INTRODUCTION In a society a great deal of resources must be conserved if members of the society follow certain guidelines and policies. Regulations must be implemented to ensure that the gears of the government and the society spins and moves constantly and tirelessly. To ensure that society and the members in it will follow these rules and regulations, an institution or a body must be made in order to bring order to chaos and to provide certainty in the face of uncertainty. This maintaining body is called laws and they function as primary check and balance within a society. In order to create balance and harmony, laws provide penalties and punishment for prohibited acts. Laws also provide legal and just avenues in the resolution of conflicts and disagreements. To further gain knowledge in the nature and aims of laws, a student must consult an idea or thought that totally encompasses the true meaning of the word law. We must begin to comprehend and understand the nature and aspects of a “law” by looking at how society and man view jurisprudence.
REVIEW OF RELATED LITERATURE
A review of the various books, articles and magazines as well as theses and dissertations were examined by the researcher. Some of these books and articles are expressed in this paper. Other findings and reading materials in this section are also used to support and to clear certain points.
The issue on jurisprudence had been widely discussed by lawyers, constitutionalists, political scientists and students of law. Views on this subject have been quite varied. Jurisprudence according to denotes different things for different people and they have tended to rely on certain key terms to explain and develop this concept in order to represent a variety of ideas about the law (1997,). Terms like ‘formalism’ and ‘realism’ are rarely used in a homogeneous fashion: every expositor of jurisprudence as stated by the author seems to have his or her own personal slant on what these and other terms signify (1997). For example a word like formalism will inevitably come to represent a variety of ideas about law, and disagreements are bound to arise over ways in which the word is understood
Another writer who has seriously discussed the issue on jurisprudence is He believed that jurisprudence the science of jurisprudence at any time includes not merely the study of the existing rules of law but also the development of the legal system in accordance with the ultimate law of reason and justice (1958). also reiterated that the relation between law and morals is important in the study of jurisprudence and since law must distinguish between justice and injustice, between good and evil, men for centuries sought to establish a standard by which the validity of human laws could be determined (1958).
DEFINITION
Jurisprudence is the scientific study of law through a philosophical lens. The aim of jurisprudence is to critically analyze the purpose and application of the law (1997,). It is a historical, social, and cultural movement with the inherent contradiction that analysis of the law and understanding of its politics will unravel and reveal the ‘truth’ behind legal reasoning and the exercise of legal power, even while at the same time admitting there is no such thing ( 1997,).
The common starting point in understanding jurisprudence is the objective of law to achieve justice. The positive law embodied in the written legal statutes and case law of a jurisdiction is used as the foundation to test philosophical theories against. Hence, the arguable scientific nature of jurisprudence. The three most distinct views of law and justice are legal positivism, natural law and legal interpretation (1997, ). Positivism simply means that the law does not seek to enforce justice, morality, or any other normative end. Providing a law is properly formed by an authority and ruling sovereign, it is a just law, no matter what.
Another principle is that law is nothing more than a set of codified written rules to provide order and governance of society (Hawkins 1997, p. 60). Hence the most inhumane or unjust enactment must be obeyed because it is the ‘law’. In contrast, Natural law is closely associated with morality and human view on good and evil (1972, ). Without oversimplifying its concepts, it is the moral compass of the ruling public conscious expressed by the state. The unwritten feelings or notion of what is right and wrong underlies natural law (1972,). What is right or wrong can vary according to the interests one is focused upon.
Another definition states that jurisprudence is the English for jurisprudentia. This is the Late Latin form of a compound word, originally juries and prudens ( 1998,). The best English definition of jurisprudentia is abstract and legal knowledge. Juris is the genitive form of Jus meaning law. Juris then means of law or legal. Specifically, juris refers to oral legal tradition and to functional applications of law, to and in particular sets of facts and circumstances (1998). The word jury is also an English form of ‘jus or juris,
Prudentia, meaning knowledge in Latin, translates directly to English as prudence. The native English word is wisdom, which also originally meant knowledge (1998,). In either case, one behaves prudently or wisely because one has knowledge of the possible consequences of a particular action.
In particular, jurisprudence is the scientific study of law that includes legal history, including legal historiography and hermeneutics, legal philosophy, legal science (the psychology of law, legal anthropology), legal theory, the collective body of legal theory as exemplified in the record of legal cases, controversies and questions (1970). Other distinctive definition of jurisprudence is the application of legal principles and theories to legal problems, especially classic or recurrent legal questions, application within law of extra-legal theories and practices, such as the employment of distributive research techniques in legal analysis, relative examination of law as a field with other fields of study or endeavor and other sub-categories such as examining law in particular social, political or other contexts (1970).
Legal history is define by certain jurist and historians of legal process as the evolution of laws and the technical explanations of how laws have evolved with the view of better understanding the origins of various legal concepts and intellectual history.
Other historians have viewed legal history in a more contextualized manner more in line with the thinking of social historians. They have looked at the legal institutions as complex systems of rules, players and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civil society. Such legal historians have tended to analyze case histories from the parameters of social science inquiry using statistical methods, analyzing class distinctions among litigants, petitioners and other players in various legal processes. By analyzing case outcomes, transactions costs, number of settled cases, it can give to the clients and the society a more complex picture of law.
HISTORY OF JURISPRUDENCE
Jurisprudence already had this meaning in Ancient Rome, even if at its origins the discipline was a monopoly of the ( which detained an exclusive power of judgement on facts, being the only experts in the jus of traditional law. Pontiffs indirectly created a body of laws by their pronunciations on single concrete and judicial cases ( 1991).
Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more inquisitive interpretation, coherently adapting the law to the newer social instances ( 1991). The law was then implemented with new evolutionary institution while remaining in the traditional scheme. Pontiffs were replaced in 3rd century BC by a laical body of prudentes and admission to this body was conditional upon proof of competence or experience ( 1991).
Under the Roman Republic, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the and S ( 1992,. ). The degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivalled peaks of skill. It is about this activity that it has been said that Romans had developed an art out of the law ( 1992).
After 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors (1997,). It was during the Byzantine Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that was born (1958).
United States Jurisprudence
In the United States jurisprudence commonly means the philosophy of law. Legal philosophy has many aspects, but four of them are the most common. The first and the most prevalent form of jurisprudence seek to analyze, explain, classify, and criticize entire bodies of law ( 1970, ). Law school textbooks and legal encyclopedias represent this type of scholarship. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences (1995,). The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept (1995). The fourth body of jurisprudence focuses on finding the answer to such abstract questions as What is law? How do judges properly decide cases? (1995)
Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or conceptualism, treats law like math or science. Formalists believe that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute (Handler 1990, p. 190). In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute (2002,). This line, realists maintain, is drawn according to the political, economic, and psychological inclinations of the judge. Some legal realists even believe that a judge is able to shape the outcome of the case based on personal biases.
Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources of law between positivist and natural law schools of thought (1997). Positivists argue that there is no connection between law and morality and the only sources of law are rules that have been expressly enacted by a governmental entity or court of law (2002). Naturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources of law. They argue that moral philosophy, religion, human reason and individual conscience are also integrating parts of the law (2002).
There are no bright lines between different schools of jurisprudence. The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought (1990). Some scholars think that it is more appropriate to think about jurisprudence as a continuum.
The above mentioned schools of legal thoughts are only part of a diverse jurisprudential picture of the United States. Other prominent schools of legal thought exist. Critical legal studies, feminist jurisprudence, law and economics, utilitarianism and legal pragmatism are but a few of them (1990,).
THEMES OF JURISPRUDENCE
Some noteworthy themes of jurisprudence are ethnojurisprudence which is jurisprudence in and of a particular ethno-cultural group, such as tribal African customary law and socio-political jurisprudence, jurisprudence as documentary of social and political change ( 2000).
Jurisprudence also includes legal pedagogy, that is, the teaching of law and legal subjects, as far as legal pedagogy concerns the education and role of lawyers (2000). It may also include reflections on applied legal arts and methodology such as functional lawyering skills, negotiation techniques, legal composition, document drafting, research techniques, and so on. Modern jurisprudence
Jurisprudential theory is usually divided into two major modes of analysis: analytic jurisprudence, which studies what law “is,” and normative jurisprudence, which studies what law “ought to be” (1999) Jurisprudence can also refer to case law in common law, the body of law that is established through decisions of a particular court or court system (2001).
Legal Philosophy
Philosophy of law is a branch of legal philosophy and jurisprudence which studies basic questions about law and legal systems such as “what is law”, “what are the criteria for legal validity”, what is the relationship between law and morality and other pertinent questions ( 1998 ).
In recent years, debates over the nature of law have been focused on two issues. The first of these is a debate within legal positivism between two schools of thought. The first school is called exclusive legal positivism and is associated with the view that the legal validity of a norm can never depend on its moral correctness (1998). The second school is named inclusive legal positivism and it is associated with the view that moral considerations may determine the legal validity of a norm (2005,). Likewise, any theory that held that there was a necessary connection between law and morality would not be a form of legal positivism.
The second important debate in recent years concerns interpretivism, a view that is strongly associated with . An interpretivist theory of law holds that legal rights and duties are determined by the best interpretation of the political practices of a particular community. Interpretation, according to has two dimensions (2005). To count as an interpretation, the reading of a text must meet the criterion of what it is intended. But of those interpretations, maintains that the correct interpretation is one that puts the political practices of the community in their best light.
In addition to the question, “what is law” legal philosophy is also concerned with normative theories of law. What is the purpose or goal of law? What moral or political theories provide a foundation for the law? Three approaches have been influential in contemporary moral and political philosophy and these are reflected in normative theories of law namely utilitarianism, deontology and aretaic moral theories.
Utilitarianism is view that the laws should be crafted so as to produce the best consequences (1993, ). Historically, utilitarianism thinking about law is associated with the great philosopher, Jeremy Bentham. In contemporary legal theories, the utilitarian approach is frequently championed by scholars who work in the laws and economics tradition.
Deontology meanwhile is the view that the laws should protect individual autonomy, liberty or right (1993,). The philosopher formulated a deontological theory of law. A contemporary deontological approach can be found in the works of the legal philosopher . The last theory is aretaic moral theory that emphasizes the role of character in a morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens (1993, ). Historically, this approach is associated with Aristotle. Contemporary jurisprudence is inspired by philosophical work on virtue ethics. There are also other normative approaches to the philosophy of law which includes critical legal studies and libertarian theories of law.
Analytic Jurisprudence
Analytic jurisprudence relates to the method by which legal decisions are made. Analytical jurisprudence is a method by which a legal decision is made using analytical reasoning as it applies to the law (1999,). For example, a case is decided by the court, other succeeding cases with the same nature when compared with the first case will be tried and judged according to the decision established by the court.
An advocate of analytical jurisprudence would consider a judge to be nothing more than a machine in deciding cases based on strict analytical reasoning as to the way the case should be resolved with regards criminal, civil and other cases. As opposed to political jurisprudence which is a judge deciding cases based on political and personal beliefs of how the law should be, analytical decision making is to remove all political and personal influence over the actual decision (1999).
The principal objective of analytic jurisprudence is to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. describes the project, analytic jurisprudence seeks “the essence or nature which is common to all laws that are properly so called” (1995). Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world.
Analytic jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. The focus is what the system is, not on what it should or ought to be ( 2001). Thus when engaging in analytic jurisprudence moral questions, questions of value are only considered in so far as to describe them as questions of consideration but goes no further ( 2001).
The most important questions of analytic jurisprudence are What is a law? What is a legal system? What is the relationship between law and power/sociology? What is the relationship between law and justice/morality? Does every society have a legal system? How should we understand concepts like legal rights and legal obligations or duties? ( 2003)
Normative jurisprudence is on what law ought to be, on what values are important and looks at questions of morality (2003). Important questions of normative jurisprudence are these: What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? (1999)
The most influential works of analytic jurisprudence include: Of Laws in General; The Pure Theory of Law; H.L.A. Hart, The Concept of Law; and Law’s Empire ( 2005).
Normative jurisprudence
The focus of normative jurisprudence is on what law ought to be, on what values are important and looks at questions of morality ( 1993, ). Among the most important questions of normative jurisprudence are these: What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? (1993).
The most influential works of normative jurisprudence include the classics of political philosophy, such as On Liberty ( 1993,). Among contemporary writers, the following have been particularly influential:A Theory of Justice; H.L.A. Hart, Punishment and Responsibility; , The Moral Limits of the Criminal Law; , The Morality of Freedom; , A Matter of Principle ( 2005).
claimed that conceptual analysis of law is fundamentally normative. For , any philosophical analysis of the concept of law necessarily relies on substantive and contestable premises and principles of political morality (1995, ). All theory construction in jurisprudence is normative in a sense that extends far beyond the general regulatory aims of conceptual analysis; jurisprudence is, on his view, normative in a way that is incompatible with the methodological claims that have advanced ( 1990,). For therefore, engaging in the construction of a philosophical theory of law or of the concept of it is to like engaging in descriptive sociology.
most famous argument for normative jurisprudence is the so-called Semantic Sting. It attempts to derive certain claims about the proper methodology of theory construction in law from more general views about the content and application conditions of concepts; in this sense, his methodological claims have a semantic foundation (1990). His critics meanwhile have said an altogether different character by focusing on the concept of law itself or on the nature of concepts more generally
Feminist Jurisprudence
Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality of sexes (1999). As a field of legal scholarship, feminist jurisprudence began in 1960s. It now holds a significant place in U.S. law and legal thought and influences many debates on sexual and domestic violence, inequality in the workplace, and gender based discrimination (1999). Through various approaches, feminists have identified gendered components and gendered implications of seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights, rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of feminist jurisprudence.
Though feminists share common commitments to equality between men and women, feminist jurisprudence is not uniform. There are three major schools of thought within feminist jurisprudence. Traditional, or liberal, feminism asserts that women are just as rational as men and therefore should have equal opportunity to make their own choices (1989). Liberal feminists challenge the assumption of male authority and seek to erase gender based distinctions recognized by law thus enabling women to compete in the marketplace (1999).
Another school of feminist legal thought, cultural feminists, focuses on the differences between men and women and celebrates those differences ( 2004). Following the research of psychologist , this group of thinkers asserts that women emphasize the importance of relationships, contexts, and reconciliation of conflicting interpersonal positions, whereas men emphasize abstract principles of rights and logic (1989). The goal of this school is to give equal recognition to women’s moral voice of caring and communal values.
Like the liberal feminist school of thought, radical or dominant feminism focuses on inequality. It asserts that men, as a class, have dominated women as a class, creating gender inequality. For radical feminists gender is a question of power. Radical feminists urge people to abandon traditional approaches that take maleness as their reference point (2004,). They argue that sexual equality must be constructed on the basis of woman’s difference from man and not be a mere accommodation of that difference (1989).
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