Wolfgang Friedmann was a German-born jurist and scholar who wrote extensively on the philosophy of law and international law. His book Legal Theory, first published in 1960 and revised in 1967, is a comprehensive and critical analysis of the main schools of legal thought, from natural law to legal realism, as well as the historical and sociological dimensions of law.
In this article, I will summarize the main arguments and contributions of Friedmann's Legal Theory, as well as some of the criticisms and limitations of his approach. I will also discuss the relevance and impact of his work for contemporary legal scholarship and practice.
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Friedmann defines legal theory as "the systematic exposition of the nature, origin, development, and function of law" [^1^]. He argues that legal theory should not be confined to a narrow analysis of legal rules and concepts, but should also consider the broader social, historical, and ethical context of law. He also emphasizes the importance of comparative and interdisciplinary perspectives, as well as the need for critical evaluation and reform of existing legal systems.
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Friedmann adopts a historical and sociological method in his legal theory, tracing the evolution of legal ideas and institutions from ancient times to modern times. He also examines the influence of various factors, such as religion, culture, politics, economics, and technology, on the development of law. He identifies four main stages in the history of law: (1) primitive law, (2) classical law, (3) modern law, and (4) contemporary law. He argues that each stage reflects a different balance between individualism and collectivism, as well as between formalism and realism.
Friedmann devotes most of his book to a critical examination of the main schools of legal thought that have emerged in Western civilization. He distinguishes between two types of legal theories: (1) normative theories, which prescribe what the law ought to be, and (2) descriptive theories, which describe what the law is or how it works. He also classifies legal theories according to their degree of abstraction or realism.
The main schools of legal thought that Friedmann discusses are:
- Natural law: This is the oldest and most influential normative theory of law, which holds that there is a higher law or moral order that transcends human laws and that can be discovered by reason or revelation. Friedmann traces the origins and development of natural law from ancient Greece to modern times, highlighting its contributions and limitations. He argues that natural law has been both a source of inspiration and a source of confusion for legal thinkers and practitioners.
- Legal positivism: This is the dominant descriptive theory of law in modern times, which holds that law is a product of human will or authority and that its validity depends on its conformity with certain criteria or procedures. Friedmann analyzes the main variants and proponents of legal positivism, such as Austin, Kelsen, Hart, and Dworkin. He criticizes legal positivism for its formalism, reductionism, and detachment from reality.
- Historical school: This is a descriptive theory of law that emerged in Germany in the 19th century, which holds that law is a reflection of the spirit or culture of a people and that its development is determined by historical forces. Friedmann examines the origins and influence of the historical school, especially Savigny and Hegel. He praises the historical school for its recognition of the diversity and dynamism of law, but also points out its shortcomings, such as its conservatism, nationalism, and relativism.
- Sociological jurisprudence: This is a descriptive theory of law that emerged in America in the late 19th century, which holds that law is a social phenomenon that responds to social needs and interests. Friedmann explores the main ideas and representatives of sociological jurisprudence, such as Holmes, Pound, Cardozo, and Llewellyn. He commends sociological jurisprudence for its realism, pragmatism, and reformism, but also notes its problems, such as its lack of coherence, consistency, and normativity.
- Legal realism: This is a descriptive theory of law that emerged in America in the early 20th century, 8cf37b1e13