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Historical perspective

Methods of jurisprudence

Trends in jurisprudence


Jurisprudence has had controversial definitions since classical times. To avoid recapitulating the history of these learned disputes, the broadest possible connotation of the term that is permissible under current usage will be adopted here. In civil law countries “jurisprudence” is a technical term referring to a settled course of judicial decision. This usage is also known in the common law countries. Indeed, in the United States, the term “jurisprudence” is a general honorific designation for the more ordinary term “law.” Jurisprudence as an academic subject in the United States can mean the study of law as an autonomous science (analytical jurisprudence); or of the nature of justice (philosophical jurisprudence); or of the relation of law to society (sociological jurisprudence). In civil law countries, philosophical jurisprudence is usu-ally called “philosophy of law”; sociological juris-prudence, “sociology of law,” and analytical jurisprudence is subsumed under the general category of “positivism.”

Historical perspective

Two main sources of jurisprudential thought and experience emerge from antiquity. These are the philosophical speculation of the Greeks and the legal and administrative practice of the Romans. The speculative genius of Plato issued in theRepublic andThe Laws. Aristotle consolidated this body of philosophical thought and brought to it the strength of empirical observation in his treatises on ethics and on politics.

Greek speculation on the nature of law centered on the question of whether law exists by nature or by convention. The Greek philosophers examined this fundamental question so thoroughly that it is hard to find instances of contemporary speculation that escape the bounds set by the Greek thinkers.

Roman law, on the other hand, had an autonomous development based on a millennium of judicial experience and administrative practice. Greek philosophical theories permeated the essence of Roman law, but the slow, steady accumulation of legal experience and its crystallization into general principles of law and finally into codification gave Roman law its enduring character. For the Romans, jurisprudence always remained an eminently practical study.

These two sources, namely, Greek theories of the nature of justice and Roman experience in political administration, became, after religion, the most dominant aspect of medieval culture. The idea of the Holy Roman Empire with the Corpus Juris Civilis as a statute binding all Christendom and the Roman Catholic church with its manifold forms of law as spiritual authority for all Christians formed a coherent theoretical structure.

St. Thomas Aquinas divided law into the eternal, the divine, the natural, and the human. It will be noted that two of these, the eternal law and the natural law, are theories of the nature of justice. The divine law and the human law are ordained or posited. We thus see the divisions of antiquity continued in the form of notions of law that exists by nature and law that is ordained, whether by God or by man.

This distinction survived the Renaissance revolutions in science and government. Indeed, the great political revolutions were waged in the name of a secularized law of nature abstracted from the mind of man and considered the true mark of his humanity. Reason, as higher law, was held to legitimize revolt against the dictates of sovereign will.

This fundamental divergence of opinion on the nature of law came down to the twentieth century, the English-speaking common law countries heavily committed to the view that law is the ordainment of a lawfully constituted sovereign; and the civil law countries alternating between a social scientific view of law as positive enactment and law as existing in some sense independently of human disposition.

Methods of jurisprudence

The basic methods of modern investigators in the legal field are either speculative analysis or empirical investigation. The dominant trends in modern jurisprudence are toward natural law as a matter for speculation and toward the empirical study of law as one of the behavioral sciences.

Analytical jurisprudence

The principal method throughout the world by which legal materials are studied is the method of analysis. Authoritative legal prescriptions are collected, compared, contrasted, and synthesized. This activity, stemming from the most ancient times when its practice was hardly separate from religious exegesis, still goes on in the same way and accounts for all but a small fraction of scholarly activity in the field of law. Monographs, treatises, encyclopedias, digests, pamphlets, and books on all aspects of the law pour out in forms that are not too different from those that were extant in the classical period of ancient Rome.

This immense legal product is in turn material for analytical jurisprudence, which attempts to raise the level of abstraction. In addition to this secondary material, analytical jurisprudence also concerns itself with primary legal data, that is, statutes, cases, executive orders and decrees, and other legal prescriptions.

In earlier days, the method of analysis was felt to constitute an autonomous science of law. Its organ on, in turn, was taken to be Aristotelian logic, even though many of the fundamental classifications long antedated Aristotle, having been derived from religious and theological sources. Authoritative Roman models were Gaius’ Institutes and, for later times, the Corpus Juris itself, especially its Institutes.

Analytical jurisprudence seeks to impose upon the body of authoritative legal materials the logical constraints of clarity, consistency, coherence, and nonredundancy. It attempts to discover basic legal conceptions, basic legal categories, and basic legal truth propositions. It inherits these ideals from traditional logic.

Modern developments take two forms. The first, exemplified pre-eminently in the work of Hans Kelsen (1945), is speculative analysis of what is taken to be the inherentstructure of legal systems. In Kelsen’s work, the analysis discloses a hierarchy of authoritative norms in terms of which legal prescriptions can be arranged. Kelsen’s basic materials were primarily those of civil law[see KELSEN]. It differs from traditional common law analysis, such as that of John Austin, which followed more or less the categories, classifications, and conceptions used in the law historically[see AUSTIN]. Yet more different is the contemporary work of H. L. A. Hart (1961) and his followers, which, although basically analytical, accepts much of the work of socio-logical jurists (to be discussed) and analyzes law by means of the methods of the Oxford school of analytical philosophy (see Fuller 1958).

Modern logic is slowly making its influence felt in the second type of analytical jurisprudence, that which is coming to be called juristic logic. The powerful tools of symbolic logic, which have re-made modern mathematics and which form the theoretical basis of much work in the behavioral sciences, such as game theory and information theory, are only beginning to have an effect on law. Law and electronics is another facet of analytical jurisprudence that is being developed as a result of the current explosion in computer technology (Cowan 1963).

Philosophical jurisprudence

Philosophy has had so pervasive and enduring an influence on the study of law that in many countries jurisprudence is called the philosophy of law. Roscoe Pound has written on this subject for more than half a century, and his voluminous writings (1959) should be referred to for its history and development[see POUND]. It is perhaps not too much to say that every important system of philosophy has or has had its correlate in a philosophy of law.

Law consists of a body of obligations and a body of facts. According to whether attention is focused on one or the other, philosophical emphasis shifts. Where obligation is thought of as paramount, one easily finds himself led to the ideal element of law, to theories of justice, to idealistic philosophy, to ethics, and to value theory. Where the factual element obtrudes, one turns his attention to authoritative legal materials, to positivism, to empirical philosophy, to epistemology, and to science.

Needless to say, good sense invariably suggests a synthesis (Jenkins 1959), but this sensible opinion does not have an opportunity to get itself heard until the warring factions reach a high state of tension. Then in the history of philosophy, as in the history of the philosophy of law, the grand syntheses present themselves.

At the present the two major opponents, natural law and positivism, are in a relatively high state of dialectical opposition, but no over-all synthesis is apparently in the offing, despite the heroic efforts of Lon Fuller (1964). A report on the present state of the philosophy of law, then, must necessarily be in terms of the opposition of the ideal and the factual elements in law.

Idealism. As a philosophical movement, idealism has two main facets: idea-ism and ideal-ism. It emphasizes the importance of ideas in man’s knowledge of the world and of ideals in human action. It brings such leading notions as unity, coherence, rationality, and the power of reflection to the task of understanding the world and formulates ideajs of justice, the value of the good, and the worth of reason and human dignity in the study of law and morals. In the common parlance of the jurists, it is said to be concerned with the law as it ought to be rather than with the law as it is. This last point is shared with the doctrine of natural law. Where idealism still exerts influence on the philosophy of law, it is chiefly in the form of NeoKantianism and Neo-Hegelianism.

Natural law. There is a universal temptation to use the ancient term “natural law” as the antithesis of all positivistic, pragmatic, and even analytical theories of the nature of law. Natural law assumes the existence of basic inherent principles of justice which, especially in times of social stress, are assumed to be paramount over ordained legal prescriptions. It also serves as a constant critique of the existing law. That it takes itself to be of more profound significance than the body of law which it criticizes is perhaps not altogether unexpected.

Natural law theories are presently of great and growing importance throughout the entire jurisprudential world. Where the treatment of natural law is secular it becomes a theory of value and hence has much significance for the behavioral sciences. Natural law is the form which the perennial undeclared war between law and ethics takes. In periods of religious orthodoxy, ethics aligns itself with religion and attacks the secular character of law as a conflict-resolving agency of the community. In such periods, lawyers are apt to be clerics.

Where law becomes secular, ethics tends to become humanistic. The ultimate source of ethical obligation is seen to be human reason itself. A rationalistic ethics emerges and with it rationalistic natural law. All species of revolt against the coercive power of positive legal enactments tend to call themselves natural law. Indeed, much of what one would be tempted to call a balanced view between the law as it is and the law as it ought to be is very likely to be considered a species of natural law. To the extent that secular theories of value are currently mixed up with theories of natural law, the latter becomes of consequence to students of the behavioral sciences[seeNatural Law].

Phenomenology. This brand of philosophy is compounded of idealism, empiricism, and subjectivism. It aims to deal only with phenomena and thus distrusts all noumenal, or nonexperienceable, entities. Phenomenology seeks to make knowledge clear and distinct, not by means of rational intuitions but by the intuitions of experience. It attempts to bring to consciousness all the unconscious elements of knowledge by an intensive reflection upon the stream of experience. It is thus a radical subjectivism that has its counterparts in art and in the humanistic studies. For social science it is important in its emphasizing of subjectivity and consciousness, elements the social sciences, with their orientation toward natural science, often find convenient to neglect. The influence of phenomenology on law is hard to assess. Law, like behavioral science, is heavily oriented toward objective behavior. Since this leads to a slighting of the subjective element of human behavior, rapport between phenomenology and law is effected more closely in the civil law countries, with their long history of attachment to idealistic philosophies, than in the more objectively oriented countries of the common law.

Existentialism. This species of idealism is more an aesthetics and an ethics than an epistemology.

It does not ask how we acquire knowledge but, rather, how we should live. Its concern is with human existence and the aesthetic and moral dilemmas with which existence confronts the individual. Its disdain for metaphysics does not make it any the less an idealism, for the last thing it will accept in justification of human action is any existing state of affairs. It is interested, in brief, in what the concrete single human being ought to do with his life. Existentialism is fascinated with some legal problems, particularly those that raise problems of ultimate moral obligation. Its influence on law may become very great, since law has a pro-found concern for the individual, since it sets the stage for most of the moral dilemmas that modern man faces, and since it is very badly in need of an aesthetic. Nevertheless, existentialism is more an intellectual movement than a systematic philosophy, and its influence on law and the behavioral sciences is too diffuse for accurate assaying.

Positivism. This philosophical system which emphasizes attachment to facts, data, secular values, and scientific humanism has had its counter-part in law since the Greek classical period. Presently, its revolutionary effect in opposition to natural law is almost spent. Hence, its importance today is felt as a guiding principle in empirical re-search in law. In the United States, the current form of positivism is pragmatism. Legal positivism is a philosophical attitude that favors only the examination of authoritative legal materials as actual legal existents. Its attitude toward value theory is either to exclude it from the domain of law or to reduce value to fact[seePositivism].

Pragmatism. Pragmatism is the American variant of positivism. It is the most pervasive influence in the field of American jurisprudence. All sectors of the American jurisprudential continuum are heavily influenced by the national bias for action-oriented, practical determinations both in law and in ethics.

Realism. Philosophical realism was thought in antiquity to be concerned with the reality of universals. Its opposite was nominalism, for which these universals were only names. In this understanding, natural law theories were taken to be realistic. In modern times, and especially in the philosophy of law, realism is understood as the opposite of conceptualism. Modern realism has become empiricism, whether psychological or sociological. It has a strong positivistic bent [seeLlewellyn].

Dialectical materialism. The philosophical movement of dialectical materialism has become as closely identified with communism as is scholasticism with the Roman Catholic church. Its materialism stems from that branch of materialistic philosophy which holds that all ideas and motivations, in a word, consciousness, result from matter, the physical universe, and from human action. Its dialectic is based on the Hegelian philosophy which seeks in world history the principles by which change occurs both in the material world and in human consciousness. Developments of the theory of dialectical materialism are inseparable from the history of Soviet political-legal thought[seeMarxism].

Sociological jurisprudence

Sociological jurisprudence originated in the United States chiefly under the direction of Roscoe Pound, whose works should be consulted for a very extended treatment of the subject. Briefly, it is a program for the integration of law and the social sciences, which aims at creating the conditions under which law may move from a body of authoritative and quasi-autonomous principles to a body of scientific knowl-edge of the behavior of human beings under the conditions of law.

Sociological jurisprudence attempts to substitute for such basic legal conceptions as right and duty such social psychological conceptions as interest, need, desire, or drive. This movement has had the effect of undermining the primacy of legal conceptions and the autonomy of legal study. It relativizes the foundations of law and prepares the way for a study of the social origins of law and the social effects of legal prescriptions in action.

Sociological jurisprudence has not yet made law a social science. Currently, it is under attack from natural law, which it attempts to neutralize by changing natural law into a secular problem of the nature of human value. More important than the active opposition of natural law theorists to sociological jurisprudence is the immense conservatism of the legal profession itself. Being a substantial body of professional workers administering an age-old apparatus for settling human conflict on traditional lines, the legal community does not directly oppose the attempts to make law a science. It simply ignores them. This means that legal theorists can very rapidly get out of touch with their base in the living law. Theory can quickly outrun practice with the consequent effect that it becomes empty abstraction. Still, to the extent that it does remain in touch with its sources in the law, socio-logical jurisprudence is having a cumulative effect throughout the world, particularly on the teaching profession and more particularly in sections of the world where social science itself shows signs of development. The climate needed for the development of social science is the one in which sociological jurisprudence may be expected to thrive.

Sociological jurisprudence leads to empirical data gathering of the sort practiced in the behavioral sciences. It favors empirical research by jurisprudential theorists and the use of behavioral science learning in the law[seeJudiciary, article onJudicial Behavior].

Trends in jurisprudence

World-wide movements in jurisprudence are so complex that one hesitates to speak with any degree of confidence about them. At most, one can try to indicate general trends in various countries or parts of the world, based upon surveys by area specialists (see Friedmann 1945; Friedrich 1955; Szladits 1955–1962; 1959).

The United States

Pragmatism with its action-oriented pluralistic approach is still the dominant philosophical influence in the United States (Llewellyn 1928–1960). It is strongly opposed by various shades and degrees of natural law theory, both neoscholastic (Brown 1960) and secular. The prominence of value theory studies in all the behavioral sciences has led to the emergence of different kinds of natural law theories. These movements can be followed in the pages of the excellentNatural Law Forum, published by the University of Notre Dame.

Sociological jurisprudence led in the United States to extreme pluralism and skepticism about the existence of fundamental legal conceptions and about the existence of uniformity in the disposition of legal matters. There has been a reaction (Llewellyn 1960; Wasserstrom 1961) against the excesses of this extreme atomicity. There is much evidence that the use of social science materials and methods in the study of law is in for a broad proliferation (Cohen et al. 1958; Jones 1962).

There is some work being done in analytic juris-prudence at the philosophical level (Kelsen 1957; Shuman 1963). Of course, the immense business of analyzing and commenting upon the various aspects of the legal process, represented in the main in the law reviews, shows no sign of abating.

Although the judicial process is still the dominant concern of most legal theorists in the United States, there is a growing interest in comparative law (Hall 1963) and in international law, particularly as this last subject is related to prospects for lasting international peace. These subjects readily link law and political theory. The work of Lasswell and Cleveland (Conference on Science, Philosophy, and Religion…1962) and McDougal and his colleagues (1961; 1963) on policy science is very influential among U.S. students of international law and relations. Space law, on the other hand, appears still to be only an extrapolation from traditional doctrines of international law.

The legal community has not yet shown much interest in the possible relevance of decision theory and game theory for the study of law, although political scientists and other behavioral scientists are embracing the newer technology, including computer capabilities (Cowan 1963). As decision theory advances more deeply into the area of actual (nonrational) human decisional behavior, it may be expected to encounter the trials and tribulations that have beset legal decision making from the beginning of history. The application of electronics, especially computer technology, to law is burgeoning.

Political theorists are showing increasing fondness for the application of factor analysis to the decisions of appellate courts (Schubert 1960), notably the Supreme Court of the United States. Many other connections between law and science, such as law and medicine, law and psychiatry, law and social science methods of proof, are coming in for increasing attention. Symbolic logic is being applied to the notions of obligation, command, and imperatives in general (Cowan 1963). And philosophers are becoming increasingly interested in the relation of law to ethics (Nakhnikian 1957. For general references about U.S. jurisprudence, seeAnnual Survey of American Law; Bodenheimer 1962; Hurst 1960; Hall 1958; Going 1952; Patterson 1953; Reuschlein 1951.)

Great Britain and the Commonwealth

It is fortunate that the Anglo—American tradition of analytical jurisprudence is being kept alive in England (Hart 1953; Guest 1961; Dias & Hughes 1957), even though it has almost disappeared in the United States. The work of H. L. A. Hart (1954; 1961) continues in the spirit of Austinian positivism, but it has greatly expanded the subject matter beyond the relatively simple notion of “law as the command of a sovereign.” Hart and his associates bring to analytical jurisprudence much of the wealth of technique of philosophical analysis without, however, getting lost in either finespun semantical speculations or the intricacies of modern symbolic logic. It might be said of this work that its structure is a sort of layman’s logic of scientific method applied to the body of legal prescriptions and to the social matrix in which they are embedded[see DUTY].

Aside from this dominant note of analytical jurisprudence there is much evidence of the influence of sociological and realistic jurisprudence in the work of other legal philosophers in Great Britain. The academic furor centering about the work of Hart at Oxford seems, unfortunately, to have somewhat obscured this important development. In the course of time it should become easier to obtain a more balanced view, as a result of which social scientists will begin to perceive more clearly those elements of jurisprudential development in Great Britain that should be of interest to them.

Canada. The dominant analytical jurisprudential outlook in Canada (see McWhinney 1958) has long been enriched by influences of realistic juris-prudence in the United States. Many teachers of law were attracted to the sociological views of Roscoe Pound and to the “revolutionary” exploits of the new realists. The basic economic and cultural developments of the country paralleled to a certain degree those of the United States, thus making reception of its jurisprudential views natural.

On the other hand, since Canada carries both the civil law (Quebec) and the common law as competing and cooperative factors in its exploding economy, the Canadian student of jurisprudence is forced to give attention to comparative law as a living reality and, therefore, as a basic factor in any theory of the nature of law. Here the natural positivistic bent of the common law lawyer must be reconciled with the normal preference of the Catholic civil law lawyer for the natural law.

Australia. A very vigorous recent movement in jurisprudence in Australia stems from the work of Julius Stone, whose monumentalProvince and Function of Law (1946) introduced sociological jurisprudence to the country. Stone’s later work in international law is heavily charged with jurisprudential elements. Analytical jurisprudence is rep-resented by the work of George W. Paton (1946).

In addition to the main currents of analytic and sociological jurisprudence, attention is being given to juristic logic by I. Tammelo and to natural law by W. L. Morison and others (Lumb 1960). Indeed, the whole gamut of jurisprudential thought seems to be represented in this thriving legal philosophical community.

Latin America

Throughout Latin America, as in all countries outside the area of the English and American common law, legal philosophy is a standard part of the law curriculum. There is, therefore, an immense amount of activity in what in the United States is called jurisprudence. Fortunately, there are useful surveys in English: the work of Josef L. Kunz (1954) and a thoroughly documented historical survey of value theory in Latin America by Luis Recasens-Siches (1958).

The familiar dispute between positivism and natural law goes on with variations introduced by differences in national economy and culture. The basic philosophical movements of Europe are taken up in Latin America in pristine form and then modified to meet specific needs. Even positivism is taken in a purer form there than in related movements in the common law countries. Neo-Kantian and Neo-Hegelian philosophies are still exerting considerable influence. In the newer movements of phenomenology and existentialism the Latin American legal theorists exhibit their extreme sensitivity to the intellectual and philosophical climate of continental Europe. For example, even Neo-Thomist thought is combined with phenomenology to produce a new brand of natural law (Recasens-Siches 1958).

There is not much evidence of sociological juris-prudence or activity in empirical data gathering or other techniques of the social sciences connected with the philosophy of law. These activities, where they exist, are more likely to be regarded as part of the sociology of law.


The furious attack waged by natural law theorists (Maihofer 1962) on German legal positivism after the fall of the Nazi regime seems to be waning. After World War II, positivism and logical positivism were so thoroughly in disrepute that the natural law sector in turn was forced to accommodate all shades of legal philosophical opinion in the country. The result was that natural law fell into many discordant parts, each, however, adhering to some “higher law” theory or other. The secular-minded soon began to talk about value theory rather than natural law. Religiously oriented natural law theorists, whether Catholic or Protestant, found themselves embracing some aspects of phenomenology or existentialism. Since almost everyone tried to crowd into the natural law tent, Catholic and Protestant natural law theorists came to study even Marxist dialectical materialism— not, however, with the avowed purpose of adopting it.

In the 1960s the positivistically inclined scholars were gaining prominence. Their position is that higher law theories, while they may and indeed must serve as a critique of the justness of positive enactment, are nevertheless not able to take the place of that which they criticize. Law is “after all” what is positively ordained, they say, and therefore must merit study in its own name. There is no doubt that this movement is destined to grow.

Much of what is called sociological jurisprudence in the United States is studied in Germany as the sociology of law or perhaps as just plain sociology. The legal community is beginning to notice the possibilities of law and electronics, and it is even conceivable that this subject might receive attention from the legal philosophers.

Meanwhile, Germany continues to export the whole range of her developed theories of the philosophy of law to the civil law countries. This is accompanied by a corresponding interest on the part of German legal philosophers in their traditional legal philosophical movements. The most important of these are still Neo-Kantianism, NeoHegelianism, natural law theories (secular and religious), phenomenology, existentialism, dialectical materialism, and even logical positivism. This well-settled, traditional, legal philosophical activity, in abeyance under the Hitler regime, picked up immediately after World War II and is once more in full swing. At the present time, no new philosophical movement, and hence no new legal philosophical movement, is evident. But the ingredients of the older systems apparently can be agglomerated indefinitely. The philosophical situation, to sum it up in a word, is eclectic. (For general references about German jurisprudence, see Bodenheimer 1954.)


It is reported (Bobbio 1959) that the legal philosophers and the “jurists” seem to be drawing more closely together. Philosophers of law in Italy have always prided themselves on the purity of their interest in philosophy, leaving the study of jurisprudence to the jurists.

The fascist regime in Italy, like that in Germany, had used positivistic theories of law to bolster its de jure claims to sovereign competence. The fall of Mussolini precipitated the same reaction against legal positivism in the form of a resurgence of the always influential natural law. Indeed, there is even a movement to formulate natural law as al-ready existing law in the same sense as positive law but paramount to it. This position, in all prob-ability too radical for a civil law country, is likely to be abandoned unless the position of the judiciary is strengthened to a point commensurate with that in the United States.

What is reported to be taking place in Italy is a gradual abandonment of extreme legal formalism and conceptualism. This may prepare the way for something like sociological jurisprudence, although this is more likely to result from the activities of the jurists and the sociologists of law than from those of the legal philosophers.

The philosophy of law is still very much concerned with Neo-Kantianism and Neo-Hegelianism, with phenomenology and existentialism, and with the various shades and degrees of natural law, both religious and secular.


Recent developments in the philosophy of law in France are far from spectacular. Indeed, there seems to be a widespread tendency for the various schools to draw closer together on the basis of a rather commonsensical notion that extremes ought to be avoided. This does not result in a philosophical eclecticism. Paradoxically, the conventional philosophies as such are not favored by the legal philosophers. The tendency is rather toward a kind of secular scholasticism. The common core of agreement seems to be a general existentialist concern that law base itself squarely on man and man’s life in society. Rationalism comes under frequent attack in the land of Descartes. It has not succeeded in giving birth to a rapport between modern logic and the law. Comte, although still defended, is often looked upon as the creator of a formal, sterile, nonliving positivism. Natural law is criticized as otherworldly. And, finally, even the prevailing existentialism is condemned for its excesses.

One interesting aspect of this widespread agreement by the legal philosophers in favor of common sense is paralleled in the behavior of the French jurists. There is discernible in the course of judicial decision a greater willingness to get rid of the remnants of the rigid formalism for which the French courts have long been criticized in the interests of a more adequate concern for the needs of society (Savatier 1948; Carbonnier 1955–1957). The French appear to have concluded that the condition of humanity is to be one of permanent crisis. Not only legal philosophy but also the very forms of law, therefore, must be plastic enough to reflect the movements of people engaged in continuous political and social upheaval. The law must keep its eye fixed steadily on its subject matter, man himself.

This does not mean that traditional movements are neglected (Batiffol 1960). Natural law, especially among the Catholic philosophers, continues to be cultivated. There is much attention paid to the philosophical explication of basic legal conceptions and of the definition of law. And, of course, the more or less “orthodox” forms of existentialism and phenomenology, French and German, maintain their pressure on all schools.

Despite the widespread criticism of positivism referred to above, it would be impossible to over-emphasize the immense importance of the positivistic outlook in the daily life of the law, of its jurists, and, finally—despite their vigorous protests —of the philosophers of law themselves. Positivism is deeply ingrained in the very substance of the legal process, French or otherwise. It seems to be the essence of legal professionalism. After every excursion into newfangled philosophical movements, the law turns back to the mundane business of setting its own house in order. Any current philosophy that seems to encourage practical attention to detail is apt to be seized upon as a principle for ordering legal affairs. Scholasticism, empiricism, positivism, and (in the United States) pragmatism all serve this purpose. Hence, although Comtean positivism is outmoded, its influence is still ubiquitous. In fact, this is true in greater or less degree for all countries under the influence of the civil law, for codification and positivism are natural bedfellows.


The dominant legal philosophy in Scandinavian countries is legal positivism or, as it is usually called, realism (Olivecrona 1951; 1959; Ross 1957). The legal philosophical specialty is a very subtle form of psychological realism. The general orientation is empirical. There is also an interest in juristic logic. As might be expected, there exists an “idealistic” reaction (Castberg 1955) against the prevailing realism; it takes the form of an insistence upon the claims of value theory in a rounded philosophy of law.

There is an excellent source on legal philosophical movements in Scandinavian Studies in Law, first published in 1957 and continuing to date. The studies are in English. There are also two surveys of Scandinavian legal philosophy available in United States publications (Castberg 1955; Orfield 1956). These volumes should be consulted for an understanding of the ramifications of legal philosophy in the various countries included under the rubric “Scandinavia.” The leading legal philosophers today are Karl Olivecrona, Alf Ross, and Otto Brusiin.

Soviet Union

Legal philosophy in the U.S.S.R. has always been intimately connected with the theoretical work of the founders of communism, Marx and Engels, with the philosophy of dialectical materialism, and with the power struggles of political factions within the Soviet Union (Ginsburgs 1961; Jaworskyj 1960). Hence, a general outline of the legal philosophy of the U.S.S.R. is known to most educated laymen in the West. In a sense, legal philosophy is the party line, for the questions of the nature of the state, of the relation between the state and its citizens, and of the doctrine of law as the chief instrument by which a ruling class (including the proletariat) consolidates power are all problems in the philosophy of law. So, too, are the questions of the withering away of the state and of the possibility of socialism in one country. In brief, legal philosophy is the very business of the Soviet political partisan.

Information on these general political aspects of Soviet legal philosophy is not hard for outsiders to find. When, however, it comes to the intricacies of legal philosophy and to the part it plays in legal education, in the formation and training of the legal administrators of society, and in the form and content of civil and criminal law, we find only scattered pieces of information. Two sources of study of dialectical materialism as a philosophical position and of its influences in official and academic life in the U.S.S.R. are available. One is the Institute for East European Studies at the University of Fribourg, the other, the Research Commission of the German Evangelical Academies at Tubingen.

Articles examining the foundation of Soviet law are contained in the introduction to a symposium on Marxist-Soviet ethics and jurisprudence (Noonan 1963). The articles in this symposium stress how little is known in noncommunist countries about Soviet philosophy. Still less is known, it might be added, about the Soviet philosophy of law. What is known of this subject antedates in the main the recent revolutionary changes in the climate of intellectual and academic opinion in the Soviet Union.

The available Soviet literature gives no hint of a theory of “higher law” or principle of morality which could be taken to override the positive enactments of the state. Such notions would be condemned as idealism. Yet, dialectical materialism is a dynamic philosophy, and change is not only envisioned it is deemed necessary, subject of course to the fundamental principles of materialism. These principles are the primacy of matter over mind and of the objective forces of production over human consciousness. Not only can human laws change to meet these conditions they must do so.

The exigencies of politics rather than any limitations of the philosophical doctrine of dialectical materialism are the normal constraints on the proliferation of alternative philosophical theories about the nature of law. In one sense, Soviet legal philosophy could be called positivitic. This term, however, is not very helpful since the very idea of principled resistance to ordained law is apparently not even entertained. I have the impression that empirical studies of the actual workings of Soviet legal institutions are encouraged. To be scientific, however, such studies must await the development of scientific sociology in the U.S.S.R. It also ap-pears that since logic and mathematics are veryhighly developed in communist countries, partly because of their apparently nonpolitical character, the relation of law and science will probably come in for consideration in the near future. There is some evidence that Soviet legal philosophers are becoming interested in cybernetics and in law and electronics. (For general references about jurisprudence in the Soviet Union, seeSoviet.. . 1951.)


There is a great and growing interest in Japan in all types of legal philosophy (Yagi 1959; Konishi 1960; Tabata 1961; Sawai 1962). The German legal philosophical theories receive continued attention. This includes the whole range from Neo-Kantian and Neo-Hegelian idealism, which has long interested the Japanese, to phenomenology and existentialism. Interest in logical positivism continues unabated.

Since World War II and the adoption of the new Japanese constitution, British and American theories have been receiving widespread attention. Philosophical analysis from England and especially sociological jurisprudence from the United States are attracting the notice of the younger scholars. This is part of a larger interest in the sociology of law, which in Japan, as in other civil law countries, has always been considered a discipline quite separate from the philosophy of law. However, here as elsewhere, legal philosophy is becoming more practical and sociology of law more theoretical. Consequently, the two disciplines are drawing somewhat closer together. There is much interest in the application of empirical methods to the study of legal phenomena. Scalogram analysis of judicial decisions (Hayakawa 1962) is receiving some attention and even experimental jurisprudence has a following.

One of the greatest currents of legal thought in Japan is the study of Marxist theories of law, despite the great difference in the political structure of Japan and the U.S.S.R.

Thomas A. Cowan

[See alsoLEGAL REASONING; LEGAL SYSTEMS;and the biographies ofAUSTIN; EHRLICH; JELLINEK; KAN-TOROWICZ ; KELSEN ; POUND ; RADBRUCH . A detailed guide to other relevant material may be found underLAW.]


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Archiv fur Rechts- und Sozialphilosophie. Ė Published since 1907.

Archives de philosophie du droit, New Series. Ė Published since 1952.

Batiffol, Henri 1960 La philosophic du droit. Paris:Presses Universitaires de France.

Bobbio, Norberto 1959 Trends in Italian Legal Theory. American Journal of Comparative Law 8:329–340.

Bodenheimer, Edgar 1954 Significant Developments in German Legal Philosophy Since 1945.American Journal of Comparative Law 3:379–396.

Bodenheimer, Edgar 1962 Jurisprudence: The Philosophy and Method of the Law. Cambridge, Mass.: Harvard Univ. Press.

Brown, Brendan F. (editor) 1960 The Natural Law Reader. Dobbs Ferry, N.Y.: Oceana.

Carbonnier, Jean (1955–1957) 1960–1962 Droit civil. 2 vols., 3d ed. Paris: Presses Universitaires de France.

Castberg, Frede 1955 Philosophy of Law in the Scandinavian Countries.American Journal of Comparative Law 4:388–400.

Cohen, Julius; Robson, Reginald A. H.; and Bates, Alan 1958 Parental Authority: The Community and the Law. New Brunswick, N.J.: Rutgers Univ. Press.

Coing, Helmut 1952 Tendencies in Modern American Legal Philosophy: A Survey. Georgetown Law Journal 40:523–561.

Conference on Science, Philosophy, and Religion in Their Relation to the Democratic way of Life, 1960 1962 The Ethic of Power: The Interplay of Religion, Philosophy, and Politics. Edited by Harold D. Lasswell and Harlan Cleveland. New York: Harper.

Cowan, Thomas A. 1963 Decision Theory in Law, Science, and Technology. Rutgers University Law Review 17:499–530.Ė Also published in Volume 140, pages 1065–1075, ofScience.

Dias, R. W. M.; and Hughes, G. B. J. 1957 Jurisprudence. London: Butterworth.

Friedmann, Wolfgang (1945) 1960 Legal Theory. 4th ed. London: Stevens.

Friedrich, Carl J. (1955)1958 The Philosophy of Law in Historical Perspective. Univ. of Chicago Press.Ė First published in German.

Fuller, Lon L. 1958 Positivism and Fidelity to Law. Harvard Law Review 71:630–672.

Fuller, Lon L. 1964 The Morality of Law. New Haven:Yale Univ. Press.

Ginsburgs, George 1961 Objective Truth and the Judicial Process in Post-Stalinist Soviet Jurisprudence. American Journal of Comparative Law 10:53–75.

Guest, Anthony G. (editor) 1961 Oxford Essays in Jurisprudence. Oxford Univ. Press.

Hall, Jerome 1958 Studies in Jurisprudence and Criminal Theory. Dobbs Ferry, N.Y.: Oceana.

Hall, Jerome 1963 Comparative Law and Social Theory. Baton Rouge: Louisiana State Univ. Press.

Hart, Herbert L. A. 1953 Philosophy of Law and Jurisprudence in Britain (1945–1952).American Journal of Comparative Law 2:355–364.

Hart, Herbert L. A. 1954 Definition and Theory in Jurisprudence.Law Quarterly Review 70:37–60.

Hart, Herbert L. A. 1961 The Concept of Law. Ox-ford: Clarendon.

Hayakawa, Takeo 1962 Legal Science and Judicial Behavior With Particular Reference to Civil Liberties in the Japanese Supreme Court.Kobe University Law Review, International Edition 2:1–27. Hogaku kyokai zasshi (Journal of the Jurisprudence Association). Ė Published since 1888.

Hurst, James W. 1960 Law and Social Process in United States History. Ann Arbor: Univ. of Michigan Law School.

Jaworskyj, Michael 1960 Soviet Critique of the “Bourgeois” Philosophy of Law.Osteuropa-Recht 6:9–34.

Jenkins, Iredell 1959 The Matchmaker: Or, Toward a Synthesis of Legal Idealism and Positivism.Journal of Legal Education 12:1–32.

Jones, Ernest M. 1962 Some Current Trends in Legal Research.Journal of Legal Education 15:121–138. KELSEN, HANS (1945)1961 General Theory of Law and State. New York: Russell.

Kelsen, Hans 1957 What Is Justice? Justice, Law, and Politics in the Mirror of Science: Collected Essays.Berkeley: Univ. of California Press.

Konishi, Minori 1960 A Report on Legal Philosophy in Japan in the Year 1958.Japan Annual of Law and Politics 8:5–12.

Kunz, Josef L. 1954 Contemporary Latin-American Philosophy of Law: A Survey.American Journal of Comparative Law 3:212–232.

Llewellyn, Karl N. (1928–1960) 1962 Jurisprudence: Realism in Theory and Practice. Univ. of Chicago Press.

Llewellyn, Karl N. 1960 The Common Law Tradition: Deciding Appeals. Boston: Little.

Lumb, R. D. 1960 Recent Developments in Legal Theory in Australia.Archiv fur Rechts- und Sozialphilo-sophie 46:97–114.

Mcdougal, Myres S.; and FELICIANO, FLORENTINO P.1961 Law and Minimum World Public Order: The Legal Regulation of International Coercion. New Haven: Yale Univ. Press.

Mcdougal, Myres S.; LASSWELL, HAROLD D.; and VLASIC, IVAN A. 1963 Law and Public Order in Space. New Haven: Yale Univ. Press.

Mcwninney, Edward 1958 New Frontiers in Jurisprudence in Canada.Journal of Legal Education 10:331–337.

Maihofer, Werner (editor) 1962 Naturrecht oder Rechtspositivismus? Bad Homburg (Germany): Centner.

Nakhnikian, George 1957 Contemporary Ethical Theories and Jurisprudence.Natural Law Forum 2:4–40. NOONAN, JOHN T. JR. 1963 Introduction.Natural Law Forum 8:1–6. Ė The principal part of this issue is devoted to discussions of Marxist-Soviet ethics and jurisprudence.

Olivecrona, Karl 1951 Realism and Idealism: Some Reflections on the Cardinal Point in Legal Philosophy. New York University Law Review 26:120–131. OLIVECRONA, KARL 1959 The Legal Theories of Axel Hagerstrom and Vilhelm Lundstadt.Scandinavian Studies in Law 3:125–150.

Orfield, Lester B. 1956 A Survey of Scandinavian Legal Philosophy. WisconsinLaw Review [ 1956]: 448–480, 585–624.

Österreichische Zeitschrift fur offentliches Recht. Ė Published from 1946 to 1948.

Paton, George W. (1946) 1951 A Text-book of Jurisprudence. 2d ed. Oxford: Clarendon.

Patterson, Edwin W. 1953 Jurisprudence: Men and Ideas of the Law. New York: Foundation Press. POUND, ROSCOE 1959 Jurisprudence. 5 vols. St. Paul, Minn.: West. Ė Volume 1:Jurisprudence: The End of Law. Volume 2:The Nature of Law. Volume 3: The Scope and Subject Matter of Law. Volume 4:Application and Enforcement of Law. Volume 5:The System of Law.

RecasÉns-Siches, Luis 1958 Juridical Axiology in Ibero-America.Natural Law Forum 3:135–169.

Reuschlein, Harold G. 1951 Jurisprudence; Its American Prophets: A Survey of Taught Jurisprudence. Indianapolis, Ind.: Bobbs-Merrill.

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Ross, Alf 1957 Tu-Tu.Scandinavian Studies in Law 1:137–153.

Savatier, R. (1948) 1952–1959 Les metamorphoses economiques et sociales du droit civil d’aujourd’hui. 3 vols., 2d ed. Paris: Dalloz.

Sawai, Kiyoshi 1962 Legal Philosophy in Japan: 1960 Term.Japan Annual of Law and Politics 10:13–17.

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Shuman, Samuel I. 1963 Legal Positivism: Its Scope and Limitations. Detroit, Mich.: Wayne State Univ. Press.

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Like every other American institution, legal theory and practice approached a gathering crisis in the late-nineteenth century. The crisis—the birth of "the modern"—was precipitated by a series of profound, interrelated transformations, both material and intellectual. The decades between 1870 and 1900 witnessed a sudden flowering of technological innovation; the "closing of the frontier" and the shrinking of the continent; the triumphant emergence of the modern industrial corporation and the concomitant creation of an increasingly well-defined laboring class; a dramatic expansion and fragmentation of the national population through immigration; and the growth of massive urban centers, densely packed with these immigrants and laborers and with emancipated slaves and their children and grandchildren. Jurisprudence negotiated this landscape of change in various ways but at first by appearing to move simultaneously in two contradictory directions.


On the one hand, the courts themselves (and particularly the U.S. Supreme Court), emerging from the relative juridical confusion that followed the Civil War, tended toward detached traditionalism—as in, for example, Plessy v. Ferguson (1896), which established the durable racial doctrine of "separate but equal" through an assembly of arguments for states' rights, the separation of legal and social values, and the authority of "the established, usages, customs, and traditions of the people" (Plessy v. Ferguson, p. 550). "The argument [for racial integration] . . . assumes that social prejudices may be overcome by legislation," wrote Justice Henry Billings Brown (1836–1913) for the majority. "We cannot accept this proposition. If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals" (Plessy v. Ferguson, p. 551).

Increasingly, the courts reaffirmed an old idealistic view of law, appealing to the principles of absolute individual rights and their genesis in "natural law," English common law, and John Locke's political theory. Such conservative individualism could lead to rejections of states' rights arguments, as it did in the notorious case of Lochner v. New York (1905), which struck down state legislation limiting work hours that employers could demand of employees. Justice Rufus Wheeler Peckham (1838–1909), writing for the majority, framed the problem in purely Lockean terms as "a question of which of two powers or rights shall prevail, the power of the state to legislate or the right of the individual to liberty of person and freedom of contract" (Lochner v. New York, p. 57) and decided in favor of the individual. Lochner initiated a string of conservative Court decisions in the 1910s and 1920s in which the application of classical individual rights doctrines resulted, paradoxically, in the balance of justice tipping heavily in favor of business management and against individual employees. (An interesting exception, and one which suggests the extent to which the wounds of the Civil War still festered, is Bailey v. Alabama [1911], in which the Supreme Court invoked the Thirteenth Amendment, which outlawed slavery, to reject a state law allowing imprisonment for nonfulfillment of contract.)

On the other hand, and during just these years, a growing body of lawyers and law professors, sensing seismic cultural change around them and believing that a jurisprudence rooted in the seventeenth and eighteenth centuries would surely prove inadequate to the twentieth century, called for full-scale reform of the American legal system and its paradigms. The reform movement's first great spokesman was Roscoe Pound (1870–1964), the young dean of the University of Nebraska Law School. In 1906 Pound startled the American Bar Association (ABA) at its annual meeting by delivering the address "The Causes of Popular Dissatisfaction with the Administration of Justice." His speech castigated his discipline for its deductive formalism, its cumbersome obsession with mechanical procedure, its old-fashioned individualism (out of step with the collective realities of modern society), and its lack of a productively flexible body of theory. Pound's ABA address started him on a path that led through increasingly prestigious professorial appointments to the deanship at Harvard Law School ten years later; it also introduced the great surge of legal thought that over the following thirty years self-consciously defined itself as "progressive" and later, more radically, as "realist," in sharp contradistinction to the orthodoxies that continued to dominate the post-Lochner Courts.

The pre–World War I legal reformers included Pound's Harvard colleague Felix Frankfurter (1882–1965), the Boston lawyer Louis Dembitz Brandeis (1856–1941), and the New York judge Benjamin N. Cardozo (1870–1938), all three of whom would become Supreme Court justices instrumental in the fading of Lochnerism and the enacting of Franklin Delano Roosevelt's New Deal. In different ways they shared and elaborated Pound's complaint: that law had become an empty shell of language and concepts, that it proceeded through mechanical deduction from unproven assumptions, and that it assumed for itself an impossible neutrality and a dubious separation from historical reality. Law had become a complex, self-serving religion. The legal realist Jerome Frank (1889–1957) later would summarize the assumptions of mainstream legal practice in his iconoclastic Law and the Modern Mind (1930), as a kind of Platonism:

Law [in "the conventional view"] is a complete body of rules existing from time immemorial and unchangeable except to the limited extent that legislatures have changed the rules by enacted statutes. Legislatures are expressly empowered thus to change the law. But the judges are not to make or change the law but to apply it. The law, ready-made, pre-exists the judicial decisions. (P. 32)

In The Transformation of American Law 1870–1960 (1992), the legal historian Morton J. Horwitz terms these assumptions "Classical Legal Thought" (p. 3). Against such sacred remoteness the reformers counterpoised their goal of an inductive jurisprudence, particularized, responsive to historical and material experience. In The Nature of the Judicial Process (1921), Cardozo put it in these words:

Statutes are to be viewed, not in isolation or in vacuo, as pronouncements of abstract principles for the guidance of an ideal community, but in the setting and the framework of present-day conditions, as revealed by the labors of economists and students of the social sciences in our own country and abroad. (P. 81)

Or, more memorably, "law never is, but is always about to be" (p. 126).


Cardozo's fluid particularism had a legal and philosophical pedigree. It recalled Oliver Wendell Holmes's (1841–1935) famous liberal dissent in Lochner—"General propositions do not decide concrete cases" (Lochner v. New York, p. 76)—and the influential pragmatism of Holmes's contemporary William James (1842–1910), the Harvard philosopher and brother of the novelist Henry James; it also echoed a positivist tradition in British law leading back to John Austin (1790–1859) and Jeremy Bentham (1748–1832) in the early nineteenth century, which held that law existed in its operations and effects rather than in an ideal set of universal principles. Thus, progressive legal theory participated predictably enough in the general philosophical movement of Western thought toward a secular, scientific empiricism, a movement radically accelerated across the entire nineteenth century. But it also had to do, and perhaps mainly had to do, with a perception of broad social injustice—of, for instance, the paradoxical way in which Lochner's reliance on an individualist logic had apparently led inevitably to the oppression of individual workers. (Unsurprisingly, one of Pound's next major articles after his 1906 address was a direct attack in 1909 on the delusive notion of a symmetrical "liberty of contract," and his career's great unfulfilled project was the full articulation of what he called a "sociological jurisprudence.") The spectacular and easily observed (in fact unavoidable) inequities of a new corporate America divided into haves and have-nots, owners and workers, underlay progressive law. These disparities also inspired the burgeoning American labor movements from 1877 forward, muckraking journalism, the explicit literature of social criticism written by the late-nineteenth-century and early-twentieth-century writers, and the new science of sociology (whose literal subject matter was provided in the academic research of scholars like George Herbert Mead and Charles Horton Cooley and in the more activist urban work of Jane Addams).

Literary history reads most well-known turn-of-the-twentieth-century American writers as naturalists who dramatized the lessons of materialist determinism, from Charles Darwin and Herbert Spencer to Karl Marx—the new scientism of the late nineteenth century. They thus produced mechanically fatalistic narratives whose protagonists are struck down by the very nature of things, the impersonal forces that drive the indifferent universe. Such a reading seems generally correct. But it is important to recognize that these writers, like the progressive legal thinkers, responded to immediate urban and economic situations: they wrote specifically about a landscape of businesses, labor, and immigrants, from Upton Sinclair's (1878–1968) graphic chamber of industrial horrors in The Jungle (1906) to Lily Bart's refined fall into the "unpolished and promiscuous" underworld of working women in Edith Wharton's The House of Mirth (1905). Similar forces played upon a host of other fictional characters from the era: Maggie's and Hurstwood's descents through the working world in Stephen Crane's Maggie, A Girl of the Streets (1893) and Theodore Dreiser's Sister Carrie (1900); Dreiser's portrait of Charles T. Yerkes in The Financier (1912); Jack London's underworld of the laboring classes in The People of the Abyss (1903); Frank Norris's depictions of working-class immigrants in McTeague: A Story of San Francisco (1899) or of the railroads' stranglehold on farmers in The Octopus: A Story of California (1901). All of these reflected quite exactly the concerns that occupied contemporary jurisprudence over how to achieve justice in a new, often brutal socioeconomic order.

American literature, like progressive jurisprudence, became "sociological" in these decades, embedding itself firmly, in Cardozo's words, in "the framework of present-day conditions." It not only took for its own the subject matter of progressive legal theory, but it did so with a similar repudiation of neutrality or detachment, manifesting an outraged energy that sometimes blurred the lines of literature, journalism, and political activism. Dreiser became a communist late in his life; London and Sinclair embraced their own brands of socialism and ran for public office. And in their works the turn-of-the-twentieth-century writers consistently echoed the central themes that energized the crisis of legal theory: the failure of abstract tradition to achieve or sustain justice and the destructive attractiveness of individualism and its singular inadequacy as a paradigm for life in a collectivist world.


It is conventional to see the self-conscious next generation of American writers, the high modernists of the late 1910s and 1920s, as radically different from their progressive predecessors and largely silent on the great social issues of their time. Apolitical, detached, anti-didactic, they concerned themselves more with formal precision than with the messy particulars of social experience. This construction of modernism bases itself on various famous aphoristic formulas that achieved the status more or less of household names, including James Joyce's injunction to artistic "silence, exile, and cunning" (p. 247), T. S. Eliot's understanding of art as a "continual extinction of personality" (p. 247), and Archibald MacLeish's "A poem should not mean / But be" (p. 107).

But a literary sea change occurring around World War I is perhaps more legend than historical truth, part of a general myth of an elite, austere "high culture" deliberately cultivated by a few writers, editors, and critics. In fact, despite their occasional pronouncements suggesting otherwise, writers of the 1920s hardly disconnected themselves from political experience, nor did reformist literature cease. Dreiser, for example, simply went on working out his chosen issues of Social Darwinism against the backdrop of modern economic realities, publishing An American Tragedy in 1925. Sinclair continued to expose the exploitation of the working class in King Coal (1917), Oil! (1927), and Boston (1928)—the last a historical novel about the trial of Nicola Sacco and Bartolomeo Vanzetti. Mainstream popular fiction also acknowledged repeatedly its particular socioeconomic context, as in Dorothy Canfield's The Bent Twig (1915), an occasionally Jamesian romance that manages nonetheless to glance significantly at racial injustice and whose love plot turns on a question of state versus private control of the Colorado mining industry.

Even the most committed formalists themselves, as modern scholarship increasingly demonstrates, wove social and political concerns inextricably into their work in different ways. F. Scott Fitzgerald (1896–1940) began and ended his career with works that looked explicitly at labor unrest: This Side of Paradise (1920) and The Last Tycoon (also published as The Love of the Last Tycoon), which was unfinished at his death in 1940. He also positioned the romantic artist of his 1920 story "May Day" against the background of the Red Scare. In his essay "Does The Waste Land Have a Politics?" (1999), Michael Levenson has persuasively paired Eliot's The Waste Land (1922) with John Maynard Keynes's Economic Consequences of the Peace (1919). Willa Cather in The Professor's House (1925) evoked exactly the issues of contract, labor, and ownership that informed progressive legal theory. William Faulkner's Quentin Compson (in The Sound and the Fury, 1929) is pursued by an angry, justice-seeking Italian immigrant across a Massachusetts suburban countryside made famous by Sacco and Vanzetti.

Nonetheless the major American high modernists did differ dramatically from their naturalist predecessors, both in meticulous attentiveness to form and in their bottomless ironizing, their cultivated postures of neutrality. In much of their work, observation of modern experience—"the immense panorama of futility and anarchy which is contemporary history," in Eliot's famous phrase in his 1923 Dial review of James Joyce's Ulysses (p. 483)—generates quiet gloominess rather than an impulse to action. One can perhaps best understand this passivity as arising from an anxiety over the final implications of an intellectual movement from idealist to realistic models for social organization or from a world organized around individual rights to a world organized around collective needs. The pragmatism behind progressive legal, social, and literary thought brought with it a threatened dissolution of post-Renaissance Western culture's core paradigm, the sovereign, voluntary individual: of voice itself, in fact.


Edna St. Vincent Millay (1892–1950), who joined the Boston protests before the Sacco and Vanzetti executions, wrote the contemporaneous poem "Justice Denied in Massachusetts" (1927). It deployed the recently familiar trope of the wasteland, suggesting an America abdicating its social responsibility.

Let us abandon then our gardens and go home

And sit in the sitting-room.

Shall the larkspur blossom or the corn grow under the cloud?

Sour to the fruitful seed

Is the cold earth under this cloud,

Fostering quack and weed, we have marched upon but cannot conquer;

We have bent the blades of our hoes against the stalks of them.

Let us go home, and sit in the sitting-room.

Not in our day

Shall the cloud go over and the sun rise as before,

Beneficent upon us

Out of the glittering bay,

And the warm winds be blown inward from the sea

Moving the blades of corn

With a peaceful sound.

Forlorn, forlorn,

Stands the blue hay-rack by the empty mow.

And the petals drop to the ground,

Leaving the tree unfruited.

The sun that warmed our stooping backs and withered the weed uprooted—

We shall not feel it again.

We shall die in darkness, and be buried in the rain.

What from the splendid dead

We have inherited—

Furrows sweet to the grain, and the weed subdued—

See now the slug and the mildew plunder.

Evil does not overwhelm

The larkspur and the corn;

We have seen them go under.

Let us sit here, sit still,

Here in the sitting-room until we die;

At the step of Death on the walk, rise and go;

Leaving to our children's children this beautiful doorway,

And this elm,

And a blighted earth to till

With a broken hoe.

Millay, "Justice Denied in Massachusetts," in Collected Lyrics, pp. 230–231.

Such an anxiety may have to do with modernism's well-known retreat into form, myths, and nostalgia. It certainly did have to do with Roscoe Pound's increasing conservatism in his post–World War I career at Harvard, where his early enthusiasm for administrative law (the administration of law by state agencies to serve public needs) gradually transformed itself into a reaffirmation of the unwritten English common law and a stubborn opposition to Franklin D. Roosevelt and his New Deal. But most jurisprudence in the 1920s continued to develop along the practical, neo-positivist lines set down by the progressive thinkers, and by 1930 something like the sociological jurisprudence that Pound had envisioned but never completed was being articulated as a coherent legal movement by a group of thinkers who became known as the legal realists. They were mainly based in the law schools at Columbia and Yale and included Karl Nickerson Llewellyn (1893–1962), Walter Wheeler Cook (1873–1943), William Underhill Moore (1879–1949), William O. Douglas (1898–1980), and Herman Oliphant (1884–1939), among others. And by comparison with their predecessors they were radical skeptics, willing to let go of both legal absolutism and the autonomous subject.

The legal realists wholeheartedly embraced Holmes's particularist dissent in Lochner, "general propositions do not decide concrete cases," and made it the key tenet of a practical legal philosophy that located the major sources of legal decisions in facts, not in abstract principles: "no ideas but in things," as the poet William Carlos Williams (1883–1963) was to write in Paterson in the 1940s (p. 9). They mistrusted idealization. Jerome Frank (1889–1957), a New York attorney, produced one of the movement's most colorful early manifestoes, Law and the Modern Mind, using Freudian and Nietzschean terms to attack idealist jurisprudence as an expression of infantile dependency, an unacknowledged form of father worship: for law to result in justice, Frank announced, "there must be a twilight of the gods . . . law cannot function at its best if it must still also in some degree do the work of religion" (p. 199). Like the progressive legal thinkers of the century's first two decades, they insisted that lawyers needed to take cognizance of modern economics, sociology, and psychology but with a difference: for legal realism, social science was not so much a tool for getting at justice or the legal truth as a way of thinking about law itself as a socially determined, historically fluid human activity. In short, the legal realists celebrated and theorized the quintessentially modernist epistemologies of uncertainty and indeterminacy that led many of their literary contemporaries into neoclassical formalism. Their work built flexible theoretical supports for the genuinely administrative and sociological law that articulated the New Deal, the great American triumph of collectivist thinking, in the late 1930s.


Even as legal theory itself moved increasingly toward a complexly informed relativism in the twentieth century's first three decades, the American public's understanding of law grew more individualized, personalized, and simply theatrical, mainly because of increasingly efficient techniques of journalism that allowed the rapid national dissemination of news and images. Police cases and courtroom trials offered the reading public dramatic experiences like those of serialized fiction but with the additional attraction of unfolding daily—and of being "real," although such a reality, founded in the very fictive nature of law that jurisprudence sought to remedy, was paradoxical at best.

The principal performer on the legal theater's public stage was Clarence Darrow (1857–1938), the famous midwestern defense lawyer who began his career in Chicago in the 1890s representing labor organizers facing criminal prosecution. Darrow's particular skill—like that of Upton Sinclair and other reformers—lay in individualizing the oppressed, using sentimental oratory to galvanize public sympathy for the tragic figures of workers accused of striking back against injustice. An immensely attractive figure in his passionate identification with the causes that he represented, Darrow captivated journalists in the century's first decades in a series of sensational courtroom performances in the Midwest and West. But he is most remembered for two courtroom dramas of the mid-1920s far removed from issues of labor or even, to his critics, of justice: the Leopold and Loeb trial in Chicago, where he negotiated life sentences for two wealthy young men who killed a teenager in a self-aware gesture of Nietzschean will; and the celebrated Scopes "monkey trial" in Dayton, Tennessee, a showcase event for the emergent American Civil Liberties Union, in which Darrow faced the aging William Jennings Bryan over the teaching of evolution in public schools. Darrow's best legal theater (and both of these trials inspired plays and movies) turned out, unsurprisingly, to evoke the classical and timeless drama of the beleaguered individual, not the sociological analysis to which law's theory increasingly turned.

Yet the third sensational case of the 1920s, the seven-year Massachusetts murder trial of Italian immigrant anarchists Nicola Sacco and Bartolomeo Vanzetti, did in its final effects passionately revive for some writers the progressive rage for social justice. The case invoked for its audiences both the familiar plight of the powerless immigrant workingman and the court's apparent complicity, to the point of disregarding fundamental legal procedure, in carrying out the political wishes of a government enthralled by the Red Scare of 1919 and 1920. It deeply involved the Harvard legal community, leading Felix Frankfurter to an extraordinary public attack (in the Atlantic Monthly) in 1927 on Webster Thayer, the judge presiding over the original trial and its appeal. Frankfurter's outburst was not quite the old progressive complaint of traditional law's inadequacy to deal with collective, corporate society; it was rather that law had in the Sacco and Vanzetti trials become corrupted, an agent of the most oppressive kind of political power.

Sacco and Vanzetti became a rallying point for writers of the old Left, including Upton Sinclair and Emma Goldman. John Dos Passos (1896–1970), who had written about Sacco and Vanzetti for New Masses and the Sacco-Vanzetti Defense Committee (and who also took part in the pre-execution protests), wrote the trial and executions into the climax of The Big Money (1936), the final volume of his U.S.A. trilogy, as epitomizing a final division of American society between oppressors and oppressed:

they have clubbed us off the streets they are stronger they are rich . . . their hired men sit on the judge's bench they sit back with their feet on the tables under the dome of the State House . . . they have built the electric chair and hired the executioner to throw the switch all right we are two nations. (Pp. 1156–1157)

His indictment of an entire society brutally ruled by a faceless "they," an invisible malignant alliance of business, the state, and the law, was a new kind of critique: paranoid sounding but also the product of an undistorted realism, a vision finally free of illusion. It fore-shadowed the repudiation of public America that would mark protest literature through a generation of Beat writers and on into the late twentieth century, from Allen Ginsberg to Thomas Pynchon. The sustaining fiction of an orderly society founded in consistent, equitable legal principles had been stretched to the breaking point, and the deaths of Sacco and Vanzetti signaled its irreversible dissolution.

See alsoCapital Punishment; The House of Mirth; The Jungle; Law Enforcement; Lochner v. New York; Maggie, A Girl of the Streets; McTeague; Plessy v. Ferguson; Reform; Sister Carrie; This Side of Paradise


Primary Works

Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press, 1921.

Dos Passos, John. The Big Money. 1936. In U.S.A. 1938. New York: Library of America, 1996.

Eliot, T. S. "Memory, Order, and Myth." The Dial 75, no. 5 (November 1923): 480–483.

Eliot, T. S. "Tradition and the Individual Talent." 1919. In Selected Essays of T. S. Eliot. New York: Harcourt, Brace, and World, 1964.

Frank, Jerome. Law and the Modern Mind. New York: Tudor Publishing, 1935.

Frankfurter, Felix. "The Case of Sacco and Vanzetti." Atlantic Monthly, March 1927, pp. 409–432.

Joyce, James. A Portrait of the Artist as a Young Man. 1916. New York: Viking, 1964.

Lochner v. People of the State of New York, 198 U.S. 45 (1905).

MacLeish, Archibald. "Ars Poetica." In Collected Poems, 1917–1982, p. 107. Boston: Houghton Mifflin, 1985.

Millay, Edna St. Vincent. "Justice Denied in Massachusetts." In Collected Lyrics, pp. 230–231. New York: Harper & Brothers, 1943.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Williams, William Carlos. Paterson. New York: New Directions, 1963.

Secondary Works

Fisher, William W., III, Morton J. Horwitz, and Thomas Reed, eds. American Legal Realism. New York: Oxford University Press, 1993.

Horwitz, Morton J. The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.

Hull, N. E. H. Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence. Chicago: University of Chicago Press, 1997.

Leiter, Brian R. "American Legal Realism." In The Blackwell Guide to Philosophy of Law and Legal Theory, edited by W. Edmundson and M. Golding. Oxford: Blackwell, 2003. Social Science Research Network Electronic Library, http://ssrn.com/abstract=339562.

Levenson, Michael. "Does The Waste Land Have a Politics?" Modernism/Modernity 6, no. 3 (September 1999): 1–13.

Tierney, Kevin. Darrow: A Biography. New York: Crowell, 1979.

Wigdor, David. Roscoe Pound: Philosopher of Law. Westport, Conn.: Greenwood Press, 1974.

John N. Swift


views updated May 14 2018


From the Latin term juris prudentia, which means "the study, knowledge, or science of law"; in the United States, more broadly associated with the philosophy of law.

Legal philosophy has many branches, with four types being the most common. The most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to constitutional law. Legal encyclopedias, law reviews, and law school textbooks frequently contain this type of jurisprudential scholarship.

The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The purpose of this type of study is to enlighten each field of knowledge by sharing insights that have proven to be important in advancing essential features of the compared discipline.

The third type of jurisprudence raises fundamental questions about the law itself. These questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal concept. The Common Law (1881), written by oliver wendell holmes jr., is a well-known example of this type of jurisprudence. It traces the evolution of civil and criminal responsibility from undeveloped societies where liability for injuries was based on subjective notions of revenge, to modern societies where liability is based on objective notions of reasonableness.

The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions, including, What is law? How does a trial or appellate court judge decide a case? Is a judge similar to a mathematician or a scientist applying autonomous and determinate rules and principles? Or is a judge more like a legislator who simply decides a case in favor of the most politically preferable outcome? Must a judge base a decision only on the written rules and regulations that have been enacted by the government? Or may a judge also be influenced by unwritten principles derived from theology, moral philosophy, and historical practice?

Four schools of jurisprudence have attempted to answer these questions: formalism proposes that law is a science; realism holds that law is just another name for politics; positivism suggests that law must be confined to the written rules and regulations enacted or recognized by the government; and naturalism maintains that the law must reflect eternal principles of justice and morality that exist independent of governmental recognition.

Modern U.S. legal thought began in 1870. In that year, Holmes, the father of the U.S. legal realist movement, wrote his first major essay for the American Law Review, and christopher columbus langdell, the father of U.S. legal formalism, joined the faculty at Harvard Law School.


Legal formalism, also known as conceptualism, treats law like a math or science. Formalists believe that in the same way a mathematician or scientist identifies the relevant axioms, applies them to given data, and systematically reaches a demonstrable theorem, a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of a dispute. Judges derive relevant legal principles from various sources of legal authority, including state and federal constitutions, statutes, regulations, and case law.

For example, most states have enacted legislation that prohibits courts from probating a will that was not signed by two witnesses. If a court is presented with a number of wills to probate for the same estate, and only one of those wills has been witnessed by at least two persons, the court can quickly deduce the correct legal conclusion in a formalistic fashion: each will that has been signed by fewer than two witnesses will have no legal effect, and only the will executed in compliance with the statutory requirements may be probated.

Formalists also rely on inductive reasoning to settle legal disputes. Whereas deductive reasoning involves the application of general principles that will yield a specific rule when applied to the facts of a case, inductive reasoning starts with a number of specific rules and infers from them a broader legal principle that may be applied to comparable legal disputes in the future. griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), provides an example. In Griswold, the Supreme Court ruled that although no express provision of the federal Constitution guarantees the right to privacy, and although no precedent had established such a right, an individual's right to privacy can be inferred from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments and the cases interpreting them.

English jurist sir edward coke was among the first to popularize the formalistic approach to law in Anglo-American history. Coke believed that the common law was "the peculiar science of judges." The common law, Coke said, represented the "artificial perfection of reason" obtained through "long study, observation, and experience." Coke also believed that only lawyers, judges, and others trained in the law could fully comprehend and apply this highest method of reasoning. The rest of society, including the king or queen of England, was not sufficiently learned to do so.

Langdell invigorated Coke's jurisprudence of artificial reason in the United States during the second half of the nineteenth century. Langdell compared the study of law to the study of science, and suggested that law school classrooms were the laboratories of jurisprudence. Judicial reasoning, Langdell believed, parallels the reasoning used in geometric proofs. He urged professors of law to classify and arrange legal principles much as a taxonomist organizes plant and animal life. Langdell articulated what has remained the orthodox school of thought in U.S. jurisprudence throughout the twentieth century.

Since the early 1970s, Professor ronald m. dworkin has been the foremost advocate of the formalist approach with some subtle variations. Although Dworkin stops short of explicitly comparing law to science and math, he maintains that law is best explained as a rational and cohesive system of principles that judges must apply with integrity. The principle of integrity requires that judges provide equal treatment to all litigants presenting legal claims that cannot honestly be distinguished. Application of this principle, Dworkin contends, will produce a "right answer" in all cases, even cases presenting knotty and polemical political questions.


The realist movement, which began in the late eighteenth century and gained force during the administration of President franklin d. roosevelt, was the first to attack formalism. Realists held a skeptical attitude toward Langdellian legal science. "The life of the law has not been logic, it has been experience," Holmes wrote in 1881.

Realists held two things to be true. First, they believed that law is not a scientific enterprise in which deductive reasoning can be applied to reach a determinate outcome in every case. Instead, most litigation presents hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line is typically drawn in accordance with the political, economic, and psychological proclivities of the judge.

For example, when a court is asked to decide whether a harmful business activity is a common-law nuisance, the judge must ascertain whether the particular activity is reasonable. The judge does not base this determination on a precise algebraic equation. Instead, the judge balances the competing economic and social interests of the parties, and rules in favor of the litigant with the most persuasive case. Realists would thus contend that judges who are ideologically inclined to foster business growth will authorize the continuation of a harmful activity, whereas judges who are ideologically inclined to protect the environment will not.

Second, realists believed that because judges decide cases based on their political affiliation, the law tends always to lag behind social change. For example, the realists of the late nineteenth century saw a dramatic rise in the disparity between the wealth and working conditions of rich and poor U.S. citizens following the industrial revolution. To protect society's poorest and weakest members, many states began drafting legislation that established a minimum wage and maximum working hours for various classes of exploited workers. This legislation was part of the U.S. Progressive movement, which reflected many of the realists' concerns.

The Supreme Court began striking down such laws as an unconstitutional interference with the freedom of contract guaranteed by the fourteenth amendment of the U.S. Constitution. U.S. realists claimed that the Supreme Court justices were simply using the freedom-of-contract doctrine to hide the real basis of their decision, which was their personal adherence to free-market principles and laissez-faire economics. The realists argued that the free-market system was not really free at all. They believed that the economic structure of the United States was based on coercive laws such as the employment-at-will doctrine, which permits an employer to discharge an employee for almost any reason. These laws, the realists asserted, promote the interests of the most powerful U.S. citizens, leaving the rest of society to fend for itself.

Some realists only sought to demonstrate that law is neither autonomous, apolitical, nor determinate. For example, jerome frank, who coined the term legal realism and later became a judge on the U.S. Court of Appeals for the Second Circuit, emphasized the psychological foundation of judicial decision making, arguing that a judge's decision may be influenced by mundane things like what he or she ate for breakfast. Frank believed that it is deceptive for the legal profession to perpetuate the myth that the law is clearly knowable or precisely predictable, when it is so plastic and mutable. karl llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of a judge who is able to shape the outcome of a case based on personal biases.

Since the mid-1960s, this theme has been echoed by the critical legal studies movement, which has applied the skeptical insights of the realists to attack courts for rendering decisions based on racial, sexist, and homophobic prejudices. For example, feminist legal scholars have pilloried the Supreme Court's decision in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), for offering women less protection against governmental discrimination than is afforded members of other minority groups. Gay legal scholars similarly assailed the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), for failing to recognize a fundamental constitutional right to engage in homosexual sodomy. The Supreme Court's 2003 decision in lawrence v. texas 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508, that overturned the Bowers holding was a vindication for gay rights jurisprudence.

Other realists, such as roscoe pound, were more interested in using the insights of their movement to reform the law. Pound was one of the original advocates of sociological jurisprudence in the United States. According to Pound, the aim of every law—whether constitutional, statutory, or case—should be to enhance the welfare of society. jeremy bentham, a legal philosopher in England, planted the seeds of sociological jurisprudence in the eighteenth century when he argued that the law must seek to achieve the greatest good for the greatest number of people in society. Bentham's theory, known as utilitarianism, continues to influence legal thinkers in the United States.

Law and economics is one school of thought that traces its lineage to Benthamite jurisprudence. This school, also known as economic analysis of the law, argues that judges must decide cases in order to maximize the wealth of society. According to law and economics exponents, such as richard posner, each person in society is a rational maximizer of his or her own self-interest. Persons who rationally maximize their self-interest are willing to exchange something they value less for something they value more. For example, every day in the United States, people voluntarily give up their time, money, and liberty to acquire food, property, or peace of mind. This school of thought contends that the law must facilitate these voluntary exchanges to maximize the aggregate wealth of society.

Another school of thought Bentham influenced is known as legal pragmatism. Unlike law and economics exponents, legal pragmatists provide no formula for determining the best means to improve the welfare of society. Instead, pragmatists contend that judges must merely set a goal that they hope to achieve in resolving a particular legal dispute, such as the preservation of societal stability, the protection of individual rights, or the delineation of governmental powers and responsibilities. Judges must then draft the best court order to accomplish this goal. Pragmatists maintain that judges must choose the appropriate societal goal by weighing the value of competing interests presented by a lawsuit, and then using a "grab bag" of "anecdote, introspection, imagination, common sense, empathy, metaphor, analogy, precedent, custom, memory, experience, intuition, and induction" to reach the appropriate balance (Posner 1990, 73).

Pragmatism, sometimes called instrumentalism, is best exemplified by Justice Holmes's statement that courts "decide cases first, and determine the principle afterwards." This school of thought is associated with result-oriented jurisprudence, which focuses more on the consequences of a judicial decision than on how the relevant legal principles should be applied.

The Realist-Formalist Debate

The realist-formalist dichotomy represents only half of the jurisprudential picture in the United States. The other half comprises a dialogue between the positivist and natural-law schools of thought. This dialogue revolves around the classic debate over the appropriate sources of law.

Positivists maintain that the only appropriate sources of law are rules and principles that have been expressly enacted or recognized by a governmental entity, like a state or federal legislature, administrative body, or court of law. These rules and principles may be properly considered law, positivists contend, because individuals may be held liable for disobeying them. Positivists believe that other sources for determining right and wrong, such as religion and contemporary morality, are only aspirational, and may not be legitimately consulted by judges when rendering a decision.

Natural-law proponents, or naturalists, agree that governmental rules and regulations are a legitimate source of law, but assert that they are not the only source. Naturalists believe that the law must be informed by eternal principles that existed before the formation of government and are independent of governmental recognition. Depending on the particular strain of natural law, these principles may be derived from theology, moral philosophy, human reason, historical practice, and individual conscience.

The dialogue between positivists and naturalists has a long history. For many centuries, historians, theologians, and philosophers distinguished positivism from naturalism by separating written law from unwritten law. For example, the Ten Commandments were inscribed on stone tablets, as were many of the laws of the ancient Greeks. Roman Emperor justinian i (a.d. 482–565) reduced most of his country's laws to a voluminous written code. At the same time, Christian, Greek, and Roman thinkers all appealed to a higher law that transcended the written law promulgated by human beings.

Prior to the American Revolution, English philosophers continued this debate along the same lines. English political thinkers john austin and thomas hobbes were strict positivists who believed that the only authority courts should recognize are the commands of the sovereign because only the sovereign is entrusted with the power to back up a command with military and police force. First intimated by Italian philosopher Niccolò Machiavelli, the "sovereign command" theory of law has been equated in the United States with the idea that might makes right.

Contrasted with the writings of Hobbes and Austin were the writings of john locke in England and thomas jefferson in America. In his Second Treatise on Government (1690), Locke established the idea that all people are born with the inalienable right to life, liberty, and property. Locke's ruminations about individual rights that humans possess in the state of nature prior to the creation of government foreshadowed Jefferson's Declaration of Independence. In 1776, the Declaration of Independence announced the self-evident truth that "all men are created equal" and are "endowed by their Creator with certain inalienable Rights," including the right to "Life, Liberty and the pursuit of Happiness."

Both positivism and naturalism have had an enormous influence on how U.S. citizens think about law. The institution of African–American slavery, which was recognized by the U.S. Constitution and legalized by legislation passed in the South prior to the Civil War (1861–65), was attacked by abolitionists who relied on higherlaw principles of religion and conscience to challenge the moral foundations of human bondage. Following world war ii, the Allied powers successfully prosecuted German government officials, industrialists, and military leaders in Nuremberg for committing genocide against European Jewry, even though the Nazi regime had passed laws authorizing such extermination. The Allies relied in part on the natural-law principle that human dignity is an inviolable right that no government may vitiate by written law.

Historical Jurisprudence

Positivists and naturalists tend to converge in the area of historical jurisprudence. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute. Strictly speaking, history does not completely fall within the definition of either positivism or natural law. Historical events, like the Civil War, are not legislative enactments, although they may be the product of governmental policy. Nor do historical events embody eternal principles of morality, although they may be the product of clashing moral views. Yet, historical events shape both morality and law. Thus, many positivists and naturalists find a place for historical jurisprudence in their legal philosophy.

For example, Justice Holmes was considered a positivist to the extent that he believed that courts should defer to legislative judgment unless a particular statute clearly violates an express provision of the Constitution. But he qualified this stance when a given statute "infringe[s] on fundamental principles as they have been understood by the traditions of our people and our law" (lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). In such instances, Holmes felt, courts were justified in striking down a particular written law.

benjamin n. cardozo, considered an adherent of sociological jurisprudence by some and a realist by others, was another Supreme Court justice who incorporated history into his legal philosophy. When evaluating the merits of a claim brought under the due process Clauses of the Fifth and Fourteenth Amendments, Cardozo denied relief to claims that were not "implicit in the concept of ordered liberty" and the "principle[s] of justice [that are] so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]).

Contemporary Thought

Each school of jurisprudence is not a self-contained body of thought. The lines separating positivism from realism and natural law from formalism often become blurry. The legal philosophy of Justice Holmes, for example, borrowed from the realist, positivist, pragmatic, and historical strains of thought.

In this regard, some scholars have observed that it is more appropriate to think of jurisprudence as a spectrum of legal thought, where the nuances of one thinker delicately blend with those of the next. For example, Harold Berman, a leading authority on comparative legal history, has advocated the development of an integrative jurisprudence, which would assimilate into one philosophy the insights from each school of legal theory. The staying power of any body of legal thought, Berman has suggested, lies not in its name but in its ability to explain the enterprise of law.

further readings

Dworkin, Ronald M. 1977. Taking Rights Seriously. Cambridge: Harvard Univ. Press.

Grey, Thomas C. 1983. "Langdell's Orthodoxy." University of Pittsburgh Law Review 45.

Hayman, Robert L., Jr., Nancy Levit, and Richard Delgado, eds. 2002. Jurisprudence: Classical and Contemporary: From Natural Law to Postmodernism. 2d ed. St. Paul, Minn.: West Group.

Holmes, Oliver Wendell, Jr. 1963. The Common Law. Boston: Little, Brown.

Horwitz, Morton J. 1992. The Transformation of American Law: 1870–1960. New York: Oxford Univ. Press.

Llewellyn, Karl N. 2000. Jurisprudence: Realism in Theory and Practice. Union, N.J.: Lawbook Exchange.

Michael, Helen. 1991. "The Role of Natural Law in Early American Constitutionalism: Did the Founders Contemplate Judicial Enforcement of 'Unwritten' Individual Rights?" North Carolina Law Review 69.

Patterson, Dennis M. 2002. Philosophy of Law and Legal Theory. Malden, Mass.: Blackwell.

Posner, Richard A. 2001. Frontiers of Legal Theory. Cambridge, Mass.: Harvard Univ. Press.

——. 1990. Problems of Jurisprudence. Cambridge: Harvard Univ. Press.

Smith, Steven D. 2001. "Expressivist Jurisprudence and the Depletion of Meaning." Maryland Law Review 60 (summer): 506–77.

Stoner, James. 1992. Common Law and Liberal Theory. Lawrence: Univ. Press of Kansas.

Terry, Douglas A. 2002. "Don't Forget About Reciprocal Altruism: Critical Review of the Evolutionary Jurisprudence Movement." Connecticut Law Review 34 (winter): 477–509.


Anarchism; Chicago School; Feminist Jurisprudence; Gay and Lesbian Rights; Judicial Review; Law; Legal Education; Legal History; Nuremberg Trials; Roman Law; Socialism.


views updated May 11 2018





The term jurisprudence refers generally to the science or study of law and encompasses any effort to define, describe, or conceptualize the nature of the law. In practice, such efforts vary dramatically in scope and focus. Broadly speaking, jurisprudential efforts can be divided into two types: applied jurisprudence and the philosophy of law.


Applied, or empirical, jurisprudence is the study of the nature and development of the law through its actual practice. In other words, the endeavor of applied jurisprudence is to examine judicial decisions in which rules of law are applied to actual cases and conflicts, and from that application infer something about the nature of the law being applied. For example, one might look at a series of U.S. Supreme Court decisions that apply the establishment clause of the First Amendment to actual conflicts and, from those decisions, develop an understanding of what the establishment clause means and how it might be applied to other, hypothetical situations. This understanding and the judicial decisions giving rise to it would be known, collectively, as establishment clause jurisprudence.

Applied jurisprudence is particularly important in common law legal systemsprimarily in England and its former colonies. Blacks Law Dictionary defines common law as the body of law derived from judicial decisions, rather than from statutes or constitutions (1999, p. 270). Common law systems are based on the idea that law derives primarily from custom or usage. In a common law system, the basis or grounds on which a court resolves a dispute comes from past decisions of the court; those past decisions are called precedents. Statutes and other codified laws may alter or supersede common law principles, but common law principles are used to interpret statutes, and traditional common law principles fill the interstices between codified laws.

In common law systems, legal norms develop incrementally over time, with judicial decisions announcing or explaining the law only when necessary to resolve the particular dispute before it. Anticipating how the law will be applied to a new factual scenario necessarily requires assimilating a large number of judicial decisions and analogizing to the new fact pattern. As a result, the endeavor of applied jurisprudencelooking at judicial decisions and, from them, discerning the nature of the lawis an integral part of the practice of law in common law countries.


The term jurisprudence also refers to the philosophy of law, which is concerned not with the law of a particular state or country but with the nature of law more generally. The philosophy of law is concerned with the origin of law, the difference between law and other social norms, the difference between legal systems and other institutions, and the legitimacy of laws and legal systems. Some philosophical inquiries focus on what the law is, and these inquiries form the basis of analytic jurisprudence. Other philosophical inquiries focus on what the law should be, and these inquiries form the basis of normative jurisprudence.

Analytic jurisprudence addresses questions about what the law is: What do we mean by the term law ? How do we come to understand the law? What differentiates laws from other norms and institutions? What is the relationship between the law and other concepts, such as power and morality?

Perhaps the most significant and fundamental issue in the context of analytic jurisprudence is the debate between natural law theorists and legal positivists. Put very simply, natural law theorists assert that law derives from a higher order, imposed by God or nature and adducible by reason; law exists independently of states and sovereigns, and law is inseparable from morality. A state may articulate a rule and use its coercive power to enforce that rule, but the rule is not genuinely law unless it conforms with some standard of what is right, moral, or just. Although philosophical writings dating back to Aristotle (384322 BCE) reflect the theory of natural law, its most prominent champion in the twentieth and early twenty-first centuries is the Australian legal scholar John Finnis.

In contrast to natural law, legal positivism views law as a purely social construct and asserts that the law is what the sovereign declares it to be; the question of whether a law is good or right is distinct from the question of whether it is, in fact, a law. Some of the most notable proponents of legal positivism include the British jurist John Austin (17901859) and the British scholar H. L. A. Hart (19071992).

Legal interpretivism presents a conceptual alternative to both natural and positive theories of law. The interpretivist approach argues that law is not a fixed concept at all, but the result of legal practice. Rules articulated by the state must be interpreted, and their interpretation by legal practitioners is necessarily informed by those practitioners moral beliefs. Thus, law does not derive from morality but is shaped by it. The interpretivist approach is most often associated with the American legal scholar Ronald Dworkin.

Whereas analytic jurisprudence seeks to describe law and legal systems objectively and, in some circumstances, to address the relationship between law and morality, normative jurisprudence addresses the moral questions raised by legal problems: When should the rights of one person be compromised to protect the rights of another? Is a state justified in restricting an individuals liberty to protect that individual by, for example, requiring the use of automobile seatbelts or prohibiting suicide? Why and how should violations of the law be punished?

Normative jurisprudential debates frequently invoke religious arguments and overlap with political philosophy. For example, one of the most enduring questions of normative jurisprudence is whether a state is ever justified in imposing capital punishment. Both the popular and scholarly dialogues on the issue frequently involve arguments based on religious teachings. Similarly, in the United States, the capital punishment debate is sometimes framed as a political question: As the ultimate restriction on liberty, is capital punishment consistent with liberal democratic values?

SEE ALSO Judicial Review; Judiciary; Law


Coleman, Jules, and Scott Shapiro, eds. 2002. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press.

Dworkin, Ronald. 1986. Laws Empire. Cambridge, MA: Harvard University Press.

Finnis, John. 1980. Natural Law and Natural Rights. New York: Oxford University Press.

Garner, Bryan A., ed. 1999. Blacks Law Dictionary. 7th ed. St. Paul, MN: West Group.

Hart, H. L. A. 1961. The Concept of Law. New York: Oxford University Press.

Wendy L. Watson


views updated May 21 2018

ju·ris·pru·dence / ˌjoŏrisˈproōdns/ • n. the theory or philosophy of law. ∎  a legal system: American jurisprudence.DERIVATIVES: ju·ris·pru·dent adj. & n.ju·ris·pru·den·tial / -proōˈdenchəl/ adj.


views updated May 18 2018

jurisprudence Philosophy and science of the law, which dates back to Plato and Aristotle. Jurisprudence seeks to discover the source and justification of the law and its scope and function in a particular society.