Jurisprudence
Information about Jurisprudence
For the "jurisprudence" of courts, see .
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. As jurisprudence has developed, there are three main aspects with which scholarly writing engages:
- Natural law is the idea that there are unchangeable laws of nature which govern us, and that our institutions should try to match this natural law.
- Analytic jurisprudence asks questions like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may engage.
- Normative jurisprudence asks what law ought to be. It overlaps with moral and political philosophy, and includes questions of whether one ought to obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation, how judges ought to decide cases.
Etymology
The Latin word juris is the genitive form of jus meaning "law." So, juris means "of law" or "legal."Prudentia, meaning "knowledge" in Latin, translates into English as "prudence." The native English word is "wisdom," which originally also meant "knowledge."
"Prudence" means caution, cautiousness, care, carefulness.
History of jurisprudence
Jurisprudence already had this meaning in Ancient Rome, even if at its origins the discipline was a monopoly of the College of Pontiffs (Pontifex), which retained an exclusive power of judgment on facts, being the only experts (periti) in the jus of traditional law (mos maiorum, a body of oral laws and customs verbally transmitted "by father to son"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases.Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitative interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Pontiffs were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.
Under the Roman Republic, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivaled peaks of skill. It is about this activity that it has been said that Romans had developed an art out of the law.
After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Byzantine Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.
Natural law
Aristotle
Aristotle notes that natural justice is a species of political justice, viz. the scheme of distributive and corrective justice that would be established under the best political community;[5] were this to take the form of law, this could be called a natural law, though Aristotle does not discuss this and suggests in the Politics that the best regime may not rule by law at all.[6]
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature.[7] The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was averse to the case being made, not that there actually was such a law;[8] Aristotle, moreover, considered two of the three candidates for a universally valid, natural law provided in this passage to be wrong.[9] Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
Sharia
Mainstream Islam distinguish fiqh, which means understanding details and inferences drawn by scholars, from sharia, which refers to principles that lie behind the fiqh. Scholars hope that fiqh and sharia are in harmony in any given case, but they cannot be sure.[10]
Thomas Aquinas
Aquinas distinguished four kinds of law. These are the eternal, natural, human, and divine law. Eternal law is the decree of God which governs all creation. Natural law is the human "participation" in the eternal law and is discovered by reason.[11] Natural law, of course, is based on "first principles":
- . . . this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this . . .[12]
Thomas Hobbes
Lon Fuller
John Finnis
Analytic jurisprudence
The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
Legal positivists
- What the law is - is determined by social facts (or "sources')
- What obedience the law is owed - is determined by moral considerations.
Bentham and Austin
Hans Kelsen
Kelsen was a Professor around Europe, notably the University of Vienna. In 1940, he moved to the United States, giving the Oliver Wendell Holmes Lectures at Harvard Law School in 1942 and becoming a full professor at the department of political science at the University of California, Berkeley in 1945. During those years, he increasingly dealt with issues of international law and international institutions such as the United Nations.
H.L.A. Hart
Rules, said Hart, are divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). The "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. A pivotal book on Hart was written by Neil MacCormick[2] in 1981 (second edition due in 2007), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his recently published Institutions of Law, 2007). Other important critiques have included that of Ronald Dworkin, John Finnis, and Joseph Raz.
In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled inclusive legal positivism, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case.
Joseph Raz
Joseph Raz defends the positivist outlook, but criticised Hart's "soft social thesis" approach in The Authority of Law.[18] Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Any categorisation of rules beyond their role as authoritative is best left to sociology, rather than jurisprudence.[19]
Ronald Dworkin
Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be. But many writers have doubted whether there is a single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that community.
Legal realism
It has become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include Roscoe Pound, Karl Llewellyn and Justice Benjamin Cardozo). The chief inspiration for Scandinavian legal realism many consider to be the works of Axel Hägerström. Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, and law and economics.
The Historical School
Normative jurisprudence
Virtue jurisprudence
Deontology
Utilitarianism
John Rawls
There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.
References
1. ^ Shellens, "Aristotle on Natural Law."
2. ^ Jaffa, Thomism and Aristotelianism.
3. ^ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
4. ^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
5. ^ Nicomachean Ethics, Bk. V, ch. 6–7.
6. ^ Politics, Bk. III, ch. 16.
7. ^ Rhetoric 1373b2–8.
8. ^ Shellens, "Aristotle on Natural Law," 75–81
9. ^ "Natural Law," International Encyclopedia of the Social Sciences.
10. ^ On the Sources of Islamic Law and Practices, The Journal of law and religion [0748-0814] Souaiaia yr:2005 vol:20 iss:1 pg:123
11. ^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995).
12. ^ Summa, Q94a2.
13. ^ Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
14. ^ See H L A Hart, 'Positivism and the Separation of Law and Morals' (1958) 71 Harv. L. Rev. 593
15. ^ David Hume, A Treatise of Human Nature (1739)
16. ^ John Austin, The Providence of Jurisprudence Determined (1831)
17. ^ H.L.A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8
18. ^ Joseph Raz, The Authority of Law (1979) Oxford University Press
19. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
20. ^ Ronald Dworkin, Law's Empire (1986) Harvard University Press
21. ^ Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
22. ^ Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
23. ^ see, Utilitarianism at Metalibri Digital Library
2. ^ Jaffa, Thomism and Aristotelianism.
3. ^ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
4. ^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
5. ^ Nicomachean Ethics, Bk. V, ch. 6–7.
6. ^ Politics, Bk. III, ch. 16.
7. ^ Rhetoric 1373b2–8.
8. ^ Shellens, "Aristotle on Natural Law," 75–81
9. ^ "Natural Law," International Encyclopedia of the Social Sciences.
10. ^ On the Sources of Islamic Law and Practices, The Journal of law and religion [0748-0814] Souaiaia yr:2005 vol:20 iss:1 pg:123
11. ^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995).
12. ^ Summa, Q94a2.
13. ^ Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
14. ^ See H L A Hart, 'Positivism and the Separation of Law and Morals' (1958) 71 Harv. L. Rev. 593
15. ^ David Hume, A Treatise of Human Nature (1739)
16. ^ John Austin, The Providence of Jurisprudence Determined (1831)
17. ^ H.L.A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8
18. ^ Joseph Raz, The Authority of Law (1979) Oxford University Press
19. ^ ch. 2, Joseph Raz, The Authority of Law (1979)
20. ^ Ronald Dworkin, Law's Empire (1986) Harvard University Press
21. ^ Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
22. ^ Webster's New World Dictionary of the American Language, p. 378 (2d Coll. Ed. 1978).
23. ^ see, Utilitarianism at Metalibri Digital Library
Further reading
See also Important publications in philosophy of law- Thomas Aquinas, Summa Contra Gentiles (many editions).
- Vicente Barretto, Dicionário de Filosofia do Direito (São Leopoldo, Unisinos Editora, 2006 ISBN 85-7431-266-5)
- Bruce L. Benson: Where Does Law Come From?.
- Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).
- Ronald Dworkin, ed., The Philosophy of Law (Oxford: Oxford University Press, 1977).
- Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1986).
- Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986).
- Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997).
- Ronald Dworkin, Sovereign Virtue (Cambridge, MA: Harvard University Press, 2002).
- Ronald Dworkin, Justice in Robes (Cambridge, MA: Harvard University Press, 2006).
- Ronald Dworkin, Is Democracy Possible Here? (Princeton, NJ: Princeton University Press, 2006).
- Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1965).
- John Chipman Gray, The Nature and Sources of Law (Peter Smith, 1972, reprint).
- J. W. Harris, Legal Philosophies (LexisNexis UK, 2nd revised edition, 1997)
- H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).
- H.L.A. Hart, Law, Liberty and Morality (Stanford University Press, 1963).
- H.L.A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968).
- Sterling Harwood, "Is Mercy Inherently Unjust?," in Michael J. Gorr and Sterling Harwood, eds., Crime and Punishment: Philosophic Explorations (Jones and Bartlett Publishers, 1995).
- Sterling Harwood, Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers, 1996).
- Sterling Harwood, "Conceptually Necessary Links Between Law and Morality," in Werner Krawietz, Neil MacCormick, and Georg Henrik von Wright, eds., Prescriptive Formality and Normative Rationality in Modern Legal Systems: Festschrift for Robert S. Summers (Duncker & Humblot, 1994), pp. 143-159.
- Georg Wilhelm Friedrich Hegel, Philosophy of Right (Oxford University Press 1967).
- Ian Farrell & Morten Ebbe Juul Nielsen, Legal Philosophy: 5 Questions, New York: Automatic Press / VIP, April 2007: http://www.legalphilosophy.org.
- Oliver Wendell Holmes, Jr., The Common Law (Dover, 1991, reprint).
- Immanuel Kant, Metaphysics of Morals (Doctrine of Right) (Cambridge University Press 2000, reprint).
- Hans Kelsen, Pure Theory of Law (Lawbook Exchange Ltd., 2005, reprint).
- Duncan Kennedy, A Critique of Adjudication (Cambridge, MA: Harvard University Press, 1998).
- Hans Köchler, Philosophie – Recht – Politik. Abhandlungen zur politischen Philosophie und zur Rechtsphilosophie. (Veröffentlichungen der Arbeitsgemeinschaft für Wissenschaft und Politik an der Universität Innsbruck, Vol. IV.) Vienna/New York: Springer, 1985 (German).
- Hans Köchler, "The Changing Nature of Power and the Erosion of Democracy in the Era of Technology: Challenges to the Philosophy of Law in the 21st Century," in: International Academy for Philosophy, Yerevan (Armenia) / Athens (Greece) / Berkeley (USA), News and Views, No. 13 (November 2006), pp. 4-28.
- David Lyons, Ethics & The Rule of Law (Cambridge: Cambridge University Press, 1984).
- David Lyons, Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993).
- Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1979).
- Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1983, reprint).
- A. E. Souaiaia, Verbalizing Meaning: The Function of Orality in Islamic Law and Practices (London: Edwin Mellen Press, 2006).
- Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca, NY: Cornell University Press, 1982).
- Robert S. Summers, Lon Fuller (Stanford, CA: Stanford University Press, 1984).
- Robert S. Summers, The Jurisprudence of Law's Form and Substance (Ashgate Publishing, 1999).
- Robert S. Summers, Form and Function in a Legal System: A General Study (Cambridge: Cambridge University Press, 2005).
- Jarkko Tontti, Right and Prejudice - Prolegomena to a Hermeneutical Philosophy of Law. Ashgate 2004.
- Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986).
- C.L. (Chin Liew) Ten, Crime, Guilt, and Punishment (Oxford: Clarendon Press, 1987; repr. 1989, 1990).
- Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law: An Introduction to Jurisprudence (Boulder, CO: Westview Press, 1989).
See also
External links
- http://www.redeemer.on.ca/Dooyeweerd-Centre/ Navigate to page for Encyclopedia of the Science of Law (Mellen, 2002).
- John Witte, Jr: A Brief Biography of Dooyeweerd, based on Hendrik van Eikema Hommes, Inleiding tot de Wijsbegeerte van Herman Dooyeweerd (The Hague, 1982; pp 1-4,132).http://www.redeemer.on.ca/Dooyeweerd-Centre/biography.html
- LII Law about... Jurisprudence.
- The Case of the Speluncean Explorers: Nine New Opinions, by Peter Suber (Routledge, 1998.) Lon Fuller's classic of jurisprudence brought up to date 50 years later.
- The Roman Law Library, incl. Responsa prudentium by Professor Yves Lassard and Alexandr Koptev.
- Evgeny Pashukanis - General Theory of Law and Marxism.
- Internet Encyclopedia: Philosophy of Law.
- The Opticon: Online Repository of Materials covering Spectrum of U.S. Jurisprudence.
- For more information about Neil MacCormick and the Edinburgh Legal Theory Research Group visit http://www.law.ed.ac.uk/legaltheory/
The word theory has a number of distinct meanings in different fields of knowledge, depending on their methodologies and the context of discussion.
In common usage, people often use the word theory to signify a conjecture, an opinion, or a speculation.
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In common usage, people often use the word theory to signify a conjecture, an opinion, or a speculation.
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Philosophy is the discipline concerned with questions of how one should live (ethics); what sorts of things exist and what are their essential natures (metaphysics); what counts as genuine knowledge (epistemology); and what are the correct principles of reasoning (logic).
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LAW may refer to:
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- Lightweight Anti-tank Weapon, like the M72 LAW (US Army) and the LAW 80 (British Army)
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legal systems of the world today consist of civil law, common law and religious law. However, each country (see State (law)) often develops variations on each system or incorporates many other features into the system.
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Ancient Rome was a civilization that grew from a small agricultural community founded on the Italian Peninsula circa the 9th century BC to a massive empire straddling the Mediterranean Sea.
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The College of Pontiffs or Collegium Pontificum (collegium in Latin means a board or committee rather than an educational institution) was a body of the ancient Roman state whose members were the highest-ranking priests of the polytheistic state religion.
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- Another spelling for the Latin word for "justice", ius (iuris n.)
- A rich, lightly reduced stock used as a sauce for roasted meats. See au jus.
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An oral law is a code of conduct in use in a given culture, religion or other regroupement, by which a body of rules of human behaviour is transmitted by oral tradition and effectively respected, or the single rule that is orally transmitted.
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For other uses, see Sentence.
In law, a sentence forms the final act of a judge-ruled process, and also the symbolic principal act connected to his function.
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Roman Republic was the phase of the ancient Roman civilization characterized by a republican form of government. The republican period began with the overthrow of the Monarchy c.
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The Roman Empire is the name given to both the imperial domain developed by the city-state of Rome and also the corresponding phase of that civilization, characterized by an autocratic form of government. This article however is about the latter.
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Sabinians took their name from Masurius Sabinus but later were known as Cassians after Sabinus' student, Cassius Longinus. Sabinian views were based on the teachings of Gaius Ateius Capito, Sabinus' instructor and an adherent of conservatism in the reign of Augustus (27
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ART is a three-letter acronym that can mean:
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Byzantine Empire or Byzantium is the term conventionally used since the 19th century to describe the Greek-speaking Roman Empire of the Middle Ages, centered on its capital of Constantinople.
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Justinian I
Emperor of the Eastern Roman Empire
Justinian depicted on one of the famous mosaics of the Basilica of San Vitale, Ravenna
Reign 9 August 527 - 13 or 14 November 565
Full name Flavius Petrus Sabbatius Iustinianus
Born
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Emperor of the Eastern Roman Empire
Justinian depicted on one of the famous mosaics of the Basilica of San Vitale, Ravenna
Reign 9 August 527 - 13 or 14 November 565
Full name Flavius Petrus Sabbatius Iustinianus
Born
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Corpus Juris Civilis (Body of Civil Law) is the modern name[1] for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor.
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Natural law or the law of nature (Latin: lex naturalis) is an ethical theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere.
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Christianity
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History of Christianity Timeline
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Foundations
Jesus Christ
Church Theology
New Covenant Supersessionism
Dispensationalism
Apostles Kingdom Gospel
History of Christianity Timeline
Bible
Old Testament New Testament
Books Canon Apocrypha
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Aristotle (Greek: Ἀριστοτέλης Aristotélēs) (384 BC – 322 BC) was a Greek philosopher, a student of Plato and teacher of Alexander the Great.
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SOCRATES is the European Community action programme in the field of education. The second phase of the programme covers the period January 1 2000 to December 31 2006. It draws on the experiences of the first phase (1995-1999) building on the successful aspects of the programme,
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PLATO was one of the first generalized Computer assisted instruction systems, originally built by the University of Illinois and later taken over by Control Data Corporation (CDC), who provided the machines it ran on.
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Aristotle (Greek: Ἀριστοτέλης Aristotélēs) (384 BC – 322 BC) was a Greek philosopher, a student of Plato and teacher of Alexander the Great.
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Natural Justice is a charity that does research on the causes of criminal behavior, and especially on the related effects of nutrition. Natural Justice carried out an experiment in the Aylesbury Prison for young offenders.
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Latin}}}
Official status
Official language of: Vatican City
Used for official purposes, but not spoken in everyday speech
Regulated by: Opus Fundatum Latinitas
Roman Catholic Church
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ISO 639-1: la
ISO 639-2: lat
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Official status
Official language of: Vatican City
Used for official purposes, but not spoken in everyday speech
Regulated by: Opus Fundatum Latinitas
Roman Catholic Church
Language codes
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Saint Thomas Aquinas, O.P.(also Thomas of Aquin, or Aquino; c. 1225 – 7 March 1274) was an Italian Roman Catholic priest in the Order of Preachers, a philosopher and theologian in the scholastic tradition, known as Doctor Angelicus, Doctor Universalis
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Nicomachean Ethics (sometimes spelled 'Nichomachean'), or Ta Ethika, is a work by Aristotle on virtue and moral character which plays a prominent role in defining Aristotelian ethics.
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The Eudemian Ethics (sometimes abbreviated EE in scholarly works) is a work of philosophy by Aristotle. Its primary focus is on Ethics. It is named for Eudemus of Rhodes, a pupil of Aristotle who may also have had a hand in editing the final work.
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Natural Justice is a charity that does research on the causes of criminal behavior, and especially on the related effects of nutrition. Natural Justice carried out an experiment in the Aylesbury Prison for young offenders.
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