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| title | chunk | source | category | tags | date_saved | instance |
|---|---|---|---|---|---|---|
| Jurisprudence | 7/8 | https://en.wikipedia.org/wiki/Jurisprudence | reference | science, encyclopedia | 2026-05-05T03:58:04.446884+00:00 | kb-cron |
=== Critical legal studies === Critical legal studies is a jurisprudential theory that has developed since the 1970s. In 1977, a group of members of the Law and Society Association struck out on a new theoretical direction. The legal ideas of Peter Gabel, Morton Horwitz, Duncan Kennedy, Karl Klare, Mark Tushnet, and Roberto Unger have now found influence in many law schools. The theory can generally be traced to American legal realism and is considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective". It holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of a dominant social group. Roberto Mangabeira Unger and other authors in the movement contrast critical legal studies as a method, critical in approach, from the impersonal purposes and principles made necessary in legal reasoning, such as formalism. He writes that it was "consequently also by rejecting judges as the chief addressees of legal analysis, and refusing to take the question—how should judges decide cases?—as the defining problem in jurisprudence." According to Unger the new American legal analysis will unlock the democratic potential of free societies in the same way earlier capitalistic economies benefited from the protection of private rights such as contracts and property.
=== Constitutionalism ===
=== Legal interpretivism ===
American legal philosopher Ronald Dworkin's legal theory challenges legal positivists who separate the content of law from morality. In his book Law's Empire, Dworkin argued that law is an "interpretive" concept that requires barristers to find the best-fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the best moral justification for the institutional facts and practices that form a society's legal tradition. It follows from Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some truths about the moral justifications of the social and political practices of that society. It is consistent with Dworkin's view—in contrast with the views of legal positivists or legal realists—that no-one in a society may know what its laws are, because no-one may know the best moral justification for its practices. Interpretation, according to Dworkin's "integrity theory of law", has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of "fit". Of those interpretations that fit, however, Dworkin maintains that the correct interpretation is the one that portrays the community's practices in the best light, or makes them "the best that they can be". But many writers have doubted whether there is a single best moral justification for the complex practices of any given community, and others have doubted whether, even if there is, it should be counted as part of the law of that community.
=== Therapeutic jurisprudence ===
Consequences of the operation of legal rules or legal procedures—or of the behavior of legal actors (such as lawyers and judges)—may be either beneficial (therapeutic) or harmful (anti-therapeutic) to people. Therapeutic jurisprudence ("TJ") studies law as a social force (or agent) and uses social science methods and data to study the extent to which a legal rule or practice affects the psychological well-being of the people it impacts.
== Normative jurisprudence ==
In addition to the question "What is law?", legal philosophy is concerned with normative, or "evaluative," theories of law. What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? Some of the different schools and leading thinkers are discussed below.
=== Virtue jurisprudence ===
Aretaic moral theories, such as contemporary virtue ethics, emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous character in citizens. Historically, this approach has been mainly associated with Aristotle or Thomas Aquinas. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
=== Deontology ===
Deontology is the "theory of duty or moral obligation". The philosopher Immanuel Kant formulated one influential deontological theory of law. He argued that any rule we follow must be universally applicable, i.e., we must be willing for everyone to follow it. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
=== Utilitarianism ===
Utilitarianism is the view that the laws should be crafted to produce the best consequences for the greatest number of people. Historically, utilitarian thinking about law has been associated with the philosopher Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the torchbearer for utilitarian philosophy throughout the late nineteenth century. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.
=== John Rawls ===