Philosophy of Law, History of
PHILOSOPHY OF LAW, HISTORY OF
The problems of authority, law and order, obligation, and self-interest first became central topics of speculation in the thought of the Sophists (late fifth and early fourth centuries BCE). The most famous Sophists all stressed the distinction between nature (physis ) and convention (nomos ), and they put laws in the latter category. They generally attributed law to human invention and justified obedience to law only to the extent that it promoted one's own advantage. Laws were artificial, arrived at by consent; the majority of acts that were just according to the law were contrary to nature; the advantages laid down by the law were chains upon nature, but those laid down by nature were free. In the time of the Sophists notions of law, justice, religion, custom, and morality were largely undifferentiated; yet in this same period some of the crucial problems of legal philosophy were first formulated, and attempts were made at a formal definition of law. Thus, Xenophon (Memorabilia I, 2) reported that Alcibiades, who associated with both Critias and Socrates, remarked to Pericles that no one can really deserve praise unless he knows what a law is. Pericles replied that laws are what is approved and enacted by the majority in assembly, whereby they declare what ought and what ought not to be done. He admitted that if obedience is obtained by mere compulsion, it is force and not law, even though the law was enacted by the sovereign power in the state. Xenophon also reported an alleged conversation between Socrates and the Sophist Hippias in which both maintained an identity between law, or what is lawful, and justice, or what is right, while admitting that laws may be changed or annulled (ibid. IV, 4). Socrates claimed that there are "unwritten laws," uniformly observed in every country, which cannot conceivably be products of human invention. They are made by the gods for all men, and when men transgress them, nature penalizes the breach.
Socrates and the Sophists, as presented in Plato's dialogues, disagreed concerning human nature. The Sophists conceived of man as egoistically motivated and antisocial, whereas for Socrates, as for Plato and Aristotle, man was a social being with other-regarding as well as self-regarding motives, who finds fulfillment in social life. By contrast, the Sophist Callicles, in Plato's Gorgias, holds that man is no exception to the law of nature, according to which the stronger rules; manmade laws and social institutions violate human nature. The less radical Sophists, although they could not identify law with some feature of reality, still accepted its practical usefulness.
Plato and Aristotle
There is hardly any problem of legal philosophy not touched upon by Plato. He wrote during the decline of the Greek polis, when law and morality could appear as mere conventions imposed by shifting majorities in their own interest and the harmony between the legal order and the order of the universe could not easily be maintained. Plato sought to restore, as far as possible, the traditional analogy between justice and the ordered cosmos. Justice, or right action, cannot be identified with mere obedience to laws, nor can a truly moral life be reduced to conformity with a conventional catalog of duties. Duties involve a knowledge of what is good for man, and this bears an intimate relation to human nature. The question "What is justice?" dominates Plato's Republic. Plato conceived of justice as that trait of human character which coordinates and limits to their proper spheres the various elements of the human psyche, in order to permit the whole man to function well. In order to understand the operation of justice in the human soul, Plato examined human nature writ large, the city-state. The state functions well when it is governed by those who know the art of government, and the practice of this art requires a positive insight into the Good. In a just society every citizen performs the role of which he is best capable for the good of the whole. Similarly, in the moral economy of the individual's life, justice prevails when reason rules and the appetites and lower passions are relegated to their proper spheres. A just social order is achieved to the extent to which reason and rational principles govern the lives of its members.
Plato's emphasis on reason found its way into his definition of law. Law is reasoned thought (logismos ) embodied in the decrees of the state (Laws 644d). Plato rejected the view that the authority of law rests on the mere will of the governing power. The Laws contains a detailed discussion of many branches of law and is an attempt at a formulation of a systematic code to govern the whole of social life. In contrast with the ideal polis of the Republic, in which there would be little need for legislation, in the Laws Plato accepted "law and order, which are second best" (Laws 875d).
Aristotle, who discussed law in numerous contexts, nowhere gave a formal definition of it. He wrote variously that law is "a sort of order, and good law is good order" (Politics 1326a), "reason unaffected by desire" (ibid. 1287a), and "the mean" (ibid. 1287b). However, these must be taken not as definitions but as characterizations of law motivated by the point Aristotle was making in the given context.
Following Plato, Aristotle rejected the Sophistic view that law is mere convention. In a genuine community—as distinguished from an alliance, in which law is only a covenant—the law concerns itself with the moral virtue of the citizenry (Politics 1280b). Aristotle sharply distinguished between the constitution (politeia ) and laws (nomoi ); the constitution concerns the organization of offices within the state, whereas the laws are "those according to which the officers should administer the state, and proceed against offenders" (ibid. 1289a). The constitution of a state may tend to democracy, although the laws are administered in an oligarchical spirit and vice versa (ibid. 1292b). Legislation should aim at the common good of the citizens, and justice—what is equal—should be determined by the standard of the common good (ibid. 1283a). Yet Aristotle recognized that the law is often the expression of the will of a particular class, and he stressed the role of the middle class as a stabilizing factor.
In his discussion of the forms of government in Book III of the Politics, Aristotle took up the Platonic problem of rule by the best man versus rule according to laws. A society of equals by its very nature excludes the arbitrary rule of one man. In any case, even the best man cannot dispense with the general principles contained in laws; and legal training helps to make better officers of government. Furthermore, administrators, like all men, are subject to passion, and it is thus preferable to be judged by the impersonal yardstick of the laws. This in no way conflicts with the need to change the law through legislation when it has been found by experience to be socially inadequate. But not all law is the product of legislation; customary law is in fact more important than the written law.
Aristotle's discussion of the judicial process foreshadows many modern notions. Although it is better to have written laws than to rely completely on discretion, "some matters can be covered by the laws and others cannot" (ibid. 1287b20). General rules are insufficient to decide particular cases (ibid. 1286a26), although "well-drawn laws should themselves define all the points they possibly can and leave as few as may be to the decision of the judges" (Rhetoric 1354a32). Aristotle seems to have had two considerations in mind. First, judicial decision making is practical—it involves deliberation—and as such cannot be completely determined in advance. Second, the resolution of disputed issues of fact in a particular case, on which the decision depends, cannot be settled in advance by legislation. This stress on the insufficiency of general rules connects with Aristotle's influential discussion of equity (epieikeia ). Equity is just, "but not legally just but a correction of legal justice" (Nicomachean Ethics 1137b10). Aristotle sometimes seems to suggest that equity comes into play when there are gaps in the law, so that it consists in the judge's acting as the lawgiver would act if he were present. Yet he also seems to suggest that equity corrects the harshness of the law when adherence to the written law would work an injustice. Principles of equity are thus closely related to the unwritten universal laws "based on nature," a "natural justice" binding on all men, even those who have no association or covenant with each other. Nevertheless, what is naturally just may vary from society to society.
The locus classicus of Aristotle's discussion of justice is Book V of the Nicomachean Ethics. Generically, justice has to do with one's relations to others, and there is a sense of "justice" that refers to the complete moral virtue of the member of the community in such dealings. There is also a sense in which "justice" refers to a particular virtue involving the fair dealings of individuals in matters handled by private law. Two kinds of rights fall under this special virtue: rights in division (where each individual claims his fair share of goods, honors, and so on) and rights in redress (for wrongs done by one individual to another, such as failure to fulfill a contract).
The Stoics, who conceived of the universe as a single, organic substance, exercised a lasting influence on legal thought. Nature, which exhibits structure and order, and man both partake of intelligence, or reason (logos ). An animal is directed by a primary impulse toward self-preservation that adapts it to its environment. In man, reason is the "engineer of impulse," and man's actions may be evaluated only within the framework of the whole of nature. The criterion of moral action is consistency with the all-determining law of nature (koinos logos ). This conception of a law of nature that is the ultimate standard of human laws and institutions was combined with Aristotelian and Christian notions to form the long-standing natural-law tradition of medieval legal philosophy. Another important Stoic contribution was the belief in the equality of all men in a universal commonwealth and a rejection of Aristotle's doctrine of slavery.
cicero and seneca
The writings of Marcus Tullius Cicero (106–43 BCE) were important in transmitting classical legal thought to the medieval world. Although he was a professional arguer of legal cases, Cicero's philosophical treatment of law in his De Legibus disclaims any interest in "clients' questions" or the "law of eaves and house-walls." His legal philosophy was essentially Stoic; he denied that the positive law of a community (written or customary), even when universally accepted, is the standard of what is just. Nor is mere utility the standard: "Justice is one; it binds all human society, and is based on one law, which is right reason applied to command and prohibition" (De Legibus I, 15). An unjust statute is not a true law. Law and morality are logically connected, and only that which conforms to the law of nature is genuine law. This view exercised a lasting influence on natural-law thinking and reappeared in the thought of Thomas Aquinas.
Like Cicero, Lucius Annaeus Seneca (c. 4 BCE–65 CE) aided in transmitting Stoic notions to later thinkers. He reiterated the conception of the equality of all men under natural law, but perhaps more important was his conception of a golden age of human innocence, a prepolitical state of nature. Legal institutions became necessary as human nature became corrupted.
The influence of Stoicism may be traced in pronouncements of the Roman jurists. It is disputed whether these were any more than remarks designed to ornament legal texts, but they nevertheless influenced the thought of later ages. The jurists distinguished three kinds of law: jus naturale, jus gentium, and jus civile. In practice, the last originally referred to the law of the city of Rome, but ultimately it was applied to any body of laws of a given community. The jus gentium first meant the law applied to strangers, to whom the jus civile was not applicable, and was later extended to those legal practices common to all societies. Gaius (mid-second century), who systematized the Roman law in his Institutes, identified the jus naturale and jus gentium as universal principles of law agreeable to natural reason and equity. Thus, law was not a mere expression of human will or institution but that which is rationally apprehended and obeyed. The jus gentium was not an ideal law by which the positive law was judged but the rational core of existing legal institutions.
Ulpian (c. 170–228) distinguished jus naturale from jus gentium by stating that jus naturale is not peculiar to human beings but is taught by nature to all animals. Thus, among animals there is an institution similar to human marriage. Slavery and its attendant rules are products of the jus gentium, for by the jus naturale all men were born free. It is not clear, however, that Ulpian regarded slavery as bad. To him we owe the oft-repeated definition of justice: "the constant wish to give each his due" (Digest I, 1, 10). Following Celsus (c. 67–c. 130), he defined law (jus ) as "the art of the good and the equitable" (ibid. I, 1, 1). Again, it does not seem that Ulpian thought of the jus naturale as an ideal law opposed to the jus civile or to the jus gentium. It has been suggested that behind Ulpian's thought was a conception of a natural state antecedent to the conditions of organized society.
The doctrines of the Roman jurists owe their lasting influence to their incorporation into the Corpus Juris Civilis of Justinian (sixth century), principally in the section called the Digest. The compilers of Justinian's Institutes (a section of the Corpus Juris ) seem to have distinguished the jus naturale from the jus gentium and seem to have regarded the former as a set of immutable divine laws by which the positive law may be morally evaluated (Institutes I, 2, 11; III, 1, 11). The Corpus Juris also preserved statements of the Roman jurists concerning the source of the authority to make and unmake the laws constituting the civil law. According to a number of these statements, this authority resides in the consent of the people; however, the statement that "what pleases the prince has the force of law" (Digest I, 4, 1) was probably a more accurate view of the facts. Justinian seems to have combined these views theoretically in his reference to a (nonexistent) "ancient law" by which the Roman people transferred all their powers to the emperor (Codex I, 17, 1, 7).
Early Middle Ages
To the legal thought of the Stoics and the Roman philosophers and jurists the Church Fathers added a distinctively Christian element. The law of nature was no longer the impersonal rationality of the universe but was integrated into a theology of a personal, creative deity. The relationship among the Mosaic law, the Gospels, and natural law emerged as a specific problem; the notion of jus divinum (divine law) as a distinct type of law, along with the three recognized by the jurists, was crystallized. The notion of the fall of man from a state of perfection (which may be compared with the view of Seneca) played an important role. Thus, according to St. Ambrose (340–397) the Mosaic law—a law of sin and death (see Romans 8:2)—was given because man failed to obey the law of nature. The fact that many legal institutions, such as slavery and private property, deviate from this ideal law does not necessarily imply that they are unjust or illegitimate; for the natural law is adapted to man only in a condition of innocence.
Of the Church Fathers, St. Augustine (354–430) was perhaps the most original and complex: Only one point in his thought will be noted here. Cicero maintained that nothing can be nobler than the law of a state (De Legibus I, 14) and that if a state has no law, it cannot truly be considered a state (ibid. II, 12). The law of the state must therefore embody justice, for without justitia there is no jus. Augustine considered this position in The City of God, Book XIX. According to Augustine, since Rome had no justice, Cicero's position has the inconvenient consequence that Rome was no state at all. We must therefore seek another definition of "state" (populus ) in which justice is not an essential element. Augustine stressed the notion of order—"a harmonious multitude"—with the suggestion that legal order need not be moral or just. There are passages in Augustine, however, which seem to uphold a more orthodox natural-law position. In any event the terms of his discussions are somewhat different; his main points of contrast are divine and human law, rather than jus naturale and jus civile.
The sources of the natural-law theories that were to dominate Western legal philosophy for many centuries were the writings of the Greek and Roman philosophers and poets, Justinian's Corpus Juris Civilis, and the Church Fathers. Isidore of Seville (c. 560–636), an encyclopedist and an important transmitter of Roman thought to later writers, concisely expressed the natural-lawyer's ideal regarding positive law: "Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good" (Etymologies V, 21).
Middle Ages and Renaissance
civilians and canonists
In the revived study of Roman law in the twelfth century, associated with the glossators, legal philosophy received a fresh stimulus. Of special interest are the attempts at reconciling differences among the Roman jurists on the definition of law and the classification of its branches. In the main, the civilians were in the broad tradition of natural-law thinking; jus flows from justitia, although it must always fall short of perfect justice, which is God's alone. Irnerius (c. 1050–c. 1130) thus claimed that statutes ought to be interpreted in the light of equity. Strict law requires that all agreements be kept, but equity allows exceptions to the rule. This equity, according to Azo (c. 1150–c. 1230), must be written, rather than a principle found in the judge's heart.
The middle of the twelfth century also saw the systematization of the canon law. In the Decretum of Gratian a high degree of jurisprudential competence was brought to this task. The tripartite division of law of the Roman lawyers was verbally accepted, but the leading conceptions were Augustine's jus divinum and jus humana. Natural law was identified with the former, while the distinctive feature of the latter (covering both jus gentium and jus civile ) was custom. Natural law is contained in the Mosaic law and the Gospels; the command to do unto others what we would have them do unto us is its fundamental principle. Natural law relates to man's rational nature and is immutable; the mistica, the cultic regulations found in Scripture, are part of the natural law only in their moral aspect. The commentators on Gratian further divided natural law so as to include not only commands and prohibitions but also demonstrationes, which point to what is good for humankind, such as possession of all things in common. In man's fallen condition custom has legitimately modified the demonstrationes in permitting private property and slavery. The other branches of natural law may not be abrogated and are the standards by which even the ecclesiastical law must be judged. Gratian (if not all his commentators) seems to have generally maintained a clear distinction between natural (divine) law and canon law.
The rediscovery of Aristotle in the thirteenth century greatly influenced the further development of legal philosophy. The culmination of the natural-law tradition is the theory of Thomas Aquinas (c. 1224–1274), who integrated Stoic, Christian, and Aristotelian elements within a comprehensive philosophic system. Laws are standards of conduct that have a binding, or obligatory, character. This can be understood only if laws have some kind of rational origin. Combining this view with a teleological conception of nature and social order, Aquinas regarded legal control as purposive. Laws, he concluded, are ordinances of reason promulgated for the common good by the legitimate sovereign. Four types of law may be distinguished: eternal law, an expression of God's rational ordering of the universe; divine law, which guides man toward his supernatural end; natural law, which guides man toward his natural end; and human law, which regulates through the prospect of punishment the affairs of men in a given community in the light of that community's special requirements. Crucial to the concept of natural law are the notions of natural inclinations and right reason. "All those things to which man has a natural inclination are naturally apprehended by reason as being good and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance" (Summa Theologiae I–II, 94). The relationship between inclination and reason, accounting for the apprehension of the natural law, has been variously interpreted. The precepts of natural law have as their common foundation the principle "Do good and avoid evil." Natural law is a standard to which human law must conform, and Aquinas employed Aristotle's conception of practical reasoning in explaining the derivation of human law from natural law by the legislator, thus accounting for differences between legal systems and for the possibility that rational men should disagree as to what human laws ought to be. He affirmed the long-standing view that an unjust law is no law; but although an unjust law is not binding in conscience, considerations of utility may require one to obey it. Aquinas allowed that such "laws" may be said to possess a "legal" character insofar as they are promulgated under the color of law by the legitimate prince.
Aquinas discussed in detail and with great acuity all of the problems treated by his predecessors. His influence may be traced in the English writers John Fortescue (c. 1394–c. 1476), Thomas Hooker (c. 1586–1647), and Christopher St. Germain (1460–1540). According to St. Germain, natural law is nothing other than the common-lawyer's notion of "reasonableness." More recent Thomist thinkers, such as François Gény (1861–1959) and Jean Dabin, have advanced novel ideals within the Thomistic tradition.
Some medieval writers seem to have espoused a protopositivism in their emphasis on the primacy of the will; this is characteristic of the Augustinian-Franciscan tradition. Thus, William of Ockham (c. 1285–1349) regarded the divine will as the norm of morality. "By the very fact that God wills something it is right for it to be done." Nevertheless, it is doubtful that Ockham would have affirmed that what the sovereign commands is just. His position is somewhat unclear, however, for he—like all medieval writers—continued to use the rhetoric of natural law in his Dialogus : In one of its senses jus naturale is composed of universal rules of conduct dictated by natural reason. A right, such as the immutable right of private property, is a dictate of right reason.
rise of absolutism
A tendency to combine natural-law doctrines with a theory of royal absolutism began in the fourteenth century. A group of civilians, known as the postglossators, undertook to forge a workable system of law out of the older Roman law, which they regarded as the jus commune of Europe. The technically trained administrators in the rising nation-states, they were naturally concerned with fundamental problems of legal theory. Bartolus of Sassoferrato (1314–1357) maintained that the ruler is not bound by the laws, although it is "equitable" that he should voluntarily submit to them. The jus gentium, however, is immutable. Lucas de Penna (1320–1390) discussed jurisprudential questions in detail. Law is the articulation of the ethical virtue of justice, and reason is the foundation of law. At the same time he maintained, as did many civilians, that the prince's lordship rests on divine authority. The ruler is responsible to God alone and not to the people; law is not the expression of the will of the community. Nonetheless, although the prince is unfettered by the laws, bad laws (those that contradict divine law) have no binding force. It is not clear, in Lucas's view, whether the obligation to obey law derives primarily from the rationality of law or from the divine grant of authority to the ruler.
Jean Bodin (1530–1596), the great exponent of unlimited sovereignty under natural law whose views were apparently influenced by the fourteenth-century civilians, like them appears to have had difficulty in adapting Christian legal thought to the conditions of the secular nation-state. In his Six Books of the Commonwealth Bodin was emphatic that "law is nothing else than the command of the sovereign in his exercise of sovereign power." But although the prince "has no power to exceed the law of nature," which is decreed by God, it seems plain that Bodin no longer thought of right reason as linking natural and positive law. Bodin's endorsement of the command theory also appears in his treatment of custom. The relative weights of positive law and custom had long been debated by the medieval lawyers, but Bodin was one of the first to hold that custom owes its legal authority to the sufferance of the ruler. In this he anticipated the idea of tacit command expressed by Thomas Hobbes and John Austin.
The emergence of nation-states also brought the problem of the rational foundation of international law to the forefront of legal thinking. This development may be seen in the writings of the Spanish Thomists Francisco de Vitoria (1492/1493–1546) and Francisco Suárez (1548–1617) and of Hugo Grotius (1583–1645), a Dutch Protestant jurist with broad humanistic leanings. According to Vitoria, the jus gentium either belongs to or is derivable from the natural law and consists in prescriptions for the common good in the widest sense, namely, for the international community. Rights and obligations are thus conferred upon nations acting through their rulers.
The conception of a law of nations was developed in great detail by Suárez. Although his De Legibus is Thomistic in many respects, Suárez explicitly stated that Aquinas's account of law is inadequate. Suárez began by distinguishing laws in the prescriptive sense from laws of nature in the descriptive sense, which are laws only metaphorically. (Many positivists trace the origin of natural-law thinking to the tendency to confuse these two types of law.) With regard to prescriptive laws, Suárez defined a law (lex ) as "the act of a just and right will by which the superior wills to oblige the inferior to this or that" or as "a common, just and stable precept, which has been sufficiently promulgated" (De Legibus I, 12). The reference to stability is notable: Laws generally survive both the lawgiver and the populace living when they are enacted, and they are valid until abrogated. Such considerations have led recent writers to reject the identification of laws with mere acts of will; but although Suárez rejected the voluntaristic notion of natural law associated with the Ockhamists, he held that the civil law is enacted "more by the will than by reason." It is not derived from natural law by logical inference but by "determination," and hence is, in a sense, arbitrary (ibid. II, 20). Most medieval writers tended to use lex and jus interchangeably; Suárez, however, defined the latter as "a certain moral power which every man has, either over his own property or with respect to what is due to him" (ibid. I, 2). Although Aquinas briefly discussed jus naturale as contrasted with jus positivum (Summa Theologiae II–II, 57), the concept of a "natural right" was almost entirely absent from his thought. It is clearly present in Suárez, who, in the style of John Locke (1632–1704) and the Enlightenment philosophers, formulated a list of natural rights. Nevertheless, the individualism of these writers is not present in Suárez. His attitude was quite remote from eighteenth-century natural-law and natural-right theorists, who thought that a perfect system of law could be deduced from the natural law.
Despite Grotius's tendency to underestimate his predecessors, his De Jure Belli ac Pacis (1625) clearly showed the influence of such writers as Vitoria and Suárez. He developed their notion of a "just war," a topic that was still discussed by Hans Kelsen (1881–1973) and other twentieth-century theorists concerned with the problem of sanctions in international law. Just wars presuppose the existence of laws governing relations between sovereign states; such laws have their origin in natural law and in treaties, which in turn presuppose precepts of the law of nature. The denial of the existence of natural law supposes that men are egoistically motivated, accepting law as a "second best." However, following Aristotle and the Scholastics, Grotius held that man is social, altruistic, and rational. Therein lies the origin of law, which would be binding whether or not God exists. This statement has been regarded by historians as epoch making; they claim that Grotius separated jurisprudence from theology. More important, perhaps, is the tendency in Grotius and others who followed him to identify natural law with certain rational principles of social organization, and thus to loosen its tie with the Stoic metaphysical conception of the law of nature.
Seventeenth to Late Nineteenth Centuries
hobbes and montesquieu
Thomas Hobbes (1588–1679) was perhaps the most important of the seventeenth-century legal philosophers. His break with the tradition of natural law provoked much controversy. Hobbes employed the terminology of "natural right," "laws of nature," and "right reason." But the first was for him simply "the liberty each man hath to use his own power as he will himself, for the preservation of his own nature; that is to say, of his own life" (Leviathan 14); the second are principles of self-interest, which are often identified with the third. There is no right reason in nature (Elements of Law II, 10, 8). The natural condition of humankind is one of perpetual war, in which common standards of conduct are absent. There is no right or wrong, justice or injustice, mine or thine in this situation. The crucial steps in Hobbes's theory are the identifications of society with politically organized society and of justice with positive law. Laws are the commands of the sovereign; it is in reference to such commands that the members of a society evaluate the rightness or justness of their behavior. An "unjust law" is an absurdity; nor can there be legal limitations on the exercise of sovereign power. No writer has put forward a positivistic conception of law with greater style and forcefulness than Hobbes. Difficulties in his position emerge from his concession that although the sovereign cannot commit an injustice, he may commit iniquity; the idea of injury to God in the state of nature; and the treatment of conscience in De Cive. Hobbes solved the problem of the source of the obligation to obey the sovereign's command by his "social contract" doctrine, the interpretation of which is still discussed by scholars. His unfinished Dialogue between a Philosopher and a Student of the Common Laws of England examines various doctrines of the English law as put forward by Sir Edward Coke, and it is notable for its critical examination of Coke's statement that reason is the life of the law.
The Second Treatise of Civil Government by Locke, primarily an attack on Robert Filmer's "divine right" theory, contains certain implied criticisms of Hobbes. Its interest for legal philosophy lies in its use of a version of the social contract to treat the question of the obligation to obey the law, its conception of limitations on sovereign power, and its individualistic view of natural inalienable rights, particularly rights in property. Locke's influence was enormous, and his view of natural rights had a profound effect on the development of law in the United States.
A new approach to the understanding of law and its institutions was put forward by Baron de Montesquieu (1689–1755). He, too, spoke the language of natural law and defined laws as "necessary relations arising from the nature of things" (The Spirit of the Laws I, 1). But his special importance lies in his attempt to study legal institutions by a comparative historical method, stressing the environmental factors that affect the development of law. This suggestion had been anticipated by Bodin, and Giambattista Vico (1668–1744) had also applied a historical method to the study of Roman law, but Vico's work had little immediate influence. Montesquieu's doctrine of the separation of powers had an extraordinary influence. His sharp separation of judicial from legislative and executive power reinforced the conception that the judge is a mere mouthpiece of the law and that judges merely declare the existing law but never make it. In 1790, in his Reflections on the Revolution in France, Edmund Burke turned the historical approach to a practical political use when he protested against proceeding a priori in the "science of constructing a commonwealth."
Immanuel Kant (1724–1804) contributed to legal philosophy as he did to other branches of philosophy. The keynote of his legal philosophy was inspired by Jean-Jacques Rousseau (1712–1778), who set as the problem of his Social Contract the reconciliation of social coercion and individual freedom. Kant's legal philosophy may be called a philosophy of justice in which the concept of freedom plays a central role. Kant sought a systematic understanding of the principles underlying all positive laws that would enable us to decide whether these laws are in accordance with moral principles. Positive law "proceeds from the will of a legislator," and any viable legal system will take into account the particular conditions of the given society. With these conditions the theory of law has no concern. The theory is an application of the results of moral philosophy to the conditions of "men considered merely as men." This endeavor covers both the domain of law (Recht ) and the domain of ethics; the principle that right action is action in conformity with universalizable maxims holds for both juridical and moral laws. A law (Gesetz ) is a formula expressing "the necessity" of an action. Juridical and moral laws are distinguished in that the former regulate external conduct irrespective of its motives. (But this does not mean that a judge should necessarily ignore the lawbreaker's motives when passing sentence upon him.) Any man, as a morally free agent, is entitled to express his freedom in activity so long as it does not interfere with the similar freedom that others possess. This is the principle underlying all legislation and "right." Juridical law also involves the authority to compel conformity and to punish violations. The necessary and sufficient condition for legal punishment is that the juridical law has been broken. It must be recognized, however, that the domain of such law is restricted by the limits of compulsion. While it is morally wrong to save one's own life by killing another, even where this is the only expedient, it can never be made legally wrong to kill in such a case. The principle of law receives content in Kant's application of it to particular private rights in external things and in his analysis of the methods for acquiring such rights.
Kant's influence on jurisprudence, after being somewhat eclipsed by Hegelianism, reemerged at the end of the nineteenth century. One of the most important neo-Kantians was Rudolf Stammler (1856–1938), who invented, but eventually discarded, the phrase "natural law with variable content." Accepting the Kantian distinction between "form" and "matter," he attempted to discern the form of all laws. He defined law as "exceptionless binding volition." Just law is an ideal involving principles of respect and cooperation.
utilitarianism and positivism
While Kant and his followers may be said to have fostered a variety of natural-law thinking (although different from the Stoic and Thomistic types), Jeremy Bentham (1748–1832) and his followers (notably John Stuart Mill) claim to have rejected such thinking entirely. Of the influences on Bentham, two may be briefly noted. David Hume (1711–1776) argued that moral distinctions are not derived from reason; passion, or sentiment, is the ultimate foundation of moral judgment. Justice is grounded in utility. Second, the Italian criminologist Cesare Beccaria (1738–1794), in his Of Crimes and Punishments (1764), subjected the existing institutions of criminal law and methods of punishment to relentless criticism. His standard of judgment was whether "the greatest happiness of the greatest number" was maximized. Bentham acknowledged his debt to Beccaria, and this "principle of utility" was the base of Bentham's voluminous projected "codes." He did not, however, define the nature of law by reference to utility. In his The Limits of Jurisprudence Defined (published in 1945) he defined a law as the expression of "the will of a sovereign in a state." Bentham's views, which were well suited to deal with the problems engendered by the industrial revolution in England, were of immense importance in effecting legal reform. In 1832, the year of his death, the Reform Act was passed, largely as a result of the work of his followers. Mill's On Liberty (1859) is an attempt to treat the limits of legal coercion by the state along modified utilitarian lines.
In legal philosophy Bentham's influence affected the English-speaking world especially through the thought of John Austin (1790–1859), the seminal figure in English and American legal positivism and analytic jurisprudence. Austin tried to find a clear demarcation of the boundaries of positive law, which would be antecedent to a "general jurisprudence" comprising the analyses of such "principles, notions, and distinctions" as duty, right, and punishment, which are found in every legal system; these analyses in turn were to be employed in "particular jurisprudence," the systematic exposition of some given body of law. Austin began by distinguishing "law properly so called" and "law improperly so called." The former is always "a species of command," an expression of a wish or desire, analytically connected with the ideas of duty, liability to punishment (or sanction), and superiority. The last notion led Austin to his famous and influential analysis of "sovereignty"; "laws strictly so called" (positive laws) are the commands of political superiors to political inferiors. From this it follows that international law is merely "positive international morality" rather than law in a strict sense. (Some writers, viewing this as an unfortunate and perhaps dangerous consequence, were led to various revisions of Austinianism.) Austin's "separation" of law and morality is often taken as the hallmark of legal positivism. "The existence of law is one thing; its merit or demerit is another," he wrote in The Province of Jurisprudence Determined (V, note). Yet Austin was a utilitarian; in distinguishing between the law that is and the law that ought to be, he did not mean that law is not subject to rational moral criticism grounded in utility, which he took to be the index to the law of God. At this point Austin was influenced by such "theological utilitarians" as William Paley.
Austin's views were subjected to vigorous discussion both without and within the traditions of positivism and analytical jurisprudence. And as the disciplines of history, anthropology, and ethnology assumed an increasing importance during the nineteenth century, rival approaches to the understanding of law developed. Thus, Sir Henry Maine (1822–1888), who formulated the historical law that legal development is a movement from status to contract, argued in his Early History of Institutions (London, 1875) that the command-sovereignty theory of law has no application in a primitive community, where law is largely customary and the political "sovereign," who has the power of life or death over his subjects, never makes law. The Austinian view can be saved only by maintaining the fiction that what the "sovereign" permits, he commands. Nonetheless, Austin had many followers at the turn of the twentieth century, such as T. E. Holland (1835–1926) and J. W. Salmond (1862–1924), who attempted to preserve the imperative and coercion aspects of his theory while introducing revisions.
The role of the courts was increasingly emphasized. In the United States, John Chipman Gray (1839–1915) wrote The Nature and Sources of the Law (New York, 1909; 2nd ed., New York, 1921), one of the most important American contributions to the subject. Acknowledging his debt to Austin, Gray defined law as "the rules which the courts [of the State] lay down for the determination of legal rights and duties." This required him to construe statutes, judicial precedents, custom, expert opinion, and morality as sources of law rather than as law. All law is judge-made. The machinery of the state stands in the background and provides the coercive element, which does not enter into the definition of "law." Gray's influence may be traced in the realist movement in the United States.
hegelianism and the historical school
While England was largely under the sway of the utilitarians, Kantianism, Hegelianism, the historical school, and legal positivism flourished in Germany, both singly and in various combinations. In his Philosophy of Right, G. W. F. Hegel (1770–1831) developed some Kantian themes in his own characteristic way. Law and social-political institutions belong to the realm of "objective spirit," in which interpersonal relationships, reflecting an underlying freedom, receive their concrete manifestations. In attempting to show the rightness and the rationality of various legal relationships and institutions in given moments of the development of "spirit," and in seeing them as natural growths, Hegel formulated a theory of law and the state that was easily combined with various historical, functional, and institutional approaches to legal phenomena.
Friedrich Karl von Savigny (1779–1861) is often regarded as the founder of the historical school. His Of the Vocation of Our Age for Legislation and Jurisprudence (1814) was published before Hegel's work and was probably influenced by Johann Gottlieb Fichte (but not by Fichte's Grundlage des Naturrechts, 1796), whose notion of the "folk-spirit" was widely known. Law, like language, originates spontaneously in the common consciousness of a people, who constitute an organic being. Both the legislator and the jurist may articulate this law, but they no more invent or make it than does the grammarian who codifies a natural language. Savigny believed that to accept his conception of law was to reject the older notions of natural law; nevertheless, it is often claimed that Savigny's conception was merely a new kind of natural law standing above, and judging, the positive law.
Otto von Gierke (1844–1921), the author of Das deutsche Genossenschaftsrecht, clearly fits into the tradition of the historical school. Gray, in The Nature and Sources of the Law, subjected the theories of Savigny and his American follower, James C. Carter (1827–1905), to severe criticism. It should be noted that Maine's views have nothing in common with those of Savigny; in Maine's work the metaphysics of the Volksgeist is entirely absent.
Late Nineteenth Century to Mid-Twentieth Century
jhering and german positivism
Rudolf von Jhering (1818–1892), eminent both as a historian of law and as a legal theorist, rejected both Hegel and Savigny: Hegel, for holding the law to be an expression of the general will and for failing to see how utilitarian factors and interests determine the existence of law; Savigny, for regarding law as a spontaneous expression of subconscious forces and for failing to see the role of the conscious struggle for protection of interests. However, Jhering shared the broad cultural orientation of many of the Hegelians, and he was grateful to Savigny for having overthrown the doctrine of "immutable" natural law. Jhering's contribution was to insist that legal phenomena cannot be comprehended without a systematic understanding of the purposes that give rise to them, the study of the ends grounded in social life without which there would be no legal rules. Without purpose there is no will.
At the same time there are strong strains of positivism in Jhering: Law is defined as "the sum of the rules of constraint which obtain in a state" (Der Zweck im Recht, p. 320). In this respect he was close to the German positivists, who emphasized the imperative character of law. Karl Binding (1841–1920), an influential positivist, defined law as "only the clarified legal volition [Rechtswille ] of a source of law [Rechtsquelle ]" (Die Normen und ihre Uebertretung, p. 68). In this period the slogan of German positivism, "All law is positive law," emerged. Yet Jhering opposed many of the claims of the analytical positivists; his essay "Scherz und Ernst in der Jurisprudenz" (Leipzig, 1885) ridiculed their "heaven of jurisprudential concepts."
sociological and allied theories
Jhering's work foreshadowed many of the dominant tendencies of twentieth-century legal philosophy. Hermann Kantorowicz regarded Jhering as the fountainhead of both the "sociological" and "free-law" schools. The former term covers too wide a group of writers to be surveyed here, some of whom were concerned solely with empirical work, while others combined empirical work with a philosophical outlook. Proponents of the jurisprudence of interests (Interessenjurisprudenz ) eschewed Jhering's inquiries into the metaphysical and moral bases of purposes, claiming that he did not sufficiently attend to the conflict of interest behind laws; law reflects dominant interest. (Similar analyses were made in the United States; for example, the "pressure-group" theory of politics advanced by A. F. Bentley [1870–1957] in The Process of Government, Chicago, 1908.) Much attention was devoted to the analysis of the judicial process and the role that the "balancing" of interests plays in it. As Philipp Heck, one of its leading exponents, remarked: "The new movement of 'Interessenjurisprudenz' is based on the realization that the judge cannot satisfactorily deal with the needs of life by mere logical construction" (Begriffsbildung und Interessenjurisprudenz, p. 4).
This sentiment was endorsed by the closely allied "free-law" movement. According to this group, "legal logic" and the "jurisprudence of conceptions" are inadequate for achieving practicable and just decisions. The judge not only perforce frequently goes beyond the statute law, but he also often ought to go beyond it. The "free-law" writers undertook the normative task of supplying guidelines for the exercise of judicial discretion, and the judicial function was assimilated to the legislative function. The focus on such problems reflected the enormous change, occasioned by the industrialization of Western society, in the functions of the state. No longer did the nation-state exist merely to keep the peace or protect preexisting rights; rather, it played a positive role in promoting social and individual welfare. The philosophy of law thus became increasingly concerned with the detailed working out of the foundations of legal policy. The "free-law" theorist Eugen Ehrlich (1862–1922), who influenced such American theorists as Karl N. Llewellyn (1893–1962) and other representatives of legal realist tendencies, summarized his Grundlegung der Soziologie des Rechts as follows: "At the present as well as at any other time, the center of gravity of legal development lies not in legislation, not in juristic science, nor in judicial decision, but in society itself." He rejected the positivistic tenet that only norms posited by the state are legal norms, for in any society there is always more law than is expressed in legal propositions. The "inner order" of an association is the basic form of law. Ehrlich also engaged in empirical study of the "legal facts" (Rechtstatsachen ) and "living law" of various communities in the Austro-Hungarian Empire. Ehrlich may thus be said to have considered custom as law in its own right. However, many positivists would argue that he was not able to account for the normative character of custom.
The Marxist stress on economic interests was often combined with the sociological and free-law views. Central to the Marxist position are the notions of "class" (usually defined in terms of legal relationship to property and the means of production) and "class interest," which leads to the analysis of the role of law in different societies with differing class structures. Addressing their critics, Karl Marx and Friedrich Engels wrote: "Your law [Recht ] is but the will of your class exalted into statutes [Gesetz ], a will which acquires its content from the material conditions of existence of your class" (Communist Manifesto, 1848). This suggests that law is merely part of the ideological superstructure and has no effect on the material organization of society. It raises the question of whether law exists in all societies—for instance, in primitive society or in the "classless" society arising after the triumph of socialism—and the further question of the nature and function of law in the transitional period from capitalism to socialism. The issue of "revolutionary legality" or "socialist legality" was treated by V. I. Lenin, E. Pashukanis, and Andrei Vishinsky. An important Marxist study of the relationship between law and the economy is that of the Austrian socialist Karl Renner (Die Rechtsinstitute des Privatrechts und ihre soziale Funktion, 1929).
pure theory and relativism
Although the sociological approaches to law have many practitioners, the most controversial and perhaps the most influential twentieth-century view was that of Hans Kelsen, a leading exponent of legal positivism. Influenced by the epistemology of the neo-Kantians, Kelsen distinguished sharply between the "is" and the "ought," and consequently between the natural sciences and disciplines, such as legal science, which study "normative" phenomena. Legal science is a descriptive science—prescriptive and valuational questions cannot be scientific—and Kelsen's "pure theory" aimed at providing the conceptual tools for studying any given legal system irrespective of its content. The theory is "pure" in that it is divorced from any ideological or sociological elements; it attempts to treat a legal system simply as a system of norms. Kelsen's view was thus similar to the analytical jurisprudence of Austin, but Kelsen regarded legal norms as "de-psychologized commands." In order to understand an act of will as a norm-creating act, we must already employ a norm that serves as a "schema of interpretation." The jurist who seeks to understand legal phenomena must ultimately presuppose a basic norm (Grundnorm ), which is not itself a positive legal norm. Legal systems are sets of coercive norms arranged in hierarchical fashion; lower norms are the "concretizations" of higher norms. In Kelsen's analysis the "dualisms" of state and law and public and private law disappear, and the relationship between international law and national legal systems is seen in a fresh light.
Unlike Kelsen, Gustav Radbruch (1878–1949) did not found a school. His position, which he called relativism, has many affinities with that of Kelsen; but Radbruch maintained that law, which is a cultural phenomenon, can be understood only in relation to the values that men strive to realize through it. He attempted to analyze these values in relation to legal institutions, showing the "antinomies" among these values that led to his relativism. World War II raised the question in the minds of many legal philosophers whether the separation of law and morals of legal positivism, which was popular in Germany, contributed to the rise of Nazism. Concern over this problem seems to have caused Radbruch to move away from his earlier relativism toward a kind of natural-law position.
realism and other recent trends
In the United States, until the mid-twentieth century, legal philosophy had largely been the province of lawyers rather than of professional philosophers. This may account for its sociological and realistic tone. The erudite Roscoe Pound (1870–1964) was its most prolific writer. Pound recognized the influence of Josef Kohler (1849–1919) and his notion of jural postulates and, especially, of Jhering. The pragmatism of William James also contributed to the development of his views. In an early article, "Mechanical Jurisprudence" (Columbia Law Review 8 : 605–610), Pound argued for an understanding of the interests that the law seeks to protect. Introducing a distinction between "law in books" and "law in action," he maintained the need for a close study of the actual operation of legal institutions. On both scores his influence in the United States has been momentous, but it is difficult to summarize his position; he is often associated with a "social engineering" approach to law. Law contains both precepts and ideal elements. Among precepts Pound distinguished rules, principles, conceptions, doctrines, and standards. It is pointless to isolate some canonical form to which all laws are reducible. The ideal element consists of received ideals "of the end of law, and hence of what legal precepts should be and how they should be applied." Pound offered an elaborate, although tentative, survey of the individual, public, and social interests secured by law. This list was criticized and amended by Pound's Australian disciple Julius Stone (The Province and Function of Law, 1946). In his later years Pound moved toward a kind of natural-law thinking, arguing for a more intimate connection between law and morality; he abjured the realist tendencies, which had been influenced by his earlier thought, as "give it up" philosophies.
It is exceedingly difficult to characterize the legal realists; they disclaim a common doctrine but recognize an interest in a common set of problems. With J. C. Gray, the spiritual godfather of American legal realism was Justice Oliver Wendell Holmes Jr. (1841–1935). In his seminal essay "The Path of the Law" (Harvard Law Review 10 : 457–478), he advocated viewing law as the "bad man" would, in terms of the practicable remedies afforded individuals through the medium of the courts. Holmes presented in that article his famous definition of law as "the prophecies of what the courts will do in fact." It may be argued, however, that this definition, while perhaps adequate from the advocate's viewpoint, can hardly apply to the judge. When the judge asks what the law is on some matter, he is not trying to predict what he will decide.
Joseph W. Bingham was one of the first realists. In "What Is the Law?" (Michigan Law Review 11 : 1–25 and 109–121), Bingham argued that legal rules, like scientific laws, have no independent existence, being simply mental constructs that conveniently summarize particular facts. Laws are really judicial decisions, and the so-called rules or principles are among the (mentally) causative factors behind the decision. This nominalism and behaviorism, which characterized much of early realist writing, was criticized by Morris R. Cohen (1880–1947), until recently one of the few academic philosophers in the United States concerned with legal philosophy. "Behavior analysis" was advocated by Karl N. Llewellyn, who extended it beyond judicial behavior to "official" behavior (Jurisprudence, Chicago, 1962; collected papers).
The so-called myth of legal certainty was attacked by Jerome Frank (1889–1957) in his Law and the Modern Mind (New York, 1930), which explained the genesis of the myth in Freudian terms. In the sixth edition (New York, 1949) Frank was somewhat friendlier toward natural-law thinking, characterizing his change of attitude as going from an earlier "rule-skepticism" to "fact-skepticism" (Courts on Trial, Princeton, NJ, 1949). Other important realists include Thurman Arnold, Leon Green, Felix Cohen, Walter Nelles, Herman Oliphant, and Fred Rodell. Both positivism and realism were attacked by Lon L. Fuller (Law in Quest of Itself, Chicago, 1940), a leading American exponent of non-Thomistic natural-law thinking (The Morality of Law, New Haven, CT, 1964). The revival of natural-law doctrines is one of the most interesting features of current legal thought. Recent contributions and criticisms may be found in the journal Natural Law Forum.
The Scandinavian countries are a center of legal philosophy, and many of their leading writers are realists. They are more consciously philosophical than their American counterparts. The leading spirit was Axel Hägerström (1868–1939), who rejected metaphysical presuppositions in legal philosophy and insisted on an understanding of legal phenomena in empirical terms. Many legal concepts can be understood only as survivals of "mythical" or "magical" thought patterns, which should ideally be eliminated. Vilhelm Lunstedt (Legal Thinking Revised, Stockholm, 1956) was most radical in his rejection of metaphysics. Values are expressions of emotion and should be excluded from legal science. The "method of social welfare" should be substituted for the "method of justice." Alf Ross (On Law and Justice, London, 1958) argued that the first method is as "chimerical" as the second and presents an analysis of legal policymaking as a kind of rational technology. Laws, Ross argued, are directives to courts. The concept "valid law" as used by jurists and legal philosophers cannot be explicated in purely behavioristic terms; inner psychological attitudes must also be included. A similar view is presented by Karl Olivecrona (Law as Fact, London, 1939), who wrote important realist analyses of legal language and severely criticized command theories of law, such as Austin's. In Inquiries into the Nature of Law and Morals (translated by C. D. Broad, Cambridge, U.K., 1953), Hägerström argued that Kelsen's "pure theory" never escapes the "will" element either, and hence falls subject to all the criticisms that may be leveled against the command theories.
In the mid-twentieth century, the most influential legal philosopher in the English-speaking world was H. L. A. Hart. In his Concept of Law (Oxford, 1961) he developed a view of law as consisting of a "union of primary and secondary rules." The former are rules imposing duties; the latter are rules of recognition, change, and adjudication. The first of the secondary rules (those for recognizing the rules of a system) seems to be crucial to his account of all three. His position was in many respects similar to that of Kelsen. He gave an interesting analysis, allied to Ross's account, of what it means to say that a rule exists. Hart saw the relationship between law and morals as contingent, in contrast with the Thomistic view of a logical connection between the two; this led him to an interpretation of natural law not unlike that presented by some Renaissance writers. In a number of important articles Hart focused on the nature of definition in jurisprudence, the analysis of psychological concepts in the law, legal responsibility, and the principles of punishment.
See also Aristotelianism; Aristotle; Augustine, St.; Austin, John; Beccaria, Cesare Bonesana; Bentham, Jeremy; Bodin, Jean; Burke, Edmund; Celsus; Cicero, Marcus Tullius; Cohen, Morris Raphael; Engels, Friedrich; Enlightenment; Fichte, Johann Gottlieb; Filmer, Robert; Grotius, Hugo; Hegel, Georg Wilhelm Friedrich; Hägerström, Axel; Hart, Herbert Lionel Adolphus; Hegelianism; Hippias of Elis; Historical School of Jurisprudence; Hobbes, Thomas; Hume, David; James, William; Justice; Kant, Immanuel; Kelsen, Hans; Legal Positivism; Lenin, Vladimir Il'ich; Locke, John; Marx, Karl; Marxist Philosophy; Medieval Philosophy; Mill, John Stuart; Montesquieu, Baron de; Natural Law; Neo-Kantianism; Patristic Philosophy; Plato; Positivism; Pragmatism; Radbruch, Gustav; Realism; Renaissance; Rousseau, Jean-Jacques; Savigny, Friedrich Karl von; Seneca, Lucius Annaeus; Socrates; Sophists; Stammler, Rudolf; Stoicism; Suárez, Francisco; Thomas Aquinas, St.; Thomism; Utilitarianism; Vico, Giambattista; Vitoria, Francisco de; William of Ockham; Xenophon.
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