Legal Philosophy (runes)

Legal Philosophy: Deals with the philosophic principles of law and justice. The origin is to be found in ancient philosophy. The Greek Sophists criticized existing laws and customs by questioning their validity: All human rules are artificial, created by enactment or convention, as opposed to natural law, based on nature. The theory of a law of nature was further developed by Aristotle and the Stoics. According to the Stoics the natural law is based upon the eternal law of the universe; this itself is an outgrowth of universal reason, as man’s mind is an offshoot of the latter. The idea of a law of nature as being innate in man was particularly stressed and popularized by Cicero who identified it with “right reason” and already contrasted it with written law that might be unjust or even tyrannical. Through Saint Augustine these ideas were transmitted to medieval philosophy and by Thomas Aquinas built into his philosophical system. Thomas considers the eternal law the reason existing in the divine mind and controlling the universe. Natural law, innate in man participates in that eternal law. A new impetus was given to Legal Philosophy by the Renaissance. Natural Jurisprudence, properly so-called, originated in the XVII. century. Hugo Grotius, Thomas Hobbes, Benedictus Spinoza, John Locke, Samuel Pufendorf were the most important representatives of that line of thought. Grotius, continuing the Scholastic tradition, particularly stressed the absoluteness of natural law (it would exist even if God did not exist) and, following Jean Bodin, the sovereignty of the people. The idea of the social contract traced all political bodies back to a voluntary compact by which every individual gave up his right to self-government, or rather transferred it to the government, abandoning a state of nature which according to Hobbes must have been a state of perpetual war. The theory of the social compact more and more accepts the character of a “fiction” or of a regulative idea (Kant). In this sense the theory means that we ought to judge acts of government by their correspondence to the general will (Rousseau) and to the interests of the individuals who by transferring their rights to the commonwealth intended to establish their real liberty. Natural law by putting the emphasis on natural rights, takes on a revolutionary character. It played a part in shaping the bills of rights, the constitutions of the American colonies and of the Union, as well as of the French declaration of the rights of men and of citizens. Natural jurisprudence in the teachings of Christian Wolff and Thomasius undergoes a kind of petrification in the vain attempt to outline an elaborate system of natural law not only in the field of international or public law, but also in the detailed regulations of the law of property, of contract, etc. This sort of dogmatic approach towards the problems of law evoked the opposition of the Historic School (Gustav Hugo and Savigny) which stressed the natural growth of laws ind customs, originating from the mysterious “spirit of the people”. On the other hand Immanuel Kant tried to overcome the old natural law by the idea of a “law of reason”, meaning an a priori element in all existing or positive law. In his definition of law (“the ensemble of conditions according to which everyone’s will may coexist with the will of every other in accordance with a general rule of liberty”), however, as in his legal philosophy in general, he still shares the attitude of the natural law doctrine, confusing positive law with the idea of just law. This is also true of Hegel whose panlogism seemed to lead in this very direction. Under the influence of epistemological positivism (Comte, Mill) in the later half of the nineteenth century, legal philosophy, especially in Germany, confined itself to a “general theory of law”. Similarily John Austin in England considered philosophy of law concerned only with positive law, “as it necessarily is”, not as it ought to be. Its main task was to analyze certain notions which pervade the science of law (Analytical Jurisprudence). In recent times the same tendency to reduce legal philosophy to logical or at least methodological tasks was further developed in attempting a pure science of law (Kelsen, Roguin). Owing to the influence of Darwinism and natural science in general the evolutionist and biological viewpoint was accepted in legal philosophy: comparative jurisprudence, sociology of law, the Freirecht movement in Germany, the study of the living law, “Realism” in American legal philosophy, all represent a tendency against rationalism. On the other hand there is a revival of older tendencies: Hegelianism, natural law — especially in Catholic philosophy — and Kantianism (beginning with Rudolf Stammler). From here other trends arose: the critical attitude leads to relativism (f.i. Gustav Radbruch); the antimetaphysical tendency towards positivism — though different from epistemological positivism — and to a pure theory of law. Different schools of recent philosophy have found their applications or repercussions in legal philosophy: Phenomenology, for example, tried to intuit the essences of legal institutions, thus coming back to a formalist position, not too far from the real meaning of analytical jurisprudence. Neo-positivism, though so far not yet explicitly applied to legal philosophy, seems to lead in the same direction. — W.E.

Dictionary of Philosophy