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| title | chunk | source | category | tags | date_saved | instance |
|---|---|---|---|---|---|---|
| Jurisprudence | 4/8 | https://en.wikipedia.org/wiki/Jurisprudence | reference | science, encyclopedia | 2026-05-05T03:58:04.446884+00:00 | kb-cron |
Writing after World War II, Lon L. 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.
=== John Finnis ===
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, as well as the specific 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. In contrast, modern natural law theorists, such as John Finnis, who identify as positivists, still argue that law is moral by nature. In his book Natural Law and Natural Rights (1980, 2011), John Finnis provides a restatement of natural law doctrine.
== Analytic jurisprudence == Unlike experimental jurisprudence, which investigates the content of legal concepts using the methods of social science, analytical jurisprudence seeks to provide a general account of the nature of law through the tools of conceptual analysis. The account is general in the sense that it targets universal features of law that hold at all times and in all places. Analytic, or clarificatory, jurisprudence takes a neutral point of view and uses 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. David Hume argued, in A Treatise of Human Nature, that people invariably slip from describing what the world is to asserting that we therefore ought to follow 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 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?"; "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 is a growing number of critics who offer their own interpretations.
=== Historical school === 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.
=== Sociological jurisprudence ===
An effort to systematically inform jurisprudence with 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.g., Ernst Fuchs, Hermann Kantorowicz, Eugen Ehrlich, and François Gény) 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 1930s, a significant split emerged between the sociological jurists and the American legal realists. 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. Still, with increasing criticism of dominant orientations in legal philosophy in English-speaking countries in the present century, it has attracted renewed interest. Increasingly, its contemporary focus is on providing theoretical resources to aid jurists in understanding new forms of regulation (for example, the diverse kinds of developing transnational law) and the increasingly important interrelations between law and culture, especially in multicultural Western societies. As an approach to jurisprudence, sociological jurisprudence uses the resources of social science to serve value-oriented juristic purposes. As such, it should be distinguished from sociology of law, which, as a field of social science, has no necessary commitment to juristic aims.
=== Legal positivism ===