INTRODUCTION TO JURISPRUDENCE
© LL.B (Hons) University of Dodoma
LL.M (Candidate) University of South Wales (UK)
Jurisprudence is study and theory of law 1. Jurisprudence is the study of law, specifically legally
philosophy and science. The term itself derived from a Latin phrase, juris means law and prudential
means knowledge or skill together stand for “knowledge of the law”.2
Knowledge of law refers to exercise of good judgment, common sense, and even caution,
especially in the conduct of political matters3. Sometimes appears in the sense of equivalent to the
French expression, la jurisprudence, meaning case law or that part of positive or actual law built up
by decision rather than enacted and laid down in statutes or in codes: called “judge made law”.
Thus are encounters references to the “jurisprudence” of our courts and not general theory or
philosophy which influences and informs judicial law making4.
Knowledge of law includes:
(a) Origin of law
(b) Essence of law
(c) Freedom of law
(d) Fundamental of law
(e) Need of law
(f) Purposes of law
The word jurisprudence was first used by Roman jurists (in Roman Empire era) but in 19th century
it began to acquire technical significance as legal thought (jurisprudence).
Jurisprudence is so related with human being progress. When the population increase it create
society and the society ultimately create the state which is governed by the law.
1
2
www.lawteacher : retrieved on 12/03/2019.
www.jstor.org: retrieved on 02/11/2012: 7:15am.
3
www.jstor.org: retrieved on 02/11/2012: 7:15am.
4
www.jstor.org: retrieved on 02/11/2012: 7:15am.
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HUMAN PROGRESS
SOCIETY
LAW
STATE
There are various definitions of jurisprudence defined by various jurists but generally jurisprudence
may be defined as the study of science of law or the study of nature of law and the related ideas.
Jurisprudence is full of outstanding thinkers.
1. Austin and Bentham thought law was about power.
2. Hart and Kelsen thought law was imbued with authority.
3. Austin thinks that judges were deputy legislators.
4. Dworkin thinks that judges only create law.
5. Marxists think that law only serves the interests of the powerful and rich.
RELEVANCE OF JURISPRUDENCE
-
Our legal system is based on the common law tradition
-
There was no philosophical basis for the British legal system
-
Law was regarded as a non-academic discipline.
It was never taught at the
Universities. A lawyer was regarded as a technician.
(i)
All academic disciplines must be able to instil a capacity for critical thought.
(ii)
A lawyer must be able to situate law in a social context i.e. law must be
learnt in connection with other disciplines and aspects of society.
(iii) To be critical of legal rules we must know the assumptions and underlying
principles and aspects of society.
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(iv) To know situations of law reform (law application) we must know law in action
from a clear social standpoint.
-
How does the law reflect the social relations, social change etc. could be
tackled with the help of Jurisprudence?
NATURAL LAW
Natural law school has a long history in the study of Jurisprudence. Almost all ancient theories on
law were based on this tradition styled as Natural law.5
- Before the setup of the distinctive modern social institutions nothing was divorced from Nature
(Natural structures)
-
Law and its institutions appeared to form part of the Natural Order and it is
from this conception that such institution could be justified.
-
Later on the definition, tradition or justification of the doctrine became more
complex and abstract but the fundamental justification was that law had to
adhere to a natural criteria
-
We can conveniently define the natural law tradition as that tradition which
simply associates the existence of legal conceptions and institutions to the
dominance of what is described as natural
-
This is too simple and leads to a number of questions. However we
shall try to identify the leading elements of the Natural Law doctrine.
Elements of the Natural Law Doctrine
There are three main tenets and directions of the right that are associated historically with the
natural law doctrine.
(i)
Natural law doctrine
(ii)
The state of nature
(iii) The status of positive law
5
See Lloyd 5th Ed. 92-129 Friedman 5th Ed 95-103
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State of Nature
It is described as prehistoric (primordial) pre societal phase of human society where certain
minimum principles are established in relation to existence and orderliness of all things. The
author of these may be a god or internal logic of existence etc.
The first principles from the basic Organisational structures for all forms of existence. Human
society has therefore to conform to these basis structures.
In politics, ethics and law, human principles must be finally subjected to the first principles
originating from the state of nature.
As to what are the essential elements which make up the state of Nature has depended on
the definition given in each historical epic.
(Ancient philosophers did not attempt deal with this question since not yet fully developed.
Middle Ages - tried to answer this see, Thomas Hobbles, John Locke, and Jean Rousseau)
The Natural Code
The fact that there is a natural standard which is a criterion of reference to which positive law can
be judged has been taken to mean that the standards themselves possess the characteristics of a
legal code.
Any natural law theory would present this "pre-existing, inherent or higher code" as a complex set of
rules or precepts against which existing codes can them be matched. Therefore the laws which
would come out of this comparative exercise would of necessity be a universal system of law.
Examples:
A. The Corpus Iuris Civilis
The Ancient Roman Corpus Iuris Civilis (completed in 534 by Byzantine lawyers) was supposed to
represent the Universal system of law.
The C.I.C. comprises 3 works; The Institutes a short educational handbook.
The Digest being
collection of excerpts or fragments from earlier jurists and the Codex or codification of Imperial
constitution.
These Roman codes have been of great influence to all modern codifications, especially in private
law.
The ancient Roman conception of law categorized 3 types of laws.
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1.
The law of the state, which expresses the interest of one particular community IUS
CIVILE
2.
The law of nations IUS GENTIUM which men have devised for their mutual
intercourse.
3.
The law of nature IUS NATURALE. The law which expresses a higher and more
permanent standard, and which corresponds to that which is always good and
equitable.
B.
The Corpus Iuris Canonici
The church Fathers and Thomas Acquinas Summa Theological.
-
Mankind is ruled by two laws Natural Law and Custom. Natural Law is that which is
contained in the scriptures and Gospel.
-
Later in middle ages formed basis of cannon law with an argument that Natural Law
is divine revelation on how to conduct human affairs.
"Because of its divine character, natural law is absolutely binding and overrules all
other laws. It precedes them in time, because it came into existence with the very
creation of man as a rational being, nor does it vary in time but remains
unchangeable.
Natural law absolutely prevails in dignity over customs and constitutions. Whatever
has been recognised by usage or laid down in writing, if it contradicts natural law
must be considered "null and void"
-
The medieval church fathers also adopted this kind of thinking. They proposed 2
kinds of law: Divine laws and Human laws Jus divina and Jus Humana.
Important Features of classical natural law
1.
Central theme of classical natural law is based on reason and rationality. Natural
law could be derived from Human reason.(Attack on Feudalism lords who were
dominant during the time - by emphasizing on the secular nature of the ideology)
2.
Philosophers divorced theology from Law more away from the theocratic order and
attach on the concept of supremacy of the church.
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3.
An increasingly refined emphasis from the collective nature of the feudal era to
individualistic notions of the bourgeois era.
4.
On investigation there is a shift from theology to empiricism (causal linked) use of
scientific thinking in law - influence from the development of science.
Law and morality coincide
St. Thomas says " there is no law unless it be just" so the validity of law depends upon its justice. But
in human affairs a thing is said to be just when it accords a right with the rule of reason; and as we
have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted law are in
accord with reason to the extent that they derive from the natural law and if a human law is at
variance in any particular with the natural law it is no longer legal, but rather a corruption of law.6
Acquinas is Quite clear that our obligation to obey the laws of the state is conditional upon their
passing the test of justice. If in the process of evaluation laws are found unjust them they cannot
be properly called laws. "They do not, in consequence, oblige in conscience".
Human laws according to acquiesces can be just or unjust. They are just where they serve the
common good, distribute burdens fairly, show no disrespect for God, and do not exceed the law
maker's authority. It is when laws fail to and would not "bind in conscience".
ANALYTICAL LEGAL POSITIVISM
Friedman in Legal theory summarises 5 meanings of aspects of Legal Positivism:
(i)
Law are commands of human beings (This is an important development
from National Law)
(ii)
There is no necessary connection between law and morals or law as it
“IS” and law as it “OUGHT” to be.
(iii)
The analysis or the study of legal concept as such is worth pursuing in
itself. The study of legal concept had to be distinguished from historical
enquiries into origin of law. Also be distinguished from sociological inquiry
or other social phenomenon.
6
Summa Theological d' Entreves 2ed p.46; LLoyd Sed. p. 155
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(iv)
Legal system is a closed logical system in which correct legal decision
can be deduced by logic from predetermined legal rules without resort
to social or moral standards just based on the RULE and not on external
factors.
(v)
MORAL JUDGMENT cannot be established or defended while fact can
be established and defended by rational argument, evidence and
proof.
These 5 aspects are found in various positivists with respective variation. Important
characteristic is to try to eliminate filed of law as a field of study.
ANALYTICAL JURIS
Legal positivism is essentially related to legal concepts and tries to elaborate them. Legal
positivism is now related to the question of language. If you examine the writings historically
from Austin to Kelsen – the trend has been from concrete to abstract.
In AUSTIN the central piece of definition of law is the command of the sovereign, where the
sovereign is determinant, but if you compare it with KELSEN it is abstract and it is
hypothetical. It is the GRUNDWORM. This trend has 2 reasons behind it. It reflects a 2 forms
of development:
1.
The crisis of legal positivism – crisis of capitalism
2.
The rise of Marxism in the 19th C.
JOHN AUSTIN (1790-1859)
-
He was English – father of legal positivism
-
He was 1st to comprehensively divorce Law from Natural Law
-
Distinguished law as it is and law as it OUGHT to be.
Central to this thesis is the COMMAND THEORY. Law is the command – all law is the
command.
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Austin defined law as:“Law is a rule laid down for the guidance of intelligent beings by an intelligent being
having power over them.”
To Austin Law properly so-called is a species of COMMAND characterized with 4 elements:
(1) Command, (2) Sanction, (3) Duty and (4) Sovereignty.
To him a command imposes a duty which should be carried out or otherwise there are
sanctions. Every duty property so called presupposes a command by which it is created.
Austin also talks of some laws which although fall under the province of jurisprudence – e.g.
Acts of Parliament which are declaratory. They don’t impose a duty followed by sanction.
They are simply declaratory. Also laws repealing other laws – permissive laws.
Also imperfect laws – certain laws defining something criminal but not effecting a
punishment on them. These are not commands but they are close to commands and so
they are included in the province of jurisprudence.
There are also laws though commands but are not obligatory e.g. creating rights. They
don’t look imperative.
To Austin command is DUTY. However somewhere though not
directly they create duty.
Customary law does not seem imperative but they become imperative because they are
enforced by the power of the sovereign.
What Austin meant by Political Power and Sovereign?
Sovereign and political power to him went together. He defined sovereign to be:
“It is a determinant Human Superior not in a habit of obedience to a higher superior.
Receiver habitual obedience from the back of the given society. That determinant
superior is sovereign in that society and the society including the superior is a society
political and independent.”
Ingredients and characteristics of definitions
(1)
Human Superior
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This is a clear break from natural law theorists who had a metaphysical/ idealist
outlook.
(2)
This human superior is determinant. It can be identified, otherwise this source cannot
be superior. This human need not necessarily be an individual. It can be collective,
a group of individuals. When it falls in an individual then it is a MONARCHY. Where it
is a group of people, then it is an ARISTOCRACY. Where it is a very few people then
it is an OLIGARCHY and when the group is large then it is a democracy. So:
(1)
The command is traceable to a single source, which is identified as a
sovereign. The source is not spread. It is that one particular source;
(2)
The second characteristics is that his sovereign is characterized by two
aspects:
(i)
NEGATIVE – where the sovereign is not in habit of receiving
commands from higher superior.
(ii)
Positive is that it is in the habit of receiving obedience from the
bulky of the people. He is advocating the independence of the
superior.
To be consistent he argued that this sovereign is incapable of being limited by law. To say
that would be a contradiction, because the sovereign is not in a habit of receiving
commands. The sovereign cannot be limited by law. Law is his creation. What can control
the sovereign is MORALITY. He can even lay rules, principles for guidance to guide him. He
cannot follow them. It will only be unconstitutional but not illegal because they are a
positive morality and not law.
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