Jurisprudence
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Jurisprudence is the theory and philosophy of law. Students of jurisprudence aim to understand the fundamental nature of law, and to analyze its purpose, structure, and application. Jurisprudential scholars (sometimes confusingly referred to as "jurists") hope to obtain a deeper understanding of the law, the kind of power that it exercises, and its role in human societies. At a practical level, some jurists hope to improve society by studying what the law is, what it ought to be, and how it actually operates. They seek a deeper understanding behind law's seemingly unpredictable and uncertain nature.
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Starting point
A common starting point in understanding jurisprudence is the objective of law to achieve justice. The positive law, embodied in the written legal statutes and case law of a jurisdiction, is used as the foundation to 'test' philosophical theories against. Hence, the arguable scientific nature of jurisprudence. The three most distinct views of law and justice (however there are literally hundreds of viewpoints) are legal positivism, natural law and legal interpretivism. Positivism simply means that the law is something that is 'posited': laws are validly made in accordance with socially accepted rules. Laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Providing a law is properly formed, in accordance with the rules recognised in the society concerned, it is a valid law, whether or not it is just by some other standard. Another principle is that law is nothing more than a set of rules to provide order and governance of society. Hence the most inhumane or unjust enactment must be obeyed (from the standpoint of the legal system, if not from a moral standpoint). Critics of the law should lobby for law reform but must still respect the letter of the law, or at least not deny that it is validly made law.
In contrast, natural law is closely associated with morality and, for theist views, the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state. Feelings or notions of what is right and wrong underlie natural law. What is right or wrong can vary according to the interests one is focussed upon. Natural law typically claims that 'an unjust law is no law at all' and some natural law theorists believe that any injustice will be rectified by the 'higher powers'.
Other natural law theorists, notably Lon L. Fuller, emphasise that the law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made.
Sophisticated positivist and natural law theories sometimes resemble each other more than the above descriptions might suggest, and they may concede certain points to the other "side". Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work.
Jurisprudence seeks to draw on unrestricted elements of life and the world to aid the critical study of law. The more established themes are listed below:
- Legal philosophy and philosophical considerations more generally;
- Legal history, including legal historiography and hermeneutics;
- Legal science, e.g. the legal psychology, legal anthropology, etc.;
- Legal theory, the collective body of legal theory as exemplified in the record of legal cases, controversies and questions;
- Application of legal principles and theories to legal problems, especially classic or recurrent legal questions;
- Application within law of extra-legal theories and practices, such as the employment of distributive research techniques in legal analysis;
- Comparative examination of law as a field with other fields of study or endeavour, e.g., analysis of Western trial court procedures in terms of Classical Greek theatre; and
- Sub-categories of jurisprudence, examining law in particular social, political or other contexts, such as -
- 1. Ethnojurisprudence, jurisprudence in and of a particular ethno-cultural group, such as tribal African customary law (derivation of the term apparently by analogy with ethnomusicology)
- 2. Socio-political jurisprudence, jurisprudence as documentary of social and political change (e.g., the study of law as it relates to the status of women is a form of socio-political jurisprudence).
Jurisprudence also includes legal pedagogy, that is, the teaching of law and legal subjects, as far as legal pedagogy concerns the education and role of lawyers; hence it may also include reflections on applied legal arts and methodology (aka "applied law"), such as functional lawyering skills, negotiation techniques, legal composition, document drafting, research techniques, and so on.
Etymology
Per the American Heritage Dictionary, jurisprudence is the English for jurisprudentia. This is the Late Latin form of a compound word, originally juris + prudens (a contraction of providens, from the verb providere, "to provide"). The best English definition of jurisprudentia is probably "[abstract] legal knowledge."
'Juris' (both pronounced in Latin) is the genitive form of Jus meaning "law." So, 'juris' means "of law" or "legal." In particular, 'juris' refers to oral legal tradition and to functional applications of law, to and in particular sets of facts and circumstances. The word "jury" is also an English form of 'jus/juris,' and juries do just as the term implies: apply law to facts and circumstances, and draw a conclusion there from on the defendant's culpability.
'Prudentia,' meaning "knowledge" in Latin, translates directly to English as "prudence." The native English word is "wisdom," which also originally meant "knowledge." In either case, one behaves prudently or wisely because one has knowledge of the possible consequences of a particular action.
Modern jurisprudence
Jurisprudential theory is usually divided into two major modes of analysis: analytic jurisprudence, which studies what law "is," and normative jurisprudence, which studies what law "ought to be." Jurisprudence can also refer to case law in common law, the body of law that is established through decisions of a particular court or court system.
Analytic jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. The focus is what the system is, not on what it should or ought to be. Thus when engaging in analytic jurisprudence moral questions, questions of value are only considered insofar as to describe them as questions of consideration but goes no further.
The most important questions of analytic jurisprudence are What is a law? What is a legal system? What is the relationship between law and power/sociology? What is the relationship between law and justice/morality? Does every society have a legal system? How should we understand concepts like legal rights and legal obligations or duties?
Normative jurisprudence is on what law ought to be, on what values are important and looks at questions of morality. Important questions of normative jurisprudence are these: What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law?
History
Image:Oldbaileylondon-900.jpg Jurisprudence already had this meaning in Ancient Rome, even if at its origins the discipline was a monopoly of the College of Pontiffs (Pontifex), which detained an exclusive power of judgement on facts, being the only experts (periti) in the jus of traditional law (mos maiorum, a body of oral laws and customs verbally transmitted "by father to son"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases.
Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitative interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Pontiffs were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.
Under the Roman Republic, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivalled peaks of skill. It is about this activity that it has been said that Romans had developed an art out of the law.
After 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Byzantine Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.
See also
Herman Dooyeweerd (1894-1977), Encyclopedia of the Science of Law: Volume I - Introduction (1st of a 5-volume work; Dutch original, English translation, Mellen, 2002. Dooyeweerd was Professor of Law, Encyclopaedia of Jurisprudence and Ancient National Law at the Free University in Amsterdam from the time of his appointment to the Chair in 1926 until his emeritation in 1965. See: Herman Dooyeweerd, Juridical scholar
External links
- [1] Navigate to page for Encyclopedia of the Science of Law (Mellen, 2002).
- John Witte, Jr: A Brief Biography of Dooyeweerd, based on Hendrik van Eikema Hommes, Inleiding tot de Wijsbegeerte van Herman Dooyeweerd (The Hague, 1982; pp 1-4,132)[2]
- LII Law about... Jurisprudence
- The Case of the Speluncean Explorers: Nine New Opinions, by Peter Suber (Routledge, 1998.) Lon Fuller's classic of jurisprudence brought up to date 50 years later.
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