Download lmephilosophical school one

Module I
Philosophical or Ethical school
Philosophical or Ethical school
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According to this school legal philosophy must
be based on ethical values so as to motivate
people for an upright living.
According to this school the purpose of law is
to maintain social harmony and to maintain law
and order in society and legal restrictions can be
justified only if they promote the freedom of
individuals in the society.
Hugo Grotius
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Founder of international law
Grotius said that a system of natural law may be
derived from the social nature of man.
He defined Natural law as “the dictate of right reason
which points out that an act, according as it is or is not
in conformity with rational nature, has in it a quality of
moral baseness or moral necessity.
In this way, he built up a system of natural law that
should command universal respect by its own inherent
moral worth.
Criticism
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Yet his theory was based on morality but there is a difference
between ethics and morality . Ethics are the behavioral pattern
of the person whereas morality are the values imbibed in him.
Beside morality there are other factors social, economical and
political patterns of the society which are very important for the
formation of law.
Legislation, customs, precedents etc. are also the other sources
which are very important in the formation of law.
Hugo said that Natural law desreves universal command which is
not possible in modern times because now laws are formed by
taking state, people and nature into consideration and then to
make laws according to the need of the society.
Immanuel Kant
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“Law is the sum total of the conditions under which
the personal wishes of man can be reconciled with the
personal wishes of an other man in accordance with a
general law of freedom”.
Kant’s legal philosophy is entirely a theory of what the
law ought to be.
Kant distinguished between legal duties and legal rights.
He also distinguished between natural rights and
acquired rights.
He recognized one natural right of the freedom of
man in so far as it can coexist with everyone else’s
freedom under a general law.
Immanuel Kant
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According to Kant, the function of the State is essentially that
of protector and guardian of law.
The aim of Kant was a universal world state.
He differentiated between Ethics and laws according to him
ethics relates to man spontaneous acts whereas laws deals with
those acts which the man is compelled to do by the state and
society.
Ethics deals with inner life or insight or consciousness of the
people whereas laws regulates external conduct of the person.
He said that legislation could be effective only when it represent
united will of the people.
According to him justice is relative concept depending on
conditions, place, social values etc. in which an action takes place.
He said that laws must be metaphysical derived from reason in
order to be just.
Criticism of Kant theory
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Since his theory entirely based on ‘what law ought to
be’ he forget to consider the past and present of the
law.
He denied the concept of natural law which is very
important for the existence of laws.
He theory has given theoretical differences between
ethics and laws but there is no practical application of
them.
He has also not given importance to other sources like
customs which are considered to be oldest source of
law.
Hegel
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According to him “Both the State and Law are the product of
evolution. Legal institutions are within the sphere of legal,
ethical and political institutions. They are the expressions of the
free human mind which wishes to embody itself in institutions.
Hegel carried further Kant’s doctrine of freedom of will.
He had made important contribution to legal philosophy as
according to him law is the development of the idea of
evolution.
He contended that various manifestations of social life including
law are the product of evolutionary process.
He said that consists thesis which means that human spirit set
thesis which become leading idea of particular time ; and then
anti-thesis which are criticism, objections of those ideas ; and
then synthesis which is conflict between thesis and anti-thesis
into an effort to reconcile them thus State is the synthesis of
family, society and civil society.
Criticism of Hegel
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He has not given importance to social and economic institutions
which are also important concepts in modern progressive
societies.
Only freedom of will is not important the value should be given
to all others aspects say social, political, economical, legal aspects
which help in the formation of law and society.
There should be restriction on expression of human mind so
that peace and harmony can be maintained in the society.
There should be efficient legal mechanism to control the society
with freedom of will and independence of human mind.