Jurisprudence, also known as legal theory or legal science, is the philosophy of law. As a field of knowledge, it applies philosophical methods to legal questions, such as what the law is or how it ought to be.
Evidence of jurisprudential thought can be found in the writings of ancient philosophers, including Confucius (c. 551 – c. 479 BCE), Aristotle (384–322 BCE), and St Augustine (354–430 CE), who wrote broadly on moral and political philosophy. Among the oldest conceptions of law are natural law theories, instrumental theories of law, and law as reflective of social norms and custom. Contemporary mainstream academic jurisprudence traces its origin to the early 17th century and the Age of Enlightenment, which saw empiricist philosophers such as Hobbes, Hume, Locke, Montesquieu, and Rousseau rejecting religious conceptions of law and developing early concepts of the rule of law, justice, and constitutionalism.
By the twentieth century, the legal positivism of H. L. A. Hart and Hans Kelsen had become the dominant focus of jurisprudence, with analytical jurisprudence seeking to develop a general jurisprudential concept of law via the methods of analytic philosophy. Scholars of general jurisprudence inquire into the question of what the law is. Other legal theorists seek to address particular philosophical questions relating to the law, including the determination of valid laws and legal systems; the nature of legal norms, values, and doctrine; and the relationship between law and economics, ethics, history, sociology, and political philosophy.
Historically, the teaching of jurisprudence in common law jurisdictions has been separated from professional education in the law. Particularly in the United States, legal scholarship has eschewed general analytical jurisprudence in favour of legal realist and socio-legal approaches to the law. Other research areas of legal theory include law and economics, critical legal studies, feminist legal theory, international law jurisprudence, comparative law, legal history, and the legal interpretivism of Ronald Dworkin.
Definition and scope
The word jurisprudence first appeared in written English in 1628, a loanword from the Latin or prudentia iuris, meaning expertise (prudentia) in the law (iuris). According to the Oxford English Dictionary, the word's initial meaning was "Knowledge of or skill in law", but in English it has since become associated with the philosophy of law. In civil law jurisdictions, jurisprudence refers to case law or precedent, with legal philosophy being referred to as 'legal theory' or 'legal science'.
The study of jurisprudence can be divided into a number of areas of research. General jurisprudence is the study of the nature of law and aims to describe law and its characteristics generally and universally, irrespective of the jurisdiction or particular characteristics of a legal system. The central issues of contemporary general jurisprudence, particularly analytical jurisprudence, are what the relationship between law and morality is; how the law can be identified and distinguished from other systems of norms; and the necessary and sufficient criteria for law or a legal system to exist. Other areas of jurisprudence include normative jurisprudence, which aims to evaluate and critique law from a philosophical perspective, and critical legal studies, an area of critical theory as applied to law.
Methodology Questions of general jurisprudence may be approached from a number of philosophical methodologies. Conceptual analysis is the dominant methodology in legal philosophy, particularly in analytical jurisprudence, which is concerned with the application of analytic philosophy to legal issues.
In the United States, legal scholarship eschews doctrinal or analytical approaches toward the law, but it is instead dominated by legal realism and the application of social science to law, such as law and economics, law and society, and critical legal theory. The objectives of much of United States jurisprudential scholarship differs, as such, in that it rejects the basis of legal reasoning as formalistic but rooted in power dynamics that ought to serve political, moral, and economic objectives.
Experimental jurisprudence
Significance and legal education The importance of jurisprudence in legal practice and legal education is controversial. In common law jurisdictions, the study of jurisprudence is separate from the practice of law, with lawyers in medieval England having previously been trained via apprenticeship rather than academic study. At the same time, legal philosophers, such as Ronald Dworkin, have argued that an understanding of legal philosophy is relevant to legal practice as regards issues such as legal validity, human rights, statehood, the separation of powers, and the analysis of judicial interpretation.
Intellectual history and schools Evidence of early legal philosophy being carried out dates back to the 5th century BCE in Ancient Greece, Ancient India, and Ancient China. The focus of jurists depended, and still depends, upon the nature of the legal systems that they lived in, with the objectives of jurisprudence evolving over time and across jurisdictions.
Because early legal systems often lacked the sophisticated legal machinery, encompassing legislatures and independent courts, found in many modern jurisdictions, ancient philosophers, including Confucius (c. 551 – c. 479 BCE) and Aristotle (384–322 BC), more broadly focused on general principles of political philosophy, justice, and ethics, rather than formulating comprehensive theories of general jurisprudence. Contemporary questions of jurisprudence, as such, usually originate in the intellectual history during and after the 17th century. et al., The Civil Law Tradition: Europe, Latin America, and East Asia, Cases and Materials 481 (LexisNexis ed., 1994) (reprinted 2000).
Law as custom, religion In early legal systems, including those in Greece, India, and England, the law was often regarded as customary, reflective of or codifying older legal practices and social norms. Historically, the common law courts regarded themselves as merely discovering the law that has existed since time immemorial, laws that reflect apparently ancient customs, norms, and rights. More recently, this school of thought was championed in the historical jurisprudence of the German politician Friedrich Carl von Savigny (1779–1861).
In his book On the Vocation of Our Age for Legislation and Jurisprudence, Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs, and beliefs of the German people did not include a belief in a code.Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
Islamic jurisprudence
Natural law Natural law theory encompass both jurisprudential issues as well as broader issues of political and moral philosophy. Jurisprudential natural law theories are associated with the legal maxim, lex injustia non est lex (unjust law is not law), either as a criteria of validity for law (per classical natural law theory) or as relating to theoretical notions of justice and the proper purpose of law (per 'new natural law' theory).
Natural law relates to the nature of human beings and the consequent natural rights that flow from such nature, which either is or ought to be respected by valid positive law. The intellectual origin of natural law theory is often attributed to the Ancient Greeks, particularly in the works of Aristotle, although aspects of natural law thought have also been found in the majority of ancient civilisations, including in Chinese and Hebrew law.
Aristotelian natural law theory originates in his teleological view of nature and ethics, which asserted that which is good for man can be determined, by reason, from the functions of man, a view which later became popular among the Stoics. The Romans also had a conception of ius naturale, with Cicero asserting that "True law is right reason in agreement with nature", although Roman law jurists were themselves largely unconcerned with legal theory or Greek political philosophy but instead focused on issues of practical legal doctrine. Similarly, Aristotle himself, did not write extensively about natural rights or natural justice in his writings, but it was the medieval Catholic theologian Thomas Aquinas who interpreted Aristotle in developing classical natural law theory.
Classical natural law was hugely influential in the medieval development of canon law, international law, and political philosophy, later resulting in the social contract theory as developed by Rousseau and Locke. By the Age of Enlightenment, natural law philosophy had largely fallen out of favour among political and legal philosophers, with some exceptions, such as Edmund Burke and William Blackstone. Major criticisms of Thomist natural law were contained in the empiricist, social contractarian, and utilitarian ideals of Hume, Hobbes, and Bentham.
Twentieth-century philosophy, particularly legal philosophy, saw a resurgence of interest in natural law, specifically the new natural law of John Finnis, who offered a reinterpretation of Aristotle and Aquinas. Contemporary secular jurists continue to invoke naturalist arguments in asserting the existence of legally-recognised human rights, limitations to state power, and the ability of the courts to review the decisions of other bodies of state.
Analytic philosophy and analytical jurisprudence
One alternative theory to natural law was the command theory of law, which was a precursor to legal positivism, and which was first developed by medieval theorists, such as Grotius, and later refined by Enlightenment philosophers, such as Hobbes in Leviathan (1651). Hobbes political philosophy was expanded upon by the English jurist John Austin, who defined the law as "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience" further argued that there was a distinction between the determination of law and its assesssment.
By the nineteenth and twentieth centuries, legal positivism had become the dominant view of jurisprudence. Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality. Within legal positivism, theorists agree that law's content is a product of social facts, but theorists disagree whether law's validity can be explained by incorporating moral values.
In common law jurisdictions, Jeremy Bentham is often regarded as an early leading figure in positivistic jurisprudence, serving as a mentor for John Austin, whose jurisprudence later influenced A. V. Dicey and was critiqued by the H.L.A. Hart. Hart, an ordinary language philosopher, claimed that law is the union of primary rules and secondary rules. Primary rules require individuals to act or not act in certain ways and create duties for the governed to obey. Secondary rules are rules that confer authority to create new primary rules or modify existing ones. Secondary rules are divided into rules of adjudication (how to resolve legal disputes), rules of change (how laws are amended), and the rule of recognition (how laws are identified as valid). The validity of a legal system derives from the "rule of recognition", a customary practice among officials (especially barristers and judges) who identify certain acts and decisions as sources of law.