law, philosophy of

law, philosophy of


      the formulation of concepts and theories to aid in understanding the nature of law, the sources of its authority, and its role in society. In English-speaking countries the term “jurisprudence” is often used synonymously and is invariably used in reference to particular subdivisions of the field.

      To the extent that it implies some necessary link or coincidence with general philosophy, the phrase “philosophy of law” may be somewhat misleading, for philosophy of law is mostly untouched by the conflicts of different philosophical schools, and its practitioners may without incongruity draw on diverse philosophical outlooks—on Logical Positivism for some analytical problem of the structure of legal orders (law) and, simultaneously, on Existentialism for a problem of sociological jurisprudence or justice, for example—without commitment in any such instance to an entire philosophical outlook.

      Nor can one treat philosophy of law as a specialized branch of philosophy such as ethical or political philosophy, epistemology, or logic, for in philosophy of law all these branches may make contributions. Ideas that may illumine jurisprudential problems must indeed be sought not only in philosophy but in all systematic bodies of thought. Only if “philosophy” is interpreted in its least technical and broadest sense does “philosophy of law” cease to be a misnomer.

Problems of the philosophy of law

Various approaches

Analytical jurisprudence
      The analytical questions in jurisprudence are concerned with articulating the axioms, defining the terms, and prescribing the methods that best enable one to view the legal order (or part of it) as a self-consistent system and that maximize awareness of its logical structure. Perhaps the most rigorous solutions are those which, like that of Hans Kelsen (Kelsen, Hans), a contemporary Austrian–American legal philosopher, attempt to identify structural or relational features as being necessarily entailed in the meaning of legal norms or in lawyers' intellectual operations with them (see below Pure theory of law (law, philosophy of)). Alternatively, the basis for logical structuring may be found in some imputed attribute of law not itself inherently structural. The 19th-century English legal philosopher John Austin (Austin, John), for example, thought it an essential preliminary to his quest for a logical system in law to clarify what was involved in his assumption that law always consists of “commands.” This clarification is important, but the claim that such a clarified version of a common assumption necessarily amounts to an analytical model of law seems unwarranted.


Sociological jurisprudence

The theory of justice

Law, morality, and natural law

      In all these questions the word “law” refers to the specialized form of social control familiar in modern, secular, politically organized societies. The word “morality” in the four questions may, however, refer to any of the following: (1) the community's relevant factual behaviour patterns (its mores); (2) its socially approved behaviour patterns, as sanctified by some widely held rational or religious ideal, whether observed in practice or not (social morality); or (3) the moral ideals accepted by each individual as binding on himself and on others, whether or not those others agree (individual morality). All these, like law, are means of controlling human conduct by setting normative (norm) standards; and all three have a constantly changing interaction with each other, as well as with law.


      It has always been possible to trace a mainstream of natural-law thought, flowing from Aristotle's (Aristotle) premise that the “nature” of any creature, from which obligations must be derived, is what it will be in its fullest and most perfect development. For man, this means what he is when the powers and qualities distinguishing him from other creatures, namely, his reason and his impulse to social living, are fully developed. Natural law embodies those obligations that will appear if mankind's reason and sociality are fully unfolded.

      A major difficulty presented by this attempt to develop normative standards appears to be that it is very difficult to demonstrate, let alone create a sense of obligation toward, values that are only immanent. All theories of natural law, moreover, have found it necessary to rely on what are essentially intuitions or preconceptions as to what man's true nature is. All such theories acknowledge, for instance, that the full development or fulfillment of an entity is not the same as its mere continued existence, that there may be a “warping” or “impeding” of the natural tendencies, so that what exists may then “be said to be unsound or incorrect.” Thus, mere factuality is not a sufficient source of obligation. Similarly, St. Thomas Aquinas (Aquinas, Thomas, Saint) himself, in identifying the “inclinations” from which men may learn natural law, found it necessary to order these in grades of inclination, so that those inclinations most closely related to reason and sociality take priority over those concerned (for example) with procreation and self-preservation. The criteria by which such a hierarchy is ordered must be drawn from sources other than the factual inclinations themselves. The “lower” grades (such as self-preservation) may well be based on something like instinct; but the question arises at the higher grades whether there is any comparable instinct by which men seek to find moral precepts binding all of them in common. Aquinas here appealed to synderesis, a kind of sympathetic understanding found in men, a disposition (habit) of the practical intellect inclining them to the good and murmuring against evil.

      To derive from this synderesis a universal natural law, however, it would be necessary to demonstrate some “universal conscience” of all mankind. But natural lawyers faced with the fact that men's consciences do not coincide explain that conscience may err and reason be corrupt. Invocation of synderesis is in fact helpful not as an account of how one may arrive at factually based normative standards but as an illustration of the psychological tendency of men to assert values.

Historical survey of legal theories

The ancient world
Greek thought (Greek law)
      The major contribution of Greece was a body of philosophical and cosmological ideals about justice, more apt for orators' appeals to popular assemblies than for preceptual application to day-to-day life situations.

      Early Greek cosmologies (cosmology), embedded in some of the earliest myths, had seen the individual as held within a kind of transcending harmony of the universe, emanating from the divine law ( logos) and expressed in relation to human life in the law ( nomos) of the polis, the city-state. The later Sophists (Sophist), however, who examined critically all assumptions relating to life in the city-state, pointed to the wide disparities in human law and morals and rejected the claim that this human law (nomos) necessarily reflected any universal law (logos). Taking man as “the measure of all things,” they rejected any claims of his law (nomos) to absolute value and saw law and justice and values generally as created by men's reasons, in their multitudes and generations, in all their individuated, relativistic, and historically changing dimensions.

 In the restless intellectual and political climate of 5th-century Athens, Plato was concerned to redefine the nature of justice by relating it to something far more permanent and absolute than the nomos of the city-state. He assigned “reality” to the unchanging archetypal forms—i.e., the ideas—of things rather than to the ephemeral phenomena as superficially and confusedly perceived by individual men unenlightened by philosophy. In the utopia described in the Republic, Plato defines justice in an architectonic sense: justice prevails when the state is ordered in accordance with the ideal (Idealism) forms ascertained by its philosopher-kings and is thus unrelated to the nomos of the city-state. There is no need for human law, since transcendental knowledge rules. In his later thought, however, as revealed in Politicus (the “Statesman”) and the Laws, when he is concerned to describe a more practicable but nevertheless “second best” state, Plato assigns to law a role almost as important as that of knowledge in the Republic. A famous classification of states given in Politicus is indeed based on the criterion of whether or not they are ruled by law. The law as Plato here conceived it, however, was not mere convention or the imperfect individual judgments of men but a reflection of the common human reason in its full development. To this extent the rule of law might approximate the ideal rule of knowledge envisaged in the Republic, for in the inherited law of men is crystallized that much wisdom of which they are capable.

      And yet it was difficult for Plato to find justification for such an argument in his basic philosophical position, with its emphasis on the contrast between the mere opinion of ordinary men and the transcendental knowledge of the philosopher. Aristotle, who in common with Plato held a view of nature or reality that transcended the variability of things as perceived by the senses, was, however, able more successfully to defend the validity of a law resulting from the practice of ordinary men. For Aristotle's transcendental reality is more firmly related to things as they are: it comprises that which they will become as their potentialities unfold in nature toward the end that is theirs in nature. Man (human being), in his nature, is moral, rational, and social, and his law may be judged by the extent to which it facilitates the development of these innate qualities.

      The Greek conception of natural law underwent further refinement by the Stoic (Stoicism) school of philosophy, which became active toward the end of the 4th century BC. The Stoics posited the existence of a natural law, the jus naturale, which was an emanation of the lex aeterna, the law of reason of the cosmos. The existence of an innate reason in men linked everyone with the cosmic order and subjected all to a universally valid moral law. This latter concept thoroughly infused Roman thinking, largely as a result of the influence of Stoic philosophy on Rome.

Roman thought
      Greek law scarcely survived as a system, because it never developed a class of legal specialists or abandoned its lay administrators or its popular tribunals of grotesque size. Roman law, on the other hand, developed through the efforts of expert jurisconsults (learned lawyers (lawyer)) and praetors (praetor) (magistrates) into a permanent heritage of Western society. By its adoption into works such as Cicero's De republica as well as in the work of the great jurisconsults, Stoic speculation concerning reason and nature was brought onto the level of precepts for concrete problem solving. The crude, tribal jus civile (“civil law”) of the Romans was thus transformed into a natural-law-based jus gentium (law applying to all people), a set of principles common to all nations and appropriate, therefore, for application to foreigners as well as Romans.

Hebrew thought (Hebrew literature)


The Middle Ages
      St. Augustine of Hippo, in attempting to refute the pagan assertion that Christianity was responsible for the decline of Roman power, reintroduced Stoic philosophy alongside Judeo-Christian thought into the stream of modern jurisprudential speculation. He placed God's reason beside God's will as the highest source of the unchangeable, eternal, divine law binding directly on man and all other creatures. The divine law was thus accessible to both man's reason and his faith and was not, as St. Paul had largely concluded, the product of his will alone and hence not rational in terms of human as opposed to divine reason.

      At a second level, Augustine placed the no less unchangeable natural law, being the divine law as man is given the reason, heart, and soul to understand it. The third level, of temporal, or positive, law (for him, the Roman law of the Christian Roman Empire), was warranted by the eternal divine law, even though it changed from time to time and from place to place, so long as it respected the limits laid down by the divine and natural law. This rationale of secular (secularism) power, some have thought, preserved the idea of government under law through the disintegration of the ancient world, for recultivation in the revival of learning of the 12th and 13th centuries.


      The tendency to make reason prevail over will (as in Plato's call for philosophers to be kings or the Arab Averroës' (Averroës) call for philosophers to interpret what is revealed) was challenged by a voluntarist countermovement at Paris and Oxford in the quarter of a century after Aquinas' death in 1274. A Franciscan, John Duns Scotus, insisted on the uniqueness of all beings as finally traceable to the uniqueness of God's will. All precepts, even of the divine law, depend on the single precept “Love God,” and, since not reason but will gives access to this, there is no natural law accessible to man's reason. All that can be required of human, or positive, law is that it must be “consonant” with the precept “Love God,” or with any other precept willed by God.

The Renaissance period to the 18th century


Natural law and social-contract theory (social contract)
      The supremacy of the human lawgiver, as posited by Machiavelli and in their diverse ways also by the French and English political theorists Jean Bodin (Bodin, Jean) and Thomas Hobbes (Hobbes, Thomas) and others, interwove in the following centuries with continued insistence by Grotius and others on the dominance of the divine reason and man's participation in it, by which he has access to the natural law.

      The Dutch political and legal philosopher Hugo Grotius (Grotius, Hugo), amid the political expediencies and anarchy of the Thirty Years' War (1618–48), sought to introduce a degree of normative restraint among the monarchical rulers of the newly emerged sovereign states of Europe and to establish a basis in natural law for a rejection of raison d'état as a just cause for war, as well as for legal limits on the means and modes of violence in war. Even if the wills of sovereign states form the basis of the international order, Grotius argued, “the totality of the relations between States” is still “governed by law.” That law he found in an updated version of the Stoic (Stoicism) natural law, as naturalized into Roman law and Christian theology.

      With Grotius, as with the Stoics, the normative or moral power of the natural law derives from the fact that man's innate nature (itself part of the nature of the cosmos) and his propensities are viewed as ideal or inherently good. In Grotius' own time, however, there arose a Skepticism toward such unfounded optimism, a skepticism that underlies the thought of Hobbes.

      With Hobbes (1588–1679), as with the Greek Sophists, the nature of man is not the ideal nature of Grotius and the Stoics. It is rather man's supposed actual nature, before sociality and authority have tempered it. Man, in a state of nature, is motivated by desires and aversions and most of all by the desire to preserve his biological existence. This need for security is best met by all men vesting their rights of self-help in a sovereign, whether that sovereign be a single man or an assembly of men, and subjecting themselves to the laws of that sovereign, or “great Leviathan.”

      The reason why men must obey the law of the sovereign state, which is the only institution capable of protecting men against each other, is thus based firmly in Hobbes's conception of man's nature, albeit a very different conception from the idealist premises of earlier theories of natural law. Natural-law theorizing after Hobbes is thus divided into these two major streams.

Judicial supremacy
      By the beginning of the 17th century the idea of applying natural law as a test of the validity of the positive law (the law of the particular human jurisdiction) had passed from the province of speculative writers to courts of law. The English jurist Lord Coke (Coke, Sir Edward), in Bonham's case in 1610, was already referring to the tradition that “when an act of Parliament is against common right or reason or repugant or impossible to be performed, the common law will control it, and adjudge such act to be void.” About a century before that, an English treatise known as “St. Germain, Doctor and Student” had already presented a three-tier hierarchy of the law of God, natural law (the law of reason), and human (positive) law, obviously deriving from Augustine and Aquinas.


Decline of natural law
      If man is the measure of all things, as the Sophists (Sophist) taught, then a given society of men is the measure of its culture, including its moral and legal standards. In the modern period the French jurist and political philosopher Montesquieu's (Montesquieu, Charles-Louis de Secondat, baron de La Brède et de) De l'esprit des lois (1748) and Lettres persanes (1721) offered the thesis that a people's law and justice are determined by the particular factors and environment that operate upon them. They thus could not, as the natural-law theory of the time held, be unchanging from age to age and from people to people. The French sociologist Auguste Comte's (Comte, Auguste) Système de philosophie positive (1851–54), which set out to explain positive laws, like other social facts, by reference to verified hypotheses concerning cause and effect and interaction, was similarly antithetical to natural-law theory as it had so far developed. To Comte, metaphysical (metaphysics) concepts about such abstractions as ideal essences belonged to a past stage in man's intellectual development. And Darwin's On the Origin of Species by Means of Natural Selection (1859), the English philosopher Herbert Spencer's (Spencer, Herbert) positivism, and other related thinking of the period provided a biological model of self-development of organisms and institutions through a struggle in which survival was a function of challenge and response in the given environment. Change and adaptation, rather than constancy and inviolability, were thus at the heart of their system.

      Under the leadership of anthropologists, analyses of man's internal process of response to the exigencies of existence within a particular culture—to conscious and subconscious psychic drives and motivations—deeply affected the jurisprudential study of law and society and helped to bring natural-law thinking to a 19th-century nadir. In the anthropologist Bronislaw Malinowski's (Malinowski, Bronisław) most mature statement on the matter, he distinguished four major meanings of the word law as important in understanding the growth of civilization. They included “laws of nature” in the scientific sense of rules governing men's conscious adaptations to the environment; rules of “efficiency” and “convenience” according to which the group lives; rules for conflict adjustment; and rules about enforcement of the last two. No conception of natural law, which had engaged earlier thinkers for two millennia and more, was included.

“Idealism” (Idealism) and justice
 Another line of thought, which was also divorced from natural-law concepts, was contained in the Idealist philosophy (transcendental idealism) of Immanuel Kant (Kant, Immanuel). Fundamental to Kant's ethical and jurisprudential reasoning is the premise that all moral concepts have their basis wholly in a priori thought (a priori knowledge), that they can be arrived at by reason alone, without reference to experience or recourse to intuition of rules alleged immanent in experience. Man, furthermore, is a free agent whose actions are determined by aims that he is at liberty to select. From such premises Kant deduced the nature of an ideal law, in which is implicit a theory or criterion of justice. This ideal law comprises the conditions under which all members of society can enjoy the maximum freedom from subjection to the arbitrary will of others.

      But Kant's supposedly a priori concepts are in fact as transcendental as anything natural lawyers have offered. It is thus not surprising that later thinkers, such as Johann Fichte (Fichte, Johann Gottlieb), Kant's Idealist successor, had little difficulty in putting the new Kantian wine into natural-law bottles.

      The 20th century saw a fresh attempt at the Kantian (Kantianism) approach in the work of the German legal philosopher Rudolf Stammler (Stammler, Rudolf). Adopting the Kantian position that knowledge is independent of sensory experience, Stammler set out to discover pre-experiential categories, or “pure forms,” of thinking about law. Stammler arrived at a social ideal of a “community of free-willing men,” an ideal that he claimed to have universal validity because of its supposed a priori basis. Having thus arrived at a “pure” ideal of society, untainted by empirical content deriving from sense perception, he felt able to formulate equally pure principles for just law that would regulate his ideal society. Stammler's pure idea of society comprised the harmony of individual and common purposes: his pure idea of just law thus comprised those principles conducive to such harmony—the mutual respect of individuals for each other's purposes and the participation of all in the achievement of the common purposes.

      The different stream of Idealism flowing from Hegel's philosophy of history was fed into jurisprudence by Josef Kohler (Kohler, Josef), Stammler's close predecessor in that subject in the Berlin University. His work is still another effort to relate social facts and the norms of justice by exposing the immanence of values in facts—in “civilization” in Kohler's case.


The 19th and 20th centuries
Analytical Positivism

      Among the chief meanings of Positivism in the legal-analytical sphere are the separation of law as it is and law as it ought to be, stress on the analysis of legal concepts, reliance on logical reasoning in the search for applicable law, and denial that moral judgments can be based on observation and rational proof. Anglo-Saxon analytical Positivism has directed itself mainly to the logical dissection, appraisal, and clarification of the precept element of law, ignoring the elements consisting of lawyers' traditional techniques and received ideals. By the nature of its tasks, analytical jurisprudence does not concern itself with either the facts surrounding or the consequences flowing from legal precepts or with their ethical evaluation, though particular analysts may also be interested in those matters.

      Analytical Positivism in England began with the work of the philosopher and legal reformer Jeremy Bentham (Bentham, Jeremy). His work influenced John Austin, the most outstanding figure in English jurisprudence, who set out to analyze the notions pervading English law. In order to delimit his subject, he defined positive law as the commands of a sovereign addressed to political inferiors and backed by threats of evil in the event of disobedience. Positive law might well be derived from moral precepts and other sources, but such precepts become law only when commanded by a sovereign.


Historical Positivism

      The leading figure in the historical school was the German jurist Friedrich Karl von Savigny (Savigny, Friedrich Karl von), who confronted the natural-law aspiration for a universal human code with the singularity of the law of particular peoples resulting from their unique sociocultural experiences.


      Savigny's emphasis on the need of legal change to respect the continuity of the Volksgeist offers a pre-Darwinian concept of juristic evolution. The Volksgeist corresponds to modern notions of social rather than biological inheritance. Savigny's sense of the impotence of legislatures in the face of the restraints imposed by the Volksgeist foreshadows modern recognition of the social and psychological limits of effective legal action.


      Maine's experience in India after the publication of his Ancient Law in 1861 broadened his interests so that he embraced less well known and less developed systems, such as the Brehon, Hindu, Welsh, Germanic, Anglo-Saxon, and Hebrew. His breadth of interest matched the concurrent growth in anthropological study of primitive peoples.


Economic interpretations
      Certain residues of the Marxist (Marxism) economic interpretation of history have won a central place in sociological (socialism) jurisprudence (see below Growth of the sociological school (law, philosophy of)), as indeed in most branches of social science. One such persistent trend of thought is the close interrelatedness of legal, ethical, economic, and psychological inquiries; another is the pre-eminence among these of economic factors. According to Marxist doctrine, the political and judicial systems—the state and the law (Soviet law)—represent the superstructure of society, their nature being determined by the economic base—the mode of production and exchange. The state and its repressive law are but instruments of class domination, becoming redundant under Communism, which has no need of coercion. During the transition to full Communism, they would “wither away.” There were, of course, softenings of this bold doctrine in its original authors, with admissions that the ethical or legal superstructure should not be seen as a merely passive effect; and Lenin (Lenin, Vladimir Ilich) himself pressed to extremes both the passion of the original thesis and its qualifications. Lenin, indeed, saw state power as an essential weapon of the proletarian dictatorship until the movement to a full Communist society should be completed.

      The first half-century of the Soviet Union, with its steady consolidation of state power and its attendant law, has imposed the severest strains on the withering-away prediction. The general tenor of explanation is that the “law” the disappearance of which is prophesied refers only to the kind of coercive order manifest in such instrumentalities as the courts, police, and jails of capitalist countries.

      Within these sweeping theses of Marxist thinking, more modest subtheses have played a valuable part. The Socialist jurist Karl Renner (Renner, Karl), for example, in his Rechts-institute des Privatrechts und ihre soziale Funktion (1929), was concerned to show that the legal conception of ownership, formulated in early economies, had profound new effects when continued as an institution of the 19th-century economy. It then, through the law of property and contract, alienated into private hands great segments of what should be in the public domain.

      Even more notable are the German sociologist Max Weber's (Weber, Max) studies of the correlations of socioeconomic and ethicojuristic change, freed of the straitjacket of economic determinism. In these, the impact of unique factors or combinations of factors in particular civilizations is taken into account, including the existence of accepted systems of values, immediate and ultimate, which may (and in Weber's view did) have a decisive effect on the emergence of the Western capitalist system.

Sociological jurisprudence


      An outstanding figure of the early sociological school was a German, Rudolf von Jhering (Jhering, Rudolf von), who in the 1860s contributed to the intellectual stream a theory of justice predicated on a view of law as a social phenomenon. He saw law as an outcome of the struggle of men to fulfill their purposes and of the force that they marshal behind this. Another historical jurist, the German Otto von Gierke (Gierke, Otto Friedrich von), stirred a related interest with his emphasis on the importance of the inner life and activities of groups and associations as sources of binding social norms. This opened up jurisprudence to some psychological issues. Gierke's work also contributed to the later American Neorealism through its influence on Oliver Wendell Holmes (Holmes, Oliver Wendell, Jr.), Jr., and to the theory of the “living law” of the Austrian jurist Eugen Ehrlich (Ehrlich, Eugen), in the first decade of the 20th century. Ehrlich insisted on the profuse norm-creating activities of the countless associations in which men are involved.

      At the beginning of the 20th century a great variety of psychological hypotheses were brought to bear on law. A theory of dynamic psychic drives, for example, was propounded by an American sociologist, Lester F. Ward (Ward, Lester Frank), who argued that such drives could be utilized in social planning. Freud's exploration of psychic activity on a subconscious level, as well as studies of the nonrational and the irrational in the social process by the Italian and German sociologists Vilfredo Pareto (Pareto, Vilfredo) and Max Weber, were also profoundly influential.

Revival of natural-law theories
      Iusnaturalism, in the sense of the assertion of an order of norms for human conduct transcending human will, to which the validity of positive law is subjected, has certainly experienced a 20th-century revival. The massive human delinquencies of the century, such as those of the Nazis (National Socialism), have been important in stimulating these modern natural-law yearnings. The revival, indeed, has rarely overthrown dominant Positivist positions, but it has certainly reopened some questions that Positivists have not adequately faced.

      Contributions to this re-emergence have come from varied directions, rather than from a single intellectual movement. They have often avoided explicit reference to natural law and have even expressed hostility or ridicule toward it. The German Stammler and the French jurist François Gény (Gény, François) were certainly among its pioneers. Gény's Méthode d'interprétation (1899) displayed the inescapably creative (or lawmaking) role of the judiciary even under a comprehensive code such as the Code Napoléon (Napoleonic Code). It led him to the questions of what are “the sources of law” and where does the legislator's prescription fall short. Answers to such questions must be based on the facts of each particular situation to be adjusted—the legislator cannot impose his view on the court. This line of thinking foreshadowed a variety of doctrines about “the nature of things” or “the nature of facts,” all of which shared the idea that the decisive nature of a situation has its base in the facts for which men seek governing law. The properties and circumstances of these facts themselves afford immediate guidelines for just regulation. The fact situation, if only its essence will be perceived, has the superior applicable norms immanent within it.


      Even as this express reinvocation of natural law was proceeding, the French public lawyer Léon Duguit (Duguit, Léon) was expressly denouncing it. Duguit's concern was to place law and lawyers within what he saw to be the correct frame. This he found in Émile Durkheim's (Durkheim, Émile) Positivist sociology. This led him, with some paradox for a contemner of natural law, to insist that law is but “le produit spontané des faits” (“the immediate result of the facts”). The observed “facts” of social solidarity arising from economic specialization of functions generated, Duguit argued, the society's norms. Breach of these norms causes social disorder and a spontaneous movement toward readjustment. Even a supreme legislator was bound (Duguit affirmed) by this objective “rule of law,” so that his acts violating it are void, even apart from any other constitutional restraint. All this bears the clear iusnaturalist mark of the assumed immanence in observed facts of a transcending and overriding order. It pays cryptic homage to a natural law, fealty to which Duguit denied.

      The German legal philosopher Gustav Radbruch's (Radbruch, Gustav) turn toward natural law at the end of a life of great contributions to democratic legal relativism and Positivism was very different. Positivism, Radbruch argued, had encouraged German lawyers to stand by at Nazi barbarism, declaring “Gesetz ist Gesetz” (“Law is Law”). Nor was Radbruch's turn to natural law in any way cryptic. He came to declare quite openly that:


      The linkage with the revived natural law of the legal institutionalism of the French legal philosopher Maurice Hauriou (Hauriou, Maurice-Jean-Claude-Eugène) and the writer and historian Georges Renard is different again. As with Duguit, the linkage is not proclaimed, but no overt hostility disguised their obvious sympathy for Thomist (Thomism) positions. Theirs is a Catholic version of institutionalism (which regards social institutions such as the family or the corporation as expressing the social reality underlying the law). The natural-law assumptions are apparent in the insistence on “the principles of organization,” the “communion” of members in realizing “durable ideals,” and the placing of men's powers of organization into the service of such ideals, as essential elements of any institution. For them, as for Duguit, the principles of justice were principles of social organization, immanent and self-evident.

      It has been tempting for many to seek kinships between natural law and Existentialism, as was attempted by the German legal philosopher Werner Maihofer. Such efforts seem, however, destined to denature either Existentialism or natural law itself. Even in all their varieties, Existentialist positions approach no nearer to natural law than to assert that the traumas, anxieties, and demands of mere “existence” confront men with fateful value choices. Yet this is far short of asserting that any transcending principles of harmony may be discoverable.

      Abstract symbols such as “social solidarity,” “the principles of social organization,” or “immanence in the facts of social life” are by virtue of their ambiguity susceptible to misappropriation by absolutist governments. The same may be said of Savigny's Volksgeist notion, as witness its affinity to the racialism of Nazi law. Thus, while the modern revival of natural law has been in part a revulsion from totalitarianism, it can also be exploited to rationalize totalitarianism.

      There is another paradox also: The growth of the social sciences has invited restatement of natural-law traditions in terms of social ideals. Yet the very complexity of the social and economic orders and of their attendant sciences has placed forbidding barriers before the aspiration to base justice or other values on “objective” knowledge. Some have been tempted to hope that natural law may somehow overleap such barriers.

Pure theory of law
      In part, at least, the influence of the distinguished legal philosopher Hans Kelsen's “pure theory of law” reflects early 20th-century Skepticism about natural law and sociology, to both of which Kelsen opposed his claimed purity of method; i.e., a method free from contamination by values of any sort.



Modern schools of realism (realism)
 The American jurist Oliver Wendell Holmes's (Holmes, Oliver Wendell, Jr.) description of law in 1897 as “what the courts will do in fact” and of the “real ground” of decisions as resting often in some “inarticulate major premise” rather than in expressed reasons gave 20th-century legal realism its central theme.




      Some of the problems that these writings address are rather tied to the special experience of their authors' own legal cultures. Others reach out independently toward truths already reached earlier in Anglo-American jurisprudential scholarship, especially as to the merely noetic and conceptual (rather than physical or psychological) nature of rights, duties, and liabilities.

The status of contemporary philosophy of law
      By the middle of the 20th century, serious scholars no longer argued for or against the exclusive imperium of either the analytical–logical, the justice–ethical, or the sociological approach. Whether jurisprudence is a single field in some scientific sense or whether its unity lies in the need to serve the intellectual needs of those concerned with making, applying, improving, or generally understanding law, all the above areas are included within it.

      A characteristic feature of contemporary jurisprudence is what has come to be known as “the revolt against formalism”; that is, against preoccupation with the technical and logical aspects of law. It can be traced back to Savigny's (Savigny, Friedrich Karl von) early 19th-century reaction against natural law, to Jhering's (Jhering, Rudolf von) attacks on the German Pandectists (commentators on Roman law), and to Maine (Maine, Sir Henry) and the work of the anthropologists and early sociological jurists. Its early pressure was toward broader and deeper history, toward recognition of the organic nature of the processes of cultural growth, and toward problems of social action and the value choices therein entailed.

      In the United States the legal philosopher Morton White identified five later contributing strains of thought, in cluding the pragmatism of John Dewey (Dewey, John); the economist Thorstein Veblen's (Veblen, Thorstein) institutionalism, rejecting both the abstractions of classical political economy and the fatalism of the Marxist (Marxism) interpretation of history; the revolt within jurisprudence of the American legal realists already described; and the approach to history as no mere chronicle of kings and battles but rather as a product of underlying economic forces and a guide to present and future civilizations.

      The sometimes-overhasty iconoclasms of this revolt have proved less important than its positive affirmations. It has affirmed, for example, that the evaluating activities of justice must somehow move alongside the describing activities of sociological jurisprudence, that the choices of ethics, social policy, and justice still remain to be made when all the empirics of social science are done. The central question includes not merely what are the facts but also what should be done about the facts. These affirmations reject any regression to simple amoralism, stirring new temptations to return to natural law or other intuitive absolutes.


Growth of the sociological school
      The most eminent pioneers and champions of modern sociological jurisprudence were Roscoe Pound in the United States and Hermann Kantorowicz (Kantorowicz, Hermann) in Europe. For both, the task of sociological jurisprudence, though orientated mainly to practical administrative or legislative problems, included that of framing hypotheses (as to the limits of effective legal action, for example) on which to base general laws of the operation of law in society.

      As with the social sciences, the principal methods available to sociological jurisprudence are those of survey, statistical analysis, comparative observation, and experimentation. The controls and corrections available usually fall far short of those of the natural-science models. Much work in sociological jurisprudence has merely brought to bear upon the law relevant findings from other social sciences. But it may also generate its own findings, as it has done in relation to traffic laws, control of moneylending, credit unions, bankruptcy laws, the effect of antitrust practices or of poverty on legal rights, the theory of appellate judicial decision making, and a host of other matters. Examinations of the prehistory and aftercareers of convicted criminals and of persons on probation or parole, probings of family and environmental influences bearing on potential deviance, and attempts to identify decisive factors predictive of future deviance are among the staples of sociological jurisprudence.

      Sociological jurisprudence is confronted by the questions whether (and, if so, how and how far) it is possible through empirical methods to approach central issues of social action that involve value judgments. The fact that lawyers are necessarily involved with ideas of obligation, values, (normative ethics) and norms (norm) sharpens this confrontation. A second group of problems arises from the high level of individuality of men, groups, and societies, from the unending variety of their emotions, roles, and expectations, and from the feedback effects on human behaviour that the empirical observation and testing of that behaviour brings about.




The future of sociological jurisprudence


Julius Stone

Additional Reading
Leading treatises in English include A. Ross, Om ret og retfaerdighed (1953; Eng. trans., On Law and Justice, 1958); W. Friedmann, Legal Theory, 5th ed. (1967); H. Kelsen, General Theory of Law and State (1945); G.W. Paton, A Text-Book of Jurisprudence, 3rd ed. by D.P. Derham (1964); R. Pound, Jurisprudence, 5 vol. (1959); J. Stone, Legal System and Lawyers' Reasonings (1964); Human Law and Human Justice (1965); Social Dimensions of Law and Justice (1966); Lev S. Jawitsch, The General Theory of Law: Social and Philosophical Problems (1981; trans. from the Russian); and Robert S. Summers, Instrumentalism and American Legal Theory (1982). Neil MacCormick, H.L.A. Hart (1981), is an analysis of the legal philosophy of the prominent jurist.Notable works on the history of philosophy of law include E. Wolf, Griechisches Rechtsdenken, 3 vol. (1950–54); A. Verdross, Abendländische Rechtsphilosophie, 2nd ed. (1963); R. Marcic, Geschichte der Rechtsphilosophie (1971); and G. Fasso, Storia della filosofia del diritto, 2 vol. (1966–68; 2nd ed., vol. 1, 1970). David Miller, Philosophy and Ideology in Hume's Political Thought (1981), is a comprehensive survey of Hume's thought on judgment, justice, political power, and government.(Analytical jurisprudence): J. Austin, Lectures on Jurisprudence (1832); H.L.A. Hart, The Concept of Law (1961); W.N. Hohfeld, Fundamental Legal Conceptions As Applied to Judicial Reasoning (1923); H. Kelsen, Reine Rechtslehre, 2nd ed. (1960; Eng. trans., Pure Theory of Law, 1967); A. Kocourek, Jural Relations, 2nd ed. (1928); I. Tammelo, Outlines of Modern Legal Logic (1969). (Ethical jurisprudence): C.K. Allen, Aspects of Justice (1958); J. Bentham, Introduction to the Principles of Morals and Legislation (1780); E. Bodenheimer, Treatise on Justice (1967); H. Kelsen, What is Justice? (1957); C. Perelman, Justice (1967); G. Radbruch, “Legal Philosophy,” in K. Wilk (ed.), The Legal Philosophies of Lask, Radbruch and Dabin, pp. 47–226 (1950).(Sociological jurisprudence, including historical jurisprudence): W. Aubert (ed.), Sociology of Law (1969); E. Ehrlich, Grundlegung der Soziologie des Rechts (1913; Eng. trans., Fundamental Principles of the Sociology of Law, 1936); L.M. Friedman and A.S. Macaulay (eds.), Law and Behavioral Sciences (1969); G. Gurvitch, Sociology of Law (1942); K.N. Llewellyn, Jurisprudence (1962); H. Maine, Ancient Law (1861); F. von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft (1830; Eng. trans., Of the Vocation of Our Age for Legislation and Jurisprudence, 1831); E.M. Schur, Law and Society (1968); J. Stone, Law and the Social Sciences in the Second Half-Century (1966).See also Donald Davidson, Essays on Actions and Events (1980); Hannu Tapani Klami, Anti-Legalism (1980); M.A. Stewart (ed.), Law, Morality, and Rights (1983); John D. Hodson, The Ethics of Legal Coercion (1983); Anthony Allott, The Limits of Law (1980); and B.R. Krishna Iyer, Law Versus Justice (1981).

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Universalium. 2010.

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