"The Case of the Speluncean Explorers"

The Greatest Fictional

Case of All Time

"The Case of the Speluncean Explorers" (1949)

 

Lon L. Fuller

 

OPINION OF CHIEF JUSTICE TRUEPENNY

 

The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated

into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament, they settled themselves near the obstructed entrance to wait until a rescue party should remove the detrius that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.

 

The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave.

 

Since it was known that the explorers had carried with them only scant provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before access to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wire less machine within the cave then remained silent for eight hours. When communication was re-established, the men asked to speak again with the physicians. The chairman of the physician s' committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do so: Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared that the electric batteries of the explorers' wireless machine had become exhausted, When the imprisoned men were finally released, it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.

 

From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice. Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendant s, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.

 

After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for-the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication of the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.

 

It seems to me that in dealing with this extraordinary case the jury and

the trial judge followed a course that was not only fair and wise, but the only course that was open to them under the law. The language of our statute is well known: "Whoever shall willfully take the life of another shall be punished by death, "N.C.S.A. (N.S.) § 12-A. This statute permits of no exception applicable to this case, however, our sympathies may incline us to make allowance for the tragic situation in which these men found themselves.

 

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

 

OPINION OF JUSTICE FOSTER

 

I am shocked that the Chief Justice, in an effort to escape the embarrassments of this tragic case, should have adopted, and should have proposed to his colleagues, an expedient at once so sordid and so obvious. I believe something more is on trial in this case than the fate of these unfortunate explorers; that is the law of our Commonwealth. If this Court declares that under our law these men have committed a crime, then our law is itself convicted in the tribunal of common sense, no matter what happens to the individuals involved in this petition of error. For us to assert that the law we uphold and expound compels us to a conclusion we are ashamed of, and from which we can only escape by appealing to a dispensation resting within the personal whim of the Executive, seems to me to amount to an admission that the law of this Commonwealth no longer pretends to incorporate justice.

 

For myself, I do not believe that our law compels the monstrous conclusion that these men are murderers. I believe, on the contrary, that it declares them to be innocent of any crime. I rest this conclusion on two independent grounds, either of which is of itself sufficient to justify the acquittal of these defendants.

 

The first of these grounds rests on a premise that may arouse opposition until it has been examined candidly. I take the view that the enacted or positive law of this Commonwealth, including all of its statutes and precedents, is inapplicable to this case, and that the case is governed instead by what ancient writers in Europe and America called "the law of nature."

 

This conclusion rests on the proposition that our positive law is predicated on the possibility of men's coexistence in society. When a situation arises in which the coexistence of men becomes impossible, then a condition that underlies all of our precedents and statutes has ceased to exist . . . .

 

I conclude, therefore, that at ,the time Roger Whetmore's life was ended by these defendants, they were, to use the quaint language of nineteenth century writers, not in a "state of civil society" but in a "state of nature."This has the consequence that the law applicable to them is not the enacted and established law of this Commonwealth, but the law derived from those principles that were appropriate to their condition. I have no hesitancy in saying that under those principles they were guiltless of any crime.

 

What these men did was done in pursuance of an agreement accepted by all of them and first proposed by Whetmore himself Since it was apparent that their extraordinary predicament made inapplicable the usual principles that regulate men's relations with one another, it was necessary for them to draw, as it were, a new charter of government appropriate to the situation in which they found themselves.

 

It has from antiquity been recognized that the most basic principle of law

or government is to be found in the notion of contract or agreement. Ancient thinkers, especially during the period from 1600 to 1900, used to base government itself on a supposed original social compact. Skeptics pointed out that this theory contradicted the known facts of history, and that there was no scientific evidence to support the notion that any government was ever founded in the manner supposed by the theory.. . . Moralists replied that, if the compact was a fiction from a historical point of view, the notion of compact or agreement furnished the only ethical justification on which the powers of government which include that of taking life, could be rested. The powers of government can only be justified morally on the ground that these are powers that reasonable men would agree upon and accept if they were faced with the necessity of constructing anew some order to make their life in common possible.

 

Fortunately, our Commonwealth is not bothered by the perplexities that beset the ancients. We know as a matter of historical truth that our government was founded upon a contract or free accord of men. The archeological proof is conclusive that in the first period following the Great Spiral the survivors of that holocaust voluntarily came together and drew up a charter of government. Sophistical writers have raised questions as to the power of those remote contractors to bind future generations, but the fact remains that our government traces itself back in an unbroken line to that original charter.

 

If, therefore, our hangmen have the power to end men's lives, if our sheriffs have the power to put delinquent tenants in the street, if our police have the power to incarcerate the inebriated reveler, these powers find their moral justification in that original compact of our forefathers. If we can find no higher source for our legal order, what higher source should we expect these starving unfortunates to find for the order they adopted for themselves? . ..

 

This concludes the exposition of the first ground of my decision. My second ground proceeds by rejecting hypothetically all the premises on which I have so far proceeded. I concede for purposes of argument that I am wrong in saying that the situation of these men removed them from the effect of our positive law, and I assume that the Consolidated Statutes have the power to penetrate 500 feet of' rock and to impose themselves upon these starving men huddled in their underground prison.

 

Now it is, of course, perfectly clear that these men did an act that violates the literal wording of the statute which declares that he who "shall willfully take the life of another" is a murderer. But one of the most ancient bits of legal wisdom is the saying that a man may break the letter of the law without breaking the law itself. Every proposition of positive law, whether contained in a statute or a judicial precedent, is to be interpreted reasonably, in the light of its evident purpose. . . .

 

The statute before us for interpretation has never been applied literally. Centuries ago it was established that a killing in self-defense is excused. There is nothing in the wording of the statute that suggests this exception. Various attempts have been made to reconcile the legal treatment of self defense with the words of the statute, but in my opinion these are all merely ingenious sophistries. The truth is that the exception in favor of self-defense cannot be reconciled with the words of the statute, but only with its purpose.

 

The true reconciliation of the excuse of self-defense with the statute making it a crime to kill another is to be found in the following line of reasoning. One of the principal objects underlying any criminal legislation is that of deterring men from crime. Now it is apparent that if it were declared to be the law that a killing in self-defense is murder such a rule could not operate in a deterrent manner. A man whose life is threatened will repel his aggressor, whatever the law may say. Looking therefore to the broad purposes of criminal legislation, we may safely declare that this statute was not intended to apply to cases of self-defense. When the rationale of the excuse of self-defense is thus explained, it becomes apparent that precisely the same reasoning is applicable to the case at bar. If in the future any group of men ever find themselves in the tragic predicament of these defendants, we may be sure that their decision whether to live or die will not be controlled by the contents of our criminal code. Accordingly, if we read this statute intelligently, it is apparent that it does not apply to this case. The withdrawal of this situation from the effect of the statute is justified by precisely the same considerations that were applied by our predecessors in office centuries ago to the case of self-defense. . . .

 

I therefore conclude that on any aspect under which this case may be viewed these defendants are innocent of the crime of murdering Roger Whetmore, and that the conviction should be set aside.

 

OPINION OF JUSTICE TATTING

 

In the discharge of my duties as a justice of t hi s Court, I am usually able to dissociate the emotional and intellectual sides of my reactions, and to decide the case before me entirely on the basis of the latter. In passing on this tragic case I find that my usual resources fail me. On the emotional side I find myself torn between sympathy for the se men and a feeling of abhorrence and disgust at the monstrous act they committed. I had hoped that I would be able to put these contradictory emotions to one side as irrelevant, and to decide the case on the basis of a convincing and logical demonstration of the result demanded by our law. Unfortunately, this deliverance has not been vouchsafed me.

 

As I analyze the opinion just rendered by my brother Foster, I find that \ it is shot through with contradictions and fallacies. Let us begin with his first proposition: these men were not subject to our law because they were not in a "state of civil society" but in a "state of nature." I am not clear why this is so, whether it is because of the thickness of the rock that imprisoned them, or because they were hungry, or because they had set up a "new charter of government" by which the usual rules of law were to be supplanted by a throw of the dice. Other difficulties intrude themselves. If these men passed from the jurisdiction of our law to that of "the law of nature," at what moment did this occur? Was it when the entrance to the cave was blocked, or when the threat of starvation reached a certain undefined degree of intensity, or when the agreement for the throwing of the dice was made? These uncertainties in the doctrine proposed by my brother are capable of producing real difficulties. Suppose, for example, one of these men had had his twenty first birthday while he was imprisoned within the mountain. On what date would we have to consider that he had attained his majority-when he reached the age of twenty-one, at which time he was, by hypothesis, removed from the effects of our law, or only when he was released from the cave and became again subject to what my brother calls our "positive law"? These difficulties may seem fanciful, yet they only serve to reveal the fanciful nature of the doctrine that is capable of giving rise to them.

 

But it is not necessary to explore these niceties further to demonstrate the absurdity of my brother's position. Mr. Justice Foster and I are the appointed judges of a court of the Commonwealth of Newgarth, sworn and empowered to administer the laws of that Commonwealth. By what authority do we resolve ourselves into a Court of Nature? If these men were indeed under the law of nature, whence comes our authority to expound and apply that law? Certainly we are not in a state of nature.

 

Let us look at the contents of this code of nature that my brother proposes we adopt as our own and apply to this case. What a topsy-turvy and odious code it is! It is a code in which the law of contracts is more fundamental than the law of murder. It is a code under which a man may make a valid agreement empowering his fellows to eat his own body. Under the provisions of this code, furthermore, such an agreement once made is irrevocable, and if one of the parties attempts to withdraw, the others may take the law into their own hands and enforce the contract by violence-for though my brother passes over in convenient silence the effect of Whetmore's withdrawal, this is the necessary implication of his argument.

 

The principles my brother expounds contain other implications that cannot be tolerated. He argues that when the defendants set upon Whetmore and killed him (we know not how, perhaps by pounding him with stones) they were only exercising the rights conferred upon them by their bargain. Suppose, however, that Whetmore had had concealed upon his person a revolver, and that when he saw the defendants about to slaughter him he had shot them to death in order to save his own life. My brother's reasoning applied to these facts would make Whetmore out to be a murderer, since the excuse of self-defense would have to be denied to him. If his assailants were acting rightfully in seeking to bring about his death, then of course he could no more plead the excuse that he was defending his own life than could a condemned prisoner who struck down the executioner lawfully attempting to place the noose about his neck. . . .

 

Since I have been wholly unable to resolve the doubts' that beset me about the law of this case, I am with regret announcing a step that is, I believe, unprecedented in the history of this tribunal. I declare my withdrawal from the decision of this case.

 

OPINION OF JUSTICE HANDY

 

. . . The problem before us is what we, as officers of the government, ought to do with these defendants. That is a question of practical wisdom, to be exercised in a context, not of abstract theory, but of human realities. When the case is approached in this light, it becomes, I think, one of the easiest to decide that has ever been argued before this Court. . . .

 

I have never been able to make my brothers see that government is a human affair, and that men are ruled, not by words on paper or by abstract theories but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses. They are ruled badly when that understanding is lacking.

 

Of all branches of the government, the judiciary is the most likely to lose its contact with the common man....

 

But outside of these fields I believe that all government officials, including judges, will do their jobs best if they treat forms and abstract concepts as instruments. We should take as our model, I think, the good administrator, who accommodates procedures and principles to the case at hand, selecting from among the available forms those most suited to reach the proper result. The most obvious advantage of this method of government is that it permits us to go about our daily tasks with efficiency and common sense....

 

I come now to the most crucial fact in this case, a fact known to all of us on this Court, though one that my brothers have seen fit to keep under the cover of their judicial robes. This is the frightening likelihood that if the issue is left to him, the Chief Executive will refuse to pardon these men or commute their sentence. As we all know, our Chief Executive is a man now well advanced in years, of very stiff notions. Public clamor usually operates on him with the reverse of the effect intended. As I have told my brothers, it happens that my wife's niece is an intimate friend of his secretary. I have learned in this indirect, but, I think, wholly reliable way, hat he is firmly determined not to commute the sentence if these men are found to have violated the law... '

 

.. . I conclude that the defendants are innocent of the crime charged, and that the conviction and sentence should be set aside.

 

JURISPRUDENCE: INTRODUCTORY NOTES

 

Jurisprudence

LAW4420

INTRODUCTORY NOTES

Jurisprudence … has been around since at least the time of the Greek philosopher Socrates (470 – 399 BC). Great minds have sought answers to questions about the nature of law, right and justice, but questions persist. This says as much about the complexity of these ideas as it does about the limits of our language and reason. Theories that have been proposed answers to questions have themselves become subjects of ongoing debate. (Ratnapala)

ISSUES CONFRONTING THE SUBJECT:

General issues and questions confronting students approaching jurisprudence are the following:

• Questions of definition,
  
• Questions of scope and content, and
  
• Questions of relevance.
  

These allow students to have initial appreciation of

• the nature and scope of the subject, as well as the
  
• mode and purpose of the inquiry which it involves.
  

QUESTIONS OF DEFINITION – WHAT IS JURISPRUDENCE?

Many writers point out that it is difficult to give a universal and uniform definition of jurisprudence.

 

For not only does every jurist have his own notion of the subject-matter and proper limits of jurisprudence, but his approach is governed by his allegiances, or those of his society, by his "ideology".

 

Moreover, the growth and development of law in different countries have been under social and political conditions. The words used for law in different countries convey different meanings. The words of one language do not have synonyms in other languages conveying the same meaning. Hence, the word "jurisprudence" is not generally used in other languages in the English sense. In French, it refers to something like "case law'.

 

The evolution of society is of a dynamic nature. This causes the difficulty in accepting any one definition by all. New problems and new issues demand new interpretations and new solutions under changed circumstances.

 

Hence, "jurisprudence: remains an imprecise term. Accordingly, it is sometimes used to refer to a body of substantive legal rules, doctrines, interpretations and explanations that make up the law of a country: thus, English, French, or German jurisprudence refers to the laws of England, France and Germany. At other times, it may also refer to the interpretation of the law given by a court. Thus, we speak in this sense of the constitutional jurisprudence of the US Supreme Court, the High Court of Australia, and the jurisprudence of the European Court of Human Rights. Jurisprudence in this sense is not synonymous with law, but signifies the juristic approaches and doctrines associated with particular courts.

 

Meaning of Jurisprudence

The study of jurisprudence started with the Romans. The Latin equivalent of jurisprudence is "jurisprudentia", which means either "knowledge of law" or "skill in law".

Ulpian, a Roman jurist, defines jurisprudence as "the knowledge of things divine and human, the science of the just and unjust". Another Roman jurist, Paulus, maintains that "the law is not to be deduced from the rule, but the rule from the law".

The Roman jurists, thus, put forth the idea of a legal science independent of the actual institutions of a particular society. In a more modern term, it is claimed that through jurisprudence "law is getting conscious of its reality" in the same way that people become aware of building structures and designs through architecture. "The primitive people started constructing hut and houses without any study of architecture. It was only after thousands of years that people thought of having some science of building houses. And with the study of architecture, human beings could go ahead and think of new designs and structures of buildings." (Hari Chand)

In England, the word jurisprudence was used throughout the early formative period of the common law, but as meaning little more than the study of or skill in law. It was not until the early part of the 18^th century that the word began to acquire a technical significance among the English lawyers. Thus Bentham distinguished between examinations of the law as it is and as it ought to be. ('expositorial' and 'sensorial' jurisprudence). And John Austin placed a focus on formal analysis of the structure of the English law.

There has been a shift during the last one century and jurisprudence is viewed in a broader and a more sweeping sense than that which Austin understood it. Karl Llewellyn, an American legal realist, describes jurisprudence in this term: "Jurisprudence is as big as law - and bigger." These words have been interpreted to mean that jurisprudence has something more to it than the law itself, although what makes it bigger than law remains unspecified.

Similarly, the scope of inquiry of jurisprudence now ranges over many different subjects and touches on many other disciplines - economic, politics, sociology and psychology – normally regarded as having little to do with law and legal study. Hence, Julius Stone described jurisprudence as the lawyer's "extraversion". It is the lawyer's examination of the precepts, ideals and techniques in of the law in the light derived from present knowledge in disciplines other than the law." Lord Radcliffe writes: "[W]e cannot learn law by learning law. If it is to be anything more than just a technique, it is to be much more than itself: a part of history, a part of economics and sociology, a part of ethics and philosophy of life."

Lloyd:

 

"When the first edition of this book [Jurisprudence] appeared in 1959 jurisprudence was still something of a "dirty word". Since then, it may be said to have come of age. Instead of regarding rules of law as simply something to be accepted as part of the natural order of society, every aspect of the legal system, the legislative and judicial process, the working of the legal profession, the nature and functioning of law are now recognised as legitimate and indeed pressing fields of study. The urge to understand and appraise the relevance of the subject-matter must lead directly from the apparatus of the rules and principles of the law to jurisprudential exploration of their meaning and their effects in society."

 

Dias and Hughes describe jurisprudence as "any thought or writing about law, other than technical exposition of a branch of the law itself." So, for instance, if X writes a book about the economic effect on the families of convicted prisoners on their convictions, this could be called contribution to jurisprudence.

For Lloyd, jurisprudence involves the study of general theoretical questions aboutthe nature of laws and legal systems, about the relationship of law tojustice and morality and about the social nature of law. A proper discussionof questions such as these involves understanding and use ofphilosophical and sociological theories and findings in their applicationto law.

 

Interdisciplinary quality of jurisprudence

The interdisciplinary quality of current jurisprudence means that a student of the subject has to touch on matters that would normally belong to such diverse other disciplines as philosophy, political theory, economic theory, sociology, anthropology, history, theology and even geography.

As Tim Murphy puts the point, theorizing about law necessarily involves substantial engagement with other disciplines – Julius Stone famously described jurisprudence as the lawyer's "extraversion". M Van Hoecke has suggested that jurisprudence could be defined as "critical external reflection on law", where "external" means not from the internal point of view of the doctrinal analysis of the law within one specific legal system.

This critical external reflection on law is undertaken by many non-lawyers and non-legal materials and methodologies are frequently invoked in jurisprudential debates. In addition to encountering philosophy, theology, sociology, economics and several other modes of thought, students of legal theory are faced with a historical canvas that begins in approximately the fifth century BC with the Greek philosophical tradition.

 

NATURE OF JURISPRUDENCE

According to Lloyd, it is difficult to characterize jurisprudence: there are many rooms in its mansion. But, broadly, it is concerned with rule-governedaction, with the activities of officials such as judges and with the relationshipbetween them and the population of a given society.

Hence, Hart categorised his elucidation of the concept of law as an "essay in descriptive sociology." But whether jurisprudence is a social science or not, the debates about methodology in the social sciences between positivists or empiricists and practitioners of hermeneutics are echoed in juristic literature. Much classical jurisprudence (the writings of Austinand Bentham for example) is positivist in its approach to social knowledgeand indeed we call their legal theories positivist. There is much, however, in contemporary juristic writing, that of Hart and Dworkin, to take just two outstanding examples, which uses the insight of hermeneutics.

Jurisprudence as science?

Some jurists view jurisprudence as a science.

Salmond: "If we see the term science in its widest permissible sense as including a systematized knowledge of any subject of intellectual inquiry, we may define jurisprudence as the science of civil law."

Keeton: He considers jurisprudence as a science concerning the "study and systematic arrangement of the general principles of law". Hence, for instance, jurisprudence considers the elements necessary for the formalization of a valid contract but does not attempt to enter into a full exposition of the detailed rules of the law of contract.

Roscoe Pound: Pound defines jurisprudence as "the science of law, using law in the judicial sense, as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice."

Gray: Jurisprudence is "the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules."

Lee: Jurisprudence "is a science which endeavours to ascertain the fundamental principles of which the law is the expression. It rests upon the law as established facts; but at the same time it is a power in bringing law into a coherent system and rendering all parts thereof subservient to fixed principles of justice."

CK Allen: Jurisprudence "is the scientific synthesis of all the essential principles of law'"

Holland: Jurisprudence is "the science of positive law". The term positive law has been defined by Holland as "the general rule of external human action enforced by a sovereign political authority."

WG Paton: Jurisprudence "is a particular method of study, not of law in one country, but of the general notion of law itself. It is a study relating to law."

Clark: Jurisprudence is the science of law in general. It does not confine itself to any particular system of law but applies to all the systems of law or to most of them. It gives the general ideas, conception and fundamental principles on which all or most of the systems of laws of the world are based.

Ratnapala: Jurisprudence refers to the scientific and philosophical investigations of the social phenomenon of law and justice generally. It embraces studies, theories and speculations about law and justice undertaken with the knowledge and theoretical tools of different disciplines – such as law, history, sociology, economics, political science, philosophy, logics, psychology … and even physics and mathematics. No discipline is unwelcome that sheds light on the nature of law and its relation to society.

 

The normative character of law

Lloyd is of the view that the emphasis on law as a science can lead to a neglect or even a denial of a critical aspect of the concept of law. This is particularly so wherejurisprudence is seen, as the Realists see it, as a study of factual patterns of behaviour. But human laws are not in themselves statements of fact, they are rules or norms, which prescribe a course of conduct, and indicate what should happen in default. The sanction, however, is not usuallyconnected in an empirical sense with the rule or its breach, but is merely indicative of what the rule itself prescribes, as the consequence of non-compliance. This is, therefore, a particular form or use of language different from that part of language concerned with propositions of fact,but it is no less legitimate usage than factual statements, and, is indeed,related to a whole group of similar "normative" usages, such as commands,exhortations, and moral, ethical, or religious codes or rules ofconduct." Hence normative rules must be carefully distinguished fromphysical laws, which state causal connections. The latter are subject toverification; that is, they can be true or false; but the notion of truth orfalsity is inapplicable to normative rules. Such rules simply state whatshould or "ought to" happen. This is the distinction made by Kantbetween sein (being) and solen (ought) which is so emphatically broughtout by Kelsen," and which tended to be obscured or even rejected in the earlier writings of the Realists. Of course, it must be borne in mind thatthe use of the word "ought" does not necessarily imply moral obligation,for in relation to a purely positive rule, such as a legal duty of care, the"ought" merely relates to the duty of compliance with the rule on pain ofsuffering the prescribed penalty.

    

JURISPRUDENCE AS ACADEMIC SUBJECT

As an academic subject offered in a university law curricula, jurisprudence is occupied with different issues and generally takes a different approach from other, mainly substantive or black-letter, law subjects (such s contract, tort, land law, trust, evidence, etc.), in the manner in which it deals with the subject matter of its inquiry.

The difference involves the devices – terminological and methodological – which it employs.

As Michael Doherty puts the matter, jurisprudence is a different sort of subject to study from most of the law which largely deal with case law and statutory materials. The reason is that in jurisprudence, it is ideas, and not facts, that are at a premium. There is, relatively, a greater proportion of abstract, theoretical material in jurisprudence, and students often fail to come to terms with it.

Further, according to John E Finnis, "Jurisprudence is not a course on law, but rather an exploration into the philosophy and nature of law."

There are many terms used in Jurisprudence which many students are relatively unfamiliar with. These terms belong more to the realm of philosophy than to that of law.

Ian Mcleod has also pointed out that for students of legal theory the primary sources are frequently not cases or legislative enactments, but the works of legal theorists. Furthermore, legal theorists are not necessarily lawyers, because the subject matter is inextricably linked with both philosophy and political theory. A W Friedmann puts it:

'all legal theory must contain elements of philosophy – man's reflections on his position in the universe – and gain its colour and specific content from political theory – the ideas entertained on the best form of society.'

More particularly:

'Before the nineteenth century … the great legal theorists were primarily philosophers, churchmen and politicians.'

and

'the new era of legal philosophy arises mainly from the confrontation of the professional lawyers, in his legal work, with problems of social justice.

'… It is, therefore, inevitable that an analysis of earlier legal theories must lean more heavily on general philosophical and political theory, while modern legal theories can be more adequately discussed in the lawyer's own idiom and system of thought. The difference is, however, one of methods and emphasis. The modern jurist's legal theory, no less than the scholastic philosopher's, is based on ultimate beliefs whose inspiration comes from outside the law itself.'

Ian Mcleod, p. 4   The most practical consequence of the fact that many legal theorists are not lawyers is that some of the skills required to read and evaluate texts drawn from non-legal disciplines may not come easily to law students, whose habits of conceptualizing, and whose expectations or language and those who use it, have been conditioned by the protracted study of legal texts. One of the characteristics which the other academic disciplines may possess, when contrasted with law, is a greater dependence on soft concepts, in the sense that the concepts are, in their very nature, incapable of the degree of precise verbal formulation which would enable their exact content and limits to be easily identified. It follows that some law students, who often used to working with harder (using the term harder in the sense of more precise) concepts, may well find that it takes time to adapt to some aspects of the academic discipline involved in legal theory. However, this adaptation is part of the mind-broadening process of education, and must be accepted as a valuable part of the academic challenge which the subject presents.   Denis Meyerson p1   Studying jurisprudence means stepping back and reflecting on the ideas and assumptions that underlie and thereby define legal practices and institutions. Whereas in other law courses one studies areas of substantive law, jurisprudence studies law in a much more general way, and asks much more abstract and theoretical questions about law as such.

 

THE SCOPE OF JURISPRUDENCE

There is no unanimity of opinion regarding the scope of jurisprudence. Different authorities give different meanings and verifying premises to law that causes difference of opinions with regard to the exact limits of the field covered by jurisprudence.

Some jurists, particularly those in the natural law school, so define jurisprudence as to cover moral and religious precepts; this has created confusion.

However, Austin, as a positivist, drew a clear distinction between law, on the one hand, and morality and religion, on the other hand, and restricted the terms to the body of rules set an enforced by the sovereign or supreme law-making authority within the realm. In his view the science of jurisprudence is concerned with positive law, with "laws strictly so-called". It has nothing to do with the goodness or badness of law.

In this regard, Huntington Cairns remarks:

The analytical jurist [such as Austin] did in fact produce a determinate system but its weakness was that it took very little, if any, account of social phenomena. As such, it failed to meet the needs of common life and if the law has accepted its iron-bound fetters the legal process would have soon become unworkable and intolerable. A science of law based upon an inadequate theory of human society concentrates attention upon the principal problems confronting the jurist; their solution, as a consequence, proceeds with greater rapidity.

Generally, today, the tendency has been to widen the scope of jurisprudence to include what was previously considered to be beyond the province of jurisprudence. It includes all concepts of human order and human conduct in State and society. Anything that concerns order in the State and society falls under the domain of jurisprudence. PB Mukherji writes that new jurisprudence is "both an intellectual and idealistic abstraction as well as behaviouristic study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to State and society."

Thurman W Arnold comments that jurisprudence is "the shining but unfulfilled dream of a world governed by reason. For some it lies buried in a system, the details of which they do jot know. For some, familiar with the details of the system, it lies in the depth of an unreal literature. Fr other, familiar with its literature, it lies in the hope of a future enlightenment. For al, it is just around the corner."

Jurisprudence as a study of Law and Government

(Veitch et al, p. vii) Adam Smith, the Professor of Moral Philosophy, defined the term jurisprudence as 'the theory of the rules by which civil governments ought to be directed', otherwise, 'the theory of the general principles of law and government' (Smith 1978, pp5 and 398). This he saw as comprising four main objects:

• the maintenance of justice;
  
• the provision of police;
  
• the raising of revenue; and
  
• the establishment of arms.
  

Notable in Smith's theory of law and government is that it requires that we attend not merely to matters of the definition or application of law, but also of how these relate to politics and the practice of governing. As well his approach to the topic involves a method that is both historical and sociological: that is, he is concerned with both the question of understanding the historical development of forms of law and government, and that of how it relates to stages of social and economic development of the society to be governed.

The contemporary study of jurisprudence rarely aspires to a comparable breath in either subject matter or method. Anglo-American jurisprudence, indeed, has for a long time been more interested in law than government, has focused more on abstract rules than institutions, and has paid patchy attention to the historical and sociological context within which law band legal and political institutions develop. This risks undermining the relevance of the subject.

Jurisprudence is the study of law and legal institutions in their historical, philosophical and political contexts. The study of law in this sense cannot be abstracted from the questions of the nature and theory of government: indeed, the two must be considered in relation to each other. Issues considered:

• relation between law and politics;
  
• relation between law and the economy;
  
• relation between law and moral values;
  
• role of judges in democracy;
  
• the virtues of the rule of law and threats to its realization in practice.
  

 

ALTERNATIVE TERMS USED FOR JURISPRUDENCE: LEGAL THEORY

According to Tim Murphy, jurisprudence, as the philosophical pursuit of wisdom about law, legal system and justice, is also known as "legal theory" or "legal philosophy", or sometimes as the "science of law".

However, Ratnapala is of the view that the term 'legal theory' is associated specifically with theories seeking to answer the question: what is law? It is a specific project in jurisprudence. John Austin, the 19^th century legal positivist, thought that this was the only project in jurisprudence. Most British legal positivists since Austin have also tended to limit their inquiries to the task of finding a universally valid definition of law or set of criteria to distinguish law from other kinds of rules. The best known of the modern British legal positivists, Herbert Hart, devoted his book The Concept of Law to the challenge of showing how rules of law are different from: (a) commands such as those of a gunman who relives you of your wallet; (b) moral rules that fall short of law; and (c) mere coincidences of behavior that represent social habits or practices. Legal positivists, thus, prefer the term 'legal theory' to describe what they do.

Ratnapala also notes that legal theory does not stop with the range of questions posed by the positivists. A theory is a testable hypothesis or proposition about the world. It is possible to theorize about many other aspects of the phenomena of law, such as the law's origins, its emergent quality, its role as a factor of production, its psychological force, and so on. Hence, legal theory, when used in relation to the central themes of legal positivism, should be understood as limited to theories about the idea of law and its basic concepts.

Ian Mcleod also points out that it is particularly Anglo-American idea to treat legal theory as being more or less synonymous with jurisprudence. In French, for example, the word jurisprudence means the body of law developed through the decisions of the courts. This explains the use of the phrase Strasbourg jurisprudence to identify the law contained in the European Convention on Human Rights as developed by the European Court of Human Rights at Strasbourg. The phrase theoriegenerale du droit, on the other hand, reflects the theoretical nature of that kind of material which, in the Anglo-American usage, is called jurisprudence.

 

In America, as Roscoe Pound has pointed out, the word 'jurisprudence' has been used to some extent in the French sense. Thus the phrase "equity jurisprudence," meaning the course of decision of Anglo-American courts of equity, has been fixed in good usage by the classical work of Justice Story. Thus, the meaning of the term jurisprudence throws some light on the nature of American jurisprudence with its emphasis on the nature of the judicial process and theories of adjudication. When the judge is faced with hard cases, the question arises as to where does he get his law from when the statutes or existing decisions do not help? This is where the theories of law, and the political philosophy of the judge, whether he has one or not, become relevant.

Descriptive and Normative Legal Theory (from Raymond Wacks)

It is important to distinguish carefully between two principal forms of legal theory. Descriptive legal theory seeks to explain what the law is, and why, and its consequences. Normative legal theories, on the other hand, are concerned with what the law ought to be. Put differently, descriptive legal theories are about facts; normative legal theories are about values.

Descriptive legal theory may, first, be 'doctrinal'. It provides a theory to explain a particular legal doctrine. For example, freedom of expression might be justified by decisions of the courts on the limits of free speech. Doctrinal legal theory seeks to answer questions such as 'Can these case be elucidated by some underlying theory?' Secondly, descriptive legal theory may be 'explanatory'; it attempts to explain why the law is as it is. Marxist legal theory, for example, is explanatory in this sense, for it offers an account of law as expressing the interests of the ruling class. A third form of descriptive legal theory concerns the consequences that are likely to follow from a certain set of legal rules. For example, economic analysis of law might use their tools of analysis to assess the probable behavioral effects of a strict liability regime on manufacturers.

Normative legal theory, on the other hand, is concerned with values. Such a theory, may, for instance, seek to establish whether strict liability ought to be adopted in order to protect consumers. Normative legal theories tend inevitably to be associated with moral or political theories. In pursuing an evaluation of the law, normative legal theories might be either 'ideal' or non-ideal'. The former relates to what legal rules would create the best legal system if it were politically achievable. The latter presupposes an assortment of constraints on the choice of legal rules, such as the difficulty of enforcing such rules.

But there is no clear-cut distinction between these two categories of legal theory. A normative theory may rely on descriptive theory to obtain its purchase. Thus, it is hard to sustain the normative theory of utilitarianism without descriptive account of the consequences of the application of a specific rule. How would a utilitarian know whether rule X causes the greatest happiness (result Y) without a description of these consequences? Similarly, a descriptive legal theory may, on the basis of prediction about the likelihood of success of, say, law reform, put brake on the normative legal theory that gave birth to the improvement.

Note: In recent years in Anglo-American jurisprudence, they have been joined, largely through the work of Ronald Dworkin, by a third type of legal theory, an interpretive theory.

 

Guess   It is vital early on to get a 'feel' for what the different juristsyoustudy are trying to do. It is important to distinguish a 'descriptive' theory – loosely, one that describes things 'as they are', as a geographer might describe a continent, or a riverbed – from a 'normative' theory. This latter causes some difficulty at first, because of the unfamiliarity of the term. But it means a theory which says how people ought to or may behave (or must, or should, etc. … you'll get the idea). You should therefore be able to see why normativity and rule following are two closely related ideas. Laws are normative because they tell people how they ought to, or may, behave. And a moral theory like utilitarianism is a normative theory because it says that people ought to act in the interest of the general happiness. There are two important things to note. Examination candidates often misunderstand them:   A theory can be descriptive and normative at the same time. This would be the case where a theorist said 'this is what law is like' and 'this is how we ought to regard law'. Some people have argued that the best way to read Hart is like this. The subject matter of a descriptive theory can be normative. A descriptive theory of law will often be like this, since the subject matter is at first sight normative. For example, we might describe part of the law of England by saying 'The law is (description) that people ought not (normativity) to obtain property by deception, according to s.15 of the Theft Act 1968.'   Hart, Dworkin, Raz and Finnis are very sensitive to these differences, but many other theorists are not.   Theory and evaluation   Subtle awareness of the role of evaluation in theorising is displayed by Finnis in Chapter 1: 'Evaluation and the description of law' of his Natural Law and Natural Rights. It is difficult to read but it is well worth it. What is interesting is his affirmation of the theoretical approach devised by Weber (see Chapter 12 of this subject guide):   '… that the evaluations of the theorist himself are an indispensable and decisive component in the selection or formation of any concepts for use in description of such aspects of human affairs as law or legalorder.'   Try to see what this means by considering the following comparison between two evaluative theories of what baldness is. If we can see differences here, it would seem that the case is clearly established for seeing differences in something like law. The trichologist, whose job it is to sell hairpieces and baldness cures, is only interested, qua baldness, in the inability to grow hair. His skinhead son, not interested in earning a living, thinks baldness is a style thing, one for which the ability to grow hair is necessary as it shows youth, vitality and sexual power. Dad and son might ask each other to revise their central conceptions of baldness ('it's where the money is, son'; 'style's more important than money, Dad'). It seems right to say, along with Finnis, that these differences in outlook cannot be resolved by reference to language.   The approach to theorising I've just outlined is much more prevalent now, although there is a school of jurists who think that proper philosophical analysis proceeds by way of descriptive accounts of the 'concepts' that we already have. For example, Hart maintains that view in the Postscript to The Concept of Law, saying that there is a difference between the characterisation of a concept and what he calls 'its application' (although he is a little obscure here). Other jurists, with Raz, take the view that law is a concept that can be characterised in a way that it is independent of adopting any evaluative point of view in Finnis's sense. These jurists can therefore conclude that Dworkin is wrong to identify questions to do with the justification – Hart's 'application' – of particular legal decision with law as a whole. That is, legal theorists according to Raz should characterise and describe the concept of law independently of trying to say that it should serve a special purpose.   Hart's methodology   For a real insight into what Hart thought methodology in jurisprudence was about, however, you should read Chapter 9 of The Concept of Law very carefully, making notes whenever you think Hart is making a methodological point. You will note that he spends much time debating the merits of choosing a 'wide conception of law' over a 'narrow conception of law', this latter being the natural law conception. You might have noted in passing that he has moved from talk about 'the concept' of law, to two rival conceptions. And then he makes the give-away remark, on p. 209,that 'Plainly we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage'. Seen against the background of his whole approach in the first part of the book, where he refers to 'linguistic usage', for example, to distinguish the gunman situation from the legitimate taxman situation (the gunman merely 'obliges'; the taxman 'imposes an obligation') this is a striking thing to say. Finally, Hart, in one of the most important paragraphs of his work, says that the main reason for identifying law independently of morality – in other words, his justification for legal positivism – is to preserve individual conscience from the demands of the state:'What surely is most needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny.' (p. 210)   You should note, too, Hart's retrospective admission in the Preface to his Essays in Jurisprudence and Philosophy, at pp. 5–6, that it is a mistake to think that all questions can be solved with reference to the way we actually speak.     The 'interpretive' approach   One way of taking up these questions about the role of evaluation in the discussion of concepts is to draw a distinction between 'concepts' and 'conceptions'. Concepts, we might say, are relatively loose and uncontroversially accepted sets of ideas, perhaps the sorts of thing dictionary definitions are, overall, concerned with. So a dictionary will tell us that 'law' is to be distinguished from 'bicycle' because people just uncontroversially accept that 'law' has to do with rules, sanctions, courts, and so on, and 'bicycle' has to do with pedalled vehicles, two wheels and so on. It only gets interestingwhen some theorist proposes a way of looking at the 'concept'.   Then we might say that he proposes a conception of it. So Fuller's 'conception' of law differs from, say, Weber's 'conception', because Fuller thought law could only be characterised in a moral way, whereas Weber thought it could only be characterised, as Hart does in the earlier part of The Concept of Law, as value-free. It was through a distinction between concepts and conceptions, and dissatisfaction with the rigidity of the distinction between 'descriptive' and 'normative' accounts of law, that Dworkin introduced into his theory the methodology of the 'interpretive concept'. Dworkin says that the essential idea in interpretation is 'making the best of something that it can be', and this very abstract idea is to be applied to the idea of law. A number of ways can be used to describe the idea of making the best of something. The quickest way to the idea is through the notion of a thing having point, for example. Ask yourself what the point of the thing you are interpreting is, the way you might ask yourself 'what is the point of the prohibition of vehicles in the park' in the course of producing a legal argument about roller skates. But another metaphor is that of placing a thing in its 'best light', whereby we assume that the thing has some point and we examine it as thoroughly as we can to see what is the most sensible way of viewing it.   Summing up   All these questions are deep questions of methodology in general, but you should think about them particularly in formulating your approach to jurisprudence. You should be aware of them since they will help you to steer your way through the various theories and adopt an attitude. If you can lift yourself in thinking about jurisprudence from merely saying 'what other people said' to 'what I think', you have oriented yourself correctly. You should not be deterred by the eminence of these theorists, or by the apparent abstraction of these ideas. You should be able to say something of interest and sense to an examiner and thinking about these things will help your own approach to legal argument as a lawyer because it will make you think about the methodology you are employing yourself in constructing legal arguments.

 

Approaches to Study of jurisprudence

John Austin, the 19^th century British positivist, says that there are two ways of studying jurisprudence which he categorizes into general jurisprudence and particular jurisprudence. General jurisprudence includes such subjects or ends of law which are common to systems of law while particular jurisprudence is confined only to the study of any actual system of law or any portion of it. Generally, therefore, general jurisprudence is an attempt to expound the fundamental principles and broadest generalizations of two or more systems. It is the province of general, pure or abstract jurisprudence to analyse and systematize the essential elements underlying the indefinite variety of legal rules without special reference to the institution of any particular country. Particular jurisprudence is the science of particular law. It is the science of any system of positive law actually obtaining in a specifically determined political society.

As a comparative lawyer Austin thought it was blind of lawyers to be concerned only with their own particular system. What was needed was a general overall view of the structure and content of law, a view of the nature of law. In this way, he thought, lawyers could fully appreciate in practice what they were doing.

 

However, general and particular jurisprudence differ from each other only in terms of scope, but not in their essence. The field of general jurisprudence is a wider one. It takes its data from the systems of more than one State while particular jurisprudence takes its data from a particular system of law. Its principles are coloured and shaped by the concrete details of a particular system. However, in both cases, the subject of jurisprudence is positive law.

Nyazee, p.3   "As Austin's method of was exclusively analytical, a narrow meaning of jurisprudence became current in English speaking countries. "It [this concept of jurisprudence] thinks of law as an aggregate of laws and of laws as rules, and this narrow definition of law gives a narrower limitations of the science of law." In this sense jurisprudence might be called the comparative anatomy of developed systems of law. Pound says: "This is one side of the science of law (jurisprudence). I shall call it analytical jurisprudence."

 

 

FIELDS OF JURISPRUDENCE

• Analytical jurisprudence – involves the 'scientific' analysis of legal structures and concepts and the empirical exercise involved in discovering and elucidating the basic elements constituting law in specific legal systems. The question to be answered – "What is the law?"
  
• Normative jurisprudence – focuses on the evaluation of legal rules and legal structures on the basis of some standard of perfection and the specification of criteria for what constitutes 'good law'. Preoccupied with the question of what the law ought to be?
  
• General (analytical) jurisprudence – an abstract study of the legal rules to be found generally in the more developed legal system.
  
• Particular (analytical) jurisprudence – specific analysis of the structures and other elements of a single legal system.
  
• Historical jurisprudence – historical development and growth of legal systems, and the changes involved in that growth.
  
• Critical jurisprudence –intended to provide an estimation of the real value of existing legal systems, with a view of providing proposals for necessary changes to such systems.
  
• Sociological jurisprudence – clarify the link between aw and other social phenomena, and to determine the extent to which its creation and operation are influenced and affected by social interest.
  
• Economic jurisprudence – investigates the effects on the creation and application of the law of various economic phenomena, eg, private ownership of property.
  

(Sandra Berns, p.v)

In jurisprudence today no settled paradigms prevails. Legal literature reflects this lack of consensus. Traditional schools of jurisprudence, such as positivism and natural law, vie for hegemony with contemporary mainstream movements such as law and economics, law and literature, and jurisprudence of rights. New voices have emerged from hitherto marginalized groups. Feminist jurisprudence, critical race theory and the critical legal studies movement have, during the last 10 years, assumed new prominence. Many of these schools have been influenced by philosophical ideas quite alien to the Anglo-American tradition of analytic philosophy, drawing upon Hegelian philosophy, existentialism, structuralism, deconstructionism and more recently semiotics. Despite the proliferation of new voices and new responses much of the landscape traversed is familiar.

EMERGING FORMS OF JURISPRUDENTIAL THINKING

Dickson (2003, p66) provides an account of the diverse forms that jurisprudential thinking can take:

• Law and economics;
  
• The sociology of the judiciary;
  
• Comparative legal analyses;
  
• Criminology;
  
• Legal anthropology;
  
• Methods of alternative dispute resolution;
  
• Constitutional interpretation;
  
• Accounts of the relation and interaction between law and other kinds of social norms;
  
• The role of artificial intelligence in legal reasoning;
  
• Philosophical treatment of the black-letter law areas – philosophy of contract law, tort law, and criminal law;
  
• Critiquing the traditional ways of conceiving law in critical legal scholarship.
  

 

 

 

McCoubrey & Nigel D White Chp. 6   Islamic jurisprudence   … Islamic law is a religious law, founded upon the Qu'ran revealed to the Prophet Muhammad. As with any anciently established system of religious law, its jurisprudence is called upon to deal with two basic structural issues. The law was revealed, by definition, at a given point in history and it has therefore been necessary to developed modes of interpretation to enable the application of legal rules and principles in social circumstances in some ways very significantly different from the context in which they were first received. This is not, of course, an issue in itself unique to Islamic law … but the structure of this law and its particular relation to the social structures which it moulds and guides render this processes in the present case of especial importance both in legal theory and practice. There is then also the question of the relations with 'secular' provision, which is to some degree permitted in Islam.   … a preliminary question arises as to the basic character of Islamic legal theory. Is it to be considered a form of 'naturalism' as its religious base and ethical structure must seem strongly to suggest, or is it better considered to be sui generisin its character and essentially outside such categorization?   [The first point to be understood is that the Islamic theory of law is not, as most western naturalism is, a theory about law upon the basis of which comparisons and evaluations may be made about its substance. On the contrary, Islamic law, the Shari'a, in the Muslim concept quite simply is the law. In this sense Islamic jurisprudence should not strictly be seen as either 'naturalist' or 'positivist' in character since these categories have little real meaning in a Muslim context.]   [However, whilst this is true in principle, the reality is, inevitably, somewhat more complex. In practice Islamic States, and multi-cultural States in which Islam is the dominant faith tradition, do have 'secular' law-making institutions and indeed do by necessity.]   [The Shari'a lays down both highly specific rules and broad principles and the latter at least require implementation in given and mutable, social circumstances which may differ in a number ofregards from those which obtained in the lifetime of the Prophet … Basic principles of social responsibility within the law, however, indicate clearly what sort of measures are required and these can be translated into specific rules by a 'secular' legislative process. In many Islamic States there will be one or another form of Religious Council which advises the government upon the Shari'a rectitude of its 'secular' legislation. Such constitutional mechanisms come quite close at least to certain aspects of historical naturalism …]   The Structure and Sources of Islamic Law   The Shari'a is considered a holy law revealed by Allah through the prophet Muhammad. The matter of divine origin is fundamental to Islamic jurisprudence and the bedrock and primary source of Islamic law is the text of the Qu'ran received by the Prophet … As suggested above, the Qu'ranic texts of course required and require interpretation and application and in these processes lie much of the Islamic 'science' of jurisprudence. One possible source of confusion is immediately obviated in that only the classical Arabic text is accepted as authentically the Qu'ran – translations are permissible but are not in themselves authoritative. All other 'sources' of the Shari'a are thus not in any way conceived as alternatives to or variations of Qu'ranic norms but rather as parts of the process of Tafsir – interpretation and clarification. The accepted hierarchy and significance of these other 'sources' was established by one of the greatest of early Islamic jurists, Muhammad ibn-Idris ash-Shafi'i…   [A significant amount of customary Arabian practice was almost certainly ingested into the Shari'a which came thereby to have attributed to it the authority of God … Although Muslims refer to the period before the Prophetic revelation as 'the time of ignorance' it was never suggested that everything which had gone before should ex hypothesi have been abandoned. The point which is worth emphasizing in the present context, is that the development of Islamic jurisprudence has by no means so simple as some of the adherents and its opponents seem to wish to suggest.   The most important of the sources of the Shari'a beyond the Qu'ran itself is treated in effect as a supplementary, but not alternative, primary source and is the Sunnah – the life and teaching of the Prophet.

 

THE COMMONLY ASKED QUESTIONS ABOUT LAW AND JUSTICE WITHIN JURISPRUDENCE

• Where does law fit into our lives and our society viewed as a whole?
  
• What is the function of value of law in society?
  
• Why law is important?
  
• What would a society be like without it?
  
• What contribution to the world is being made by those who have devoted a large part of their lives to legal practice?
  
• Why should we obey the law?
  
• A legal system provides norms by which we are supposed to live, but what is the difference between these norms and the norms prescribed by morality, or by a religion?
  
• Where does the authority of a legal system come from?
  
• Are laws necessarily good, in the sense of having a moral basis?
  
• What is the relation between law and morality?
  
• Is it possible for law and morality to be in conflict, so that we may sometimes be morally obliged to disobey law?
  

  
   

(Tim Murphy, p 5) – This is what jurisprudence amounts to: disquisitions or discussion about law, about legal systems or justice. Generally speaking, jurisprudence examines the many alternative responses to questions such as:

• "What is law?"
  
• "What is justice?"
  
• "What is the relation between law and justice?";
  
• "What constitutes a legal system?"
  
• "What roles do law and legal systems play in society?"
  
• "What do courts actually do when they adjudicate?" and
  
• "Whose interests are served by the law?"
  

Guess   Jurisprudence consists of the study of the nature of law and its related ideas. Many of the difficult problems are purely philosophical. The following are such problems, and you will be expected to develop your own views in relation to them. What is definition? What is a rule? What is law? What is morality? What is justice? What is a critical standpoint?   But there are also interesting questions of political morality which impinge on your life. Examples are: Should the law enforce conventional morality? What is the relationship between freedom and equality? How should difficult legal cases be decided? Can equality take into account differences between sexes? Should judges be concerned with economic questions? What follows from a person's 'having a right' to something? What is the justification, if any, for punishing people? Should 'hate speech' be a criminal offence? Jurisprudence will help you formulate your convictions on these vital questions.   There are, finally, interesting questions of sociology and history. The following are such questions. What generally shaped the law in Western societies? What were the main claims of the feminists? What major trends influenced law schools in the United States in the twentieth century? What are the effects of law? What events can be shaped by the adoption of laws? Is law of any sort naturally repressive – or liberating?

 

(Denis Meyerson p1) – Jurisprudence is a branch of philosophy – the branch which deals with philosophical questions about the nature, purpose and operation of law.

 

Ratnapala, p.3   The range of questions about law and justice asked within … jurisprudence is indefinite. What is law, and can it be defined? What are the historical origins of law? How do rules of behavior emerge in a society before they are recognized or enforced by the state? Is there a basic set of rules that make social life possible? How does law shape society? What qualities must law possess to be effective? How do judges decide hard cases? Whence comes their authority? Is there superhuman natural law? If so, how do we find its principles? Why do people obey some laws even when they face no sanction for disobedience? Is there a duty to obey an unjust law? Can we make moral (or economic) judgment about particular laws or legal systems? What do we mean by justice? Is there a special brand of legal justice? Are there universal standards of justice? What is natural justice and what are its minimum demands? What do we mean by social justice?   These questions are not just interesting in themselves, but are critical for understanding the phenomenon of law and its relation to justice. They are legitimate questions in jurisprudence …

 

 

THE QUESTIONS COMMONLY POSED IN GENERAL JURISPRUDENCE

There are many ways to arrange the questions posed in general jurisprudence. The following are the common ones:

• What is law?
  
• What is a law?
  
• What is a legal system?
  
• Should law enforce morality?
  
• How does the nature of society affect law?
  
• What role/s does law play in society?
  
• What is the purpose of law?
  
• Is law necessarily just?
  
• What are the appropriate criteria for assessing a legal theory?
  

These questions demonstrate that general jurisprudence is an area where the work of the legal scientist overlaps with other disciplines such as the study of morality, anthropology, politics and economics.

Harris – general jurisprudence is of little value in instilling the technical skills of legal reasoning and argumentation. These skills come from 'immersing oneself in substantive legal studies'. However, some value can be gained in particular jurisprudence which involves speculations about particular legal concepts such as rights and duties.

THE GENERAL QUESTIONS REGARDING THE INCIDENCE, EXISTENCE AND CONSEQUENCE OF LAW AS A SOCIAL PHENOMENON

Essentially, but with varying degree of emphasis, jurists seek to explain the incidence, existence and consequence of law as a social phenomenon. Consequently, general questions to be answered are concerned with such matters as the following:

• The origin and sources of law generally and/or in specific societies;
  
• The historical development of law in general and the emergence and evolution of specific legal systems, tradition and practices;
  
• the meaning of specific concepts and the construction of various legal structures and processes;
  
• the link between law and other social phenomena, such as political, ideologies, economic interests, social classes, and moral and religious conventions;
  
• the operation of the law as a mode of social control and the effects that it has on the persons to whom it applies, in terms of justice as well as social, economic and political developments.
  

THE GENERAL ATTITUDE IN THE COMMON LAW TRADITION TOWARDS THEORETICAL INVESTIGATION OF LAW

(Michael Doherty, p3) – There is in the Common Law tradition skepticism for anything theoretical in connection with the law. This is in marked contrast to the position in Europe where theoretical perspectives are welcomed. In Common Law law schools, many of the lecturers are also practitioners in the law and have little time for what they often perceive to be abstract waffle/ wooly stuff. Despite this, lawyers often display in practice an approach to the subject of law that would legitimately be the scope of inquiry of a jurisprudence course. By studying jurisprudence, students will avoid falling into the trap of "accepting without question the correctness of other people's views on the issues within the jurisprudence course without necessarily knowing why or how".

Lloyd:

 

The hard-headed and pragmatic attitude of common lawyers to the law and the absence of any philosophical tradition informing legal education or the practice of law in common law countries have tended to provoke scepticism towards theory among judges, legal practitioners and even academic lawyers; a scepticism which may be shared by law students. This has been considerably reinforced by the fact that it is only in comparatively recent times that legal education has established itself as an acknowledged discipline in English universities. Law was previously taught under an apprenticeship system whereby knowledge of the law was picked up in the course of legal practice without any systematic instruction. The lawyer was expected to apply himself to the problem of his clients without pausing, either as student, practitioner or even judge, to explore or speculate upon what the law was about; what was or should be the role of the law and the lawyer in society; whether it was capable of responding to contemporary needs.

 

Very different has been the tradition of civil law countries where universities were founded for the purpose of educating for the professions, especially that of the law. The academic approach to legal education, with its more philosophic and rationalistic orientation, thus became an essential feature of the civil law. An academic tradition, as against training by apprenticeship, is more likely to inspire more philosophical attitudes and less impatience with "mere theory".

THE BENEFITS OF STUDYING JURISPRUDENCE

• Jurisprudence helps students to formulate what questions need to be asked and gives guidance on how others have sought to answer these questions.
  
• Jurisprudence has real effect on the real practical world - the theory or theories of law developed by certain legal philosophers have had deep impact on people's idea and belief about law. In the UK, for instance, a theory of law known as positivism, developed by Bentham, Austin and Hart, is most influential. Ronald Dworkin, too, is having increasing effect on the way people think about law. "Dworkin is one of the few writers on general jurisprudence who accepts and engages with the reality of what judges have to do…Readers who want to know what judges are supposed to be doing [should] buy Law's Empire." (Sir Leonard Hoffman, Judge of the Chancery Division of the (English) High Court, Law Quarterly Review, 1999)
  

Jurisprudence has relevance to the real world. It helps students develop a sense of what is law about. Examples: Bentham and Austin thought law was about power. Hart and Kelsen think it is, instead, imbued with 'authority' but not 'moral authority' as do Dworkin and Fuller. Austin thought judges were deputy legislators; Dworkin thinks that judges only 'create' law from what is already there. Marxists think that law only serves the interests of the powerful and the rich. Those in the critical realist studies movement regard law schools serve the insidious purpose of placing a veneer of respectability over what is essentially chaos and conflict. Some jurists believe that courts enforce moral rights; other, like Bentham, thinks that idea is 'nonsense on stilt'. Feminists legal scholars think that law is patriarchal, made by men and serves the interests of men.

 

• Jurisprudence assists students to appreciate and value the importance of theories in law as well as in other fields generally. Lenin - theory without practice is pointless and practice without theory is mindless. He was espousing a Marxist notion that the point was not so much to interpret the world as to change it. Likewise, legal practice outside of a theoretical context would be mindless, while a legal theory that did not refer to practice would be pointless.
  

  
   

Lloyd: Jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the relationship of law to justice and morality and about the social nature of law. A proper discussion of questions such as these involves understanding and use of philosophical and sociological theories and findings in their application to law.

 

• It is 'practical' to develop students' intellectual skills.
  
  • Pit your wits against any of the jurists encountered in the course.
    
  • Analyze what it is that you accept in any theory proposed.
    

The above abilities can be developed by studying the 'greats' of the subject in order to get some clues as to what position one should hold.

(Bix, pviii):   At the practical level, reading and participating in jurisprudential discussion develops students' ability to analyze and to think critically and creatively about the law. Such skills are always useful in legal practice, particularly when facing novel questions within the law or when trying to formulate or advocate novel approaches to legal problems. So even those who need 'bottom line' justification for whatever they do should be able to find reason to read legal theory.   Lloyd:   It has been pointed out with great force by Kahn-Freund that any serious academic discipline must entail in stilling in the student a capacity for critical thought. He believed the deep concern of English law with the concept of "authority" has encouraged pragmatism and diminished critical faculties of students and that this, in turn, has cast doubt on the legitimacy of law studies in English universities. However, education which consists in the instilling of dogma, authoritative though it may be, is hardly worthy of its name. It was Kahn-Freund's view, which we endorse, that legal education needs to teach both law and its con text, social, political, historical and theoretical.

 

• Another way in which jurisprudence contributes to a deeper understanding of law is by providing the tools to engage in rational criticism of the law. Here we are interested in the shape the law should take – the standards, in other words, which good law should meet. Such standards can then be used to appraise existing laws. (Denis Meyerson p2)
  

Examples of questions which focus on the evaluation and criticism of existing law are the following:

• What role should the state play in our lives?
  
• What is the right balance between individual and collective interests?
  
• Are there, for instance, any moral limit on the authority of government over us – certain objectives which it is not legitimate for government to pursue and certain limits on the way it should pursue its legitimate objectives?
  
• Are there certain goods which government is under a duty to provide for us?
  

The answers to questions like these are to be found in an understanding of rival moral and political theories. Familiarity with these theories generates powerful resources for criticism of actual legal rules and policies.

Lloyd:   A study of jurisprudence should encourage the student to question assumptions and to develop a wider understanding of the nature and working of law. Questions of theory constantly spring up in legal practice, though they may not be given very sophisticated answers.   Consider the question that was posed by the case of Oppenheimer v. Cattermole. A German Jewish refugee was deprived of his German nationality by a Nazi decree. The question (over 30 years later) was whether an English court should regard him as effectively deprived of his German nationality. If so, he would be unable to claim dual nationality entitling him to exemption from United Kingdom tax on a pension paid by the Federal Republic of Germany. The Federal Constitutional Court had decided in 1968 that the law was so obviously in consistent with fundamental principles of justice as not to be regarded as valid law, but that a person was not to be treated as a German unless he applied for renaturalisation. The House of Lords accordingly felt itself bound to hold that Oppenheimer had lost his German citizen ship in 1949 (the date of the German Basic Law19) since he never applied for renaturalisation. Obiter views were expressed as to whether, apart from the renaturalisation provision, an English court would have upheld the deprivation of nationality under the Nazi decree. A majority favoured rejecting it, reliance being placed on public policy. But Lord Cross also said that to his mind "a law of this sort constitutes so grave an infringement of human rights that the courts in England ought to refuse to recognise it as a law at all. But what are "human rights", indeed what are "rights" and what is a sufficiently "grave" infringement and who is to decide and what are the effects of so deciding? Is such a law not a law at all? And if it is not, are citizens released from their obligation to obey? Indeed, do citizens have an obligation to obey law and if so what is the nature of this obligation and is it absolute or qualified and, if qualified, qualified in which ways? Jurisprudence does not provide answers to these questions but it does offer pointers, clues, in sights: it teaches students the rudiments of moral arguments.   A second example centres on the so-called Grundnorm cases, notably Madzimbamuto v. Lardner-Barke, litigation pursued in the aftermath of the Rhodesian unilateral declaration of independence. The immediate question concerned the validity of a detention effected by those in charge of a colonial state which purported to throw off its shackles of dependence. But the case raised fundamental questions. What is a legal system? What is meant by "revolution"? It is juridically different from a coup d'etat? What is the role o f a judge in such a situation? What is the relationship between validity and effectiveness'? These questions lead on to others. What is the relationship of laws to each other? Are all rules equally authoritative? What gives rules their authority? Is there an all-or nothing concept of law? Is law affected by selective enforcement? What is the effect on a legal system of attenuation of consent? Is the force of authority of a law diminished by poor reasoning? The questions could be multiplied. Judges in a number of countries believed the pure science of law, as developed by Kelsen, could assist them to resolve the more immediate of these issues… Some of the problems this view causes and some answers that have been posited to some of these questions. None of them is a question which any thinking lawyer can ignore.   A third question relates to justification; It is well accepted that judges must give reasoned decisions. But what constitutes good reasons? In the run-of-the-mill cases there is a straightforward answer: there is statutory authority or the case clearly falls within an existing precedent which cannot be rationally distinguished from it. But what of the "hard case", what happens when the law appears to have gaps? Can the judge turn to non-legal sources? Are there legal sources to which he can go when he appears to run out of rules? If so, what is it that makes these non-rules in to law? Are they validated in the same way as rules? What light does this throw on a legal system's "pedigree test"? To what sort of standards, other than rules, may judges appeal? Is it legitimate for them to invoke teleological considerations, goals or policies? Or should they confine themselves to the deontological, to rights and principles? Is there a right answer and is that answer to be found embedded in the law? What is meant by "the law"? How far does it extend? These questions only occasionally surface in litigation (see for example, the case of McLoughlin v. O'Brian) but they are pervasive if implicit and in articulate. The recent case of Jackson and Others v. Attorney General is a further example of the importance of jurisprudential thinking to the resolution of legal problems. The House of Lords had to decide whether the Hunting Act 2004 was a valid Act of Parliament. The Act had been forced though under the Parliament Acts of 1911 and 1949. The Lords held that the 1949 Act had been validly enacted under the procedure established by the 1911 Act, and that the Hunting Act had been validly enacted under the amended procedure. Most of what they said on wider issues is strictly obiter but is interesting to the jurist because it raised questions about the foundations of the legal order and about sovereignty. Can Parliament (as we learn from Dicey, who derived his views from Austin and beyond) pass any law or are there fundamental values such as human rights, democracy and the rule of law embedded within the constitution? Are there limits on what Parliament can do? Could it abolish elections? Can it extend the period for which there can be detention without trial, and, if so, to what? In Jackson, the proposition was entertained, for the first time judicially, that courts might be able to strike down an Act of Parliament as incompatible with fundamental values.   This conflict between orthodoxy and revisionism is mirrored by the different views of Hart and Dworkin, considered at various places in this book. If, as Dworkin argues, there are principles underlying the law, such a s justice and fairness, if "propositions of law are true if they figure in and follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the political structure and legal doctrine of the community", then perhaps we should accept that the sovereignty of Parliament is not absolute. Are the judges being influenced by Dworkinian jurisprudence as earlier generations were by Dicey's (and Austin's)? Austin's mentor (Bentham), we shall see, saw that there could be limits on sovereignty (he sketched the rudiments of a doctrine of judicial review); English constitutional law might have looked different if Dicey had been able to read Bentham.

 

• Jurisprudence, as a subject in many law school curricula, is intended to provide the law student with a device by which she can ground her academic knowledge of the black-letter of the law to the reality of the social context in which the legal rules, structures and processes actually occur and operate. "The idea, then, is to link the wealth of legal concepts, rules, statutes, precedents, structures and processes, which one has imbibed haphazardly over a period of time, to the systematic theoretical and sociological insights about the role and place of law in society which jurisprudence seeks to provide".
  

  
   

  (Chinhengo, p14) Students are supposed to see the 'law'
  

  • in context;
    
  • as a systematized and comprehensive whole;
    
  • with a definite strategically position in the social scheme of things;
    
  • not as a series of distinct and disparate 'legal subjects' whose only essence is contained in the dry rules, concepts and cases that need to be crammed.
    
  • Austin believes that a full education in the law requires more than just empirically pocketing bits of statutes, or bits and pieces of the common law. By studying the nature of law, a knowledge of how it is coherent becomes more apparent. (Michael Doherty, p.7)
    
    • Jurisprudence is an investigation of the dynamic link between law and other social facts. Hence, the various theoretical and philosophical propositions involved are serious attempts by committed scholars to give some meaning to the black-letter of the law.
      
    • Jurisprudence demands students to grasp the link between theory and practice (of law) and to positively evaluate the arguments of the various jurists, from the point of view of whether or not they provide a meaningful explanation of the law as they have encountered it at both the academic and practical level.
      
    • Students will benefit by continuously reflecting on the law as a social fact and to try and see the link between it and actual events and developments in society; as well as in the world in general.
      
    • Students will also do well to ask herself the following questions as she progresses into the subject:
      
      • Is it true to say that the law is more a matter of coercion than anything else and, if so, are there examples to be found, either in history or in contemporary events, to justify this proposition?
        
      • Is law synonymous with morality, or does it even substantially reflect the conventional morality of particular communities – what are the realities in this or other societies?
        
      • To what extent may the legislators in this society be said to be concerned with the welfare of the citizens and, if they are, how do the various measures which they take or have taken to promote that welfare compared with the various conceptions of justice which have been advanced by different jurists?
        
      • Is any one conception of justice decidedly better than any of the others, and why?
        
      • Do judges have any substantial influence at all on the development of the law and the promotion of various ideas and values in society through the medium of the law?
        
      • What do actual cases that have been decided show about the judicial role in determining the way in which the law affects specific people or groups of people?
        

    
     

  Attempting to answer such practical questions as the above will involve looking at the issues of legal theory, legal practice and legal attitudes. These make up the subject matter of jurisprudence.
  

  
   

  In light of the foregoing, jurisprudence is not the same as the study of fiction, where one is concerned with the analysis of occurrences, ideas and concepts which are merely the figment of the author's imagination and which may, therefore, be more or less removed from reality. Instead, it concerns the ideas and thoughts of jurists with regard to concrete issues of legal and social ordering, along with the welfare of real people in actual communities.
  

  • At a professional level, jurisprudence is the way lawyers and judges reflect on what they do and what their role is within society. It is for this reason that jurisprudence is taught as part of a university education in the law. For those who believe that only the reflective life is worth living, and who also spend most of their waking hours working within (or around) the legal system, there are strong reasons to want to think deeply about the nature and function of law, the legal system, and the legal profession.
    
  • Christopher Gray (Tim Murphy, p.2) – Interest in philosophy of law "thrives today around the world. New developments in law in both age-old and more recently established nations call for a good deal of philosophical reflection. New institutional and disciplinary contexts encourage that reflection and have further increased its range."
    

Jurisprudence is interesting and enjoyable on its own, whatever its other uses and benefits.

(Bix, pviii):   Philosophy has many indirect benefits. It is a kind of mental exercise programme. Through philosophy, one trains to think sharply and logically; one learns how to find the weaknesses in other people's arguments, and in one's own; one learns how to evaluate and defend, as well as attack, claims and positions.

 

HOW TO READ A JURISPRUDENCE TEXT - PROFESSOR TWINING'S VIEW

The following points help students to develop their own understanding of law and the legal system.

• Examine the criticisms that have been made of the theory.
  
• Reflect on these and evaluate their validity in the light of your own legal knowledge.
  
• Enter into a dialogue with the text being read. That is, engage the writer in conversation and decide whether one agrees or disagrees with what she is saying.
  

Professor Twining identifies three levels on which to read a jurisprudence text:

1. The historical level – where the reader places the text in its historical perspective and asks questions such as: what are the issues of the day on which the text was written? To whom was he replying? What was the problem of the time? Whose work was available at that time?
   
2. The analytical level – where it would be appropriate to examine the questions raised, scrutinize the answers given and then evaluate the reasons provided for those answers. Here students should clarify the nature of the question before accepting the author's answer. Some questions do contain false assumptions and it would be necessary to identify these.
   
3. The applied level – where the reader examines the implications of accepting the position outlined by the author. On this level one can decide why the author wrote what he did when he did, particularly with regard to the political implications of the text.
   

The technique for the study of jurisprudence is to engage in such a critical and evaluative discussion. This requires students to develop their own understanding and to recognize that there may be a number of ways in which a text can be read.

CRITIQUES ON THE CURRENT TEACHING OF JURISPRUDENCE

Jurisprudence is usually taught in one of two ways. Either,

• It is presented as a series of imaginary debates between positions or approaches that might at first glance seem to have little in common (natural law v positivism, conceptualism v realism, and so on), or
  
• It is taught as a stately progression from one great thinker to another (Bentham to Austin to hart to Dworkin, and so on).
  

The problem with the first approach – it presents the debates in a rather abstract way, wrenching them of any sort of context in which the debate might be considered meaningful. It is difficult to care much about the relative merits of natural law and positivism in the abstract, but when considered in the context of what they can say about different theories of sovereignty, of the relation between legal power and political power, or day-to-day realities of judicial interpretation, the debates can become much more meaningful.

The problem with the second approach – presenting ideas through the theories of thinkers who advanced them, can make the study of jurisprudence seem a hermetically sealed world, developing with reference only to its own history and where jurists engage only with other jurists.

Against this, it is argued that it is important to understand something of the historical context in which particular theories were developed, or of the problems of state and law that the theories were addressing.

Hence, jurisprudence should neither be understood nor taught as a purely abstract or philosophical subject. The most important jurists and the major jurisprudential theories have much to say about the pressing legal and political issues of their, and our own, time.

 

PROBLEMS WITH LEGAL THEORIES IN JURISPRUDENCE

Roederer & Moellendorf p.1

In many cases, the various theories simply sit next to each other with no clear connection. Of course, in some cases the theories are set against each other in debates, or as rivals for the 'true' concept of law. However, outside of the debate, it is often hard to see how, or if they really relate to anything else in the field.

Often times students of jurisprudence go from theory to theory with either one of three responses:

• this makes no sense to me;
  
• this makes some sense, but what is the point or relevance of this; or
  
• yes this makes sense, seems true, but so do many of the theories and theorists we have studied.
  

Intellectual obstacle in the study of jurisprudence

(Tim Murphy, p 3) – The tradition of 'legal formalism' or 'mechanical jurisprudence' has achieved an ideological hegemony in the Common Law legal education. This is the descriptive theory of adjudication according to which (i) the rule is rationally determined, and (2) judging is mechanical.

The dominance of this ideology explains why jurisprudence often appears daunting to students: they are suddenly confronted with a course in legal theory that might contain very little reference to principles, statutes, case-law, or legal doctrine of any kind. Instead of being required to engage in doctrinal analysis students are challenged directly by legal philosophy to identify and analyze their own ethical and political stances.

The difficulties for many students in approaching jurisprudence are compounded by the fact that the literature on the subject is vast and its very contents are disputed, or at least variable. (See RWM Dias, Jurisprudence 5^th ed., 1985, p.3)

(Denis Meyerson p1) In our everyday involvement with the law we take for granted a general conception of what law is – a grasp of what sets law and the practice of law apart from other institutions and activities. When someone appeals to the law to settle a dispute, for example, they know for all practical purposes what the implication of the situation is without having to reflect on what concepts like 'law' and 'legal' mean. Similarly, lawyers practise their areas of law for the most part without thinking about very general questions such as what sets law apart from other areas of life like politics, religion, art and morality. They manage by relying on an intuitive or unreflective grasp of what makes an issue a legal issue as opposed, say, to a moral, religious or political issue.

JURISPRUDENCE AND THE PRACTICE OF LAW

Ratnapala, p. 2   Rewards of Jurisprudence   The study of jurisprudence brings immediate rewards to the lawyer. [Unlike a physicist and a chemist who are not constrained in what they do by definitions of their disciplines] … it is critically important to a legal practitioner to be recognized as doing law, particularly by judges and clients. A practicing lawyer is restricted, if not by a definition of law, at least by the way law is understood by judges and other officials who enforce the law. A good lawyer is one who knows when to argue strictly from statutes and precedents, when to re-interpret laws or distinguish precedents and when to appeal to policy, justice or the good sense of the judge. This is the stuff of jurisprudence. Make no mistake: jurisprudence sharpens legal professional skills.   There are rewards too for the social scientist and the philosopher. Law is part of the structure of society, whether modern or primitive. Law both shapes and is shaped by society. Law impacts on every human activity undertaken within society … Just imagine about any activity and you will find law in attendance – sometimes helping, sometimes hindering. For the sociologist, anthropologist, economist and just about any social scientist, it pays richly to consider the nature of law and the legal system.   Law raises critical issues in moral philosophy. The question of why a person should observe the laws of a society is a moral question... Law is normative in the sense that it lays down rules of conduct – what ought to be done and what ought not to be done. Basic laws of society, such as the rules against harming person and property and rules that promises must be performed, are also moral rules. Particular law, though, may offend the moral sense of individuals. Some enactments – such as those authorize war crimes and genocide – will shock the human conscience and draw international condemnation. Are they laws, and, if so, are there moral obligations to obey them?

 

Ian Mcleod   Why study legal theory?   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 apractical 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 ... '   and   '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 changesin dominant ideals from century to century. It is proper to study it as an exercisein the morphology and transformation of human ideas.' (Oliver Wendell Holmes, Law in Science and Science in Law (1899) 12 Harv LR p. 444.)     SUMMARY   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 classificatoryschemesare 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.

 

NEW FRONTIERS IN JURISPRUDENCE

 

Ratnapala, p.17   Old debates and new frontiers in Jurisprudence   The province of jurisprudence is vast. If jurisprudence is understood as the study of law and justice in all their dimensions, it is not solely the presence of jurists. Historians, sociologists, anthropologists, economists, philosophers, psychologists and scientists have a great deal to offer to the discipline, as seen from the increasing and exciting contributions … The phenomenal transformation of the world through the information revolution revives old debates in jurisprudence and opens new frontiers.     The convergence of legal systems and the emergence of new legal orderings as a consequence of globalized markets, the rise of international institutions, the proliferation of new technologies, the discovery of cyberspace and the emergence of new forms of property and of communication are generating new challenges for scholars seeking to explain the nature of law and the processes of legal change. Legal theories need to be reconsidered, and where necessary restated, n the light of these changes. Although the nation state remains strong and its coercive powers to regulate economic and social activity are mostly intact, a large part of the global trade is regulated by norms that originate in usage or in the quasi-legislative activities of international trade associations such as the International Chamber of Commerce [and World Trade Organization, free trade agreements, international commercial arbitration] … These factors suggest that the centre of gravity of legal systems is no longer so closely located in national legislatures.   On the political side, the international human rights regime has been strengthened immeasurably, partly by being linked to global trade and partly by the construction of institutions such as the International Criminal Court. The international community has greater capacity to punish crimes against humanity after they are committed, but appears powerless to halt or pre-empt large scale politically perpetrated human tragedies … The so-called responsibility to protect (RP2) has not moved beyond theory.   Some of the most exciting [prospects for jurisprudence lie in two new branches of science. One is the evolutionary psychology and cognitive science. These disciplines are shedding light on the psychology of rule following. A fundamental question in jurisprudence remains: why do people observe rules? The simplistic explanation that people obey the law for fear of punishment is long abandoned. Mutual convenience is a better explanation, but it is insufficient because people usually do not stop and calculate convenience before acting. These psychological disciplines hold out prospects Of deeper understanding of legal systems. The other branch consists of the work of researchers in many disciplines working collaboratively or inter-disciplinarily to study the phenomenon of emergent complexity. The research in this field is adding to knowledge of complex systems, including the law, by revealing how self-ordering systems emerge band change over time.

 

 

ADDITIONAL NOTES ON JURISPRUDENCE

 

Guess   Jurisprudence is full of outstanding thinkers. Austin and Bentham –both of whom, in their own ways could be claimed to be the founders of legal education at the University of London, thought law was about power. Hart and Kelsen thought it was imbued with authority – although not moral authority as did Fuller of the Harvard Law School and as does Dworkin. Austin thought judges were deputy legislators. Dworkin thinks that judges only create law that is largely coherent with existing legal practice. Marxists think that law only serves the interests of the powerful and the rich. The 'critical legal scholars' think law schools provide a veneer of respectability over chaos and conflict. Some jurists believe that courts enforce moral rights; others, such as Bentham, think that this idea is 'nonsense upon stilts'.   Or take Kelsen, the distinguished constitutional lawyer, international lawyer and jurist. One only has to observe many of the great constitutional cases fought in the highest courts in countries of present or former Commonwealth jurisdiction over the past 30 years to see the impact that Kelsen had. Indeed, the 1,000pages of the 1965 decision of the Rhodesian General Division court ofMadzimbamuto v Lardner-Burke (see [l966] RLR 756; SA l968 (2) 284; and [l965] AC 645) portray a formidable line-up of jurists whose ideas were marshalled both for and against the Rhodesian government's case. The example of the Nazi legal system, too, with its barbaric laws, has also raised real, live problems. Did Nazi bureaucrats really have a legal defence of any sort at all when they declared that they were just obeying orders? This was an acute problem at the famous Nuremberg war crimes trials which took place after the Second World War had ended. It continues to be alive issue.

 

Nyazee, p. 9   Islamic jurisprudence   It has been stated that in the United States the emphasis has been more on the French meaning of theoriegenerale or general theory. Accordingly, Ronald Dworkin has used the format on a general theory for understanding jurisprudence. This format, it is suggested here, would be suitable for a comparison not only of Western jurisprudence with Islamic jurisprudence, but also for identifying a format for the study of usul al-fiqh in the modern age.   … there cannot be one model or format for [the study of usul al-fiqh]. The needs of Muslims in an Islamic state are different from those living as minorities in non-Muslim countries or even for those living in states with a Muslim population, but which have a more or less secular ideological orientation. We, therefore, have to adopt a flexible model that can be adjusted to the needs of Muslim wherever they are and whatever system they are living under.   … the Islamic legal system [tries] to achieve or secure certain goals or values. These are known as the maqasid al-shariah. They are quite similar to the modern interests or values that the legal system seeks to preserve and implement. These interests were discussed in detail and finalized by the Muslim jurists a thousand years ago. These purposes are vital for the methodology called takrij and equally important for ijtihad.   Islamic jurisprudence, when viewed in the meaning of usul al-fiqhcovers three things:   The Formal Structure of Islamic Law: The formal structure of Islamic law is studied by Muslim jurists under the title 'the hukmshar'i". This study of the conceptual structure of Islamic law attempts to answer the following questions:

 

CG Weeramantry, Islamic Jurisprudence   Islamic law is based … on unqualified submission to the will of God. This is a fundamental tenet of the Islamic religion, and since Islamic law is based upon Islamic religion, it proceeds on the same fundamental assumption. The will of God embraces all aspects of life and the law hence covers all of them. It is a path or way guiding the Muslim and the revealed law governing all these matters is known as the Shari'a (the Arabic for track or road). The Shari'a governs in every detail the lives of several hundreds of millions, provides the basic moral and legal framework for dozens of nations and has now held sway for upwards of thirteen and a half century.   From these observations it will be seen that the Shari'a is not, strictly speaking, a legal system, for it reaches much deeper into thought, life and conduct than a purely legal system can aspire to do … It places the individual in his relationship to society, the universe and his Creator. 'The sacred law of Islam is an all-embracing body of religious duties rather than a legal system proper; it comprises on an equal footing ordinances regarding cult and ritual, as well as political and (in narrow sense) legal rules.' (Schacht, 1950, Introduction, p.v).   p.27   …In the Islamic world …[t[he pre-eminence of jurisprudence was self-evident It resulted from the fact that Qur'anic principles applied to every aspect of law and living, and as such came to be the central concern of scholars of all branches of learning …   In the words of Joseph Schacht …, 'Islamic law is the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core kernel of Islam itself. The very term fikh, 'knowledge', shows that early Islam regarded knowledge of the sacred law as the knowledge par excellence.'   Another factor of importance, especially with the orthodox, was that God had not in the Qur'an revealed Himself or His nature, but rather His law. The Divine Being was beyond the comprehension of humans but His commands were expressly revealed so that they may be known and understood. Speculation over God's nature or person hence yielded in importance in the understanding of God's commands. Having regard to the limitations of man's intellect this seemed therefore a more suitable and useful arena for study, thus giving law the edge over theology as the primary intellectual activity of Islam.

 

Namja Moosa & NMI Goolam   Islamic jurisprudence (interchangeably called Islamic law or Shari'a) … has a fairly well-defined structure … Why is this so? Is it because Islamic jurisprudence is primarily concerned with the manner in which laws are derived from the Qur'an and the Sunnah (the precedent of the prophet Muhammad)? Kamali explains in this regard that revelation, which is given to the human beings to restore unity and help him/her achieve a just and devout order in society as well as in the soul, must be interpreted so as to render it practicable in every culture, while not betraying its spirit and immutable provisions. Islamic jurisprudence, therefore, deals with the sources of the law as well as their interpretation.   However, Islamic jurisprudence could also refer … to legal philosophy or philosophy of the law…   Is Islamic law related in any way to Islamic legal philosophy? The greatest Muslim legal thinkers … wrote treatises, not only on Islamic legal philosophy, but also on substantive law issues such as Islamic family law. Understanding their philosophical foundations would therefore greatly enhance one's understanding of their views and opinions on questions of Shari'a (Islamic law).   The most profound difference, perhaps, between Western jurisprudence and Islamic jurisprudence is the fact that morality and religion acquire much greater prominence in Islamic jurisprudence. Kamali explains:   The values that must be upheld and defended by law and society in Islam are not always validated on rationalist grounds alone. Notwithstanding the fact that human reasons always played an important role in the development of the Shari'a through the medium of ijtihad [personal reasoning], the Shari'a itself is primarily founded on divine revelation.   The idea of revelation and reason is thus central and forms the core of Islamic legal philosophy.   Islamic Jurisprudence   …The history of Islam and its spread across the world spanned several centuries. It started with the prophethood of Muhammad (PBUH) 6 in 610 AD7 and has ultimately shaped the nature of Islamic law as we understand it today. Islamic law is the product of centuries of juristic development and interpretation and has furthermore been formed by a variety of processes. Apart from a period of pre-Islamic Arabia, it is convenient to divide the development of Islam and Islamic law into seven periods. The first five periods cover the developments during the classical period or early centuries of Islam up to and including the Abbasid period which ended in 1258. Period six covers developments during the post Abbasid period to 1900 and period seven from 1900 to the present.   Sources of Islamic law   We want the readers to picture Islam as a tree which has at its base two main roots (primary sources), namely the Qur'an, (the holy book of Islam) and Sunna (the traditions of Prophet Muhammad), and as its fruits, the Shari'a (Islamic law or jurisprudence). The Qur'an is considered by Muslims to be the ipsissimaverba or actual and literal word of God. It was revealed to Muhammad piecemeal over a period of approximately 23 years- partly in Mecca and partly in Medina. It is the foundation stone of Islam and therefore the most important and primary source of Islam. The Qur'an is not, however, a law-book in the main with clear-cut answers to all legal questions. Approximately 80 of the 6000 odd verses are legal in nature. The Qur'an is by its own definition a 'huda' or source of guidance. Its broad ethical injunctions emphasizing justice and fairness clearly predominate over (but do not replace) its legal formulations. Yet, today these legal verses are given more weight, which often overshadows the egalitarianism which is a fundamental part of the spiritual message of Islam.   The Sunna is the other important source. With the passing of time, this tree of Islam grew stronger as two new roots (secondary sources) were added by human endeavour, namely ijma (consensus) and qiyas (analogical deductions). They are really instruments or subsidiary sources or legal techniques for resolving specific legal issues. They were designed and introduced by human endeavour to provide legislative guidance and solutions to new problems which are not directly available from the Qur'an and Sunna. The two sources of ijma and qiyas, therefore, developed out of the two primary sources. While it has been argued that these sources were developed by two centuries of experience, the classical exposition of Islamic law believes that these sources existed from the very beginning of Muslimexegesis. The fruits (Shari'a) as the by-products of the tree obviously only grew and ripened once the tree itself was firmly rooted. The tree only bears fruits because of strong and healthy roots. Yet fruits may have latent (unseen) defects and even patent (clear) defects. The apple may, for example, contain a worm. Furthermore, fruits a re seasonal and different varieties/strains can also be found. Different countries have different families of the same fruit and fruits unique to their region. The same is true for Islam and Islamic law. It is clear from the illustration in our mind that the tree came before the fruit. Yet certain Muslims have confused the two and have given the Islamic law (Shari'a) more importance than the sources of Islam.   Primary sources versus Shari'a and Fiqh   Shari'a (Islamic law or jurisprudence) is essentially the interpretation and application of the primary sources (Qur'an and Sunna) by early Muslim male jurists like Imams Abu Hanifa and Shafi'i. These interpretations have often been given precedence over the divine Islamic injunctions themselves. In this section, the primary sources of Islam per se are distinguished from, and must not be confused with, Islamic law or Shari 'a, which in our context is the 'common law' of Islam. Often these terms are used interchangeably byvarious writers. This gives the impression that Islam is Shar'ia and vice versa.The primary sources of Islam do, however, form the basis of Shari'a. It is very important to highlight this distinction as it becomes fundamental when dealing with the question of reform. Fiqh is the science of Muslim jurisprudence. Very often scholars use the term Shari'a (Islamic law) in atechnical sense to describe the law as expounded in the primary sources of Islam itself, namely the Qur'an and Sunna. They (scholars) then use the term fiqh to describe the Islamic jurisprudence as developed from these primary sources. There are also scholars who use the terms shar'ia and fiqh synonymously. There are also other scholars who reserve the term fiqh for Islamic law and usulul-fiqh (principles of the science of Islamic jurisprudence)to denote Islamic jurisprudence.   However, in this chapter for the sake of simplicity and regardless of whether or not Western colonialists may have been responsible for the usage of this term, Shari'a refers to the actual practice of Islamic law or jurisprudence per se, whilst fiqh is used to denote the theory or reasons for the theoretical formulation and framework of these rules of law. Although the basis of both these concepts (Shari'a and fiqh) can be traced back to the primary sources of Islam, it must be distinguished from these sources. Shari'a (Islamic law) is essentially the work of early Muslim male jurists some two centuries after Islam came into existence. Islamic law is still very much alive both in spirit and in fact, and it is part of the present as it was of the past. This is clearly evident in Muslim countries following an Islamic legal system. As detailed below, the jurists of the four main schools of law have constructed their jurisprudence with the Qur'an and Sunna as their foundation and for this reason we should not disregard their work. However, by the same token we should not be limited by their understanding of the primary sources. The (divine) sources remain immutable but their (human) interpretations do not. While the fruits of Islam were themselves the products of men, these men pointed people back to the main sources if they could be proved wrong.   Schools of law   While the development of Islamic law can be traced back to the Prophet, it was in the eighth century AD and second century of Islam (AH) and due to political dissatisfaction, that four orthodox Sunni schools (madhhabs or versions) of Islamic law (Jurisprudence) were established and named in order of precedence after their founders, namely Hanafi, Maliki, Shafi'i and Hanbali. The founding fathers or jurists of these schools, namely Imams Abu Hanifa, Malik, Shafi'i and Hanbal, who were nearly contemporaries, were also the first to formulate the principles of the science of Islamic jurisprudence (usulul-fiqh). These four schools, discussed below, together comprise the Sunni school as opposed to the Shi'ite sect. These schools were geographically spread all over the Muslim world. In time they established themselves in various parts of the world so that today they are found mainly in the following areas: the Maliki in North, West and Central Africa; the Hanafi in the Near and Middle East and India and Pakistan, the Shafi'i in East Africa and Southeast Asia and the Hanbali in Saudi Arabia. South African Muslims in general belong to the Sunni (traditionalist) school and are more or less equally divided between the Hanafi and Shafi'i schools. For this reason and the fact that Sunni jurists do not consider the adoption of legal principles from a heterodox (Shi'ite) sect as an acceptable basis for legal reform, Shi'ite legal principles will therefore not be focused on in this section. While their already existing but small numbers have increased since the Iranian Revolution of 1979, there are no figures available on the exact number of Shi'ites in South Africa.   Today these four schools of law are universally accepted by Sunni Muslims, as equally valid interpretations of the primary sources of Islam. This is due primarily to the integrity of their founders and authenticity of the method that they followed. Furthermore, each of the four schools recognizes the conclusions of the others as valid. Changing schools is traditionally frowned upon. However, not only is any Muslim free in principle to chose her own school of law, but s/he is also permitted to change from one school to another (talfiq), when doing so would genuinely provide a better solution to a legal matter and is not done merely for opportunistic reasons. Even legislation, especially pertaining to Muslim Personal Law (MPL), in certain Muslim and other countries, (for example, India) has allowed for such a change in schools of law to allow for a more liberal application of the law, especially as concerns the rights of women.   Although the jurists differ mainly in their emphasis on the four primary sources, these differences are not deemed fundamental - they are not doctrinally different. It is true that we find minor variations regarding certain issues in the four schools. For example, the Qur'an states that before praying one must perform an ablution. One of the requirements of this ablution is to wash the arm up to the elbow. The schools might differ on whether this is meant to include the washing of the elbow as well. However, this does not detract from the fundamental fact that Muslims must pray and cleanse themselves before doing so.   As will now be briefly illustrated , it is also true that, while the four schools of Islamic jurisprudence differ in both subtle and overt ways with respect to women's legal rights, they have more in common in this respect than differences. Abortion is one such example. Notwithstanding that both the Qur'an and Sunna do not provide a clear directive on abortion and that Islam generally permits preventing pregnancy for valid reasons, abortion is prohibited on the basis of various Qur'anic verses relating to infanticide. There are views for and against abortion. In some Muslim countries (eg Tunisia) abortion is legal, whereas in others (eg Pakistan and Sudan) it is criminalized. The four schools of law all make some form of abortion illegal. While different positions on abortion are proposed by the four schools as to the time when an abortion may be permitted, they a re unanimous that abortion is generally unlawful and forbidden. It is also true that there are cases where these seemingly minor differences in interpretation result in laws which vary greatly in their consequences for women. The laws of marriage (eg polygyny) and divorce (eg grounds of divorce) contain many examples illustrating this.