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THE PHILOSPHICAL SCHOOL OF LAW

1.”philosphical jurisprudence is the commom ground of moral and legal

philosophy , of ethics and jurisprudence”.

2.the philosophical school interested primarily in the “development of the idea


of justice as an ethical and moral phenomenon and its Manifestation in the
principals applied by the courts”

3.this school concerns itself cheifly with the relation of law to certain ideals
which law is meant to achieve . it investigates the purpose of law and the
measure and manner in which that purpose is fullfilled.

4.the philosophical jurist regards neither as the arbitary command of the ruler
nor the creation of historical necessity . to him , law is the product of
humanreason and its purpose is to elevate and enoble human personality.

MAIN FEATURES :

1.The concept of justice has a philosphical or a ethical content and law and
justice are closely inter related concepts .

2. the ethical school of jurisprudence concerns itself with the manner in which
the law fulfills its purpose of attainmentof justice.

3.the study of difference between the sphere of law and justice

4.ethical significance of legal conceptions .

JURISPRUDENCE AND ETHICS :

1. The perfection of human personality as the ultimate objective of law. As


the ultimate objectivesof jurisprudence and ethics are coincident. The
philosphical jurists seek differentiate between the subject matter of two
sister sciences.
2. According to kant,”ethics concerns itself with the laws of free action
insofar as we cannot be coerced to it , but the strict the law concerns itself
with free action insofar as we can be compelled to it”. Ethics is the
science of virtue and law belongs to te science of right.
3. the proximate object of jurisprudence is to secure liberty to the indidual
and its ultimate object is the same as that of ethics which is the attainment
of human perfection . liberty is an essential pre requistie to the perfection
of human personality
4. philosphical jurisprudence is more ethical than law. Its theories mostly go
beyond their scope.

OBJECTIVES:

1.founder of international law also regarded as father of philosophical


jurisprudence . in his book “the law of war and peace “, grotius showed that
a system of natural law may be derived from the social nature of man.

2.the view of grotius was that the agreement of mankind concerning certain
rules of conduct is an indication that those rules originated in right reason.

3.he defined natural law as”the dictate reason which points out that an act ,
according as it is or is not in confirmity with rational nature , has in it a
quality of moral baseness or moral necessity”

IMMANUEL KANT:

1.kant gave modern thinking a new basis by a systematic enquiry into the
functions of human reason

2.the “coperian turn” which he gave to philosophy was to replace the


psychological and emprical method by the critical methodn by an attempt to
the base the rational character of life and the world not on the observation of
facts and matter but on human consiousness itself.
3.in his “critique of pure reason “ kant set himself the taste of analysing the
world as it appears to human consiousness . he drew a fundamental
distinction between form and matter.

4.kant then inquires whether there are any general principles which can he
laid down as a basics of man’s voilation and thus of all ethical action . such
basics cannot be gained from experience . it must be given a priori , but not
logical , necessity . the substance of this ethical postulate is the categorical
imperative of kant.

5.kant’s categorical imperative says,”act in such a way that the maxim of


your action could be the maxim of a general action”. This imperative is the
basis of kant’s moral as well as legal philosophy.

6.kant’s legal philosophy is entirely a theory of what law ought to be. His is
the legal philosophy of a philosopher and not of a law.

7.kant deduces his definition of law -“law is the aggrogate of the conditions
under which the arbitary will of one individuals may be combined with that
of another under a general inclusive law of freedom.

8.compulsion is essential to law and aright is characterised bythe power to


compel . kant distinguished between legal duties and legal rights. He also
distinguished between natural rights and acquired rights.

9.kant considered political power as considered by the need of rendering


each man’s right effective , while limiting at the same time through legal
right of others.

10.the function of the state is essentially that of protector and guardian of the
law . the state is not to undertake comprahensive function in order to ensure
the maximum liberty of the indidual.
11.the aim of kant was a universal world state.however he was doubtful of
the pratical possiblity of a “state of nations”. He saw no possiblity of
international law without an internatonal authority superior to the states.

FICHTE:

1.the legal philosophy of fichte id deduced from the self consiousnessof the
reasonable being . no reasonable being can think himself without ascribic
free activity to activity to himself . freedom is of necessity mutual.

2.on the relation of law and morality , the view of ficthe is that where is a
moral duty to respect the liberty of others absolutely a legal duty to do so is
dependent on reciprocacity. The law must realise justice and the state must
be ‘ rechstaat’. His social contract is divided into a property contract and a
protection contract .ttrough the property one becomes a citizen.

3.therelation between individuals and state is defined in 3 principles:

· through fulfillment of civic duties , the individuals become a member


of state.
· The law limits and assures the right of the individuals
· Outside the sphere of civic duties, the individual is free and only
responsible to himself .he is a man , not a citizen.
· According to fitche, the rights to be protected by the state are the right
to live and right to work.there are 3 main branches of public work
viz.., natural production , trade and manufacture . war is based on
force not on law.

HEGEL:

1.hegel was the most influential thinker of philosophical school. His system is a
monistic one. The idea unfolds from the simple to the complex by means of a
dialectical process.
2. there can be no dualism of any kind at any phase of reality is based on reason
. to quoter hegel –“what is reasonable is real and what is real is reasonable”

3.both state and law are the products of evolution . legal institutions are within
the sphere of legal , ethical and political instutions . they are the expressions of
free human mind which wishes to embody itself in institutions.

4.the state is the synthesis of family and soceity . it is unity of universal


principles of family and the particular principle of civil soceity.

5.according to hegel , the constitution of the state embodies the individuals


freedom and interest as much as the universal. The state has respects : the
universal, the particular and the individuals . hegel doesn’t approve the doctrine
of seperation of powers because he thinks different powers checking on each
other will lead to the dissolution of state.

6.the great contribution of hegel to philosophical jurisprudence is the


development of idea of evolution . according to him, the various manifestations
of social life , including law , are the product of an evolutionary , dynamic
prrocess. This process takes on a dialectal from, revealing itself in thesis , anti
thesis and synthesis.

7.in philosophy of right and law , hegel demonstrates that behind the colorful
paegent of history is the march of spirit of freedom . legal history is the march
of freedom is civil relations . the purpose is the raising of humanity to
perfection.

ROHLER:

1. He was under the influences of hegelians . he defined law as ,


“the standard of conduct which in consequence of the inner impulse that
urges man towards a reasonable form of life,emantes from the whole and
is forced upon the individuals “.
2.in his book “philosophy of law” kohler postulates the promotion and
vitalising of culture as the end achieved through the instrumentality of law .
by culture he means the totality of achievements of humanity.

3.there isno eternal law or universal body of legal institutions , suitable, for
all civilisations what is good one stage of culture may be ruinous to another.

4.dean pound writes that kohler’s “formation of the jural postulates of the
time and place is one of the most important achievements of recent legal
science.”

STAMMLER :

Stammler is the neo- Kantian and his philosophical position is summed up in


the theory of justice.

2.according to him, “there is not a single rule of law the positive content of
which can be fixed by a priori”.however he emphasises the need for the
development of a theory of just in law in addition to thr