Jurisprudence

Jurisprudence Meaning

Jurisprudence is a term used to describe the study of the theory and philosophy of law. It is a multidisciplinary field that takes into account various factors, such as legal history, social norms, political values, and human behavior, in order to understand the nature of law and its role in society. Jurisprudence is concerned with examining legal concepts, such as justice, rights, and obligation, and exploring how these concepts are applied in different legal systems and cultures. Through the study of jurisprudence, one can gain a deeper understanding of the law, its purpose, and its impact on individuals and society as a whole.

What is a jurisprudence?

This term comes from the combination of two words – juris (law) and prudencia (prudence), meaning ‘wisdom or knowledge’ of the law. In your institutions/books, you can see that there are different titles for the subject – jurisprudence, legal theory, philosophy of law, legal theories/philosophies of law (believing there is no single theory). By the end of your Jurisprudence course you should be able to decide which of these labels applies to the philosophy of law and why. You will cover the predominant historical legal theories in the Western European tradition, including natural law, legal positivism, utilitarianism, Marxist legal theory, legal realism, feminism, critical legal studies, etc. Generally speaking, jurisprudence concerns itself with the basic question of ‘what is law?’

Natural Law

Historically in western European theory ‘natural law’ was developed by the Greeks and romans (Aristotle, Plato, Socrates, etc.), which was then adopted and adapted mostly by others to fit the legal understanding later on of the Roman Catholic Church. Essentially, in its variety of manifestations (including other religions), natural law was a basic position asserting that law was part of the natural universe, which depending on your own view of the world, means –in this early historical stage- that law was given to us by god, and that the content of law is divine. This means that natural law is to be understood as being the ‘natural world’ given to us by a deity, rather than through nature. This meant that while the concrete manifestations of law (the text, the code, the statute, the police, the parliament, the pope, the rabbi, etc.) which we would recognise as law were simply giving voice to divine commands. The justice of law, which in natural law theory is the same thing – that is, law and justice in their perfect embodiment are identical. We would judge in natural law theory a man-made human version of a legal rule according to how close it came to the divine will, as the divine will was seen as justice. Humans either came close to or fell short of this divine will in their fallible way of making law. This view of the natural law theory still exists today, e.g. all religious versions of what is law/justice are inferred from the divine will, to which we aspire. There are more modern and less theocratic visions of what natural law is – people who try to assert that law has a moral core, and that a particular manifestation of law’s form (something passed by parliament), suggest that this is not enough to fulfill natural law theory. For a law to be a law, it must not be in violation of the core values of humanity. These come to us from different sources, e.g. historical divine source.

Legal Positivism

Opposed to this is what is now called ‘legal positivism’, which originated in the English speaking world through the work of the philosopher Austin to develop the command theory of law. This asserts that law is nothing more and nothing less than the command of the sovereign. In olden times this would have been the King or the Queen. Later, it would be Parliament, and today it would be Parliament and delegated authorities. Under legal positivism, law goes through the prescribed technical process, originating from the will of an absolute sovereign. What we have now in reversion of positivism is the form which in this country is simply an Act of Parliament. Essentially, for legal positivism, a law is a law, regardless of what the content of the law is. So, natural law would say that something which has been through the technical forms isn’t a law unless it complies with a core set of norms/values. Legal positivism says that as long as the correct procedure is followed and that the possessor of the sovereign will has acted according to the formal requirements/rules that is enough and constitutes the law.

Other legal theory

In addition, there are variants to both of these theories. Marxist legal theory says that law is a reflection of the relevant class. The content of the rules will affect the will of the particular class which controls the means of production. It is basically an explanation of legal positivism – why the rules exist and where they came from, but not what the rules should be. Feminist legal theory says that the content of law is in fact determined by gender relations in a particular culture, so that if that culture is dominated by masculinity, the substantive content of the law will by and large reflect that dominant hegemonic gender based content. Again, it does not say what the content should be, only where it originated from. Law and economics says that the function of law, like the function of estate, is to encourage the efficient and rational distribution of goods and services in society. So, the role of the state should be limited simply to making sure that we have an efficient economy, doing nothing more or less than this. It takes totalitarianism to its logical conclusion, saying that it does not discuss the moral content of law; rather the legal efficiency of law.

Which theory is most accurate?

Where does this leave us today? Is it command? Is it what Parliament says it is? Generally speaking, these issues tend to get confused with questions over what is the role of the state and the individual. In Western liberal bourgeois democracies these are the two opposite values. This of course depends on going back a few steps in analysis. What is sovereignty? How is a state legitimated? Through the will of the people in a democracy, or is it separate and above those who constitute the body of public. This begs more questions – can a country which is not a democracy have law? In one particular understanding of what democracy is, it could be said that even the UK does not have law and that the government of the day is illegitimate. Is there a connection between legitimacy (in democracy) and law, or is legitimacy simply another term for power and acceptance? The answer you give to these questions should logically determine whether you come down to the natural law theory or legal positivist argument, or one of the sub categories of either.

Cases

Bowers v Hardwick (1986) 478 US 113: two police officers in Georgia enter a house in which they find two people in bed together. Each of these persons is male. The law in the state of Georgia (and over 20 other states) makes it a criminal offence for two men to have sexual relations. The same statute also criminalises other consenting sexual acts between men and women. It went to the Supreme Court of the US, on the argument that the law/constitution gives a right to privacy for adults in their own home. If adults consent to a particular type of activity, the law/state has no business regulating their private sexual behaviour, so long as no harm comes to anybody else (the harm principle of utilitarianism). The Court said that there was a legitimate interest in the state regulating this behaviour and they would not interfere with the legislation in this area. This decision was met with near universal outrage by many people; enough to compel the state to change their law.

The question here is whether a law passed by an elective legislation criminalising consenting sexual acts a law? If so, why? If not, why not? Another case that is relevant:

Roe v Wade (1973) 410 US 113: one of the most famous cases in the US. This case suggests that a woman the right to privacy and part of this right includes the right to have an abortion. Since this there has been huge contestation annually, calling the Court to abolish/overrule the case while others argue in its favour. Recently the case was overruled.

juris prudence

Jurisprudence and the philosophy of law is concerned with understanding and interpreting these laws, as well as examining their philosophical and ethical foundations. At the core of jurisprudence lies the question of what is the right thing to do – what actions are moral, ethical, and just. This question is fundamental to the practice of law and guides the decisions made by judges and legal professionals. Studying jurisprudence allows us to explore the meaning and purpose of the law, and to critically examine the principles and values that underpin it.

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