Editing Jurisprudence (section)

=={{Anchor|Analytic jurisprudence}}Analytic jurisprudence==
{{Main|Analytic jurisprudence}}Unlike [[experimental jurisprudence]], which investigates the content of legal concepts using the methods of [[social science]],<ref name="Sommers 394–395">{{Cite journal |last=Sommers |first=Roseanna |date=2021-07-23 |title=Experimental jurisprudence |url=https://www.science.org/doi/10.1126/science.abf0711 |journal=Science |language=en |volume=373 |issue=6553 |pages=394–395 |bibcode=2021Sci...373..394S |doi=10.1126/science.abf0711 |issn=0036-8075 |pmid=34437107 |s2cid=236179587}}</ref> analytical jurisprudence seeks to provide a general account of the nature of law through the tools of [[Philosophical analysis|conceptual analysis]]. The account is general in the sense of targeting universal features of law that hold at all times and places.<ref name=":02" />

Analytic, or ''clarificatory'', jurisprudence takes a neutral point of view and uses descriptive language when referring to various 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.<ref name="Hart_1958">See H L A Hart, 'Positivism and the Separation of Law and Morals' (1958) 71 ''Harv. L. Rev.'' 593</ref> [[David Hume]] argued, in ''[[A Treatise of Human Nature]]'',<ref>David Hume, ''A Treatise of Human Nature'' (1739) [http://etext.library.adelaide.edu.au/h/hume/david/h92t/ Etext] {{webarchive|url=https://web.archive.org/web/20060820100015/http://etext.library.adelaide.edu.au/h/hume/david/h92t/|date=20 August 2006}}</ref> that people invariably slip from describing what the world ''is'' to asserting that we therefore ''ought'' to follow 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 from normative and evaluative questions of what ''ought'' to be done.

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?" Legal positivism is the dominant theory, although there is a growing number of critics who offer their own interpretations.

===Historical school===
Historical jurisprudence came to prominence during the debate on the proposed [[Codification (law)|codification]] of [[Law of Germany|German law]]. In his book ''On the Vocation of Our Age for Legislation and Jurisprudence'',<ref>Friedrich Carl von Savigny, ''On the Vocation of Our Age for Legislation and Jurisprudence'' (Abraham A. Hayward trans., 1831)</ref> [[Friedrich Carl von Savigny]] argued that [[Germany]] did not have a legal language that would support codification because the traditions, customs, and beliefs of the German people did not include a belief in a code. Historicists believe that law originates with society.

===Sociological jurisprudence===
{{Main|Sociology of Law}}

An effort systematically to inform jurisprudence from sociological insights developed from the beginning of the twentieth century, as sociology began to establish itself as a distinct [[social science]], especially in the [[United States]] and in [[continental Europe]]. In Germany, [[Austria]] and [[France]], the work of the "free law" theorists (e.g. Ernst Fuchs, [[Hermann Kantorowicz]], [[Eugen Ehrlich]] and [[François Gény]]) encouraged the use of sociological insights in the development of legal and juristic theory. The most internationally influential advocacy for a "sociological jurisprudence" occurred in the United States, where, throughout the first half of the twentieth century, [[Roscoe Pound]], for many years the Dean of [[Harvard Law School]], used this term to characterise his [[Philosophy of law|legal philosophy]]. In the United States, many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence. In Australia, [[Julius Stone]] strongly defended and developed Pound's ideas.

In the 1930s, a significant split between the sociological jurists and the American legal realists emerged. In the second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest. Increasingly, its contemporary focus is on providing theoretical resources for jurists to aid their understanding of new types of regulation (for example, the diverse kinds of developing transnational law) and the increasingly important interrelations of law and culture, especially in multicultural Western societies.{{efn|For full discussion see Cotterrell 2018}} As an approach to jurisprudence, sociological jurisprudence uses the resources of social science to serve value-oriented juristic purposes. As such, it should be distinguished from sociology of law which as a field of social science has no necessary commitment to juristic aims.

===Legal positivism===
{{Main|Legal positivism}}

Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality.<ref>{{Cite journal|last=Green|first=Leslie|date=Spring 2018|title=Legal Positivism|url=https://plato.stanford.edu/archives/spr2018/entries/legal-positivism/|journal=The Stanford Encyclopedia of Philosophy |url-status=live |archive-url=https://web.archive.org/web/20231204203110/https://plato.stanford.edu/archives/spr2018/entries/legal-positivism/ |archive-date= Dec 4, 2023 }}</ref> Within legal positivism, theorists agree that law's content is a product of social facts, but theorists disagree whether law's validity can be explained by incorporating moral values.{{sfn|Murphy|2006|pp=132–135}} Legal positivists who argue against the incorporation of moral values to explain law's validity are labeled exclusive (or hard) legal positivists. [[Joseph Raz|Joseph Raz's]] legal positivism is an example of exclusive legal positivism. Legal positivists who argue that law's validity can be explained by incorporating moral values are labeled inclusive (or soft) legal positivists. The legal positivist theories of [[H.&nbsp;L.&nbsp;A. Hart]] and [[Jules Coleman]] are examples of inclusive legal positivism.<ref>{{Cite web|url=https://www.iep.utm.edu/legalpos/|title=Legal Positivism|last=Himma|first=Kenneth Einar|website=The Internet Encyclopedia of Philosophy|access-date=31 May 2019 }}</ref>

Legal positivism has traditionally been associated with three doctrines: the pedigree thesis, the separability thesis, and the discretion thesis.<ref name=":1">{{Cite web |last=Himma |first=Kenneth Einar |date=2019-05-15 |title=Philosophy of Law |url=https://www.iep.utm.edu/law-phil/ |website=The Internet Encyclopedia of Philosophy}}</ref> The pedigree thesis says that the right way to determine whether a directive is law is to look at the directive's source. The thesis claims that it is the fact that the directive was issued by the proper official within a legitimate government, for example, that determines the directive's legal validity—not the directive's moral or practical merits. The separability thesis states that law is conceptually distinct from morality.<ref name=":1" /> While law might contain morality, the separability thesis states that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so."<ref>{{Cite book |last=Hart |first=H. L. A. |title=The Concept of Law, Second Edition |publisher=Oxford University Press |year=1994 |isbn=978-0199644704 |pages=181–182}}</ref> Legal positivists disagree about the extent of the separability thesis. Exclusive legal positivists, notably [[Joseph Raz]], go further than the standard thesis and deny that it is possible for morality to be a part of law at all. The discretion thesis states that judges create new law when they are given discretion to adjudicate cases where existing law underdetermines the result.

====Thomas Hobbes====
{{Main|Thomas Hobbes}}

Hobbes was a [[social contract]]arian<ref>{{Cite book|title=Hobbes |url=https://books.google.com/books?id=lCTK2O0aKoYC&pg=PA54 |last=Martinich|first=A.P.|publisher=Routledge|year=2013|isbn=9781135180799|location=New York|pages=54}}</ref> and believed that the law had peoples' tacit consent. He believed that society was formed from a [[state of nature]] to protect people from the state of war that would exist otherwise. In [[Leviathan (Hobbes book)|''Leviathan'']], Hobbes argues that without an ordered society life would be "solitary, poor, nasty, brutish and short."<ref>{{Cite book|chapter-url=https://books.google.com/books?id=7Sc4p5-ghJcC&q=leviathan+hackett|title=Leviathan: With selected variants from the Latin edition of 1668|last=Hobbes|first=Thomas|publisher=Hackett Publishing|year=1668|isbn=9781603844857|editor-last=Curley|editor-first=Edwin|pages=76|language=en|chapter=Of the Natural Condition of Mankind}}</ref> It is commonly said that Hobbes's views on human nature were influenced by his times. The [[English Civil War]] and the Cromwellian dictatorship had taken place; and, in reacting to that, Hobbes felt that absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.

====Bentham and Austin====
[[File:Jeremy Bentham by Henry William Pickersgill detail.jpg|thumb|right|[[Jeremy Bentham|Bentham's]] utilitarian theories remained dominant in law until the twentieth century.]]
{{Main|Jeremy Bentham|John Austin (legal philosopher)}}

John Austin and Jeremy Bentham were early legal positivists who sought to provide a descriptive account of law that describes the law as it is. Austin explained the descriptive focus for legal positivism by saying, "The existence of law is one thing; its merit and demerit 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."<ref>{{Cite book|title=The province of jurisprudence determined; and, the uses of the study of jurisprudence|last=Austin|first=John|publisher=Hackett Pub|year=1832|isbn=0872204332|location=Indianapolis, IN|pages=184|oclc=39539515}}</ref> For Austin and Bentham, a society is governed by a sovereign who has [[de facto]] authority. Through the sovereign's authority come laws, which for Austin and Bentham are commands backed by sanctions for non-compliance. Along with Hume, Bentham was an early and staunch supporter of the utilitarian concept, and was an avid prison reformer, advocate for [[democracy]], and firm [[atheist]]. Bentham's views about law and jurisprudence were popularized by his student [[John Austin (legal philosopher)|John Austin]]. Austin was the first chair of law at the new [[University of London]], from 1829. Austin's [[utilitarianism|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".<ref>John Austin, ''The Providence of Jurisprudence Determined'' (1831)</ref> H.&nbsp;L.&nbsp;A. Hart criticized Austin and Bentham's early legal positivism because the command theory failed to account for individual's compliance with the law.

====Hans Kelsen====
{{Main|Hans Kelsen}}

Hans Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in [[common law]] countries. His [[Pure Theory of Law]] describes law as "binding norms", while at the same time refusing to evaluate those norms. That is, "legal science" is to be separated from "legal politics". Central to the Pure Theory of Law is the notion of a [[Basic norm|{{gloss|basic norm}}]] ({{lang|de|Grundnorm}})—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a [[legal system]], beginning with [[constitutional law]], are understood to derive their authority or the extent to which they are binding. Kelsen contends that the extent to which legal norms are binding, their specifically "legal" character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation.

====H.&nbsp;L.&nbsp;A. Hart====
{{Main|H. L. A. Hart}}

In the English-speaking world, the most influential legal positivist of the twentieth century was [[H.&nbsp;L.&nbsp;A. Hart]], professor of jurisprudence at [[Oxford University]]. Hart argued that the law should be understood as a system of social rules. In ''[[The Concept of Law]]'', Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts.

Hart claimed that law is the union of primary rules and secondary rules.{{sfn|Hart|2012|pp=79–99}} Primary rules require individuals to act or not act in certain ways and create duties for the governed to obey.
Secondary rules are rules that confer authority to create new primary rules or modify existing ones.{{sfn|Hart|2012|p=81}} Secondary rules are divided into rules of adjudication (how to resolve legal disputes), rules of change (how laws are amended), and the rule of recognition (how laws are identified as valid). The validity of a legal system comes from the "rule of recognition", which is a customary practice of officials (especially barristers and judges) who identify certain acts and decisions as sources of law. In 1981, Neil MacCormick<ref>{{Cite web|url=http://www.law.ed.ac.uk/staff/neilmaccormick_51.aspx|title=The University of Edinburgh|archive-url=https://web.archive.org/web/20060601221401/http://www.law.ed.ac.uk/staff/neilmaccormick_51.aspx|archive-date=1 June 2006|url-status=dead|access-date=24 May 2006}}</ref> wrote a pivotal book on Hart (second edition published in 2008), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his ''Institutions of Law'', 2007). Other important critiques include those of [[Ronald Dworkin]], John Finnis, and [[Joseph Raz]].

In recent years, debates on 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 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", a major proponent of which is Wil Waluchow, and is associated with the view that moral considerations {{em|may}}, but do not necessarily, determine the legal validity of a norm.

====Joseph Raz====
{{Main|Joseph Raz}}

Joseph Raz's theory of legal positivism argues against the incorporation of moral values to explain law's validity. In Raz's 1979 book ''The Authority of Law'', he criticised what he called the "weak social thesis" to explain law.<ref>{{Cite book|url=https://books.google.com/books?id=ObSH22v3984C&q=sources+thesis|title=The Authority of Law: Essays on Law and Morality|last=Raz|first=Joseph|publisher=Oxford University Press|year=1979|isbn=9780199573561|location=Oxford|pages=45}}</ref> He formulates the weak social thesis as "(a) Sometimes the identification of some laws turn on moral arguments, but also with, (b) In all legal systems the identification of some law turns on moral argument."<ref name=":0">{{Cite book|url=https://books.google.com/books?id=ObSH22v3984C&q=sources+thesis|title=The Authority of Law: Essays on Law and Morality|last=Raz|first=Joseph|publisher=Oxford University Press|year=1979|isbn=9780199573561|location=Oxford|pages=47}}</ref> Raz argues that law's authority is identifiable purely through social sources, without reference to moral reasoning.<ref name=":0" /> This view he calls "the sources thesis".<ref>{{Cite book|url=https://books.google.com/books?id=ObSH22v3984C&q=sources+thesis|title=The Authority of Law: Essays on Law and Morality|last=Raz|first=Joseph|publisher=Oxford University Press|year=1979|isbn=9780199573561|location=Oxford|pages=47–48|language=en}}</ref> Raz suggests that any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence.<ref>ch. 2, Joseph Raz, ''The Authority of Law'' (1979)</ref> Some philosophers used to contend that positivism was the theory that held that there was "no necessary connection" between law and morality; but influential contemporary positivists—including Joseph Raz, [[John Gardner (legal philosopher)|John Gardner]], and [[Leslie Green (philosopher)|Leslie Green]]—reject that view. Raz claims it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder).

===Legal realism===
{{Main|Legal realism}}
[[File:Oliver Wendell Holmes Jr circa 1930-edit.jpg|right|thumb|[[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]] was a self-styled legal realist.]]

Legal realism is the view that a theory of law should be descriptive and account for the reasons why judges decide cases as they do.<ref>{{Cite journal|last=Leiter|first=Brian|date=December 1997|title=Rethinking Legal Realism: Toward a Naturalized Jurisprudence|url=https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2562&context=journal_articles|journal=Texas Law Review|volume=76|pages=268}}</ref> Legal realism had some affinities with the sociology of law and sociological jurisprudence. The essential tenet of legal realism is that all law is made by humans and thus should account for reasons besides legal rules that led to a legal decision.

There are two separate schools of legal realism: American legal realism and Scandinavian legal realism. American legal realism grew out of the writings of [[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]]. At the start of Holmes's [[The Common Law (Holmes)|''The Common Law'']], he claims that "[t]he life of the law has not been logic: it has been experience".<ref>{{Cite book|url=https://heinonline.org/HOL/P?h=hein.beal/cllwh0001&i=17|title=The Common Law|last=Holmes|first=O.W. Jr.|publisher=Little, Brown, and Co.|year=1881|location=Boston|pages=1}}</ref> This view was a reaction to [[legal formalism]] that was popular the time due to the [[Christopher Columbus Langdell]].<ref>{{Cite book|url=https://heinonline.org/HOL/P?h=hein.beal/sclcl0001&i=4|title=A Selection of Cases on the Law of Contracts|last=Langdell|first=C.C.|publisher=Little, Brown, and Co.|year=1871|location=Boston|pages=vi}}</ref> Holmes's writings on jurisprudence also laid the foundations for the predictive theory of law. In his article "The Path of the Law", Holmes argues that "the object of [legal] study...is prediction, the prediction of the incidence of the public force through the instrumentality of the courts."<ref>{{Cite journal|last=Holmes|first=O.W.|date=1897|title=The Path of the Law|journal=Harvard Law Review|volume=10|issue=8|pages=457–478|doi=10.2307/1322028|jstor=1322028}}</ref>

For the American legal realists of the early twentieth century, legal realism sought to describe the way judges decide cases. For legal realists such as [[Jerome Frank]], judges start with the facts before them and then move to legal principles. Before legal realism, theories of jurisprudence turned this method around where judges were thought to begin with legal principles and then look to facts.

It has become common today to identify Justice Oliver Wendell Holmes Jr., as the main precursor of American Legal Realism (other influences include [[Roscoe Pound]], [[Karl N. Llewellyn|Karl Llewellyn]], and Justice [[Benjamin N. Cardozo|Benjamin Cardozo]]). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of judges who are able to shape the outcome of cases based on their personal values or policy choices.<ref>"Jurisprudence". West's Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle
Phelps. Detroit: Thomson/Gale, 2005.
</ref>

The Scandinavian school of legal realism argued that law can be explained through the empirical methods used by social scientists.<ref>{{Cite book|url=https://books.google.com/books?id=xZVw0EcmYh8C&q=thinking+like+a+lawyer|title=Thinking Like a Lawyer|last=Schauer|first=Frederick|publisher=Harvard University Press|year=2009|isbn=9780674032705|location=Cambridge|pages=124 n.1|language=en}}</ref> Prominent Scandinavian legal realists are [[Alf Ross]], [[Axel Hägerström]], and [[Karl Olivecrona]]. Scandinavian legal realists also took a naturalist approach to law.<ref>{{Cite book|title=Law as Fact|last=Olivecrona|first=Karl|publisher=Stevens & Sons|year=1971|isbn=978-0420432506|location=London|pages=vii}}</ref>

Despite its decline in popularity, legal realism continues to influence a wide spectrum of jurisprudential schools today, including [[critical legal studies]], [[feminist legal theory]], [[critical race theory]], [[sociology of law]], and [[law and economics]].{{sfn|Grechenig|Gelter|2008|pp=295–360}}

===Critical legal studies===
[[Critical legal studies]] are a new theory of jurisprudence 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 (legal philosopher)|Duncan Kennedy]], [[Karl Klare]], [[Mark Tushnet]], and [[Roberto Unger]] have now found influence in many law schools.<ref>Hutchinson, Allan C., and Patrick J. Monahan. “Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought.” ''Stanford Law Review'', vol. 36, no. 1/2, 1984, pp. 200-201. [https://doi.org/10.2307/1228683 JSTOR website] Retrieved 5 Mar. 2025.</ref> 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".<ref name="Hunt86">Alan Hunt, "The Theory of Critical Legal Studies", Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. See [https://web.archive.org/web/20151208023200/http://ojls.oxfordjournals.org/content/6/1/1.extract]. DOI, 10.1093/ojls/6.1.1.</ref> 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.<ref>Moore, "Critical Legal Studies", ''Cambridge Dictionary of Philosophy''</ref> [[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 [[legal formalism|formalism]]. He writes that it was "consequently also by rejecting judges as the chief [[Interlocutor (linguistics)|addressees]] of legal analysis, and refusing to take the question—how should judges decide cases?—as the defining problem in jurisprudence."<ref>{{cite book |last=Unger |first=Roberto |date=2015  |title=The Critical Legal Studies Movement: Another Time, A Greater Task |url=https://books.google.com/books/about/The_Critical_Legal_Studies_Movement.html?id=cEGjBgAAQBAJ |location=London, England |publisher=Verso Books |page=13 |isbn=1781683417}}</ref> 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.<ref>Unger. (2015). pp. 1-8.</ref>

===Constitutionalism===
{{Excerpt|Constitutionalism|paragraphs=1|only=paragraphs}}

===Legal interpretivism===
{{Main|Interpretivism (legal)}}

American legal philosopher [[Ronald Dworkin]]'s legal theory attacks legal positivists that separate law's content from morality.<ref>Brooks, "Review of Dworkin and His Critics with Replies by Dworkin", ''Modern Law Review'', vol. 69 no. 6</ref> In his book ''[[Law's Empire]]'',<ref>Ronald Dworkin, ''Law's Empire'' (1986) [[Harvard University Press]]</ref> 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 {{em|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 practices of the community in their best light, or makes them "the best that they can be". But many writers have doubted whether there {{em|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===
{{Main|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.<ref>{{cite journal |last1=Wexler |first1=David B |author-link1=David B. Wexler |last2=Perlin |first2=Michael L |author-link2=Michael L. Perlin |last3=Vols |first3=Michel |display-authors=etal |title=Editorial: Current Issues in Therapeutic Jurisprudence |date=December 2016 |volume=16 |issue=3 |pages=1–3 |journal=[[Queensland University of Technology|QUT Law Review]] |doi=10.5204/qutlr.v16i3.692 |issn=2201-7275 |doi-access=free }}</ref>