OSHO OLUMIDE T.

LAW/2005/224
JURISPRUDENCE ASSIGNMENT JPL 502

SUBMITTED TO DR FATULA

OCTOBER 2010

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INTRODUTION
Jurisprudence is the theory and philosophy of law. The Latin word juris is the genitive form of jus meaning "law." So, juris means "of law" or "legal." Prudentia, meaning "knowledge" in Latin, translates into English as "prudence." The native English word is "wisdom," which originally also meant "knowledge." As jurisprudence has developed, there are three main aspects with which scholarly writing engages: Natural law is the idea that there are unchangeable laws of nature which govern us, and that our laws and institutions should try to align with this natural law.
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Analytic jurisprudence asks questions distinctive to legal philosophy like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may engage.

Normative jurisprudence asks what law ought to be. It is close to political philosophy, and includes questions of whether one ought to obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation, how judges ought to decide cases.

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Modern jurisprudence and philosophy of law is dominated today primarily by Western academics. The ideas of the Western legal tradition have become so pervasive throughout the world that it is tempting to see them as universal. Historically, however, many philosophers from other traditions have discussed the same questions, from Islamic scholars to the ancient Greeks.

ANALYTICAL JURISPRUDENCE
Analytical jurisprudence is using 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. The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and, "What is the relationship between law and morality?"

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Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.

Legal positivists
Positivism simply means that the law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely. What the law is - is determined by social facts (or "sources') What obedience the law is owed - is determined by moral

considerations.
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John Austin
John Austin is considered by many to be the creator of the school of analytical jurisprudence, as well as, more specifically, the approach to law known as legal positivism. Austin's particular command theory of law has been subject to pervasive criticism, but its simplicity gives it an evocative power that continues to attract adherents. Early in his career, Austin came under the influence of Jeremy Bentham, and Bentham's utilitarianism is evident (though with some differences) in the work for which Austin is best known today. On Austin's reading of utilitarianism, Divine will is equated with Utilitarian principles: The commands which God has revealed we must gather from the terms wherein they are promulgated. The command which he has not revealed, we must construe by the principle of utility This particular reading of utilitarianism, however, has had little long-term influence, though it seems to have been the part of his work that received the most attention in his own day. Some have also seen Austin as being one of the early advocates of rule utilitarianism. Additionally, Austin early on shared many of the ideas of the Benthamite philosophical radicals; he was a strong proponent of
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modern political economy, a believer in Hartleian metaphysics, and a most enthusiastic Malthusian. He lost most of his radical inclinations as he grew older. Austin's importance to legal theory lies elsewherehis theorizing about law was novel at four different levels of generality. First, he was arguably the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law that were secondary to more general moral and political theories). Analytical jurisprudence emphasizes the analysis of key concepts, including law, (legal) right, (legal) duty, and legal validity. Though analytical jurisprudence has been challenged by some in recent years (e.g., Leiter 2007), it remains the dominant approach to discussing the nature of law. Analytical jurisprudence, an approach to theorizing about law, has sometimes been confused with what the American legal realists (an influential group of theorists prominent in the early decades of the 20th century) called legal formalisma narrow approach to how judges should decide cases. The American legal realists saw Austin in particular, and analytical jurisprudence in general, as their opponents in their critical and reform-minded efforts. In this, the realists were simply

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mistaken; unfortunately, it is a mistake that can still be found in some contemporary legal commentators. Second, Austin's work should be seen against a background where most English judges and commentators saw common-law reasoning (the incremental creation or modification of law through judicial resolution of particular disputes) as supreme, as declaring existing law, as discovering the requirements of Reason, as the immemorial wisdom of popular custom. Such (Anglo-American) theories about common law reasoning fit with a larger tradition of theorizing about law (which had strong roots in continental European thoughte.g., the historical jurisprudence of theorists like Karl Friedrich von Savigny (1975)): the idea that generally law did or should reflect community mores, spirit, or custom. In general, one might look at many of the theorists prior to Austin as exemplifying an approach that was more community-orientedlaw as arising from societal values or needs, or expressive of societal customs or morality. By contrast, Austin's is one of the first, and one of the most distinctive, theories that views law as being imperium orientedviewing law as mostly the rules imposed from above from certain authorized (pedigreed) sources. More top-down theories of law, like that of Austin, better fit the more centralized governments (and the modern political theories about government) of modern times.

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Third, within analytical jurisprudence, Austin was the first systematic exponent of a view of law known as legal positivism. Most of the important theoretical work on law prior to Austin had treated jurisprudence as though it were merely a branch of moral theory or political theory: asking how should the state govern? (and when were governments legitimate?), and under what circumstances did citizens have an obligation to obey the law? Austin specifically, and legal positivism generally, offered a quite different approach to law: as an object of scientific study, dominated neither by prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin's efforts to treat law systematically gained popularity in the late 19th century among English lawyers who wanted to approach their profession, and their professional training, in a more serious and rigorous manner. Legal positivism asserts (or assumes) that it is both possible and valuable to have a morally neutral descriptive (or conceptualthough this is not a term Austin used) theory of law. (The main competitor to legal positivism, in Austin's day as in our own, has been natural law theory.) Legal positivism does not deny that moral and political criticism of legal systems is important, but insists that a descriptive or conceptual approach to law is valuable, both on its own terms and as a necessary prelude to criticism.

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There were theorists prior to Austin who arguably offered views similar to legal positivism or who at least foreshadowed legal positivism in some way. Among these would be Thomas Hobbes, with his amoral view of laws as the product of Leviathan (Hobbes 1996); David Hume, with his argument for separating is and ought (which worked as a sharp criticism for some forms of natural law theory, which purported to derive moral truths from statements about human nature) (Hume 1739/2000); and Jeremy Bentham, with his attacks on judicial lawmaking and on those, like Sir William Blackstone, who justified such lawmaking with natural-law-like justifications (Bentham 1970, 1996). Austin's famous formulation of what could be called the dogma of legal positivism is as follows: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. Fourth, Austin's version of legal positivism, a command theory of law (which will be detailed in the next section), was also, for a time, quite influential. Austin's theory had similarities with views developed by Jeremy Bentham, whose
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theory could also be characterized as a command theory. Bentham, in a posthumously published work, would define law as: as assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question. However, Austin's command theory was more influential than Bentham's, because the latter's jurisprudential writings did not appear in an even-roughly systematic form until well after Austin's work had already been published, with Bentham's most systematic discussion only appearing posthumously, late in the 20th century.

Hans Kelsen
Hans Kelsen is considered one of the preeminent jurists of the 20th century. He is most influential in Europe, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. It is a
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hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" law are based. Kelsen's pure theory of law described the law as being a set of social facts, which are normatively binding too. Law's normativity, meaning that we must obey it, derives from a basic rule which sits outside the law we can alter. It is a rule proscribing the validity of all others. Kelsen was a Professor at several universities in Europe, notably the University of Vienna and the University of Cologne. In 1940, he moved to the United States, giving the Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations.

H.L.A. Hart
In the Anglophone world, the pivotal writer was H.L.A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, can not be grounded in non-normative social facts. Hart revived analytical jurisprudence as an important theoretical debate in the twentieth century through
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his book The Concept of Law. As the chair of jurisprudence at Oxford University, Hart argued law is a 'system of rules'. Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). The "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil MacCormick in 1981

(second edition due in 2007), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his recently published Institutions of Law, 2007). Other important critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz. In recent years, debates about the nature of law have become increasingly finegrained. One important debate is within legal positivism. One school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled inclusive legal positivism, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case.
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Joseph Raz
Some philosophers used to contend that positivism was the theory that there is "no necessary connection" between law and morality; but influential contemporary positivists, including Joseph Raz, John Gardner, and Leslie Green, reject that view. As Raz points out, it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder). Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis" approach in The Authority of Law . Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.

Ronald Dworkin
Ronald Dworkin is a leading philosopher. In his book 'Law's Empire' Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the morally best justification for the institutional facts and

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practices that we intuitively regard as legal. It follows on Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some moral truths about the justifications for the practices in that society. It is consistent with Dworkin's view--in contrast with the views of legal positivists or legal realists--that *no one* in a society may know what its laws are (because no one may know the best justification for its practices.) Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit . But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be . But many writers have doubted whether there is a single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that community.

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THE FATHER OF ANALYTICAL JURISPRUDENCE Jeremy Bentham

One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. Bentham's views about law and jurisprudence were popularized by his student, John Austin. Austin was the first chair of law at the new University of London from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Contemporary legal positivists have long abandoned this view, and have criticised its oversimplification, H.L.A. Hart particularly. John Austin has been paid credit as the founder father of the English Analytical School of Jurisprudence until in the year 1945 when the work of Jeremy Bentham was got published by Prof Everett of University College of London. Jeremy Bentham is the real founder father of the English School of Jurisprudence but the real and full credit has never been paid to this Jurist because of his indolence in not getting his works published in spite of his whole life has been devoted to legal writing.
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The actual credit of bringing this man in front of light of Jurisprudence must really go to Prof. Everett who discovered one of the most important manuscripts of Jeremy Benthams thoughts on jurisprudence at University College of London. It was this work was brought to the public. This works was fully deciphered and here the stress on the word, decipher is given because it was the real work of Prof. Everett that authenticated the manuscript. This was found out to be a Treatise, The Limits of Jurisprudence Defined and the year of work was found out to be 1782. The above work reveals how much was really did John Austin owe to Jeremy Bentham and he is due to this unknown man of jurisprudence. Jeremy Bentham works clearly reveal that he was really an analyst who did real work in the mechanics of law. The many facets of Jeremy Bentham could be very well understood by going through Jeremy Bentham and the Law edited initially by G.W. Keeton and G. Schwarzenberger. Bentham was really a realist in temper and in his approach to Jurisprudence are two important aspects namely 1. 2. The Analytical tool of law; and The Utility tool of law.

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John Austin took from Jeremy Bentham the analytical tool but rejected the utility tool as a one that beyond the realm of Jurisprudence proper. Thus his definition of law can found to be very wide enough to spread over administrative and subordinate legislation. Hence, only his approach of analysis made one jurist to state that his analysis of rights and duties has the embryo that has been already seeded by him that once was thought to be the birth child of twentieth century thinking as stated by W.G. Friedmann, 1948. Thus, the utility tool of law that compelled him to put it in the utility crucible every law to find out whether it comes out the test to give the greatest happiness of the greatest number that was also a seed that was already germane to the Roscoe Pounds Sociological School of Jurisprudence. Thus, the analytical and the utility tool with which he approached law made him to examine the structure, the conceptions, and the functioning of the legal system whether it gives greatest happiness of the greatest number. Hence, in every legal right if it embodies a privilege he analyzed the utility tool for analysis of the privilege. Hence only though he may be called as an individualist but yet he carried on with him the collectivism that could be seen reflected in Prof. Everett. Thus it made a fertile ground for him to analyze the every legal terms like rights, power, duties, prohibition, obligations property liberty etc., to find out it has
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any practical utility and if not so to discard the same. Hence, only G.W. Paton a jurist called him as Gospel who acted with missionary zeal to be the father or a precursor to the codification of law and specifically to Civil Code. Thus the many facets of law and specifically to two sides namely the analytical and utility sides created the Pure Science of law or the Teleological school and the Analytical school. Hence, in short he can be called as the original founder father of English Jurisprudence.

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Reference
1. 2.

3. 4. 5. 6.

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

Austin, John (1832/1995), The Province of Jurisprudence Determined, W. Rumble (ed.), Cambridge: Cambridge University Press) (first published, 1832). (1879), Lectures on Jurisprudence, or The Philosophy of Positive Law, two vols., R. Campbell (ed.), 4th edition, rev., London: John Murray [Bristol: Thoemmes Press reprint, 2002]. Bentham, Jeremy (1789/1996), An Introduction to the Principles of Morals and Legislation, (J. H. Burns & H.L.A. Hart, eds., Oxford: Oxford University Press). (1970), Of Laws in General, (H.L.A. Hart, ed., London: Athlone Press). Bix, Brian H. (2000), On the Dividing Line Between Natural Law Theory and Legal Positivism,Notre Dame Law Review, vol. 75, pp. 16131624. (2004), Legal Positivism, in The Blackwell Guide to the Philosophy of Law and Legal Theory, (Martin P. Golding & William A. Edmundson, eds., Oxford: Blackwell), pp. 29 49. (2009), Jurisprudence: Theory and Context, (5th ed., London: Sweet & Maxwell). Clark, E. C. (1883), Practical Jurisprudence: A Comment on Austin, (Cambridge: Cambridge University Press). Cliffe Leslie, T. E. (1864), Modern Phases of Jurisprudence in England, Westminster Review, vol. 26, pp. 26176 [UK ed.; US ed.: vol. 162, pp. 125132]. Cosgrove, Richard A. (1996), Scholars of the Law: English Jurisprudence from Blackstone to Hart, ch. 4 (New York: New York University Press). Cotterrell, Roger (2003), The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed. (London: LexisNexis). Dewey, James (1894), Austin's Theory of Sovereignty, Political Science Quarterly, vol. 9, pp. 3152. Duxbury, Neil (2005), English Jurisprudence Between Austin and Hart, Virginia Law Review, vol. 91, pp. 191. (1994), The Concept of Law, 2nd edition (Oxford: Clarendon Press). Hobbes, Thomas (1651/1996), Leviathan, (Richard Tuck, ed., Cambridge: Cambridge University Press). Hume, David (1739/2000), A Treatise of Human Nature (David Fate Norton & Mary J. Norton, eds., Oxford: Oxford University Press). Mill, John Stuart (1863), Austin on Jurisprudence, Edinburgh Review, vol. 118 (Oct. 1863), pp. 43982 [UK ed.; US ed: vol. 118, pp. 222244].

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