Legal Philo Report

7/31/2019 Legal Philo Report

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Philosophical Jurist studies the philosophical and ethical bases of law, legal systemsand particular doctrines and institutions and criticizes them with respect to suchbases. this method is one of the oldest and in the modern world is the longest-continued

method of legal science. legal science may almost be said to lie in the contact of Roman lawyers and Greek

philosophers in the later year of the Roman republic.

the combination of comparative law and rational speculation is called ius gentiuminthe appeal to reason against traditions and forms called ius naturale.ius gentiumthe law which natural reason establishes for all men, it is a system ofequity applying to cases between foreigners and Roman citizens, a concept ofRoman laws that any law common to all nations must be fundamentally valid andjust.ius natirale - literally natural law. The Romans believed, at least in principal,that the rights of individuals are inalienable from them. This precept maintainsthat a person is innocent until proven guilty, and that all people should beequal in the eyes of the law and government. Though this precept has beenheld in regard to law since the time of the ancient Romans, history, from thetime of Rome until now, proves that the states do not always maintain theserights in the sense they are described.


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In comparison with the Analytical and the Historical Jurist respectively, thePhilosophical Jurists-

they are more apt to consider the ideal future of law than its past or present.

While agreeing with the historical jurist that law is not made but is found, yetin general believe that when found its principles may and as a matter ofexpediency, should be stated definitely and in certain form.

Look at the ethical and moral base of rules rather than at their sanction.

Have no necessary preference for any particular form of law.

Hold very diverse philosophical views, so that, in a way, there is not so much aphilosophical school as a group of philosophical schools.


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German jurist of the last half of the nineteenth century left nature to others andwere philosophical in their use of analytical and historical methods, by no means

dispose of the Philosophical School. That we are not bound to accept Naturrechtas the philosophy of law. That it is unfair to identify the philosophical method

absolutely with Krause or Ahrens or Roder or Lorimer as to identify analyticaljurisprudence absolutely with the text of Austin.

in civilized countries, men are compelled to administer justice by formulas.These formulas are design to express ideas of right and justice and as a meansto promote right and justice. But there is always a danger that we forget those

ideas and lose sight of those ends and treat the formulas as existing for theirown sale

since the time of the Stoics, men have appealed to Nature to save ethical,political and juristic thinking from this danger and by Nature they have meantreason and general principles of right.

Philosophical methods has an important function also in supplementing theanalytical and the historical methods in testing the apocryphal reasons workedout in later times to explain or justify the rules of the past.


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Philosophical method in the past has proved to be liable to three abuses.

It is not unlikely to be employed in to mechanical a fashion. In philosophicaljurisprudence this tendency takes the form of over-abstractness of purelyabstract right and justice, which instead of resulting in a healthy critique ofdogmas and institutions or at least providing material therefore , leads toempty generalities, thus in effect leaving legal doctrines to stand upon theirown basis.

It has led often to ambiguities productive of far-reaching confusion. This hasbeen true particularly of the ideas of natural right and natural law.

It has been employed to work out specious reasons for doctrines, instead of tocriticize them and thus has sometimes helped to intrench them in juristicthought where a real inquiry into their ethical foundations would have shakentheir authority.


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Rise of a Sociological SchoolThe Social Philosophical School. Law is felt to be the reason and the artificial reason and judgment of the

law, as Coke puts it, is subjected to scrutiny . It is not enough that a rule exist

in one system or that it have its analogues in other. The rule must conform tonatural reason and if does not must be reshaped until it does, or must havereasons made for it. This is the dominant idea of Ius Naturale.

Validity of the so called reasons is examined by applying them to analogouscases and by trying how far the logical scope of the reason and the extent ofthe rule to be explained may be squared. Being for the most part ex post factoand though specious neither historically sound nor critically adequate they fallto the ground and sometimes carry the rules with them. Hence the analyticalperiod usually coincides with a critical tendency and an era of reform throughlegislation.


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Analytical jurisprudence is attaining the best results in the present thathistorical jurisprudence has accomplished in the immediate past and that

philosophical jurisprudence, which had been most fruitful from theReformation till the 19th century but was sterile during that century showssigns of regaining its usefulness and reacquiring its former importance in theimmediate future.

First movement was from the dominant historical school in Germany. They

began by applying historical method to modern Roman Law Next arose a tendency to investigate the legal institutions of all Aryan peoples

and to attempt reconstruction of an Aryan Urrechtin which the roots ofmodern law was found

While the latter movement was in progress the scope of inquiry widened an

ethnological turn was given to historical jurisprudence and the foundation ofwhat Kohler styles universal legal history began to be laid.


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The PositivesThe Mechanical Stage.

Isidore Auguste Marie Franois Xavier Comte (19 January 1798 5September 1857), better known as Auguste Comte , was a Frenchphilosopher. He was a founder of the discipline of sociology and of thedoctrine of positivism. He may be regarded as the firstphilosopher of sciencein the modern sense of the term.

Strongly influenced by the Utopian socialist Henri Saint-Simon, Comtedeveloped the positive philosophy in an attempt to remedy the social malaise ofthe French revolution, calling for a new social doctrine based on the sciences.Comte was a major influence to 19th century thought, impacting the work ofsocial thinkers such as Karl Marx, John Stuart Mill, and George Eliot. Hisconcept of sociologie and social evolutionism, though now outdated, set the

tone for early social theorists and anthropologists such as Harriet Martineauand Herbert Spencer, evolving into Modern academic sociology presentedby mile Durkheim as practical and objective social research.

Comte's social theories culminated in the "religion of humanity", which wasinfluential to the development of religious humanist and Secular Humanist

organizations in the 19th century. Comte likewise coined the word "altruism".


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Legal Philo Report

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