Who Coined the Word Legal Theory

The English word is derived from the Latin iurisprudentia. [6] Iuris is the genitive form of ius for law and prudentia for prudence (also: discretion, foresight, foresight, prudence). It refers to the exercise of good judgment, common sense and prudence, especially when it comes to practical matters. The word first appeared in written English in 1628,[7] at a time when the word prudence meant knowledge or competence in the matter. It is possible that it was entered in English by French jurisprudence published previously. Kelsen`s scientific publications span nearly seven decades, during which he has published dozens of books and hundreds of articles. Only about a third of this vast literature has been translated into English. Kelsen`s two most important books on pure legal theory are the first edition of his Pure Legal Doctrine, published in 1934 and recently translated (2002). The second edition, published by Kelson in 1960 (translated in 1967), is a considerably expanded version of the first edition.

Moreover, most of the themes of these two books also appear in Kelsen`s General Theory of Law and State. These three works are cited in the text as follows: The idea of pure legal theory was defended by the impressive Austrian jurist and philosopher Hans Kelsen (1881-1973) (see bibliographical note). Kelsen began his long career as a legal theorist in the early 20th century. According to Kelsen, the traditional legal philosophies of the time were hopelessly contaminated by political ideology and moralization on the one hand or by attempts to reduce the right to the natural or social sciences on the other. He found both of these reductionist efforts seriously flawed. Instead, Kelsen proposed a “pure” legal theory that would avoid reductionism. The jurisprudence advocated by Kelsen “is characterized as a `pure` legal theory, because it aims at knowledge oriented solely towards law” and this purity serves as a “basic methodological principle” (PT1, 7). Hart liked Austin`s theory of a ruler, but claimed that Austin`s command theory had failed on several important points. Among the ideas developed in Hart`s book The Concept of Law (1961) are: There are also moral defects that should be incompatible with excellent jurisprudence. The most obvious of these is corruption. Judges should not accept bribes. Although judges are rarely in physical danger, they are more likely to face situations where rendering the legally correct decision could affect their popularity, social status, promotion, or extrajudicial activity.

Therefore, we should not select civilian cowards for judicial functions. Judges are often placed in angry situations. A judge who tends to escape the handful of petty provocations is unlikely to be effective in the courtroom, and so we should not choose the irascible for the office of judge. For American legal realists in the early twentieth century, legal realism sought to describe how judges decide cases. For legal realists like Jerome Frank, judges start with the facts they have and then move on to legal principles. Before legal realism, theories of jurisprudence reversed this method, where judges should start with legal principles and then examine the facts. By formulating the debate “What is law?” in terms of the relationship between social facts, moral facts and legal content, conceptual space, we obtain an accurate mapping of conceptual space. In the rest of this dictionary entry, we`ll look a little less superficially at the three options. Analytical or “clarifying” jurisprudence means adopting a neutral point of view and using descriptive language when dealing with different aspects of legal systems.

It was a philosophical development that rejected the fusion of what law is and what it should be by natural law. [4] David Hume argued in A Treatise of Human Nature[29] that people inevitably move from describing what the world is to asserting that we should therefore follow a certain course of action. But out of pure logic, we can`t conclude that we should do something just because something is. The analysis and clarification of how the world is must therefore be treated as a strictly normative and evaluative question about what to do. In the English-speaking world, the most influential legal positivist of the twentieth century was H. L. A. Hart, professor of law at Oxford University. Hart argued that the law should be understood as a system of social rules.

In The Concept of Law, Hart rejected Kelsen`s view that sanctions were essential to the law and that a normative social phenomenon such as law could not be based on non-normative social facts. So here is what has emerged so far: the concept of normativity, the sense in which normative contents are linked to reasons for acting, is the same in all normative domains. To consider something as normative is to consider it justified, as a justified requirement for a practical consideration. The difference, however, lies in the different points of view. Each basic standard determines a certain point of view, so to speak. It turns out that normativity (contra Kant) always consists of conditional imperatives: if and only if one supports a certain normative point of view that is determined by its fundamental norm, then the norms that flow from it are, so to speak, rationalizing. This allows Kelsen to maintain the same understanding of the nature of normativity as the conception of natural law, namely normativity as reasons for acting, without having to merge the normativity of morality with that of law. In other words, the difference between legal normativity and, say, moral normativity is not a difference in normativity (i.e., on the nature of normativity itself), but only in the relevant point of view, which is determined by its various basic norms. What makes legal normativity unique is the uniqueness of its point of view, the legal point of view, so to speak.

The Thin Theory of Judicial Virtue – The next step in our study of judicial virtues is simple. If you accept the thin theory of judicial vice, you should also accept a thin theory of legal virtues. What for? The main reason is conceptual: virtue is required for the absence of vice.