Philosophy of law is a branch of philosophy and
jurisprudence that seeks to answer basic questions
about law and legal systems, such as "What is
law?", "What are the criteria for legal validity?",
"What is the relationship between law and
morality?", and many other similar questions.
Analytic jurisprudence
"The principal objective of analytical jurisprudence
has traditionally been to provide an account of
what distinguishes law as a system of norms from
other systems of norms, such as ethical norms."[1]
The question that has received the most attention
from philosophers of law is What is law? Several
schools of thought have provided rival answers to
this question, the most influential of which are:
 Natural law theory asserts that there are laws
that are immanent in nature, to which enacted
laws should correspond as closely as possible.
This view is frequently summarized by the
maxim: an unjust law is not a true law, 'unjust'
being defined as contrary to natural law.
 Legal positivism is the view that the law is
defined by the social rules or practices that
identify certain norms as laws. One of the early
positivists was in the early nineteenth century
John Austin, who was influenced by the
writings of Jeremy Bentham. Austin held that
the law is the command of the sovereign
backed by the threat of punishment.
Contemporary legal positivism has long
abandoned this view. In the twentieth century,
two positivists had a profound influence on the
philosophy of law. On the continent, Hans
Kelsen was the most influential, where his
notion of a "grundnorm" ultimate and basic
legal norm, still retains some influence. 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, such as law, cannot be grounded
in non-normative social facts. According to Hart,
law is essentially a system of primary social
rules that guide the conduct of law's subjects,
and secondary rules that regulate how the
primary rules may be changed, how disputes
about them are to be adjudicated and,
especially, how the primary rules are to be
identified. Hart argues that this last function is
performed by a "rule of recognition", a
customary practice of the officials (especially
judges) that identifies certain acts and decisions
as sources of law. Hart's theory, although
widely admired, has also been criticized by a
variety of late twentieth century philosophers
of law, including his former student, Ronald
Dworkin, John Rawls, Joseph Raz, and John
Finnis.
 Legal realism was a view popular with some
Scandinavian and American writers.[who?][when?]
Skeptical in tone, it holds that the law should be
understood as being determined by the actual
practices of courts, law offices, and police
stations, rather than as the rules and doctrines
set forth in statutes or learned treatises. It has
some affinities with the sociology of law.
 Legal interpretivism is the view, espoused
mainly by Ronald Dworkin in his text titled Law's
Empire, that law is not entirely based on social
facts, but includes the morally best justification
for the institutional facts and 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 of its
practices.)
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. 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). In fact, it is even
unclear whether Hart himself held this view in its
broad form, for he insisted both that to be a legal
system rules must have a certain minimum content,
which content overlaps with moral concerns, and
that it must attain at least some degree of justice in
the administration of laws.
A second important debate in recent years
concerns interpretivism, a view that is associated
mainly with Ronald Dworkin. An interpretivist
theory of law holds that legal rights and duties are
determined by the best interpretation of the
political practices of a particular community.
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.
Normative jurisprudence
In addition to analytic jurisprudence, legal
philosophy is also concerned with normative
theories of law. "Normative jurisprudence involves
normative, evaluative, and otherwise prescriptive
questions about the law."[2] For example, What is
the goal or purpose of law? What moral or political
theories provide a foundation for the law? Three
approaches have been influential in contemporary
moral and political philosophy, and these
approaches are reflected in normative theories of
law:
 Utilitarianism is the view that the laws should
be crafted so as to produce the best
consequences. Historically, utilitarian thinking
about law is associated with the philosopher
Jeremy Bentham. In contemporary legal theory,
the utilitarian approach is frequently
championed by scholars who work in the law
and economics tradition.
 Deontology is the view that the laws should
protect individual autonomy, liberty, or rights.
The philosopher Immanuel Kant formulated a
deontological theory of law (but not the only
one possible). A contemporary deontological
approach can be found in the work of the legal
philosopher Ronald Dworkin.
 Aretaic moral theories such as contemporary
virtue ethics emphasize the role of character in
morality. Virtue jurisprudence is the view that
the laws should promote the development of
virtuous characters by citizens. Historically, this
approach is associated with Aristotle.
Contemporary virtue jurisprudence is inspired
by philosophical work on virtue ethics.
There are many other normative approaches to the
philosophy of law, including critical legal studies
and libertarian theories of law.
Philosophical approaches to legal problems
Philosophers of law are also concerned with a
variety of philosophical problems that arise in
particular legal subjects, such as constitutional law,
Contract law, Criminal law, and Tort law. Thus,
philosophy of law addresses such diverse topics as
theories of contract law, theories of criminal
punishment, theories of tort liability, and the
question of whether judicial review is justified.
PHILOSOPHY OF LAW
INTRODUCTION
Nomenclatural Distinction
At the outset, a cursory distinction must be made
between “Philosophy of Law” and “Legal
Philosophy.”
1. While they both deal with Philosophy and Law,
their field of emphasis is different. Philosophy
of law is a branch of philosophy, and therefore
deals primarily with philosophy. Legal
Philosophy is a discipline in law, and therefore
deals primarily with law. In other words, their
operational base is different – Philosophy of law
is within philosophy, whereas Legal Philosophy
is within the legal academy.[1]
2. Consequently, because of the difference in their
field of emphasis, it seems that philosophy of
law is broader than legal philosophy. Philosophy
is an all-encompassing subject that may have as
its subject matter anything under the sun; thus
the so-called philosophy of X, and philosophy of
“law” is just one of the many possible subjects.
The philosophical approach is highly abstract
and seeks for the ultimate “whys” and
“wherefores.” Legal theory deals specifically
with how institutions and legal processes are
legitimized or justified.
3. The distinction, however, is never clear. They
overlap in terms of subject and themes. And in
pursuit of a more academic discussion in a post
graduate course, it is becomes unimportant to
distinguish philosophy of law and legal
philosophy.
Schools of Thought
There are two major contending schools of thought
in philosophy of law: Natural Law Theory and Legal
Positivism.
1. From the time of the ancient Greeks until the
seventeenth century, natural law was the only
legal theory. In brief, natural law understands
law as an “ordinance of reason” and “intimately
connected to morality;” hence law must be
“reasonable” and “just” otherwise it is not law.
2. Legal positivism came after, generally
contending that the law is only a kind of “social
technology” which does not necessarily have a
moral character. Under this theory, what the
law does is regulate the behavior of its subjects
and resolves conflict between them.[2] A law
exists not for its moral or rational
underpinnings but because of the social
mechanisms that promulgate it.
3. Roughly speaking, the two schools of thought
differ in their understanding of philosophy of
law, in that natural law almost makes
philosophy of law as a “branch of moral or
ethical philosophy,” while legal positivism takes
philosophy of law as the “philosophy of a
particular social institution.”[3]
Natural Law Legal Positivism
Law and morality are Law and morality are
intimately connected. different.
Philosophy of law is a Philosophy of law is the
branch of moral philosophy of a particular
philosophy. social institution.
In essence, law is an In essence, law is an
ordinance of reason. institutional construct.
Questions asked in Philosophy of Law
1. Logically, the main question asked in philosophy
of law is “what is law?” And since it could be
answered in various ways, contending schools
of thought also emerge from it, as seen above.
2. Other related questions would be – Is law the
same as morality? Is it universal or just man-
made? Does it have a specific purpose? Is it for
the attainment of justice? Is it for socio-
economic and political equality?
3. From these questions, it could be seen that
philosophy of law has a very vast scope. To limit
it therefore, emphasis will be placed upon
leading theories only (Natural and Legal
Positivism).
Importance of Studying Philosophy of Law
1. It must be emphasized that the social, moral,
and cultural foundations of law, and the
theories which inform and account for them,
are no less important than the law’s “black
letter.”[4] A well-entrenched understanding of
the printed provisions of law is impossible
without knowing the spirit or philosophy which
lies underneath them.
2. Legal theory has a decisive role to play in
defining and defending the values and ideals
that sustain our way of life.[5] When laws are
threatened of abolition, the defense always
takes recourse in philosophy to justify their
existence. Laws are at the heart of every legal
institution, including the state, so that the
latter’s legitimacy is anchored on the
philosophical justification of its laws.
3. Philosophy of law is not among the eight bar
subjects. But this does not mean that it is
useless in taking the bar exams. Many
examinees fail because they lack philosophical
aptitude and legal reasoning. In truth, the
foundation of all bar subjects is philosophy.
Take for example, constitutional law and
criminal law:
4. Constitutional law, which is under political law,
is based on critical liberal philosophies
enunciated in Article II (Declaration of Principles
and State Policies) of the 1987 Philippine
Constitution. Understanding the philosophical
foundations of political law is necessary to tie
up its numerous details.
5. Criminal law likewise is based on various
philosophies and principles. Rationalizing in the
bar demands a succinct understanding of how
crimes are defined and penalized according
their underlying philosophies.
6. For example, why should penal laws be liberally
interpreted in favor of the accused? Justice,
which is a principal philosophical concept,
explains this, in that the disadvantaged (in this
case, the accused) should be given more
opportunities than the advantaged (in this case,
the State). Thus, the rule of “pro reo,” which
provides that the penal laws should always be
 construed and applied in a manner liberal or
lenient to the offender. This rule is constantly
repeated as the underlying philosophy in many
provisions of the Revised Penal Code.
7. Philippine criminal law system uses four
philosophies depending on the circumstances:
(1) Classical or juristic theory which provides that
man, who possesses freedom, is punished for an
act or omission willingly, voluntarily, and
intelligently performed. Under this philosophy, man
should be adjudged or held accountable for
wrongful acts so long as free will appears
unimpaired,[6] so that if one lacks free will and
intelligence, he should not be held criminally liable.
This philosophy is so basic it is implied so often in
bar exams.
(2) Positivist or Realistic Theory which provides that
man is inherently good but his acts or behavior may
be conditioned by his environment. Because of his
upbringing, social environment and associations he
may become socially ill or an offender. Thus, under
this philosophy penal laws are meant to “reform”
and the penalties are considered “corrective or
curative.” Jails are reformatories and penalties are
imposed after an examination of the circumstances
of the offender. Unlike the classical theory which
emphasizes on the offense itself, positivistic theory
emphasizes on the offender and not on the
offense.
(3) Ecclectic (or mixed) Philosophy which combines
good features of classical and positivist theories. As
contended by many legal theorists, the classical
theory should be applied to heinous crimes,
whereas the positivist should be applied to socio-
economic crimes. The Philippines generally adapts
the eclectic philosophy
(4) Utilitarian Theory which is based on the maxim
“greatest happiness for the greatest number of
people.” The fundamental idea behind this
philosophy is that the primary function of
punishment in criminal law is to protect the society
from potential and actual wrongdoers.
Approaches in Legal Theory
There are two approaches in explaining law:
descriptive and normative.[7]
1. Descriptive legal theory seeks to explain
what the law is, and why, and its
consequences.[8] It is about the facts of
law. It has three principal types:
2. “Doctrinal” which seeks to elucidate a case
based on an “underlying theory”;
3. “Explanatory” which seeks to explain why
the law is as it is; and
4. “Consequential” which seeks to discuss the
consequences of a certain set of rules.
5. Normative legal theory is concerned with
what the law “ought to be.”[9] It is about
legal values. As such, it is closely associated
with moral and political theories.
6. It is important to note however that there is
no rigid delineation between the two.
Often, one approach leads to another.
Utilitarian normative theory, for example,
needs a descriptive account of the
consequences of rules, and vice versa.
NATURAL LAW THEORY
Origin of the Natural Law
1. The term “natural law” is misleading. At the
outset, it must be made clear that it does
not refer to the physical laws of nature.
Natural law theory originated from ancient
Greece as a moral theory, which tackles the
all-important issue of the “good or happy
life.” Evidently, it seeks to explain the
nature of morality and not of law. The
question, therefore, is how did it become a
theory of law?
2. During the time of the Greeks, they consider
morality as field separate and distinct from
religion. For them, a person can be moral
even if he does not believe in God. This is
possible by means of reason. Man is capable
of thinking, and it is by using his reason that
he comes to understand what is right from
what is wrong. He knows, for instance, that
killing is wrong because it is unreasonable
and not because God says so. A person
therefore learns to act rightly through his
faculty of reason.
3. Since acting rightly necessarily includes
others, as one’s act affects another,
individual morality includes politics.
Knowing how to act rightly necessarily
involves how to deal rightly with one’s
fellow men. Inasmuch as a moral theory
involves a rule of conduct, it may also be
construed as law in the broad sense. It is
along this line that the moral theory
developed into a theory of law.
4. Aristotle was among the first thinkers who
embarked on the Natural Law Theory. The
bridge between “individual morality” and
“social life” is encapsulated in his assertion,
“man by nature is a political animal.” This
means that it is ingrained in each person the
natural tendency to live in a community
because it is only in a community that he
becomes truly human – he becomes
civilized, educated, and truly rational.
Outside the city (polis) he is just an animal.
5. Also according to Aristotle, man is a rational
animal, meaning aside from his “animality”
he also has “rationality,” which puts him
over and beyond other animals. Part
therefore of the nature of man is his
“reason.” In other words, it is natural for
man to reason out. It is along this context
that a moral theory, which is based on
reason, is said to be a natural theory. When
one says, “there is something unnatural
about this,” what he means is there is
something unreasonable about the thing. So
if one acts irrationally, it also means he is
acting unnaturally. It could therefore be said
that the essence of law under the natural law
theory is its rationality.
6. At this juncture, the connection of the
following concepts must be clear: morality –
reason – law. Morality demands reason.
Reason determines the conduct of man. The
dictates of morality and reason constitute a
norm of conduct. Morality and reason are
the bases of law.
7. It was said earlier that ethics leads to
politics. In fact, the ethical treatise of
Aristotle was a preamble to his political
treatise. The pursuit of the good life
requires a determination of the ideal society
or government. Nowadays, “natural law” is
generally taken to mean only that part of
the original moral theory which explains the
way that the law, narrowly construed,
operates as part of a broader moral life of
individuals.[10] Political institutions, like the
states, are legitimized or justified by the
moral theory from which they were drawn.
Using the political institution theorized by
Plato (teacher of Aristotle), for instance, the
rulers must be wise and morally upright.
Their authority depends on how they
embody the political criteria of wisdom and
morality.
8. Rome carried on the Greek and Hellenistic
philosophical tradition, but it was faced with
the problem of relativism, which rejected
universal standards. In the ancient world,
Rome was the melting pot of all cultures,
beliefs, and races, somewhat analogous to
the United States now. Relativism was
particularly dangerous to the Romans
because it could prevent them from
formulating workable rules which would
uniformly govern everyone within their vast
empire. The varied customs and practices of
particular cultures must be replaced by laws
recognizing universal or common nature.[11]
The natural law theory as it developed in
Rome sought to explain the common nature
of man which is the basis of morality or
natural law.
9. The dominant philosophical school in
ancient Rome was Stoicism. The stoics
emphasized on the importance of the
performance of one’s duty and accorded
primacy to reason. According to them, a
person should concern himself only of the
things that are within his power, i.e. only the
activities of his soul. He cannot control all
other things. Thus, to be rational simply
means to perform one’s duties
conscientiously and virtuously because he
cannot do otherwise.
10. What resulted from this philosophical
activity was the jus gentium, which was a
legal order meant to apply to all persons
throughout the Roman Empire. At first, the
jus gentium was applied to foreigners or
second class citizens, then eventually it
became a superior legal order or universal
application. The rise of jus gentium into a
superior law was caused by the need to
provide a universal standard of justice.
11. Critical to understand under the natural law
theory, as expounded by the Stoics, is the
Latin maxim “lex injusta non est lex” or “an
unjust law is not a law.” If, for example, the
Philippine Congress passes a statute that
orders the taking of all farmlands without
need of paying the landowners, then such
statute would provide no law at all. It must
be pointed out clearly, that an unjust law (or
one that deviates from the principles of
morality or natural law) is not even a “bad
law” but rather, it is not a law at all. Natural
lawyers are not just evaluating the morality
of the law. For them, if a law is immoral it is
not law at all.
12. Positivist thinkers are particularly
critical at this Latin maxim. They distinguish
 law from morality. They argue that an
immoral law, as long as it was passed validly
by the Legislature, is still a law, even though
it is a bad law. For them, a law may be
wicked or harsh, but just the same it must
be followed because it is still the law. This
does not mean that the positivist lawyers
are not critical about the morality of the law.
Jeremy Bentham, for instance, a positivist,
was a social reformer, who attacked “bad”
laws. Take note, however, that what he
attacked was the “wickedness” of laws and
not the “validity” of the laws.
13. Hence, the principal goal of natural lawyers
is to establish the connection of law and
morality. The intimate connection of the
two should support their claim that an
immoral law is not a law at all. It must be
emphasized that as a natural lawyer one
does not just evaluate the morality of a law
because even the positivists do it. What a
natural lawyer does is to establish the
necessary connection of law and morality so
that when a norm is immoral, he could
prove that it is not a law itself.
[1] See William Edmundson, Introduction, “The
Blackwell Guide to the Philosophy of Law and Legal
Theory” (ed. by Golding and Edmunson) Blackwell
Publishing (2005), p. 1.
[2] Jurisprudence and Legal Theory, University of
London External Programme, p. 61.
[3] See ibid.
[4] Raymond Wacks, Philosophy of Law: A Very
Short Introduction, Oxford University Press (2006),
p. xiv.
[5] Ibid, p. xvi.
[6] People v. Genosa, September, 2000
[7] As to how law should be understood, it may be
natural or positivist. But as to the manner of
studying it, it may be descriptive or normative.
Natural law theory and positivist theory use the
two approaches.
[8] Wacks, Ibid.
[9] Ibid.
[10] Jurisprudence and Legal Theory, University of
London External Programme, p. 62-63.
[11] See Ibid.
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
(see ethics) 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 (see political
philosophy). The philosophy of law is therefore an
integral part of philosophy more generally.
General considerations
Whereas law as a means of governance of human
communities dates back to at least 3000 BCE in
ancient Egypt, sustained and systematic
philosophical reflection on its nature for which
there is surviving evidence began only in the late
5th century BCE in ancient Greece and nearby areas
of the Mediterranean, not long after the birth of
Western philosophy itself. From that point onward,
a more or less continuous history of such reflection
can be traced up to the present day. As is true with
the history of philosophy more generally, one can
observe over the centuries changes not only in the
theories set forth but also in the central questions
about law that such theories were meant to
answer.
Although every philosophical theory is in part a
product of the time, place, and culture in which it is
developed, the philosophy of law is parochial in an
additional sense. Philosophical speculation about
the nature of law not only is very often shaped by
the politics of the time and place of a given theorist
but is also carried on with a specific sort of legal
system and legal culture in view. The latter fact is
important, as the kinds of legal systems in Europe
and the Anglophone world have varied widely
through the last several millennia. Although the
shape and structure of those systems cannot be
discussed in any detail here, it should nonetheless
be noted that a robust understanding of each of
the major theories and texts in the history of
philosophy of law requires some acquaintance with
the legal systems of the cities and states in which a
given theory was developed. For example, the
centrepiece of the legal system of Aristotle’s
Athens was a representative legislative body, the
Ecclesia, in which a wide variety of political disputes
were debated and addressed by statute, while its
court system was, though important, very
rudimentary by modern standards (it was governed
by largely customary procedural rules and
administered by ordinary citizens, as there were no
judges, lawyers, or other legal professionals during
that period). As a result, Aristotle theorized about
law primarily on the model of general rules of
action enacted by legislation and revisable by direct
vote or other plebiscitary means. To take a
different example, starting in the 17th century
many British (and later other Anglophone)
philosophers of law argued for the central
importance of judicial institutions for the very
existence of a legal system and debated the idea of
legal reasoning as a distinct sort of deliberative
activity. More recently, increasing attention has
been paid to the related question of how the
language of the law is to be correctly interpreted.
Some theorists, beginning in the early 20th century,
even found it fruitful to think about the nature of
law primarily from the point of view of legal
professionals such as judges or lawyers. That
development is surely to be at least partly
explained by the fact that those theorists reflected
on law almost exclusively within advanced common
law systems—i.e., those legal systems found
throughout the Anglophone world (and now
beyond) in which specially trained lawyers argue on
behalf of the interests of clients in court and
elsewhere and in which judges often play a quasi-
legislative role in fashioning legal rules in the form
of precedents, which are binding on later courts for
the purposes of deciding future cases.
Ancient Greece
The abstract concept of law is acknowledged,
though not discussed, in the poems of Homer and
Hesiod in the 8th–7th century BCE. In the Greek
histories and literature of the 6th and 5th centuries
BCE, however, one finds the first articulation of
ideas about law that have had enduring influence in
the West: that law is a kind of command or
prohibition with regard to what its subjects ought
to do and that law is often accompanied by at least
the threat of punishment or coercion by the state.
Herodotus (born about 484 BCE), in his History of
the Greco-Persian Wars, records a Spartan king
remarking to the king of Persia that the Greeks “are
free, yet not wholly free; law is their master, whom
they fear much more than your men fear you. They
do whatever it bids.” The historian Xenophon (c.
430–c. 350 BCE) relates in his Memorabilia a likely
apocryphal conversation between a young
Alcibiades and his guardian, the great Athenian
statesman Pericles, in which the latter declares that
“whatever the sovereign power of the state,
having deliberated, enacts and directs to be done is
known as law” and denies that mere compulsion
exerted by a tyrant is sufficient to qualify as law.
The great dramatist Sophocles, in his tragedy
Antigone, first made salient the important idea that
the requirements of law and morality may conflict.
In the play, King Creon orders the body of
Antigone’s brother to remain unburied as a
posthumous punishment for treason. Out of
familial duty, Antigone flouts the order and buries
the body, thereby herself risking punishment by
death. She rejects the king’s legal authority, saying
that even he “could not override the unwritten and
unfailing laws given us by the gods.”
But it is Plato (428/427–348/347 BCE), writing
during the decline of the Athenian empire, who was
the first to advance philosophical claims about the
nature of law. The relevant Greek term, nomos,
varied widely in meaning across contexts, often
referring simply to convention or practice. But by
Plato’s time it had acquired the more-specific sense
of a statute or a proclaimed or written directive
that established a standard for human action. In his
dialogue Crito, Plato fictionally cast his teacher,
Socrates, imprisoned and sentenced to death (for
impiety and corrupting the young), as faced with a
choice between accepting the death penalty and
escaping, thereby disobeying the law. In the
dialogue Socrates makes the provocative
argument, on behalf of the laws of Athens, that
since he has received the benefits and protections
of living under law for his entire life and has never
left the city out of protest, he is obligated either to
obey its laws or to persuade the state that they
should not be enforced against him. Since he has
failed (at his trial) in the latter task, he must respect
the laws by obeying their commands, regardless of
their content.
Plato’s dialogue Crito is the origin of several
enduring ideas in the philosophy of law, such as
that the law by nature claims authority over its
subjects and that the very relationship between law
and its subjects somehow gives rise to an
obligation of obedience. Plato’s later work makes
scattered reference to law but fails to articulate a
robust philosophy of law in the modern sense;
what is thought to be his last work, Laws, contains
many specific proposals for reforming the laws of
his time but curiously fails to grapple with broader
philosophical questions.
A generation later, Plato’s student Aristotle (384–
322 BCE) gave more-systematic expression to a
number of influential ideas about law. Aristotle
famously said that humans are “political animals,”
meaning that they naturally organize themselves
into distinct sorts of communities, the largest of
which is the city, or city-state (in Greek, the polis).
Cities are characterized by their politeia, a word
that is often translated as “constitution” but in fact
refers to any general way in which a large human
community may organize itself. Law, Aristotle said,
is “a sort of order” and thus provides a
comprehensive framework of rules and institutions
through which a society is constituted. A law (e.g.,
a statute) is by nature universal in form: it is a
standard of conduct that applies generally, in
respect of both the classes of persons and the
types of conduct it governs. Because of its
universal nature, a law can sometimes fail to apply,
or apply only indeterminately, to a novel case
unforeseen by the legislator. The problem here,
Aristotle said, is not in the law or in the lack of
foresight by the lawmaker but rather in the “nature
of the case.” In such cases, what is required is a
corrective exercise he called “equity,” which
involves speculating about how the deficient law
would have applied had the lawmaker considered
the novel case and then applying the law
accordingly.
Aristotle was also the first to articulate what has
come to be known as the ideal of the rule of law.
He shared the common Greek view that, as a
general principle, law had a share in eternal divine
wisdom. As such, it was an instrument by which to
constrain the exercise of political power,
particularly that of tyrants, whose policies
represented only their own interests and not the
good of the community. On the (even by then) age-
old debate as to whether the best law or the best
person should rule a city, Aristotle’s position was
clear: “He who asks law to rule is asking God and
intelligence and no others to rule, while he who
asks for the rule of a human being is importing a
wild beast too.…Law is intelligence without
appetite.”
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
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 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.
The early modern period (1600–1800)
Command and common-law theories of law
From the late European Renaissance to the end of
the 18th century, philosophical debates about the
nature of law grew and diversified considerably,
involving theorists from England and across
continental Europe. There were two major
thematic developments during that period. First
was the development of the view, first articulated
in ancient Greece and developed to some extent by
Aquinas, that law should be understood on the
model of a command, given by a superior to an
inferior, the issuance of which made certain actions
obligatory for the rational addressee (and putative
subject). Second, starting in the 1620s, there
emerged in England an increasingly sophisticated
defense of the idea that at the foundation of law
was custom, exemplified by the common law of
England. These “common law theorists” have had
an enduring impact on Western philosophy of law
up to the present day.
The command theory of law
First, with regard to the development of the
command theory of law, philosophers such as Hugo
Grotius (1583–1645), Francisco Suárez (1548–1617),
and Samuel, baron von Pufendorf (1632–94),
developed theories of what persons must be like in
order to be capable of imposing and subjecting
themselves to law. Although there were
differences between these theorists, they shared
certain common assumptions. It was agreed, for
example, that law is directed at beings who are
free—who have the capacity to choose among a
range of available actions—intelligent, and self-
directing. In other words, such beings have the
capacity to recognize law as a kind of command
addressed to them, to understand that fact as a
reason to act (or at least to deliberate) in certain
ways, and then actually to act on the basis of that
recognition and deliberation. Moreover, these
philosophers agreed that the content of law is
determined by the content of the will of the
“commander,” or the lawmaker.
That the creation of law involved some operation
of the will of a person also helped to explain how
law motivated its subjects to act accordingly. The
legislator as commander aimed, by enacting laws,
to produce behaviour of the sort reflected in the
content of a law, which required an operation of
the will of the subject of the sort just described.
Just as one may speak metaphorically of there
being a “meeting of the minds” in the context of
making an agreement, these theorists thought that
there must be a “meeting of the wills” in order for
law to successfully guide conduct. Suárez, for
example, said that the will of a legal subject must
“come into direct contact” with the will of the
legislator; Pufendorf likewise said that the content
of a law must be “instilled into a subject’s mind” in
order for the subject to be motivated to act
accordingly. All these assumptions supported and
formed the general view that an essential feature
of law is to play a rational but decisive role in the
practical reasoning of its subjects—that is, in their
reasoning about what they ought to do. This view
would enjoy a resurgence among philosophers of
law in the late 20th century.
The common-law theory of law
The other major development of that period was
the emergence in England in the early 17th century
of a group of lawyers and judges who held that all
law is either equivalent to or derived from the
common law, which they identified as “immemorial
custom.” Among those who made important
contributions to this general theory were Sir
Edward Coke (1552–1634), Sir Matthew Hale (1609–
76), and later Sir William Blackstone (1723–80).
Laws are part of the common law only if, as Hale
said, “they have acquired their binding power and
the force of laws by a long and immemorial usage.”
The very fact of the usage of a rule by a community
for years or centuries is what lends that rule
authority and legitimacy. The practices of a
community that extend for longer than anyone at a
particular time can recall (“time out of mind”)
imply and reinforce that community’s recognition
and sense that such practices are reasonable and
ought to be followed.
The exact nature and role of that history of practice
was a matter of some debate, however. Coke held
that the law of England had in fact not changed in
substance since Saxon or even Roman times and
that such prodigious history formed the basis of
the legitimacy of the English law of his day. Hale
found this claim dubious and held that the law of
the present need not be identical to that of the
past but only continuous with it; what is instead
essential is an ongoing sense among members of
the community that the present law is reasonable
and appropriate for their circumstances.
Common-law theory was an important departure
from the command model of law, primarily because
it moved away from the statute as a paradigm and
instead focused on explaining the operation of the
courts and their relation to the larger community.
The activities of judges and practicing lawyers were
therefore, for the first time, given pride of place in
constructing a philosophical theory of law. That
general approach would become dominant
throughout the 20th century.
As part of their philosophy of law, common-law
theorists advanced what is now called a theory of
adjudication: a theory of what judges do and ought
to do. As the essence of the common law was
immemorial custom, which transcended any single
individual’s beliefs or attitudes, the judge was not
and could not act as a lawmaker when settling
disputes between citizens. Instead, the judge
discovered or discerned the common law from
relevant past cases, treatises, and common
experience. Coke famously said, “Judex est lex
loquens” (literally, “The judge is the law
speaking”), by which he meant that the judge is a
kind of expert at declaring the law that was there
antecedently in the community. The judge is the
“living oracle” of the law but only as its mouthpiece
and not as its source. Coke’s claim also implies that
with each new judicial decision based on the
reasoning of past cases, and insofar as like cases
should be treated alike, it is the new case itself and
not the judge that extends the law. The relevant
expertise of judges (and the lawyers who argued
before them) was explained by Coke in terms of
“artificial reason,” a special intellectual capacity of
legal professionals to synthesize the customs of a
community into a coherent set of common-law
principles used to judge cases. “Reason is the life of
the law,” Coke said, and the law “is an act which
required long study and experience before that a
man can attain to the cognizance of it.”
Whereas the first common-law theorists were
rather parochial in their aspirations—they sought
to explain the ultimate basis of the law of
England—their importance has increased
considerably since the middle of the 20th century.
Because the political and economic power of
common-law countries such as the United States
and the United Kingdom have increased
internationally, their legal systems, and the legal
theories that justify and explain them, have
correspondingly grown in influence. Moreover,
international law itself has developed exponentially
since the end of the World War II, and custom has
long been considered to be one of its legitimate
sources.
Thomas Hobbes
Among the most-influential philosophers of law
from the early modern period was Thomas Hobbes
(1588–1679), whose theory of law was a novel
amalgam of themes from both the natural-law and
command-theory traditions. He also offered some
of the earliest criticisms of common-law theory,
which would be developed significantly by theorists
in the 18th century. For Hobbes, law was the
primary instrument of a sovereign by which to
serve the ends of government, which were
principally peace and the personal security of all its
citizens. Writing during and after the English Civil
Wars (1642–51), he developed the idea that
government which ruled effectively by law is the
only bulwark against anarchy or, as he famously put
it, “a war of all against all.” Hobbes’s philosophy of
law is in part an account of what law must be like in
order to serve that function. Many scholars credit
Hobbes as the founder of legal positivism, the
dominant philosophical theory of law since the 17th
century. The core ideas of legal positivism are that
law is essentially a matter of social fact and that it
bears at most a contingent connection with moral
norms: many actions that are legally proscribed (or
prescribed) can nonetheless be moral (or immoral).
Insofar as this was Hobbes’s view, it was because
he was an adherent of the command theory of law
already discussed. In his magnum opus, Leviathan
(1651), he wrote that “law in general, is not counsel,
but command” and that civil (i.e., positive) laws are
“those rules which the common-wealth hath
commanded…by word, writing, or other sufficient
sign of the will” that certain actions are to be done
or not done. Since laws are “signs of the will” of
the sovereign, Hobbes placed particular emphasis
on the requirement that those “signs” are
sufficiently public and intelligible to ordinary
citizens.
Hobbes’s fundamental criticism of common-law
theory was that the “immemorial customs” of the
community, claimed to be the foundations of law,
are not always easily discernible; they may in fact
be deeply controversial, and so the common law
may by nature fail to offer authoritative and final
views of what its putative subjects ought to do.
Hobbes rejected Coke’s idea that coming to know
the law required an exercise of “artificial reason”
and “long study and experience,” arguing that if
lawyers and judges were necessary intermediaries
between sovereign and subject, then the law would
again fail to guide the conduct of those to whom it
applied. He quipped that ordinary persons could
dispense with the counsel of lawyers and master
the contents of a legal system after about two
months’ study.
Although there are undeniable positivist elements
in Hobbes’s theory, in positing an important
connection between natural and civil law (i.e.,
between morality and positive law), he was also
inspired by the natural-law tradition. He claimed
that natural law and civil law “contain each other
and are of equal extent.” What Hobbes meant by
that claim has been a topic of scholarly debate ever
since; suffice it to say that he thought that there
were modest but real moral limits on what the
sovereign could legitimately demand of its subjects.
For example, a putative law that required people to
act in ways that led to their own death would fail to
be valid positive law because it would violate the
natural law of self-preservation, which Hobbes
thought was at the foundation of the purpose of
government. Hobbes thus attempted a synthesis of
the natural-law and command traditions, though
some scholars think he was far from successful.
1.2 Schools of Legal Thought
Learning Objectives
1. Distinguish different philosophies of law—
schools of legal thought—and explain their
relevance.
 2. Explain why natural law relates to the rights
that the founders of the US political-legal
system found important.
3. Describe legal positivism and explain how it
differs from natural law.
4. Differentiate critical legal studies and
ecofeminist legal perspectives from both
natural law and legal positivist perspectives.
There are different schools (or philosophies)
concerning what law is all about. Philosophy of law
is also called jurisprudence, and the two main
schools are legal positivism and natural law.
Although there are others (see Section 1.2.3 "Other
Schools of Legal Thought"), these two are the most
influential in how people think about the law.
Legal Positivism: Law as Sovereign Command
As legal philosopher John Austin concisely put it,
“Law is the command of a sovereign.” Law is only
law, in other words, if it comes from a recognized
authority and can be enforced by that authority, or
sovereign—such as a king, a president, or a
dictator—who has power within a defined area or
territory. Positivism is a philosophical movement
that claims that science provides the only
knowledge precise enough to be worthwhile. But
what are we to make of the social phenomena of
laws?
We could examine existing statutes—executive
orders, regulations, or judicial decisions—in a fairly
precise way to find out what the law says. For
example, we could look at the posted speed limits
on most US highways and conclude that the
“correct” or “right” speed is no more than fifty-five
miles per hour. Or we could look a little deeper and
find out how the written law is usually applied.
Doing so, we might conclude that sixty-one miles
per hour is generally allowed by most state
troopers, but that occasionally someone gets
ticketed for doing fifty-seven miles per hour in a
fifty-five miles per hour zone. Either approach is
empirical, even if not rigorously scientific. The first
approach, examining in a precise way what the rule
itself says, is sometimes known as the “positivist”
school of legal thought. The second approach—
which relies on social context and the actual
behavior of the principal actors who enforce the
law—is akin to the “legal realist” school of thought
(see Section 1.2.3 "Other Schools of Legal
Thought").
Positivism has its limits and its critics. New
Testament readers may recall that King Herod,
fearing the birth of a Messiah, issued a decree that
all male children below a certain age be killed.
Because it was the command of a sovereign, the
decree was carried out (or, in legal jargon, the
decree was “executed”). Suppose a group seizes
power in a particular place and commands that
women cannot attend school and can only be
treated medically by women, even if their condition
is life-threatening and women doctors are few and
far between. Suppose also that this command is
carried out, just because it is the law and is
enforced with a vengeance. People who live there
will undoubtedly question the wisdom, justice, or
goodness of such a law, but it is law nonetheless
and is generally carried out. To avoid the law’s
impact, a citizen would have to flee the country
entirely. During the Taliban rule in Afghanistan,
from which this example is drawn, many did flee.
The positive-law school of legal thought would
recognize the lawmaker’s command as legitimate;
questions about the law’s morality or immorality
would not be important. In contrast, the natural-
law school of legal thought would refuse to
recognize the legitimacy of laws that did not
conform to natural, universal, or divine law. If a
lawmaker issued a command that was in violation
of natural law, a citizen would be morally justified
in demonstrating civil disobedience. For example,
in refusing to give up her seat to a white person,
Rosa Parks believed that she was refusing to obey
an unjust law.
Natural Law
The natural-law school of thought emphasizes that
law should be based on a universal moral order.
Natural law was “discovered” by humans through
the use of reason and by choosing between that
which is good and that which is evil. Here is the
definition of natural law according to the
Cambridge Dictionary of Philosophy: “Natural law,
also called the law of nature in moral and political
philosophy, is an objective norm or set of objective
norms governing human behavior, similar to the
positive laws of a human ruler, but binding on all
people alike and usually understood as involving a
superhuman legislator.”Cambridge Dictionary of
Philosophy, s.v. “natural law.”
Both the US Constitution and the United Nations
(UN) Charter have an affinity for the natural-law
outlook, as it emphasizes certain objective norms
and rights of individuals and nations. The US
Declaration of Independence embodies a natural-
law philosophy. The following short extract should
provide some sense of the deep beliefs in natural
law held by those who signed the document.
The Unanimous Declaration of the Thirteen United
States of America
July 4, 1776
When in the Course of human events, it becomes
necessary for one people to dissolve the political
bands which have connected them with another,
and to assume among the powers of the earth, the
separate and equal station to which the Laws of
Nature and of Nature’s God entitle them, a decent
respect to the opinions of mankind requires that
they should declare the causes which impel them to
the separation.
We hold these truths to be self-evident, that all
men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that
among these are Life, Liberty and the Pursuit of
Happiness. That to secure these rights,
Governments are instituted among Men, deriving
their just powers from the consent of the
governed.…
The natural-law school has been very influential in
American legal thinking. The idea that certain
rights, for example, are “unalienable” (as
expressed in the Declaration of Independence and
in the writings of John Locke) is consistent with this
view of the law. Individuals may have “God-given”
or “natural” rights that government cannot
legitimately take away. Government only by
consent of the governed is a natural outgrowth of
this view.
Civil disobedience—in the tradition of Henry
Thoreau, Mahatma Gandhi, or Martin Luther King
Jr.—becomes a matter of morality over
“unnatural” law. For example, in his “Letter from
Birmingham Jail,” Martin Luther King Jr. claims that
obeying an unjust law is not moral and that
deliberately disobeying an unjust law is in fact a
moral act that expresses “the highest respect for
law”: “An individual who breaks a law that
conscience tells him is unjust, and who willingly
accepts the penalty of imprisonment in order to
arouse the conscience of the community over its
injustice, is in reality expressing the highest respect
for law.…One who breaks an unjust law must do so
openly, lovingly, and with a willingness to accept
the penalty.”Martin Luther King Jr., “Letter from
Birmingham Jail.”
Legal positivists, on the other hand, would say that
we cannot know with real confidence what
“natural” law or “universal” law is. In studying law,
we can most effectively learn by just looking at
what the written law says, or by examining how it
has been applied. In response, natural-law thinkers
would argue that if we care about justice, every law
and every legal system must be held accountable to
some higher standard, however hard that may be
to define.
It is easier to know what the law “is” than what the
law “should be.” Equal employment laws, for
example, have specific statutes, rules, and
decisions about racial discrimination. There are
always difficult issues of interpretation and
decision, which is why courts will resolve differing
views. But how can we know the more
fundamental “ought” or “should” of human
equality? For example, how do we know that “all
men are created equal” (from the Declaration of
Independence)? Setting aside for the moment
questions about the equality of women, or that of
slaves, who were not counted as men with equal
rights at the time of the declaration—can the
statement be empirically proven, or is it simply a
matter of a priori knowledge? (A priori means
“existing in the mind prior to and independent of
experience.”) Or is the statement about equality a
matter of faith or belief, not really provable either
scientifically or rationally? The dialogue between
natural-law theorists and more empirically oriented
theories of “what law is” will raise similar
questions. In this book, we will focus mostly on the
law as it is, but not without also raising questions
about what it could or should be.
Other Schools of Legal Thought
The historical school of law believes that societies
should base their legal decisions today on the
examples of the past. Precedent would be more
important than moral arguments.
The legal realist school flourished in the 1920s and
1930s as a reaction to the historical school. Legal
realists pointed out that because life and society
are constantly changing, certain laws and doctrines
have to be altered or modernized in order to
remain current. The social context of law was more
important to legal realists than the formal
application of precedent to current or future legal
disputes. Rather than suppose that judges
inevitably acted objectively in applying an existing
rule to a set of facts, legal realists observed that
judges had their own beliefs, operated in a social
context, and would give legal decisions based on
their beliefs and their own social context.
The legal realist view influenced the emergence of
the critical legal studies (CLS) school of thought.
The “Crits” believe that the social order (and the
law) is dominated by those with power, wealth,
and influence. Some Crits are clearly influenced by
the economist Karl Marx and also by distributive
justice theory (see Chapter 2 "Corporate Social
Responsibility and Business Ethics"). The CLS
school believes the wealthy have historically
oppressed or exploited those with less wealth and
have maintained social control through law. In so
doing, the wealthy have perpetuated an unjust
distribution of both rights and goods in society.
Law is politics and is thus not neutral or value-free.
The CLS movement would use the law to overturn
the hierarchical structures of domination in the
modern society.
Related to the CLS school, yet different, is the
ecofeminist school of legal thought. This school
emphasizes—and would modify—the long-
standing domination of men over both women and
the rest of the natural world. Ecofeminists would
say that the same social mentality that leads to
exploitation of women is at the root of man’s
exploitation and degradation of the natural
environment. They would say that male ownership
of land has led to a “dominator culture,” in which
man is not so much a steward of the existing
environment or those “subordinate” to him but is
charged with making all that he controls
economically “productive.” Wives, children, land,
and animals are valued as economic resources, and
legal systems (until the nineteenth century) largely
conferred rights only to men with land.
Ecofeminists would say that even with increasing
civil and political rights for women (such as the
right to vote) and with some nations’ recognizing
the rights of children and animals and caring for the
environment, the legacy of the past for most
nations still confirms the preeminence of “man”
and his dominance of both nature and women.
Theories of Jurisprudence – What is the Study of
Law?
WHAT IS JURISPRUDENCE?
Jurisprudence is the science, study and theory of
law. It is a study of the law, done by scholars of law
(‘Jurists’), to understand the nature, principles and
patterns of the law. Jurists in the world seek to
develop a deeper understanding of legal principles,
legal systems and reasons why certain laws exist.
Law itself is an intangible being, you cannot touch
it; you cannot see it; and you cannot feel it.
Therefore, it becomes extremely difficult to study
the central assessment of it. Yet it still exists; law
shapes, guides and dictates how it’s subjects
should and should not behave. Jurists study
different forms of laws and try to grasp why these
laws were made or what made them.
DIFFERENT THEORIES OF LAW
There exist four primary schools of thought in
general Jurisprudence:
1. Natural Law
2. Legal Positivism
3. Legal Realism
4. Critical Legal Studies
NATURAL LAW
Natural law is the theory that certain rights or
values are essential by virtue of human nature and
universally identifiable through human reason.
Historically, natural law refers to the use of reason
to compare both social and personal human nature
to understand the binding rules of human
behaviour. The law of nature being determined by
nature, is universal.
An example of natural law is the insistence of
religious and natural scholars that law was created
by nature. They believe that as humans are a
creation of nature, nature itself dictates how they
should live. Some scholars of natural law insist that
through nature human beings can understand what
is right and what is wrong. According to this theory,
what is good and what is evil is already known to
humans upon birth; anything which harms a
human’s mind, body or being is wrong.
Theories of natural law circle around what is
considered moral or immoral. Therefore, there is a
link a between the morals of humans and the law
they follow.
LEGAL POSITIVISM
Unlike natural law, legal positivism says that there
is no link between morality and law. This insists that
laws are created and dictated by how human
beings behave socially. In the positivist’s view law is
established by some socially recognised legal
authority. The merits of the law are not something
that need to be considered; it might be ‘bad law’ by
some standards but as long as it is governed by an
authority it is still law.
According to legal positivism, the fact that a policy
is just, wise, efficient or sensible is never enough
reason for thinking that it is actually the law; and
the fact that it is unjust, unwise, inefficient or
insensible is never enough reason to doubt
whether a law or set of laws are valid or not.
So according to this theory of law; the laws
established by Hitler to persecute the Jews were
valid laws; anyone following and working under
those laws did not do anything wrong as these laws
were made by a legitimate authority ‘the
government’.
LEGAL REALISM
Legal realism argues that the real world practice of
law is what determines what is the law, the law has
the force that it does because of what legislators,
lawyers and judges do with it. Some realists believe
that one can never be sure that the facts and law
identified in the judge’s reasons were the actual
reasons for the judgement, whereas other realists
accept that a judge’s reasons can often be relied
upon, but not all of the time. Realists are interests
in methods of predicting judges with more
accuracy.
According to realists, if a law is passed with a
certain and consistent pattern then that pattern is
the law. Legal realists do not rely on the text or the
documentations of law but rather just focus on the
people who practice law. Therefore, according to
them, the concept of law is evident in how lawyers
and judges apply it.
CRITICAL LEGAL STUDIES
Critical legal studies are a relatively new theory of
jurisprudence that has developed since the 1970s. it
is a negative thesis that says that the law is largely
contradictory and can be best analysed as an
expression of the policy goals of the dominant
social group. Scholars of this legal theory believe
that the dominant beings in a class of people
dictate what the law should and should not be.
The scholars of this theory argue that the current
laws are the evidence of the will of dominant
classes. For example, the creation of the UN is an
example of law created through legal dominance.
The UN was created by the victors of the second
world war; hence they were the dominant group
who had the power to create and dictate law.
WHICH THEORY TO FOLLOW
No legal system, country, judge, lawyer or human
being can only follow one theory of law. If any
person follows only one theory of law, the legal
system would stop working. Even though the law is
supreme, it is important to question and follow it at
the same time. The questioning allows the
authorities to correct any flaws in the law and the
following keeps the law supreme.
Schools of Jurisprudence
There are basically five schools of jurisprudence:-
1. Philosophical school or Natural law school
2. Analytical School
3. Historical School
4. Sociological School
5. Realist School
Philosophical school or Natural law school
The philosophical or ethical school concerns itself
chiefly with the relation of law to certain ideals
which law is meant to achieve. It seeks to
investigate the purpose for which a particular law
has been enacted. It is not concerned with its
historical or intellectual content. The notable jurists
of this school are Grotius (1583-1645), Immanuel
Kant (1724-1804) and Hegel (1770-1831). These
jurists regard law neither as the arbitrary command
of a ruler nor as the creation of historical necessity.
To them law is the product of human reason and its
purpose is to elevate and ennoble human
personality.
Analytical School
The chief exponents of Analytical school of
Jurisprudence was Bentham and Austin. It is also
called positivist school of jurisprudence because it
considers law as it is and not as it ought to be. In
fact it was Sir Henry Maine who coined the word
 ‘analytical’. This school is also called imperative
school because it treats law as a command of
sovereign. Bentham introduced legal positivism
and treated legal theory as a science of
investigation which should be approached through
scientific method of experimenting and reasoning.
John Austin is the father of Analytical School.
Austin said that only positive law is the subject
matter of jurisprudence. He separated both the
morals and the religion from the definition of the
law. Prior to Austin the law was based upon
customs and morals but Austin reduced all things
from the definition of law.
This viewpoint is based on two principles.
1. Law is the command of the sovereign.
2. Force is the essence of law. (i.e. what cannot be
enforced is not a law)
Analytical school of jurisprudence deals with the
following matter:-
1. An Analysis of the conception of civil law.
2. The study of various relations between civil law and
other forms of law.
3. An inquiry into the scientific arrangement of law.
4. An account of legal sources from which the law
proceeds.
5. The study of the theory of liability.
6. The study of the conception of legal rights and
duties.
7. To investigate such legal concepts as property,
contracts, persons, acts and intention etc.
This theory was bitterly criticized in the 19th century
by the Pluralists and the sociological jurists. Despite
its shortcoming this theory has explained a lot
about law. The analytical school of jurisprudence
provides that law must be made by the state in the
interest of general welfare. It favours codification
of law and regards law as a command with legal
sanction behind it.
Historical School
Historical school of jurisprudence believes that law
is an outcome of a long historical development of
the society because it originates from
the social custom, conventions religious principles,
economic needs and relations of the people.
According to this theory law is the product of the
forces and influence of the past. Law is based on
general consciousness of people. The
consciousness started from the very beginning of
the society. There was no person like sovereign for
the creation of law. Savigny, Sir Henry Maine and
Edmund Burke are the renowned jurists of this
school.
Savigny is regarded as the founder of the historical
school. He has given the Volksgeist theory.
According to this theory, law is based upon the
general will or free will of common people. He says
that law grows with the growth of Nations
increases with it and dies with the dissolution of
the nations. In this way law is national character.
Consciousness of people. In other words, according
to this theory law is based on will or free will of
common people. A law which is suitable to one
society may not be suitable to other society. In this
way law has no universal application because it
based upon the local conditions local situations,
local circumstances, local customs, elements
etc. All these things effect law and make it suitable
to the society.
According to Burke, “Law is the product of the
General process. In this sense it is dynamic organ
which changes and develops according to the
suitable circumstances of society.
This theory has some defects. Being conservative in
its outlook it relies on past, however its merit is
that it shows that law must change with the
changes in society. It clearly believes that if a law is
not according to the will of the people, it will never
be obeyed. In this way it supplemented the
analytical school of law.
Sociological School of Jurisprudence
The sociological school of jurisprudence emerged
as the synthesis of various juristic thoughts. The
exponents of this school treat law as a social
phenomenon. According to them, law is a social
function, an expression of human society
concerning the external relations of its individual
members. Montesquieu, Auguste Comte, Herbert
Spencer, Duguit and Rosco Pound are the notable
jurists of this school.
The exponents of this school lay grater stress on
the functional aspect of law rather than its abstract
contents. They regard law as a social institution
essentially inter-linked with their disciplines bearing
direct impact on the society.

Every individual has to observe these rules because

he understands that only by following these rules
he can realize all his needs. The supporters
of sociological school are of the view that the state
does not create the laws but only formulates,
so that social unity is preserved and social needs
are satisfied. So laws did not come from states but
from society. The sanction behind law is not the
force of state but the awareness on the part of
individual.

Realist School

In America, Sociological Jurisprudence has

developed an extreme wing under the name of the
realist school. They are concerned with the study of
law as it works and functions which means
investigating the social factors that makes a law on
the hand and the social results on the other. The
emphasize more upon what the courts may do
rather than abstract logical deductions from
general rules and on the inarticulate ideological
premises underlying a legal system.
American Realism is not a school of jurisprudence
but it is pedagogy of thought. The prominent jurists
of this thought are Holmes, Gray and Jerome Frank.