Summary
An offshoot of History School in Germany. Friedman calls it “Philosophical Historism”. It sought for a universal doctrine of history of evolution of the whole world (whereas the historical theory was limited only to a particular race) and its laws from some universal and metaphysical source. This school is primarily concerned with the relation of law to certain ideal. The aim of the school is to go into the purpose of law. The philosophical jurists regarded law neither as a command nor as something emanating from historical necessity, but as a product of reason. Thus it is essentially concerned with the relation between law and justice, the distinction between law and morality and their contribution to the ends of justice, the maintenance of justice in a society and fundamental legal concepts and principles which have ethical significance.
Relation between ethics and jurisprudence: The aim and purpose of this school and the science of ethics is basically the same, namely perfection of human personality.
Ethics does not rely upon compulsion: Immanuel Kant (German) in his “lectures on ethics” clearly differentiated between law and ethics. According to Kant ethics concerns itself with the laws of free action in so far as we cannot be coerced to it but the strict law concerns itself with free action in so far as we can be compelled to it.”
“Woe to political legislator” said Kant who aims in his constitution to realize ethical purposes by force, to produce virtuous institution by legal compulsion.
Ethics as a science of human conduct lays down rules relating to ideal human conduct and the elevation of man’s inner life based upon higher and nobler values of life. Laws on the other hand, are meant for regulating man’s external conduct. According to Kant, in his book “Philosophy of Law” ethics aims at emancipation of inner life and it is possible to have a single universal principle of Law.
- Common ground of law and ethics: Salmond: Philosophical jurisprudence is the common ground of moral and legal philosophy of ethics and jurisprudence.
The philosophical school concentrates its attention on the purpose of law and the need for coercive regulation of human conduct by legal rules. Law is the means by which the individual requirement is subordinated to that of the society at large. Law achieves this harmony by determining the sphere of individual liberty in the pursuit of individual welfare so as to confine that liberty within the limits which are consistent with general welfare of mankind.
The immediate object of jurisprudence is to secure liberty to the individual and its ultimate object is akin to that of ethics i.e. human perfection.
- Hegel: The other leading exponent of the philosophical school was Hegel. Apart from
building on the Kantian doctrine of freedom of will as being the end of law, Hegel contributed significantly to philosophical jurisprudence by his development of idea of evolution. Hegel’s View, law as well as the manifestation of social life is result of an evolutionary process which takes on dialectical form. The human spirit sets out a thesis which becomes the leading idea of a particular period in history. In due course this thesis is opposed and an antithesis develops. From the resultant clash of idea a synthesis evolves which taking in elements of both, reconciles them on a higher plane. This process repeats in history itself. Hegel also showed that the idea of freedom pervaded the entire, course of history.
Hegel talks of
(1) ‘individual subjective non-moral will’ which gets purified and becomes
(2) ‘moral collective will’ (objective).
“State and law both are evolutionary products of reason.”
- Theory of rational self-realisation and freedom of man.
- Law and morals are mixed together.
- Jurisprudence is more concerned with the ideal future of law. It was kind of revival of natural law and therefore it can be said to be a link between old and new thought.
- History and Philosophical schools acted and reacted upon each other and gave birth to new theories.
- Historical school vs. Philosophical school – According to Historical School, there
will be no universality of law and according to Philosophical School, there will be universality of law.
Hegel gave the theory of punishment also.
