- 1. Introduction:
Jurisprudence: According to the philosophy of law, or the science which treats of the principles of positive law & legal relations (it’s the science of law). Science which has for its function to ascertain the principles on which legal rules are based, so as not only to classify those rules in their proper order, and show the relation in which they stand to one another, but also to settle the manner in which new or doubtful cases should be brought under the appropriate rules. The function of jurisprudence to consider the ultimate effect which would be produced if each rule were applied to an indefinite number of similar cases, and to choose that rule which, when so applied, will produce the greatest advantage to the community.
In other definitions:
– The branch of philosophy concerned with the law and the principles that lead courts to make the decisions they do;
– Law: the collection of rules imposed by authority;
“Civilization presupposes respect for the law”; “the great problem for jurisprudence to allow freedom while enforcing order”
Jurisprudence is the study and theory of law. Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations. General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:
1.) Problems internal to law and legal systems as such.
2.) Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.
Answers to these questions come from four primary schools of thought in general jurisprudence:
Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have.
Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are.
Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in sociology of law.
Critical legal studies is a younger theory of jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an expression of the policy goals of the dominant social group.
- 2. History of jurisprudence
Jurisprudence already had this meaning in Ancient Rome even if at its origins the discipline was in the traditional law, a body of oral laws and customs verbally transmitted “by father to son”. Praetors established a workable body of laws by judging whether or not singular cases were capable of being prosecuted either by the edict, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edict. An index then would judge a remedy according to the facts of the case.
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 equitable interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evaluative Institutions (legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body of prudent. Admission to this body was conditional upon proof of competence or experience.
Under the Roman Empire, 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 scientific depth of the studies was unprecedented in ancient times.
After the 3rd century, Juries prudential became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian’s Corpus Juries Cavils was born.
In ancient Indian Vedic society, the law or Dharma, as followed by Hindus was interpreted by use of “Manu Smrti” – a set of poems which defined sin and the remedies. They were said to be written between 200 BC – 200 AD. In fact, these were not codes of law but norms related to social obligations and ritual requirements of the era.
- 3. What is Natural law
Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law, lex iniusta non est lex, in which ‘unjust’ is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with 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 and to promote ‘the good’. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the maxim that “an unjust law is no law at all”, but as John Finnis, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical Thomist position.
Thoughts of founders of Natural Law:
Aristotle is often said to be the father of natural law. Like his philosophical forefathers, Socrates and Plato, Aristotle posited the existence of natural justice or natural right. His association with natural law is due largely to the interpretation given to him by Thomas Aquinas. This was based on Aquinas’ conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (= Book IV of the Eudemian Ethics). Aquinas’s influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.
Aristotle’s theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls “political justice” derives from his discussion of “the just” as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term “justice” actually refers to two different but related ideas: general justice and particular justice. When a person’s actions are completely virtuous in all matters in relation to others, Aristotle calls her “just” in the sense of “general justice;” as such this idea of justice is more or less coextensive with virtue. “Particular” or “Partial justice”, by contrast, is the part of “general justice” or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature here are about the grounding of the morality enacted as law not the laws themselves. The passage here is silent as to that question.
The best evidence of Aristotle’s having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the “particular” laws that each people has set up for itself, there is a “common” law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the “particular” law of one’s’ own city was adverse to the case being made, not that there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong.
Aristotle’s theoretical paternity of the natural law tradition is consequently disputed.
3.b Thomas Aquinas
Saint Thomas Aquinas was a philosopher and theologian in the scholastic tradition, known as “Doctor Angelicus, Doctor Universalis”. He is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. The work for which he is best-known is the Summa Theologica. One of the thirty-three Doctors of the Church, he is considered by many Catholics to be the Church’s greatest theologian. Consequently, many institutions of learning have been named after him.
Aquinas distinguished four kinds of law: eternal, natural, human and divine. Eternal law refers to divine reason, known only to God, God’s plan for the universe; man needs this, without which he would totally lack direction. Natural law is the human “participation” in the eternal law in rational creatures and is discovered by reason. Divine law is revealed in the scriptures and is Gods positive law for mankind. Human law is supported by reason and enacted for the common good. Natural law, of course, is based on “first principles”:
“This is the first precept of the law, which good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this”
The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based.
3.c Thomas Hobbes
Thomas Hobbes was an English Enlightenment scholar. In his treatise Leviathan, (1651), Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contractarianand believed that the law gained peoples’ tacit consent. He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, “solitary, poor, nasty, brutish and short”. It is commonly commented that Hobbes’ views about the core of human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place, and he felt absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society.
- 4. What is Analytic Jurisprudence?
Analytic, or ‘clarificatory’, jurisprudence means the use of a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: “What are laws?”; “What is the law?”; “What is the relationship between law and power/sociology?”; and “What is the relationship between law and morality?” Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
- 5. Jurisprudence: A case study
The case was a civil proceeding stemming from a car crash on March 31, 2001, U.S.A. It was fairly routine. There were no life-threatening injuries, no million-dollar compensation demands. Still, the case possessed many of the elements of human-scale drama that adhere to any contest between plaintiff and defendant, regardless of the stakes involved.
Dr. Bahram Moshiri, a prominent Arlington heart surgeon, handsome, dapper and dignified at age 68, was returning to his office from lunch on a Saturday afternoon. He was a passenger; his office manager, Judy Mitchell, was driving. As she prepared to turn left at a busy intersection, her car collided with one driven by A. K. Deb, a computer technician. Just how this happened remained a matter of dispute, Moshiri claimed that Deb sped recklessly across three lanes of traffic in an attempt to cross the median and reach a tire store on the other side of the street. Deb admitted his car was partly in the median, but said he was there properly, stopped and looking both ways for traffic, when Mitchell came up in the left lane and plowed into him.
No definitive pictures of the crash scene exist. Photographs of damage to the two cars offer at least some justification to both points of view. What’s not disputed is that Dr. Moshiri was thrown forward, suffered neck injuries and went through a rough time in the months following the accident. He had to stop seeing patients for a while, then returned to work on a part-time basis. He consulted an orthopedist, signed up for physical therapy, and was diagnosed after six months with an 8 percent overall physical disability. Three years later, he still performs heart surgery, but has to turn down procedures likely to last more than an hour or two, because his neck pain makes it impossible for him to stay at the operating table much longer than that.
That’s what the doctor said. The defense lawyer managed to come up with a few points that were rather inconvenient for the plaintiff’s case. For one thing, Dr. Moshiri had been suffering minor neck discomfort for nearly a decade, following a door-slamming mishap in 1994. The accident in 2001 must have worsened the problem, but no one could say how much–not even the orthopedic surgeon who was paid to testify in Moshiri’s behalf.
Then, too, there was the matter of just how much the doctor’s work routine actually changed in the wake of the accident. Prior to March 31, 2001, he had been operating or seeing patients roughly four days a week. Now he was scaled back to two or three days. That didn’t sound like a drastic curtailment. Having to turn down the most grueling, long-lasting heart operations no doubt caused Dr. Moshiri some distress, but then again, it’s the sort of thing that many 71-year-old surgeons might decide to do even if they hadn’t been hurt in an accident.
By the end of the proceedings on the second day, I had become convinced that the plaintiff had a fairly weak case–at least when it came to recovering a large award. I was convinced further when the plaintiff’s lawyer, in her closing argument, asked for the sum of $65,000 for pain and suffering. It was expected her to seek a much larger amount–somewhere in the low six figures, at least. Asking for so modest a sum seemed an admission that the plaintiff’s side lacked confidence in their presentation.
It turned out that most of other jurors felt the same way. No one thought that Dr. Moshiri had earned a big payout. The only dispute was between the jurors who felt he was entitled to reimbursement for his medical expenses–less than $5,000 altogether–and those who wanted to cut him off at zero on the grounds that it wasn’t even certain who had caused the accident. In the end, the more generous faction prevailed: Dr. Moshiri was awarded $3,449.75 to cover the cost of medicine and physical therapy. None of the principals expressed the slightest emotion when the verdict was read out. My guess is both sides were disappointed–Moshiri because the amount was so small, and Deb because we had held him technically negligent.
- 6. What is Legal positivists
Positivism simply means that law is something that is “posited”: laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that 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. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.
What the law is – is determined by historical social practice (resulting in rules)
What the law ought to be” – is determined by moral considerations.
Bentham and Austin theories:
Bentham’s utilitarian theories remained dominant in law until the twentieth century
Main articles: Jeremy Bentham and John Austin (legal philosopher)
One of the earliest legal positivists was Jeremy Bentham. Bentham was an early and staunch supporter of the utilitarian concept (along with Hume), an avid prison reformer, advocate for democracy, and strongly atheist. Bentham’s views about law and jurisprudence were popularized by his student, John Austin. Austin was the first chair of law at the new University of London from 1829. Austin’s utilitarian answer to “what is law?” was that law is “commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience”. Contemporary legal positivists have long abandoned this view, and have criticized its oversimplification, H. L. A. Hart particularly.
7. What is Virtue Jurisprudence?
Aretaic moral theories such as contemporary virtue ethics emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens. Historically, this approach is associated mainly with Aristotle or Thomas Aquinas later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
Deontology is “the theory of duty or moral obligation.” The philosopher Immanuel Kant formulated one influential deontological theory of law. He argued that any rule we follow must be universalisable: we must be willing to will everyone to follow that rule. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
Utilitarianism is the view that the laws should be crafted so as to produce the best consequences for the greatest number of people possible. Historically, utilitarian thinking about law is associated with the great philosopher, Jeremy Bentham. John Stuart Mill was a pupil of Bentham’s and was the torch bearer for utilitarian philosophy through the late nineteenth century.In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition. Also see Lysander Spooner
- 8. Conclusion
A more interesting question in the long run is whether a jury procedure of this sort is the best means a society such as ours can find to decide legal disputes. It’s fair to say there’s a recurring suspicion in popular American culture that juries–whether the case is civil or criminal–are biased, easily manipulated and not very well informed.
And it’s a thought that is bound to occur to any reasonably intelligent person who finds himself locked in a jury room, assigned the job of determining truth and dispensing justice, whether the issue is large or small.
If anything, lawyers and judges who spend their lives managing and studying the jury system tend to develop an emotional attachment to it, as did, for example, the criminologist Seymour Wishman, who wrote in a 1983 book about what he called the “halo effect” of jury service: “average people, realizing the importance of their responsibility on the jury, rise to the occasion and perform with such an astuteness and integrity that they surprise even themselves.”
- “Jurisprudence”, Black’s Law Dictionary, Sixth edition (January 1, 1990); ASIN: B004HNLZV4
- a b c Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
- Soper, “Legal Positivism”, Cambridge Dictionary of Philosophy, Online edition
- Moore, “Critical Legal Studies”, Cambridge Dictionary of Philosophy
- Brooks, “Review of Dworkin and His Critics with Replies by Dworkin”, Modern Law Review, Vol. 69 No. 6
- Oxford English Dictionary, 2nd edition 1989
- Shellens, “Aristotle on Natural Law.”
- Jaffa, Thomism and Aristotelianism.
- H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
- Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
- “Nicomachean Ethics” Bk. II chapter. 6
- Terrence Irwin, trans. Nicomachean Ethics, 2nd Edition, Hackett Publishing
- a b Nicomachean Ethics, Bk. V, chapter. 3
- “Nicomachean Ethics”, Bk. V, chapter. 1
- Nicomachean Ethics, Bk. V, chapter. 7.
- Rhetoric, Reference section: 1373b2–8.
- Shellens, “Aristotle on Natural Law,” Page:75–81
Reference and online links
- 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). Redeemer University College
- LII Law about… Jurisprudence.
- Filosofiadeldiritto.it “L’Ircocervo. Rivista elettronica italiana di metodologia giuridica, teoria generale del diritto e dottrina dello stato” Lircocervo.it
- 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.
- The Roman Law Library, incl. Responsa prudentium by Professor Yves Lassard and Alexandr Koptev.
- Evgeny Pashukanis – General Theory of Law and Marxism.
- Internet Encyclopedia: Philosophy of Law.
- The Opticon: Online Repository of Materials covering Spectrum of U.S. Jurisprudence.
- Jurisprudence Revision Notes for Students: – LawTeacher.net – Jurisprudence
- Foundation for Law, Justice and Society
- Bibliography on the Philosophy of Law. Peace Palace Library
 See, in Black’s Law Dictionary, Sixth edition. edition (January 1, 1990); ASIN: B004HNLZV4: According to the definition and stated in as reference
 See, Soper, “Legal Positivism”, Cambridge Dictionary of Philosophy
 According to Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
 Brooks, “Review of Dworkin and His Critics with Replies by Dworkin”, Modern Law Review, Vol. 69 No. 6
 “Nicomachean Ethics” Bk. II ch. 6
 Terrence Irwin, trans. Nicomachean Ethics, 2nd Ed., Hackett Publishing
 Nicomachean Ethics, Bk. V, ch. 7.
 Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995).
 Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
 According to and See H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harv. L. Rev. 593
 John Austin, The Providence of Jurisprudence Determined (1831)
 Utilitarianism at Metalibri Digital Library