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Philosophy of Law, History of

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The Law in Philosophical Perspectives

David Hume — argued that moral distinctions are not derived from reason; passion, or sentiment, is the ultimate foundation of moral judgment.

Philosophy of Law, History of

In this age of collections that is ours, many volumes of collections are published. They contain contributions of several well-known authors, and their aim is to. Philosophy of law is a branch of philosophy that examines the nature of law and law's . Philosophers of law are also concerned with a variety of philosophical problems that arise in particular legal subjects, such as constitutional law, Contract law.

Justice is grounded in utility. Second, the Italian criminologist Cesare Beccaria — , in his Of Crimes and Punishments , subjected the existing institutions of criminal law and methods of punishment to relentless criticism. His standard of judgment was whether "the greatest happiness of the greatest number" was maximized.

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Bentham acknowledged his debt to Beccaria, and this "principle of utility" was the base of Bentham's voluminous projected "codes. In his The Limits of Jurisprudence Defined published in he defined a law as the expression of "the will of a sovereign in a state. In , the year of his death, the Reform Act was passed, largely as a result of the work of his followers.

Mill's On Liberty is an attempt to treat the limits of legal coercion by the state along modified utilitarian lines. In legal philosophy Bentham's influence affected the English-speaking world especially through the thought of John Austin — , the seminal figure in English and American legal positivism and analytic jurisprudence.

Austin tried to find a clear demarcation of the boundaries of positive law, which would be antecedent to a "general jurisprudence" comprising the analyses of such "principles, notions, and distinctions" as duty, right, and punishment, which are found in every legal system; these analyses in turn were to be employed in "particular jurisprudence," the systematic exposition of some given body of law. Austin began by distinguishing "law properly so called" and "law improperly so called.

The last notion led Austin to his famous and influential analysis of "sovereignty"; "laws strictly so called" positive laws are the commands of political superiors to political inferiors. From this it follows that international law is merely "positive international morality" rather than law in a strict sense. Some writers, viewing this as an unfortunate and perhaps dangerous consequence, were led to various revisions of Austinianism.

Austin's "separation" of law and morality is often taken as the hallmark of legal positivism. Yet Austin was a utilitarian; in distinguishing between the law that is and the law that ought to be, he did not mean that law is not subject to rational moral criticism grounded in utility, which he took to be the index to the law of God.

At this point Austin was influenced by such "theological utilitarians" as William Paley. Austin's views were subjected to vigorous discussion both without and within the traditions of positivism and analytical jurisprudence.

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Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments concerning the age old issue of political obligation. The twofold source of the dignity of persons. It is evident that, viewed as a doctrine of Right, this must involve a contradiction. After all, one might think that a particular account does a good job of capturing some widely shared concept of law, but this does not obviously commit one to saying that law, on this concept of it, is good. It is only by Pure Reason, therefore, that Duty can and must be prescribed. Does it impose a duty on governments to promote full employment?

And as the disciplines of history, anthropology, and ethnology assumed an increasing importance during the nineteenth century, rival approaches to the understanding of law developed. Thus, Sir Henry Maine — , who formulated the historical law that legal development is a movement from status to contract, argued in his Early History of Institutions London, that the command-sovereignty theory of law has no application in a primitive community, where law is largely customary and the political "sovereign," who has the power of life or death over his subjects, never makes law.

The Austinian view can be saved only by maintaining the fiction that what the "sovereign" permits, he commands.

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Nonetheless, Austin had many followers at the turn of the twentieth century, such as T. Holland — and J. Salmond — , who attempted to preserve the imperative and coercion aspects of his theory while introducing revisions. The role of the courts was increasingly emphasized. Acknowledging his debt to Austin, Gray defined law as "the rules which the courts [of the State] lay down for the determination of legal rights and duties.

All law is judge-made. The machinery of the state stands in the background and provides the coercive element, which does not enter into the definition of "law. While England was largely under the sway of the utilitarians, Kantianism, Hegelianism, the historical school, and legal positivism flourished in Germany, both singly and in various combinations. In his Philosophy of Right , G.

The Law in Philosophical Perspectives

Hegel — developed some Kantian themes in his own characteristic way. Law and social-political institutions belong to the realm of "objective spirit," in which interpersonal relationships, reflecting an underlying freedom, receive their concrete manifestations. In attempting to show the rightness and the rationality of various legal relationships and institutions in given moments of the development of "spirit," and in seeing them as natural growths, Hegel formulated a theory of law and the state that was easily combined with various historical, functional, and institutional approaches to legal phenomena.

Friedrich Karl von Savigny — is often regarded as the founder of the historical school. His Of the Vocation of Our Age for Legislation and Jurisprudence was published before Hegel's work and was probably influenced by Johann Gottlieb Fichte but not by Fichte's Grundlage des Naturrechts , , whose notion of the "folk-spirit" was widely known. Law, like language, originates spontaneously in the common consciousness of a people, who constitute an organic being.

Both the legislator and the jurist may articulate this law, but they no more invent or make it than does the grammarian who codifies a natural language. Savigny believed that to accept his conception of law was to reject the older notions of natural law; nevertheless, it is often claimed that Savigny's conception was merely a new kind of natural law standing above, and judging, the positive law.

Otto von Gierke — , the author of Das deutsche Genossenschaftsrecht , clearly fits into the tradition of the historical school. Carter — , to severe criticism. It should be noted that Maine's views have nothing in common with those of Savigny; in Maine's work the metaphysics of the Volksgeist is entirely absent.

Rudolf von Jhering — , eminent both as a historian of law and as a legal theorist, rejected both Hegel and Savigny: Hegel, for holding the law to be an expression of the general will and for failing to see how utilitarian factors and interests determine the existence of law; Savigny, for regarding law as a spontaneous expression of subconscious forces and for failing to see the role of the conscious struggle for protection of interests. However, Jhering shared the broad cultural orientation of many of the Hegelians, and he was grateful to Savigny for having overthrown the doctrine of "immutable" natural law.

Jhering's contribution was to insist that legal phenomena cannot be comprehended without a systematic understanding of the purposes that give rise to them, the study of the ends grounded in social life without which there would be no legal rules. Without purpose there is no will.

At the same time there are strong strains of positivism in Jhering: Law is defined as "the sum of the rules of constraint which obtain in a state" Der Zweck im Recht , p. In this respect he was close to the German positivists, who emphasized the imperative character of law. Karl Binding — , an influential positivist, defined law as "only the clarified legal volition [ Rechtswille ] of a source of law [ Rechtsquelle ]" Die Normen und ihre Uebertretung , p.

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In this period the slogan of German positivism, "All law is positive law," emerged. Yet Jhering opposed many of the claims of the analytical positivists; his essay "Scherz und Ernst in der Jurisprudenz" Leipzig, ridiculed their "heaven of jurisprudential concepts. Jhering's work foreshadowed many of the dominant tendencies of twentieth-century legal philosophy. Hermann Kantorowicz regarded Jhering as the fountainhead of both the "sociological" and "free-law" schools.

The former term covers too wide a group of writers to be surveyed here, some of whom were concerned solely with empirical work, while others combined empirical work with a philosophical outlook. Proponents of the jurisprudence of interests Interessenjurisprudenz eschewed Jhering's inquiries into the metaphysical and moral bases of purposes, claiming that he did not sufficiently attend to the conflict of interest behind laws; law reflects dominant interest.

Similar analyses were made in the United States; for example, the "pressure-group" theory of politics advanced by A. Bentley [ — ] in The Process of Government , Chicago, Much attention was devoted to the analysis of the judicial process and the role that the "balancing" of interests plays in it. As Philipp Heck, one of its leading exponents, remarked: "The new movement of 'Interessenjurisprudenz' is based on the realization that the judge cannot satisfactorily deal with the needs of life by mere logical construction" Begriffsbildung und Interessenjurisprudenz , p.

This sentiment was endorsed by the closely allied "free-law" movement. According to this group, "legal logic" and the "jurisprudence of conceptions" are inadequate for achieving practicable and just decisions. The judge not only perforce frequently goes beyond the statute law, but he also often ought to go beyond it. The "free-law" writers undertook the normative task of supplying guidelines for the exercise of judicial discretion, and the judicial function was assimilated to the legislative function.

The focus on such problems reflected the enormous change, occasioned by the industrialization of Western society, in the functions of the state. No longer did the nation-state exist merely to keep the peace or protect preexisting rights; rather, it played a positive role in promoting social and individual welfare. The philosophy of law thus became increasingly concerned with the detailed working out of the foundations of legal policy. The "free-law" theorist Eugen Ehrlich — , who influenced such American theorists as Karl N. Llewellyn — and other representatives of legal realist tendencies, summarized his Grundlegung der Soziologie des Rechts as follows: "At the present as well as at any other time, the center of gravity of legal development lies not in legislation, not in juristic science, nor in judicial decision, but in society itself.

The "inner order" of an association is the basic form of law. Ehrlich also engaged in empirical study of the "legal facts" Rechtstatsachen and "living law" of various communities in the Austro-Hungarian Empire. Ehrlich may thus be said to have considered custom as law in its own right. However, many positivists would argue that he was not able to account for the normative character of custom.

The Marxist stress on economic interests was often combined with the sociological and free-law views. Central to the Marxist position are the notions of "class" usually defined in terms of legal relationship to property and the means of production and "class interest," which leads to the analysis of the role of law in different societies with differing class structures. Addressing their critics, Karl Marx and Friedrich Engels wrote: "Your law [ Recht ] is but the will of your class exalted into statutes [ Gesetz ], a will which acquires its content from the material conditions of existence of your class" Communist Manifesto , This suggests that law is merely part of the ideological superstructure and has no effect on the material organization of society.

It raises the question of whether law exists in all societies — for instance, in primitive society or in the "classless" society arising after the triumph of socialism — and the further question of the nature and function of law in the transitional period from capitalism to socialism.