Introduction to jurisprudence

jurisprudence

jurisprudence , study of the nature and the origin and development of law. It is variously regarded as a branch of ethics or of sociology. Many of the major systematic philosophers (e.g., Aristotle, St. Thomas Aquinas, and Kant) have expounded jurisprudential theories. Before the 19th cent. most jurisprudents adhered to natural law, which maintained that sound legal doctrine was derivable only from a supposed law of nature established by divine ordinance. The natural-law school did not deny that the details of legal regulation depended upon the will of the sovereign. However, the positivist, or analytical, school, which first became important in the late 18th cent., insisted that law was entirely a matter of sovereign decree, distinct from morality and theology. Among important 19th-century trends was the view, represented by Savigny, that a people's legal system expressed the national spirit. In the mid-19th cent. many jurisprudents attempted to avoid what they felt were theoretical preconceptions and to demonstrate a uniform evolution from primitive times to modern industrialized society. Other thinkers were skeptical of evolutionary explanations and sought the basic principles underlying all systems of law in various fields, including economics and psychology. Among the more important legal thinkers in the United States have been Learned Hand, Oliver Wendell Holmes, and Roscoe Pound.

See J. Hall, ed., Readings in Jurisprudence (1938); W. S. Carpenter, Foundations of Modern Jurisprudence (1958); D. Lloyd, Introduction to Jurisprudence (3d ed. 1972).

natural law

natural law, theory that some laws are basic and fundamental to human nature and are discoverable by human reason without reference to specific legislative enactments or judicial decisions. Natural law is opposed to positive law, which is human-made, conditioned by history, and subject to continuous change. The concept of natural law originated with the Greeks and received its most important formulation in Stoicism. The Stoics believed that the fundamental moral principles that underlie all the legal systems of different nations were reducible to the dictates of natural law. This idea became particularly important in Roman legal theory, which eventually came to recognize a common code regulating the conduct of all peoples and existing alongside the individual codes of specific places and times (see natural rights). Christian philosophers such as St. Thomas Aquinas perpetuated this idea, asserting that natural law was common to all peoples—Christian and non-Christian alike—while adding that revealed law gave Christians an additional guide for their actions. In modern times, the theory of natural law became the chief basis for the development by Hugo Grotius of the theory of international law. In the 17th cent., such philosophers as Spinoza and G. W. von Leibniz interpreted natural law as the basis of ethics and morality; in the 18th cent. the teachings of Jean Jacques Rousseau, especially as interpreted during the French Revolution, made natural law a basis for democratic and egalitarian principles. The influence of natural law theory declined greatly in the 19th cent. under the impact of positivism, empiricism, and materialism. In the 20th cent., such thinkers as Jacques Maritain saw in natural law a necessary intellectual opposition to totalitarian theories. #p#分页标题#e#

See J. Maritain, The Rights of Man and Natural Law (1943, repr. 1971); J. Fuchs, Natural Law (1965); J. Stone, Human Law and Human Justice (1965); A. Battaglia, Toward a Reformulation of Natural Law (1981).

natural rights

natural rights, political theory that maintains that an individual enters into society with certain basic rights and that no government can deny these rights. The modern idea of natural rights grew out of the ancient and medieval doctrines of natural law, i.e., the belief that people, as creatures of nature and God, should live their lives and organize their society on the basis of rules and precepts laid down by nature or God. With the growth of the idea of individualism, especially in the 17th cent., natural law doctrines were modified to stress the fact that individuals, because they are natural beings, have rights that cannot be violated by anyone or by any society. Perhaps the most famous formulation of this doctrine is found in the writings of John Locke. Locke assumed that humans were by nature rational and good, and that they carried into political society the same rights they had enjoyed in earlier stages of society, foremost among them being freedom of worship, the right to a voice in their own government, and the right of property. Jean Jacques Rousseau attempted to reconcile the natural rights of the individual with the need for social unity and cooperation through the idea of the social contract. The most important elaboration of the idea of natural rights came in the North American colonies, however, where the writings of Thomas Jefferson, Samuel Adams, and Thomas Paine made of the natural rights theory a powerful justification for revolution. The classic expressions of natural rights are the English Bill of Rights (1689), the American Declaration of Independence (1776), the French Declaration of the Rights of Man and the Citizen (1789), the first 10 amendments to the Constitution of the United States (known as the Bill of Rights, 1791), and the Universal Declaration of Human Rights of the United Nations (1948). #p#分页标题#e#

See B. F. Wright, American Interpretation of Natural Law (1931, repr. 1962); L. Strauss, Natural Right and History (1957); O. J. Stone, Human Law and Human Justice (1965); R. Tuck, Natural Rights Theories (1982); L. L. Weinreb, Natural Law and Justice (1987); R. Hittinger, A Critique of the New Natural Law Theory (1988).