The third line of thought is _jurisprudential criticism_. In view of
the weakness of jurisprudential dogmatism it foregoes passing judgment,
without regard to the particular circumstances under which a legal
institution operates, on whether that institution ought to exist or not;
but yet in view of the weakness of jurisprudential skepticism it does
not forego answering the question whether a legal institution ought to
exist or not. It therefore sets up a supreme governing principle by
which legal institutions are to be judged with regard to the particular
circumstances under which they operate, the point being whether, under
the particular circumstances under which a legal institution operates,
it fulfils that supreme governing principle as well as is possible under
these circumstances, or at least better than any other legal
institution. It embraces, therefore, the doctrines of _the propriety of
law_: that is, the schools that set up fundamental principles by which
it is to be determined what law--for instance, whether the legal
institution of marriage--ought under any particular circumstances to
exist or not to exist.
2. With respect to the State these three lines of thought in the
philosophy of law may arrive at different judgments, each one from its
standpoint.
First, to the _affirmation of the State_.
So far as the schools of jurisprudential dogmatism affirm the State,
they approve of it unconditionally, and so for our future as well as
elsewhere, without any regard to its effects under this or that
particular set of circumstances.
Among the numerous affirmative doctrines of the State in the sense of
jurisprudential dogmatism, the teachings of Hobbes, Hegel, and Jhering
may perhaps be selected for emphasis as belonging to different sections
of history.
So far as the doctrines of jurisprudential skepticism affirm the State,
they foresee, looking to the course evolution is taking, that in our
future the State will continue to exist.
The most notable representatives of jurisprudential skepticism, such as
Puchta and Merkel, have offered no teaching regarding the State; but
affirmative doctrines of the State in the sense of jurisprudential
skepticism may be found, for instance, in Montaigne and Bernstein.
Finally, so far as the doctrines of jurisprudential criticism affirm the
State, they commend it for our future in consideration of the particular
circumstances that at present prevail in our case.
Jurisprudential criticism has thus far been most clearly set forth by
Stammler, who, however, has offered no teaching with regard to the
State; but, for instance, Spencer's teaching may rank as an affirmative
doctrine of the State in the sense of jurisprudential criticism.
Second, the three lines of thought in the philosophy of law may arrive
at the _negation of the State_, each one from its standpoint.
Public-domain text, read in full here on John Shaqi.
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