Jurisprudence And Legal Theory Essay

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Jurisprudence is the study of law in its broadest forms. Historically, jurisprudence has been concerned with the answer of two questions—one descriptive, one normative: What is law and what is justice (or to what ends should law be put)?

Answers to these questions in different times and different nations have come not only from legislators, judges, and lawyers practicing law but also from scholars who have inquired about the nature of law and observed law in practice. Jurisprudence has been invoked in many ways, sometimes focused on what law is, under the rubric of legal science, legal theory, or legal analysis, and sometimes focused on what law should be under the philosophical frameworks of natural law, utilitarianism, law and economics, pragmatism, critical legal scholarship, or race and gender critical studies.

Ancient And Classical Legal Systems

Archeology and anthropology describe social organizations in prehistoric societies, which had systems like law. Some scholars suggest that any continuous social organization may be called law if it creates norms, and therefore one can think about law as an element of the most essential social organization. Jurisprudence usually examines laws from a broad array of materials, describing the law and its operation in social contexts.

The earliest records of systems of law come from Sumerian records of legal transactions, which were later codified in the Babylonian Code of Hammurabi, probably written around 2050 BCE. The Code of Hammurabi is very detailed, listing a variety of things that people ought to do and ought not to do and a variety of punishments for those who would fail in their duties. The law was pronounced in written rules made public in the name of the king who pronounced laws justified by a special relationship with their god. The rules say that they bind every person, and the rules are very specific in their requirements and their punishments.

Not all ancient legal systems were based on exact rules and punishments. Ancient Egyptians developed a religious law that was followed in life and measured at death, when the gods would balance one’s sins against one’s virtues. This practice introduced the principle of measurement governing a variety of prohibitions and expectations.

In both the Babylonian and Egyptian examples, certain aspects of the rules and of principles were applied during the life of individuals and as means of religious judgment. In those records we see different approaches, an emphasis in Babylon for rules with specific punishments and an emphasis in Egypt for principles with balanced punishments applied case by case. These approaches correspond with the use in Babylon of written laws to judge conduct that follows the writing and in Egypt with judgment following conduct. Legal systems reflecting by these approaches include the Jewish law apparent in the Tanakh and the Mishnah, in which judgment sometimes follows unrighteous conduct, yet written laws are still very specific. In all of these instances, there is a very strong relationship between the law, the religion, the state, the society, and the expectation of individual conduct within these contexts.

The first sustained effort to understand the nature of law apart from its statements by lawgivers and applications by priests or officials came with the zenith of Greek philosophy, particularly around the time of Socrates, Plato, and then Aristotle. Plato’s writings depict Socrates’s arguments and Plato’s own views in a sustained description of what the law is as well as what the best systems and rules of law must be. These philosophers considered democracy an unreliable basis for law, believing that democracy would fail and be replaced by the rule of a mob or of a tyrant. Plato thought the law must require people to live the best life according to their talents and stations. This view, with less emphasis on the need for philosopher kings, was developed with great precision by Aristotle.

Aristotle argued that lawmakers should follow the laws themselves and that this was more important than whether the laws are made by a single king, a small group of counselors, or the people as a whole. This principle is now recognizable as the rule of law. Aristotle developed the Socratic idea that the purpose of laws was to encourage each person to live the best possible life. This was to be done through the pursuit by law of the common good as well as pursuit of the individual virtues in each person’s life, which in turn should be encouraged by laws. Aristotle’s sophisticated analysis of law describes the ideal system of laws and organization of the state according to law, basing his understanding of law on a broader understanding of morality, an approach later taken as the basis for much of natural law.

Greek legal practice was manifest in the laws of Draco, Solon, and later the Athenian assembly, which together yield a considerable commercial and dispute-driven system of legal arbitration, including arbitration between states. In general, law in Ancient Greece relied on a system of principles and rules, such as the requirement of keeping a contract or treaty, which were applied by neutral arbitrators.

Roman Law

Roman law organized the personal, social, commercial, state, and military relationships of the early Roman state and republic, as well as the vast Roman Empire. Manifest in the historical record is the influence of rules and of principles, and in the application of them the organization of the state; of private relationships in contracts; and of private no contractual duties. Moreover, we see in Roman law the origins of complex institutions for hearing legal disputes and the rise of specialization and the professionalization of roles for those with legal expertise. Over time the Romans developed a complex legal machinery with a variety of judicial offices to hear disputes, as well as separate legal systems of rules to adjudicate questions rising between Roman citizens and between Roman citizens and noncitizens. Later, more sophisticated courts advised on special questions dealing with problems of state and problems of law themselves. Imperial Roman law was created through legislation enacted by the Roman senate, decrees promulgated by the emperors, and the decisions of law judges, particularly the judices, who were especially knowledgeable in the law.

Toward the end of the Roman Empire, some jurists had become especially acknowledged for their knowledge and wisdom, particularly Ulpian, Gaius and Tribonian, whose work in particular was the foundation for the great books organized under Emperor Justinian known still as the Corpus Juris, or the body of law. The summary of the corpus, the Institutes of Justinian, describes the entire imperial legal system and its rules of law for easy legal study. The Institutes organize the law into questions of justice and of law and describe specifically what is meant by jurisprudentia, which is the knowledge of both what is just according to the law of nature and what is required according to the specific rules of the civil law. The Romans firmly believed that the civil law reflected the natural law in a manner similar to that of the Greeks. The summary of this law includes not only its nature, which is to say that it is both written and unwritten, but also its fundamental principles—the most important of which are three: to live honestly, to hurt no one, and to give all persons their due.

Our understanding of Roman law and its philosophy is greatly enhanced by the writings of Cicero, the great lawyer of the republic, centuries before the writing of the Institutes. Cicero understood the law to be a tool for the regulation of private affairs and of public affairs, governing the actions of private citizens and of public officials. Particularly in his book on laws, he lays out a comprehensive argument for the importance of law in a manner that echoes Aristotle, in which the laws must be made fairly and applied fairly to both private and public parties. From Cicero and the institutional writers we see Roman law as a series of rules both written and unwritten and based on principles, particularly those that were believed to reflect the natural organization of human beings in society. Those governed by the state should have a more specific series of rules with more specific punishments, and those outside of the state should have access to the law and be treated under the law in a manner that was more principled and less governed by specifics and particulars of rules. There is a professional cadre of lawyers evident from Cicero’s time forward, whose influence grows as the empire grows and whose judgments become essential to the creation of legislation and to the application of law in specific cases throughout the empire.

Canon Law And The Medieval State

With the fourth century conversion of Roman Emperor Constantine I to Christianity, the church entered the protection of the later Roman Empire, and the principles and rules governing relationships within the Christian church became a more important source of law to both the states of Europe and to the individuals living there, regardless of their religion. Canon law became organized through the decrees of bishops and the statement of counsels, collected by monks and bishops and their staffs into treatises, or decretals, and summaries, or summae.

Canon law was organized very much in the light of the Roman legal tradition, moderated by the biblical text and the church fathers. Canon law therefore takes as its source the authority of the church in the revealed gospel, interpreted through ecclesiastical institutions such as the offices of the pope, various councils, and the decrees of church courts.

Canon law was particularly essential to understand relationships tied to church sacraments, and therefore it was especially important in the regulation of families. The greatest expositor of law in the canon tradition was Saint Thomas Aquinas. He grounded the laws of the state in a divine order, from which arises a natural order, within which states create law, and according to which the state-created law binds individuals.

With the fall of the Roman Empire and the development of independent principalities and states, the law within each state grew somewhat independently. Some laws evolved with little participation from state officials, most importantly the private commercial legal customs among international merchants. Still, law was promulgated by the civil officials of each state, increasingly regulating property and private lives and serving as the primary tool of social order.

The Middle Ages saw a considerable movement of ideas among the various states as both church lawyers and increasingly academic lawyers and professionals moved among states, either as a result of private travel or princely conquest and statecraft. Early English law books, for instance, were very much in the French tradition of institutional writing reflecting both canon and civilian texts, the decrees of the kings and counselors, and the decisions of the king’s justiciars. The great illustration of this is the thirteenth-century text of Bracton, which is very detailed in describing rules and principles governing private affairs but also treats the origins of laws and the rule of the king, particularly the famous adage that the king is under no man but God and the law.

Law And The Modern State

The rising authority of the kings and the waning influence of the pope gave rise in the fifteenth century to a new understanding of the power of kingship and its relationship to laws. This trend is manifest in the writings of Niccolò Machiavelli, a Florentine legal official whose descriptions of the powers of a prince were relatively unfettered by moral or religious obligation toward any purpose beyond the acquisition and maintenance of power. Even so, Machiavelli expected the prince to use laws as a tool of state and made clear the prince must respect the expectation of the people that those laws must be fair and just, and if the prince would rule them effectively the prince must manage their interests.

This more subtle understanding of a natural relationship between interest of the governed and the governors was a hallmark of the writings of law in Europe for the next several hundred years. Hugo Grotius, a Dutch legal scholar of the next generation, developed the idea of law as tied to the natural order, understood through reason rather than as a dictate of the divine. From this conception came a single powerful model for law based on a view of mankind that was both Aristotelian in its natural reason and very practical in its human observation.

These descriptions of law and state must be understood alongside the views of a growing cadre of professional lawyers, whose own understanding of the law was more technical but still framed as a view of what the law is as well as what it should be. Sir Edward Coke, a seventeenth-century jurist and parliamentarian, created a systematized foundation for law, requiring a careful and reasoned understanding of the rules of law developed by reason and reflected in legal materials, which could only be interpreted by learned counsel and skilled judges. Coke argued that the law could not be applied by the king but must be applied by professionals and could not be arbitrary. Laws had to be reasoned; rational law could not embrace principles or rules that did not reflect a form of underlying logic. Coke also argued strongly for a coherent organization of legal institutions with a common rule of law binding everyone within the kingdom. Though Coke was less concerned than classical thinkers with the promotion of virtues through law and more concerned for the regulation of property and commerce, the institutions of law as Coke described them were very similar to the institutions of law promoted by Aristotle and then by the Romans.

The idea of law evolved with conceptions of the state and its sovereignty, both of which changed with a series of challenges to royal authority, such as the English Civil War of the 1650s, the Peace of Westphalia of 1678, and the Glorious Revolution of 1688. The church had lost its powers over the princes of Europe, but the princes themselves were losing power to parliaments and a new bourgeoisie that displaced the previous feudal social and political order. A debate ensued over the sovereignty of the state, whether the power of the state was ultimately superior or was limited by anything at all.

This argument is illustrated in the tension between the writings of social contract thinkers like Thomas Hobbes and John Locke. Hobbes wrote of a king above the law created by a social compact by which the people alienated their natural born freedoms in return for the safety of a legal order created by the king. Locke, opposing a similar argument by Robert Filmer, accepted that people had a natural freedom and that an arrangement like a contract existed, but that the rights of the people could never be fully surrendered, and the king could not be above the terms of the contract. Thus Locke argued the king must perform the contract to secure order with the least loss of that liberty required for order. So as Hobbes believed the law served the interests of the king as the king defined them, Locke saw the law as serving the interests of the people and their collective and individual good.

A view of the interests of the governed was emerging as essential to conceptions of the state and the law. Gottfried Leibniz argued that officials have the power of law in order to exercise the charity of the wise to use the law for the benefit of the people bound to it. Scots lawyer David Hume and economist Adam Smith, writing in the eighteenth century, analyzed law in the light of Hume’s famous dictum that one must distinguish between what is and what ought to be to argue that the law must be built on a system of exact justice, public works, and public institutions.

These arguments were furthered in the fiery debates preceding and following the birth of the United States of America and the French Republic. Writers such as the Baron de Montesquieu, Jean-Jacques Rousseau, Alexander Hamilton, and James Madison wrote extensively about popular will and the appropriate reasons for law, as well as the importance of institutions and essential values in making law, seeking an understanding of law justified by the will of the majority of the people as well as to balance that will through certain principles like rights, protected by institutions that divided state power.

Utilitarianism

The principle of proportionality in people’s private affairs recurs in jurisprudence throughout history since the Babylonian and Hebrew injunction of an eye for an eye. It reached a high point in the writings of criminal law of eighteenth-century Italian Cesar Beccarra and particularly in the analysis of an Englishman living in France early in the 1800s, Jeremy Bentham. Bentham argued that the fundamental purpose of law was utility, or the promotion of the greatest happiness for the greatest number of people. This assessment of the law from a framework that does not depend on divine revelation or an arcane assessment of natural order, but rather on principles of utility that may be assessed by any observer was a profoundly democratizing move. From a utilitarian perspective the individual governed by the law is as competent to assess the law as is the lawmaker or the judge.

This type of redefinition of the potential answer to the question “what should be law” did not arise without also a change in the question of “what is law.” It is unsurprising that such a transition would occur at roughly the same time as the principles of John Locke became manifest in the statements of Thomas Jefferson and others in the Declaration of Independence in the United States. Law, indeed, was moving from a source of rules created by the elite and managed by a profession to a source of rules in which the polity as a whole had a great stake.

Legal Science

The growth of professional legal philosophy and the increasingly public role of the judiciary spurred the growth in the nineteenth and twentieth centuries of attempts to study law more scientifically. One of the earliest of these attempts flowed from the notion that law is the command of the sovereign, an idea advanced by John Austin. Austin’s analysis of the law gave rise to an understanding of the law as a formal system of rules that are carefully organized and reasonably related so as to achieve fundamental purposes. This perspective became known as the study of legal science (but is now commonly characterized by scholars as the era of legal formalism).

Legal science presumed to have the study of the law echo the study of scientific principles of the natural and practical sciences in the world. Under this approach certain enduring principles of the law were to be isolated and mapped with a taxonomy, rather like the taxonomy given by Linnaeus for biology. This understanding of the law would demonstrate an interconnectedness of legal rules and principles, one that is illustrated with Sir Frederic Maitland’s adage that the law is a seamless web, a pluck in one place disturbing the law throughout. Legal science recognized law as an artificial creation— in the same manner that inventions reflected the underlying physical and chemical nature of the universe. So too would the artificially constructed law reflect the underlying conditions of the natural world.

Social Darwinism And Its Successors

A related nineteenth-century legal movement influenced by science is misleadingly labeled social Darwinism. The fundamental idea of social Darwinism’s view that people behave according to natural law is that populations of people, and particularly nations and races, compete for survival. This idea owes less to Charles Darwin than to Herbert Spencer, who coined the term survival of the fittest, and to their American apostles such as William Sumner, who saw law as a tool for social competition that must allow the strongest to survive unfettered by artificial weakness that would hamper the competition of great nations to reach powerful heights. This was the intellectual basis for the law of empire as well as commerce, environmental exploitation, and—above all—contract without regulation.

One outgrowth of this view was the rejection of institutional understandings of law as well as democratic justification, challenged by continental arguments like those of Rudolf von Jhering and François Geny, who argued that institutional law and natural law must reflect the native customs of the people the law represents. The fascist theories of Giovanni Gentili and Carl Schmitt directly rejected laws as a limit on the state, arguing that people and institutions must yield to a national leader whose decisions would be the law, and whose will would be the justification for law because it would manifest the national interest.

These views of law are important but contested in the United States in the twentieth century. Social Darwinist arguments were challenged by realism and progressivism, leading to the New Deal. And a new interest in the theories of natural law in procedure and in human or natural right followed World War II (1939–1945), once it became known that the German state and its skillful legal institutions had led to the Holocaust.

Legal Realism

Legal realism challenged some of the fundamental propositions of legal science, particularly the notion that law was an inevitable product of certain essential or immutable fundamentals. In both Europe and the United States, an understanding of law as being rooted in the individual action by legal officials began to gain credence. In the United States, this view of the law was presaged by the writings and speeches of Justice Oliver Wendell Holmes Jr., who had once been a legal formalist but whose descriptions of law both as something to be studied and as something to be understood from the perspective of the bad man inspired a generation of legal philosophers that followed. Chief among these were Karl Llewellyn and Roscoe Pound, who along with judges such as Jerome Frank and Benjamin Cardozo developed a rich approach to the law that recognized the law as a system of obligations and rules, yet understood the necessity of seeing these rules as the product of individual choice made by legal officials. Legal realism thus saw laws that favored the wealthy not as inevitable principles reflecting the natural order but as social choices made by officials from a ruling elite. Legal realism thus provided an intellectual framework that made changes in American law, particularly those of the New Deal of the 1930s, more plausible. Following World War II, legal realism prompted something of a reaction as scholars sought a clearer understanding of law as rules rather than merely the acts of officials, which seemed too arbitrary in its reliance on the preferences of judges in shaping the path of the law.

Legal Positivism

The most recognized description of law in the twentieth century was that the law is best understood as a system of rules, both regulating the creation and management of law and regulating the individual actions of daily life. These rules, classified by H. L. A. Hart as secondary and primary rules, describe a mature legal system. According to Hart and other legal positivists, law is whatever is made as a law according to the rules of law. Thus what makes a statute a law is that it is adopted by the appropriate system of rules as ordained in a constitution or, as Hart described the fundamental rule for the origination of law, the fundamental rule of recognition. Positivism has led to a greater appreciation for law as a structure of rules, yet it also has prompted debate over whether rules alone sufficiently describe the law and whether rules can provide an understanding of justice.

Modern Natural Law

Challenges to positivism arose from normative perspectives on what law should be. Some have argued, such as Lon L. Fuller, that certain conditions are required in law or forbidden from law to be considered a valid law or the product of a valid legal system. Thus a legal system that attempted to enshrine laws that are impossible or laws that destroy the authority of the legal system cannot be considered law. Ronald Dworkin has argued that laws must rely upon moral norms to function; for instance, juries must rely upon moral understanding in order to apply or give meaning to rules. John Finnis has argued that certain continuing understandings of the good must inform our understanding and criticism of law.

Law And Economics

Building on the utilitarian tradition, the study of economics developed in the nineteenth century, initially describing human and economic activity, including the regulation of conduct, and then promoting certain practices on the basis of their ability to develop the wealth of society. In the early twentieth century, lawyers embraced economic models such as those of Nicholas Kaldor and John Hicks in order to measure the balance of harms from various industrial activities, as well as Pigou to determine the most valuable rules of contracts. In the late twentieth century, the pursuit of microeconomic efficiency in the law, particularly influenced by the Chicago school economists led to a riposte that the economic criticism of law had become a defense of wealth and corporate capital from state protections of the individual.

Legal Pragmatism

Justice Oliver Wendell Holmes Jr. argued for a view of law that was practical rather than theoretical, which reached decisions based on all of the legal sources, all of the facts, and was respectful of the popular will in legislation. This pragmatic view has been revived by Richard Posner, an American judge and legal scholar and earlier in his career a prominent proponent of the law and economics perspective, whose later jurisprudence has revived legal pragmatism as a rejection of the grand theorizing of legal formalism, legal positivism, or even the utilitarian strain of law and economics, in favor of a recognition that judges make legal decisions on the basis of facts and the weighing of consequences rather than interpretive theories or theories of justice. Moreover, jurists make their decisions and individually weigh expected consequences within a context shaped by psychological, career, and institutional factors. These factors may include ideology as it colors the perspective of individual jurists, but Posner argues that ideology is mitigated by a practical respect for the appearance of judicial modesty and an understanding of a decision’s social context. Jurisprudence in this formulation is about applying the law to presented facts with recognition of the social context, the likely consequences, and the underlying political tensions within a given polity.

Critical Legal Studies

Some contemporary legal scholars, inspired by the student radicalism of the 1960s and new means of literary and social criticism that examine the role of discourse in constructing how we perceive reality (made up of various strains of thought loosely referred to as critical theory), challenged the pervading understandings of what law is and should be. Legal scholars like Mark Kelman, Duncan Kennedy, Mark Tushnet, and Roberto Unger argued that the discourse of law and of justice enshrined in principles such as positivism and natural law (and later pragmatism) was so laden with the vices of power and the subjugation of people for social and economic reasons that there could be no legitimate authority in these approaches. Critical legal scholars argued that the law must be assessed through “mapping” its connections to centers of power and criticized through “trashing” by comparing the rhetoric of law (its claims to universality) to its practices and effects in fact (like creating and preserving hierarchies and in reifying social and political inequalities). Pointing to obvious failures of the law to provide security for the poor and dignity to all, critical scholarship declared the law and its institutions unredeemable because they promoted injustice rather than justice. Critical legal studies (CLS) adherents had a normative agenda. They sought to expose hierarchies of power and law’s role in creating and preserving them in order to seek a more egalitarian basis for law—that is, a new definition of justice. Most criticism of this approach points out the difficulty of rebuilding a basis for law from an approach that undermines the legitimacy of discursive practices, including its own.

Identity Criticism

Feminist legal theorists, critical race theorists, queer legal theorists, and others have argued that the law cannot be understood except from the viewpoint of a group or a member of a group that has been a victim of the law. Thus, critical race scholars argue that American law must be defined by the experience of those whose ancestors were slaves and who suffer continuing discrimination and economic disenfranchisement based on race. Feminists argue that the law cannot be understood unless it is seen as a male enterprise of gendered power that denigrates a feminine understanding of society and social values. Thus, rules making it difficult to prosecute claims of rape and systems of taxation favoring corporations over families would be seen in a different light from the traditional patriarchal or phallocentric perspective. Queer theory and others have argued similarly that the law must be seen from a lens of those who have been particularly villainies by law, such as homosexuals, “illegal” immigrants, or other marginalized groups stigmatized or ignored by the law. Together, these identity-centered approaches share a similarity with CLS in their desire to unmask the positivist and natural law schools’ failure to recognize the contradictions in modern liberalism’s universal claims for its conceptions of law and justice. Where they depart from CLS is in the emphasis on which inequalities are most reified by legal practices (that is, which contradictions are most glaring), and how legal liberalism’s own rhetorical claims can be used to challenge these contradictions.

Twenty-First Century Legal Philosophy

As the law changes and as social understanding changes, so does our understanding of the law. It is likely in the future that we shall see law from an increasingly global perspective, defining law by national institutions and by supranational behavior. We will judge the law from traditional models of national and parochial understanding of what good law is or bad law is, but we will judge the law from a variety of perspectives that include greater degrees of controversy as various religious and cultural conceptions of law are given greater weight in both international and local dialogue. The stakes for legal institutions will continue to rise as such debates seem to grant one group or another group power because their conception of justice becomes manifest in local law. Thus the future of law will be a future of controversy both in the consideration of what the law is and what the law should be.

The defining element of law may be institutional: law is a process managed by officials and a legal profession that is responsive to the popular cultures that it serves and that it must regulate. If this is true, then the law is best understood to be rules created and managed by officials within a professional culture. Though there are considerable arguments over what the law should be, it is likely to be some balance between the liberty of the individual and the required support of the common good, such as universal education, safe environment, and sound economy.

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