---
title: "Jurisprudence"
chunk: 6/8
source: "https://en.wikipedia.org/wiki/Jurisprudence"
category: "reference"
tags: "science, encyclopedia"
date_saved: "2026-05-05T03:58:04.446884+00:00"
instance: "kb-cron"
---

In the English-speaking world, the most influential legal positivist of the twentieth century was H. L. A. Hart, professor of jurisprudence at Oxford University. Hart argued that the law should be understood as a system of social rules. In The Concept of Law, Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts.
Hart claimed that law is the union of primary rules and secondary rules. Primary rules require individuals to act or not act in certain ways and create duties for the governed to obey.
Secondary rules are rules that confer authority to create new primary rules or modify existing ones. Secondary rules are divided into rules of adjudication (how to resolve legal disputes), rules of change (how laws are amended), and the rule of recognition (how laws are identified as valid). The validity of a legal system derives from the "rule of recognition", a customary practice among officials (especially barristers and judges) who identify certain acts and decisions as sources of law. In 1981, Neil MacCormick wrote a pivotal book on Hart (second edition published in 2008), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his Institutions of Law, 2007). Other important critiques include those of Ronald Dworkin, John Finnis, and Joseph Raz.
In recent years, debates on 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 is associated with the view that a norm's legal validity can never depend on its moral correctness. A second school is labeled "inclusive legal positivism", a major proponent of which is Wil Waluchow, and is associated with the view that moral considerations may, but do not necessarily, determine the legal validity of a norm.

==== Joseph Raz ====

Joseph Raz's theory of legal positivism argues against incorporating moral values in explaining the validity of law. In Raz's 1979 book The Authority of Law, he criticised what he called the "weak social thesis" to explain law. He formulates the weak social thesis as "(a) Sometimes the identification of some laws turn on moral arguments, but also with, (b) In all legal systems the identification of some law turns on moral argument." Raz argues that law's authority is identifiable purely through social sources, without reference to moral reasoning. This view he calls "the sources thesis". Raz suggests that any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence. Some philosophers used to contend that positivism was the theory that held that there was "no necessary connection" between law and morality; but influential contemporary positivists—including Joseph Raz, John Gardner, and Leslie Green—reject that view. Raz claims it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder).

=== Legal realism ===

Legal realism is the view that a theory of law should be descriptive and account for the reasons why judges decide cases as they do. Legal realism had some affinities with the sociology of law and sociological jurisprudence. The essential tenet of legal realism is that humans make all law and thus should account for reasons besides legal rules that led to a legal decision.
There are two schools of legal realism: American and Scandinavian. American legal realism grew out of the writings of Oliver Wendell Holmes. At the start of Holmes's The Common Law, he claims that "[t]he life of the law has not been logic: it has been experience". This view was a reaction to legal formalism that was popular the time due to the Christopher Columbus Langdell. Holmes's writings on jurisprudence also laid the foundations for the predictive theory of law. In his article "The Path of the Law", Holmes argues that "the object of [legal] study...is prediction, the prediction of the incidence of the public force through the instrumentality of the courts."
For the American legal realists of the early twentieth century, legal realism sought to describe the way judges decide cases. For legal realists such as Jerome Frank, judges begin with the facts before them and then apply legal principles. Before legal realism, theories of jurisprudence turned this method on its head, holding that judges should begin with legal principles and then look to the facts.
It is common today to identify Justice Oliver Wendell Holmes Jr. as the principal 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 judges who can shape case outcomes based on their personal values or policy choices.
The Scandinavian school of legal realism argued that law can be explained through the empirical methods used by social scientists. Prominent Scandinavian legal realists are Alf Ross, Axel Hägerström, and Karl Olivecrona. Scandinavian legal realists also took a naturalist approach to law.
Despite its decline in popularity, legal 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.