Jurisprudence

This page intentionally left blank Jurisprudence Jurisprudence is about the nature of law and justice. It embraces studies and theories from a range of disciplines such as history, sociology, political science, philosophy, psychology and even economics. Why do people obey the law? How does law serve society? What is law’s relation to morality? What is the nature of rights? This book introduces and critically discusses the major traditions of jurisprudence. Writing in a lucid and accessible style, Suri Ratnapala considers a wide range of views, bringing conceptual clarity to the debates at hand. From Plato and Aristotle to the medieval Scholastics, from Enlightenment thinkers to postmodernists and economic analysts of law, this important volume examines the great philosophical debates and gives insight into the central questions concerning law and justice. Suri Ratnapala is Professor of Public Law at the University of Queensland. Jurisprudence Suri Ratnapala CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521614832 © Suri Ratnapala 2009 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009 ISBN-13 978-0-511-59483-0 eBook (EBL) ISBN-13 978-0-521-61483-2 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Information regarding prices, travel timetables and other factual information given in this work are correct at the time of first printing but Cambridge University Press does not guarantee the accuracy of such information thereafter. To Vidura Ravindranatha, Rusri and Adrian Surindra Contents Acknowledgements xi List of figures xiii 1 Introduction 1 Rewards of jurisprudence 2 Jurisprudence 3 The arrangement of the contents of this book 9 Old debates and new frontiers 17 PART 1 LAW AS IT IS 2 British Legal Positivism 21 Positivism and logical positivism 22 Thomas Hobbes and Leviathan 28 Jeremy Bentham: law and the principle of utility 30 John Austin’s command theory of law 36 Herbert Hart’s new beginning: the burial of the command concept of law 48 British positivism’s contribution to jurisprudence 56 3 Germanic Legal Positivism: Hans Kelsen’s Quest for the Pure Theory of Law 58 From empiricism to transcendental idealism 59 From transcendental idealism to the pure th