Legal Philosophy PLATO (427 347 BCE) (Aritocles-Birth name)
comes from the Greek word for Broad
Outline/Reviewer
INTRODUCTION TO PHILOSOPHY
DISCUSSION BY SIR
Philosophy is the Mother of Science
It is existed before psychology, biology or
chemistry. It gave birth to the field of study by
raising question about the human mind, the
human body and the nature of physical objects
when philosophers begun investigating the world,
they provided the foundation for all the
knowledge we treasure today.
SCIENCE vs PHILOSOPHY
- Heart of Science is experimental research.
Scientist conduct experiment to gather
data.
- Conduct experiments but their
experiments take place in the mind rather
than in the laboratory. Their goal is to
explore possibilities rather than to collect
data. It is Thought experiment.
The whole goal of philosophy is to find truth.
Philosophers defend with all their hearts the view
that they believe are true and they want others
to challenge them so that they can see whether
they are right. Good philosophers are happy to
modify or even abandon their views if their
arguments don't hold up against criticism.
THE PHILOSOPHY OF LAW
Natural Law Philosophers
Student of Socrates
Wrote as the voice of Socrates
Believed that human law should strive to
reflect certain universal and eternal truths.
Nature is inherently reasonable and good.
Law is the moral imperative and the ideal
that humans must attempt to achieve.
The most basic law is to do good and
avoid evil.
The purpose of law is to serve as a moral
guide on how to live the good life.
A human being achieves a state of justice
through reason. The state achieves a
state of justice through law.
Plato believed that there is a hierarchy of
obedience. First people follow the law out
of fear, then out of habit and then out of
the realization that law is just.
Since law should reflect a moral quality,
Plato argues that it is just to disobey an
unjust law that does not produce harmony
and justice. (Civil Disobedience)
ARISTOTLE (384 322 BCE)
Student of Plato
Law is derived from Nature and is inherent
in all things animate and inanimate.
Law and justice are meant to produce
human happiness. This happiness is
gained through being virtuous and
controlling our inner beast.
Unlike Plato, Aristotle believed that justice
was within the grasp of human beings.
Human beings are endowed with the
ability to think and reason. Therefore
humans can recognize their own nature
and make laws that are suitable to that
nature.
The perfect standard of law is revealed
through the exercise of human reason
guided by observation. This is called
rationalism.
The laws of the state must regulate human
life to help citizens to use their reason to its
greatest potential.
Aristotle on Causality
Each Aristotelian science consists in the
causal investigation of a specific department of
reality. If successful, such an investigation results
in causal knowledge; that is, knowledge of the
relevant or appropriate causes.
Aristotle was not the first person to engage in a
causal investigation of the world around us. From
the very beginning, and independently of
Aristotle, the investigation of the natural world
consisted in the search for the relevant causes of
a variety of natural phenomena.
From the Phaedo, for example, we learn that the
so-called inquiry into nature consisted in a
search for the causes of each thing; why each
thing comes into existence, why it goes out of
existence, why it exists
Here Aristotle recognizes four types of
things that can be given in answer to a why-
question:
THE FOUR CAUSES
The material cause: that out of which,
e.g., the bronze of a statue.
The formal cause: the form, the
account of what-it-is-to-be, e.g., the
shape of a statue.
The efficient cause: the primary source of
the change or rest, e.g., the artisan, the
art of bronze-casting the statue, the man
who gives advice, the father of the child.
The final cause: the end, that for the sake
of which a thing is done, e.g., health is
the end of walking, losing weight, purging,
drugs, and surgical tools.
The essence of thing is its sine qua non, and it
is closely related to its purpose. What features
enable a house to provide shelter? They are not
its particular colour or shape or size but, rather,
the fact that it has four walls and a roof that
enclose a space. Without enclosing space, a
house would not be able to provide shelter the
wind and the rain would blow in.
THE BIRTH OF SCIENCE
Aristotle was a student- teacher at Platos
Academy when Plato died. Rather than taking
over the Academy. Aristotle established his own
school in Athens, called the Lyceum.
While the Academy was devoted to the
abstract- even mystical- speculation that Plato
had promoted, the Lyceum concern itself with
hands-on, scientific studies. Aristotle was
insatiably curious about rocks, plants and
animals. In fact, he collected specimens and
made a careful study of their similarities, thereby
inventing the species-genus classification system
that became so important in the development of
science.
Aristotle was also interested in the sky.
Ancient Greek philosophers disprove the popular
myth that, before Columbus discovered
America, everyone believed the earth was flat.
Plato speculated that the earth was round based
on the idea that the earth was round based on
the idea that the circle is the perfect shape.
If the divine maker of the earth is round
based on his observation of the lunar eclipse, in
which the earth casts a curved shadow upon the
moon
Platos mystical approach relies on
controversial presuppositions- such as the notion
of the divine and the notion of perfection. Plato
considered these presuppositions justified on the
grounds that they were born within (or innate to)
the human mind, as discussed in the last chapter.
Aristotle rejects these innate ideas, arguing
instead that all knowledge comes from
observation of the physical world around us. This
view, which is the foundation of modern science,
is known as empiricism.
A FEW PHILOSOPHICAL TERMS
Key ideas
Deductive validity: Where the premises of an
argument necessarily imply its conclusion.
Doctrine of the four causes: True knowledge of
something requires a fourfold explanation of its
existence
Doctrine of golden mean: The virtuous person
avoids extremes, aiming always to act in a
moderate fashion
Empiricism: Knowledge comes from observation
of the physical world around us-the foundation of
modern science
Friendship of pleasure: A relationship you pursue
for mutual enjoyment
Friendship of utility: A relationship you develop
because it is mutually useful
Friendship of virtue: A relationship which your love
is directed primarily towards your friend and only
incidentally towards whatever utility or pleasure
they may help you achieve
Syllogism: A three- step argument
Teleology: The view that everything in the
universe has a special function
TELEOLOGY: The view that everything in the
universe has a special function.
Example: The function of an oak tree is to
produce acorns. An oak tree that fails to
produce acorns is defective, and one that
produces many good acorns is an excellent tree.
EUDAIMONIA: which literally means the state of
having a good indwelling spirit, signifying a
deeper sense of happiness than a dog or even a
chimpanzee can achieve.
Aristotle famously defines the human
being as the rational animal, making rationality
our formal cause and happiness our final cause.
The excellent human being is one who is
good at reasoning about the good life.
THE GOLDEN MEAN: Aristotle argued that,
whenever we are faced with a situation that
demands a choice, we should realize that there
is a wide variety of possible responses, ranging
from deficient through the excessive. The right
response will always fall in the middle between
those two extremes.
This is the doctrine of the golden mean
that the virtuous person avoids extremes, aiming
always to act in a moderate fashion.
Extreme behavior is often the result of
emotional reactions. As rational animals, we are
at our best when we use reason to control
emotion and guise us towards a moderate
response.
THREE TYPES OF FRIENDSHIP: The doctrine of the
golden mean is supported by Aristotles theory of
friendship, Whereas Plato regarded justice as the
highest good, Aristotle puts friendship above
justice, pointing out that those who are friends
have no need of justice while those who are just
still need friends.
Not all friendship are equally valuable,
however. According to Aristotle, there are three
different types.
1. Friendship of utility is a relationship you
develop because it is mutually useful. You
might have such a friendship with a co-
worker or neighbour. While you are
working together or living nearby, you
chat and help each other out. But the
relationship does not keep you from
changing job or moving away, and, once
you do, you may never see the person
again.
2. Friendship of pleasure is a relationship you
pursue for mutual enjoyment. Aristotle has
in mind individuals who get together to
engage in a recreational activity. In this
case, interest in the activity holds priority
over the people involved. In a football
team, for example, players may come
and go without changing the game.
Both utility friendship and pleasure friendships are
tenuous and probably temporary. They exist for the sake
of something else. When in such relationship, your love is
directly primarily towards the utility of the pleasure and
only incidentally towards the person who helps you
achieve it.
3. Friendship of virtue in contrast, is all about
the people involved. Here, your love is
directly primarily towards your friend and
By way of contrast, consider the following
only incidentally towards whatever utility
or pleasure they may help you achieve.
This is the highest or most valuable form of
friendship because, while it does not
exclude utility or pleasure, it inspires the
individuals to be good.
Aristotle asserted that true friends are like a single
soul dwelling in two bodies, not so much
because they are like-minded but because they
provide a reflection for one another.
Aristotle was convinced that, in striving to be the
best friend you can be, you have to exercise your
rational capacities, and, in so doing, you learn to
act in accordance with the golden mean.
LOGIC
Aristotle became such an enthusiastic student of
logic. In fact, he is considered the father of
modern logic, insofar as he was the first to
develop a systematic analysis of deductive
validity.
Deductive validity is when the premises of an
argument necessarily imply its conclusion. For
example, consider the following argument:
1 Socrates is a man.
2 All men are mortal.
3 Therefore Socrates is mortal.
Steps 1 and 2 are the premises, that is, the
reasons for the inference.
Step 3 is the conclusion that is inferred. This is a
good argument because the premises support
the conclusion.
argument:
1 Some geese are white.
2 Some chickens are white.
3 Therefore some crows are white.
Each of the premises is true. Nevertheless, it is not
a good argument because the premises do not
support the conclusion. Even if some geese and
some chickens are white, there may not be any
white crows. This is to say the inference is not
deductively valid.
Not all syllogisms are deductively valid, however.
Aristotle carefully laid them out and sorted them,
discussing problematic inferences. By introducing
this sort of logical analysis, he set a rigorous
standard for intellectual debate for ever after.
REALSIM
The greatest debate between Plato and
Aristotle, which has become a central point of
controversy among philosophers ever since,
concerns the Forms.
Plato argued that knowledge depends on
ideal exemplars existing beyond our world. If
there are no objective and universal Forms to
judge our ideas against, then we are left with
nothing but opinions.
Aristotle denies that Platos ideal
exemplars exist. As an empiricist he refuses to
believe in anything that cant be experienced
firsthand. He brings Platos Forms down to earth
by asserting that they are really just the sensible
forms of things, which can be observed through
the five senses.
By a sense is meant what has the power of
receiving into itself the sensible forms of things without the
matter. This must be conceived of as taking place in the
way in which a piece of wax takes on the impress of a
signet-ring without the iron or gold; we say that what
produces the impression is a signet of bronze or gold, but its
particular metallic constitution makes no difference: in a
similar way the sense is affected by what is coloured or
flavoured or sounding, but it is indifferent to what in each
case the substance is; what alone matters is what quality it
has.
Aristotle is a realist, because he affirms
that the material world is real and knowable
without transcendent Forms. His view is also
sometimes called immanent realism, insofar as it
asserts that the forms required for knowledge
reside within the objects we perceive rather than
in a transcendent realm.
PLATO VS ARISTOTLE
Plato believed that concepts had a
universal form, an ideal form, which leads to his
idealistic philosophy.
Aristotle believed that universal forms were
not necessarily attached to each object or
concept, and that each instance of an object or
a concept had to be analyzed on its own. This
viewpoint leads to Aristotelian Empiricism. For
Plato, thought experiments and reasoning would
be enough to "prove" a concept or establish the
qualities of an object, but Aristotle dismissed this
in favor of direct observation and experience.
PRE SOCRATIC. This was a philosophy of nature.
Pre-Socratic philosophers questioned
where everything came from, what everything
was created from, how nature could be
described mathematically, and how one could
explain the existence of plurality in nature. Pre-
Socratic philosophers determined that there must
be principles of change that are contained.
What does Pre-Socratic mean?
The term pre-Socratic, meaning before
Socrates, was popularized in 1903 by German
scholar Hermann Diels.
It is based on the fragments of text that
remain and the quotes of later historians and
philosophers, which were usually biased.
Pre-Socratic Schools
Milesian School
Thales (624-546 B.C.), claimed the arche,
or he single element, was water. Thales
determined what water could experience
principles of change like evaporation and
condensation, therefore allowing for it to be
gaseous or solid.
Anaximander. The next major philosopher
to come out of Miletus was Anaximander ( 610-
546 B.C).UNLIKE Thales Anaximander claimed the
single element was actually an undefined,
unlimited, and indefinite substance, known as
apeiron.
Anaximenes. The last important pre-
Socratic philosopher of the Milesian school was
Anaximenes (585-528 B.C), who believed the
single element was air.
According to Anaximenes, air is
everywhere and has the ability to undergo
processes and become transformed into other
things, such as water, clouds, wind, fire, and even
the earth.
The Pythagorean School Philosopher and
mathematician Pythagoras (570-497 B.C),
perhaps most famous for the Pythagorean
theorem named after him, believed that the
basis of all reality was mathematical relations
and that mathematics governed everything
Cicero (106 43 BCE)
Roman politician, lawyer and legal
philosopher.
Law is rooted a divine source; Jupiter.
Natural Law is universal and unchanging.
Nature ensures the common good.
Law is in the mind of wise and intelligent
men and they are the standard by which
justice and injustice are measured
(philosopher kings).
If in the minds of wise and intelligent
men the law is in conflict with the laws of
nature it should be disobeyed.
Civil disobedience should be used to force
the government to make laws that
conform to natural law.
St. Thomas Aquinas (1224 1274)
Dominican Monk.
Influenced by Aristotle and Christian
teachings.
Natural Law and Rationalism
consistent with Christian truth.
Law must mirror a natural world order
made known through reason and the
revelation of the prophets. Law has a
moral purpose.
Law gains its legitimacy through reason.
The validity of law is based on its moral
content or justness.
Four kinds of Law
Eternal law comes from God and is
unchanging.
Natural law is eternal law that can be
known to humans.
Divine Positive law is the part of eternal
law revealed through the scriptures.
Human positive law is the laws made by
the state.
The Order of Natural Law
First Principle: Do good and avoid evil.
For example preserving life, caring for
children, knowing the truth about God, not
harming others, helping the poor and the sick,
shunning ignorance, etc.
Second Principle: How to act based on the first
principle.
For example the enforcement of the law,
making of laws, functioning of society.
Unlike Aristotle, Aquinas did not believe that the
state leads people to their greatest potential. The state is
are subordinate to the Catholic church who is in charge of
moral matters on Earth. Therefore an unjust law does not
have any binding force. Such laws are an act of violence
against the people of the state.
Aquinas defines human law as the ordinance of
reason for the common good, proclaimed publicly by a
ruler who has care for the community.
AQUINAS FIVE PROOFS THAT SHOW THE
EXISTENCE OF GOD
1) The Argument of the Unmoved Mover
Anything that is in motion was put in motion by
something else that was in motion. And that
object is motion because it was put into motion
by another object that was in motion, and so on
and so forth.
Everything that is moved is moved by a mover,
therefore there is an unmoved mover from
whom all motion proceeds, which is God.
2) The Argument of the First Cause
Every cause is the result of previous cause, and
that previous cause is the result of another
previous cause.
Everything that is caused is caused by something
else, therefore there must be an uncaused cause of
all caused things, which is God.
3) The Argument from Contingency
Everything that exist needs to come from
something that exist, and if it possible not to exist
then it wouldnt exist before, and wouldn't exist
now.
There are contingent beings in the universe which
may either exist or not exist and, as it is impossible
for everything in the universe to be contingent(as
something cannot come of nothing), so there must
be a necessary being whose existence is not
contingent on any other being, which is God.
4. The Argument from Degree
According to Aristotle, the greatest state
of being is when there is the greatest state of
truth(maximum).
 There are various degrees of perfection which may
be found throughout the universe, so there must be
a pinnacle of perfection from which lesser degrees
of perfection derive, which is God.
5. The Teleological Argument
We observe unintelligent and inanimate
object in nature acting toward a purpose, even
if this objects are not aware of this fact(such as
the food chain or the process of sensory organs.
Though unaware , these objects are clearly
acting toward the
Purpose according to specific plan. all natural
bodies in the world (which are in themselves
unintelligent) act towards ends (which is
characteristic of intelligence), therefore there must
be an intelligent being that guides all natural
bodies towards their ends, which is God.
AQUINAS ETHICS AND THE CARDINAL VALUES
Aquinas defined the four cardinal virtues as
prudence
temperance
justice and
fortitude
According to Aquinas, the goal of human
existence is union and eternal fellowship with
God. For those who have
experienced salvation and redemption through
Christ while living on earth, a beatific vision will be
granted after death in which a person
experiences perfect, unending
happiness through comprehending the
very essence of God. During life, an individual's
will must be ordered toward right things (such as
charity, peace and holiness), which requires
morality in everyday human choices, a kind
of Virtue Ethics.
Rene Descartes
The French philosopher Rene Descartes, b.
Mar. 31, 1596, d. Feb. 11, 1650, was one of the
most important and influential thinkers in human
history and is sometimes called the founder of
modern philosophy. Writing at the beginning of
the scientific revolution, he made major
contributions to both philosophy and
mathematics. His principal philosophical work,
Meditations on First Philosophy,
First Modern Philosopher
Fundamental theme in Descartes Philosophy is
reason.
We discover inmate truth is through the power of
clear thinking = Rationalism
The secret of Descartes success was
doubt- the method of doubt. Descartes argues
that if you want to discover true knowledge your
first must be to question absolutely everything
that you ever believed.
COGITO ERGO SUM - I think therefore I am.
MEDIEVAL PERIOD
FREEWIIL - ability to choose between two options
in such a way that you are equally able to do
either one.
Cartesian Philosophy
Descartes is known as the father of the
mind-body problem. He claimed that human
beings are composites of two kinds of
substances, mind and body. A mind is a
conscious or thinking being, that is, it
understands, wills, senses, and imagines. A body
is a being extended in length, width, and
breadth. Minds are indivisible, whereas bodies
are infinitely divisible.
The "I" of the "I think, therefore I am" is the
mind and can exist without being extended, so
that it can in principle survive the death of the
body. Despite having different natures, Descartes
thought that mind and body causally interact.
The human mind causes motions in the
bodies by moving a small part of the brain.
Motions in that same part of the brain produce
sensations and emotions. This problem of whether
mental entities are different in nature from
physical entities continues to be a primary
concern of philosophers and psychologists.
John Locke (1632 1704)
English Philosopher and Political Theorist
All people have natural rights given to
them by birth from God. The most
fundamental rights are life, liberty and
property.
Natural law states that no person should
deny these rights to another therefore the
main goal of the state is to preserve these
rights.
In the state of nature, peoples passions
often get the better of their reason which
leads to the oppression of the weak.
People enter into civil society to hand over
authority to the state to preserve rights.
 Locke recommends that if the ruler
violates the natural rights of the people,
the people are justified in rebelling and
replacing an unjust government with one
that will respect their rights.
[A few of John Lockes works]
JOHN LOCKES ABOUT AN ESSAY CONCERNING
HUMAN UNDERSTANDING
Famous work of John Locke.
Deals with fundamental questions
regarding the mind, thought, language, and
perception, and is broken up into four books.
Locke argues that all humans universally
accepted principles, and since there are no
universally accepted principles( and if there
were, they would not be the result of innate
knowledge), this cannot be true.
For example, people differ in moral ideas,
so moral knowledge cannot be innate.
John Locke in his Essay Concerning Human
Understanding (1690) restated the importance
of the experience of the senses!
and sets out the case that the human
mind at birth is a complete, but receptive, blank
slate (tabula rasa) upon which experience
imprints knowledge.
What are Lockes NATURAL RIGHTS?
1.) Life (and health): everyone is entitled to live
once they have been created (by God)
2.) Liberty: all humans are entitled to do anything
they want so long as it doesn't conflict with
anyone elses natural rights.
3.) Property: all humans are entitled to own all
they create or gain through gift or trade so long
as it doesn't conflict with anyone elses natural
rights.
R. M. Dworkin (1931 - )
Political and Legal Philosopher
Law must possess a moral content.
Legal reasoning is interpretive as we try to
make political and moral sense out of
difficult situations or cases.
Law has to have political integrity. Law
should be a union of widely held, coherent
political decisions that show a consistency
of moral choices and a shared vision of
social justice. Law cannot focus on
individual wants and desires.
Positivist Law Philosophers
Thomas Hobbes (1588 1679)
English Political Philosopher
The state of nature is a state of perpetual
war where the strong prey on the weak. In
the state of nature life is solitary, poor,
nasty, brutish and short.
In order to survive, people must give up
their rights to the state. The sole purposes
of law is to maintain order and strengthen
government.
All people must obey the law at all times.
To not follow the law would only lead the
world into chaos.
The weakness of natural law is that it
allows people to find their own meaning of
the law. This makes law ineffectual and
legitimizes tyrants
More on Thomas Hobbes:
Thomas Hobbes (1588-1679) developed
the social contract theory of political
institutions, employing commitment to
some form of psychological egoism.
Hobbes rejected medieval scholastic
philosophy, preferring the new, modern,
scientific ways of thinking on the rise in
England and Europe.
Important concepts by Hobbes:
Determinism: Although many people claim to believe in it,
free will is actually a difficult
notion to make sense of. The English philosopher Thomas
Hobbes (1588-1679) was one of the first to point this out.
Determinism is the view that everything has a cause-
even human choices, and so there is no such thing as free
will. Determinists allow that everyone feel as though they
have free will. This is because we have a lot of contrary
desires within us. When our desires are battling against each
other, we pause, hovering, feeling as though we could
equally go either way. But, in fact, the strongest desire
always wins.
Compatibilism: Hobbes, denies that determinism destroys
human freedom. He argues that, although the casual
process through which our choices are made is not
compatible with free will, it is entirely compatible with
'liberty'. Liberty, as he defines it, is the absence of all the
impediments to action that are not internal to the agent.
Hobbes presents an analogy to illustrate his view.
Water is said to flow freely down the channel of a river when
there is nothing, such as a dam, in its way. It is not free to
move crosswise, because the banks are impediments. While
we may say that the water wants to flow over the banks, we
never say that it wants to flow up the channel. This is
because it is in the nature of water to flow down and not up.
State of Nature: Hobbes asserts without qualification that the
state of nature is a state of war pitting every man against
every man . Although we may not always be actually
fighting, we would be living without voluntarily accept and
even welcome government, ugly as it may be, to lift us out
of this intolerable condition and make a more noble life
possible.
Absolute Sovereign: In Hobbess view, the only kind of
government that can put an effective end to the war of all
against all is an absolute sovereign. To underscore just how
ugly and fearsome it needs to be, Hobbes called it the
Leviathan in reference to a giant, biblical sea monster.
Although he is inclined to favour monarchy as the best form
of absolute sovereignty, he is open to any form of
government that has complete authority.
Complete authority is established through the
powers of legislation, adjudication, enforcement, taxation,
war-making and control of any official doctrine.(The last one
is included in order to prevent such problems as the
Inquisition, in which the Catholic Church expected
governments to allow it to imprison and punish those who
contradicted its teaching- a vivid concern for seventeenth-
century intellectuals like Galileo, Descartes and Hobbes
himself.)A government lacking or limited in any of its rightful
powers creates competing allegiances, which readily
become violent.
Social Contract Theory: Hobbes was one of the first modern
thinkers to propose that governments legitimate only when
the people willingly agree to subject themselves to it. We
make a covenant, or social contract, with one another to
give up our natural rights in exchange for peace.
This social contract theory stands in stark contrast to
divine right theory, according to which God gives royal
families the right to rule over a region regardless of how the
people who are living there happen to feel about it. Its easy
to see why this mysterious, supernatural approach to The governed are superior to the governor
government- which was the status quo throughout the
therefore abuses are kept in check by the
medieval period and beyond- badly needed to be
replaced. So the work of Hobbes, Rousseau and other social fear of active resistance.
contract theorist was extremely important in the
development of the modern state. The mischief of a bad government are
less than the mischief of anarchy.
Jeremy Bentham (1748 1832) and John Austin H.L.A Hart (1907 1992)
(1790 1859)
Law is made up of rules of general application
Legal Philosophers that are backed up by threats given by
people that are generally obeyed.
Utilitarianism the greatest good for the
Law can be defined by Primary Rules which
greatest number of people.
define what an individual can or cannot do
The purpose of law is to maintain social and Secondary Rules that set out how primary
rules will be made valid and enforced.
order and the social good. The function of
law is more important than its quality. Hart tries to prove that there can be a precise
set of rules to define human conduct. He does
Law is separate from morality. Natural law
recognize that law has an open texture or
and individual morality are too subjective
there are limits to define human conduct.
to secure the happiness of the majority.
His goal is to take to subjectivity (morality) out
Law requires: of law.
1) The existence of an authoritative body
that is in the habit of being obeyed.
2) Legal pronouncements given to political Other Important Things Discussed by Sir:
inferiors.
-Pascals Wager
3) There is an imposition of the duty to
-Ontological Argument
obey.
4) There is enforcement through penalties.
Obedience to the law is demanded of all.
(Rule of Law)
 SCHOOLS OF THOUGHT
Comparison Chart

Historical Teleological Positivist

The historical school of jurisprudence

manifests the belief that history is the foundation of
the knowledge of contemporary era.

History is a record of past events. As man has

a past so does law. The importance of historical
school of jurisprudence cannot be overemphasized.
Apart from standing in opposition to the natural law
school, the historical school is unique for its emphasis
of the relevance of generations past to the present
and the future.
It deals with the general principles governing the origin and This school of thought thinks of the nature of A school of Jurisprudence whose advocates
development of law and also the development, evolution of the law in terms of the moral and rational nature of believe that the only legitimate sources of law are
the legal conceptions and principles found in the philosophy humankind. It understands the law as strictly those written rules, regulations, and principles that
of law. Therefore, it concerns with the historic evolution of connected with morality and naturality. Under this have been expressly enacted, adopted, or
the principles of law i.e. the past stages of the law.
It constitutes the general portion of legal history and as school of thought the law is ordained for the recognized by a government body, including
Salmond observes, bears the same relation to legal history at achievement of righteousness, justice, fairness, and administrative, executive, legislative, and judicial
Definition
tame as analytical jurisprudence bears to the systemic equity in the legal order. bodies.
exposition of the legal system.
The fundamental point of view presupposes Positivism sharply separates law and morality.
Historical jurisprudence provides answers of various
that a good legal order can be deduced from the
following questions:
natural law, thus making the law universally valid for -Issues of legal validity must be strictly separated
What was the source of a particular law
all peoples. from questions of morality.
Where form it was derived
What was its shape and scope in past
How and under what influences it came to
develop and
Through what stages of evolution it passed
to assume finally the shape in which it is final
today
In brief, historical jurisprudence deals with the study
of the evolution of fundamental principles and legal
conception in the early societies.

Two jurists who researched extensively in this area

Plato, Aristotle, Socrates, Cicero, Gaius Gracchus,
Philosophers Friedrich Carl Von Savigny (1799-1861) and Sir Henry John Austin, Thomas Hobbes
Thomas Aquinas, Immanuel Kant
Maine (1822-1888)
 Basic Tests:
1. Historical jurisprudence is marked by judges who
consider history, tradition, and custom when
deciding a legal dispute.
2. It views law as a legacy of the past and product
of customs, traditions and beliefs prevalent in
different communities.
3. It views law as a biological growth, an
evolutionary phenomena and not an arbitrary,
fanciful and artificial creation.
4. Law is not an abstract set of rules imposed on
society but has deep root in social and
economic factors and the attitudes of its past
and present members of the society.
5. The essence of law is the acceptance,
regulation and observance by the members of
the society.
6. Law derives its legitimacy and authority from
standards that have withstood the test of time.
7. The law is grounded in a form of popular
consciousness called the Volksgeist.
Principles 8. Law develops with society and dies with society.
9. Custom is the most important source of law.
Stare Decisis: One role emerges through the legal
doctrine of stare decisis, a key component in a
common law system. It requires a court to consider
and follow previous decided cases (precedents)
that sufficiently resemble an instant or current case.
As it is sometimes phrased, courts should treat like
cases alike.
Volksgeist is a term connoting the productive
principle of a spiritual or psychic character
operating in different national entities and
manifesting itself in various creations like language,
folklore, mores, and legal order.
According to Savigny, the nature of any particular
system of law, was the reflection of the spirit of the people who
evolved it. This was later characterized as the volksgeist by
Puchta, Savignys most devoted disciple. Savigny believed that
law is the product of the general consciousness of the people
and a manifestation of their spirit.
Henry Maine. Maines deep knowledge of early
Greek Concept, founded upon:
- Socrates Absolute Justice: The first is no person is
intentionally bad or evil because of the knowledge of
justice. The second consideration that he emphasized is
that only the temperate person knows himself or herself
and, thus, able to bring his other emotions under
control.
- Platos Rational Justice: For Plato, human beings are
capable of discerning justice from injustice. And, for
him, rational justice is sufficient to enable a person to
attain his or her moral nature and good faith, and to Command theory - asserts that there is a hierarchy
keep his or her self-respect by doing good and of laws stemming from a political sovereign
shunning evil. illimitable (without limits or an end) and indivisible
Aristotles Particular Justice: He said that justice is sound
-
(unable to be divided or separated) and his
and sensible when, in light of events and
circumstances, it is fair and equal. That a person cannot command is habitually obeyed by those whom he
be unfairly or unequally treated even with his or her governs and that the element of sanction is closely
consent because consent cannot justify an unfair or linked and it is an integral part of his theory as
unequal treatment
sanctions are imposed upon the non-compliance
Roman Concept with the Sovereigns command.
- The Roman jurisprudents subjected the nature of the
law to technical analysis and endorsed it with their Social Convention theory - legal validity is
practical genius for colonization. Roman jurisprudence sometimes a matter of the moral content of the
subjected it to technical analysis and endorsed it with norms, depending on the particular conventions
their authority and practical genius, unlike the Greeks
concept of nature of law, which was only a that happen to prevail in any given community.
philosophical speculation.
- Cicero: He said that the law must be based on the Sovereign: a determinate person or group
principle of utility or the interest of the ruler and not for who have supreme and absolute de
the interest of the governed because human king is facto power -- they are obeyed by all or
governed naturally by utility. He introduced compulsion
as an element of law. most others but do not themselves similarly
- Gaius Gracchus: Gaius advanced the view that the obey anyone else. The laws in that society
rules established by the citizens to govern themselves are a subset of the sovereign's commands.
fall under the jus civile, while the rules common to all Commands: general orders that apply to
other persons based on the natural law are classified
under the jus natural. classes of actions and people and that are
Aquinian Concept backed up by threat of force or sanction.
- Aquanian concept of natural law is based on the General command: issued to an entire class
notion of eternal law promulgated by a creator (God). of individuals which will stand at an
- Four types of law: ETERNAL, NATURAL, DIVINE, POSITIVE indefinite period of time until revoked by its
Kantian Concept issuer.
- The morally important things are not a consequence
but the choices made by man. Kant says that only one
thing is inherently good that is good will. The will is good
when it acts out of duty, not out of inclination. Rightness
is measured by doing your duty, acting with respect for
the moral law, not just accomplishing things simply
because it makes you feel good or because you will
gain something from it. Man for Kant is not simply a
means to an end but an end in themselves.
- Concept of Law and Right; Pure Reason; Law and Moral.
- Categorical Imperative:
 society resulted in his emphasis on mans deep
instincts, emotions and habits in historical
development. According to Maine, law can be
understood as a late stage in a slow-evolving
pattern of growth. He believes that there are three
stages in legal development in early societies law
as the personal commands and judgments of
patriarchal ruler; law as custom upheld by
judgements; and law as code.
Stages of Legal Development
Advantages
Criticism of volkgeist: First, the volksgeist is
perceived by many as fictional, incapable of proof,
and of little value in jurisprudential analysis.
Although Savignys nationalistic veil might have
endeared him to like minds, his definition or
description of the volksgeist the nucleus of his
proposition as resembling a spiritual communion
of people living together, using a common
language and acting a communal conscience
Criticisms
was neither here nor there.
Second, Savigny overestimated or overrated the
potency of custom. It is true that custom, being a
mirror of accepted usage, has a role to play in
cementing sections of the country together. But the
utility of custom is limited in the face of societal
complexities, the challenge of development, etc.
Act only in such a way that you would want
your actions to become a universal law, applicable to
everyone in a similar situation.
Act in such a way that you always treat
humanity (whether oneself or other), as both the means
of an action, but also as an end.
Act as though you were a law-making
member (and also the king) of a hypothetical "kingdom
of ends", and therefore only in such a way that would
harmonize with such a kingdom if those laws were
binding on all others.
[none provided]
SUMMARY PROVIDED BY SIR:
Aristotles concept of Justice (Particular justice)
- Emphasis on peoples particular role. Justice
is attained when everyone
Ciceros Concept of Justice
- The integration of Prudence in the
consideration of justice
- Prioritizing ones own self rather than others
Socrates (Absolute Justice)
- Emphasis on Good faith
- Emphasis on knowing ones self
Platos Concept of Justice (Rational Justice)

Functional
Law is a tool for the "balancing of interests" in
society
It is a tool of "social control" or "social
engineering"
In a sense, it adheres to the tenets of "pragmatic
ethics" or "ethical relativism" as it aims to serve
Definition the interests of society with the least friction
Also called:
1) Theory of Sociological Jurisprudence
2) Sociology of Law" or
3) Social Science School of Law"
Philosophers Roscoe Pound
The question: "Will this law work?"
The "operation and effects" of law in relation
to the interests of society
The interests of society as the source of
law
The AIM of this school of thought is to identify
the different interests in the society so that
Principles
they may be balanced with each other
Its Main Guidepost is the greatest good for
the greatest number or Social
Utilitarianism"
Roscoe Pound: Strove to link law and society
through his "sociological jurisprudence" and
to improve the administration of the judicial
SCHOOLS OF THOUGHT
Comparison Chart
Realist
Legal realists were especially concerned with
"law in action" rather than with "law in books,
with what lawyers and judges in fact do in the
course of their practice of the law rather than
what some legal theorist may say he thinks the
law is like.
It rejects the notion of natural law and the
imperative models of the law
Roscoe Pound, Oliver Wendell Holmes Jr, John
Chapman Gray, Karl N. Llewellyn, Jerome Frank
The main characteristic features of realist
jurisprudence are as follows:
There can be no certainty about law;
Society changes faster than law;
They do not support formal, logical and
conceptual approach to law;
They lay greater stress on psychological
approach to the proper understanding of
law;
Realists are opposed to the value of legal
terminology;
Doctrine of Precedent
Legal realists take issue with the doctrine of
precedent, the idea that a court's decision
Policy
The policy science school of jurisprudence was
proposed by two Yale University professors during
the Second World War
HAROLD LASSWELL: Renowned political scientist,
instrumental in the creation of three
interdisciplinary fields: communications and
public opinion, political psychology, and policy
sciences
MYRES MCDOUGAL: Renowned authority on
international law
Policy
settled guidance, strategy or program
adopted by the legal order
Policy Science
discipline concerned with the formation,
clarification, and realization concerned
with the social values
Policy science regards the view that there are
no moral principles that consciously precede
the law as dangerous, leading in fact to ruinous
and destructive conflicts
It emphasized the integration of interdisciplinary
studies (social sciences) into law and to the
development of legal policy grounded in the
 system. He argued that the law is not static
and must adapt to the needs of society
Pound placed his sociological
jurisprudence in opposition to what he
termed "mechanical jurisprudence"
Pounds primary concern therefore was
to advance a more unified approach
blending the methodological and
normative precepts
Three Kinds of Interests:
1) Individual claims or demands or desires
involved immediately in the individual life
and asserted in title of that life; asserted for
the titles of indivudual life
2) Public claims or demands or desires
involved in life in a politically organized
society and are asserted in title of that
organization; asserted for or in the title of
politically organized society
3) Social distinct and vital set of interests
whereby they were described as claims or
demands or desires involved in the social life
in civilized society and asserted in that title
of life
in one case can serve as a guide to future
cases that are similar in relevant ways.
Realists emphasize the indeterminacy and
looseness of the use of precedent by
pointing out that a ruling in one case never
bind a decision maker in any future case.
Realistic Jurisprudence
Realists endeavor to come up with a realistic
(rather than abstract or theoretical)
understanding of the nature and operation
of law.
Legal realists favor an empirical approach to
understanding the law, preferring practical
studies of how the legal system actually
operates, and what judges actually do,
rather than more philosophical musings
about, the relationship between law and
justice.
Bad Man Theory
Bad men, Holmes argued in his speech "The
Path of the Law", care little for ethics or lofty
conceptions of natural law; instead they
care simply about staying out of jail and
avoiding the payment of damages. In
Holmes's mind, therefore, it was most useful
to define "the law" as a prediction of what
will bring punishment or other consequences
from a court.
Grays core argument
Decisions made by courts do not only affect
the parties appearing before them but also
the legal rights and duties of others.
Courts have the final say.
Karl N. Llewellyn (LAW-JOBS THEORY)
1. What are the Jobs to be done?
2. Prevent disruptive conflicts within the
community.
3. Resolve disputes between members of the
community.
4. Accommodate changes in the circumstances
of the community and its members.
5. Recognize the authority structure of the
political and moral values of Western liberal
democracies freedom, toleration, and
equality and that applied universally
It underscores the need for the eventual
identification of basic social values in the legal
orders of all societies
The end result of the policy science approach is
the survival of humanity through the universal
identification and recognition of the social
values
These social values are power, knowledge,
respect, income, safety and health, liberty, and
equality
These social values embrace the whole of our
present-day democratic preferences for a
peaceful world corresponding as they do to
actual desires of the people
It considers these social values as instrumental in
the creation, clarification, and implementation
of other human desires
Reaction to apathy towards social values
The apathy towards social values, to
some extent, explains the tendency of
governments to view the rights of human
beings as hindrances to the exercise of
governmental powers
Movement away from ontological jurisprudence
Ontological concepts of the nature
of law are of no help in the reduction of
national, regional and global tensions. This
juristic school believes that both judicial legal
realism and positivism are incapable of solving
the needs and requirements of present day of
systems of public order
Emphasis on human rights
Policy science approach is likewise a
movement away from slogans, doctrines and
structures of despotism (dictatorship) towards
the symbols and practices of a free society. This
juristic school emphasizes right to life, liberty,
equality, property, education, security, and the
free exercise of the mind
Movement for the universal recognition of social
 community values
6. Establish procedural rules for performing other Policy science seeks the universal
tasks. identification of the social values, their
FATHER SYMBOL THEORY promotion, recognition and enjoyment by all
Frank suggested that the quest for certainty in persons everywhere, underscores the need for
law is in effect a search for a father-symbol to the eventual identification of basic social values
provide an aura of security, and although he in the legal orders of all societies
attributed great prominence to this factor.
The child puts his trust in the power and wisdom
of his father to provide an atmosphere of
security.

Law is experience developed by reason and

applied continually by further experience.
Advantages [none provided]
-Roscoe Pound

Social Engineering
By using this term, Roscoe Pound compared
society to a machine ignoring its dynamic and non-
mechanistic nature.
Jural Postulates 1) Overestimation of Judges Functions
They fail to establish any framework of The critics allege that the exponents of realist
reference with which to evaluate various interests school have completely overlooked the
since they themselves are not static. importance of rules and legal principles and
Re: Interests treated law as an assemblage of unconnected
There are certain competing interests which court decisions.
can never be balanced or reconciled. (e.g. 2) Neglect of the other functions of law
interests of labor and capital ) Another criticism so often advanced against
A society constantly develops & changes realists is that they seem to have totally
Criticisms and the pressure behind interests change neglected that part of law which never comes
too. What is an individual interest & what is a social before the court.
interest is itself a matter of changing political 3) Case law is made in haste and in limited
conceptions. The value or importance to be purview
allotted to each interest cant be predetermined & They have to rely on the evidence and
the recognition of a new interest is a matter of arguments presented to them in court, and do
policy. not have access to wider evidence such as
statistical data, economic forecasts, public
Maine: opinion, survey etc.
Maine is criticized for oversimplifying the 4) Confinement to U.S. setting
nature and structure of early society for the
following reasons:
Early society does not show an invariable
pattern of movement from the three-stage
development of law from personal commands
and judgments of patriarchal rulers through law as
custom upheld by judgments to law as code.
The so-called rigidity of the law has
repeatedly be challenged by contemporary
anthropologists who are of the opinion that primitive
peoples were adaptable and their laws flexible.
Conclusion: Although Maine lived up to his
historical commitment, he overlooked the dynamics
that have characterized societies across ages.
 Additional Notes
Other notes/insights [Those that do not fit the
categories in the table]
HISTORICAL SCHOOL OF JURISPRUDENCE
Three Legal Stages of Development
In the first stage, absolute rulers
dominated. It was the age of the divine rights of
Kings, where the king could do no wrong. System
of ruler ship was absolute and draconian. There
were no principles governing governance; only
the whim and caprice of the king reigned. Recall
Austins commander, who was above the law,
and whose commands must be obeyed by
inferiors
The second stage is heralded by the
decline of the power and might of patriarchal
rulers (i.e. a small group of people having control
of a country or organisation). In their place, the
oligarchies of political and military rulers
emerged. The oligarchies claimed monopoly of
control over the institutions of law. Notably,
Ghana could be said to have experienced this
under military regimes where rulers of the period
manipulated the legal system through decrees
and edicts. Maine maintains that the judgments
of the oligarchies evolved or solidified into the
basis of customs. But the customs are largely
unwritten, giving interpreters the opportunity to
enjoy a monopoly of explanation.
In the third stage, which represents the
breaking of the monopoly of explanation,
codification characterizes the legal system.
Static and Progressive Societies
Maine further propounded that for the
purpose of the development of law, society can
be categorized into two: static and progressive
society.
Static or stationary societies did not move
beyond the concept of code-based law. In this
society, reference to the code answered all legal
questions. According to Maine, members of the
society were lulled into the belief in the certitude
of code and were, therefore, unwilling to reform
the law.
On the other hand, progressive societies
were to be found in Western Europe. These
societies were dynamic and amenable to legal
reform. They brought about the development
and expression of legal institutions.
In the development of law in progressive
societies, Maine identified the characteristic use
of three agencies legal fictions, equity and
legislation. Legal fictions are mere suppositions
aimed at achieving justice by overcoming the
rigidities of the formal law.
According to Maine, legal fictions helps to
ameliorate the harshness of the law. A classical example he
gave was the institution of the Roman fiction of adoption.
He called equity a secondary system of law. It claimed a
superior sanctity inherent in its principles which exist side by
side with the law. In many cases, it could displace the law.
Legislation represents the final development of the law. It is
an institution through which various laws in the society are
reduced into writing or codes.
Summary:
(a) The concept of received law is anathema;
(b) Law is inferior to the custom of the people.
Therefore, custom of the people must be their
law;
(c)Law personifies the people, and signifies a
paradigm of their values;
(d) There is no universal law. The universality of
law is limited by geography and culture;
(e) Law is not static. It is amenable to
development; and
(f) There is no law giver. Law comes from the
people.
TELEOLOGICAL SCHOOL OF JURISPRUDENCE
NATURAL LAW
Natural Law, as defined by Plato and
Aristotle, is a discipline to which human conduct
and relations must conform in order to realize
both the individual and the common good.
It is also defined as the universal discipline
of virtue in the exercise of their rights, in the
performance of their obligations, in the
observance of rules, and the preservation of
order and unity.
ANCIENT ETHICS AND MODERN MORALITY
Human understanding of the law, and the
concept of ethics and morality vary thought out
the time. The weakness of one concept paves
the way to the birth of another concept. Proper
understanding of the strengths and weaknesses
of one concept over the can be used to
overcome current ethical problems and to
initiate fruitful developments in ethical reasoning
and decision-making.
The teleological school of thought was
developed and refined throughout the course of
time. The first one to deal on the study of the
nature of law are the Greeks. The Greek concept
of the study of the nature of law is greatly shaped
by 3 Greek philosophers: Plato, Socrates and
Aristotle.
Gaius Gracchus (121 BC)
In his Institutes, Gaius advanced the view
that the rules established by the citizens to
govern themselves fall under the jus civile, while
the rules common to all other persons based on
the natural law are classified under the jus
natural. This view is evident in his work, the
Institutes. For him, those that are in derogation of
the precepts of the natural law are not laws at
all. If such laws exist it is because the sanctions
attached to them, not because they are laws.
They do not contribute to the maintenance and
preservation of lawness. On the contrary, they
are conducive to lawlessness.
In identifying this aberration in the legal order,
Gaius advocated for a continuing process of
removing such unnatural laws. His idea was that
law must be reexamined by the lawmaking body
everyone in a while. This process would, then,
provide the means for legal cleansing whereby
any abnormality or irregularity in the legal order
could be adjusted to comply with the end and
purpose of the law.
Thomas Aquinas
God imprinted this eternal law to the
nature or essence of man. Man acts according
to nature. God also endowed man with free will
and reason. The concept of proper acts and
purpose of man is derived from the law that is
written into his nature. Man must exercise his
natural reason to discover what is best for him in
order to achieve the end to which their nature
inclines.
Man through his reason and free will
participate in the eternal law of God. He uses his
knowledge of the eternal law and his purpose
based on that laws to discern what is good and
evil. To do what is good and refrain what is evil.
Four Types of Law. Aquinas introduced the Four
Types of Law, which includes:
ETERNAL: Direct Word of God, governs all
creation
NATURAL: human adherence to eternal
law, discovered by reason
DIVINE: the law as defined in the Scriptures
POSITIVE: made by man/ government and
it relies on the government for its power.
Moreover, Aquinas emphasized the four
cardinal virtues essential in man, which includes:
Prudence, Temperance, Justice and Fortitude.
Immanuel Kant
3 MAIN WORKS OF KANT ON MORAL PHILOSOPHY
1. Critique of Pure Reason
2. "Critique of Practical Reason
3. Critique of the Faculty of Judgment
Concept of Law and Right
According to Kant, the concept of law
and right is something derived exclusively from
pure reason. Precepts of the natural law are not
prompted by sense-experience but by the
ethical attitude to do what is right and avoid
what is wrong with the use of the unique faculties
of human consciousness, namely: thinking,
volition and judgment.
Based on the categorical imperative, for
an action to be permissible, it must be possible to
apply it to all people without a contradiction
occurring.
When you already found out an action
that is proper to act on the concept of perfect
and imperfect duties arises. The perfect duty
always holds true in every race, every time, every
place. Imperfect duty are those that are good
but can be made flexible and applied in
particular time and place.
Critique of Pure Reason
Kant started with the traditional distinction
between "truths of reason and "truths of fact.
He added to this two other concepts: a priori
knowledge (Rationalism) and a posteriori
knowledge (Empiricism). Kant maintained that
the two can be combined
Law and right as such "are the sum total of
those conditions by which the free moral will of
one person can be reconciled with the free
moral will of another person according to a
universal law of moral freedom."
Concept of Law and Moral
Law and morals have certain duties in
common, but not the manner in which these
duties are compelling. Legality" and "morality"
have to be distinguished.
Moral duties turns all legal duties into moral
duties, or to be more exact, into indirect ethical
duties."
THEORY OF CATEGORICAL IMPERATIVE
Immanuel Kant introduced modern
deontological ethics in the late 18th Century,
with his theory of the Categorical Imperative.
The concept of this theory elaborates on
the capacity that underlies deciding what is
moral is called pure practical reason, which is
contrasted with pure reason (the capacity to
know without having been shown) and mere
practical reason (which allows us to interact with
the world in experience).
1. Act only in such a way that you would want
your actions to become a universal law,
applicable to everyone in a similar situation.
Kant started by observing that it is an
observable empirical fact that people have
moral and ethical views and, for them to have
any meaning at all, people must have some
element of free will.
Kant focuses on the rightness or wrongness
of the actions themselves, as opposed to the
rightness or wrongness of the consequences of
those actions or the character of the actor, and
holds that ethical rules bind people to an ethical
duty.
2. Act in such a way that you always treat
humanity (whether oneself or other), as both the
means of an action, but also as an end.
Hypothetical imperatives apply to someone who
wishes to attain certain ends. For example:
If I wish to quench my thirst, I must drink
something.
If I wish to pass this exam, I must study.
A categorical imperative, on the other hand,
denotes an absolute, unconditional requirement
that must be obeyed in all circumstances and is
justified as an end in itself. It is best known in its
first formulation: Act only according to that
maxim whereby you can, at the same time, will
that it should become a universal law.
A categorical imperative would denote
an absolute, unconditional requirement that
exerts its authority in all circumstances, both
required and justified as an end in itself.
He considered it an unconditional
obligation, regardless of our will or desires, and
regardless of any consequences which might
arise from the action.
Illustration:
The justifications for punishment typically
take five forms, such as retributive, deterrence,
preventive; rehabilitative, and restitutionary.
According to the deterrence justification,
punishment of a wrongdoer is justified by the
socially beneficial effects that it has on other
persons. On this view, punishment deters
wrongdoing by persons who would otherwise
commit wrongful acts. The problem with the
deterrence theory is that it justifies punishment of
one person on the strength of the effects that it
has on other persons.
It can never be right to manipulate, abuse
or lie to individuals, even in the interests of others
or even the perceived greater good.
He asserted that each person is his own
moral agent, and we should only be responsible
for our own actions, not those of others.
3. Act as though you were a law-making
member (and also the king) of a hypothetical
"kingdom of ends", and therefore only in such a
way that would harmonize with such a kingdom if
those laws were binding on all others.
The third way requires the following steps:
TEST ONE. Before you act, consider the maxim or
principle on which you are acting. If, once
generalized, it no longer makes any sense
because it contradicts itself, then it is wrong to
use that maxim as a basis for action.
TEST TWO Generalize that principle (aka
Reversibility). If the generalized version makes
sense, then ask whether you would choose to live
in a world where it was followed by everyone. If
not, do not act on that maxim.
Illustration:
Kant's example of the Bad Samaritan
(Using Tests One and Two).
The Maxim: I may refuse to help another
person in distress who cannot pay me even
though I could do so at little cost to myself.
Generalized: Anyone may refuse to help
another person in distress who cannot pay her
even though it would cost her little to help.
Can it be conceived? Yes.
Could you will this to be a universal law?
Probably not, because you might find yourself in
a situation of extreme need and nobody else
would help you.
Result: You cannot act on the "Bad
Samaritan" maxim.
POSITIVIST SCHOOL OF JURISPRUDENCE
Legal positivism is the legal philosophy
which argues that any and all laws are nothing
more and nothing less than simply the expression
of the will of whatever authority created them.
It is a view that law is a social construction.
The English jurist John Austin (1790-1859)
formulated it thus:
The existence of law is one thing; its merit and
demerit another. Whether it be or be not is one enquiry;
whether it be or be not conformable to an assumed
standard, is a different enquiry.
According to positivism, law is a matter of
what has been posited (ordered, decided,
practiced, tolerated )
History
Legal positivism has ancient roots.
Christians believe that the Ten
Commandments have sacred and pre-
eminent value in part because they were
inscribed in stone by God, and delivered
to Moses on Mount Sinai.
When the ancient Greeks intended for a
new law to have permanent validity, they
inscribed it on stone or wood and
displayed it in a public place for all to see.
In classical Rome, Emperor Justinian (483-
565 A.D.) developed an elaborate system
of law that was contained in a detailed
and voluminous written code.
Prior to the American Revolution, English
political thinkers John Austin and Thomas
Hobbes articulated the command theory
of law, which stood for the proposition that
the only legal authorities that courts should
recognize are the commands of the
sovereign, because only the sovereign is
entrusted with the power to enforce its
commands with military and police force.
Thomas Hobbes argued that it is
improbable for any statute to be unjust.
According to him, before the names of
just and unjust can take place, there must
be some coercive power to compel men
equally to the performance of their
covenants and such power there is
none before the creation of the
commonwealth.
John Austin on the other hand, adopted
some ideas of Thomas Hobbes in his legal
philosophy about the nature of law.
Additionally, he was known individually for
his dogma of legal positivism which
states that:
The existence of law is one thing; its merit or demerit
is another. Whether it be or be not is one enquiry; whether it
be or be not conformable to an assumed standard, is a
different enquiry. A law, which actually exists, is a law,
though we happen to dislike it, or though it vary from the
text, by which we regulate our approbation and
disapprobation.
Austin defined law by saying that it is the
command of the sovereign
Commands involve an expressed wish
that something be done, and an evil to be
imposed if that wish is not complied with.
Rules are general commands (applying
generally to a class), as contrasted with specific
or individual commands (drink wine today or
John Major must drink wine).
Positive law consists of those commands
laid down by a sovereign (or its agents), to be
contrasted to other law-givers, like God's general
commands, and the general commands of an
employer to an employee.
The sovereign is defined as a person (or
determinate body of persons) who
receives habitual obedience from the bulk
of the population, but who does not
 habitually obey any other (earthly) person
or institution.

Austin thought that all independent

political societies, by their nature, have a
sovereign.

Types of Positivism

Broad positivism

Narrow positivism

Types of Narrow Positivism:

Utilitarian

Non-utilitarian

Other Forms of Positivism:

Soft Positivism - no principle is legally

binding unless it is incorporated into a law.

Hard positivism - the mixture of law and

moral concepts would make it disputable.

FUNCTIONAL SCHOOL OF JURISPRUDENC

REALIST SCHOOL OF JURISPRUDENCE
POLICY SCHOOL OF JURISPRUDENCE

**These Topics were Discussed in the Table**

 International Humanitarian Law

Group 6 History of the Law of Armed Conflict

Group 5 Framework of the Law of Armed

Conflict Legal Basis for the Use of Force

Group 4 Wounded and Sick in the Field

Prisoners of War

Group 3 LOAC Protections for Civilians

Occupation and Post- Conflict Governance

Group 2 Means and Methods of Warfare

Group 1 War Crimes and Command

Responsibility