Wednesday, August 02, 2006

Philosophy or a Science of Law?

"Obviously, 'Law' can never be defined. With equal obviousness, however, it should be said that the adherents of the legal institution must never give up to the struggle to define law, because it is an essential part of the ideal that it is rational and capable of definition..."

- A. Thurman, The Symbols of Government (1935), pp 36-37

The choice between a philosophy or a science of law is a matter of terminology. Philosophy was once the fashionable word. Physics was then known as "natural philosophy". Since then, science has become the rage. Science, however, is concerned with empirically observable facts and events, whereas philosophy is concerned with certain ultimate questions of structure. According to Bertrand Russell, "Science is what we know, philosophy is what we don't know."

Nowadays, the emphasis is rather on the structure of language and logic than on a search for some ultimate metaphysical reality beyond the realm of empirical fact. However, philosophers are seeking after "unifying concepts". In this regard, jurists who study law in its normative aspects, and who seek to identify and analyze the conceptual structure of all legal systems, as legal philosophers rather than legal scientists. Legal scientist are those who identify and compare what may be the common elements of different legal systems as a matter of fact rather than of logical necessity.

John Austin described his work as "philosophy of positive law", while Hans Kelsen, despite the philosophical character of his work, insists that his theory is a pure science of law. However, it must be borne in mind that the search for universal elements, whether in the realm of concepts or in that of actual patterns of social behavior, may prove futile and unrewarding. Jurisprudence entails both diversity as well as uniformity. The interest of the jurist in questions of moral and political philosophy, whilst widening the terrain of jurisprudence, has encourage philosophers to take an interest in legal theory. Equally, out of sociological and realist, jurisprudence has grown the re-emergence of sociology of law. The rediscovery of the sociologies of Durkheim, Weber, Marx and Tonnies was the initial, and remains a continuing stimulus. Inquiries into the relationship between law and social and economic order have led both to grand theory about the place of law in social theory, as in the writing of Unger and Hayek to explorations of types of social control and to an analysis of conflict resolution mechanism. The growth of normative jurisprudence signaling an awareness of a relationship between legal and political theory has led to a revival of interest in the writing of Kant, Bentham and Mill, and to a new emphasis on concepts such as liberty, justice and rights. The economic analysis of law can be explained by seeing them as concerned not so much with matters of justice as with the efficient allocation of resources.

To summarise, recent trends in jurisprudence exhibit a variety of movements linked by an increasing awareness of the fruits of inter-disciplinary cooperation and buttressed by a more sophisticated methodology.

(Acknowledgement: This article is an abstract from Freeman; Introduction To Jurisprudence- Nature of Jurisprudence; Sweet & Maxwell; 7th Ed. 2004)

1 comment:

Elmina Kenley said...

Philosophy or a Science of Law nice post i have also few knowledge about Law Essay