It has a descriptive focus (not normative)
It’s concerned with the evaluation and criticism of law in terms of the ideals or goals postulated for it. This involves the identification and articulation of the values that the legal order seeks to realize.
Distinction between law and morality:
Law refers to the specialized form of social control familiar in modern, secular, politically organized societies.
Morality can refer to;
- The community’s behaviour patterns
- It’s religious approved behaviour
- The accepted moral ideals
Legal and moral norms vary from place to place and time to time.
Natural law: It seeks unchanging norms that are universally valid.
Aristotle: He maintains that the nature of any creature is what it will be in is fullest and most perfect development. In men, when reason and his impulse to social living. Natural law embodies those obligations that will appear if human reason and social living are fully developed.
All theories of natural law, moreover, have found it necessary to rely on what are essentially intuitions or preconceptions as to what man’s true nature is.
Thomas Aquinas: He ordered this human inclinations into degrees: Those related to reason and sociality take priority over those concerned (for example) with procreation and self-preservation.
He appealed to synderesis: A disposition in men to good and murmuring against evil.
Greak thought:
Philosophical and cosmological ideas about justice. Hard to apply in day-to-day life
Individual: seen as a transcending harmony of the universe, who emanates from the divine law (logos). This divine law is translated in the law of the polis (city state).
Sophists: they later rejected this thought, because they take the man as the measure of all things. For them, law was created by men’s reason.
Plato: He wanted to give this ideas a more permanent connotation. So, he assigned reality to the unchanging archetypal forms.
In the republic, he says that justice only prevails when it is in accordance to with the philosopher-king says (It’s no longer related to the nomos of the polis).
Law: For Plato, it was a reflection of the common human reason in its full development.
Aristotle: Man, in his nature, is normal, rational, and social, and his law may be judged by the extent to which it facilitates the development of these innate qualities
Stoic School: For them , Natural law was the emanation of the reason of Cosmos; the existence of an innate reason in men linked everyone with the cosmic order and subjected all to a universality valid moral law.
Greek scarcely survived as a system.
Roman thought
It developed through the efforts of expert jurisconsults. The stoic speculation
Was brought onto the level of concrete problem solvings. The roman civil law was transformed into a natural law which applied to all people. They were a set of principles common to all nations and appropriate for application to foreigners as well as Romans.
Hebrew thought.
Oral law must respect written law. The silences of the written law were to be completed by the rabbinical exegetes.
Augustine: He reintroduced stoic philosophy alongside judeo Christian thought.
1st. level: He placed God’s reason beside God’s will as the highest source of the unchangeable, eternal, divine law binding directly on man and all other creatures. Divine law was accessible to both man’s reason and his faith.
2nd. Level: Divine law is translated into natural law by reason.
3rd. level: Positive law: It was warranted by divine law as long as it respected the limits established by divine and natural law.
Natural law and Social-Contract theory.
The supremacy of the human lawgiver interwove on the dominance of the divine reason and man’s participation in it, by which he has access to the natural law.
Grotius: Stoic view. The power of natural law derives from the fact that man’s innate nature and his propensities are viewed as ideal or inherently good.
In this time arose a sceptic view in contrast to this positive one.
Hobbes: Man I his nature state is evil, motivated by its own desires of self-preservation. So, there is a need for security, and the best to do is men to give up their rights of self-help and hand it over to the sovereign, and to subject themselves to their alws. This sovereign is called the Great Leviathan.
Decline of natural law:
Montesquieu: His thesis is that people’s law and justice are determined by the particular factors and environment that operates upon them. So, in contrast to natural law, it can change from time to time.
Comte: Explained positive laws by hypothesis of cause and effect and interaction. Metaphysical concepts belonged to a past stage in man’s intellectual development.
Idealism & Justice
(also divorced from natural law concepts)
Kant: All moral concepts have their basis in a priory thought, which can be arrived by reason alone, without any help of experience. Man is a free agent. From these premises Kant deduced the nature of an ideal law, in which all members of society can enjoy the maximum freedom from subjection to the arbitrary will of others
Stammler: Pure forms of thinking about law. Community of free-willing men: The mutual respect of individuals for each other’s purposes and the political element.
Savigny: In contrast to natural law, he says law is the particular result of the unique sociocultural experiences of particular peoples. He offers a pre Darwinian concept of Jurist evolution.
Analytical positivism
19th. century: Reaction against both Kantian idealism and Iusnaturalism.
Problems now must be solved by analysing existing law and constitutions. This is positivism.:
- Separation of law as it is as it ought to be
- Stress on the analysis of legal concepts
- Reliance on logical reasoning in the search for applicable law
- Denial that moral judgements can be based on observation and rational proof.
Jeremy Bentham: Defined positive law as the commands of a sovereign addressed to political inferiors and backed by threats of evil in the event of disobedience. Command from natural law or moral precepts would only become law when commanded by a sovereign.
Historical Positivism.
Search for the realities of law through empirical observation. It has a sociodescriptive jurisprudence.
Leading figure: Savigny: He confronted the natural-law aspiration for a universal human code with the singularity of particular peoples resulting from their unique sociocultural experiences.
Economic interpretations
Marx: Law and state are repressive instruments of the class domination. In the transition to Communism , which has no need of coercion because is the government of the people, they will wither away.
Max Weber: Factors in particular civilizations are taken into account, including the existence of accepted systems of values.
Sociological Jurisprudence.
Earlier part of the 19th. century; subject to the influence of the developing social sciences, which tried to explain law in its social context.
It came up a sociological school of jurisprudence.
Jhering: Law is a social phenomenon. It is the outcome of the struggle of men to fulfill their purposes and of the force behind this.
Revival of natural law theories.
Nazism and many crimes helped this revival.
Geny: He said that sources of law will depend on the facts of each particular situation
Durkheim: Law is the immediate result of the facts
The observed facts of social solidarity arising from economic specialization of functions generated. Breach of these norms causes social disorder and a spontaneous movement toward readjustment
Some people have argued that positivism caused the nazi barbarian: “law is law.”
This new natural law assumptions are apparent in the insistence on “the principles of organization,” the “communion” of members in realizing “durable ideals,” and the placing of men’s powers of organization into the service of such ideals, as essential elements of any institution.
Pure theory of law:
Kelsen; Method free from contamination by values of any kind.
Basic norm (it would be our constitution) derives its validity from the fact that it has been accepted by some sufficient minimum number of people in the community.
Modern Schools of realism.
Common features:
Stress on: the social purposiveness of law
the endless flux in both society and law
the need to divorce the “is” and the “ought” for purposes of study and to question all orthodox assumptions made by lawyers
to substitute more realistic working categories for current lawyers’ generalities
Pure th
Comtemporaty philosophy of law (jurisprudence)
Analytical-logical, ustice-ethical, sociological approach: all these areas are now included in jurisprudence, there is no longer argument about which one predominates.
This new jurisprudence is against formalism (against technical and logical aspects of law)
Growth of the sociological school.
Modern sociological jurisprudence (Kantorowicz) is orientated mainly to practical administrative or legislative problems, included that of framing hypotheses
Mainly methods (as in social sciences): surveys, statistical analysis, comparative observation, experimentation,
Future of sociological jurisprudence:
The interest in sociological theory also results from growing awareness that some problems require to be approached on a wider basis. The study of law in society became a specific branch of social science, concerned with framing and testing general laws governing law as a social phenomenon.
COMMON LAW
It’S the body of customary law, based upon judicial decisions and embodies inreports of decided cases, which has been administered by common law courts of England since the middle ages.
