23 July 2013 Written by  Daniel W/Gebriel and Hassen Mohamed

What is Jurisprudence

The word comes from the Latin term juris prudentia, which means "the study, knowledge, or science of law." This signifies that like any other social study, law can also be studied scientifically or systematically. In modern law jurisprudence is understood as a term that embraces spectrum of questions about the nature and purpose of law and responses made to them.

Jurisprudence has many aspects, with four types being the most common. The most prevalent form of jurisprudence is that it seeks to analyze, explain, classify, and criticize entire bodies of law, ranging from contract to tort to constitutional law. Legal encyclopedias, law reviews, and law school textbooks frequently contain this type of jurisprudential scholarship.

The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The purpose of this interdisciplinary study is to enlighten each field of knowledge by sharing insights that have proved important to understanding essential features of the comparative disciplines.

The third type of jurisprudence raises fundamental questions about the law itself. These questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal concept. The Common Law (1881), written by Oliver Wendell Holmes, Jr., is a well-known example of this type of jurisprudence. It traces the evolution of civil and criminal responsibility from undeveloped societies where liability for injuries was based on subjective notions of revenge, to modern societies where liability is based on objective notions of reasonableness.

The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions, including, what is law? What is its relation to justice and morality? What is the role of a judge? Is a judge more like a legislator who simply decides a case in favor of the most politically preferable outcome? What is justice? What is liberty and freedom?

 Our aim here is to treat jurisprudence in this last sense.

Why we study Jurisprudence

At the practical level, reading and participating in jurisprudential discussions develops the 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 and advocate novel approaches to legal problems. So even those who need a “bottom line” justification for whatever they do should be able to find reason to read legal theory.

At a professional level, jurisprudence is the way lawyers and judges reflect on what they do and what their role is within society. This truth is reflected by the way jurisprudence is taught as part of a university education in the law, where law is considered not merely as a trade to be learned (like carpentry or fixing automobiles) but as an intellectual pursuit. 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.

Finally, for some, jurisprudence is interesting and enjoyable on its own, whatever its other uses and benefits. There will always be some for whom learning is interesting and valuable in itself, even if it does not lead to greater wealth, greater self-awareness, or greater social progress.

Schools of Jurisprudence

There are many schools of jurisprudence which concentrate on the nature and function of law. For our practical purpose we shall confine ourselves to the treatment of the most important schools. Hence, in this material the following schools shall be discussed briefly.

Natural Law School:  the oldest school of jurisprudence, it upholds that beyond, and superior to the law made by man are certain higher principles, the principles of natural law. These principles are immutable and eternal. With regard to the highest matter man-made law should be in accord with the principles of natural law. And to the extent that man-made law conflicts with natural law, it lacks validity: it is not a valid, binding law at all.

Legal Positivism:  also called Analytical School of jurisprudence, it holds that there is no higher law than that created by governments, legitimate or self imposing, and that such law must be obeyed, even if it appears unjust or otherwise at odds with the “natural” law. Unlike the natural law theory, this one treats law and other values, such as, morality and religion separately.

Historical School: this school of jurisprudence views law as an evolutionary process and concentrates on the origin and history of the legal system.  The law of a nation, like its language, originates in the popular spirit, the common conviction of right, and has already attained a fixed character, peculiar to that people, before the earliest time to which authentic history extends. In this prehistoric period the laws, language, manners and political constitution of a people are inseparably united and they are the particular faculties and tendencies of an individual people bound together by their kindred consciousness of inward necessity.

Sociological School: Unlike the Historical School that conceives a nation’s law as tied to the primitive consciousness of its people, sociological conception of law locate the law in the present-day institutions of its society. The proponents of sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control. The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behaviour, organization, environment, skills, and powers involved in the maintenance of a particular society. They are also concerned with the practical improvement of the legal system and feel that this can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences.

 

Legal Realism conceives law as judge made and by doing so it puts the court at the center. It contends that positive law cannot be applied in the abstract; rather, judges should take into account the specific circumstances of each case, as well as economic and sociological realities. In other words, the law should not be static, it must adapt to various social and economic realities. This theory emphasizes the role of the judge that is it emphasizes that law is made not found, and considers judges as the true law makers.