Jurisprudence or legal theory is the theoretical study of law, principally by philosophers but, from the twentieth century by social scientists. Scholars of jurisprudence known as jurists or legal theorists, hope to obtain a deeper understanding of legal reasoning, legal systems, legal institutions, the role of law in society. Modern jurisprudence began in the 18th century and was focused on the first principles of natural law, civil law, the law of nations. General jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists; this article addresses three distinct branches of thought in general jurisprudence.
Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason, it is from these laws of nature that human laws gain whatever force they have. Analytic jurisprudence rejects natural law's fusing of what it ought to be, it espouses the use of a neutral point of view and descriptive language when referring to aspects of legal systems. It encompasses such theories of jurisprudence as "legal positivism", which holds that there is no necessary connection between law and morality and that the force of law comes from basic social facts. Normative jurisprudence is concerned with "evaluative" theories of law, it deals with what the goal or purpose of law is, or what moral or political theories provide a foundation for the law. It not only addresses the question "What is law?", but tries to determine what the proper function of law should be, or what sorts of acts should be subject to legal sanctions, what sorts of punishment should be permitted.
The English word is derived from the Latin maxim jurisprudentia. Juris is the genitive form of jus meaning law, prudentia means prudence (also: discretion, forethought, circumspection, it refers to the exercise of good judgment, common sense, caution in the conduct of practical matters. The word first appeared in written English in 1628, at a time when the word prudence meant knowledge of, or skill in, a matter, it may have entered English via the French jurisprudence. Ancient Indian jurisprudence is mentioned in various Dharmaśāstra texts, starting with the Dharmasutra of Bhodhayana. Jurisprudence in Ancient Rome had its origins with the —experts in the jus mos maiorum, a body of oral laws and customs. Praetors established a working body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex would prescribe a remedy according to the facts of the case.
The sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting the law to newer social exigencies. The law was adjusted with evolving institutiones, while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of experience. Under the Roman Empire, schools of law were created, practice of the law became more academic. From the early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians; the scientific nature of the studies was unprecedented in ancient times. After the 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors, it was during the Eastern Roman Empire that legal studies were once again undertaken in depth, it is from this cultural movement that Justinian's Corpus Juris Civilis was born.
In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on the basis of being analogous to the laws of physical science. Natural law is contrasted to positive law which asserts law as the product of human activity and human volition. Another approach to natural-law jurisprudence asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance; the strong natural law thesis holds that if a human law fails to be in response to compelling reasons it is not properly a "law" at all. This is captured, imperfectly, in the famous maxim: lex iniusta non est lex; the weak natural law thesis holds that if a human law fails to be in response to compelling reasons it can still be called a "law", but it must be recognised as a defective law. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused on.
John Finnis, one of the most important of modern natural lawyers, has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position. Related to theories of natural law are classical theories of justice, beginning in the West with P
Jerome New Frank was an American legal philosopher and author who played a leading role in the legal realism movement, Chairman of the Securities and Exchange Commission, a United States Circuit Judge of the United States Court of Appeals for the Second Circuit. Born in New York City, New York, Frank's parents were Herman Frank and Clara New Frank, descendants of mid-19th-century German Jewish immigrants. Frank's father an attorney, relocated the family to Chicago, Illinois in 1896, where Frank would attend Hyde Park High School, before receiving his Bachelor of Philosophy degree from the University of Chicago in 1909. Frank obtained his Juris Doctor from the University of Chicago Law School in 1912, where he had the highest grades in the school's history, despite leaving the program for a year to work as secretary to reformist Chicago alderman Charles Edward Merriam. Frank worked as a lawyer in private practice in Chicago from 1912 to 1930, specializing in corporate reorganizations, becoming a partner in the firm in 1919.
In 1930, after having undergone six months of psychoanalysis, Frank published Law and the Modern Mind, which argued against the "basic legal myth" that judges never make law but deduce legal conclusions from premises that are clear and unchanging. Drawing on psychologists such as Sigmund Freud and Jean Piaget, Frank proposed that judicial decisions were motivated by the influence of psychological factors on the individual judge. Like his judicial hero, Justice Oliver Wendell Holmes Jr. Frank urged judges and legal scholars to acknowledge the gaps and uncertainties in the law, to think of law pragmatically as a tool for human betterment; the book "dropped like a bombshell on the legal and academic world" becoming "a jurisprudential bestseller" which "was noticed as well as criticized". In 1930, Frank moved to New York City, where he practiced until 1933 working as a research associate at Yale Law School in 1932, where he collaborated with Karl Llewellyn, feuded with legal idealist Roscoe Pound.
In addition to the philosophical disagreements arising from Frank's realism and Pound's idealism, Pound accused Frank of misattributing quotes to him in Law and the Modern Mind, writing to Llewellyn: I am troubled about Jerome Frank. When a man puts in quotation marks and attributes to a writer things which he not only never put in print any where, but goes contrary to what he has set in print it seems to me to go beyond the limits of permissible carelessness and to be incompatible, not with scholarship but with the ordinary fair play of controversy. Llewellyn defended Frank; this led Frank to produce a lengthy memorandum showing where each quote attributed to Pound by Frank could be found in Pound's writing, offering to pay Pound to hire someone to verify the citations. Pound would continue to attack Frank's legal philosophy throughout his life, although Frank moderated his views on legal realism. During the New Deal administration of President Franklin D. Roosevelt, Frank sought the assistance of Felix Frankfurter to secure a position with the administration.
Frank was offered the position of solicitor of the United States Department of Agriculture, but this appointment was blocked by Postmaster General James A. Farley, who favored another candidate for the job. Frank was appointed as general counsel of the Agricultural Adjustment Administration in 1933, soon became embroiled in an internal struggle with the agency's head, George Peek, who had tried to exercise complete control over the agency. Peek resigned in December 1933, Frank continued to serve until February 1935, when he was purged along with young leftist lawyers in his office.. Roosevelt approved the purge, but made Frank a special counsel to the Reconstruction Finance Association in 1935. Frank returned to private practice in New York from 1936 to 1938, with the firm of Greenbaum and Ernst. In 1937, William O. Douglas recommended that Roosevelt appoint Frank to be a commissioner of the Securities and Exchange Commission, which Douglas chaired. Roosevelt agreed, Frank served as an SEC commissioner from December 1937 until 1941, was elevated to Chairman from 1939 to 1941, when Douglas was appointed to the United States Supreme Court.
While serving in the SEC, Frank served on the Temporary National Economic Committee. In 1938, Frank published a book titled Save America First, written during his return to private practice and advocating against American involvement in the stirring conflict in Europe. However, Frank recanted those views after the attack on Pearl Harbor, Roosevelt forgave Frank's isolationism. Frank was nominated by President Franklin D. Roosevelt on February 13, 1941, to a seat on the United States Court of Appeals for the Second Circuit vacated by Judge Robert P. Patterson, he was confirmed by the United States Senate on March 20, 1941, received his commission on March 27, 1941. His service terminated on January 1957, due to his death. Frank was considered a competent judge taking what was perceived as the more liberal position on civil liberties issues. In addition to his reputation for expertise on civil liberties matters, he was considered to be "an outstanding judge in the fields of procedure, criminal law".
For a time, he was and vocally at odds with a colleague on the bench, Charles Edward Clark, "over a whole range of common law precepts". Frank's scholarly tendency bled over into his judicial opinions, some of which were notoriously lengthy. On
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for civil law, the most used legal system today, the terms are sometimes used synonymously; the historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law. After the dissolution of the Western Roman Empire, the Roman law remained in effect in the Eastern Roman Empire. From the 7th century onward, the legal language in the East was Greek. Roman law denoted the legal system applied in most of Western Europe until the end of the 18th century. In Germany, Roman law practice remained in place longer under the Holy Roman Empire. Roman law thus served as a basis for legal practice throughout Western continental Europe, as well as in most former colonies of these European nations, including Latin America, in Ethiopia.
English and Anglo-American common law were influenced by Roman law, notably in their Latinate legal glossary. Eastern Europe was influenced by the jurisprudence of the Corpus Juris Civilis in countries such as medieval Romania which created a new system, a mixture of Roman and local law. Eastern European law was influenced by the "Farmer's Law" of the medieval Byzantine legal system. Before the Twelve Tables, private law comprised the Roman civil law that applied only to Roman citizens, was bonded to religion; the jurist Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law, without any fixed rights: all things were ruled despotically, by kings". It is believed that Roman Law is rooted in the Etruscan religion; the first legal text is the Law of the Twelve Tables, dating from the mid-5th century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written, in order to prevent magistrates from applying the law arbitrarily.
After eight years of political struggle, the plebeian social class convinced the patricians to send a delegation to Athens, to copy the Laws of Solon. In 451 BC, according to the traditional story, ten Roman citizens were chosen to record the laws. While they were performing this task, they were given supreme political power, whereas the power of the magistrates was restricted. In 450 BC, the decemviri produced the laws on ten tablets, but these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC; the new Law of the Twelve Tables was approved by the people's assembly. Modern scholars tend to challenge the accuracy of Roman historians, they do not believe that a second decemvirate took place. The decemvirate of 451 is believed to have included the most controversial points of customary law, to have assumed the leading functions in Rome. Furthermore, the question on the Greek influence found in the early Roman Law is still much discussed.
Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Roman historians believed. Instead, those scholars suggest, the Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds; the original text of the Twelve Tables has not been preserved. The tablets were destroyed when Rome was conquered and burned by the Gauls in 387 BC; the fragments which did survive show. It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law. Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure. Many laws include Lex Canuleia, Leges Licinae Sextiae, Lex Ogulnia, Lex Hortensia. Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law.
However, Rome's most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science. Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius. Flavius is said to have published around the year 300 BC the formularies containing the words which had to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are said to have been secret and known only to the priests, their publication made it possible for non-priests to explore the mea
A jurist is someone who researches and studies jurisprudence. Such a person can work as an legal writer or law lecturer. In the United Kingdom, New Zealand, South Africa, in many other Commonwealth countries, the word jurist sometimes refers to a barrister, whereas in the United States of America and Canada it refers to a judge, thus a jurist, someone who studies and comments on law, stands in contrast with a lawyer, someone who applies law on behalf of clients and thinks about it in practical terms. There is a fundamental difference between that of a jurist. Many legal scholars and authors have explained that a person may be both a lawyer and a jurist, but a jurist is not a lawyer, nor a lawyer a jurist. Both must possess an acquaintance with the term "law"; the work of the jurist is the study and arrangement of the law—work which can be done wholly in the seclusion of the library. The work of the lawyer is the satisfaction of the wishes of particular human beings for legal assistance—work which requires dealing to some extent therefore with people in the office, in the court room, or in the market-place.
The term jurist has another sense, wider, synonymous with legal professional, i.e. anyone professionally involved with law and justice. In some other European languages, a word resembling jurist is used in this major sense; this is a sequential classification of some notable jurists. History of the legal profession History of the American legal profession Law professor Legal profession List of jurists Paralegal Media related to Jurists at Wikimedia Commons
Fascism is a form of radical, right-wing, authoritarian ultranationalism, characterized by dictatorial power, forcible suppression of opposition, strong regimentation of society and of the economy, which came to prominence in early 20th-century Europe. The first fascist movements emerged in Italy during World War I before it spread to other European countries. Opposed to liberalism and anarchism, fascism is placed on the far-right within the traditional left–right spectrum. Fascists saw World War I as a revolution that brought massive changes to the nature of war, the state, technology; the advent of total war and the total mass mobilization of society had broken down the distinction between civilians and combatants. A "military citizenship" arose in which all citizens were involved with the military in some manner during the war; the war had resulted in the rise of a powerful state capable of mobilizing millions of people to serve on the front lines and providing economic production and logistics to support them, as well as having unprecedented authority to intervene in the lives of citizens.
Fascists believe that liberal democracy is obsolete and regard the complete mobilization of society under a totalitarian one-party state as necessary to prepare a nation for armed conflict and to respond to economic difficulties. Such a state is led by a strong leader—such as a dictator and a martial government composed of the members of the governing fascist party—to forge national unity and maintain a stable and orderly society. Fascism rejects assertions that violence is automatically negative in nature and views political violence and imperialism as means that can achieve national rejuvenation. Fascists advocate a mixed economy, with the principal goal of achieving autarky through protectionist and interventionist economic policies. Since the end of World War II in 1945, few parties have described themselves as fascist, the term is instead now used pejoratively by political opponents; the descriptions neo-fascist or post-fascist are sometimes applied more formally to describe parties of the far-right with ideologies similar to, or rooted in, 20th-century fascist movements.
The Italian term fascismo is derived from fascio meaning a bundle of rods from the Latin word fasces. This was the name given to political organizations in Italy known as fasci, groups similar to guilds or syndicates. According to Mussolini's own account, the Fascist Revolutionary Party was founded in Italy in 1915. In 1919, Mussolini founded the Fasci Italiani di Combattimento in Milan, which became the Partito Nazionale Fascista two years later; the Fascists came to associate the term with the ancient Roman fasces or fascio littorio—a bundle of rods tied around an axe, an ancient Roman symbol of the authority of the civic magistrate carried by his lictors, which could be used for corporal and capital punishment at his command. The symbolism of the fasces suggested strength through unity: a single rod is broken, while the bundle is difficult to break. Similar symbols were developed by different fascist movements: for example, the Falange symbol is five arrows joined together by a yoke. Historians, political scientists, other scholars have long debated the exact nature of fascism.
Each group described as fascist has at least some unique elements, many definitions of fascism have been criticized as either too wide or narrow. One common definition of the term focuses on three concepts: the fascist negations. According to many scholars, fascism—especially once in power—has attacked communism and parliamentary liberalism, attracting support from the far-right. Historian Stanley Payne identifies three main strands in fascism, his typology is cited by reliable sources as a standard definition. First, Payne's "fascist negations" refers to such typical policies as anti-communism and anti-liberalism. Second, "fascist goals" include an expanded empire. Third, "fascist style" is seen in its emphasis on violence and authoritarianism and its exultation of men above women and young against old. Roger Griffin describes fascism as "a genus of political ideology whose mythic core in its various permutations is a palingenetic form of populist ultranationalism". Griffin describes the ideology as having three core components: " the rebirth myth, populist ultra-nationalism, the myth of decadence".
Fascism is "a genuinely revolutionary, trans-class form of anti-liberal, in the last analysis, anti-conservative nationalism" built on a complex range of theoretical and cultural influences. He distinguishes an inter-war period in which it manifested itself in elite-led but populist "armed party" politics opposing socialism and liberalism and promising radical politics to rescue the nation from decadence. Robert Paxton says that fascism is "a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion". Racism was a
Georg Wilhelm Friedrich Hegel
Georg Wilhelm Friedrich Hegel was a German philosopher and an important figure of German idealism. He achieved wide recognition in his day and—while influential within the continental tradition of philosophy—has become influential in the analytic tradition as well. Although Hegel remains a divisive figure, his canonical stature within Western philosophy is universally recognized. Hegel's principal achievement was his development of a distinctive articulation of idealism, sometimes termed absolute idealism, in which the dualisms of, for instance and nature and subject and object are overcome, his philosophy of spirit conceptually integrates psychology, the state, art and philosophy. His account of the master–slave dialectic has been influential in 20th-century France. Of special importance is his concept of spirit as the historical manifestation of the logical concept and the "sublation" of contradictory or opposing factors: examples include the apparent opposition between nature and freedom and between immanence and transcendence.
Hegel has been seen in the 20th century as the originator of the thesis, synthesis triad, but as an explicit phrase it originated with Johann Gottlieb Fichte. Hegel has influenced many writers whose own positions vary widely. Karl Barth described Hegel as a "Protestant Aquinas" while Maurice Merleau-Ponty wrote that "all the great philosophical ideas of the past century—the philosophies of Marx and Nietzsche, German existentialism, psychoanalysis—had their beginnings in Hegel." He was born on August 27, 1770 in Stuttgart, capital of the Duchy of Württemberg in southwestern Germany. Christened Georg Wilhelm Friedrich, he was known as Wilhelm to his close family, his father, Georg Ludwig, was Rentkammersekretär at the court of Duke of Württemberg. Hegel's mother, Maria Magdalena Louisa, was the daughter of a lawyer at the High Court of Justice at the Württemberg court, she died of a "bilious fever". Hegel and his father caught the disease, but they narrowly survived. Hegel had Christiane Luise. At the age of three, he went to the German School.
When he entered the Latin School two years he knew the first declension, having been taught it by his mother. In 1776, he entered Stuttgart's gymnasium illustre and during his adolescence read voraciously, copying lengthy extracts in his diary. Authors he read include the poet Friedrich Gottlieb Klopstock and writers associated with the Enlightenment, such as Christian Garve and Gotthold Ephraim Lessing, his studies at the Gymnasium were concluded with his Abiturrede entitled "The abortive state of art and scholarship in Turkey". At the age of eighteen, Hegel entered the Tübinger Stift, where he had as roommates the poet and philosopher Friedrich Hölderlin and the philosopher-to-be Friedrich Wilhelm Joseph Schelling. Sharing a dislike for what they regarded as the restrictive environment of the Seminary, the three became close friends and mutually influenced each other's ideas. All admired Hellenic civilization and Hegel additionally steeped himself in Jean-Jacques Rousseau and Lessing during this time.
They watched the unfolding of the French Revolution with shared enthusiasm. Schelling and Hölderlin immersed themselves in theoretical debates on Kantian philosophy, from which Hegel remained aloof. Hegel at this time envisaged his future as that of a Popularphilosoph, i.e. a "man of letters" who serves to make the abstruse ideas of philosophers accessible to a wider public. Although the violence of the Reign of Terror in 1793 dampened Hegel's hopes, he continued to identify with the moderate Girondin faction and never lost his commitment to the principles of 1789, which he would express by drinking a toast to the storming of the Bastille every fourteenth of July. Having received his theological certificate from the Tübingen Seminary, Hegel became Hofmeister to an aristocratic family in Bern. During this period, he composed the text which has become known as the Life of Jesus and a book-length manuscript titled "The Positivity of the Christian Religion", his relations with his employers becoming strained, Hegel accepted an offer mediated by Hölderlin to take up a similar position with a wine merchant's family in Frankfurt, to which he relocated in 1797.
Here, Hölderlin exerted an important influence on Hegel's thought. While in Frankfurt, Hegel composed the essay "Fragments on Religion and Love". In 1799, he wrote another essay entitled "The Spirit of Christianity and Its Fate", unpublished during his lifetime. In 1797, the unpublished and unsigned manuscript of "The Oldest Systematic Program of German Idealism" was written, it was written in Hegel's hand, but thought to have been authored by either Hegel, Schelling, Hölderlin, or an unknown fourth person. In 1801, Hegel came to Jena with the encouragement of his old friend Schelling, who held the position of Extraordinary Professor at the University there. Hegel secured a position at the University as a Privatdozent after submitting the inaugural dissertation De Orbitis Planetarum, in