Nature, Custom, and Stipulation in Law and Jurisprudence

Review of Metaphysics 43 (4):751 - 790 (1990)
  Copy   BIBTEX

Abstract

NO THREE CONCEPTS ARE MORE CENTRAL to legal theory than nature, custom, and stipulation; thus the familiar expressions "natural law," "customary law," and stipulated or "positive law." The problem is that conflicting claims are made for natural law, customary law, and positive law. I will argue that to make sense of these conflicting claims we must first make a distinction between law as a species of social order and jurisprudence as the explanation of law. For example, the debate between the advocates of legal positivism and the advocates of natural law reflects a confusion between law and jurisprudence: law as social order is essentially stipulated, but the jurisprudential explanation of law requires the three categories of nature, custom, and stipulation. Thus legal positivists rightly insist that all law is stipulated, but advocates of natural law rightly insist that the explanation of law requires the use of a notion of nature. Conversely, the legal positivists wrongly insist that jurisprudence must be restricted to the consideration of stipulated "norms" or "rules," and the natural law theorists wrongly insist that "nature" can stipulate a code of law. Finally, the historical school's emphasis on "customary law" reflects the same confusion between law and jurisprudence: there is no such thing as "customary law," but custom is an essential category of jurisprudence. Only by clarifying the distinction between law and jurisprudence can we begin to reconcile these three schools of legal theory.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 91,102

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Some thoughts on modern jurisprudence.K. B. Agrawal (ed.) - 1977 - Bikaner: Indian Institute of Comparative Law.
Jurisprudence.David Brooke - 2011 - Routledge. Edited by David Brooke.
Jurisprudence.Roscoe Pound - 1959 - Union, N.J.: Lawbook Exchange.
Jurisprudence, 2009-2010.David Brooke - 2009 - Routledge-Cavendish.
Philosophy of law: an introduction to jurisprudence.Jeffrie G. Murphy - 1990 - Boulder: Westview Press. Edited by Jules L. Coleman.
Essays in jurisprudence and ethics.Frederick Pollock - 1882 - Littleton, Colo.: F.B. Rothman.
Making sense in jurisprudence.Bernard S. Jackson - 1996 - Liverpool: Deborah Charles Publications.
Outlines of historical jurisprudence.Paul Vinogradoff - 1920 - Union, N.J.: Lawbook Exchange.
Jurisprudence.John William Salmond - 1913 - Toronto,: The Carswell company, limited; [etc., etc.]. Edited by Glanville Williams.
Reflections on The concept of law.A. W. Brian Simpson - 2011 - New York: Oxford University Press.

Analytics

Added to PP
2011-05-29

Downloads
44 (#331,749)

6 months
3 (#643,273)

Historical graph of downloads
How can I increase my downloads?

Citations of this work

No citations found.

Add more citations

References found in this work

No references found.

Add more references