JURISPRUDENCE – I

“LEGAL PHILOSOPHY IN THE MIDDLE AGES”

FINAL DRAFT SUBMITTED IN PARTIAL FULFILLMENT OF THE DEGREE BA.

LL.B (Hons.) FOR THE ACADEMIC YEAR – 2020-21.

SUBMITTED BY

SAURABH KUMAR

ROLL NUMBER – 1971

SEMESTER – 5th

SUBMITTED TO

Dr. MANORANJAN KUMAR

FACULTY – JURISPRUDENE -I

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA- 800001.

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 DECLARATION BY THE CANDIDATE

I, SAURABH KUMAR, 3rd Year, 5th Semester student at Chanakya National Law University

hereby declare that the work reported in the B.B.A.LL.B (HONS.) project report entitled:

“LEGAL PHILOSOPHY IN MIDDLE AGES” submitted at Chanakya National Law University,

Patna is an authentic record of my work carried out under the supervision of faculty Dr.

Manoranjan Kumar. I have not submitted this work elsewhere for any other degree or diploma. I

am responsible for the contents of my Project Report.

Signature of the Student

Name – SAURABH KUMAR

Roll Number – 1971

Course – B.A. LL.B(Hons.)

Semester – Vth , Year – 3rd

Academic Year – 2020-21.

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Manoranjan Kumar, whose guidance helped me a lot with

structuring of my project. I take this opportunity to express my deep sense of gratitude for his

guidance and encouragement which sustained my efforts on all stages of this project.

I owe the present accomplishment of my project to my friends, who helped me immensely with

materials throughout the project and without whom I could not have completed it in the present

way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me

out at every stage of my project.

THANK YOU

NAME: SAURABH KUMAR

ROLL NO: 1971

COURSE: B.A., LL.B. (Hons.)

SEMESTER: 5th.
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RESEARCH METHODOLOGY

Method of Research

The researcher mainly rely on Doctrinal form of research and the research will confine its
research to the articles and other online sources
.

AIMS AND OBJECTIVES:

The aims of the researcher are:

Hypothesis:

The researcher has formulated the hypothesis, the validity of which will be checked in the
course of making of the project that:

Limitation:

The presented research is confined to a time limit of one month and this research contains
doctrinal works, which are limited to library and internet sources and empirical research.

Sources of Data:

Primary sources - Province of Jurisprudence Determined

Secondary sources - 1. Research Papers 2. Journals 3. Articles

Method of Writing:
The method of writing followed in the course of this research is primarily analytical.

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Mode of Citation:
The researcher has followed uniform mode of citation.

TABLE OF CONTENT

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 CHAPTER 1- INTRODUCTION

Philosophy as taken from the Greek words, Philos and Logos, means love of wisdom. It is the

study of the universe that seeks to know the truth and the rational explanation of anything.

Philosophy of law is that branch of philosophy which deals with law, that is, the wisdom of the

law. It studies the nature of law with particular reference to the origin and end of law, and all the

principles that govern its formulation. It is a part of practical philosophy. The object of

philosophy of law is the study of law in a universal sense. Law can also be studied as to its

particular points in which the object is Juridical Science or Jurisprudence. Parts of the system are

Public Law and Private Law. Public Law considers the Constitutional Law, Administrative Law,

Penal Law, Procedural Law, and International Law. Private Law deals with Civil law,

Commercial law and those that govern relationships among individuals or juridical entities.

Juridical Science can inform the people only of the law certain people in a given period.

Philosophy of law, however, transcends the competence of each individual juridical science.

Immanuel Kant has said that Juridical Science does not answer what is law. It answers the
question only of what is established by law of a certain system (quid juris). Philosophy of Law
considers the essential elements which are common to all juridical systems. It looks into the
universal concept of law. Giorgio del Vecchio gives a more comprehensive definition of
Philosophy of Law "as the course of study which defined law in its logical universality, seeks its
origins and general characteristics of its historical development and evaluates it according to the
ideal of justice drawn from pure reason"1.
Often times philosophy of law is interchangeably termed as jurisprudence. Philosophy of law is
one thing in the hands of lawyers and is quite different in the hands of philosophers. For the
lawyer

1
(Philosophy of Law, Translation by
Thomas Owen, The Catholic University of American Press,
Washington, D.C. 1953).

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the starting point is juridical institution, practice or ideal and the end sought is its establishment
on a rational basis. For the philosopher, the premise lies beyond the domain of law in the realm
of national existence or human nature from which the function of law in society is deduced and
harmonized with man's other activities.

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 Philosophy of Law and Jurisprudence and its functions

Philosophy of Law

Philosophy of law, also called jurisprudence, branch of philosophy that investigates the nature

of law, especially in its relation to human values, attitudes, practices, and political communities.
Traditionally, philosophy of law proceeds by articulating and defending propositions about law
that are general and abstract—i.e., that are true not of a specific legal system at a particular time
(e.g., the United Kingdom in 1900) but of all legal systems in the present or perhaps of all laws
at all times. Philosophy of law often aims to distinguish law from other systems of norms, such
as morality  or other social conventions. Views about the nature of law often depend upon, and
occasionally have contributed to, answers to some of the most-fundamental philosophical
questions—for example, regarding the foundations of morality, justice, and rights: the nature of
human action and intention the relations between social practices and values; the nature
of knowledge and truth and the justification of political rule. The philosophy of law is therefore
an integral part of philosophy more generally.

FUNCTIONS

The study of law in a universal sense constitutes the object of Philosophy of Law. Law is studied
as to particular points, in which case the object is Juridical Science in a narrower sense. What is
the proper law is the quest of philosophy law and jurisprudence. Often the questions asked are
"What is law?", "What is justice?", "What are the reasons why law must be obeyed?" Philosophy
of law is a quest of law which appeals to reason to obtain justice. Resort to force usually signifies
the failure of the law to persuade people to whom it is addressed. What the king, emperor or the
prince orders was the law and everyone obeyed it out of fear of punishment. Force was usually
resorted for its enforcement. One function of philosophy therefore is to formulate law that is
reasonably acceptable to the people to whom it is addressed. Philosophy of law therefore is
opposed to tyranny. The practical function of philosophy is that it teaches and prepares for the
positive recognition of the juridical ideal. Some examples are the formulation of guarantees of
the freedom of the individual under a political constitution established by English and American
States, the progress of modern International Law as influenced by the writings of Alberico

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Gentiles and Hugo Grotius, the humanitarian development of penal law as influenced by Becaria,
and, more recently the universal recognition of human rights.

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 Philosophy of Law of Middle Ages

Every branch of knowledge is better understood by knowing its history. History of Philosophy is
a means of study and research which helps in the acquisition of regarding knowledge
philosophies advocated by different philosophers in the past. "It is a study , of how
philosophers ,meditated upon the problems of law and justice. Philosophy of Law in the past has
been intermingled with Theology, Morals, and Politics. The religious books in Asia are treated
together with morals, cosmogony and justice. Law was treated in a dogmatic spirit conceived as
a command of the divinity and as superior to human power, consequently, not as 'an object of
science but only of faith. The Hebrews, the Chinese, the Indians and the Arabs made contribution
to philosophical studies with regard to morals.

Influence of Christianity

At the beginning, Christian Doctrine was significant only on moral principles and not on
juridical or political matters. Christianity was considered only in reforming consciences of men.
But men later understood Christianity as an advocate of liberty, equality and, the unity of the
human family. The gospel of the brotherhood of men through Divine law became a challenge to
the established political order. Christ's teaching in a spiritual sense said: "I have come not to be
served but to serve. (Mk. 10:45) My Kingdom is not of this world. (John 18:36)" Render to
Caesar and things that are Caesar's and to God, the things that are God's. Taxes are to be paid to
the State not to the Church. The influence of Chris Wmity later became more profound upon
politics and jurisprudence. Theology taught that Law is founded upon the will and wisdom of
God. The power of the State is derived from God. This will is known through Revelation.
Modifying the Greek and Latin philosophies that the individual's supreme mission is to be a good
citizens of the State, Christianity said that the good goal of the individual is not only civil life but
eternal happiness which can be obtained through submission to the Divine will. The Church
asserts itself as an autonomous authority above the State. The State is concerned only to earthly
'things while the Church, with those that are eternal.

In the Patristic period starting from Charlemagne (724-814), several Christian writers, after the
Apostles, arose such, as Tertullian and Ambross. The most important writer during this period

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was St. Augustine (354-430). As bishop of Hippo, St. Augustine wrote the work De Civitae Dei.
While the Greeks considered the state as supreme end of men. St. Augustine extols above all the
Church and the communion of souls in God. The state has the purpose of maintaining the
temporal peace but is always subordinate to the heavenly city. The Church has its purpose the
procurement of eternal peace.

The Renaissance

The Renaissance, a rebirth that started in the 14th century, came about to overcome the long
period of excessive dogmatism. In Renaissance, autonomy and freedom of investigation were
awakened. The discovery of the New World and the invention of printing press permitted the
propagation of new ideas. The Religious Reformation which took place in the Anglo-Saxon
countries resulted in the withdrawal of religious leaders from the authority of the Church. The
liberal writers advocated popular rights and law was no longer studied on the basis of Theology.
Hugo Grotius (1583-1648) who wrote the famous treatise of De Jure Belli da Pacis. (The Law of
War and Peace) is considered the Father of Modern International Law. He intended to determine
the juridical relations between States whether in peace or in war. Acceptirtg Aristotle's theory of
being good in political society, law is something that is presented by reason not by revelation.
Natural, moral law world exists even if there is no God.

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 Rome And The Middle Ages

Although many aspects of ancient Greek culture had continuing influence throughout the Roman
Empire from the 1st century BCE onward, law was not one of them. The Romans established
new legal forms and institutions as well as the first legal professionals and administrators.
Roman jurists developed the first form of what would later be called “legal science,” and a new
genre of legal writing was invented in service of this discipline, in which jurists would collect
and organize Roman law according to complex taxonomies. This practice culminated in the
Digest (Digesta), assembled by the Byzantine emperor Justinian I (reigned 527–565 CE), a work
that eventually served as the basis of many modern legal systems of western Europe. But
whereas Greek law faded in influence, the Greek legacy in the philosophy of law was to endure
for several centuries, extending through the Middle Ages, during which there were many
refinements and extensions of Greek themes and ideas, particularly within the Christian tradition.

The Roman jurist and philosopher Cicero (106–43 BCE) articulated the first, and some would
say definitive, conception of what is called “natural law.” Although Cicero was a legal
practitioner and was versed in the positive (human-enacted) law of the Roman state, he sought to
situate it in relation to what he considered objective moral truths, which he also called “laws”
(thus the tendency of many writers up to the present day to refer to timeless moral truths as
“natural law”). In his work De republica (On the Republic), he famously held, echoing
Sophocles, that:

“true law is right reason in agreement with nature…to curtail this law is impious, to amend it
illicit, to repeal it impossible…nor will it be one law at Rome and a different one at Athens, but
one and the same Law, eternal and unchangeable”

This more-capacious conception of law set rather strict moral conditions that putative positive
(human-created) law must meet in order to qualify as real law: “Those who formulated wicked
and unjust statutes for nations, thereby breaking their promises and agreements, put into effect
anything but ‘laws.’ ”

Cicero’s idea that there are moral criteria for determining the validity of positive law gained
currency in the centuries that followed. St. Augustine of Hippo’s (354–430 CE) later succinct

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claim that “an unjust law does not seem to be a law at all” served for centuries as a kind of
slogan of the natural-law tradition, despite the assertions of some critics that it was obscure or
contradictory.

Natural-law theory was given its first systematic treatment by the great Christian philosopher St.
Thomas Aquinas (1224/25–74). Aquinas generally worked within the conceptual framework and
basic principles of Aristotle’s philosophy of nature, value, and politics but often extended and
modified them in novel ways; this is especially so in the case of his philosophy of law. Aquinas
defined law in part as an “ordinance of reason”—that is, a prescription that is both produced (by
lawmakers) and responded to (by subjects) through an exercise of the distinctive human capacity
of reason. He claimed, in terms clearer than in previous theories, that law had by nature a
distinctive point or purpose. In the most-abstract sense, the purpose of law is to serve the
common good of a political community. More concretely, law is a promulgated plan of
coordination whereby a society can realize goods (both tangible and intangible) that cannot be
achieved by other means.

Aquinas’s central natural-law thesis is that valid positive law is necessarily derived from
objective moral principles (or moral truths). This derivation can occur in two ways. First, law can
be derived by a kind of immediate deduction from moral principles, such that there is a direct
correspondence in content between a moral and a legal rule. For example, from the moral
principle that murder is wrong, the legal prohibition of homicide may be formulated and enacted.
Second, law can be derived from morality by a more-indirect process, which Aquinas called (in
Latin) determinatio—determination or specification of how a general moral principle applies in
specific circumstances to facilitate human coordination. Much of positive law, he claimed, was
derived from morality in this second way. A standard modern example is traffic laws requiring
that people drive on one side of the road or the other. Of course, morality does not require
specifically that humans drive on the right or on the left, but once a determination by a legitimate
political authority has been made, a law that, for instance, requires driving on the left will be
binding on citizens in virtue of its, albeit indirect, connection to general moral principles—e.g.,
principles that require persons not to expose others to undue risk of serious harm or that require
the facilitation of commerce to meet basic needs, and so on. Aquinas held that if positive law is
not derived from valid moral principles in either of these two ways, then, to recall Augustine’s

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slogan, such laws are “unjust” and fail to be “law.” As a consequence, they fail to have any
binding authority such that citizens have an obligation to obey them. Aquinas’s account of the
relation between law and morality is made more complex by his account of who is most suitable
to serve as ruler and as legislator. The concepts of an authoritative lawmaker and of morally
binding laws made by that person are correlates. The point of law is to serve the common good,
and if a candidate legislator is able to do that effectively by exercising political rule, then
Aquinas goes so far as to say that such a person has an obligation to govern. Legitimate political
authorities are those who are motivated by “the care of the community,” and any law created
from other motivations is a distinct form of injustice that can also invalidate positive law.

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