Introduction
Jurisprudence: What is it?
The English term is derived from the Latin word jurisprudentia: [1]juris is the genitive form of jus meaning “law”, and prudentia means “knowledge”. The word is first attested in English in 1628, at a time when the word prudence had the now archaic meaning of “knowledge of or skill in a matter”. The word may have come via the French jurisprudence, which is attested earlier. The word jurisprudence is derived from the Latin word “JURISPRUDENTIA” which means knowledge of law or skill in the law. Jurisprudence is a study of the basic legal principles. It may be described as any thought or writing about law. It is a course of action or a perception to comprehend the essential principles of law and legal system. Philosophers of law ask “what is law?” and “what should it be?”Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to get hold of a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18thcentury and was focused on the first principles of the law of nature, civil law, and the law of nations. General Jurisprudence can be broken into categories both by the types of questions scholars seek to address and by the theories of jurisprudence or schools of thought regarding how those questions are best to be answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups[2]:
• Problems internal to law and legal systems as such.
• Problems of law as a particular social institution as it relates to the larger political and social situation in which it exist.
Meaning
In English jurisprudence we are concerned rather to reflect on the nature of legal system, on the underlying meaning of legal concepts and on the essential features of legal system. We need English jurisprudence to analysis the basic concept of law. Jurisprudence is a certain type of study into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. It is a subject which differs in kind from other subjects on the legal syllabus. For the typical legal subject, e.g. Contract or Tort, consist of a set of rules and principles to be derived from authoritative source and applied to factual situations in order to solve practical problems. Jurisprudence, by contrast, does not constitute a set of rules, is not derived from authority and is without practical application. In jurisprudence we are not concerned to derive rules from authority and apply them to problems; we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system. Thus, where as in law we look for the rule relevant to the given situations, in jurisprudence we ask what it is for a rule to be a legal rule, and what distinguishes law from morality, etiquette and other related. The word “Jurisprudence” has meant many different things at different times. Jurisprudence is not practical value, even if of a long-term character. One of the tasks of jurisprudence is to construct and clarify organizing concepts serving to render the complexities of law more manageable and more rational, and in this way theory can help to improve practice. Legal system is understandable by jurisprudence. The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, psychology, economics, anthropology and many others. Jurisprudence is a science of law and there are different methods of approach to it.
Legal philosophy has many characteristics, but three of them are the most common:
- [3]Natural law is a school of legal philosophy which considers that there are constant laws of nature which direct us, which are general to all human societies, and that our institutions should try to equal this natural law.
- Analytic jurisprudence is indicate to be an objective study of law in impartial conditions, distinguishing it from natural law, which evaluates legal systems and laws throughout the structure of natural law theory, asks questions like, “What is law?” “What are the criteria for legal validity?” or “What is the relationship between law and morality?” and other such questions that legal philosophers may compromise.
- Normative jurisprudence looks at the purpose of legal systems, and which sorts of laws are enough, asks what law ought to be. It overlaps with moral and political philosophy, and contains questions of whether one ought to follow the law, on what grounds law-breakers might correctly be punished, the correct uses and limits of regulation, how judges should decide cases.
Jurisprudence: How it was?
The historical study of law has, for the most part, been confined to a single system — the Roman law. The Roman law presents itself to the historical student in two different aspects. It is, regarded as the law of the Roman republic and empire, a system whose history can be traced throughout a great part of its duration with certainty, and in parts with great detail. It is, moreover, a body of updated legal principles which may be considered apart from the state system in which they were developed, and which have, in fact, entered into jurisprudence of the whole of modern Europe on the strength of their own abstract authority,—so much so that the continuity of the existence of the civil law, after the fall of the empire, is entitled to be considered one of the first discoveries of the historical method. An immense impulse was given to the history of Roman law by the discovery of the Institutes of Gaius in 1816. A complete view of Roman law, as it existed three centuries and a half before Justinian, was then obtained, and as the later Institutes were, in point of form, a recension of those of Gaius, [4]the comparison of the two stages in legal history was at once easy and fruitful. Moreover, Gaius dealt with antiquities of the law which had become obsolete in the time of Justinian law has accordingly been the main subject of historical study, and the conclusions of jurisprudence are to a great extent generalizations suggested by the history of Roman law.
Nowhere did Roman law in its modern aspect give a stronger impulse to the study of legal history than in Germany. The historical school of German jurist led the reaction of national sentiment against the proposals for a general code made by Thibaut. [5]German jurisprudence is darkened defective analysis of positive law. But its conception of laws is exceedingly favorable to the growth of an historical philosophy, the results of which have a value of their own, apart altogether from the character of the first principles.
There is only one other system of law which is worthy of being placed by the side of Roman law, and that is the law of England. No other European system can be compared with that which is the origin and substratum of them all; but England, as it happens, is isolated in jurisprudence. She has solved her legal problems for herself. Whatever element of Roman law may exist in the English system has come in, whether by conscious adaptation or otherwise, extra; it is not the essence of the system, nor does it form a large portion of the system.
Why Study Jurisprudence?
Jurisprudence is wisdom about law. That is what we hope is imparted by legal education as a whole. But in many university law schools, students are also required or invited to study for a specific examination called ‘jurisprudence’. Here the word is used in a narrower sense. It means the theory of law: the articulation, defense and criticism of propositions about law and legal life that are supposed to hold generally, across many times and places. To study this subject usually requires forays into other academic disciplines, such as sociology, philosophy, politics, and economics.
In philosophy, propositions are supposed to hold very generally indeed. Indeed they are vulnerable to distortion by just one counterexample. And so it is in jurisprudence, understood as philosophy of law. Why invite, let alone require, law students to study abstract problems, exemplified by the imaginary legal practices of science-fiction? The simple answer – easily forgotten in this anti-intellectual age – is that these students are at university, and so should be studying at least some universals. But even if they don’t study any universals, they should certainly study something other than narrow-minded legal principle. In many countries, the academic study of law is possible only after an undergraduate degree in some other discipline. Students will typically have pursued a broader humanities curriculum to first degree level. The vast majority of those taking law degrees at UK universities, by contrast, have no such exposure. Most of their time as undergraduates is spent meeting the requirements for a ‘qualifying law degree’, dominated by the mastery of British and European legal materials and techniques. By any standards these are startlingly narrow horizons for a twenty-year-old, especially one who aspires to join what aspires to be a humane profession.
In recent years this search for practical advice in the philosophy of law has gained some respectability thanks to the highly original works of [6]Ronald Dworkin. Dworkin is aloof of any attempt to separate the philosophical study of law (‘what is law?’) from the practical problems faced by judges and trial lawyers. The only philosophy of law worth doing, Dworkin argues, has the same objectives as legal practice itself. The legal philosopher, like the lawyer, is there to interpret legal materials, and indeed can help lawyers to see (by example) how best to do it. The difference is that philosophers tackle the same problems in a more abstract and general way, attempting to bring coherence not only to particular corners of the law but to whole systems of law, or perhaps even (Dworkin does not tell us where to stop) to all the law that there is. This, however, is a difference of degree not of kind. It turns philosophers of law into ambitious lawyers and lawyers into workaday philosophers of law.
The first is a contribution to excellence in argument. The tradition of oral delivery makes room for extra unnoticed fallacies. The central role of authority dulls the lawyer’s critical faculties, and allows argumentative error to become embedded in the law. Only in the drafting of formal documents such as statements of claim are these problems brought to the surface. Education in philosophy enables one to anticipate the problems and deal with them.
Most human rights cases, in the long view, are cases about the separation of public powers. They are not cases about whether human rights will be protected but about whom – executive, legislature, judiciary – gets to decide the scope of protection. This fact is rarely at the forefront of lawyers’ legal minds as they work on such cases. They tend to assume (because they are taking the case to court) that the judge must be the one to give us our ruling on the scope of protection. And they are too busy thinking about the human rights of our client – the immediate issue that has been brought to them – to think about the implications of what they are doing for the separation of public powers. A philosophical education encourages them to look beyond this immediate issue. It encourages them to look for timeless problems underlying topical problems. One may say that for a lawyer with clients this could be a distraction. No doubt it could. But a lawyer who is astute to both perspectives has two levels of argument to think about. Whereas her opponent – lacking any philosophical education – cans maybe muster only one.
Persuasion: How it should be?
The fact that this paper raises questions about our capacity to generalize across legal cultures and traditions, should not be taken as the declaration of a strong particularistic or relativist position (Twining,2002,pp. 9–11). Legal anthropologists, such as Bohannan and Roberts, have emphasized the importance of ‘folk concepts’ in understanding the normative order of a different culture (Bohannan, 1957; Roberts, 1998); comparative lawyers have warned of the many pitfalls in attempting to compare conceptual schemes. For such reasons, functionalist approaches to comparative law have emphasized that convergence between legal systems is more often than not convergence of shared outcomes reached by different conceptual routes (e.g. Zweigert and Ko¨ tz (1998, Ch. 2), cf. Twining (2000a, p. 37)). Implicit in such perspectives is a sub-text to the effect that ordinary legal discourse tends to be highly culture-specific and lacks a vocabulary that is suitable for analytic purposes. Pushed to its limits this view suggests that lawyers are inescapably culture-bound and hence are incapable of doing valid comparative work across cultures: they cannot free themselves from their cultural blinders. Simon Roberts comes close to adopting this position when he suggests that one needs to look to the social sciences rather than to law for an analytic framework for ‘the comparative project’ (Roberts, 1998). This view is reminiscent of W. W. Buckland’s skepticism about the feasibility of general analytical jurisprudence and of the position of ‘difference theorists’ in comparative law, such as Pierre Legrand (Buckland, 1945; Legrand, 1999; Hyland 1996; Twining, 2000, pp. 25–33). Originating in different contexts (including analytical jurisprudence, legal anthropology, sociology and comparative law), such particularistic views seem to converge on a single thesis, which may be termed ‘legal relativism’.
Global coverage: What can be done?
Although the interest for the concept of globalization has taken a halt since 9/11, it still provides a convenient label for a variety of purposes. However, its attractions also make it unhelpful and misleading, not least because while it suggests increasing global unity, it is generally used to draw attention to the often competitive interactions between diverse societies and cultures.
Collections of writings assembled around the law-and-globalization theme are likely to suffer from the lack of a clear common understanding or theory either of globalization, of law, or both, leading to incoherence.
Twining’s paper in this collection is part of an ongoing project to develop a ‘general jurisprudence’ which he suggests might underpin the increasingly cosmopolitan character of law as a discipline, by ‘theorizing that treats generalizations across legal families, traditions, cultures and orders as problematic’. (Twining, 2005, p. 6).
Twining seeks to establish a wider version of analytical jurisprudence than the familiar and much-criticized version associated with the linguistic analysis and logical positivism school typified especially by Herbert Hart. To do so he builds on Julius Stone’s scheme dividing jurisprudence into three parts, the analytical, and the sociological and ‘theories of justice’, which for Twining entail analytical, empirical and normative inquiries. However, these inquiries seem to proceed in parallel, rather than in combination.
If the attempts of Twining results positively and everyone follows it then study of jurisprudence in modern time will be treated broad perceptively at a global range.
Conclusion
To sum up jurisprudence is a study, knowledge understanding, philosophy or research of the fundamental legal principles. It is any thought or writing about law and its relation to other social sciences such as economics, psychology, philosophy, sociology polittics and ethics etc. It digs into the historical past and attempts to create the symmetry of a garden out of the confusion of different conflicting legal system. It consists in whatever law thinks, says and does in any field of human society. The study of it has started from the time of Roman empire. In this modern age it needs to be studied and pursued in a broad perspective. This can be done only if interaction among culture is done and writings of laws are assembled around globe in a law-and-globalization theme.
Bibliography
Footnotes
1. http://legal-dictionary.thefreedictionary.com/jurisprudence accessed on 21-Jul-12
2. Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
3. http://www.aboutlawschools.org/theory/jurisprudence/ accessed on 21-Jul-12
4. Institutes of Justinian, printed as a recension of the text of Gaius, has been published by Professor T. E. Holland, Oxford, Clarendon Press, 1882, 2d ed.
5. Introduction to the History of Jurisprudence, by D. Caulfield Heron, LL.D., London, 1880.
6. users.ox.ac.uk/~lawf0081/pdfs/whystudyjurisprudence.pdf accessed on 21-Jul-12
Books
BOHANNAN, Paul (1957) Justice and Judgement Among the Tiv of Nigeria. Oxford: Oxford University Press.
BUCKLAND, W.W. (1945) Some Reflections on Jurisprudence. Cambridge: Cambridge University Press.
DWORKIN, Ronald (1986) Law’s Empire. London: Fontana.
DWORKIN, Ronald (2002) ‘Thirty Years On’, Harvard Law Review 115:1655.
HART, H.L.A. (1953) Definition and Theory in Jurisprudence (Inaugural Lecture) Oxford: Oxford University Press (reprinted in Hart (1983) and elsewhere).
HART, H.L.A. (1961/1994) The Concept of Law. Oxford: Oxford University Press, 2nd edn., including Postscript.
HART, H.L.A. (1967) ‘Problems of Philosophy of Law’ in P. Edwards (ed.) Encyclopedia of Philosophy 6: 264. New York: Macmillan and Free Press (reprinted in Hart, 1983: Ch. 3).
HART, H.L.A. (1983) Essays in Jurisprudence and Philosophy. Oxford: Oxford University Press.
HART, H.L.A. (1987) Comment on Ronald Dworkin, ‘Legal Theory and the Problem of Sense’ in R. Gavison (ed.) Issues in Contemporary Legal Philosophy: The Influence of H L A Hart. Oxford: Oxford University Press.
HYLAND, Richard (1996) ‘Comparative Law’ in Dennis Patterson (ed.) A Companion to Philosophy of Lawand Legal Theory. Oxford: Blackwell.
LEGRAND, P. (1999) Fragments on Law-as-Culture. Deventer: Tjeenk Willink.
ROBERTS, Simon (1998) ‘Against Legal Pluralism’, Journal Legal Pluralism 42: 95.
TWINING, William (2000) Globalisation and Legal Theory. London, Edinburgh: Butterworths.
TWINING, William (2000a) ‘Comparative Law and Legal Theory: The Country and Western Tradition’ in Ian Edge (ed.) (2000), 21.
TWINING, William (2002) the Great Juristic Bazaar. Aldershot: Ashgate.
TWINING, William (2005) ‘Have concepts, will travel: analytical jurisprudence in a global context’,
International Journal of Law in Context 1(1): 5.
ZWEIGERT, Konrad and KO¨ TZ, H. (1998) An Introduction to Comparative Law (Tony Weir, trans.) Oxford:
Oxford University Press, 3rd edn.
[1] http://legal-dictionary.thefreedictionary.com/jurisprudence accessed on 21-Jul-12
[2] Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
[3] http://www.aboutlawschools.org/theory/jurisprudence/ accessed on 21-Jul-12
[4] A very useful edition of the Institutes of Justinian, printed as a recension of the text of Gaius, has been published by Professor T. E. Holland, Oxford, Clarendon Press, 1882, 2d ed.
[5] See Introduction to the History of Jurisprudence, by D. Caulfield Heron, LL.D., London, 1880.
[6] users.ox.ac.uk/~lawf0081/pdfs/whystudyjurisprudence.pdf accessed on 21-Jul-12