Key Facts: Jurisprudence

Peter Halstead

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134631124
• Edition: 2
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Key Facts is the essential revision series for anyone studying law, including LLB, ILEX and post-graduate conversion courses. The Key Facts series provides the simplest and most effective way for you to absorb and retain the essential facts needed for exam success. Key features include: * Diagrams at the start of chapters to summarise the key points
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1

Jurisprudence

1.1 Overview

1.1.1 Reasons for Study

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:

(a) origins, history and development

(b) intellectual foundations and justifications

(c) relationship to other academic and practical disciplines, such as:

philosophy

social theory

criminology

politics

economics.

(d) role in the interpretation of the ‘black letter’ law subjects (i.e. principles or rules of law which are generally known and free from doubt or dispute) that constitute the bulk of most A-level syllabi and law degrees, such as contract, tort, and crime, studied within a particular (e.g. English or French) legal system.

2. Jurisprudence therefore transcends the boundaries between the various municipal (i.e. national) laws, yet still needs to be distinguished from international law, which may be:

(a) 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, e.g. England and Ghana

(b) public international law, involving issues arising between sovereign states.

3. It can be studied at introductory, intermediate or advanced level, depending on whether the student needs to gain a:

(a) clear bird’s eye view

(b) broad grasp of historical and intellectual trends (e.g. the relationship of natural law to legal positivism)

(c) more detailed grasp of particular concepts (e.g. realism, sociology of law, rights or economic law calculus, or the idea of justice). For all levels this book provides a useful reference and revision tool.

4. This first chapter outlines many of the concepts and ideas that constitute legal theory, which are amplified and explained further in subsequent chapters. Students should find section 1.2 defining jurisprudential theories and language particularly useful.

1.1.2 Meaning of ‘Jurisprudence’

1. The word ‘jurisprudence’ is derived from the Latin juris prudentia, generally meaning knowledge or study of the (social) science of law, although it may mean other things in particular contexts, e.g.:

(a) case law

(b) laws of a particular jurisdiction, e.g. French law

(c) 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.

2. However, 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.

3. Thus, although no one would be likely to argue that Kelsen (chapter 4) was not a legal positivist or Aquinas (chapter 2) a naturalist, many writers cannot be so neatly pigeon-holed, e.g.:

Fuller (chapter 2) occupies a more ambiguous naturalist position

Hart (chapter 5) adopts a more qualified or perhaps advanced positivist stance

Dworkin (chapter 10) 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, e.g. Marxists or sociologists of law

others would not see themselves as subscribing to any traditional category, but within their own broad classification (e.g. critical legal studies, realism or historicism) can be just as difficult to pin down

which ever legal philosophers are being studied, they are usually characterised by subtlety and complexity of language.

4. Nevertheless, some attempt at classification is needed in order to bring both wood and 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.

1.1.3 General Approaches

1. There are a number of broad ways of approaching jurisprudence, so legal theory may be addressed by studying (see section 1.2 for a table of definitions):

(a) analytical and normative jurisprudence

(b) doctrinal theory

(c) policy analysis

(d) comparative explanations and classification

(e) criticism of distinctive bodies of law

(f) comparisons of law with other categories of knowledge

(g) critical theories of law such as race or gender (chapter 11).

2. A variant to such methodologies is to examine legal philosophy by reference to social science and humanity disciplines, some of the more usual including:

(a) history

(b) (moral) philosophy

(c) political science or economy

(d) anthropology and culture.

3. This may be refined to the study of more specific allied conceptual subjects such as:

(a) justice

(b) punishment

(c) rights

(d) obligations

(e) equity

(f) legal personality.

4. The objective of much legal philosophical writing is to provide answers to questions such as:

(a) what is law, and what is its purpose?

(b) how does a legal system operate?

(c) are there sufficient common factors that can be identified to produce a general theory?

(d) is law something that can stand alone, or does it need to be welded to concepts such as justice or morality, or a vaguer notion of the ‘spirit of the people’ (volksgeist), in order to be valid?

(e) stated slightly differently – is there, or should there be, any necessary nexus or connection between law (or a legal system), and subjective or cultural concepts such as rights, obligations or justice? (The important question of the difference between ‘is’ and ‘ought’ is dealt with in the following section.)

5. When legal philosophers commence their studies and write about their the...