The principal modern schools of jurisprudence are the natural-law school, the analytical school, the historical school, and the comparative school. The differences between the first three are mainly to be found in their views of the nature and origin of law and its relation to ethics.
To the natural-law jurist law is antecedent to the State; to the analytical jurist it is the crea tion of the State; to the historical jurist State and law are social products, developing side by side, each influencing the other. To the natural law jurist law is cognizable by pure reason; to the analytical jurist it is the command of the sovereign: to the historical jurist it is the formu lated wisdom of the race. To the natural-law jurist law is applied ethics, and in the extreme form of the theory. that which is not right is not law. To the analytical jurist a law which com mands what is ethically wrong or forbids what is ethically right is not the less a law if it proceeds from the political sovereign. The historical jurists accept in this respect the position taken by the analytical school; but they point out that it is difficult for a law-maker to act otherwise than in accord with the contemporary sense of right, and that laws which run counter to that sense are not likely to he enforced. Historical ju risprudence differs from analytical jurisprudence chiefly in emphasizing the great part played by social custom in developing and establishing law. To the analytical jurists customary law, includ ing judicial custom, is an anomaly. They do not like it; they try to explain it away; they would fain abolish it by covering the whole field of social relations with written codes. The natural law school has its roots in the Stoic philosophy and the Roman jurisprudence; it was increas ingly dominant in Europe from the Reformation to the close of the eighteenth century. (For the principal forms of the theory and the chief writers, see NATURAL LAW.) It has now few adherents; the largest number, probably, are in the States.
The theory of the analytical school was first sharply formulated by Hobbes in his Lcriathan, but it became dominant in the English-speaking world mainly through the writings of Austin. The term 'analytical' is purely English; but the views of this school neither originated in nor are they confined to that country. The tendency to
exalt the function of the legislator appeared on the Continent at the close of the Middle Ages, and was associated with the efforts of the na tional States, as they developed increasing ad ministrative unity. to get rid of the chaos of varying provincial and local enstoms which had taken form during the Middle Ages—an end which could be attained only by national legisla tion. and which has been fully attained only by the adoption of national eodes. See the article CODE.
The historical school dates from the nineteenth century. Cujaeius, in the sixteenth century. gave a powerful impulse to the historical study of law, and :Nlontesquieu and Burke, in the eighteenth century, represented the same reaction against natural-law ideas which Savigny represented in the nineteenth, but the last-named jurist first clearly defined the principles of historical juris prudence in 1814. The historical method was naturalized in the English-speaking world chiefly by the writings of Henry Sumner Maine. The substitution of historical investigation for a priori reasoning has been so fruitful of results that few European jurists at the present time would admit that they were not adherents of this school.
There is no antagonism between it and the com parative school. This latest school, or tendency, iepresents only a widening of the field of in vestigation. Not only is each national law to be studied historically. but the various national systems are to be compared at similar stages of development. As a result of this process. not only may the normal course of legal development be discovered. but that which is universal and human may be separated from that which is par ticular to a single nation or to a special stage of development ; and then, as Jhering hoped, it may eventually become possible to write a history of the law of the world. Thus far chief atten tion has been given to early law. Some of the best-known names of workers in this field are those ef Maine, Holmes. Fustel de Coulanges, Jhering, Kohler, and Post.
The comparative work of legal historians has been extensively supplemented by that of eth nologists; and especially interesting investiga tions have been made in early family law. (See