Jurisprudence

Jurisprudence is the study of the philosophy and social science of the law. Jurists are scholars of the law who make legal theory the focus of their intense study and debate. They seek to understand and explain not only the law itself, but also the underlying structures, principles, patterns, and defining nature of the law. This leads to a deeper understanding of legal ideologies and systems, looking to ascertain the reasons why a particular law exists.

By focusing on the less tangible nature of law, jurists use legal theories to help legal professionals better understand the laws with which they work. Theoretical study of the law is then able to guide them in application of the law, especially in situations that seem to present ethical or moral dilemmas. Since law is considered a normative social practice, it seeks to regulate human behavior. This regulation is not only for the greater good, but also for the individual’s benefit. For example, a law may be passed to drive a certain speed on a road. This speed is determined to be a safe speed for all parties involved, including the vehicle drivers, pedestrians, and community residents. Legal theory accounts for how right and wrong is determined. It explores how facets such as morality, nature, social norms, and ethics affect the creation, regulation, and enforcement of laws.

Background

The term jurisprudence is derived from the Latin word juris prudential, which relates to the general study or science of law. However, the modern legal term jurisprudence refers specifically to the more abstract philosophy of law that seeks to understand the deeper ideas behind it.

Philosophy, in general, dates to ancient Greece. It is an intellectual study that explores the examination of fundamental issues of life, such as existence, knowledge, and reason. It can encompass a wide variety of academic disciplines that reach into many aspects of life. The classical philosophical method of research includes posing questions, engaging in critical discussion and rational argument, and demonstrating systematic theories.

Philosophers have influenced philosophy of law and subsequently jurisprudence. For example, Aristotle argued the existence of natural law. This indicates humans have a natural sense of justice and right, which influences the decision to create a law. Other well-known philosophers have been instrumental in contributing their ideas to legal theory, including Thomas Aquinas, Francisco de Vitoria, and Thomas Hobbes.

The legal origins of jurisprudence can be found dating back to ancient civilizations. In the ancient Roman Empire, experts in traditional law pondered over the principles and applications of oral laws and customs. Judges looked to these experts to interpret the laws according to changing society of the expanding Roman Empire. Eventually, schools of law emerged that concentrated together similar philosophies of thought and legal concepts. Legal practice became more academic, and literature was produced by each major school of legal philosophy. This philosophy laid the groundwork for modern European law philosophy.

Modern jurisprudence emerged in the eighteenth century in Europe. It focused primarily on understanding the principles of natural law, civilian law, and international law. As countries such as England, Spain, and France colonized territories, their legal philosophies spread as well. The English common law system heavily influenced the legal system of the United States. Technology and communication improvements further encouraged the growth of ideologies, while changes in society led to new and more complex legal situations.

Overview

Legal professionals commonly accept three facets in the field of jurisprudence. These allow the philosophical concepts to be examined from differing angles of thought. The most prevalent form of jurisprudence is critical theory of law. It provides classification, interpretation, and often criticism of laws, while it analyzes or seeks to explain entire bodies of laws. A common example would be a university law textbook or a legal encyclopedia. Law students and legal professionals use these resources to shape their own ideologies of the law.

Analytical jurisprudence is another form of jurisprudence. It provides a comparison or a contrast of law with other fields of scholarship, such as religion, sociology, science, or literature. Jurisprudence study may also look at a particular legal concept in depth in order to reveal a moral, cultural, or historical basis for a particular law or judgment.

Normative jurisprudence deals with the more abstract schools of thought and is concerned with the normative theories of law that provide evaluation of the law. It seeks to answer questions about law and the principles behind law. The inquiries generally focus on questions such as “What really is law?,” “What does justice mean?,” or “How can a court case judgment be considered impartial?”

Contrasting Schools of Philosophy

Within the different ways of examining jurisprudence, there are differing schools of jurisprudence philosophy. Often these provide a contrast of viewpoints. One such contrast of how law is applied is seen in legal formalism versus legal realism. Formalism, which is also referred to as conceptualism, seeks to view law similar to science or math in a formulaic manner. Legal disputes are handled similarly to solving an equation in mathematics. A judge identifies the appropriate laws, legal principles, and precedents, and then applies these to the particular case being presented. This leads to a logical ruling to settle the legal dispute. Legal realism, in contrast, believes that most legal cases brought before a judge defy the logical outline of the legal framework, which makes an impartial ruling difficult. A judge must attempt to balance the interests of both parties, resulting in the judge drawing a subjective conclusion. According to realists, this arbitrary judgment illustrates the judge’s views, or even personal bias, on the subject of the case.

Another contrast of legal thinking can be seen between positivist and natural law schools of philosophy in dealing with the source of the law. Legal positivists base their thinking on theoretical theses that take the position that law and morality do not have a link. They state that laws are simply rules that are deemed appropriate by a ruling entity, such as a government or a court of law. They feel that a law does not require moral merit to be considered acceptable to enact.

Naturalists, on the other hand, are of the opinion that there is a necessary relationship between the concept of law and morality. They argue that laws are not simply rules enacted by a ruling entity, but are also deemed necessary by virtue of human nature and an individual’s morality, religion, and reason. They argue that universal natural law is integrated into the law code. For example, it is wrong for a person to steal something that does not belong to him, not only because it is against the law code, but also because it is universally morally wrong. Naturalists feel that the philosophy of law cannot be considered outside of some sort of human moral code.

Within the schools of positivism and naturalism there are also three distinct groups. These have differing opinions on how much moral constraint may be found within a legal system. First, there are exclusive legal positivists who believe the content of the law is solely determined by social facts, and these do not allow for any moral argument to affect the legal system. Second, there are anti-positivists who accept that moral constraints are the determining factor of the legal actions taken by individuals or other legal parties. Finally, there are inclusive legal positivists who argue that moral facts play a role in determining the law, but only according to relevant social practices. To these, however, the social facts are the most important elements of the content of the law, and moral facts take a secondary role.

Philosophy of Personal Freedom

Personal freedoms and the limits that law places on them is another issue in jurisprudence. Legal moralism is a more restrictive philosophy with the view that the law has the right to be used to prohibit actions that the ruling authority deems inappropriate according to societal and moral judgments, even if these do not result in harm to others. Therefore, the law may be used to legitimately restrict the personal freedoms of individuals for the greater good.

Legal paternalism has a similar philosophical view to legal moralism, but it differs in the limits of legislation. It has the aim of enacting laws that limit personal freedoms, but only to prevent physical or psychological harm. For example, a law may be passed that requires motorcycle operators to wear helmets out of concern for the safety of the rider.

Another consideration in the argument on the limit of personal freedoms by law is the offense principle. Proponents of this principle believe that not only should harm be considered in determining what is considered wrongful behavior, but also what may cause a reaction of offense to others. Situations that may cause disturbance, embarrassment, shame, or anxiety are considered when enacting laws based on the offense principle, such as the prohibition of public nudity.

Punitive Theory

Justification of punishment for breaking a law ascribes to several schools of thought in jurisprudence. A retributive view states that the degree of punishment should directly correlate to the degree of wrong that was committed. A person who commits a crime should suffer in proportion to the damage caused by the crime. This can be illustrated by a criminal who steals a very valuable item receiving a longer sentence than a criminal who steals a less valuable item.

Utilitarian law enforcement philosophy looks to the beneficial consequences on society for punishing a criminal. Utilitarians feel punishment can provide deterrence to others who may commit a crime, prevent a criminal from further committing crimes while being incarcerated, and provide a rehabilitative effect on the criminal, preventing further crime in the future. This is the predominant theory behind imprisonment as punishment for a crime.

Restitutionary theory focuses on the effect of the wrongful act on the victim, whether it is an individual or society in general. The point of punishment is not for the offender to suffer, but rather to restore to the victim what was lost by means of compensation. An example of restitutionary theory in practice is for a criminal to be given a sentence of community service, rather than serving jail time.

Many other schools of legal philosophy exist within the complexities of the legal system. There are a wide variety of philosophical concepts that influence modern legal thinking as society changes. One example is critical legal studies, which emerged later in the twentieth century. This school of thought challenges the accepted logic and structure of law that originates from the control of the most dominant group within a society. It maintains that the law serves the interest of the ruling authority and serves to legitimatize the injustices it creates.

Another example of modern influential legal philosophy is feminist jurisprudence, which deals with the social inequality of the sexes as related to the law. It seeks to challenge the historically subordinate role of women in society. This field of study is significant in legal issues that involve sexual equality, domestic violence, workplace ethics, and gender discrimination. Feminist jurisprudence assists in bringing positive changes to the status of women in the legal system.

While all of the many schools of legal theory advocate their own philosophy, in reality, a governing authority, such as the US legal system, does not subscribe to just one single jurisprudence theory. The working of the justice system is dependent on the field of jurisprudence, through ongoing study and debate, to balance and mitigate the law for real-world legal application by legal professionals. Jurists also help bring to the forefront legal issues as society changes, allowing the legal field to stay relevant and focused on the needs of the individual and society as a whole.

Bibliography

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