Legal Theory Systems

Download Outlines of Lectures on Jurisprudence by Roscoe Pound PDF

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By Roscoe Pound

What's JURISPRUDENCE?

A built process of legislation might be checked out from 4 issues of view:

1. Analytical. — exam of its constitution, subject-matter, and principles with a view to achieve its ideas and theories by means of research.

2. historic. — research of the ancient starting place and improvement of the process and of its associations and doctrines.

three. Philosophical. — research of the philosophical bases of its associations and doctrines.

four. Sociological. — research of the method functionally as a social mechanism and of its associations and doctrines with admire to the social ends to be served.

utilized to the examine of felony structures normally, those tools are referred to as the "methods of jurisprudence." The propriety of naming a comparative strategy as a style of jurisprudence will be doubted. The analytical, ancient, and philosophical equipment, as tools of jurisprudence, needs to be comparative. whilst those equipment are utilized within the research of any specific method, the mode of remedy will be dogmatic, the sensible exposition of its ideas and principles, or critical, attention of what its rules and ideas must be within the mild of research, heritage, philosophy, and the social ends to be served. in this part, sociological jurists insist that account needs to be taken of the entire social sciences.

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Extra resources for Outlines of Lectures on Jurisprudence

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Therefore, the ‘lawyer’s perspective’ on law, although valuable for some purposes, is arbitrary as the ultimate viewpoint on law if not for the simple fact that law is a social institution. With regard to the ‘institutional perspective’ it is important to make a further sub-division between legal philosophers. There is (a) the ‘engaged’ institutional perspective and (b) the detached or ‘disengaged’ perspective. The ‘engaged’ institutional perspective is the viewpoint of the legal theorist who seeks to give an account of law from the wide institutional perspective, placing law in its wider political and social context, but who has some sort of commitment to, or endorsement of, a particular legal system or type of legal system.

Indb 25 09/12/2010 10:48 26 Q&A Jurisprudence 2011–2012 Duty is an essential aspect of the law of nature, but how ought citizens to react in the presence of a tyranny? Ought they to obey rules which are clearly contrary to the natural law? In an interesting passage in De Officiis (44 BC), Cicero insists that no duties are owed to tyrants. ’ This passage has been cited repeatedly as a justification of the removal of tyrants who seek to destroy the common bonds uniting society. Others have interpreted it as a metaphor by which Cicero seeks to proclaim that no man has a right to rule in a fashion that will destroy the unity of the community without being challenged by first being exposed as a destroyer of the social harmony demanded by Providence.

To question his judgment, to voice disagreement, is to revert to the anarchy which characterised the undesirable state of nature. This is a part of the price to be paid for the peace which is intended to flow from the surrender of one’s individual will. Where a sovereign makes ‘bad law’ or performs acts which seem contrary to the general interests of the community, it is, says Hobbes, a matter between him and his God, not between him and the citizens. ) But where it is quite clear that the sovereign has lost the capacity to maintain the peace and protect the safety of the citizens, or where he has acted in an obvious attempt to destroy the individual’s right of self-preservation, citizens may be absolved from their duty of loyalty.

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