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JURISPRUDENCELAW4420

Introduction to the Subject

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WHY JURISPRUDENCE?

• Jurisprudence has existed since the time of the Greek philosopher Socrates (470 – 399 BC).

• Questions preoccupying great minds were the nature of law, right and justice. But questions still persist until today.

• Theories that have proposed answers to the questions have themselves become subjects of ongoing debate.

• This points towards o complexity of these ideas and o limits of our language and reason.

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Issues Confronting JurisprudenceGeneral issues and questions confronting students approaching jurisprudence:

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

These allow students to have initial appreciation of the o nature and scope of the subject, and o mode and purpose of the inquiry which it

involves.

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Questions of Definition – What is Jurisprudence?

Opinion of many writers - it is difficult to give a universal and uniform definition of jurisprudence. Reasons:

• Every jurist has her own notion of the subject-matter and proper limits of jurisprudence;

• Her approach is governed by his allegiances, or those of his society, by his "ideology“;

• The growth and development of law in different countries occur under different social and political conditions:

o words used for ‘law’ in different countries convey different meanings.

o Words of one language do not have synonyms in other languages conveying the same meaning.

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• The evolution of society is of dynamic nature. This causes o difficulty in accepting any one definition by all;o new problems and new issues demand new interpretations

and new solutions under changed circumstances. Jurisprudence thus remains an imprecise term. Accordingly• it is used to refer to a body of substantive legal rules, doctrines,

interpretations and explanations that make up the law of a country: thus, English or Malaysian jurisprudence refers to the laws of England or Malaysia;

• it is used refer to the interpretation of the law given by a court. This sense is used to speak of the constitutional jurisprudence of the US Supreme Court, the High Court of Australia, and the jurisprudence of the European Court of Human Rights.

In this sense, jurisprudence does not refer to law, but signifies the juristic approaches and doctrines associated with particular courts.

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Meaning of JurisprudenceThe 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: Jurisprudence is “the knowledge of things divine and human, the science of the just and unjust”. Paulus: “The law is not to be deduced from the rule, but the rule from the law”.

Idea of jurisprudence by the Roman jurists is vague. But they put forth the idea of a legal science independent of the actual institutions of a particular society.

Thus through jurisprudence law becomes self-conscious, i.e. it is conscious of its own reality or existence - in the same way that people become aware of building structures and designs through architecture.

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English usage of the term: early usage of ‘jurisprudence’ in England during formative period of the common law - it meant little more than the study of or skill in law.

Early part of the 18th century - the word began to acquire a technical significance among the English lawyers. Examples:

o Bentham distinguished between examinations of the law as it is and as it ought to be.

o John Austin placed a focus on formal analysis of the structure of the English law.

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Modern development: during the last one century jurisprudence is viewed in a broader and a more sweeping sense than that which English lawyers understood it.

Karl Lewellyn, an American legal realist: “Jurisprudence is as big as law - and bigger”, meaning that jurisprudence has something more to it than the law itself.

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.

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Julius Stone describes jurisprudence as the lawyer’s “extraversion”. It is the lawyer’s examination of the precepts, ideals and techniques of the law in the light derived from present knowledge in disciplines other than the law. Stone thus acknowledged the structures of legal theory as being linked totally with other studies, thus proclaiming the relevance of jurisprudence to life in general and everyday law in particular.

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Today, jurisprudence involves the study of general theoretical questions about

• the nature of laws and legal systems, • the relationship of law to justice and morality, and • the social nature of law.

Proper discussion and understanding of these questions demands that jurisprudence today develops interdisciplinary quality or approach.

Tim Murphy: theorizing about law necessarily involves substantial engagement with other disciplines as philosophy, political theory, economic theory, sociology, anthropology, history, theology and even geography.

Additionally, students of legal theory are faced with a historical canvas that begins in approximately the fifth century BC with the Greek philosophical tradition. 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.

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Nature of Jurisprudence

Lloyd: It is difficult to characterize jurisprudence: there are many aspects to it.

Lloyd – jurisprudence is concerned with rule-governed action, with the activities of officials such as judges and with the relationship between them and the population of a given society.

Hart categorised his exploration into the concept of law as an "essay in descriptive sociology." But whether jurisprudence is a social science or not is debatable.

Some jurists view jurisprudence as a science.

Salmond: “… 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”.

Other jurists include Pound, Gray, Holland, Allen, Lee, Paton, Clarks.

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The normative character of lawLloyd’s view: 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 a study of factual patterns of behaviour.

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 noncompliance.

This is, therefore, a particular form or use of language different from that part of language concerned with propositions of fact.

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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" happenNote: 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.

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Jurisprudence as academic subject

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 which it employs - – terminological and methodological.

Most of the law subjects deal with case law and statutory materials.

In jurisprudence, the primary focus is on ideas, and not facts.

There is a greater proportion of abstract, theoretical material in jurisprudence.

Ian Mcleod: for students of jurisprudence the primary sources are frequently not cases or legislative enactments, but the works of legal theorists.

John E Finnis, “Jurisprudence is not a course on law, but rather an exploration into the philosophy and nature of law.”

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Use of unfamiliar terms?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.

Denis Meyerson:

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.

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The Scope of Jurisprudence

There is no consensus on the scope of jurisprudence.

Different authorities give different meanings and verifying premises/basis to law.

Opinions thus differ on exact limits of the field covered by jurisprudence.

Natural law jurists define jurisprudence as to cover moral and religious precepts. Positivists, like Austin, drew a clear distinction between law, on the one hand, and morality and religion, on the other hand.

Austin restricted the term law to the body of rules set an enforced by the sovereign or supreme law-making authority within the political society. 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.

Huntington Cairns criticizes Austin’s position as being too narrow and failing to take into account social aspects of law.

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Current trend on scope of Jurisprudence:

To widen the scope of jurisprudence to include what was previously considered to be beyond the province of jurisprudence.• all concepts of human order and human conduct in

State and society. • anything that concerns order in the State and society.

PB Mukherji: 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.”

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Adam Smith: Jurisprudence as a study of law and government

Adam Smith, the Professor of Moral Philosophy, defined 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’.

This he saw as comprising four main objects:• the maintenance of justice;• the provision of police;• the raising of revenue; and • the establishment of arms.

Notable in Smith’s theory of law and government is that it requires that we attend not merely to matters of the definition or application of law, but also of how these relate to politics and the practice of governing.

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.

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The study of law in this sense would require consideration of the following issues:

• 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.

Veitch et al, p. vii:

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

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Alternative terms used for Jurisprudence: “Legal Theory”

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”.

Ratnapala - 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 tended to limit inquiries to the task of finding a universally valid definition of law or set of criteria to distinguish law from other kinds of rules.

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Example:

HLA 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.

Ratnapala: Legal theory does not stop with the range of questions posed by the positivists. 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.

Ian Mcleod: 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.

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Descriptive and Normative Legal Theory There are two principal forms of legal theory:• Descriptive legal theories;• Normative legal theories.

Descriptive legal theory seeks to explain what the law is, and why, and its consequences.

Normative legal theories are concerned with what the law ought to be.

In short, descriptive legal theories are about facts; normative legal theories are about values.

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Types of Descriptive Legal Theory:• First, ‘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.

• Secondly, ‘explanatory’ - it attempts to explain why the law is as it is.

• Third, ‘consequential’ – it concerns the consequences that are likely to follow from a certain set of legal rules.

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Normative legal theory is concerned with values.

Example:

It seeks to establish whether strict liability ought to be adopted in order to protect consumers.

Normative legal theories are closely associated with moral or political theories.

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Types:

Normative legal theories might be either • ‘ideal’ or • ‘non-ideal’.

Ideal theory - relates to what legal rules would create the best legal system if it were politically achievable.

Non- ideal theory - presupposes an assortment of constraints on the choice of legal rules, such as the difficulty of enforcing such rules.

Note: There is no clear-cut distinction between these two categories of legal theory.

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Approaches to Study of Jurisprudence

John Austin, the 19th century British positivist – says 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;Particular jurisprudence is confined only to the study of any actual system of law or any portion of it.

Generally 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 in force in a specifically determined political society.

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Fields of Jurisprudence• Analytical jurisprudence - 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 (descriptive) jurisprudence – an abstract study of the legal rules to be found generally in the more developed legal system.

• Particular (descriptive) 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.

In jurisprudence today no settled paradigms prevails. Legal literature reflects this lack of consensus.

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Emerging Forms of Jurisprudential Thinking

Dickson (2003) 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.

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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?

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Tim Murphy: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?”

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Ratnapala,

The range of questions about law and justice asked within jurisprudence is indefinite.• What is law, and can it be defined?• What are the historical origins of law?• How do rules of behavior emerge in a society before they are recognized or

enforced by the state?• Is there a basic set of rules that make social life possible?• How does law shape society?• What qualities must law possess to be effective?• How do judges decide hard cases?• Whence comes their authority?• Is there superhuman natural law?• If so, how do we find its principles?• Why do people obey some laws even when they face no sanction for

disobedience?• Is there a duty to obey an unjust law?• Can we make moral (or economic) judgment about particular laws or legal

systems?• What do we mean by justice?• Is there a special brand of legal justice?• Are there universal standards of justice?• What is natural justice and what are its minimum demands?• What do we mean by social justice?

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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. o What is definition? What is a rule? What is law? What is morality? What

is justice? What is a critical standpoint?

• There are also questions of political morality which impinge on your life. o 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?

• There are questions of sociology and history. o 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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The general questions regarding the incidence, existence and consequence of law as a social phenomenon

• 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.

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The general attitude in the Common Law tradition towards theoretical investigation of law

Common Law tradition is highly skeptical towards anything theoretical in connection with the law. This attitude prevails among judges, legal practitioners and even academic lawyers and law students.

Reasons:• The hard-headed and pragmatic attitude of common lawyers to the law;• The absence of any philosophical tradition informing legal education or the

practice of law in common law countries.• 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.

• It is only in comparatively recent times that legal education has established itself as an acknowledged discipline in English and other common law countries universities.

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This is in marked contrast to the position in Europe:• where theoretical perspectives are welcomed;• where universities were founded for the purpose of

educating for the professions, especially that of the law;

• academic approach to legal education, with its more philosophic and rationalistic orientation, is 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". (Lloyd)

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The Question of Relevance

Benefits of studying Jurisprudence• It helps students to formulate what questions

need to be asked; and it gives guidance on how others have sought to answer these questions.

• It helps students to realize that theories can have real effect on the real practical world - theories of law developed by certain legal philosophers have had deep impact on people’s idea and belief about law.

• It helps students develop a sense of what is law about.

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• It 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. Likewise, legal practice outside of a theoretical context would be mindless, while a legal theory that did not refer to practice would be pointless.

• It is ‘practical’ – it helps to develop students’ intellectual skills. 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.

• It contributes to a deeper understanding of law by providing the tools to engage in rational criticism of the law – particularly in the shape the law should take – the standards, in other words, which good law should meet.

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• Lloyd: A study of jurisprudence encourages 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.

• 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.

• At a professional level, jurisprudence is the way lawyers and judges reflect on what they do and what their role is within society.

• 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.”

• Read further notes by Ratnapala on “Rewards of Jurisprudence”

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How to read a jurisprudence text - Professor Twinning's view

• 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.

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

•The historical level – 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 – examine the questions raised, scrutinize the answers given and then evaluate the reasons provided for those answers. Students should clarify the nature of the question before accepting the author’s answer. •The applied level – 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.

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

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

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.

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By studying the nature of law, a knowledge of how it is coherent becomes more apparent.

o students understand the dynamic link between law and other social facts;o Students grasp the link between theory and practice (of law) and to positively

evaluate the arguments of the various jurists,;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 be prompted 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? Is law synonymous with morality? To what extent may the legislators in this society be said to be concerned

with the welfare of the citizens? 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?

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THE ENDTHANK YOU