More From This User
Related Docuements
Law
From Ekta Makhija
READINGS IN LEGAL PHILOSOPHY ANDTHEORY
CHAPTER 1INTRODUCTORY CHAPTER
DEFINITION, NATURE AND FUNCTIONPhilosophy
is taken from the Greek words,
Philos
and
Logos
, whichmeans “love of wisdom”.
Philosophy
is the study of the universe that seeks to know the truth andrational explanation of anything.
Philosophy of Law
is that branch of philosophy which deals with the wisdom of law. It studies the nature of law with particular reference tothe origin and end of law, and all the principles that govern itsformulation. It is part of practical philosophy. The object of philosophy of law is the study of law in universal sense, aslaw can also be studied as to its particular points in which the object is
Juridical Science or Jurisprudence
.Parts of the system of Juridical Science are:1.Public Law2.Private LawParts of Public Law are:1.Constitutional Law2.Administrative Law3.Penal Law4.Procedural Law5.International LawParts of Private Law are:1.Civil Law2.Commercial Law
3.Those that govern relationships among individuals or juridicalentities. Juridical Science can only inform the people of the law among certainpeople in a given period, answering only the uestion of what isestablished by law of a certain system (
quid juris
). Philosophy of law,however, transcends the competence of each individual juridical science.It considers the essential elements which are common to all juridicalsystems (Kant).According to Giorgio del Vecchio, Philosophy of Law “is the course of study which defined law in its logical universality, seeks its origins andgeneral characteristics of its historical development and evaluates itaccording to the ideal of justice drawn from pure reason.
FUNCTION OF PHILOSOPHY OF LAW
Philosophy of law is a quest of law which appeals to reason to obtain justice.One function of philosophy therefore is to formulate law that isreasonably acceptable to the people to whom it is addressed. Philosophyof law therefore is opposed to tyranny. The practical function of philosophy is that it teaches and prepares forthe positive recognition of the juridical ideal.
CHAPTER IIHISTORY OF PHILOSOPHY OF LAW
Every branch of knowledge is better understood by knowing its history.History of Philosophy is a means of study and research which helps inthe acquisition of regarding knowledge philosophies advocated bydifferent philosophers in the past. It is a study of how philosophersmeditated upon the problems of law and justice.Philosophy in the past has been intermingled with Theology, Morals, andPolitics.
THE PHILOSOPHY OF ANCIENT GREECE
The general history of Legal Philosophy started with the ancient Greekphilosophers Socrates, Plato, and Aristotle.In the 15
th
century, the Sophists denied the existence of absolute justice.Law to them is relative. Plato in his
Dialogue
disputed the Sophists.
Socrates
(469-399 BC) believed in a higher justice for the validity of which it is necessary that there is a positive sanction or a writtenformulation. Obedience to the law of the state is a duty. Socrates in this way gave the first indication of the idealistic philosophical system.
Plato
(427-347 BC), a disciple of Socrates, in his two dialogues,
The Republic
and
The Laws
, presented the ideal concept of the State as “themost perfect unit”. The State dominates all human activity and mustpromote good in any form. Justice is achieved through the harmoniousrelation between the various parts of the State.
Aristotle
(384-322 BC), a disciple of Plato, in his
Nichomachean Ethics
,said that all supreme good is happiness, the product of virtue. The Stateregulates the lives of the citizens by means of laws. The content of lawsis justice as is applied in various ways.Kinds of justice according to Aristotle:1.Distributive justice – applied in giving honors and respects2.Connective and equalizing or called rectifying justice – applied tovoluntary contractual relationship.
THE ANCIENT ROMAN JURISTS
The Roman excelled the codification of law but the philosophical basisderived from the Greeks.
You're Reading a Free Preview
Page 38 is not shown in this preview.
Page 38 is not shown in this preview.
of 00
Legal Philosophy Notes
3,124 Reads
Info and Rating
| Category: | Uncategorized. |
| Rating: | (2 Ratings) |
| Upload Date: | 08/06/2009 |
| Copyright: | Attribution Non-commercial |
| Tags: |
Leave a Comment