Schools of Jurisprudence
In the last decades, the principal schools of jurisprudence are:
- the natural-law school,
- the analytical school,
- the historical school,
- the comparative school, and
- the sociological school.
“The first three differ mainly in their views of the nature and origin of law and its relation to ethics.
To the natural-law jurist, law is antecedent to the state; to the analytical jurist, it is the creation of the state; and to the historical jurist, state and law are social products, developing side by side, each influencing the other. To the natural-law jurist, law is cognizable by pure reason; to the analytical jurist, it is the command of the sovereign power; to the historical jurist, it is the formulated wisdom of men and women. To the natural-law jurist, law is applied ethics, and, in the extreme form of the theory, that which is not right is not law. To the analytical jurist, a law that commands what is ethically wrong or forbids what is ethically right is no less a law if it proceeds from the political sovereign. The historical jurist accepts this position taken by the analytical school, but points out that it is difficult for a lawmaker to act otherwise than in accord with the contemporary sense of right, and that laws which run counter to that sense are not likely to be enforced. Historical jurisprudence differs from analytical jurisprudence chiefly in emphasizing the great part played by social custom in developing and establishing law. To the analytical jurist, customary law, including judicial custom, is an anomaly that should be abolished by covering the whole field of social relations with written codes.”(1)
Schools of Jurisprudence
Related Work and Conclusions
Resources
See Also
References (Papers)
- Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld, Aug 2017
- Three Principles Of Democratic Criminal Justice, Joshua Kleinfeld, Aug 2017
- Empowering Individual Plaintiffs, Alex Stein, Jul 2017
- Justice Scalia’s Eighth Amendment Jurisprudence: An Unabashed Foe Of Criminal Defendants, Michael Vitiello, Jul 2017
- Court Review: Volume 39, Issue 3 – Trial By Metaphor: Rhetoric, Innovation, And The Juridical Text, Benjamin L. Berger, Jul 2017
- Arguing With Friends, William Baude, Ryan D. Doerfler, Jul 2017
- Understanding Medical Records In The Twenty-First Century, Samuel D. Hodge, Jr., Joanne Callahan, Jun 2017
- Florida’S Contradiction And The Tipped Employees’ Plight: Why The Florida Civil Rights Act Of 1992 Mandates That Florida Raise The Tipped Minimum Wage And The Necessary Standard Of Review, Jamy E. Barreau, Jun 2017
- For Legal Principles, Mitchell N. Berman, Jun 2017
- The Irrational Actor In The Ceo Suite: Implications For Corporate Governance, Renee M. Jones, Jun 2017
- Representing Mexican Clients In U.S. Courts In Claims Of Liability In Industrial Accidents, Ted Occhialino, Jun 2017
- El Derecho A Abortar Implica La Explotación Y El Abandono De Las Mujeres, Richard Stith, Jun 2017
- Notas A Tener En Cuenta Sobre El Contradictorio Procesal, Según El Ix Pleno Casatorio Civil, A Fin De, Irónicamente, Evitar Pronunciamientos Similares Al Citado Pleno, Paul Cajacuri Jancachagua, Jun 2017
- Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky, Jun 2017
- An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky, Jun 2017
- The Irrational Actor In The Ceo Suite: Implications For Corporate Governance, Renee M. Jones, Jun 2017
- On What Matters In Comparative Constitutional Law: A Comment On Hirschl, Katharine G. Young, May 2017
- Sobre La Marca Figurativa «Ave»: ¿Una Cuestión De Lenguas? – Sentencia Del Tribunal General De 5 De Abril De 2017, Asunto T-367/15: Renfeoperadora / Euipo (Ave), Luis González Vaqué, May 2017
- Revolutionary Disobedience, Philip K. Y. Lau, May 2017
- Do Code Violations And Liens Run With The Land? Carving Out A Changing Landscape To Section 162.09(3), Florida Statutes, With Enactment Of Section 723.024, Florida Statutes, Mobile Home Park Lot Tenancies, Harry M. Hipler, May 2017
- Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez, May 2017
- I Share, Therefore It’s Mine, Donald J. Kochan, Apr 2017
Resources
Notes
1. “Jurisprudence,”Microsoft® Encarta® Online Encyclopedia 2000. Contributed By William O. Douglas, M.A., LL.B., LL.D. Late Associate Justice of the U.S. Supreme Court.
See Also
Theory of Science of Law
Jurispruedence
Schools of legal theories
Concepts of American Jurisprudence
Legal Positivism
Hans Kelsen
Natural Law
Jurisprudence Schools of Jurisprudence
Introduction to Schools of Jurisprudence
The principal modern schools of jurisprudence are the natural-law school, the analytical school, the historical school, the comparative school, and the sociological school. The first three differ mainly in their views of the nature and origin of law and its relation to ethics.
To the natural-law jurist, law is antecedent to the state; to the analytical jurist, it is the creation of the state; and to the historical jurist, state and law are social products, developing side by side, each influencing the other. To the natural-law jurist, law is cognizable by pure reason; to the analytical jurist, it is the command of the sovereign power; to the historical jurist, it is the formulated wisdom of men and women. To the natural-law jurist, law is applied ethics, and, in the extreme form of the theory, that which is not right is not law. To the analytical jurist, a law that commands what is ethically wrong or forbids what is ethically right is no less a law if it proceeds from the political sovereign. The historical jurist accepts this position taken by the analytical school, but points out that it is difficult for a lawmaker to act otherwise than in accord with the contemporary sense of right, and that laws which run counter to that sense are not likely to be enforced. Historical jurisprudence differs from analytical jurisprudence chiefly in emphasizing the great part played by social custom in developing and establishing law. To the analytical jurist, customary law, including judicial custom, is an anomaly that should be abolished by covering the whole field of social relations with written codes.
The natural-law school has its roots in Stoic philosophy and Roman jurisprudence; it was increasingly dominant in Europe from the Reformation to the close of the 18th century. The theory of the analytical school was first sharply formulated by the English philosopher Thomas Hobbes in his Leviathan (1651). The views of this school, however, did not originate in England. The tendency to exalt the function of the legislator appeared on the Continent at the close of the Middle Ages and was associated with the efforts of the national states to rid themselves of the chaos of varying provincial and local customs that had taken form during the Middle Ages. This end could be attained only by national legislation and has been fully attained only by the adoption of national codes.
The historical school dates from the 19th century, as a reaction against natural-law ideas. Its principles were first clearly defined in 1814 by the German jurist Friedrich Karl von Savigny. The latest school, the comparative, of which the leading early exponents were the German legal scholar Rudolf von Jhering and Albert Hermann Post, represents a widening of the field of investigation. Each national law is studied historically and the various national systems are compared at similar stages of development. As a result of this process, not only may the normal course of legal development be discovered, but that which is universal and human may be separated from that which is particular to a single nation or to a special stage of development. Then, as Jhering hoped, it may eventually become possible to write a history of the law of the world. Among the leading British and American writers on comparative law were James Barr Ames, Oliver Wendell Holmes, Jr., Henry Maine, Frederick William Maitland, and Sir Frederick Pollock.
The sociological school of jurisprudence is largely a product of the 20th century. Its approach to the analysis of law differs from that of the other schools in that it is concerned less with the nature and origin of law than with its actual functions and end results. The proponents of sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control. They are concerned with practical improvement of the legal system and feel that this can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences. The American jurist Roscoe Pound was a prominent figure in the school of sociological jurisprudence.” (1)
Resources
Notes and References
- Information about Schools of Jurisprudence in the Encarta Online Encyclopedia
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