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
·
Question of content, and
·
Questions of relevance or
usefulness.
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.
- Yet in another sense, it refers to ‘scientific and philosophical investigations of the social phenomenon of law and of justice generally’ wherein ‘it embraces studies, theories and speculations about law and justice undertaken with the knowledge and theoretical tools of different disciplines…’
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 18th 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.
In France,
jurisprudence is called ‘la philosophie
du droit’, that is the philosophy of rights, that is of law – in the
abstract sense of the term ‘law’; in Germany we have the term ‘rechtsphilosophie’, that is the
philosophy of rights, that is of law in the abstract sense.
Avtar Singh
and Harpreet Kaur, Introduction to
Jurisprudence, p 2.
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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
about the nature of laws and legal systems, about the relationship of law
tojustice 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.
Jurisprudentia
… is, in its widest interpretation, the knowledge of law. In Latin ‘juris’
means ‘legal’, and ‘prudentia’ means skill or knowledge. Even the positive
law, that is the law as it is, is Jurisprudence. But, in the stricter and
more appropriate sense, Jurisprudence is the study of fundamental legal
principles, and is concerned with the normative and not merely the positive;
it is concerned not merely with the actual, but also with the ideal. So we
may define Jurisprudence as the study of fundamental legal principles,
including their philosophical, historical, and sociological bases, and an
analysis of legal concepts. Jurisprudence deals with fundamental legal
principles; and law deals with rules evolved out of or based on the
fundamental general principles given by jurisprudence.
Avtar Singh
and Harpreet Kaur, Introduction to
Jurisprudence, p 2
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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?
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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.
Julius Stone’s view of Jurisprudence
Julius Stone
observed about jurisprudence:
“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.”
According to
Stone’s perception, a lawyer must have knowledge of other subjects like
history, sociology, anthropology, economics, politics, in a word, social
science, and then examine the precepts, ideals and techniques of the law in
the light of his knowledge of social sciences.Implicit in the definition is
the idea that the body of laws contains precepts, ideals and techniques and
the lawyer has the ability to examine them. Can one examine anything without
having requisite ideals, values and standards? The answer is clearly in the negative. The
lawyer who has the knowledge of other branches of knowledge must have some
values, standards, ideas, and methods to follow the task of examining the
technicalities or principles of law…
…Justice
Wendell Holmes once said that a good advocate must be a historian, an
economist, a psychologist, a sociologist and a logician all rolled in one.
Hari Chand, Modern Jurisprudence, pp 1-2 and 11
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NATURE OF JURISPRUDENCE (as a
field of human knowledge)
According
to Lloyd, it is difficult to characterize jurisprudence: there are many rooms
in its mansion. But, broadly, it is
concerned with rule-governed action, 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 Austin and Bentham
for example) is positivist in its
approach to social knowledge and 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 where jurisprudence 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 usually
connected 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
of conduct." Hence normative rules
must be carefully distinguished from physical laws, which state causal
connections. The latter are subject to verification; that is, they can be
true or false; but the notion of truth
or falsity is inapplicable to normative rules. Such rules simply state
what should or "ought to" happen. This is the distinction made by
Kant between sein (being) and solen (ought) which is so emphatically
brought out 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
that the 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 of suffering the prescribed penalty.
The Nature of Jurisprudence
In simple
words, jurisprudence is an attempt to study the nature of laws, their
techniques, their development and achievement; it is to trace a law of laws,
a law behind the laws. Just as medical men find the causes of diseases and
their remedies, similarly jurists find the defects and remedies in law. Of
course, medical science is akin to natural science whereas law is merely a
social science. Except for this difference, the task of a jurist can well be
compared with that of a scientist. Just as a medical scientist cannot proceed
ahead without the knowledge of psychology, biology, chemistry and the like,
similarly a jurist cannot do much without the study of sociology, history,
economics, psychology, anthropology and a host of other subjects.
Hari Chand, Modern Jurisprudence, p 5.
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Jurisprudence as an abstract
interpretation of adjudication process?
A controversy regarding the nature of
jurisprudence or legal theory has arisen following Dworkin’s view of
jurisprudence. He argues that jurisprudence is also an interpretative
adventure.
“General theories about the
circumstance in which propositions of law are true are abstract
interpretations. They are abstract because they aim to interpret the main point
and structure of legal practice not some particular part or department of it.
But for all their abstraction they remain interpretations: they try to show
legal practice as a whole in the best light it can bear.”
Hari Chand p
8
Having said
that jurisprudential theories are interpretation of the legal practice,
Dworkin aligns jurisprudence with adjudication. He concludes that
jurisprudence is the general part of adjudication.
Ruth Gavison
and HLA Hart both oppose this view of Dworkin. The former points out that
this claim has lured Dworkin into disregarding some important distinctions.
All theories of law might be the products of a process of interpretation but
there are many types of interpretations.
Usually
theories of law attempt to identify the features which are unique to law and
distinguish it from other social phenomena… Dworkin’s approach assimilates
theories of law with law; there remaining no distinction between the two.
Ruth Gavison depicts the distinction in that the law is binding on us and a
theory of law supplies us an understanding how and why it is binding…
Moreover,
adjudication is undoubtedly the most important aspect of law but it is not
the only aspect of law. Theories about the origin of law, functions of law,
economic and sociological theories of law may have some effect on the process
of interpretation but it is not their central theme or purpose. Such theories
concentrate on aspects of law which are far from adjudication. Dworkin’s
overemphasis on adjudication is illuminating on the one hand but tending to
restrict our vision on the other. Jurisprudence is an attempt to penetrate
into the nature of law, its function and efficiency. Law is a purposive
activity. Jurisprudence is a science which aims at perfecting law to achieve
its purpose in the broader sphere of social justice. In other words,
jurisprudence is an endeavour to trace a law behind laws so that it becomes a
more serviceable tool in the service of mankind.
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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.
Hari Chand p
6
…[W]hy
should jurisprudence be a separate subject to explain the scientific
character of law? Well, the answer seems to be that in these subjects [such
as Contract, Tort, Criminal Law, Procedure, Evidence), one studies the law,
the existing law, the law which is being applied by the courts and the law
officers. In other words, it is the study of law as it exists. In
jurisprudence, one does not merely study law; on the contrary, one studies
something about law. Just as medical a student who wants to study the human
anatomy, has to study the head, the ears, eyes, and all other parts of the
body in their structures, connections and functions, etc. But then he has to
study the body as a whole in its working. Not only that, the external factors
in relation to the body have also to be studied. How is the existence of
heat, cold, water, germs, insects, viruses, etc. which affects the human
body, to be studied? One can say that this latter part of the study is
something about the body as distinct from the body itself.
In
jurisprudence, one has to study something about law, not a particular law. Of
course, this distinction is not a watertight compartment. When one studies
something about law, it would have necessarily a bearing on the law itself
and when one studies a law, one is studying in a way something about it.
Probably, it can be safely said that jurisprudence is an attempt to take a
fuller grasp of the phenomenon of law. Its approach is more comprehensive,
extensive and intensive and deep-penetrating than the study of various
branches of law, like tort, contract, etc. John Austin, a jurist of
analytical school, held the view that if a person studies the general
principles of the law or the legal system within which one is living, one
would study a particular jurisprudence but if one studies other legal systems
and then tries to abstract common principles involved in them, one would be
studying general jurisprudence…
Thus Austin
thought that the business of jurisprudence is to explain the common
principles of mature legal systems and the notions and distinctions involved
therein. Clearly, Austin excludes what he calls as crude systems of law,
primitive society and their legal organization.
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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.
Hari Chand,
p 7
It can be
said in fairness to Austin that what he said about general jurisprudence is
relevant but what he left unsaid is more important. To study common
principles of different legal systems may be useful but this is not the end
of the matter. The task of jurists is much more complicated than what Austin
thought. It is not sufficient to study various legal systems in their common
principles; what is more significant is to see that the demands of the
situations are met by the jurist. What are these demands and how a jurist can
fulfil them is the crux of the matter.
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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.”
Burton,
therefore, opines that jurisprudence can take primarily four forms. The first
form seeks to scrutinise the justness of law; the second form analyses the
relations between law and other sociological entities such as literature,
society and economics; the third form seeks to reveal the history of the
development of law; the fourth form attempts to answer conceptual questions such
as the definition of law (Burton, S. J. (1995) An Introduction to Law and Legal Reasoning, Boston: Little, Brown).
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 not know. For some, familiar with the details of the system, it
lies in the depth of an unreal literature. For other, familiar with its
literature, it lies in the hope of a future enlightenment. For all, it is just
around the corner.”
Jurisprudence as a study of Law and Government
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:
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 and 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.
(Source:Veitch
et al, p. vii)
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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 19th 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(Source:
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 toobtain 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 ‘Thelawis(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.
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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.
(Source:
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.
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.
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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:
- o What is law?
- o What is a law?
- o What is a legal system?
- o Should law enforce morality?
- o How does the nature of society affect law?
- o What role/s does law play in society?
- o What is the purpose of law?
- o Is law necessarily just?
- o 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
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?”
Ratnapala,
p.3
The range of
questions about law and justice asked within … jurisprudence is indefinite.
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 …
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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.
APPROACHES TO STUDY OF
JURISPRUDENCE
John
Austin,
the 19th 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 jurisprudence 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.”
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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:
- 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?
- 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.
- 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.
THE
GENERAL ATTITUDE IN THE COMMON LAW TRADITION TOWARDS THEORETICAL INVESTIGATION
OF LAW
(Source:
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”.
(Source:
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".
PROBLEMS WITH LEGAL THEORIES IN
JURISPRUDENCE
(Source:
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.
Oftentimes
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 5th 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.
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:
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- 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.
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- 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 context, social, political, historical and
theoretical.
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- 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.
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- 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’
o
in context;
o
as a systematized and comprehensive
whole;
o
with a definite strategically position
in the social scheme of things;
o
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)
o
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.
o
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.
o
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.
o
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,
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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 of Madzimbamuto 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.
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