Legal Theory

Legal theory

History of law

The history of law is closely connected to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, contained a civil code that was probably broken into twelve books. It was based on the concept of Ma'at, characterised by tradition, rhetorical speech, social equality and impartiality.[80] By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if ... then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, German, and French.[81]

The Old Testament is likely the oldest surviving body of law still relevant to modern legal systems. It dates back to 1280 BC, and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, Ancient Athens, and from about 8th century BC was the first society to be based on broad inclusion of its citizenry; excluding women and the slave class. However, Athens had no legal science, and no word for "law" as an abstract concept.[82] Yet Ancient Greek law contained major constitutional innovations in the development of democracy.[83]

Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists, and were highly sophisticated.[84] Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations, and underwent major codification during Justinian I.[85] Although it declined in significance during the Dark Ages, Roman law was rediscovered around the 11th century when mediæval legal scholars began to research Roman codes and adapt their concepts. In mediæval England, the King's judges developed a body of precedent, which later became the common law. A Europe-wide Lex Mercatoria was formed so that merchants could trade with common standards of practice; rather than with the many splintered facets of local laws. The Lex Mercatoria, a precursor to modern commercial law, emphasised the freedom of contract and alienability of property.[86] As nationalism grew in the 18th and 19th centuries, Lex Mercatoria was incorporated into countries' local law under new civil codes. The French Napoleonic Code and the German became the most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging.[87] EU law is codified in treaties, but develops through the precedent laid down by the European Court of Justice.

The Constitution of India is the longest written constitution for a country, containing 444 articles, 12 schedules, numerous amendments and 117,369 words.

Islamic law and jurisprudence developed during the Middle Ages.[88] The methodology of legal precedent and reasoning by analogy (Qiyas) used in early Islamic law was similar to that of the later English common law system.[89] This was particularly the case for the Maliki school of Islamic law active in North Africa, Islamic Spain and the Emirate of Sicily. Between the 8th and 11th centuries, Maliki law developed several legal institutions that were parallel with later common law institutions.[90]

Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra, probably compiled around 100 AD (although it contains older material), and the Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance.[91] Manu's central philosophy was tolerance and Pluralism, and was cited across Southeast Asia.[92] This Hindu tradition, along with Islamic law, was supplanted by the common law when India became part of the British Empire.[93] Malaysia, Brunei, Singapore and Hong Kong also adopted the common law. The eastern Asia legal tradition reflects a unique blend of secular and religious influences.[94] Japan was the first country to begin modernising its legal system along western lines, by importing bits of the French, but mostly the German Civil Code.[95] This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Ch'ing dynasty in the form of six private law codes based mainly on the Japanese model of German law.[96] Today Taiwanese law retains the closest affinity to the codifications from that period, because of the split between Chiang Kai-shek's nationalists, who fled there, and Mao Zedong's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law, which essentially inflates administrative law at the expense of private law rights.[97] Due to rapid industrialisation, today China undergoing a process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination.[98] Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organisation.[99]

Philosophy of law

"But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the general will; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills."
Jean-Jacques Rousseau, The Social Contract, II, 6.[100]

The philosophy of law is commonly known as jurisprudence. Normative jurisprudence is essentially political philosophy, and asks "what should law be?", while analytic jurisprudence asks "what is law?". John Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".[101] Natural lawyers on the other side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes.[102]

Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.[103] Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".[104] Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism; that real law is entirely separate from "morality".[105] Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labelled as "moral" or "immoral".[106]

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law.[107] Kelsen believed that although law is separate from morality, it is endowed with "normativity"; meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.[108] Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.[109]

Bentham's utilitarian theories remained dominant in law until the 20th century.

Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law.[110] Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept",[111] that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law.[112] Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.[113]

Economic analysis of law


In the 18th century Adam Smith presented a philosophical foundation for explaining the relationship between law and economics.[114] The discipline arose partly out of a critique of trade unions and U.S. antitrust law. The most influential proponents, such as Richard Posner and Oliver Williamson and the so-called Chicago School of economists and lawyers including Milton Friedman and Gary Becker, are generally advocates of deregulation and privatisation, and are hostile to state regulation or what they see as restrictions on the operation of free markets.[115]
Richard Posner, one of the Chicago School, runs a blog with Bank of Sweden Prize winning economist Gary Becker.[116]

The most prominent economic analyst of law is 1991 Nobel Prize winner Ronald Coase, whose first major article, The Nature of the Firm (1937), argued that the reason for the existence of firms (companies, partnerships, etc.) is the existence of transaction costs.[117] Rational individuals trade through bilateral contracts on open markets until the costs of transactions mean that using corporations to produce things is more cost-effective. His second major article, The Problem of Social Cost (1960), argued that if we lived in a world without transaction costs, people would bargain with one another to create the same allocation of resources, regardless of the way a court might rule in property disputes.[118] Coase used the example of a nuisance case named Sturges v Bridgman, where a noisy sweetmaker and a quiet doctor were neighbours and went to court to see who should have to move.[38] Coase said that regardless of whether the judge ruled that the sweetmaker had to stop using his machinery, or that the doctor had to put up with it, they could strike a mutually beneficial bargain about who moves house that reaches the same outcome of resource distribution. Only the existence of transaction costs may prevent this.[119] So the law ought to pre-empt what would happen, and be guided by the most efficient solution. The idea is that law and regulation are not as important or effective at helping people as lawyers and government planners believe.[120] Coase and others like him wanted a change of approach, to put the burden of proof for positive effects on a government that was intervening in the market, by analysing the costs of action.[121]

Sociology of law


Sociology of law is a diverse field of study that examines the interaction of law with society and overlaps with jurisprudence, economic analysis of law and more specialised subjects such as criminology.[122] The institutions of social construction and legal frameworks are the relevant areas for the discipline's inquiry. At first, legal theorists were suspicious of the discipline. Kelsen attacked one of its founders, Eugen Ehrlich, who sought to make distinct the differences between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.[123]
Max Weber in 1917 – Weber began his career as a lawyer, and is regarded as one of the founders of sociology and sociology of law.

Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.[124] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[122] Another sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[125] Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner in the U.S.[126]