Analytical jurisprudence
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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][2][3] 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.[citation needed]
Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive language when referring to aspects of legal systems. It rejects 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 that therefore we ought to engage in 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 from normative and evaluative ought questions.[citation needed]
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?"
See also
[edit]References
[edit]- ^ Bodenheimer, Edgar (1956). Modern Analytical Jurisprudence and the Limits of Its Usefulness, University of Pennsylvania Law Review, vol. 104, pp. 1080-1086.
- ^ Kelsen, Hans (1941). "The Pure Theory of Law and Analytical Jurisprudence". Harvard Law Review. 55 (1): 44–70. doi:10.2307/1334739. ISSN 0017-811X. JSTOR 1334739.
- ^ Pannam, Clifford L. (1964). "Professor Hart and Analytical Jurisprudence". Journal of Legal Education. 16 (4): 379–404. ISSN 0022-2208. JSTOR 42891598.
