OSHO OLUMIDE T.

LAW/2005/224

JURISPRUDENCE ASSIGNMENT

JPL 502

SUBMITTED TO

DR FATULA

OCTOBER 2010

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INTRODUTION

Jurisprudence is the theory and philosophy of law.

The Latin word juris is the genitive form of jus meaning "law." So, juris

means "of law" or "legal." Prudentia, meaning "knowledge" in Latin, translates

into English as "prudence." The native English word is "wisdom," which originally

also meant "knowledge." As jurisprudence has developed, there are three main

aspects with which scholarly writing engages:

 Natural law is the idea that there are unchangeable laws of nature which

govern us, and that our laws and institutions should try to align with this

natural law.

 Analytic jurisprudence asks questions distinctive to legal philosophy like,

"What is law?" "What are the criteria for legal validity?" or "What is the

relationship between law and morality?" and other such questions that legal

philosophers may engage.

 Normative jurisprudence asks what law ought to be. It is close to political

philosophy, and includes questions of whether one ought to obey the law, on

what grounds law-breakers might properly be punished, the proper uses and

limits of regulation, how judges ought to decide cases.

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Modern jurisprudence and philosophy of law is dominated today primarily by

Western academics. The ideas of the Western legal tradition have become so

pervasive throughout the world that it is tempting to see them as universal.

Historically, however, many philosophers from other traditions have discussed the

same questions, from Islamic scholars to the ancient Greeks.

ANALYTICAL JURISPRUDENCE

Analytical jurisprudence is using a neutral point of view and descriptive

language when referring to the 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 famously argued in A Treatise of Human Nature that people

invariably slip between describing that the world is a certain way to saying

therefore we ought to conclude on 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 to normative and evaluative ought questions.

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?"

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Legal positivism is the dominant theory, although there are a growing number of

critics, who offer their own interpretations.

Legal positivists

Positivism simply means that the law is something that is "posited": laws are

validly made in accordance with socially accepted rules. The positivist view on law

can be seen to cover two broad principles:

Firstly, that laws may seek to enforce justice, morality, or any other

normative end, but their success or failure in doing so does not determine their

validity. Provided a law is properly formed, in accordance with the rules

recognized in the society concerned, it is a valid law, regardless of whether it is

just by some other standard.

Secondly, that law is nothing more than a set of rules to provide order and

governance of society. No legal positivist, however, argues that it follows that the

law is therefore to be obeyed, no matter what. This is seen as a separate question

entirely.

 What the law is - is determined by social facts (or "sources')

 What obedience the law is owed - is determined by moral

considerations.
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John Austin

John Austin is considered by many to be the creator of the school of

analytical jurisprudence, as well as, more specifically, the approach to law known

as “legal positivism.” Austin's particular command theory of law has been subject

to pervasive criticism, but its simplicity gives it an evocative power that continues

to attract adherents.

Early in his career, Austin came under the influence of Jeremy Bentham, and

Bentham's utilitarianism is evident (though with some differences) in the work for

which Austin is best known today. On Austin's reading of utilitarianism, Divine

will is equated with Utilitarian principles:

“The commands which God has revealed we must gather from the terms

wherein they are promulgated. The command which he has not revealed, we must

construe by the principle of utility”

This particular reading of utilitarianism, however, has had little long-term

influence, though it seems to have been the part of his work that received the most

attention in his own day. Some have also seen Austin as being one of the early

advocates of “rule utilitarianism.” Additionally, Austin early on shared many of the

ideas of the Benthamite philosophical radicals; he was “a strong proponent of

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modern political economy, a believer in Hartleian metaphysics, and a most

enthusiastic Malthusian.” He lost most of his “radical” inclinations as he grew

older.

Austin's importance to legal theory lies elsewhere—his theorizing about law

was novel at four different levels of generality.

First, he was arguably the first writer to approach the theory of law

analytically (as contrasted with approaches to law more grounded in history or

sociology, or arguments about law that were secondary to more general moral and

political theories). Analytical jurisprudence emphasizes the analysis of key

concepts, including “law,” “(legal) right,” “(legal) duty,” and “legal validity.”

Though analytical jurisprudence has been challenged by some in recent years (e.g.,

Leiter 2007), it remains the dominant approach to discussing the nature of law.

Analytical jurisprudence, an approach to theorizing about law, has sometimes been

confused with what the American legal realists (an influential group of theorists

prominent in the early decades of the 20th century) called “legal formalism”—a

narrow approach to how judges should decide cases. The American legal realists

saw Austin in particular, and analytical jurisprudence in general, as their opponents

in their critical and reform-minded efforts. In this, the realists were simply

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mistaken; unfortunately, it is a mistake that can still be found in some

contemporary legal commentators.

Second, Austin's work should be seen against a background where most

English judges and commentators saw common-law reasoning (the incremental

creation or modification of law through judicial resolution of particular disputes) as

supreme, as declaring existing law, as discovering the requirements of “Reason,”

as the immemorial wisdom of popular “custom.” Such (Anglo-American) theories

about common law reasoning fit with a larger tradition of theorizing about law

(which had strong roots in continental European thought—e.g., the historical

jurisprudence of theorists like Karl Friedrich von Savigny (1975)): the idea that

generally law did or should reflect community mores, “spirit,” or custom. In

general, one might look at many of the theorists prior to Austin as exemplifying an

approach that was more “community-oriented”—law as arising from societal

values or needs, or expressive of societal customs or morality. By contrast, Austin's

is one of the first, and one of the most distinctive, theories that views law as being

“imperium oriented”—viewing law as mostly the rules imposed from above from

certain authorized (pedigreed) sources. More “top-down” theories of law, like that

of Austin, better fit the more centralized governments (and the modern political

theories about government) of modern times.

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 Third, within analytical jurisprudence, Austin was the first systematic

exponent of a view of law known as “legal positivism.” Most of the important

theoretical work on law prior to Austin had treated jurisprudence as though it were

merely a branch of moral theory or political theory: asking how should the state

govern? (and when were governments legitimate?), and under what circumstances

did citizens have an obligation to obey the law? Austin specifically, and legal

positivism generally, offered a quite different approach to law: as an object of

“scientific” study, dominated neither by prescription nor by moral evaluation.

Subtle jurisprudential questions aside, Austin's efforts to treat law systematically

gained popularity in the late 19th century among English lawyers who wanted to

approach their profession, and their professional training, in a more serious and

rigorous manner.

Legal positivism asserts (or assumes) that it is both possible and valuable to

have a morally neutral descriptive (or “conceptual”—though this is not a term

Austin used) theory of law. (The main competitor to legal positivism, in Austin's

day as in our own, has been natural law theory.) Legal positivism does not deny

that moral and political criticism of legal systems is important, but insists that a

descriptive or conceptual approach to law is valuable, both on its own terms and as

a necessary prelude to criticism.

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 There were theorists prior to Austin who arguably offered views similar to

legal positivism or who at least foreshadowed legal positivism in some way.

Among these would be Thomas Hobbes, with his amoral view of laws as the

product of Leviathan (Hobbes 1996); David Hume, with his argument for

separating “is” and “ought” (which worked as a sharp criticism for some forms of

natural law theory, which purported to derive moral truths from statements about

human nature) (Hume 1739/2000); and Jeremy Bentham, with his attacks on

judicial lawmaking and on those, like Sir William Blackstone, who justified such

lawmaking with natural-law-like justifications (Bentham 1970, 1996).

Austin's famous formulation of what could be called the “dogma” of legal

positivism is as follows:

“The existence of law is one thing; its merit or demerit is another. Whether

it be or be not is one enquiry; whether it be or be not conformable to an assumed

standard, is a different enquiry. A law, which actually exists, is a law, though we

happen to dislike it, or though it vary from the text, by which we regulate our

approbation and disapprobation.”

Fourth, Austin's version of legal positivism, a “command theory of law”

(which will be detailed in the next section), was also, for a time, quite influential.

Austin's theory had similarities with views developed by Jeremy Bentham, whose

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theory could also be characterized as a “command theory.” Bentham, in a

posthumously published work, would define law as:

“…as assemblage of signs declarative of a volition conceived or adopted by

the sovereign in a state, concerning the conduct to be observed in a certain case by

a certain person or class of persons, who in the case in question are or are

supposed to be subject to his power: such volition trusting for its accomplishment

to the expectation of certain events which it is intended such declaration should

upon occasion be a means of bringing to pass, and the prospect of which it is

intended should act as a motive upon those whose conduct is in question.”

However, Austin's command theory was more influential than Bentham's,

because the latter's jurisprudential writings did not appear in an even-roughly

systematic form until well after Austin's work had already been published, with

Bentham's most systematic discussion only appearing posthumously, late in the

20th century.

Hans Kelsen

Hans Kelsen is considered one of the preeminent jurists of the 20th century.

He is most influential in Europe, where his notion of a Grundnorm or a

"presupposed" ultimate and basic legal norm, still retains some influence. It is a

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hypothetical norm on which all subsequent levels of a legal system such as

constitutional law and "simple" law are based. Kelsen's pure theory of

law described the law as being a set of social facts, which are normatively binding

too. Law's normativity, meaning that we must obey it, derives from a basic rule

which sits outside the law we can alter. It is a rule proscribing the validity of all

others.

Kelsen was a Professor at several universities in Europe, notably the

University of Vienna and the University of Cologne. In 1940, he moved to the

United States, giving the Oliver Wendell Holmes Lectures at Harvard Law

School in 1942 and becoming a full professor at the department of political

science at the University of California, Berkeley in 1945. During those years, he

increasingly dealt with issues of international law and international institutions

such as the United Nations.

H.L.A. Hart

In the Anglophone world, the pivotal writer was H.L.A. Hart, who argued

that the law should be understood as a system of social rules. Hart rejected Kelsen's

views that sanctions were essential to law and that a normative social phenomenon,

like law, can not be grounded in non-normative social facts. Hart revived analytical

jurisprudence as an important theoretical debate in the twentieth century through

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his book The Concept of Law. As the chair of jurisprudence at Oxford University,

Hart argued law is a 'system of rules'.

Rules, said Hart, are divided into primary rules (rules of conduct) and

secondary rules (rules addressed to officials to administer primary rules).

Secondary rules are divided into rules of adjudication (to resolve legal disputes),

rules of change (allowing laws to be varied) and the rule of recognition (allowing

laws to be identified as valid). The "rule of recognition", a customary practice of

the officials (especially judges) that identifies certain acts and decisions as sources

of law. A pivotal book on Hart was written by Neil MacCormick in 1981

(second edition due in 2007), which further refined and offered some important

criticisms that led MacCormick to develop his own theory (the best example of

which is his recently published Institutions of Law, 2007). Other important

critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz. In

recent years, debates about 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 it is associated with the view that the legal

validity of a norm can never depend on its moral correctness. A second school is

labeled inclusive legal positivism, and it is associated with the view that moral

considerations may determine the legal validity of a norm, but that it is not

necessary that this is the case.

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Joseph Raz

Some philosophers used to contend that positivism was the theory that there

is "no necessary connection" between law and morality; but influential

contemporary positivists, including Joseph Raz, John Gardner, and Leslie Green,

reject that view. As Raz points out, it is a necessary truth that there are vices that a

legal system cannot possibly have (for example, it cannot commit rape or murder).

Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis"

approach in The Authority of Law . Raz argues that law is authority, identifiable

purely through social sources, without reference to moral reasoning. Any

categorisation of rules beyond their role as authoritative is best left to sociology,

rather than jurisprudence.

Ronald Dworkin

Ronald Dworkin is a leading philosopher. In his book 'Law's Empire'

Dworkin attacked Hart and the positivists for their refusal to treat law as a moral

issue. Dworkin argues that law is an 'interpretive' concept, that requires judges 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 morally best justification for the institutional facts and

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practices that we intuitively regard as legal. It follows on 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 moral truths about the justifications for the practices in

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 justification for its practices.)

Interpretation, according to Dworkin's law as integrity theory, has two

dimensions. To count as an interpretation, the reading of a text must meet the

criterion of fit . But of those interpretations that fit, Dworkin maintains that the

correct interpretation is the one that puts the political practices of the community in

their best light, or makes of them the best that they can be . But many writers have

doubted whether there is a single best justification for the complex practices of

any given community, and others have doubted whether, even if there are, they

should be counted as part of the law of that community.

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THE FATHER OF ANALYTICAL JURISPRUDENCE

Jeremy Bentham

One of the earliest legal positivists was Jeremy Bentham. Bentham was an

early and staunch supporter of the utilitarian concept (along with Hume), an avid

prison reformer, advocate for democracy, and strongly atheist. Bentham's views

about law and jurisprudence were popularized by his student, John Austin.

Austin was the first chair of law at the new University of London from 1829.

Austin's utilitarian answer to "what is law?" was that law is "commands, backed by

threat of sanctions, from a sovereign, to whom people have a habit of obedience".

Contemporary legal positivists have long abandoned this view, and have criticised

its oversimplification, H.L.A. Hart particularly.

John Austin has been paid credit as the founder father of the English

Analytical School of Jurisprudence until in the year 1945 when the work of Jeremy

Bentham was got published by Prof Everett of University College of London.

Jeremy Bentham is the real founder father of the English School of

Jurisprudence but the real and full credit has never been paid to this Jurist because

of his indolence in not getting his works published in spite of his whole life has

been devoted to legal writing.

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 The actual credit of bringing this man in front of light of Jurisprudence must

really go to Prof. Everett who discovered one of the most important manuscripts

of Jeremy Bentham’s thoughts on jurisprudence at University College of London.

It was this work was brought to the public.

This works was fully deciphered and here the stress on the word, “decipher”

is given because it was the real work of Prof. Everett that authenticated the

manuscript. This was found out to be a Treatise, “The Limits of Jurisprudence

Defined” and the year of work was found out to be 1782.

The above work reveals how much was really did John Austin owe to

Jeremy Bentham and he is due to this unknown man of jurisprudence. Jeremy

Bentham works clearly reveal that he was really an analyst who did real work in

the mechanics of law. The many facets of Jeremy Bentham could be very well

understood by going through “Jeremy Bentham and the Law” edited initially by

G.W. Keeton and G. Schwarzenberger.

Bentham was really a realist in temper and in his approach to Jurisprudence

are two important aspects namely

1. The Analytical tool of law; and

2. The Utility tool of law.

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 John Austin took from Jeremy Bentham the analytical tool but rejected the

utility tool as a one that beyond the realm of Jurisprudence proper.

Thus his definition of law can found to be very wide enough to spread over

administrative and subordinate legislation. Hence, only his approach of analysis

made one jurist to state that his analysis of rights and duties has the embryo that

has been already seeded by him that once was thought to be the birth child of

twentieth century thinking as stated by W.G. Friedmann, 1948.

Thus, the utility tool of law that compelled him to put it in the “utility

crucible” every law to find out whether it comes out the test to give the greatest

happiness of the greatest number that was also a seed that was already germane to

the Roscoe Pound’s Sociological School of Jurisprudence. Thus, the analytical

and the utility tool with which he approached law made him to examine the

structure, the conceptions, and the functioning of the legal system whether it gives

greatest happiness of the greatest number. Hence, in every legal right if it embodies

a privilege he analyzed the utility tool for analysis of the privilege. Hence only

though he may be called as an individualist but yet he carried on with him the

collectivism that could be seen reflected in Prof. Everett.

Thus it made a fertile ground for him to analyze the every legal terms like

rights, power, duties, prohibition, obligations property liberty etc., to find out it has

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any practical utility and if not so to discard the same. Hence, only G.W. Paton a

jurist called him as Gospel who acted with missionary zeal to be the father or a

precursor to the codification of law and specifically to Civil Code.

Thus the many facets of law and specifically to two sides namely the

analytical and utility sides created the Pure Science of law or the Teleological

school and the Analytical school. Hence, in short he can be called as the original

founder father of English Jurisprudence.

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 Reference

1. Austin, John (1832/1995), The Province of Jurisprudence Determined, W. Rumble (ed.),

Cambridge: Cambridge University Press) (first published, 1832).
2. (1879), Lectures on Jurisprudence, or The Philosophy of Positive Law, two vols., R.
Campbell (ed.), 4th edition, rev., London: John Murray [Bristol: Thoemmes Press reprint,
2002].
3. Bentham, Jeremy (1789/1996), An Introduction to the Principles of Morals and
Legislation, (J. H. Burns & H.L.A. Hart, eds., Oxford: Oxford University Press).
4. (1970), Of Laws in General, (H.L.A. Hart, ed., London: Athlone Press).
5. Bix, Brian H. (2000), “On the Dividing Line Between Natural Law Theory and Legal
Positivism,”Notre Dame Law Review, vol. 75, pp. 1613–1624.
6. (2004), “Legal Positivism,” in The Blackwell Guide to the Philosophy of Law and Legal
Theory, (Martin P. Golding & William A. Edmundson, eds., Oxford: Blackwell), pp. 29–
49.
7. (2009), Jurisprudence: Theory and Context, (5th ed., London: Sweet & Maxwell).
8. Clark, E. C. (1883), Practical Jurisprudence: A Comment on Austin, (Cambridge:
Cambridge University Press).
9. Cliffe Leslie, T. E. (1864), “Modern Phases of Jurisprudence in England,” Westminster
Review, vol. 26, pp. 261–76 [UK ed.; US ed.: vol. 162, pp. 125–132].
10. Cosgrove, Richard A. (1996), Scholars of the Law: English Jurisprudence from
Blackstone to Hart, ch. 4 (New York: New York University Press).
11. Cotterrell, Roger (2003), The Politics of Jurisprudence: A Critical Introduction to Legal
Philosophy, 2nd ed. (London: LexisNexis).
12. Dewey, James (1894), “Austin's Theory of Sovereignty,” Political Science Quarterly,
vol. 9, pp. 31–52.
13. Duxbury, Neil (2005), “English Jurisprudence Between Austin and Hart, ”Virginia Law
Review, vol. 91, pp. 1–91.
14. (1994), The Concept of Law, 2nd edition (Oxford: Clarendon Press).
15. Hobbes, Thomas (1651/1996), Leviathan, (Richard Tuck, ed., Cambridge: Cambridge
University Press).
16. Hume, David (1739/2000), A Treatise of Human Nature (David Fate Norton & Mary J.
Norton, eds., Oxford: Oxford University Press).
17. Mill, John Stuart (1863), “Austin on Jurisprudence,” Edinburgh Review, vol. 118 (Oct.
1863), pp. 439–82 [UK ed.; US ed: vol. 118, pp. 222–244].

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