Philosophy of law

Definitions :

Philosophy: the study of fundamental problems such as reality, existence, knowledge, evaluators, reason, language.... It is distinguished by its critical approach and reliance on rational argument. Academic phi is divided into branches: metaphysics, ethics, political phi, phi of the sciences, art, language, law-> jurisprudence.

Theory: a contemplative, rational type of abstract thought about the results of what is obtained. In order to explain the explanations given, observations and hypotheses to support or contest the theory. Theory consists of looking, contemplating, considering a point of view -> observing the law.

green glasses : HEINRICH VON KLEIST

If everyone saw the world through green glasses, they would be forced to judge that everything they saw wasgreen, and could never be sure whether their eye saw things as they really are, or did not add something of their own to what they saw ⇒ Heinrich von Kleist (1777-1811), German poet, in a letter to his sister Ulrike in 1801

metaphor: we can't be sure that something we see is really reel or that it's not objective. our subjectivity is a barrier between us and the world ;

⇒ offset from the core study of law, made to develop our minds, our critical thoughts, avoid tunnel vision.

Il craint en effet de s’enliser dans la routine du tribunal et de devenir, à l’instar de la plupart de ses collègues, ‘une machine à droit’ incapable d’élaborer une réflexion de portée générale ⇒ Alexis de Tocqueville: fear of becoming a legal machine

the best way to study philosophy is to approach it as one would approach a detective story: follow every trail, clue, and implication, in order to discover who is a murderer and who is a hero. The criterion of detection is two questions: why? And how? ⇒ Ayn Rand: objectivism 51905-1982) ⇒ see quotation, detective novel approach. Two questions°: Why/ How

Jurisprudence :

not the French sense= jurisprudence/legal presence

The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law." In the United States, jurisprudence commonly means the philosophy of law

many aspects:

⇒ attempts to analyze, explain, classify and critique entire bodies of law

⇒ compares law with other subjects (literature, social sciences....)

⇒ reveals the historical morality underlying legal ideas

⇒ abstraction of ideas

raises questions:

⇒ what is law for?

⇒ what purpose does it serve?

⇒ how can law be valued?

⇒ improving the law

⇒ essential?

⇒ who should make the law?

⇒ where is it?

⇒ must we obey the law?

⇒ who does it serve?

It's not a question of applying the law - most practicing lawyers don't know it, there's no need to.

It's about thinking about the law

Jurisprudence as heritage:

Lots of material, spans several centuries, active part of academia today, multidisciplinary.

Thinkers

Plato and Aristotle

Thomas Hobbes

Kant and Bentham (British philosopher, social reformer, founder of modern utilitarianism, see video)

Marx, Weber

Kelsen

Michel Foucault, Habermas

Utilitarianism (see vid)

Utilitarianism - Wikipedia

Ethnocentrism (see video)

A huge dominance in academia centered on the Anglo-American view of law, little reference to other jurisprudence. This gives us only a small part of legal culture ⇒ ethnocentrism: spread by a Polish thinker in the 19th century. We see the world through our own culture. does not imply superiority, just a finer subjective point of view that colors the perspective. related to green glasses.

def: (see ref file): a view of things in which one's own group is the center of everything, and all others are evaluated and rated in relation to it.

Although ethnocentrism is different from xenophobia, it can be linked to national belonging, vanity and suspicion of people from outside one's own culture.

centrality// superiority

when we judge other countries (negatively) by comparing them to our own.

cultural relativism⇒ knowing that cultures are subjective and that everyone has their own. what is considered normal in our country may be bizarre in others, and we simply have to put ourselves in other people's shoes.

things can be justified by the context and culture of the country.

⇒ jurisprudence has been largely euthnocentric

Franz Boas and Bronislaw Malinowski: two anthropoligists who argued that ethnocentrism had to be overcome.

Jurisprudence is not a science if it is limited to a single culture, but rather an idiology. To become a science, it must open up to other traditions and thoughts and become global and comparative; it must include theories such as cultural relativism. It should be balanced and comparative, which is difficult because academia is rooted in Western culture.

Jurisprudence as an activity

Think critically about the law. Thinking about what to believe and what to challenge.

analyzing existing hypotheses

Tell me and I forget; teach me and I may remember; involve me and I will learn ⇒ Benjamin franklin (falsely credited)

the mind is not a vessel that needs filling, but wood that needs igniting – no more – then it motivates one towards originality and instils the desire for truth ⇒ plutarch: (see quote) work on developing critical thinking

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