File Name: jurisprudence and legal theory commentary and materials file.zip
We follow the procedure below: 1. Although considerable obstacles hinder the study of police suicide, mounting evidence suggests that self-inflicted deaths within the law enforcement profession are continuing a dramatic upward trend that began in the s.
Jurisprudence , or legal theory , is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning , legal systems , legal institutions , and the role of law in society. Modern jurisprudence began in the 18th century and was focused on the first principles of natural law , civil law , and the law of nations.
Contemporary philosophy of law , which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists.
This article addresses three distinct branches of thought in general jurisprudence. Ancient 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 laws gain whatever force they have. It espouses the use of a neutral point of view and descriptive language when referring to aspects of legal systems.
Normative jurisprudence is concerned with "evaluative" theories of law. It deals with what the goal or purpose of law is, or what moral or political theories provide a foundation for the law. It not only addresses the question "What is law?
The English word is derived from the Latin, iurisprudentia. It refers to the exercise of good judgment, common sense, and caution, especially in the conduct of practical matters. The word first appeared in written English  in , at a time when the word prudence meant knowledge of, or skill in, a matter.
It may have entered English via the French jurisprudence , which appeared earlier. In Ancient China, the Daoists , Confucians , and Legalists all had competing theories of jurisprudence. Jurisprudence in Ancient Rome had its origins with the periti —experts in the jus mos maiorum traditional law , a body of oral laws and customs. Praetors established a working 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 would then prescribe a remedy according to the facts of the case. The sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting the law to newer social exigencies. The law was then adjusted with evolving institutiones legal concepts , while remaining in the traditional mode.
Praetors were replaced in the 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 practice of the law became more academic. From the early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians.
The scientific nature 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. In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on the basis of being analogous to the laws of physical science.
Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition. Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance. 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 on. John Finnis , one of the most important of modern natural lawyers,  has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position.
Strongly related to theories of natural law are classical theories of justice , beginning in the West with Plato 's Republic. Aristotle is often said to be the father of natural law. His association with natural law is largely due to how he was interpreted by Thomas Aquinas. Aquinas's influence was such as to affect a number of early translations of these passages,  though more recent translations render them more literally.
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.
He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. 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.
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 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. Thomas Aquinas 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 the Roman Catholic Church.
The work for which he is best known is the Summa Theologiae. 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. All other precepts of the natural law are based on this 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.
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 international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of all and that the common good of the world should take precedence before the good of any single state.
This meant that relations between states ought to pass from being justified by force to being justified by law and justice. 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, it was not necessarily universal. On the other hand, ius intra gentes , or civil law, is specific to each nation.
Fuller defended a secular and procedural form of natural law. He emphasised that the natural 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 argued, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, the law must have a morality that goes beyond the societal rules under which laws are made.
Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common. 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.
The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists, such as John Finnis, who claim to be positivists, still argue that law is moral by nature. Analytic, or "clarificatory", jurisprudence means taking a neutral point of view and using descriptive language when referring to various 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. 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 is must be treated as a strictly separate question from normative and evaluative questions of what ought to be done.
The most important questions of analytic jurisprudence are: "What are laws? Historical jurisprudence came to prominence during the debate on the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence ,  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.
Historicists believe that law originates with society. An effort to systematically inform jurisprudence from sociological insights developed from the beginning of the twentieth century, as sociology began to establish itself as a distinct social science, especially in the United States and in continental Europe.
In Germany, Austria and France, the work of the "free law" theorists e. Ernst Fuchs, Hermann Kantorowicz , Eugen Ehrlich and Francois Geny encouraged the use of sociological insights in the development of legal and juristic theory. The most internationally influential advocacy for a "sociological jurisprudence" occurred in the United States, where, throughout the first half of the twentieth century, Roscoe Pound , for many years the Dean of Harvard Law School, used this term to characterise his legal philosophy.
In the United States, many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence. In Australia, Julius Stone strongly defended and developed Pound's ideas. In the s, a significant split between the sociological jurists and the American legal realists emerged.
In the second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest.
Increasingly, its contemporary focus is on providing theoretical resources for jurists to aid their understanding of new types of regulation for example, the diverse kinds of developing transnational law and the increasingly important interrelations of law and culture, especially in multicultural Western societies. Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality.
Joseph Raz's legal positivism is an example of exclusive legal positivism. Legal positivists who argue that law's validity can be explained by incorporating moral values are labeled inclusive or soft legal positivists. The legal positivist theories of H. Hart and Jules Coleman are examples of inclusive legal positivism.
Hobbes was a social contractarian  and believed that the law had peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war that would exist otherwise.
In Leviathan , Hobbes argues that without an ordered society life would be "solitary, poor, nasty, brutish and short.
The English Civil War and the Cromwellian dictatorship had taken place; and, in reacting to that, Hobbes felt that absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society. John Austin and Jeremy Bentham were early legal positivists who sought to provide a descriptive account of law that describes the law as it is.
Austin explained the descriptive focus for legal positivism by saying, "The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. Through the sovereign's authority come laws, which for Austin and Bentham are commands backed by sanctions for non-compliance. Along with Hume, Bentham was an early and staunch supporter of the utilitarian concept, and was an avid prison reformer, advocate for democracy , and firm 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 Austin's utilitarian answer to "what is law?
The s and s in the United States and in Europe were decades of political activism in which liberal, progressive, and radical movements formed loose coalitions to challenge racism, sexism, and increasing state militarism. In the U. Opposition to the Vietnam War mobilized large numbers of people and radicalized many of them. It also sowed seeds of disillusionment. Liberal and progressive activists, lawyers and legal scholars among them, looked to the law and the courts for social change.
(eds) Jurisprudence and Legal Theory: Commentary and Materials. (London: Butterworths LexisNexis, ) [ISBN ]. Hart, H. The Concept of Law.
Philosophy of law or legal philosophy is concerned with providing a general philosophical analysis of law and legal institutions. Issues in the field range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relationship between law and morality and the justification for various legal institutions. Topics in legal philosophy tend to be more abstract than related topics in political philosophy and applied ethics. For example, whereas the question of how properly to interpret the U.
Jurisprudence , or legal theory , is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning , legal systems , legal institutions , and the role of law in society. Modern jurisprudence began in the 18th century and was focused on the first principles of natural law , civil law , and the law of nations. Contemporary philosophy of law , which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists. This article addresses three distinct branches of thought in general jurisprudence. Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers.
Sources of law are the origins of laws , the binding rules that enable any state to govern its territory. The term "source of law" may sometimes refer to the sovereign or to the seat of power from which the law derives its validity. The perceived authenticity of a source of law may rely on a choice of jurisprudence analysis. Tyrants such as Kim Jong-un may wield De facto power, [note 1] but critics would say he does not exercise power from a de jure or legitimate source. After WWII it was not a valid defence at Nuremberg to say "I was only obeying orders", and the victors hanged Nazis for breaching " universal and eternal standards of right and wrong".
Приоткрыв дрожащие губы, она попыталась что-то сказать, но слов не последовало.
В центре лба зияло пулевое отверстие, из которого сочилась кровь, заливая лицо. - О Боже! - воскликнул он в ужасе. - Esta muerta, - прокаркал за его спиной голос, который трудно было назвать человеческим. - Она мертва. Беккер обернулся как во сне.
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