Jurisprudence History
Historical Background
• jurisprudence is the philosophy of law and explains what the defining or essential
features of law and legal systems are
Schools of Jurisprudence
• natural law
• law can't be separated from morality
• classical natural law (Aquinas) vs modern natural law (Finnis)
• positivism
• law is separate from morality
• anything that is enacted by the sovereign is the proper law
• positivism is CSS = command of the sovereign backed by sanction
• classical positivists = Austin
• modern positivists = Hart and Kelsen
• for Hart rules = primary rules vs secondary rules (secondary are
CAR change, adjudication, recognition)
• Kelsen speaks of grundnorm (the beginning of all norms which all
other norms gain validity)
• formalism
• law is a science
• can be reduced to rules and principles
• Dworkin = major player for this school
• different from positivism because it only looks at the rules alone
• American legal realism
• judges are only human and decide law based on factors such as their
politics, economic status, psychology, even what they had for breakfast
• Holmes, Llewellyn, & Frank
KMB 1
Historical Background
• jurisprudence is the philosophy of law and explains what the defining or essential
features of law and legal systems are
Schools of Jurisprudence
• natural law
• law can't be separated from morality
• classical natural law (Aquinas) vs modern natural law (Finnis)
• positivism
• law is separate from morality
• anything that is enacted by the sovereign is the proper law
• positivism is CSS = command of the sovereign backed by sanction
• classical positivists = Austin
• modern positivists = Hart and Kelsen
• for Hart rules = primary rules vs secondary rules (secondary are
CAR change, adjudication, recognition)
• Kelsen speaks of grundnorm (the beginning of all norms which all
other norms gain validity)
• formalism
• law is a science
• can be reduced to rules and principles
• Dworkin = major player for this school
• different from positivism because it only looks at the rules alone
• American legal realism
• judges are only human and decide law based on factors such as their
politics, economic status, psychology, even what they had for breakfast
• Holmes, Llewellyn, & Frank
KMB 1
