Jurisprudence or legal theory is the theoretical study of law, principally by philosophers but, from the twentieth century, also by social scientists. Scholars of jurisprudence, also known as jurists or legal theorists, hope to obtain a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.
Modern jurisprudence began in the 18th century and was focused on the first principles of natural law, civil law, and the law of nations. General jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists.
This article addresses three distinct branches of thought in general jurisprudence. Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason, and it is from these laws of nature that human laws gain whatever force they have. Analytic jurisprudence (Clarificatory jurisprudence) rejects natural law's fusing of what law is and what it ought to be. It espouses the use of a neutral point of view and descriptive language when referring to aspects of legal systems. It encompasses such theories of jurisprudence as "legal positivism", which holds that there is no necessary connection between law and morality and that the force of law comes from basic social facts; and "legal realism", which argues that the real-world practice of law determines what law is, the law having the force that it does because of what legislators, lawyers, and judges do with it. Normative jurisprudence is concerned with "evaluative" theories of law. It deals with what the goal or purpose of law is, or what moral or political theories provide a foundation for the law. It not only addresses the question "What is law?", but also tries to determine what the proper function of law should be, or what sorts of acts should be subject to legal sanctions, and what sorts of punishment should be permitted.
The English word is derived from the Latin maxim jurisprudentia. Juris is the genitive form of jus meaning law, and prudentia means prudence (also: discretion, foresight, forethought, circumspection. It refers to the exercise of good judgment, common sense, and caution, especially in the conduct of practical matters. The word first appeared in written English in 1628, at a time when the word prudence meant knowledge of, or skill in, a matter. It may have entered English via the French jurisprudence, which appeared earlier.
Praetors established a working body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex would then prescribe a remedy according to the facts of the case.
The sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting the law to newer social exigencies. The law was then adjusted with evolving institutiones (legal concepts), while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.
Under the Roman Empire, schools of law were created, and practice of the law became more academic. From the early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians. The scientific nature of the studies was unprecedented in ancient times.
After the 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.
In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on the basis of being analogous to the laws of physical science. Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition.
Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance.
Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused on. John Finnis, one of the most important of modern natural lawyers, has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position.
Aristotle is often said to be the father of natural law. Like his philosophical forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon, δικαίον φυσικόν, Latin ius naturale). His association with natural law is largely due to how he was interpreted by Thomas Aquinas. This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (= Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.
Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed, his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions toward others are completely virtuous in all matters, Aristotle calls them "just" in the sense of "general justice"; as such, this idea of justice is more or less coextensive with virtue. "Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably.
Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was adverse to the case being made, not that there actually was such a law. Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
Thomas Aquinas (Thomas of Aquin, or Aquino, was an Italian philosopher and theologian in the scholastic tradition, known as "Doctor Angelicus, Doctor Universalis". He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. The work for which he is best known is the Summa Theologica. One of the thirty-five Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him.
Aquinas distinguished four kinds of law: eternal, natural, divine, and human:
Natural law is based on "first principles":
... this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this ...
The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based.
Francisco de Vitoria was perhaps the first to develop a theory of ius gentium (the rights of peoples), and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of all and that the common good of the world should take precedence before the good of any single state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice. Some scholars have upset the standard account of the origins of International law, which emphasises the seminal text De iure belli ac pacis by Grotius, and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field. Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have founded international law in the modern sense, instead placing its origins in the post-1870 period.
Francisco Suárez, regarded as among the greatest scholastics after Aquinas, subdivided the concept of ius gentium. Working with already well-formed categories, he carefully distinguished ius inter gentes from ius intra gentes. Ius inter gentes (which corresponds to modern international law) was something common to the majority of countries, although, being positive law, not natural law, it was not necessarily universal. On the other hand, ius intra gentes, or civil law, is specific to each nation.
In his treatise, Leviathan (1651), Hobbes expresses a view of natural law as a precept—or general rule, founded on reason—by which a man is forbidden to do that which is destructive to his life, to take away the means of preserving the same, or to omit that by which he thinks it may best be preserved. Hobbes was a social contractarian and believed that the law had peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war that would exist otherwise. According to Hobbes, without an ordered society, life is, "solitary, poor, nasty, brutish and short". It is commonly said that Hobbes's views on human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place; and, in reacting to that, Hobbes felt that absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.
Writing after World War II, Lon L. Fuller defended a secular and procedural form of natural law. He emphasised that the (natural) law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argued, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, the law must have a morality that goes beyond the societal rules under which laws are made.
Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common. Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists, such as John Finnis, who claim to be positivists, still argue that law is moral by nature. In his book Natural Law and Natural Rights (1980, 2011), John Finnis provides a restatement of natural law doctrine.
Analytic, or "clarificatory", jurisprudence means taking a neutral point of view and using descriptive language when referring to various aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume argued, in A Treatise of Human Nature, that people invariably slip from describing what the world is to asserting that we therefore ought to follow a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question from normative and evaluative questions of what ought to be done.
The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there is a growing number of critics who offer their own interpretations.
Historical jurisprudence came to prominence during the debate on the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence, Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs, and beliefs of the German people did not include a belief in a code. Historicists believe that law originates with society.
An effort to systematically to inform jurisprudence from sociological insights developed from the beginning of the twentieth century, as sociology began to establish itself as a distinct social science, especially in the United States and in continental Europe. In Germany, the work of the "free law" theorists (e.g. Ernst Fuchs, Hermann Kantorowicz, and Eugen Ehrlich) encouraged the use of sociological insights in the development of legal and juristic theory. The most internationally influential advocacy for a "sociological jurisprudence" occurred in the United States, where, throughout the first half of the twentieth century, Roscoe Pound, for many years the Dean of Harvard Law School, used this term to characterise his legal philosophy. In the United States, many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence. In Australia, Julius Stone strongly defended and developed Pound's ideas. In the 1930s, a significant split between the sociological jurists and the American legal realists emerged. In the second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest.
Positivism simply means that law is something that is "posited": laws are validly made in accordance with socially accepted rules. The positivist view of law can be seen to be based on two broad principles:
No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.
One of the earliest legal positivists was Jeremy Bentham. Along with Hume, Bentham was an early and staunch supporter of the utilitarian concept, and was an avid prison reformer, advocate for democracy, and firm atheist. Bentham's views about law and jurisprudence were popularized by his student John Austin. Austin was the first chair of law at the new University of London, from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Contemporary legal positivists, H. L. A. Hart particularly, have long abandoned this view, and have criticised its oversimplification.
Hans Kelsen is considered one of the prominent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common-law countries. His Pure Theory of Law describes law as "binding norms", while at the same time refusing to evaluate those norms. That is, "legal science" is to be separated from "legal politics". Central to the Pure Theory of Law is the notion of a "basic norm" (Grundnorm)'—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a legal system, beginning with constitutional law, are understood to derive their authority or the extent to which they are binding. Kelsen contends that the extent to which legal norms are binding, their specifically "legal" character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation.
In the English-speaking world, the pivotal writer was H. L. A. Hart, professor of jurisprudence at Oxford University, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts. Hart revived analytical jurisprudence as an important theoretical debate in the twentieth century, through his book The Concept of Law.
Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials who administer primary rules). Secondary rules are divided into rules of adjudication (how to resolve legal disputes), rules of change (how laws are amended), and the rule of recognition (how laws are identified as valid). The "rule of recognition" is a customary practice of officials (especially barristers and judges) who identify certain acts and decisions as sources of law. In 1981, Neil MacCormick wrote a pivotal book on Hart (second edition published in 2008), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his Institutions of Law, 2007). Other important critiques include those of Ronald Dworkin, John Finnis, and Joseph Raz.
In recent years, debates on the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called "exclusive legal positivism" and is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled "inclusive legal positivism", a major proponent of which is Wil Waluchow, and is associated with the view that moral considerations may, but do not necessarily, determine the legal validity of a norm.
Some philosophers used to contend that positivism was the theory that held that there was "no necessary connection" between law and morality; but influential contemporary positivists—including Joseph Raz, John Gardner, and Leslie Green—reject that view. As Raz points out, it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder).
Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis" approach in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence.
Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood as, and would be determined by, the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. Legal realism had some affinities with the sociology of law and sociological jurisprudence. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties, and imperfections.
It has become common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include Roscoe Pound, Karl Llewellyn, and Justice Benjamin Cardozo). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of judges who are able to shape the outcome of cases based on their personal values or policy choices. Many consider the chief inspiration for Scandinavian legal realism to be the works of Axel Hägerström.
Despite its decline in popularity, legal realism continues to influence a wide spectrum of jurisprudential schools today, including critical legal studies, feminist legal theory, critical race theory, sociology of law, and law and economics.
Critical legal studies are a new theory of jurisprudence that has developed since the 1970s. The theory can generally be traced to American legal realism and is considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective". It holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of a dominant social group.
Karl Popper originated the theory of critical rationalism. According to Reinhold Zippelius many advances in law and jurisprudence take place by operations of critical rationalism. He writes, "daß die Suche nach dem Begriff des Rechts, nach seinen Bezügen zur Wirklichkeit und nach der Gerechtigkeit experimentierend voranschreitet, indem wir Problemlösungen versuchsweise entwerfen, überprüfen und verbessern" (that we empirically search for solutions to problems, which harmonise fairly with reality, by projecting, testing and improving the solutions).
Contemporary philosopher of law Ronald Dworkin has advocated a more constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence. In his book Law's Empire, Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. He argued that law is an "interpretive" concept that requires barristers to find the best-fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the best moral justification for the institutional facts and practices that we intuitively regard as legal. It follows from Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some truths about the moral justifications of the social and political practices of that society. It is consistent with Dworkin's view—in contrast with the views of legal positivists or legal realists—that no-one in a society may know what its laws are, because no-one may know the best moral justification for its practices.
Interpretation, according to Dworkin's "integrity theory of law", has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of "fit". Of those interpretations that fit, however, Dworkin maintains that the correct interpretation is the one that portrays the practices of the community in their best light, or makes them "the best that they can be". But many writers have doubted whether there is a single best moral justification for the complex practices of any given community, and others have doubted whether, even if there is, it should be counted as part of the law of that community.
Consequences of the operation of legal rules or legal procedures—or of the behavior of legal actors (such as lawyers and judges)—may be either beneficial (therapeutic) or harmful (anti-therapeutic) to people. Therapeutic jurisprudence ("TJ") studies law as a social force (or agent) and uses social science methods and data to study the extent to which a legal rule or practice affects the psychological well-being of the people it impacts.
In addition to the question, "What is law?", legal philosophy is also concerned with normative, or "evaluative" theories of law. What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? Some of the different schools and leading thinkers are discussed below.
Aretaic moral theories, such as contemporary virtue ethics, emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous character in citizens. Historically, this approach has been mainly associated with Aristotle or Thomas Aquinas. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
Deontology is the "theory of duty or moral obligation". The philosopher Immanuel Kant formulated one influential deontological theory of law. He argued that any rule we follow must be able to be universally applied, i.e. we must be willing for everyone to follow that rule. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
Utilitarianism is the view that the laws should be crafted so as to produce the best consequences for the greatest number of people. Historically, utilitarian thinking about law has been associated with the philosopher Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the torch bearer for utilitarian philosophy throughout the late nineteenth century. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.
John Rawls was an American philosopher; a professor of political philosophy at Harvard University; and author of A Theory of Justice (1971), Political Liberalism, Justice as Fairness: A Restatement, and The Law of Peoples. He is widely considered one of the most important English-language political philosophers of the 20th century. His theory of justice uses a method called "original position" to ask us which principles of justice we would choose to regulate the basic institutions of our society if we were behind a "veil of ignorance". Imagine we do not know who we are—our race, sex, wealth, status, class, or any distinguishing feature—so that we would not be biased in our own favour. Rawls argued from this "original position" that we would choose exactly the same political liberties for everyone, like freedom of speech, the right to vote, and so on. Also, we would choose a system where there is only inequality because that produces incentives enough for the economic well-being of all society, especially the poorest. This is Rawls's famous "difference principle". Justice is fairness, in the sense that the fairness of the original position of choice guarantees the fairness of the principles chosen in that position.
There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization, and democratization.Feminist legal theory
Feminist legal theory, also known as feminist jurisprudence, is based on the belief that the law has been fundamental in women's historical subordination. The project of feminist legal theory is twofold. First, feminist jurisprudence seeks to explain ways in which the law played a role in women's former subordinate status. Second, feminist legal theory is dedicated to changing women's status through a rework of the law and its approach to gender. It is a critique of American law that was created to change the way women were treated and how judges had applied the law in order to keep women in the same position they had been in for years. The women who worked in this area viewed law as holding women in a lower place in society than men based on gender assumptions, and judges have therefore relied on these assumptions to make their decisions. This movement was based in the 1960s and 1970s. It was crucial to allowing women to become their own people through becoming financially independent and having the ability to find real jobs that were not available to them before due to discrimination in employment.Fiqh
Fiqh (; Arabic: فقه [fɪqh]) is Islamic jurisprudence. Fiqh is often described as the human understanding of the sharia, that is human understanding of the divine Islamic law as revealed in the Quran and the Sunnah (the teachings and practices of the Islamic prophet Muhammad and His companions). Fiqh expands and develops Shariah through interpretation (ijtihad) of the Quran and Sunnah by Islamic jurists (ulama) and is implemented by the rulings (fatwa) of jurists on questions presented to them. Thus, whereas sharia is considered immutable and infallible by Muslims, fiqh is considered fallible and changeable. Fiqh deals with the observance of rituals, morals and social legislation in Islam as well as political system. In the modern era, there are four prominent schools (madh'hab) of fiqh within Sunni practice, plus two (or three) within Shi'a practice. A person trained in fiqh is known as a faqīh (plural fuqaha).Figuratively, fiqh means knowledge about Islamic legal rulings from their sources and deriving religious rulings from their sources necessitates the mujtahid (an individual who exercises ijtihad) to have a deep understanding in the different discussions of jurisprudence. A faqīh must look deep down into a matter and not suffice himself with just the apparent meaning, and a person who only knows the appearance of a matter is not qualified as a faqīh.The studies of fiqh, are traditionally divided into Uṣūl al-fiqh (principles of Islamic jurisprudence, lit. the roots of fiqh), the methods of legal interpretation and analysis; and Furūʿ al-fiqh (lit. the branches of fiqh), the elaboration of rulings on the basis of these principles. Furūʿ al-fiqh is the product of the application of Uṣūl al-fiqh and the total product of human efforts at understanding the divine will. A hukm (plural aḥkām) is a particular ruling in a given case.Hanafi
The Hanafi (Arabic: حنفي Ḥanafī) school is one of the four religious Sunni Islamic schools of jurisprudence (fiqh). It is named after the scholar Abū Ḥanīfa an-Nu‘man ibn Thābit (d. 767), a tabi‘i whose legal views were preserved primarily by his two most important disciples, Abu Yusuf and Muhammad al-Shaybani. The other major schools of Sharia in Sunni Islam are Maliki, Shafi`i and Hanbali.Hanafi is the fiqh with the largest number of followers among Sunni Muslims. It is predominant in the countries that were once part of the historic Ottoman Empire, Mughal Empire and Sultanates of Turkic rulers in the Indian subcontinent, northwest China and Central Asia. In the modern era, Hanafi is prevalent in the following regions: Turkey, the Balkans, Syria, Lebanon, Jordan, Palestine, Egypt, parts of Iraq, parts of Iran, parts of Russia, Turkmenistan, Kazakhstan, Kyrgyzstan, Tajikistan, Uzbekistan, Afghanistan, Pakistan, parts of India and China, and Bangladesh.Ibadah
Ibadah (Arabic: عبادة, ‘ibādah, also spelled ibada) is an Arabic word meaning service or servitude. In Islam, ibadah is usually translated as "worship", and ibadat—the plural form of ibadah—refers to Islamic jurisprudence (fiqh) of Muslim religious rituals.Index of philosophy of law articles
This is an index of articles in jurisprudence.
A Failure of Capitalism
American Society for Political and Legal Philosophy
António Castanheira Neves
Arthur Linton Corbin
Bartolomé de las Casas
Biblical law in Christianity
Carl Joachim Friedrich
Charles de Secondat, baron de Montesquieu
Critical legal studies
Critical race theory
Daniel N. Robinson
Declaration of Delhi
Dignitas (Roman concept)
Divine command theory
Duncan Kennedy (legal philosopher)
Emerich de Vattel
Ernesto Garzón Valdés
Ethical arguments regarding torture
Expounding of the Law
Eye for an eye
Feminist legal theory
First possession theory of property
Freedom of contract
Friedrich von Hayek
Georg Wilhelm Friedrich Hegel
German Historical School
Giorgio Del Vecchio
Global Justice or Global Revenge?
H. L. A. Hart
Indeterminacy debate in legal theory
International Association for Philosophy of Law and Social Philosophy
International legal theory
John Austin (legal philosopher)
John Macdonell (jurist)
Joseph H. H. Weiler
Juan de Mariana
Labor theory of property
Law and economics
Law and Gospel
Law and literature
Law as integrity
Law in action
Law of Christ
Law, Legislation and Liberty
Legal Education and the Reproduction of Hierarchy
Legal origins theory
Legal process (jurisprudence)
Legalism (Chinese philosophy)
Legalism (Western philosophy)
Letter and spirit of the law
Libertarian theories of law
Lon L. Fuller
Manuel de Lardizábal y Uribe
Monism and dualism in international law
Monopoly on violence
Natural order (philosophy)
New legal realism
Oliver Wendell Holmes, Jr.
Paul Johann Anselm Ritter von Feuerbach
Philippe de Mornay
Philosophy of copyright
Prediction theory of law
Principles of Islamic jurisprudence
Public policy doctrine (conflict of laws)
R. Kent Greenawalt
Robert P. George
Roberto Mangabeira Unger
Rule by decree
Rule of Faith
Rule of law
Scepticism in law
State of emergency
State of exception
The Case of the Speluncean Explorers
The Concept of Law
The Golden Rule
Translating "law" to other European languages
Unitary executive theory
Wesley Alba Sturges
Wesley Newcomb Hohfeld
Zechariah ChafeeIslamic hygienical jurisprudence
Islamic hygienical jurisprudence includes a number of regulations involving cleanliness during salat (obligatory prayer) through Wudu and Ghusl, as well as dietary laws and toilet etiquette for Muslims. The fiqh is based on admonitions in the Qur'an for Muslims to be ritually clean whenever possible, as well as in hadith (words, actions, or habits of the Islamic prophet Muhammad).
Cleanliness is an important part of Islam, including Qur'anic verses that teach how to achieve ritual cleanliness. Keeping oral hygiene through cleaning the teeth with the use of a form of toothbrush called miswak is considered sunnah, the way of Prophet Muhammad. Ritual ablution is also very important, as observed by the practices of wudu (partial ablution), ghusl (full ablution), and tayammum (water-free alternative using any natural surface such as rock, sand, or dust).
In Muslim countries, bathrooms are often equipped with a Muslim shower situated next to the toilet, so that individuals may wash themselves properly. This ablution is required in order to maintain ritual cleanliness. The common Muslims practice of taking off shoes when entering mosques and homes is also based on ritual cleanliness.Islamic inheritance jurisprudence
Islamic Inheritance jurisprudence is a field of Islamic jurisprudence (Arabic: فقه) that deals with inheritance, a topic that is prominently dealt with in the Qur'an. It is often called Mīrāth, and its branch of Islamic law is technically known as ʿilm al-farāʾiḍ (Arabic: علم الفرائض, "the science of the ordained quotas").Islamic marital jurisprudence
In Islamic law (sharia), marriage (nikāḥ نکاح) is a legal and social contract between two individuals. Islam is totally opposed to monasticism and celibacy. Marriage is an act of Islamand is strongly recommended; the age of marriage being whenever the individuals feel ready, financially and emotionally. Polygyny is permitted in Islam under some conditions, but polyandry is forbidden.Islamic toilet etiquette
Islamic toilet etiquette is a set of personal hygiene rules in Islam followed when going to the toilet. This code of Muslim hygienical jurisprudence is known as Qadaa' al-Haajah.
The only issue that the Qur'an mentions is the one of washing one's hands (verse 5:6). Issues of chirality (bodily symmetry), such as whether one uses the left or right hand, and which foot is used to step into or out of toilet areas, are derived from hadith sources.Ja'fari jurisprudence
Jaʿfari jurisprudence (Persian: فقه جعفری; also spelled Jafarite), Jaʿfari school or Jaʿfari fiqh[note A], is the school of jurisprudence (fiqh) in Twelver Shia Islam, named after the sixth Imam, Ja'far al-Sadiq. In Iran, Ja'fari jurisprudence is enshrined in the constitution.It differs from the predominant madhhabs of Sunni jurisprudence in its reliance on ijtihad, as well as on matters of inheritance, religious taxes, commerce, personal status, and the allowing of temporary marriage or mutʿa. Since 1959, Jaʿfari jurisprudence has been afforded the status of “fifth school” along with the four Sunni schools by Azhar University. In addition, it is one of the eight recognized madhhabs listed in the Amman Message of 2004 by the Jordanian monarch, and since endorsed by Sadiq al-Mahdi, former Prime Minister of Sudan.Juris Doctor
The Juris Doctor degree (J.D. or JD), also known as the Doctor of Jurisprudence degree (J.D., JD, D.Jur. or DJur) and sometimes erroneously rendered as "Juris Doctorate," is a graduate-entry professional degree in law and one of several Doctor of Law degrees. The Juris Doctor is earned by completing law school in Australia, Canada, the United States, and some other common law countries. It has the academic standing of a professional doctorate (in contrast to a research doctorate) in the United States, a master's degree in Australia, and a second-entry, baccalaureate degree in Canada (in all three jurisdictions the same as other professional degrees such as M.D. or D.D.S., the degrees required to be a practicing physician or dentist, respectively).The degree was first awarded in the United States in the early 20th century and was created as a modern version of the old European doctor of law degree (such as the Dottore in Giurisprudenza in Italy and the Juris Utriusque Doctor in Germany and central Europe). Originating from the 19th-century Harvard movement for the scientific study of law, it is a degree that in most common law jurisdictions is the primary professional preparation for lawyers. It traditionally involves a three-year program, although some U.S. law schools have shortened the program to two years, like other post-baccalaureate professional degreees.To be fully authorized to practice law in the courts of a given state in the United States, the majority of individuals holding a J.D. degree must pass a bar examination. The state of Wisconsin, however, permits the graduates of its two law schools to practice law in that state, and in its state courts, without having to take its bar exam—a practice called "diploma privilege"—provided they complete the courses needed to satisfy the diploma privilege requirements. In the United States, passing an additional bar exam is not required of lawyers authorized to practice in at least one state to practice in the national courts of the United States, courts commonly known as "federal courts". Lawyers must, however, be admitted to the bar of the federal court before they are authorized to practice in that court. Admission to the bar of a federal district court includes admission to the bar of the related bankruptcy court.Madhhab
A madhhab (Arabic: مذهب maḏhab, IPA: [ˈmaðhab], "way to act"; pl. مذاهب maḏāhib, [maˈðaːhɪb]) is a school of thought within fiqh (Islamic jurisprudence).
The major Sunni madhhabs are Hanafi, Maliki, Shafi'i and Hanbali. They emerged in the ninth and tenth centuries CE and by the twelfth century almost all jurists aligned themselves with a particular madhhab. These four schools recognize each other's validity and they have interacted in legal debate over the centuries. Rulings of these schools are followed across the Muslim world without exclusive regional restrictions, but they each came to dominate in different parts of the world. For example, the Maliki school is predominant in North and West Africa; the Hanafi school in South and Central Asia; the Shafi'i school in East Africa and Southeast Asia; and the Hanbali school in North and Central Arabia. The first centuries of Islam also witnessed a number of short-lived Sunni madhhabs. The Zahiri school, which is commonly identified as extinct, continues to exert influence over legal thought. The development of Shia legal schools occurred along the lines of theological differences and resulted in formation of the Twelver, Zaidi and Ismaili madhhabs, whose differences from Sunni legal schools are roughly of the same order as the differences among Sunni schools. The Ibadi legal school, distinct from Sunni and Shia madhhabs, is predominant in Oman.The transformations of Islamic legal institutions in the modern era have had profound implications for the madhhab system. With the spread of codified state laws in the Muslim world, the influence of the madhhabs beyond personal ritual practice depends on the status accorded to them within the national legal system. State law codification commonly drew on rulings from multiple madhhabs, and legal professionals trained in modern law schools have largely replaced traditional ulema as interpreters of the resulting laws. In the 20th century many Islamic jurists began to assert their intellectual independence from traditional madhhabs.The Amman Message, which was endorsed in 2005 by prominent Islamic scholars around the world, recognized four Sunni schools (Hanafi, Maliki, Shafi'i, Hanbali), two Shia schools (Ja'fari, Zaidi), the Ibadi school and the Zahiri school.Maliki
The Mālikī (Arabic: مالكي) school is one of the four major madhhab of Islamic jurisprudence within Sunni Islam. It was founded by Malik ibn Anas in the 8th century. The Maliki school of jurisprudence relies on the Quran and hadiths as primary sources. Unlike other Islamic fiqhs, Maliki fiqh also considers the consensus of the people of Medina to be a valid source of Islamic law.The Maliki madhhab is one of the largest group of Sunni Muslims, comparable to the Shafi`i madhhab in adherents, but smaller than the Hanafi madhhab. Sharia based on Maliki doctrine is predominantly found in North Africa (excluding northern and eastern Egypt), West Africa, Chad, Sudan, Kuwait, Bahrain, the Emirate of Dubai (UAE), and in northeastern parts of Saudi Arabia.In the medieval era, the Maliki school was also found in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily. A major historical center of Maliki teaching, from the 9th to 11th centuries, was in the Mosque of Uqba of Tunisia.Medical jurisprudence
Medical jurisprudence or legal medicine is the branch of science and medicine involving the study and application of scientific and medical knowledge to legal problems, such as inquests, and in the field of law. As modern medicine is a legal creation, regulated by the state, and medicolegal cases involving death, rape, paternity, etc. require a medical practitioner to produce evidence and appear as an expert witness, these two fields have traditionally been interdependent.Forensic medicine, which includes forensic pathology, is a narrower field that involves collection and analysis of medical evidence (samples) to produce objective information for use in the legal system.Philosophy of law
Philosophy of law is a branch of philosophy and jurisprudence that seeks to answer basic questions about law and legal systems, such as "What is law?", "What are the criteria for legal validity?", "What is the relationship between law and morality?", and many other similar questions.Principles of Islamic jurisprudence
Principles of Islamic jurisprudence, also known as Uṣūl al-fiqh (Arabic: أصول الفقه, lit. roots of fiqh), are traditional methodological principles used in Islamic jurisprudence (fiqh) for deriving the rulings of Islamic law (sharia).
Traditional theory of Islamic jurisprudence elaborates how the scriptures (Quran and hadith) should be interpreted from the standpoint of linguistics and rhetoric. It also comprises methods for establishing authenticity of hadith and for determining when the legal force of a scriptural passage is abrogated by a passage revealed at a later date. In addition to the Quran and hadith, the classical theory of Sunni jurisprudence recognizes two other sources of law: juristic consensus (ijmaʿ) and analogical reasoning (qiyas). It therefore studies the application and limits of analogy, as well as the value and limits of consensus, along with other methodological principles, some of which are accepted by only certain legal schools (madhhabs). This interpretive apparatus is brought together under the rubric of ijtihad, which refers to a jurist's exertion in an attempt to arrive at a ruling on a particular question. The theory of Twelver Shia jurisprudence parallels that of Sunni schools with some differences, such as recognition of reason (ʿaql) as a source of law in place of qiyas and extension of the notions of hadith and sunnah to include traditions of the imams.Shafi‘i
The Shafi‘i (Arabic: شافعي Shāfiʿī, alternative spelling Shafei) madhhab is one of the four schools of Islamic law in Sunni Islam. It was founded by the Arab scholar Al-Shafi‘i, a pupil of Malik, in the early 9th century. The other three schools of Sunni jurisprudence are Hanafi, Maliki and Hanbali.The Shafi school predominantly relies on the Quran and the Hadiths for Sharia. Where passages of Quran and Hadiths are ambiguous, the school first seeks religious law guidance from Ijma – the consensus of Sahabah (Muhammad's companions). If there was no consensus, the Shafi‘i school relies on individual opinion (Ijtihad) of the companions of Muhammad, followed by analogy.The Shafi‘i school was, in the early history of Islam, the most followed ideology for Sharia. However, with the Ottoman Empire's expansion and patronage, it was replaced with the Hanafi school in many parts of the Muslim world. One of the many differences between the Shafi‘i and Hanafi schools is that the Shafi‘i school does not consider Istihsan (judicial discretion by suitably qualified legal scholars) as an acceptable source of religious law because it amounts to "human legislation" of Islamic law.The Shafi‘i school is now predominantly found in Somalia, Eritrea, Ethiopia, Djibouti, eastern Egypt, the Swahili coast, Hijaz, Yemen, Kurdish regions of the Middle East, Dagestan, Chechen and Ingush regions of the Caucasus, Indonesia, Malaysia, Sri Lanka, Maldives, Kerala and some other coastal regions in India, Singapore, Myanmar, Thailand, Brunei, and the Philippines.Sharia
Sharia (, Arabic: شريعة [ʃaˈriːʕa]), Islamic law or Sharia law is a religious law forming part of the Islamic tradition. It is derived from the religious precepts of Islam, particularly the Quran and the Hadith. In Arabic, the term sharīʿah refers to God's immutable divine law and is contrasted with fiqh, which refers to its human scholarly interpretations. The manner of its application in modern times has been a subject of dispute between Muslim fundamentalists and modernists.Traditional theory of Islamic jurisprudence recognizes four sources of sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning), and ijma (juridical consensus). Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi'i, Hanbali and Jafari—developed methodologies for deriving sharia rulings from scriptural sources using a process known as ijtihad. Traditional jurisprudence (fiqh) distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics. Its rulings are concerned with ethical standards as much as with legal norms, assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited. Thus, some areas of sharia overlap with the Western notion of law while others correspond more broadly to living life in accordance with God’s will.Classical jurisprudence was elaborated by private religious scholars, largely through legal opinions (fatwas) issued by qualified jurists (muftis). It was historically applied in sharia courts by ruler-appointed judges, who dealt mainly with civil disputes and community affairs. Sultanic courts, the police and market inspectors administered criminal justice, which was influenced by sharia but not bound by its rules. Non-Muslim (dhimmi) communities had legal autonomy to adjudicate their internal affairs. Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, and fiqh was complemented by various economic, criminal and administrative laws issued by Muslim rulers. The Ottoman civil code of 1869–1876 was the first partial attempt to codify sharia.In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models. Judicial procedures and legal education were likewise brought in line with European practice. While the constitutions of most Muslim-majority states contain references to sharia, its classical rules were largely retained only in personal status (family) laws. Legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia, including hudud corporal punishments, such as stoning. In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of sharia advocated by progressive reformers. Some Muslim-minority countries recognize the use of sharia-based family laws for their Muslim populations. Sharia also continues to influence other aspects of private and public life.
The role of sharia has become a contested topic around the world. Introduction of sharia-based laws sparked intercommunal violence in Nigeria and may have contributed to the breakup of Sudan. Some jurisdictions in North America have passed bans on use of sharia, framed as restrictions on religious or foreign laws. There are ongoing debates as to whether sharia is compatible with democracy, human rights, freedom of thought, women's rights, LGBT rights, and banking.
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