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The nature of jurisprudence
| Definitions of jurisprudence | |
| Key jurisprudential questions: what is the law?/what constitutes good law? | |
| Austin's division between analytical and normative jurisprudence | |
| Other subdivisions of jurisprudence | |
| The terminology of jurisprudence | |
| Formalist and contents approaches to moral philosophy | |
| Hart's definitions of positivism | |
| Differences between branches of utilitarianism | |
| General questions arising from jurisprudence's two key questions | |
WHAT IS JURISPRUDENCE?
PROBLEMS OF DEFINITION
The word 'jurisprudence' is derived from two Latin words - juris, meaning 'of law', and prudens, meaning 'skilled'. The term has been used variously at different times, ranging from its use to describe mere knowledge of the law to its more specific definition as a description of the scientific investigation of fundamental legal phenomena.
A strict definition of jurisprudence is, as is the case with many general terms, difficult to articulate. The main problem with jurisprudence is that its scope of inquiry ranges over many different subjects and touches on many other disciplines, such as economics, politics, sociology and psychology, which would normally be regarded as having little to do with law and legal study.
As such, the best definition is perhaps that supplied by Roger Cotterrell in The Politics of Jurisprudence: 'Jurisprudence is probably best defined negatively as encompassing all kinds of general intellectual inquiries about law that are not confined solely to doctrinal exegesis or technical prescription'.
As a subject, jurisprudence may be said to involve the study of a wide range of social phenomena, with the specific aim of understanding the nature, place and role of law within society. The main question which jurisprudence seeks to answer is general and may be phrased simply as:
What is the nature of law?
This question can be seen as being actually two questions in one, that is:
What is the law?
What constitutes good law?
Answers to these two questions constitute two major divisions in jurisprudential inquiry. These are:
descriptive or analytical jurisprudence; and
These two divisions were first clearly specified by John Austin in his text The Province of Jurisprudence Determined (1832). Other divisions and subdivisions have been identified and argued for as the field of jurisprudence or legal philosophy has expanded.
SOME DISTINCTIONS IN JURISPRUDENCE
The work of jurists can be divided into various distinctive areas, depending mainly on the specific subject matter with which the study deals. What follow are some of the more important divisions and subdivisions, although it is important to remember that there are others.
Descriptive or analytical jurisprudence
Involves the scientific analysis of legal structures and concepts and the empirical exercise involved in discovering and elucidating the basic elements constituting law in specific legal systems. The question to be answered is: what is the law?
Normative jurisprudence
Refers to the evaluation of legal rules and legal structures on the basis of some standard of perfection and the specification of criteria for what constitutes 'good' law. This involves questions of what the law ought to be.
General jurisprudence
Refers to an abstracted study of the legal rules to be found generally in the more developed legal systems.
Particular jurisprudence
The specific analysis of the structures and other elements of a single legal system.
Historical jurisprudence
A study of the historical development and growth of legal systems and the changes involved in that growth.
Critical jurisprudence
Studies intended to provide an estimation of the real value of mainstream ideas about and theories of law with a view to providing proposals for necessary changes to such systems.
Sociological jurisprudence
Seeks to clarify the link between law and other social phenomena and to determine the extent to which its creation and operation are influenced and affected by social interests.
Economic jurisprudence
Investigates the effects on the creation and application of the law of various economic phenomena, for example, private ownership of property.
THE TERMINOLOGY OF JURISPRUDENCE
Many of the terms used in the study of jurisprudence are relatively unfamiliar and belong more to the realm of philosophy than to that of law. The following are some of the more commonly used terms and brief explanations of what they may mean in specific contexts. It is important always to remember that specific meanings are sometimes ascribed to certain terms by particular jurists, and that these meanings may be different from the ordinary usages.
Cognitivism
This is the position according to which sentences used in a given discourse are cognitive, that is, are meaningful and capable of being true or false - for example, 'grass is green' is a true proposition. In the area of jurisprudence, it refers to the view that it is possible to know the truth about things - for example, what constitutes truth about justice. Thus in the cognitivist approach the sentence 'it is always wrong to kill another human being' can be true or false.
Contractarian
This applies to assertions or assumptions that human society is based upon a social contract, whether that contract is seen as a genuine historical fact, or whether it is hypothesised as a logical presumption for the establishment and maintenance of the ties of social civility.
Dialectical
Dialectic is a debating method first used by Greek philosophers. It instrumentalises contradiction, or the exchange of arguments and counter-arguments respectively advocating propositions (theses) and counter-propositions (antitheses). At its most simplistic, the dialectical operation can be set out in this form:
Thesis: an existing or established idea.
This is challenged by an:
Antithesis: an opposite and contradictory idea.
The outcome of the ensuing struggle between the thesis and the antithesis is a union and interpenetration of the two opposites, which constitutes the:
Synthesis: a newer and higher form of idea, which contains qualitatively superior elements pertaining to the two opposites.
The new synthesis, however, will inevitably be challenged by another, newer and opposite idea, and so the synthesis becomes the new thesis, with its antithesis being the new opposite. The continual repetition of this cycle of struggle and resolution constitutes the dialectic, and results in development and change in all things.
Discretion
In judicial decision-making, the supposition that judges, in making decisions in 'hard cases' - that is, cases where there is no clear rule of law which is applicable or where there is an irresolvable conflict of applicable rules or again, when there is no single right answer to a legal problem - make decisions which are based on their own personal and individual conceptions of right and wrong, or what is best in terms of public policy or social interest, and that in so deciding they are exercising a quasi-legislative function and creating new law.
Many positivists, for example, John Austin and Herbert Hart, would allow for the fact that where there is no clearly applicable rule of law judges do in fact exercise their discretion in deciding cases. Ronald Dworkin, however, strongly denies this and argues that judges have no discretion in 'hard cases' and that in every case there is always a 'right answer' to t...
