The Social Science Encyclopedia

Authors: Kuper & Kuper
Summary: This long entry (approximately 2800 words) treats law in four sections, on natural law, legal positivism, historical jurisprudence, and sociological jurisprudence. The entry concludes by discussing contemporary social science approaches to the study of law.
The entry begins by criticizing legal theories for tending to claim a universalism they do not really possess, since all conceptions of law are culturally and historically specific. Thus, the very concept of 'law' is a western cultural construct.
Most of the rest of the entry focuses on the four principal paradigms of legal thought. The first, natural law, dominated western ideas about justice through the eighteenth century. It is based on a universal system of justice and right, discoverable by human beings through reason. Legal positivism, the second paradigm, was a nineteenth-century development. It criticized natural law for lacking a scientific foundation and for confusing law with morality. John Austin, Bentham's follower, largely originated the 'science of positive law.' Hans Kelsen and H.L.A. Hart critiqued and expanded upon Austin's positivist legal theories. The third paradigm, historical jurisprudence or legal evolutionism, also developed as a reaction to natural law. This paradigm is much more concerned with society and culture than is positivism. Savigny, Maine and Marx are offered as examples of scholars working within this paradigm. The final paradigm, sociological jurisprudence, is based on the idea that progress can occur through legal reform. The entry briefly discusses the theories of Jhering, Pound, Erlich, Weber, Unger, Durkheim and Malinowski.
In its concluding section, the entry describes varying methods and paradigms used by contemporary social scientists who study law and legal systems. The emphasis here is on the multiplicity of social science approaches to law.