WHY STUDY LEGAL THEORY?
(Extract from: Ian Mcleod)
The discussion of the nature of legal theory which you have just read,and any number of similar discussions which you may read elsewhere, will leave many students saying 'So what? How will all this help me when I am a lawyer?You may even pray in aid Cotterrell's comment that 'no-one could suggest that legal theory has at any time been necessary to help the lawyer earn a living in everyday practice'. (The Politics of Jurisprudence, 1989, p. 223.)But the key word here is necessary, for there can be equally little doubt that cases do arise where practitioners with acknowledge of legal theory are better equipped than those who lack it… Indeed, it may even be argued that without a knowledge of legal theory there is a sense in which you cannot credibly claim to be a lawyer, as distinct from someone who knows some laws: 'while legal science is capable of being intelligently learnt, legal facts are capable only of being committed to memory'. (IE. Holland, The Elements of Jurisprudence, 13thedn, 1924, p. 4.)
In similar vein, Holmes, having noted that the English meaning of jurisprudence’ is confined to the broadest rules and most fundamental conceptions’, adds that 'one mark of a great lawyer is that he sees the application of the broadest rules'. He proceeds to illustrate this basic truth with a practical anecdote.
'There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant.... If aman goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis[for predicting what the court will do if the matter ever comes before it] .' (The Path of the Law (1897) 8 Harv LR, pp. 474-5.)
The study of legal theory takes you beyond laws and into law. Making the point more explicitly in relation to professional practice, the value of a knowledge of legal theory lies in the fact that it provides a principled overview of law as a whole, which enables practitioners to relate a large number of individualized statements of legal doctrine to, and evaluate them in the light of, each other. Practitioners with a knowledge of legal theory will be able to construct arguments, and counter opposing arguments, with more confidence, and with a greater likelihood of success, than would otherwise be the case. As Holmes puts it:
'The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echoof the infinite, a glimpse of its unfathomable process, a hint of the universal law.' (Op. cit., p. 478.)
More polemically, if less poetically, members of the critical legal studies movement regard a knowledge of legal theory as being unequivocally essential to practitioners. Thus Alan Thomson challenges the view (which he takes to be prevalent among both students and practitioners), that legal theory is marginal, and that the only thing which really matters, even for a radical lawyer, is to be a good lawyer:
'Critical legal theory must ... make explicit the implicit theory on which the existing legal rules, institutions and practices are based, with the aim of showing that since that theory cannot support what it claims it can, the world could be otherwise ... '
'critical legal theory attempts to reconnect law with everyday political and moral argument, struggles and experiences, with all their attendant incoherences, uncertainties and indeterminacies. Most importantly, in rejecting a view of law as the expression of reason, critical legal theorists reveal, in different ways, law as the expression and medium of power.' (Foreword: Critical Approaches to Law: Who Needs Legal Theory?, in Ian Grigg-Spalland Paddy Ireland (eds), The Critical Lawyers' Handbook, 1992, pp. 2-3.)
Ronald Dworkin, who is by no stretch of the imagination a member of the critical legal studies movement, goes even further than Thomson, arguing that legal theory and legal practice are, in fact, two aspects of a single, seamless, whole. (See p. 131.)
Finally, however, although it is easy to justify the study of legal theory by reference to the demands of legal practice, it is not necessary to do so:
'It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas.' (Oliver Wendell Holmes, Law in Science and Science in Law (1899) 12 Harv LR p. 444.)
· Legal theory involves a progression from the study of laws to the study of law.
· Differences of terminology between legal theory, jurisprudence and legal philosophy/philosophy of law are largely matters of personal taste.
· The study of legal theory involves the use of sources other than the law, including works on philosophy and political theory.
· All legal theories must be seen in the context of the historical period and the culture within which their authors were working, as well as within the context of the questions which their authors were seeking to answer.
· Legal theories are classified in a variety of ways, but all classificatory schemes are only aids to understanding and not substitutes for it.
· There is no universally accepted way of identifying what is morally right and what is morally wrong, but three of the major approaches to these questions involve theories that are either duty-based, consequence-based or virtue-based.
Legal theory can be relevant to practitioners of law when it makes them think about the basis of what they are doing. It also has its own intrinsic value as a branch of the study of ideas.
WHAT ARE THE USES OF STUDYING JURISPRUDENCE?
(Extract from:Hari Chand, Modern Jurisprudence, pp12-16)
There are jurists who maintain that jurisprudence is not of practical use; it has intrinsic interest. For instance Harris differs with the view that the teaching of jurisprudence makes better lawyers. In his words, "jurisprudence has to do, not with the lawyer's role as a technician but with any need he may feel to give account of his life's work - either to fellow citizens, or to himself, or to any gods there be.
One may wonder,if it were so, why are would-be lawyers made to study this subject compulsorily? Many of them may very well say that they do not wish to render any account of their life or life's work to anyone and, therefore, they should be freed from the hard task of abstract thinking involved in jurisprudence. In fact, if a survey is taken, a vast majority of law students would like to get rid of the study of jurisprudence, if they are given an option to do so. Then what is the justification for inflicting unnecessary intellectual torture? But the truth is that jurisprudence is not only of great practical use to lawyers but also a great necessity in learning the law. It is a great myth, which needs to be exploded, to think that a person can understand law without understanding jurisprudence. Just as they say that an unmarried man is half a man, it may be said that a lawyer who has not understood jurisprudence is half a lawyer who may falter any moment because his knowledge of law is without foundation - without jurisprudence.
a. Disciplining the Mind – to think of broader issues, social problems quest for knowledge
The study of jurisprudence' disciplines the mind and enables it to think over social problems. It is said about a good book that it should make people more hungry to know more. Nothing can be truer than the fact that the study of jurisprudence makes one intellectually hungry to learn more and more. It is an appetiser for acquiring more knowledge. Jurisprudence is a vast subject and encompassing every branch of knowledge. It would make its pursuer learned and wise. Of course, this can be said about every subject but it is truer of jurisprudence than any other subject.
b. Broadens the knowledge of Law
Like any branch of social sciences, jurisprudence broadens our knowledge of law. Since it is a must for a modern jurist to study social sciences like history, economics, politics, sociology, anthropology,psychology, the jurist has a wider perspective for his subject. He can study rules, principles, doctrines, the very bones of law, in the light of his knowledge of social sciences. The study of historical development of culture and evolution of social life would equip him with the evolutionary nature of law. Law can never be static; it is an ever changing subject. Thus the study of jurisprudence opens our mind to new worlds; it is a window to the universe of knowledge and learning. Jurisprudence enables us not only to delve deeply into theoretical basis of law but also helps us in solving brainracking and mind-boggling problems which we face in today's complex andchaotic world. The complexity and fast changing horizons of our social life leave us no time for peace of mind; jurists have been overburdened with heavy problems all the time. The questions of justice, morality, peace and harmony are sufficient enough to agitate the minds of men but a host of problems of environmental pollution, drug trafficking, inequitable international trade and terrorism are some of the never ending banes of our times. Without the help of law, such problems will ever ulcerate the heart of mankind. Jurists cannot rest content as the problems raise their ugly heads every day and cry for solution. Jurisprudence enables them to rise to the occasion and meet the challenges posed by the modern world. He can suggest policies and programmes to get over the menace of terrorism.
c. Improving the law and suggesting legal reform
Since it gives us broader knowledge and wider perspective, coupled with a deeper understanding of the mechanics of law, jurists are in a better position to improve upon the law and suggest reform suitable to meet the demands of society. Thus jurisprudence serves as a great tool for improvement and development of law. It helps in the study of various elements, factors, set of circumstances which effect the working of a legal system in various ways and thus purge it of pernicious elements and make it work efficiently and effectively.
d. Providing perspective or ‘ideology’ on law
Besides, now it is common knowledge that every social system whether based on capitalism, socialism, or communism requires an ideological framework. Ideology has been infused in every sphere of intellectual life and law could not escape from it. Jurisprudence represents, in a way, an ideology for lawyers and jurists.
It is an ideological tool. Ideological battles are fought with a philosophy of law and a plethora of jurisprudential learnings. It is only with the study of jurisprudence that one may venture to meet the challenge posed by counter ideologies in the sphere of law and without a thorough understanding of jurisprudence one cannot find one's path. Jurisprudence has been rightly described as the eye of law. Without this eye, law is blind and would lead but in the dark valley of chaos and confusion.
e. Ability to deal with a new situation which demands experimentation
Again, jurisprudence enables us to deal with a new situation which demands experimentation. Everyone is hesitant before leaping into the dark but the knowledge of jurisprudence which is distilled from the wisdom of philosophers, lawyers, historians and economists comes to our rescue in a fluid situation. Above all, the perpetual problem which is confronted in a legal system, i.e. interpretation and application of laws would ever remain unsolved and untackled if jurisprudence were not there .It is only with the help of jurisprudence that modern complex and multi-faceted problems of society can be solved. Its knowledge is a great help to the judge, the lawyer, the legislator and the administrator. It is only through the medium of jurisprudence that lawyers and judges have become more amenable to the persuasion of social scientists; now judges are more receptive to the findings of social scientists and are ready to lend their ears to the new truths revealed by them.
Thus they can do justice in a better and satisfactory way when they are accompanied by a great helper and friend called jurisprudence. Jurisprudence would come to one's rescue in a situation where existing techniques fail. It is a master key for all working with a legal system not only to its understanding but also to its development and success.
f. Better understanding of human affairs
Above all, jurisprudence is a study of man as history, economics, political science, psychology, anthropology - all social sciences are a study of man. Man is a complex entity with numerous facets.
Probably we are in need of many new branches of knowledge to study man. Jurisprudence is a study of mankind as it is the business of jurisprudence to study the behaviour of man under various legal regimes. Rule-governed action of man is the object which the jurist has to study. The jurist, if he is well equipped with the experiences of mankind with various laws, can tell us what types of societies had lived on this earth. The laws of a society embody the norms of the society which contain, to a large extent, the knowledge as to the kind of society. These norms are not artificial or fictional accounts; these have been distilled from the practical life of the people and therefore they may reveal more than any other artifact as to the nature and character of the society. As the society changes, the laws undergo changes.
Therefore, if someone were to study the evolution of mankind, probably the changes in laws from time to time indicate unmistakably the course of development of mankind.
g. Pursuit of knowledge
In the end, it needs to be stressed that it is not its usefulness which should persuade one to study jurisprudence but its ultimate value. If Socrates could hold knowledge as an ultimate value, there is all the more good reason for us to hold jurisprudence as an ultimate value. Here we agree with Cicero, the great Roman jurist who held the view that jurisprudence is more than a dependent science.Huntington Cairns sums up:
"He (Cicero) saw that it was a mistake to depend jurisprudence on the ground of its usefulness to positive law, a lesson which modern jurists have even yet not learned. If the sole justification of jurisprudence is its usefulness to positive law, then it will never achieve the status of an independent science in as much as a science of means is always controlled by the ends. It was clear to Cicero that jurisprudence was something more than a dependent science.”