Analytical jurisprudence

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Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, [1] though its history goes back at least to Jeremy Bentham.

H. L. A. Hart 1907–1992; British legal philosopher

Herbert Lionel Adolphus Hart, FBA, usually cited as H. L. A. Hart, was a British legal philosopher, and a major figure in political and legal philosophy. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His most famous work is The Concept of Law, which has been hailed as "the most important work of legal philosophy written in the twentieth century". He is considered one of the world's foremost legal philosophers in the twentieth century, alongside Hans Kelsen.

Jeremy Bentham British philosopher, jurist, and social reformer

Jeremy Bentham was an English philosopher, jurist and social reformer regarded as the founder of modern utilitarianism.

Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be modelled as a mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a theory of law.

Legal formalism is both a descriptive theory and a normative theory of how judges should decide cases. In its descriptive sense, formalists believe that judges reach their decisions by applying uncontroversial principles to the facts. Although the large number of decided cases implies a large number of principles, formalists believe that there is an underlying logic to these principles that is straightforward and which legal experts can readily discover. The ultimate goal of formalism would be to formalise the underlying principles in a single and determinate system that could be applied mechanically. Formalism has been called 'the official theory of judging'. It is the thesis to which legal realism is the antithesis.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is, must be treated as a strictly separate question to normative and evaluative ought questions.

Natural law system of law that is purportedly determined by nature, and is thus universal; philosophy that certain rights are inherent by virtue of human nature endowed by "God" or another "Divine" source, and can be understood universally through human reason

Natural law is a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature—traditionally by God or a transcendent source—and that these can be understood universally through human reason. As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and of the positive law of a given state, political order, legislature or society at large.

David Hume Scottish philosopher, economist, and historian

David Hume was a Scottish Enlightenment philosopher, historian, economist, and essayist, who is best known today for his highly influential system of philosophical empiricism, scepticism, and naturalism. Hume's empiricist approach to philosophy places him with John Locke, George Berkeley, Francis Bacon and Thomas Hobbes as a British Empiricist. Beginning with his A Treatise of Human Nature (1738), Hume strove to create a total naturalistic science of man that examined the psychological basis of human nature. Against philosophical rationalists, Hume held that passion rather than reason governs human behaviour. Hume argued against the existence of innate ideas, positing that all human knowledge is founded solely in experience.

<i>A Treatise of Human Nature</i> work by David Hume

A Treatise of Human Nature (1738–40) is a book by Scottish philosopher David Hume, considered by many to be Hume's most important work and one of the most influential works in the history of philosophy. The Treatise is a classic statement of philosophical empiricism, skepticism, and naturalism. In the introduction Hume presents the idea of placing all science and philosophy on a novel foundation: namely, an empirical investigation into human nature. Impressed by Isaac Newton's achievements in the physical sciences, Hume sought to introduce the same experimental method of reasoning into the study of human psychology, with the aim of discovering the "extent and force of human understanding". Against the philosophical rationalists, Hume argues that passion rather than reason governs human behaviour. He introduces the famous problem of induction, arguing that inductive reasoning and our beliefs regarding cause and effect cannot be justified by reason; instead, our faith in induction and causation is the result of mental habit and custom. Hume defends a sentimentalist account of morality, arguing that ethics is based on sentiment and passion rather than reason, and famously declaring that "reason is, and ought only to be the slave to the passions". Hume also offers a skeptical theory of personal identity and a compatibilist account of free will.

The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.

Power (social and political) ability to influence the behavior of people with or without resistance

In social science and politics, power is the capacity of an individual to influence the conduct (behaviour) of others. The term "authority" is often used for power that is perceived as legitimate by the social structure. Power can be seen as evil or unjust. This sort of primitive exercise of power is historically endemic to humans; however, as social beings, the same concept is seen as good and as something inherited or given for exercising humanistic objectives that will help, move, and empower others as well. In general, it is derived by the factors of interdependence between two entities and the environment. In business, the ethical instrumentality of power is achievement, and as such it is a zero-sum game. In simple terms it can be expressed as being "upward" or "downward". With downward power, a company's superior influences subordinates for attaining organizational goals. When a company exerts upward power, it is the subordinates who influence the decisions of their leader or leaders.

Morality differentiation of intentions, decisions and actions between those that are proper and those that are improper

Morality is the differentiation of intentions, decisions and actions between those that are distinguished as proper and those that are improper. Morality can be a body of standards or principles derived from a code of conduct from a particular philosophy, religion or culture, or it can derive from a standard that a person believes should be universal. Morality may also be specifically synonymous with "goodness" or "rightness".

Legal positivism is a school of thought of analytical jurisprudence largely developed by legal thinkers in the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism set the theoretical foundations for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:

Springer books commissioned essays on analytical jurisprudence for A Treatise on Legal Philosophy and General Jurisprudence. ISBN   9781402033872

International Standard Book Number Unique numeric book identifier

The International Standard Book Number (ISBN) is a numeric commercial book identifier which is intended to be unique. Publishers purchase ISBNs from an affiliate of the International ISBN Agency.

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This is an index of articles in jurisprudence.

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References

  1. Bodenheimer, Edgar, Modern Analytical Jurisprudence and the Limits of Its Usefulness, University of Pennsylvania Law Review
  2. Jan Woleński (2007) "Review: Legal Philosophy and General Jurisprudence volumes 1 to 3", Ratio Juris 20(1): 136–43, doi : 10.1111/j.1467-9337.2007.00351.x
  3. J. Woleński (2007) "Review: LP & GJ v 4,5", Ratio Juris 20(3): 424–31 doi : 10.1111/j.1467-9337.2007.00368.x
  4. J. Woleński (2008) "Review: LP & GJ v 6,7,8", Ratio Juris 21(3): 412–19 doi : 10.1111/j.1467-9337.2008.00398.x