What is Jurisprudence? Is it
Relevant?
OVERVIEW:
SIGNIFICANCE AND UTILITY OF
THE STUDY OF JURISPRUDENCE
Why the Study of Jurisprudence?
“For those who study jurisprudence
today, it is nothing but a troubling
mass of conflicting ideas”: Arnold.
Areas of discussion
- acknowledgement of conflict of ideas in
jurisprudence
- positive features of a study of the subject
- why criticisms have arisen
- conclusion on the role jurisprudence has to
play.
Implications of Arnold’s perception
of a “chaotic” Jurisprudence
The continuous flux in the evolution and the
enunciation of legal theories, must by its
nature give rise to conflict, e.g. American
Critical Legal Studies, Law-Economics
Movement, conflict between natural law
theory and legal positivism – Arnold, find
“troubling”
Relevance
There is no unanimity among jurists as to the
precise meaning of jurisprudence. Law, which
jurisprudence encompasses, is itself not free from
ambiguity and the definitional ingredients of
jurisprudence comprise law, philosophy, rights,
duties, justice, morality, etc all of which are full of
ambiguity or controversy. It is better to focus on its
nature and scope, or a description, rather than a
definition. Lawyer also can’t seem to agree on an
approach:
• Some claim to use reason – others rely on
intuition, religion, metaphysical speculation
• Some claim to be scientific
• Some base their theories on facts or
observations (empiricism - others reject this
approach
• Some seek universal ideas, others are
concerned with particular legal systems
Some definitional Issues
• Aristotle: “Jurisprudence is a branch of practical and
not theoretical wisdom”
• Ulpian: “Jurisprudence is the knowledge of all things
human and divine, the science of the just and unjust”
[means the perfect law must be the master of all
knowledge and all philosophy]
• Holland: “Jurisprudence is the formal science of
positive law”
• Salmond: “In a generic and primary sense,
jurisprudence includes the entire body of legal doctrine
and in a narrower sense, means the theory or
philosophy of law”
Cont’d
• Austin: “The science of jurisprudence is concerned with
positive law or with laws strictly so called, as considered
without regard to their goodness or badness”
• Lloyd: “Jurisprudence involves the study of general
theoretical questions about the nature of laws and legal
systems, about the relationship of law to justice and
morality and about the social nature of law”
• Oliver W. Holmes: “Law is the prophesies of what the
courts will do in fact”
• von Savigny: “Law isn’t the arbitrary act of a legislator but
is a response to the impersonal powers found in the people’s
national spirit (the volkgeist)”
What is Jurisprudence About?
1. The main purpose of studying jurisprudence or
legal theory is to provide a framework within
which students can locate and reflect upon all
aspects of their study of law, including its:
• origin, history and development;
• Intellectual foundations and justifications;
• Relationship to other academic and practical
disciplines, such as: philosophy; social theory;
criminology; politics; economics
Reasons cont’d
2. The subject has its own intrinsic interest and
value because this is a subject of serious
scholarship and research; researchers in
jurisprudence contribute to the development of
society by having repercussions in the whole
legal, political and social school of thoughts. One
of the tasks of this subject is to construct and
elucidate concepts serving to render the
complexities of law more manageable and more
rational. It is the belief of this subject that the
theory can help to improve practice.
Cont’d
The intellectual discipline required for a study of
this area of thought must be of a high order.
Intensive, systematic analysis, the ability to
exercise one’s critical faculties and to engage in a
continuous questioning of one’s own basic
assumption – all can be heightened by a study of
jurisprudence. The intellectual skills required to
see into the essence of current arguments which
turn, for example, on “the right to silence”, “the
value of the jury”, “the presumption of
innocence,” can be sharpened by a consideration
of legal theorising.
Reasons
3. Jurisprudence also has an educational value. It
helps in the logical analysis of the legal concepts
and it sharpens the logical techniques of the
lawyer. The study of jurisprudence helps to
combat the lawyer’s occupational view of
formalism which leads to excessive concentration
on legal rules for their own sake and disregard of
the social function of the law. John Austin viewed
jurisprudence as providing a “map” of the law
which presents it as “a system or organic whole”.
Reasons
4. The study of jurisprudence helps to put law in its
proper context by considering the needs of the society
and by taking note of the advances in related and
relevant disciplines.
5. Jurisprudence can teach the people to look if not
forward, at least sideways and around them and realize
that answers to a new legal problem must be found by a
consideration of present social needs. Perennial
questions such as: “What are human rights?”, “Are
there any absolute values in the law?”, “What is
justice?” These problems exemplify matters which have
been raised over the centuries by philosophers
and jurists. Not only the content of legislation
and the administration of legal institutions, but
the basis of society itself, have been affected
by attempts to answer questions of this nature.
They are of abiding human interest.
Reasons
6. Jurisprudence is the eye of law and the
grammar of law because it throws light on basic
ideas and fundamental principles of law.
Therefore, by understanding the nature of law, its
concepts and distinctions, a lawyer can find out
the actual rule of law. It also helps in knowing the
language, grammar, the basis of treatment and
assumptions upon which the subject rests.
Therefore, some logical training is necessary for a
lawyer which he can find from the study of
jurisprudence.
Reasons cont’d
7. It trains the critical faculties of the mind of the students so
that they can dictate fallacies and use accurate legal
terminology and expression.
8. Jurisprudence therefore transcends the boundaries
between municipal (i.e. National) laws, yet still needs to be
distinguished from international law, which may be:
• private international law, or conflict of laws, where
problems need to be resolved on private matters such as
divorce or contract involving different legal jurisdictions,
England and Ghana;
• Public international law, involving issues arising between
sovereign states.
9.The ability to perceive a process of change
beneath the apparently static processes of the law
can be intensified by jurisprudential analysis. The
War Crime Act 1991 was preceded by wideranging debate which turned on important aspect
of legal, involving changing social attitudes
towards crimes, punishment, and retribution. A
shift of emphasis in the role of foreseeability and
intent in assault, which has formed the basis of
much recent jurisprudence debate was evident in
the decision of the House of Lords in R v. Savage
(1991).
Perception of the law as an aspect of a changing
social environment and attitudes characterises
much contemporary juristic thinking, particularly
evident in cases involving “permission to
terminate medical treatment”, “the right to life”:
see, for example, the decision of the Court of
Appeal in Re A (children) (2000) in which the
court was asked to pronounce the lawfulness of
the surgical separation of conjoined twins. In this
case, Jodie and Mary the:
a) Catholic parents’ preferred alternative was
inaction so that nature could take its course;
b) Court of Appeal held that the paramount
interests of the child should prevail, even
though that meant sacrificing one of infant
lives.
Modern jurists include many who demonstrate a
profound concern for social justice and communal
harmony – this is obvious in the writings of
contemporary American legal theoreticians:
- Dworkin, for example, argues cogently that the
real purpose of the law can be found in the aim of
ensuring that a community acts towards all its
members in a “coherent, principled fashion”.
- Rawls proposes acceptance of a public conception of
justice which must constitute the fundamental character
of any well-ordered human association.
- Nozick lays stress on the importance of using
principles of justice so as to clarify problems inherent
in the holding and transferring of society’s resources.
- For Professor Hart and Professor Raz, Jurisprudence
tells us something of value about the institution of law
wherever it is found in whatever human society.
•
•
•
•
Professor Hart in The Concept of Law (1961) focused
attention on three recurrent issues about law which
asked questions about law as a social institution:
‘How does law differ from and how is it related to
orders backed by threats?’
‘How does legal obligation differ from, and how is it
related to moral obligation?’
‘What are rules and to what extent is law an affair of
rules?’
For Hart ‘definition of law’ had done little to answer
these questions about the institution of law.
What Jurisprudence is not About
• Jurisprudence is not about providing a definition
for the use of the word “law”.
• The purpose of jurisprudence is not to instruct us
in the use of “law” but to explore the law’s
essential relations to morality, force and society.
• The task of jurisprudence is misrepresented when
it is conceived as a search for definition. It is in
fact an exploration of the nature of an important
social institution.
Reading Materials
• Freeman’s edition of Lloyd, Introduction to
Jurisprudence, Chapter 1;
• Dias, Jurisprudence, Ch. 1
• Posner, The Problems of Jurisprudence,
Luban’s Lawyers and Justice is Stimulating...
Question for Consideration?
Should Jurisprudence be a
required Law School
Course?
CLASS DISCUSSION
• We are often told that lying is
wrong, but why do people think it
is? If someone told you that lying
was no longer wrong, would you
agree or disagree with them, and
why?
ASSIGNMENT
Why Should We Obey the
Law?
MEANING OF
‘JURISPRUDENCE’
• The word ‘jurisprudence’ is derived from the Latin juris
prudentia, generally meaning knowledge or the study
of the (social) science of law, although it may mean
other things in particular contexts, for example:
• Case law;
• Laws of a particular jurisdiction, e.g. French law;
• Particular ‘families’ of law, e.g. the civil law tradition,
derived from Roman law, as compared with the
common law tradition descended from English
common law.
• However, there are many differing approaches to the
theory of law.
Literal Meaning of ‘Jurisprudence’
• The word ‘jurisprudence’ is used in various senses, firstly as
juris prudentia or juris scientia, covering the study and
knowledge of law in the widest sense. The word is
synonymous with the broadest sense of the phrase legal
science.
• Secondly, jurisprudence is sometime equated with theory of
law or legal theory, science of law or legal science (in a
more restricted sense of that term), or with philosophy of
law or legal philosophy. This is concerned with thinking
about law generally, as distinct from making, explaining,
expounding, criticizing or applying the law of a particular
system, and with examining the most general, abstract and
fundamental ideas and questions about law in general.
Meaning of jurisprudence cont’d
• Thirdly, the word ‘jurisprudence’ may mean other
things in particular contexts, for example,:
• In French law, la jurisprudence means the course
of decisions, the body of case-law on a topic. This
usage is sometimes also found in English law.
• However, Jurisprudence in the second sense,
thinking about law and its problems, has been a
subject of study from early times, pursued at least
as much by philosophers in the context of their
speculations about man, society and the state, as
by lawyers.
Cont’d
• Philosophers have tended to look at the more
abstract and general ideas, and lawyers at the
general issues raised by particular legal systems,
principles, and problems. Among the questions
commonly discussed in works on jurisprudence
are such as: What about the source of law? What
is the connection between law and morality? Why
should law be obeyed? How are the principles of
a legal system grouped and classified? How does
law control conduct and protect persons? What is
meant by saying that X has a ‘legal right’? What
is law?
Subject-Matter of Jurisprudence Law
The subject, with which jurisprudence deals, is
law. In other words law is the subject-matter of
jurisprudence. The definition of law is really
complicated one. Different jurists like, Austin,
Holland, Salmond, Keeton Pound, Dias and
Hughes provide different definitions. But
generally, law means “a set of rules which
regulates the conduct of human being living in
societies.”
What is Law?
Broadly speaking law is of following two kinds:
1.
God-made law; and
2.
Man-made law
God-made law: - Those rules which have been set
forth by the nature, and which shows the action of the
nature is known as God made law or natural law. God
made law is universal in application and cannot be
subjected to any change. It is unaffected by time and
space settings. These are the rules which nature has
formulated for the conduct of individuals living in
societies.
What is Law?
Man-made Law: - Those rules which has been
established by men for the purpose to conduct
human behaviour in the society are known as
Man-Made Law. This law is the creation of man’s
wisdom. As Aristotle noted that human beings are
social by nature, hence, they want to live in
society. On the other hand, Thomas Hobbes
maintained that human beings are selfish and
brutal by nature. To have equilibrium between the
two contrasting aspects of human nature as
foresaid, it is necessary to have a set of rules and
regulations so that the society may prosper.
Cont’d
Therefore, human beings in civilized societies
make rules and regulations for the conduct.
Therefore, the law which is so the result of
human creation is known as Man-Made Law.
Man-Made Law is also known as positive law.
Jurisprudence is not concerned with GodMade Law. It is studying Man-Made Law (i.e.
Positive Law).
“Is” and “Ought”
A crucial distinction that always needs to be borne
in mind in jurisprudential discussion in the
question of “is” and “ought”:
• Some legal philosophers concern themselves with
analysis of what a particular subject is, which
involves objective description, explanation and
discussion;
• In other cases the writer will be evaluating the
aims and objectives he/she considers a system
ought
to
achieve,
inevitably
involving
consideration of subjective criteria.
“Law as it is” and “Law as it ought
to be”:
• “Law as it is”: - The statement “law as it is”
means those rules which are actually exist and
enforceable in society irrespective of their merits
and demerits. It is known as positive law.
• “Law as it ought to be”: - The statement “law as
it ought to be” refer to those ideal principles
which are reflecting the essence of the nature.
These are known as ethical, moral or natural
principles. Hence, being higher and ideal
principles, these standards provide a ground for
criticizing positive law.
David Hume: Scottish Philosopher
and Historian
The impossibility of deriving an “is” conclusion from “ought”
premises was highlighted by Hume. He found that there seems to be
a significant difference between descriptive statements (about what
is) and prescriptive or normative statements (about what ought to be.
Hume pointed out that:
• It is not logical to reach conclusions about what ought to happen
from facts about what actually is;
• The consequence of this is that normative or behavioural
conclusions cannot follow from statement of facts.
• Hume argued that whatever knowledge we could gain from how
things operate (i.e. Matters of scientific or provable fact), that
cannot lead directly to behavioural or normative conclusions about
how things ought to be, because such conclusions would amount to
a logical fallacy.
Hume cont’d
• Because something “is” does not mean that it
should or “ought to be”, and taking this view
means that his philosophical position was to
oppose much of what natural law represented.
• This can be demonstrated by a categorical
syllogisms, the valid form of which is as follows:
• All women are human;
• Ruth is a woman;
• Therefore, Ruth is human.
Hume
• Ethical non-cognitivism, however, leads to a
fallacious or false syllogism, e.g.:
• All pigs have trotters;
• Brian is a pig;
• Therefore, Brian ought to have trotters.
• Although it may be considered very likely that
Brian will actually have trotters, it is not valid to
conclude that he ought to have them, and this is
the fallacy or false argument identified by David
Hume.
Another example:
The common recognition of this fact is attested by the
frequent use of “logical analogies” in argumentation.
Suppose that we were presented with the argument:
All liberals are proponents of national health insurance.
Some members of the administration are proponents of
national health insurance.
Therefore some members of the administration are
liberals.
That regardless of the truth or falsehood of its constituent
propositions, the argument was invalid. By far the best way
of exposing its fallacious character would be to construct
another argument having exactly the same form but whose
invalidity was immediately apparent.
Cont’d
We might seek to expose the given argument by
replying, “You might as well argue that
All rabbits are very fast runners.
Some horses are very fast runners.
Therefore some horses are rabbits.
And you cannot seriously defend this argument,”
we might continue, “because here there is no
question about facts. The premises are known to
be true and the conclusion in known to be false.
Cont’d
The most celebrated view of the present day, is
restricting the scope of jurisprudence only to
“law as it is”. In other words, most
contemporary jurists are of the view that
jurisprudence is the study of “law as it is”, i.e.
Positive law. They are keeping the ethical and
moral principles out of the preview of
jurisprudence.
Cont’d
• It should be noted that from an academic point of view
it is not conclusively right or wrong, inferior or
superior, to write about law as it is or as the writer
considers it ought to be, but it is important that the
distinction should always be clearly drawn.
• From the philosophical viewpoint, however, natural
lawyers argue that you cannot have a proper legal
system that is devoid of religious or moral content,
whilst the purer legal positivists would say that law and
morals are, or should be kept, distinct and separate.
Concept of Law: Two Sense of Law
• Law in Concrete Sense; and
• Law in Abstract Sense
1. Law in Concrete Sense: The law in concrete sense
means the law which has been solidified in a legal
document. In other words, it means the law which has
been enunciated in particular statutes or enactments.
For example, Criminal Code etc. These are all the laws
in concrete sense, because here the principles of law
have been solidified in shape of specific provisions,
intended to be functional impractical situations which
may arise in future.
Cont’d
2. Law in Abstract Sense:- The Law in abstract
sense means the abstract form of law. It is the law
not given in particular act or Statute rather it is
composed of the fundamental and general
principles or concepts of law common to different
legal systems of the world, and in different
branches of the legal system of one country, e.g.
“mens rea” (guilty intention), concepts of rights
and duties, ownership and possession etc. It is the
aggregate of the fundamental principles and the
general notions common in almost all the legal
systems of the world.
Cont’d
Now therefore, again the majority of the jurists
of the present day subscribe to the view that
jurisprudence is the study of law in abstract
sense but not of law in concrete sense.
Scope of Jurisprudence:
There is no unanimity of opinion regarding the scope of
jurisprudence. It may be discussed under the following
three headings:
EARLY PERIOD: In the early period, Jurisprudence
has been so defined as to cover moral and religious
precepts and that has created confusion.
AUSTINIAN PERIOD: It was Austin, who
distinguished law from morality and theology, and
restricted the term to the body of rules set and enforced
by the sovereign or supreme law-making authority with
the realm. Therefore, the scope of jurisprudence was
limited to the study of the concept of positive law only.
Austin’s Definition
The matter of jurisprudence is positive law:
law simply and strictly so called: or law set by
political superiors to political inferiors.
Scope cont’d
MODERN PERIOD: - At the present, there is a
tendency to widen the scope of jurisprudence
which cannot be circumscribed or limited. It
includes all concepts of human order and human
conduct in human state and society. There are
many differing approaches to the theory of law,
and although these may often be categorised as
indicated below, there is also much blurring of the
lines between them, and in some cases hardly any
lines to blur. Many writers cannot be so neatly
pigeon-holed, for example:
Different Approaches to the Theory
of Law
• Definitions of jurisprudence tend accordingly to
reflect the attitude or approach of the particular
thinker, e.g. scientific knowledge of the history
and the system of right (Puchta); the science of
the first principles of the civil law (Salmond).
According to Salmond, “law is the body of
principles recognized and applied by State in the
administration of justice.”
• Holmes – “The prophecies of what the courts will
do in fact, and nothing more pretentious, are what
I mean by the law.”
Cont’d
• Fuller occupies a more ambiguous naturalist position;
• Professor Hart adopts a more qualified or perhaps advanced
positivist stance;
• Dworkin has formulated what has been described as a “third
way” between natural law and legal positivism;
• Some writers adopt a radical political stance that is not
necessarily clearly rooted within traditional boundaries, for
example, Karl Marx’s Theory of Law or sociologists of law;
• Others would not see themselves as subscribing to any
historical categories, but within their own broad
classification (e.g. critical legal studies, realism of
historicism) can be just as difficult to pin down
Approaches cont’d
• Whichever legal philosophers are being studies, they
are usually characterized by subtlety and complexity of
language.
• Nevertheless, some attempt at classification is needed
in order to being both the wood and the trees into focus,
so after outlining the main categories and general
definitions, more detailed consideration is given to
some of the principal legal philosophers and their ideas
and writings on legal theory.
• It is, however, mistaken to approach the study of law
solely from any one standpoint; full understanding
requires that all be utilized.
Developed legal systems may be
looked at from at least five main
points of view:
• Philosophical or ethical: This is about examining the
philosophical bases of the institutions and doctrines of law,
seeking to understand its fundamental principles, to
understand and organize the ideal element in the formal
sources, and to evaluate and criticize law in terms of the
ideals and ends it sets itself; this approach is sometimes
called theory of justice;
• Historical: This approach investigates the origin and
development of the system, of the growth and change of its
institutions and doctrines, to discover its spirit and general
principles, and organizing the source-materials on the basis
of the principles as developed historically;
Cont’d
• Comparative: examining systems, institutions,
structures, concepts, and rules by reference to
their growth, scope. Application, and use in
deferent legal systems at comparable stages of
development;
• Analytical: This is about examining the sources,
structure, subject matter, concepts, and rules to
ascertain the theories, principles, and ideas the
system logically presupposes, and to organize the
authoritative materials for judicial and
administrative determination on this logical basis;
Cont’d
• Sociological or Functional Approach:
studying systems of law functionally as
systems of social control of conduct, and
studying their institutions, doctrines, and
methods with reference to the social ends
sought to be attained.
Question for Consideration?
“LAW’S EXISTENCE MEANS THAT CERTAIN
KINDS OF HUMAN CONDUCT ARE NO
LONGER OPTIONAL, BUT IN SOME SENSE
OBLIGATORY”:
Assess the accuracy of the statement?
Something to think about
We are often told that lying is
wrong, but why do people think
it is? If someone told you that
lying was no longer wrong,
would you agree or disagree
with them, and why?
Group Presentation
Is Corruption Moral or Legal Issue?
CLASS DISCUSSION
• WHERE DO OUR RIGHTS
COME FROM, GOD or MAN