Analytical jurisprudence is a philosophical approach to law that draws on the resources of modern
analytical philosophy to try to understand the nature of law. It is a branch of
jurisprudence, also called the philosophy of law. Since the boundaries of analytical philosophy are somewhat vague, it is difficult to say how far it extends.
H. L. A. Hart is the most influential writer in the history of modern analytical jurisprudence,
though the analytical approach to jurisprudence goes back at least to
.
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 aspects of legal systems. It rejects
natural law
Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...
's fusing of what law is and what it ought to be.
David Hume
David Hume (; born David Home; – 25 August 1776) was a Scottish philosopher, historian, economist, and essayist who was best known for his highly influential system of empiricism, philosophical scepticism and metaphysical naturalism. Beg ...
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.
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
Morality () is the categorization of intentions, Decision-making, decisions and Social actions, actions into those that are ''proper'', or ''right'', and those that are ''improper'', or ''wrong''. Morality can be a body of standards or principle ...
?"
See also
*
Rule of law
The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
*
Legality
*
Rule according to higher law
The rule according to a higher law is a philosophical concept that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, ''the rule accordin ...
References
{{DEFAULTSORT:Analytical Jurisprudence
Theories of law
Analytic philosophy
Jurisprudence