Theory and philosophy of law is referred to as jurisprudence. Jurisprudence has received a lot of backups from different scholars who steps forward to ascertain the legal systems and instruments as well as reasoning and nature of law. From a professional study of jurisprudence, three issues must be addressed. One of them is natural law. In the systems and confines of our laws, there are laws which are unchangeable. Any other law which is inconsistent with these laws is said to be void and the natural law takes precedence.
They are universal and any institution engaging in legal contracts should follow the requirements of this law (Ronald Dworkin, 35). There is also the issue of analytic review of the theories explaining philosophy in law. Philosopher have a lot of job ahead of them of critically analyzing jurisprudence explaining all the factors underlying it and show the interrelatedness of different aspects in it. Normative jurisprudence is also an issue of bother in study of jurisprudence. This explains the details on the practicability of law and its application in day to day life.
Study of theories of philosophies of law should also strike the difference between the extent into which the law acts and the level of morals which should be respected. History of law Having its roots in western education, jurisprudence stems from a Latin word ‘juris’ the negative of jus which means law or legal. Prudence in Latin is prudential which means knowledge. Jurisprudence gained its meaning in ancient Roma which retained an exclusive power making judgments. Their criterion was based on traditional way of making judgment on an act and the passing teaching these laws and customs down the generation line.
Later in the Roman Empire the direction of jurisprudence changed after academic institutions were created to handle the matter hence change from the traditional way of doing it. Many philosophers attempted to validate the jurisprudence literature and make it more viable. This included people like Proculians and Sabinians in Roman Empire. Pontiffs created a body of laws by their pronunciation on single concrete cases. Their utterances were being changed to law which was more equitative interpretation and applicable to the social instances.
The law was then put into practice and became legal though it maintained its traditional aspects. Pontiffs were replaced in the third century BC by a laical body of prudents upon proof of competence or experience in their work. Natural law Natural law is the overall law which other legal laws are subordinate to in practice. Natural law is concerned with morals which are biblically accepted and confirmed. To make its concepts understandable and interpretable. It has identified moral standards which guide the state in the event of governing and law making process.
It also stated that the right or wrong of an issue is judged by the interests one is focusing upon. Natural law can be recognized through its slogan expressing their policies which states that; an unjust law is no law at all. This slogan has received criticisms from modern philosophers due to lack of guide to classical Thomist position in modern world as cited in the article: Natural law. Natural law according to Aristotle Like his philosophical fathers who include, Plato and Socrates, Aristotle maintained the spirit of natural justice or natural right and hence he is referred to as the father of natural law.
In his book five of Nicomachean Ethics which is interpreted by Thomas Aquinas shows he is deeply associated with natural law. Aristotle noted that Natural justice is a species of natural justice viz avis the scheme of distributive and corrective justice that could be established under the best political community as cited in the natural law article. Aristotle argued that, the best regime in politics may not use law to rule. If Aristotle’s work could be justified and be put in to practice it could act as the natural law but Aristotle did not say much in his natural justice discovery and its implementation.
The evidence of Aristotle’s concept of existence of Natural justice is clearly shown in his rhetoric remarks where by he noted that aside from the particular laws that each people have set up for themselves, there is a common law that is according to nature. His remark possibly suggested that, during time of judging the so called wrong action done by an individual, there is always the moral justice. This moral aspect should be applied to judge the action apart from using written rules and regulations which really does not represent every situation (Aristotle, chapter 2).
Aristotle’s theoretical paternity of the natural law tradition is consequently disputed. Thomas Aquinas and Law Thomas Aquinas the Saint was a philosopher and a theologian. In scholastic tradition referred to as Doctor Agelicus, Doctor Universals. Saint Thomas Aquinas worked along side the philosophies instigated by the Roman Catholic Church and he is credited as the earliest father or classical proponent of natural theology and Thomistic school of philosophy.
The Roman Catholic Church regards St. Thomas Aquinas as the greatest theologian among thirty three doctors of the church and this is the reason as to why many learning institutions including vocational seminaries are named after him. In his work, Thomas Aquinas explained in detail on four types of law showing their particulars and pointing out their distinct features. These laws include eternal law, natural law, human law and finally divine law (Thomas Aquinas). He pointed out that eternal law concerns about the divine nature of God’s intention on guiding his people. The rules and regulations especially the Decalogue as stipulated in the Bible falls in the category.
About natural law, he said that this is the nature of human beings to follow the right and disregard the evil. Human beings being under God’s law, they should follow them naturally and without being forced or followed. The desire to live and to procreate is counted by Saint Thomas Aquinas among the basic human values on which all human values are based. Human law is concerned with rules and regulations imposed by government on the subjects under its jurisdiction. These laws are made in form of a written document which gives direction on the action to be performed by all people in stipulated situation.
Divine law is the law which is described in scriptures. Thomas Hobbes Thomas Hobbes had aspects of law in his work where he advocated for natural law being that general rule which denies an individual from engaging in destructive actions on his life and that of others. This rule is acquired through instinct of reasoning according to Thomas Hobbes, whereby having a controversial issue at hand one can decide the right way or action to take through reasoning. Being a social contractarian, Thomas Hobbes believed that the law gains people’s tacit consent.
Thomas had a belief that society uses the state of nature to protect its members from deviant individuals who goes contrary from him or her. Thomas Hobbes is credited for his relentless efforts in analyzing issues of human nature and during his time the factors regarding the human nature were introduced. Analytic jurisprudence Analytic jurisprudence, commonly known as “Clarificatory”, is using a common basis and descriptive language when referring to the aspect of legal systems. This philosophical school of thought developed through criticisms given to the implication of natural law.
Analytic jurisprudence explained its negative feeling of what law is by the natural law theory. As cited in his article called Analytic Jurisprudence, David Hume 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. According to David Hume, the world, Normative and ought to be are quite different and people should not do something because that is what is ought to be but they should do it with a lot of reason.
More weight has been put in Analytic view on what law is, and the relationship between law and power. It as also focused on the relationship between law and morality as to the extend in which law relates with morality. He used he theory of legal positivist to explain these issues. In lay mans language, positivism means that law is something which is posited. This is an implication that laws governing people are created according to generally acceptable standards in the society. In positivists view of law, it comes out clearly that law can cover two main principles.
The first principle, law is seen as an instrument to enforce justice, morality and any other normative end. Its validity is not measured to the extend to which they have succeeded or failed, but the laws validity is incorporated n its time of formation. This is the reason as to why in the event of making the law, moral standards observed and practiced by society into which he law is formed should be observed. The second principle states that the presence of law is aimed at giving direction on how to operate in the event of maintaining law and order in the society.
The proponents of legal positivists does not state whether law should be followed or not. However, the presence of social facts can give an answer to what law is while moral consideration gives answer to what obeying the law requires. Bentham and Austin Bentham was the earliest staunch proponent of Utilitarian concept while John Austin was his student and he advanced and popularized Benthams work in jurisprudence. Austin was the first supporter of law at the new university of London from 1829.
Austin argued that law derives its power from sovereign authority and for it to be enforced it has a sanction to hose under its jurisdiction. Other positivists because of its over simplicity have criticized Austin’s work on jurisprudence. Deontology and utilitarian According to Deontological, ethics article, Deontology is the theory of duty and or moral obligation in his work Immanuel Kant a philosopher believed that morality is that, if one person does would also be good for every one to do. While according to Utilitarianism, his best concepts of law are acquired through crafting or integration of various issues.
In the late nineteenth century, a utilitarian philosophy Jeremy Bentham came up with this theory to explain the issues governing jurisprudence. John Locke John Locke reacted contrary of Thomas Hobbes argument in law in that he believed that human nature is characterized by reason and tolerance. In another instance, John Locke’s reasoning and support of male superiority over the other gender coincides with that one of Thomas Hobbes on the rule of men over women. He advocated for human freedom, good status f health and security in life.
John Locke advocated for governmental separation of powers and believed that revolution is not only a right but also an obligation in some circumstances. John Rawls theory of justice John Rawls was a philosopher at Harvard University. He developed a theory of justice and used a devise called Original to inquire from us the choice we would make to deliver our society from ignorance. He proposed that, if we put aside any indifference and disregard any physical distinguishing factor, we would eliminate biasness making judgment.
Rawls argues from the original position that we would exactly choose the same political liberties for every one, like freedom of speech, right to cast a vote and so on. His argument shows that when confronted with a situation, which requires our attention we will select inequality because that produces incentives enough for economic well-being of all society, especially the poorest. His proposal states that the fairness of the original position of choice guarantees the fairness of the principles chosen in that position.