Philosophical School of Jurisprudence
Jurisprudence, in simpler terms, is the study of legal philosophy that helps one unravel law through theoretical hypothesis and investigations; especially since the interpretation of the law may very much vary from individual to individual. Based on this, Jurisprudence has been divided into five schools in which we will be focusing on the Philosophical School of Jurisprudence in this article.
Philosophical School or the moral school of jurisprudence has many names – one of the most common ones being the Natural Law or Divine Law of Jurisprudence due to the prominent Jurists of this school advocating the sources of law as God, Nature or Reason. According to this school, the law is universal and eternal in nature with a rational and reasonable approach which is a direct as well as logical progression from human morals. In a nutshell, this school explores law in the aspect of what it aspires to be and intends to accomplish – moral, reasonable, and just.
With the sources of law being as diverse as Nature to Reason, the eminent philosopher/Jurist under this school are just as diverse; and thus, have been classified into four parts on the basis of their era:
- Ancient period
- Medieval period
- Renaissance period
- Modern period
This period highlights the contributions of famous philosophers who regarded law closely to the concepts of virtue and morals. These philosophers are further divided into Greek philosophers and Roman philosophers who have set the stone for the philosophical school during the 5th century BC. These philosophers include:
- Famous Greek philosopher who advocated that virtue and ethics is knowledge and anything not virtuous is still – which he also applied in the case of the law.
- According to him, a man has his own ‘human insight’, which makes him judge whether some act is right or wrong.
- Law, according to Socrates, is a mere product of correct reasoning.
- It is this insight, according to him, by which a man is able to remember the ethical values in him. This insight and thus, reasons stemming from one’s morals is the source of law.
- He divided the concept of Justice into two parts – natural justice, which is uniform and universal according to him and legal justice, which is man-made laws that differed from place to place.
- However, he did support man-made law or positive law, but argues that it should not be blindly followed – rather, it should be critically evaluated by men using their ‘human insight’.
- Another famous Greek philosopher who supported Socrates’ philosophy of law
- According to him, State is organic and a product of will only made in order to meet the needs of humans. He argues that human nature wants to go towards the goodwill; thus, defining the ethics and morality in a human which pursues them to achieve their full potential.
- He perceived us to be living in an orderly universe where everything happens for a reason and thus, justice is discoverable through reason and with minimum intervention from the State.
- Aristotle is the Greek philosopher and disciple of Plato who gave the Philosophical School a proper ground by defining the concept of natural law; thus, is regarded as the founding father of this school.
- He supported Plato’s theory and added that law is either particular, that is, differs from state to state and is codified, or general which is unwritten and stems from virtue, ethics and religious values.
- These general laws, according to him, are derived from nature and are universally valid.
- He advocated that these universally valid laws are discoverable through nature and any man-made law should conform to these.
- Stoic was a popular Roman philosopher who helped build a majority of the Ancient Roman laws as we know them.
- He was inspired by Aristotle’s philosophy and even based his own theory on his but changed it to focus it more on ethics.
- According to him, the universe is like an organism governed by the fundamental function of Reason. Thus, a man’s reason is also part of the universe and when he lives his life according to this reason, he is living according to nature.
- He further argued that it is a man’s duty to obey the law of nature.
- He regarded Reason and human ethics as the source of law and argued that natural law is the fundamental base of any legal system.
- Cicero is another Roman philosopher who advocated Reason as the source of law.
- He believed the law to be of the highest reason that is implanted in the nature that differentiates what ought to be done and what is not.
- He advocated that this reason develops into law once it is firmly fixed as well as fully developed in the human mind.
- He regarded State as nothing but an instrument to uphold the law in the harmony of nature. Any State that does not perform as such, is not a State.
- Other than that, he described the law as normative in nature; that is, the law is not a matter of opinion, but rather a matter of fact.
This period is mainly highlighted by the rise of religious philosophies which was also extended into Jurisprudence by these legal philosophers:
- He was infamously known as the ‘Christianised Plato’ due to his theories being inspired from his with a bit more focus on religion than Plato did.
- He believed natural laws to be derived from God as a direct influence of God on the human mind and argued it as a part of the natural foundation of Christianity.
- Therefore, according to him, the source of law is God who influences law by logic and order.
- According to him, justice was one of the building foundations of a State and no State could function without it; thus, advocating justice as the groundwork of his Ideal State that he viewed as a conformity to the universal order from the part of an individual.
St. Thomas Aquinas
- He was one of the most prominent papal-cause champions of the Middle Ages and a notable follower of Aristotle.
- His theories were very similar to that of Aristotle’s but with a high focus on Christianity.
- He defined natural law as the obedience of reason for the common good.
- According to him, ‘unjust’ laws deserve no obedience and the only laws a man should follow are the laws set in nature by God which he can find by applying reason and studying religious scriptures.
- He primarily classified law into four forms:
- Law of God or Eternal law (revealed through fate)
- Law of nature (revealed through nature)
- Human or man-made law (derived from Reason)
- Law of Divine or scriptures (derived from religious scriptures)
This period highlights the revival of this school as the legal philosophers and scholars of this time restudy the Greek and Roman philosopher’s theories regarding the law. Most of the philosophers under this period focus on the origin of the State and gave their theories that formed what we know as the ‘Social Contract Theory’. These philosophers included:
- He was a Dutch national and Republican philosopher who was known for his contributions to International law and was even claimed to be the founding father of it by many.
- He was the first one to detach law from religion; preparing a stable path for the modern and more secular version of natural law to be laid down.
- According to him, natural laws are definitive in nature with no requirement of the confidence of God; thus, making it a matter more focused on lawyers and thinkers than the Divine.
- He believed that natural law and its ethical morals connect to all sane and social creature, Christian or non-Christian alike.
- In his work ‘The Law of War and Peace’, he stated that natural law stemmed from not only morality but also the very social nature of man; with both being based on the concept of righteousness.
- According to him, State was formed by an association of free men who made a contract to transfer their sovereign powers t a ruler who acquired it as his private right. This was done so the men could enjoy their rights without any interference and for the common interest of the community.
- The Ruler, according to his Social Contract Theory, must follow the natural laws. However, if he misuses his power, his subjects have no right to revolt against him – thus, making their political obligation towards the ruler unconditional.
- Other than that, he gave five chief principles that defined natural law:
- To abstain from things that belong to another individual;
- To restore any goods of another we may have with us;
- To fulfil promises and pacts made to others;
- To repay damages to others caused by our fault;
- To punish those who deserve it.
- He is one of the most famous philosophers of Social Contract Theory and he believed in the existence of natural rights.
- According to Hobbes, men before there was any State, behaved like wild animals – ‘solitary, poor, brutish and short’. The state of nature before the formation of the State was one of war and chaos.
- This caused men to be insecure about their safety and natural rights. Thus, they came together and consented to give all their natural rights to a Ruler through a social contract.
- However, he advocated this social contract to be only unilateral, that is, only the subjects had any obligation towards the Ruler and the Ruler didn’t. Thus, the subjects portrayed to have an unlimited or unconditional obligation towards the State-structure.
- He painted the Ruler as the ultimate sovereign symbolized by Leviathan (a sea monster) who dominates all. Thus, it can be said that he supported absolutism.
- He advocated that the State stood for stability and security of the natural rights of the subjects which they protected and preserved through law and order established by the State.
- Locke’s theory on Social Contract was more based on liberalism rather than the absolutism showcased by Hobbes’ theory.
- According to him, the nature of men before the formation of the State was calm, free and peaceful.
- The only reason people came together to form the State was to protect three principles of natural rights; namely the right to life, property and liberty.
- The State, in Locke’s theory, was in a bilateral contract created as a trust which dissolves if they fail to person their function. Thus, making the obligation of the subjects towards the State limited and conditional.
- Rousseau believed the state of nature as idyllic blissful as man was close to nature and enjoyed liberty without any restrain.
- However, the gradual increase of population brought on the insecurity of scarcity which led to the conflict of interest between an individual’s will and the will of the community.
- According to Rousseau, to overcome this conflict, men formed a community and gave up their natural rights to the State for the preservation of the rights and live according to the ‘general will’.
- However, he advocated absolute sovereignty and unlimited obligation of the subjects towards the State just like Hobbes but differed in the concept that by placing their trust in the State, they are also obligating the general will as they are a member of it themselves.
As the nineteenth century arrived around, the advocacy for natural law declined as the focus shifted more and more towards other aspects of the law. With modern-day scepticism, the Social Contract theories were concluded as nothing but myths while the absolute and unchangeable principles of natural law were brushed aside as impractical and overdue. With other schools like Analytical and Historical, Jurists started leaning more towards them due to their practicality and the advocacy of philosophical school slowly waned.
However, by the time the twentieth century arrived, the belief in philosophical school also came back in as many held it up against the rigid advocacy of positive law and argued that even if idealistic, philosophical school did have some factual base to it which was acknowledged by many at this era.
Philosophical school is one of the oldest schools of Jurisprudence and equally as important as it helps us understand how the concept of Justice originated and how it was interpreted throughout history. In addition to that, this school also helped in the foundation of fundamental rights and basic human rights in many nations, alongside the concept that reasoning plays a very vital role in the field of law.
- V. D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book Company
- RWN Dias, ‘Jurisprudence’, Fifth Edition
Author: Debapriya Biswas,
Amity Law School, Noida (2nd year)