Analytical Jurisprudence
An Analytical Jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to understand the nature of law.
- AKA: Legal Analytical Philosophy, Analytical Theory of Law.
- Context:
- It can typically examine Law using analytical philosophy methods and conceptual analysis.
- It can typically separate Legal Questions about what law is from normative questions about what law ought to be.
- It can typically maintain Neutral Viewpoint when analyzing legal systems and legal concepts.
- It can typically investigate Fundamental Legal Questions such as "What are laws?", "What is the relationship between law and power?", and "What is the relationship between law and morality?".
- It can typically employ Descriptive Language rather than prescriptive terminology when referring to aspects of legal systems.
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- It can often emphasize Conceptual Clarity in legal discourse and legal reasoning.
- It can often reject Fusion Approaches that blend descriptive statements with normative conclusions.
- It can often provide Conceptual Frameworks for understanding legal concepts and legal institutions.
- It can often distinguish between Analytical Questions about the nature of law and empirical questions about how legal systems actually function.
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- It can range from being a Purely Descriptive Analytical Jurisprudence to being a Normatively Engaged Analytical Jurisprudence, depending on its stance on value-neutrality.
- It can range from being a Narrowly Focused Analytical Jurisprudence concerned with conceptual questions to being a Broadly Scoped Analytical Jurisprudence engaging with social theory and political philosophy, depending on its methodological approach.
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- It can influence Legal Education through conceptual clarification of fundamental legal concepts.
- It can inform Judicial Decision-Making by providing analytical frameworks for legal reasoning.
- It can contribute to Legal Reform by clarifying the conceptual foundations of existing law.
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- Examples:
- Analytical Jurisprudence Schools, such as:
- Legal Positivist Analytical Jurisprudences, such as:
- Hartian Analytical Jurisprudence developed by H. L. A. Hart emphasizing rule-based understanding of law.
- Austinian Analytical Jurisprudence based on command theory of law.
- Kelsenian Analytical Jurisprudence focusing on pure theory of law.
- Contemporary Analytical Jurisprudences, such as:
- Legal Positivist Analytical Jurisprudences, such as:
- Analytical Jurisprudence Methods, such as:
- Analytical Jurisprudence Works, such as:
- The Concept of Law by H. L. A. Hart (1961) establishing modern analytical jurisprudence framework.
- An Introduction to the Principles of Morals and Legislation by Jeremy Bentham representing early analytical jurisprudence.
- Pure Theory of Law by Hans Kelsen developing systematic analytical approach to legal theory.
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- Analytical Jurisprudence Schools, such as:
- Counter-Examples:
- Legal Formalism, which incorrectly assumes that legal reasoning can be modeled as a mechanical process rather than requiring analytical clarification.
- Natural Law Theory, which fuses what law is with what law ought to be, contrary to the analytical separation maintained in analytical jurisprudence.
- Legal Realism, which emphasizes empirical observation of judicial behavior over conceptual analysis of legal concepts.
- Critical Legal Studies, which rejects the neutral viewpoint that characterizes analytical jurisprudence in favor of politically engaged critique.
- See: H. L. A. Hart, Legal Positivism, Analytical Philosophy, Legal Formalism, Natural Law.
References
2023
- (Wikipedia, 2023) ⇒ https://en.wikipedia.org/wiki/Analytical_jurisprudence Retrieved:2023-7-25.
- Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, [1] though its history goes back at least to Jeremy Bentham.
Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal reasoning is or can be modelled as a mechanical, algorithmic process). Indeed, it was the analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a theory of law.
Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when referring to the 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 famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on 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 to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
- Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern analytical philosophy to try to understand its nature. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A. Hart was probably the most influential writer in the modern school of analytical jurisprudence, [1] though its history goes back at least to Jeremy Bentham.