
the period between the two world wars, many of
the ideas that figured prominently in the Realists
teachings and writings were first developed by
dissidents among the preceding generation of
scholars.[4]
Oliver Wendell Holmes, Jr.[edit]
The most important of these forerunners
was Oliver Wendell Holmes, Jr., whose work has
had an especially powerful impact on American
Legal Realist thought.
The Common Law[edit]
Main article: The Common Law

Published in 1881, Holmess book The Common

Law heavily influenced American Legal Realist
thought, and some scholars have dubbed the book
to be Holmess masterpiece.[1] The book
commences with Holmess famous aphorism: The
life of the law has not been logic; it has been
experience. [5] The Common Law is susceptible to
many interpretations, and some Realists saw in it a
denunciation of all efforts to represent law as a
science".[4][6] Others read it as an assault on the
Classical legal conception of law as a coherent
system of fixed axioms from which particular rules
and decisions could be deduced.[4][5] Still others
construed it as a call for empirical, behaviorist
study of legal rules.[4][7] The debate will
undoubtedly continue, but one thing seems clear:
most realists found the book in some way
inspirational.[4] Indeed, Holmess famous aphorism
became the movements battle cry.[1]
"The Path of the Law"[edit]
Another of Holmess influential works was the
essay "The Path of the Law". Written originally as a
speech in 1897,[4] the main message of "The Path
of the Law" is that there is no basis in reason for
deciding which of the two contradictory legal
doctrines is correct.[1] To elaborate this message,
Holmes first turned to the distinction between law
and morals: The prophecies of what the courts will
do in fact, and nothing more pretentious, are what I
mean by the law.[5] If law is prophecy, Holmes

continues, we must reject the view of text writers

who tell you that law is something different from
what is decided by the courts of Massachusetts or
England, that it is a system of reason that is a
deduction from principles of ethics or admitted
axioms or what not, which may or may not coincide
with the decisions.[5]
Holmes next introduces his most important and
influential argument, the bad-man theory of law:
if we take the view of our friend the bad man we
shall find that he does not care two straws about
either the morality or the logic of the law. For the
bad man, legal duty signifies only a prophecy
that if he does certain things he will be subjected
to disagreeable consequences by way of
imprisonment or compulsory payment.[5] The bad
man concerns himself only with material
consequences. The sharp distinction Holmes draws
between law and morals had a powerful impact on
the thought of most Legal Realists, although it too
was construed in a variety of ways. Some thought
it justified separating the scientific study of legal
institutions from the distracting discourse of ethics.
[4]
Others treated Holmess argument as a useful
corrective to the confused understanding of law
and morality engendered by the traditional
American conception of natural rights, but
denounced as superficial and misleading the
positivistic conception of scientific method that
their comrades were extracting from it.[4][7]

The utilitarian or instrumental flavor of the "The

Path of the Law" also found favor with the realists.
The purpose of the law, Holmes insisted, was the
deterrence of undesirable social consequences: I
think that the judges themselves have failed
adequately to recognize their duty of weighing
considerations of social advantage.[4] Before the
Civil War, this conception of adjudication as a form
of social engineering had been widely shared by
American judges, but in the late nineteenth
century it had fallen out of favor.[1] One of the
aspirations of both Holmes and the realists was to
revive it.
Several of the specific doctrinal arguments made in
"The Path of the Law" were recapitulated or
elaborated in the more technical essays of the
realists. For example, Holmes drew upon his bad
man theory in developing what for the time was a
radical understanding of the nature of contractual
obligations. The duty to keep a contract at
common law means a prediction that you must pay
damages if you do not keep itand nothing else.
[4]
Only the confusion between legal and moral
ideas had led others to the conclusion that it was
immoral to breach a contract. An approach that
focuses solely on the consequences of breach,
Holmes conceded, stinks in the nostrils of those
who think it advantageous to get as much ethics
into the law as they can, but it is more accurate
and useful, he argued, than an approach that

concentrates on the moral obligations associated

with promises. On a more detailed level, Holmes
amplified his earlier criticisms of subjective
theories of contractual duties (which grounded
obligation in a meeting of the minds of putatively
contracting parties), offering instead an objective
theory (which acknowledged that judges do and
should give meaning to the language employed by
the parties because of some belief as to the
practice of the community or of a class, or because
of some opinion as to policy). This
characterization provided an important staging
ground for the realists assault on the classical
ideal of the neutral and self-regulating market
economy.[4]
Holmess remarks on torts in "The Path of the Law"
were even more innovative. Distancing himself
from the position he had adopted earlier in The
Common Law, Holmes contended that it is
impossible to answer definitely the question
whether a defendant who has injured someone but
whose conduct was not blameworthy should be
forced to pay damages to the victim. The choice
between the negligence principle (defendants
should be liable only if they were at fault) and the
strict liability principle (defendants should be liable
even if blameless), he now insisted, is a
concealed, half-conscious battle on the question of
legislative policy, and if any one thinks that it can
be settled deductively, or once for all, I only can

say that I think he is theoretically wrong, and that I

am certain that his conclusion will not be accepted
in practice.[4] Among the policy questions upon
which the choice turned was the degree to which
the losses associated with the myriad injuries
caused by modern industries (for example,
railroads, factories) should be borne by the public
at large (through increased prices for the goods
and services provided by those industries).[4] Loss
spreading arguments of this sort would figure
prominently in the realists writings on torts.[4]
American Legal Realisms Legacy[edit]
Critique of the market economy[edit]
In the late 19th century, orthodox Classical legal
thought embraced the idea that a self-executing,
decentralized, competitive market economy would
permit legal institutions to function as neutral,
apolitical, and impartial arbiters over the just
distribution of wealth.[1] Given the unequal
distribution of talent, energy, and luck,classical
legal thought posited that a self-executing,
decentralized, competitive market economy would
inevitably result in organized inequality. Thus, legal
institutions could function as neutral, apolitical,
and impartial arbiters because, in a market
economy, legal institutions only had to warrant an
equal opportunity for participants to compete. As if
by an invisible hand, classical legal thought
presumed that unequal results were just because

they reflected the unequal abilities that individuals

brought to the competitive race, and any attempt
to interfere with unequal results would ultimately
subvert the legitimacy of legal institutions.[1]
The will theory of contract law represented the
legal paradigm of classical legal thoughts
commitment to neutrality in what it believed to be
a self-executing, decentralized, competitive market
economy.[1] Under the will theory, the basis for
enforcing a contract was a meeting of minds or a
convergence of wills between contracting parties.
For example, if two parties contracted for the sale
of one thousand bushels of Grade A wheat at below
the prevailing market price, courts would not
attempt to judge the fairness of the contact.
Instead, courts presumed that, absent extreme
hardship or unusual circumstances, each party had
voluntarily agreed to perform their respective
duties under the terms of the contract, and that
the state merely served as the neutral enforcer of
the parties pre-existing voluntary agreement.
Generally, courts would not inquire into the
substantive fairness of a contract because they
presumed that a self-executing, decentralized,
competitive market economy assured the just
distribution of wealth through voluntary agreement
among individuals.[1]
In the early 20th century, as the spectacular
increase in corporate concentration amplified the
unequal distribution of wealth, American Legal

Realists launched their attack on the legitimacy of

a self-executing, decentralized, competitive market
economy.[1]
Robert Lee Hales Coercion and Distribution
in a Supposedly Non-Coercive State[edit]
Following in the anti-naturalist economic legacy
of Veblen, Ely, and Commons, Robert Lee Hale, a
lawyer and economist from Columbia University,
argued in "Coercion and Distribution in a
Supposedly Non-Coercive State" that the market
economy was in fact an organized form of coercion
of people without property by the property owners.
[8]
Hales basic goal was to attack the prevailing
vision of the market economy as a system of free
and voluntary exchange, and thereby to undermine
the claim that the law should simply reflect the
results arrived at in a neutral market.[1][8]
Hale sought to break the bright-line distinction
between voluntariness and coercion by portraying
conduct between market participants as a
reflection of power relations, rather than as some
abstract voluntary meeting of minds or
convergence of wills. Hale illustrated this point with
two central images: the laborer who does not
voluntarily choose to work, but rather is coerced
into working for fear of starvation; and the factory
owner whose coercive power is weakened by the
fact that both his customers and his laborers have
the power to make matters more or less
unpleasant for himthe customers through their

law-given power to withhold access to their cash,

the laborers through their actual power (neither
created nor destroyed by the law) to withhold their
services.[1][8] Hale recognized, however, that
popular thought generally did not recognize
conduct between market participants as
coercive", so he sought to show that conduct
between market participants was not purely
voluntary.
Hale characterized the difference between
conduct, private or governmental, that popular
recognition labels as coercive and conduct that
popular recognition does not label with that term
as a difference of degree rather than of kind. For
example, Hale asserted that the decision to
withhold not to buy in the market or not to
employ labor was simply another form of coercion
by the assertion of economic power.[8] [W]ere it
once recognized that nearly all incomes are the
result of private coercion, some with the help of
the state, some without it, it would then be plain
that to admit the coercive nature of the process
would not be to condemn it.[8] Since all market
transactions reflected the prior distribution of
property and entitlements, all conduct between
market participants inherently involved varying
degrees of coercion. Hale realized that the
undoubtedly coercive character of the pressure
exerted by the property-owner is disguised by the
conception of the market economy as a system of

free and voluntary exchange.[1] Therefore, Hale

asserted that the market economy is merely an
organized form of social coercion that could be
judged only by its social consequences.[8]
Hales most original insight was the view that the
market economy was the actual creator of property
and entitlements, rather than being a neutral
institution that reflected pre-existing property
rights.[1] Once it was understood that there could
be no such thing as a completely voluntary market,
there could also be no completely neutral market
because, one way or the other, there needed to be
rules on how to regulate (or not regulate) coercion.
For example, the legal rules governing the market
determined whether news was property, or
whether employers have the power to fire workers,
or whether economic coercion was legitimate (e.g.,
competition) or illegitimate (e.g., theft, duress). Far
from being neutral and natural, every market
regime created property and entitlements whose
value could not be independent of prior legal
norms for regulating coercion.[1] In other words,
Hale sought to demonstrate that there were no
pre-existing property rights prior to the legal rules
that defined them.
Hales underlying premise was that property is a
source of economic wealth only if some people are
prevented from using it in ways that are permitted
to other people.[9] If courts, for instance, should
prevent a man from breathing any air that had

been breathed by another (within, say a reasonable

statute of limitations), those individuals who
breathed most vigorously and were quickest and
wisest in selecting desirable locations in which to
breathe (or made the most advantageous contracts
with such individuals) would, by virtue of their
property right in certain volumes of air, come to
exercise and enjoy a peculiar economic advantage,
which might, through various modes of economic
exchange, be turned into other forms of economic
advantage such as the ownership of newspapers or
fine clothing. Thus, courts would be creating
economic wealth and property if they established
legal rules that defined the exploitation of air.
[10]
Furthermore, since any prospective change in
the legal rules that reduces the future value of
some recognized property right necessarily
reduces the present value of that property right as
well, Hale posited that the legal idea of property
reflected an abstract circularity.
Perhaps the most notorious example of circular
reasoning, and the most important specific
influence on Hales views about property, is that
involved in judicial determination of the fair rates
in which public utilities were entitled to charge
under the United States Constitution.[1] In the "Rate
Making Cases",[8] courts purported to ascertain the
present market value of the utilitys property, and
then to fix a price to the consumer which assured
the utility a fair rate of return upon that value.

[10]

However, the courts decisions could not have

been in fact based upon the present market value
of the utilitys property because present market
value is merely the present value of the expected
rates. Thus, the present market value of a utilitys
property was merely a function of the courts
decision rather than the recognition or discovery of
some preexisting value or property right. Since it
was the guarantee of a future income stream that
determined the present market value of a utilitys
property, the courts, in overseeing the
reasonableness of rates, were actually creating
property out of the materials of social fact,
commercial custom, and popular moral faiths or
prejudices.[7]
The "Rate Making Cases" enabled Hale to see that
there was no present market value independent of
the expected rate of return, and no economic value
independent of legal protection. The fact that
courts did not protect a purported property right
would make that purported property right
valueless, and the fact that it was valueless would
then be regarded as a reason for not protecting it.
Further explanation[edit]
Legal realism operates on a premise that is
adhered to, often unwittingly, by most laymen and
many who have legal training: that "the law",
whatever that may be, is concerned with and is
intrinsically tied to the real-world outcomes of

particular cases. Accepting this premise moves

jurisprudence, or the study of law in the abstract,
away from hypothetical predictions and closer to
empirical reflections of fact.
Proponents of legal realism say it is not concerned
with what the law should, or "ought to" be, but that
legal realism simply seeks to describe what the
law is. Proponents of legal formalism disagree,
saying that "law" is what is commanded by a
lawgiver, that judges are not lawgivers, and that
what judges do, while it might belong to the field of
law, is not "law" but legal practice.
Expanding influence[edit]
Many developments in legal thought have drawn
heavily from legal realism, including the writings
of Herman Oliphant (1884-1939) and the
development of the legal process school in the
1950s and 1960s, a theory that attempted to chart
a middle way between the extremes of realism
and formalism. Realism remains influential, and a
wide spectrum of jurisprudential schools today
have either taken its premises to greater extremes,
such as critical legal studies (scholars such
as Duncan Kennedy and Roberto Unger), feminist
legal theory, and critical race theory, particularly
at Harvard Law School, Columbia Law
School and Yale Law School, or more moderately,
such as law and economics (scholars such
as Richard Posner at the University of

Chicago and Richard Epstein at University of

Chicago and New York University School of Law)
and law and society (scholars such as Marc
Galanter and Stewart Macaulay at the University of
Wisconsin Law School).
Legal realism also influenced the recognition
of political science and studies of judicial behavior
therein as a specialized discipline within the social
sciences.
Continuing relevance[edit]
Legal realism emerged as an anti-formalist and
empirically oriented response to and rejection of
the legal formalism of Dean Christopher Columbus
Langdell and the American Law Institute (ALI), as
well as of the "mechanical jurisprudence" or
"science of law" with which both became
associated.
Critical legal studies
From Wikipedia, the free encyclopedia
Critical legal studies was a movement in legal
theory and a network of leftist legal scholars that
emerged in the 1970s in the United States.
Considered "the first movement in legal theory and
legal scholarship in the United States to have
espoused a committed Left political stance and
perspective,"[1] critical legal studies was committed
to shaping society based on a vision of human
personality devoid of the hidden interests and class

domination that CLS scholars argued are at the

root of liberal legal institutions in the West.
[2]
According to CLS scholars Duncan Kennedy and
Karl Klare, critical legal studies was "concerned
with the relationship of legal scholarship and
practice to the struggle to create a more humane,
egalitarian, and democratic society."[3] During its
period of peak influence, the critical legal studies
movement caused considerable controversy within
the legal academy. The more constructive
members, such as Roberto Mangabeira Unger,
sought to rebuild these institutions as an
expression of human coexistence and not just a
provisional truce in a brutal struggle[4] and were
seen as the most powerful voices and the only way
forward for the movement.[5][6][7] Unger is one of the
last standing members of the movement to
continue to try to develop it in new directions
namely, to make legal analysis the basis of
developing institutional alternatives.[8][9][10]
The abbreviations "CLS" and "Crit" are sometimes
used to refer to the movement and its adherents.[2]
Contents
[hide]

1 History
2 The relation of critical legal studies to
American legal realism

3 Critical legal studies as a literature and a

network
4 The intellectual and political context of
critical legal studies

5 Themes

6 Continued influence

7 See also

8 References

9 Further reading

10 External links
History[edit]
Although the intellectual origins of the Critical
Legal Studies (CLS) can be generally traced
to American Legal Realism, as a distinct scholarly
movement CLS fully emerged only in the late
1970s. Many first-wave American CLS scholars
entered legal education, having been profoundly
influenced by the experiences of the civil rights
movement, women's rights movement, and the
anti-war movement of the 1960s and 1970s. What
started off as a critical stance towards American
domestic politics eventually translated into a
critical stance towards the dominant legal ideology
of modern Western society. Drawing on both
domestic theory and the work of European social
theorists, the "crits" sought to demystify what they

saw as the numerous myths at the heart of

mainstream legal thought and practice.
The British critical legal studies movement started
roughly at a similar time as its American
counterpart. However, it centered around a
number of conferences held annually, particularly
the Critical Legal Conference and the National
Critical Lawyers Group. There remain a number of
fault lines in the community, between theory and
practice, between those who look to Marxism and
those who worked on Deconstruction, between
those who look to explicitly political engagements
and those who work in aesthetics and ethics.
The relation of critical legal studies to American
legal realism[edit]
Critical legal studies had its intellectual origins in
the American legal realist movement in the 1930s.
Prior to the 1930s, American jurisprudence had
been dominated by a formalist account of how
courts decide cases, an account which held that
judges decide cases on the basis of distinctly legal
rules and reasons that justify a unique result. The
legal realists persuasively[who?] argued that statutory
and case law is indeterminate, and that appellate
courts decide cases not based upon law, but upon
what they deem fair in light of the facts of a case.
Considered "the most important jurisprudential
movement of the 20th century,"[11] American legal
realism sent a shock through American legal

scholarship by undermining the formalist tenets

that were long considered a bedrock of
jurisprudence.
The influence of legal realism unsettled American
jurisprudence for decades. Alan Hunt writes that
the period "between the realism of the 1930s and
the emergence of critical legal studies in the late
1970s has been a series of unsuccessful attempts
to recover from the shock of realism some basis for
a legal theory which articulates an image of the
objectivity of the legal process, even though the
explanation offered by post-realism had to be more
complex than that provided by a doctrine of rulefollowing."[12]
Critical legal studies as a literature and a
network[edit]
The critical legal studies movement emerged in the
mid-1970s as a network of leftist law professors in
the United States who developed the realist
indeterminacy thesis in the service of leftist ideals.
According to Roberto Unger, the movement
"continued as an organizing force only until the late
1980s. Its life as a movement lasted for barely
more than a decade."[13]
Duncan Kennedy, a Harvard law professor who
along with Unger was one of the key figures in the
movement, has said that, in the early days of
critical legal studies, "just about everyone in the
network was a white male with some interest in

60s style radical politics or radical sentiment of one

kind or another. Some came from Marxist
backgrounds--some came from democratic
reform."[14] Kennedy has emphasized the twofold
nature of critical legal studies, as both a network of
leftist scholar/activists and a scholarly literature:
"[C]ritical legal studies has two aspects. Its a
scholarly literature and it has also been a network
of people who were thinking of themselves as
activists in law school politics. Initially, the
scholarly literature was produced by the same
people who were doing law school activism. Critical
legal studies is not a theory. Its basically this
literature produced by this network of people. I
think you can identify some themes of the
literature, themes that have changed over time." [15]
Scholars affiliated with critical legal studies often
identified with the movement in several ways: by
including in their articles an opening footnote
mentioning the Conference on Critical Legal
Studies and providing the organizations contact
information, by attending conferences of the CCLS,
and by citing the work of fellow critical legal
studies scholars. A 1984 bibliography of CLS works,
compiled by Duncan Kennedy and Karl Klare and
published in the Yale Law Journal, included dozens
of authors and hundreds of works.[3]
Prominent participants in the CLS movement
include Drucilla Cornell, Alan Hunt, Catharine
MacKinnon, Duncan Kennedy, David Kennedy,

Martti Koskenniemi, Gary Peller, Peter Fitzpatrick,

Morton Horwitz, Jack Balkin, Costas Douzinas, Peter
Gabel, Roberto Unger, Renata Salecl, Mark Tushnet,
Louis Michael Seidman, John Strawson and Martha
Fineman.
The intellectual and political context of critical legal
studies[edit]
Roberto Unger, a key member of critical legal
studies whose influence had continued to be farreaching in the decades following the movements
decline, has written that the founders of critical
legal studies "never meant it to become an
ongoing school of thought or genre of writing. They
wanted to intervene in a particular circumstance
"[13]
That circumstance was the dominant practice of
legal analysis which Unger calls the "method of
reasoned elaboration."[16] A close descendant of
nineteenth century doctrinal formalism, which
sought through legal analysis to identify the
"inbuilt legal content of a free society,"[17] the
method of reasoned elaboration treated law
materials as containing an "ideal element," an
inherent legal substance underlying the
contradictions and ambiguities in the laws text.
[18]
Under the practice of reasoned elaboration, this
inherent legal substance forms a prescriptive
system that judges gradually uncover by reasoning
through the policies and principles of law without

questioning the "basic institutional arrangements

of the market economy, of democratic politics, and
of civil society outside the market and the state."[19]
Reasoned elaboration was a pernicious influence
for several reasons, Unger and others argued: it
de-emphasized the contingent nature of law as a
product of deals and compromise, instead treating
it as containing a coherent prescriptive system that
needed simply to be uncovered by legal
interpretation; it obscured how judges usurp
authority by denying their own role in making law;
and finally, reasoned elaboration inhibited the use
of law as a mechanism of social change.[20]
In addition to the context of legal interpretation,
critical legal studies also emerged in response to
its political context, namely a setting in which the
social-democratic settlement that was finalized
after World War II had become canonical,[21] and
active dispute over the organization of society
severely declined, effectively enshrining a reigning
consensus about social organization that Unger
describes as including a "combination of neoliberal
orthodoxy, state capitalism, and compensatory
redistribution by tax and transfer."[22] Critical legal
scholars challenged that consensus and sought to
use legal theory as a means to explore alternatives
forms of social and political organization.
Themes[edit]

Although the CLS (like most schools and

movements) has not produced a single, monolithic
body of thought, several common themes can be
generally traced in its adherents' works. These
include:

A first theme is that contrary to the common

perception, legal materials (such
as statutes and case law) do not completely
determine the outcome of legal disputes, or, to
put it differently, the law may well impose many
significant constraints on the adjudicators in the
form of substantive rules, but, in the final
analysis, this may often not be enough to bind
them to come to a particular decision in a given
particular case. Quite predictably, once made,
this claim has triggered many lively debates
among jurists and legal philosophers, some of
which continue to this day (see
further indeterminacy debate in legal theory).
Secondly, there is the idea that all "law is
politics". This means that legal decisions are a
form of political decision, but not that it is
impossible to tell judicial and legislative acts
apart. Rather, CLS have argued that while the
form may differ, both are based around the
construction and maintenance of a form of social
space. The argument takes aim at the positivist
idea that law and politics can be entirely
separated from one another. A more nuanced
view has emerged more recently. This rejects the

reductivism of 'all law is politics' and instead

asserts that the two disciplines are mutually
intertwined. There is no 'pure' law or politics, but
rather the two forms work together and
constantly shift between the two linguistic
registers.

A third strand of the traditional CLS school is

that far more often than is usually suspected the
law tends to serve the interests of the wealthy
and the powerful by protecting them against the
demands of the poor and the subaltern (women,
ethnic minorities, the working class, indigenous
peoples, the disabled, homosexuals, etc.) for
greater justice. This claim is often coupled with
the legal realist argument that what the law says
it does and what it actually tends to do are two
different things. Many laws claim to have the aim
of protecting the interests of the poor and the
subaltern. In reality, they often serve the
interests of the power elites. This, however, does
not have to be the case, claim the CLS scholars.
There is nothing intrinsic to the idea of law that
should make it into a vehicle of social injustice. It
is just that the scale of the reform that needs to
be undertaken to realize this objective is
significantly greater than the mainstream legal
discourse is ready to acknowledge.
Furthermore, CLS at times claims that legal
materials are inherently contradictory, i.e. the

structure of the positive legal order is based on a

series of binary oppositions such as, for instance,
the opposition between individualism and
altruism or formal realizability (i.e. preference for
strict rules) and equitable flexibility (i.e.
preference for broad standards).

Finally, CLS questions law's central

assumptions, one of which is the Kantian notion
of the autonomous individual. The law often
treats individual petitioners as having full agency
vis--vis their opponents. They are able to make
decisions based on reason that is detached from
political, social, or economic constraints. CLS
holds that individuals are tied to their
communities, socio-economic class, gender,
race, and other conditions of life such that they
cease to be autonomous actors in the Kantian
mode. Rather, their circumstances determine
and therefore limit the choices presented to
them. People are not "free"; they are instead
determined in large part by social and political
structures that surround them.

Increasingly, however, the traditional themes are

being superseded by broader and more radical
critical insights. Interventions in intellectual
property law, human rights, jurisprudence, criminal
law, property law, international law, etc., have
proved crucial to the development of those
discourses. Equally, CLS has introduced new

frameworks to the legal field, such

as postmodernism, queer theory, literary
approaches to law, psychoanalysis, law
and aesthetics, and post-colonialism.
Prominent participants in the CLS movement
include Drucilla Cornell, Alan Hunt, Catharine
MacKinnon, Duncan Kennedy, David
Kennedy, Martti Koskenniemi, Gary Peller, Peter
Fitzpatrick, Morton Horwitz, Jack Balkin, Costas
Douzinas, Peter Gabel, Roberto Unger, Renata
Salecl, Mark Tushnet, Louis Michael Seidman, John
Strawson and Martha Fineman.
Continued influence[edit]
CLS continues as a diverse collection of schools of
thought and social movements. The CLS
community is an extremely broad group with
clusters of critical theorists at law schools such
as Harvard Law School, Georgetown University Law
Center, Northeastern University, University at
Buffalo, Birkbeck, University of London;University
of Melbourne, University of Kent, Keele University,
the University of Glasgow, the University of East
London among others.
In the American legal academy its influence and
prominence seems to have waned in recent years.
However, offshoots of CLS, including critical race
theorycontinue to grow in popularity. Associated
schools of thought, such as contemporary feminist
theory and ecofeminism and critical race theory

now play a major role in contemporary legal

scholarship. An impressive stream of CLS-style
writings has also emerged in the last two decades
in the areas of international and comparative law.
In addition, CLS has had a practical effect on legal
education, as it was the inspiration and focus
of Georgetown University Law Center's alternative
first year curriculum, (Termed "Curriculum B",
known as "Section 3" within the school). In the UK
both Kent and Birkbeck have sought to draw critical
legal insights into the legal curriculum, including a
critical legal theory based LLM at Birkbeck's School
of Law. Various research centers and institutions
offer CLS-based taught and research courses in a
variety of legal fields including human rights,
jurisprudence, constitutional theory and criminal
justice.
In New Zealand, the University of Otago Legal
Issues Centre was established at the University's
law faculty in 2007.
Law & Critique is one of the few UK journals that
specifically identifies itself with critical legal theory.
In America, The Crit is the only journal that
continues to explicitly position itself as a platform
for critical legal studies. However, other journals
such as Law, Culture and the Humanities,
Unbound: The Harvard Journal of the Legal Left,
the Harvard Civil Rights-Civil Liberties Law
Review, The National Lawyers Guild Review, Social
and Legal Studies and The Australian Feminist Law

Journal all published avowedly critical legal

research.

LEGAL THEORY
PALLAVI BHOGLE
LEGAL THEORY
INTRODUCTION
Questions [10]
1. Explain the nature and value of Jurisprudence. 2.
Jurisprudence is the precipitation of values and
articulation of the needs of ages
and eras analyze and examine. 3. It is said that
the word Jurisprudence has meant many different
things at
different times. State your views on this matter.
Introduction: The word Jurisprudence has been
derived from the Latin word jurisprudentia, which
in its widest sense means knowledge of law. The
Latin word juris means law, and prudentia
means skill or knowledge. Thus, jurisprudence
signifies knowledge of law and its application. In
this sense it covers the whole body of legal
principles in the world. The history of this concept

of law reveals that jurisprudence has assumed

different meanings at different times. It is therefore
difficult to attempt a singular definition of this
term. It has a long history of evolution beginning
from the classical Greek period to the 21
st
century modern jurisprudence
with numerous changes in its nature in various
stages of its evolution.
Meaning: Jurisprudence in its limited sense means
elucidation of the general principles upon which
actual rules of law are based. It is concerned with
rules of external conduct which persons are
constrained to obey. Therefore, etymologically
jurisprudence is that science which imparts to us
the knowledge about law. Law of course is a term
of various connotations, for example there are
various branches of law prevalent in a modern
State such as contracts, torts, crimes, property etc
and in jurisprudence we have to study the basic
principles of each of these branches, were not
concerned with detailed rules of these laws.
In yet another sense, jurisprudence may be
regarded as the philosophy of law dealing with the
nature and function of law. This approach to
jurisprudence is receiving primacy in modern times
keeping in view the rapid social changes taking
place all around the world in recent years. This

approach has been termed as

jurisprudence, the thrust being
relationship between law and justice.

functional
on inter-

Definitions: The term jurisprudence has meant

different things at different times. The variation is
due to the different methods of inquiry and
approach to the study of the subject. Thus though
it is impossible to give an exact definition of
jurisprudence, several scientists have attempted to
explain what they believe is jurisprudence.
Professor Gray has opined that, jurisprudence is
the science of law, the statement and systematic
arrangement of the rules followed by the courts
and the principles involved in those rules.
PALLAVI BHOGLE
LEGAL THEORY
Salmond defines jurisprudence as the Science of
the first principles of the civil law.
Scope of Jurisprudence: It is generally believed that
the
scope
of
jurisprudence
cannot
be
circumscribed. Broadly speaking, jurisprudence
includes all concepts of human order and human
conduct in State and society.
Jurisprudence
involves
certain
types
of
investigation into law; an investigation of an
abstract, general and theoretical nature which

seeks to lay bare the essential principles of law and

legal
systems.
Salmond
observed,
in
jurisprudence we are not concerned to derive rules
from authority and apply them to the problem, we
are concerned rather to reflect on the nature of
legal rules, on the underlying meaning of legal
concepts and on the essential feature of the legal
system. Thus, whereas in law we look for the rule
relevant to a given situation, in jurisprudence we
ask, what is it for a rule to be a legal rule, and what
distinguishes law from morality, etiquette and
other related phenomenon. Therefore, it can be
concluded that jurisprudence comprises of
philosophy of law and its object is not to discover
new rules but to reflect on the rules already known.
Purpose of Jurisprudence
It is essential for a lawyer, in his practical work, to
have knowledge of jurisprudence. Such a study
Serves to train the mind into legal ways of
thought Affords a key to the solution of many
provisions of civil law, which would
otherwise appear to be singular and
unaccountable. Without such knowledge, no
lawyer, however eminent, can really measure the
meaning of the assumptions upon which his
subject rests.
Uses and Value of Jurisprudence

There is a general confusion about practical utility

of jurisprudence as a subject. It is often alleged
that jurisprudence being an abstract and
theoretical subject, is devoid of any practical utility.
However this view is narrow-minded and incorrect.
Just as a mathematician investigates number
theory not with the aim of seeing his findings put
to practical use but by reason of the fascination
which it holds for him, likewise the writer on
jurisprudence may be impelled to his subject by its
intrinsic interest.
Jurisprudence is not without practical value as well.
It has been rightly said that Jurisprudence is the
eye of the law. It seeks to rationalize the concepts
of law, which enable us to solve the different
problems involving intricacies of law. In other
words, it serves to render the complexities of law
more manageable and rationale and in this way it
can help improve practice in the field of law.
That apart, jurisprudence
also has
great
educational value. The logical analysis of legal
concepts widens the outlook of lawyers and
sharpens their logical technique. It helps in
rationalizing the thinking of students and prepares
them for an upright civil life. It also
PALLAVI BHOGLE
LEGAL THEORY

helps judges and lawyers in ascertaining the true

meaning of laws passed by the Legislature by
providing the rules of interpretation. It furnishes
them with an opportunity to pinpoint the
shortcomings and defects in the laws framed by
the legislature and improvise them through their
judicial interpretation.
Law also has to take note of the needs of society
and of the advances in the related and relevant
disciplines
such
as
sociology,
economics,
philosophy etc. It is not the form of law but the
social function of law which has relevance in
modern jurisprudence.
Conclusion: Jurisprudence deals with law from the
philosophical point of view, and is therefore
sometimes described as an abstract subject. This is
however a misconception. Jurisprudence does have
multifarious practical applications inasmuch as it
may be said to be the foundation of all branches of
law.
PALLAVI BHOGLE
LEGAL THEORY
THE NATURE OF LAW
What is Natural Law? State the utility of Natural
Law in this century. [16]

Introduction: The natural law philosophy has

occupied an important place in the realm of
politics. The natural law theory reflects a perpetual
quest for absolute justice. The roots of this theory
are found in the philosophies of ancient Greek
philosophers.
Socrates,
Plato
and
Aristotle
accepted that the postulates of reason have a
universal force and men are endowed with reason
irrespective of race or nationality.
In ancient societies, natural law was believed to
have divine origin. During the medieval period it
had religious and super-natural basis, but in
modern times it has a strong political and legal
mooring. It has been rightly pointed out by Lord
Lloyd that natural law has been devised as a mere
law of self preservation or a law restraining people
to a certain behaviour. It has found expression in
modern legal systems in the form of socioeconomic justice. The entire human rights
philosophy is an outcome of the growing
importance of the principles of natural justice. The
natural law theory acts as a catalyst to boost social
transformation thus saving the society from
stagnation.
Meaning: There is no unanimity about the
definition and exact meaning of natural law and
the term natural law theory has been interpreted
differently in different times depending on the
needs of the developing legal thought. But the

greatest attribute of the natural law theory is its

adaptability to meet new challenges of the
transient society.
The exponents of natural law philosophy conceive
that it is a law, which is inherent in the nature of
man and is independent of conventions, legislation
or any other institutional device.
From the jurisprudential point of view, natural law
means those rules and principles, which are
supposed to have originated from some supreme
source other than any political or worldly authority.
Some thinkers believe that these rules have a
divine origin; some find their source in nature while
others hold that they are the product of reason.
Event the modern sociological jurists and realists
have sought recourse to natural law to support
their sociological ideology and the concept of law
as a means to reconcile the conflicting interests of
individuals in the society.
Main Characteristics of Natural Law
The phrase natural law has a flexible meaning
and has been interpreted to mean different things
in the course of its evolutionary history. However, it
has generally been considered as an ideal source
of law with its invariant contents. The chief
characteristic features of natural law are

1. It is a priori method as opposed to an empirical

method. A priori method accepts things or
conclusions in relation to a subject as they are
without any enquiry or
PALLAVI BHOGLE
LEGAL THEORY
observation. Whereas an empirical or a posteriori
approach tries to find out the causes and reasons
in relation to subject matter.
2. It symbolizes physical law of nature based on
moral ideals, which has universal
applicability at all places and times.
3. It has often been used either to defend a change
or to maintain status quo according to the needs
and requirements of the time. For example, Locke
used the natural law theory as an instrument of
change, but Hobbes used it to maintain status quo
in the society.
4. The concept of Rule of Law in England and
India and due process in USA are
essentially based on the natural law philosophy.
Natural Law as distinguished from other Laws
The natural law, by its very nature and contents
differs from other laws.

 Natural law is eternal and unalterable, but the

other forms of law are subject to
periodic changes and alterations.
Natural law is not made by man, it is only
discovered by him. Whereas the other
laws are created, evolved, modified and altered by
man.
Natural law is not enforced by any external
agency, but every other form of law is enforced by
the State or sovereign and there is always a
coercive force behind it.
Natural law is not promulgated by legislation. It is
an outcome of preaching of philosophers, prophets,
saints and thus in a sense it is a higher form of law
to which all forms of man-made laws should pay
due obedience.
Unlike other forms of law, natural law has no
formal written Code, nor a precise
penalty for its violation or specific reward for
abiding by its rules.
Natural law has an eternal lasting value, which is
immutable.
The central idea behind natural law is that it
embodies moral principles which depend on the

nature of the Universe and which can be

discovered by natural reason. But human law can
only be said to be law in so far as it conforms to
those principles.
Critical Appraisal of Natural Law Theory
PALLAVI BHOGLE
LEGAL THEORY
A brief survey of the Natural law theory reveals
that the concept has been used to support different
ideologies from time to time. It has been used to
support absolutism, individualism and has even
been used by revolutionists to overthrow the
government. The natural law principles of justice,
morality and conscience have been embodied in
the various legal systems. Natural law being
regulated by the law of nature is inevitable and
obligatory whereas man-made positive laws are
arbitrary and contingent. Natural law is not
variable since it emanates from human reasoning,
which is known for its uniformity and general
acceptance.
The part played by the natural law in the
development of modern law can hardly be
exaggerated. Legal history testifies that it is
natural law, which directly or indirectly provided a
model for the first man-made law. Oppenheim
recognized the contribution of natural law and

observed, but for the system of the law of nature

and
doctrines
of
its
prophets,
modern
constitutional law and the law of nations would not
have been what they are today.
Criticism of the Natural Law Theory
Despite the merits of the Natural law theory it has
been criticized for its weaknesses on the following
grounds
1. The moral proposition i.e. ought to be, may not
always necessarily conform to the needs of the
society. For instance, it is natural for men to beget
children. However due to growing population some
countries
may
impose
certain
restrictions.
Therefore giving birth to children may be a natural
phenomenon but it may not always be considered
as obligatory moral duty of men to conform to this
conduct.
2. The concept of morality is a varying contingent
changing from place to place; therefore it would be
futile to think of universal applicability of law. For
example, one society may adhere to monogamy,
while another may permit plurality of marriages.
3. The rules of morality embodied in Natural law
are not amenable to changes but
the legal rules do need to change with the
changing needs of society.

4. Legal disputes may be settled by law courts, but

the disputes relating to the morality and law of
nature cannot be subjected to judicial scrutiny. The
verdicts passed in such cases can always be
questioned.
5. Though apparently law and morality may appear
to be in conflict with each other, the fact remains
that in order to decide whether a particular law is
just or unjust it has to be tested on the basis of
the principles of morality.
PALLAVI BHOGLE
LEGAL THEORY
Conclusion: According to the Natural law theory,
there are objective principles, which depend on the
essential nature of the universe, and which can be
discovered by natural reason. Natural law is very
different from positive man made law and though
there has been quite a bit of criticism of this
doctrine, yet it has been revived to a large extent
in the 20
th
century.
In the words of Dr Friedmann, The most important
and lasting theories of natural law have
undoubtedly been inspired by two ideals of a

universal order governing all men and of the

inalienable right of the individuals.
Law is a command of the Sovereign. Explain this
statement of John Austin with criticisms. [16]
Introduction: The numerous criticisms found in the
Natural Law theory, acted as a stimulus to find a
new and more acceptable theory for law. The
Positivist theory of law sought to satisfactorily
explain the meaning of law.
Positivism simply means that the law is something
that is posited, that is to say laws are 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 and
morality, 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 is just by some other
standard
Secondly, that law is nothing more than a set of
rules to provide order and
governance of society

John Austin and Hans Kelson are regarded as legal

positivists and the theories put forth by them are
regarded as the Positivist theory of Law.
Austin sought to distinguish law by its formal
criteria and not by its contents. He put forth his
Austinian Theory of law, also known as the
Imperitive theory of law.
John Austins theory of law is strongly influenced by
Jeremy Bentham. According to Austin, law is a
phenomenon of large societies with a sovereign: a
determinate person who has supreme and absolute
de facto power he is obeyed by all but does not
similarly obey anyone else. The laws in that society
are a subset of the sovereign's commands: general
orders that apply to classes of actions and people
and that are backed up by threat of force or
sanction.
The three basic points of Austin's theory of law are,
that:
the law is command issued by the uncommanded
commander--the sovereign;
PALLAVI BHOGLE
LEGAL THEORY
such commands are backed by sanctions; and a
sovereign is one who is habitually obeyed.

The sovereign is the most politically powerful

person, who is not under the command of any
other person. For example an order passed by a
policemen or a teacher will not be considered law
because there is someone more powerful than both
of them.
A point to be noted as well is that only an order
meant to be obeyed by all will be considered law. If
the sovereign was to order his servant to perform a
certain task or order his cook to prepare a certain
dish, these orders would not be considered law as
they were only meant for a single individual and
not the general populace. However an order such
as stopping at a red light is meant for all and can
thus be considered as law.
The violation of any of these orders will result in a
prescribed punishment. As opposed to Natural
Theory, Austin proclaimed definite punishments or
sanctions for the violation of a law and not just
moral punishments. His theory stated that a person
shall be punished for breaking the law.
Criticism of Austinian Theory
Criticism by Historical School
Sir Henry Maine, the main exponent of the
historical school, has criticised Austins imperitive
theory on two grounds

 Law is not invariably linked with the sovereign. In

early communities rules which regulated life were
derived from immemorial usages and these rules
were administered by domestic tribunals in families
or village communities. Therefore the proposition
that a sovereign is an essential pre-requisite of law
carries no weight.
There are rules of customary law, international
law and even constitutional law which are
habiltually obeyed and yet do not fall within the
Austinian definition of law.
However, Salmond in his response to Maines
criticism, argued that Austins theory of law as it
exists applies to modern mature states. It does not
concern itself with the early societies. The rules
referred to by Maine cannot be called law proper,
they could at most be called the rules of positive
morality and not of civil law. Salmond calles these
rules as historical sources from which law is
developed, they are not law themselves.
Moral Criticism
Though Salmond rejected the historical criticism,
he appreciated the inadequacy of the imperitive
theory of civil law. He observed It is one sided and
inadequate the product of an incomplete analysis
of historical conceptions. Salmonds main criticism
against

PALLAVI BHOGLE
LEGAL THEORY
the imperitive theory is that it disregards the moral
and ethical elements in law. The theory ignores the
intimate relation between law and justice. Any
definition of law without reference to justice is
evidently inadequate.
In all fairness to the Imperitive theory it must be
remembered that, as pointed out by Austin, his
theory of civil law is only a formal and not a
substantive treatment of the law. The question of
morality and public opinion are concerened with
the law only in the substantive aspect.
Other Criticsim
In Austins theory the sovereign has absolute and
limitless power. There is no check on the laws a
sovereign can pass. Should the sovereign decide to
make murdering a man a legal action then, though
this is contrary to moral law, by Austins theory it
will still be legal. Absolute power eventually leads
to rebellion. In the words of Lord Acton, a famous
English historian, Power corrupts and absolute
power corrupts absolutely. The people will
eventually revolt against an absolute ruler, as can
be seen through numerous instances in history.

 There is no stability of law. This is a major

drawback of Austins theory. Each time there is a
new sovereign a new set of laws may be
formulated that are contradictory to the previous
laws.
The sovereign is not in the purview of his own
law.
It is not only the sanctions behind law that have
to be considered, but also other
factors like general recognition, public opinion, the
will to be governed etc.
According to Cicero and Kant, law is based on
reason. Laws flow from reason and not from the
Sovereign, as reasonableness is one of the primary
ingredients of law.
Conclusion: According to the Austinian Theory of
law, civil law consists of general commands issued
by the State to its subjects and enforced through
the agency of Courts of law by the sanctions of
physical force.
However, one cannot accept Austins theory on the
grounds of the criticism levelled against it by
several jurists. But in the end, from a formal point
of view, Austins theory is on the whole forceful and
the various criticism considered do not shake it off
its foundation.

Grundnorm [10]
Introduction: A connected theory to that of Harts
analysis of law, is the theory of the Austrian jurist,
Hans Kelsen, the great jurist, who was responsible
for the framing of the Austrian Constitution. Kelsen
advocated the pure theory of law. He called it
pure,
PALLAVI BHOGLE