3

I am a Law Student in Greece trying to understand what Law is a what Jurisprudence is and what the jurisprudential method of thinking is.

What is Jurisprudence; what is its object of study, what are we analysing?

Many people say that Jurisprudence is not the same as Law. Law is the system (not the agreggation of rules but the mental abstraction, their method) of rules and Jurisprudence is the analysis, the study.

Analysis is the syllogistic method with which the individual elements of a phenomenon or a mental abstraction are isolated, to be studied separetely and interpreted.

Study is the mental work, especially meticulous and systematic reading, with the aim of understanding or interpreting a determined object.

Object is anything that is related to something else mainly as its cause or aim.

Is Jurisprudence the study or the analysis of Law's interpretation (Law's interpretation being the aim of Jurisprudence)? How can we study and interpret a mental abstraction?

2

Jurisprudence is the philosophy of law

Jurisprudence is not the same as law just like metaphysics is not physics and theology is not religion.

The study of law is specific to a specific legal system, like Greek law, English law, Sharia law etc. Jurisprudence is the study of the general principles behind and between these specific legal traditions.

For example, consider the issue of theft. What the various types of theft are, the elements involved in arresting, charging, convicting and punishing someone for theft and the penalties and redress involved are all legal questions. Whether theft should be a crime and when, how theft is treated in different parts of the world and what is theft anyway are all issues of jurisprudence.

2
  • What (besides being all related to theft) do the questions; «What is theft?», «What types of theft are there?», «Should theft be a crime?», have in common? What is the object of study of Jurisprudence? Jan 16 '21 at 12:31
  • 1
    @ColinLosey It might be correct but I asked for adittional details. Jan 17 '21 at 14:00
2

It depends upon context.

Often, the word "jurisprudence" is used to describe the customary way that a particular judge, or a particular legal body, or a particular legal system, has historically treated a particular legal issue.

So, you might talk about "Judge Learned Hand's jurisprudence in tort law", or "U.S. Supreme Court procedural jurisprudence", or "Dog bite jurisprudence in the United States legal system."

The implication of framing something as an issue of jurisprudence is that a lot of superficially isolated legal decisions or laws may be united and better understood in the context of some overriding principle or theme that illuminates why the law whose jurisprudence is being discussed has the detailed elements that it does. In other words, they are united by an overall legal theory or philosophy of law.

For example, the jurisprudence of financial systems payment fraud can be summed up with the concept that among non-criminal third-parties, the loss will be assigned by the legal system to the firm or person that had the most direct interaction with the person who perpetrated the fraud. The applicable legal rules never say this outright, and instead deal at a much more granular level with particular specific fact patterns. But the animating theme that can be inferred from looking at those detailed rules as a whole and trying to figure out how they fit together in order to interpret them if they are ambiguous in a particular case is the one expressed above as a description of the jurisprudence of this area of law.

0

Legal Theory and Philosophy of Law

There are two different meanings of the word Jurisprudence

  1. A heavy word for the study or knowledge of the law. If a judge or law lecturer were to refer to "the role of freedom of contract in our jurisprudence" for example, this is the sense intended (this is the sense @ohwilleke refers to in his answer).

  2. The second meaning - and the more usual meaning nowadays, particularly in in academic circles (I note you are studying law so this is probably the meaning you are asking about) - could be described as the philosophy of law.

In Legal Philosophies (1997) J W Harris says (p.1)

Jurisprudence is a ragbag. Into it are cast all kinds of general speculations about the law. What is it for? What does it achieve? Should we value it? How is it to be improved? Is it dispensable? Who makes it? Where do we find it? What is its relation to morality, to justice, to politics, to social practices, or to naked force? Should we obey it? Whom does it serve? These are the questions of which general jurisprudence is comprised. They can be ignored, but they will no go away...

Jurisprudence has to entrench on [the disciplines of moral and political philosophers] at many points, as well as upon those of social and political theory. It is a scavenger, as well as a ragbag; having no perimeter to its field of enquiry, save that what is studied must have a bearing on some general speculation about law.

If jurisprudence has a heartland all its own, it is legal theory Much discussion about moral claims of the law (and moral claims on the law) takes the concept of law itself for granted. Yet, answers to such questions may turn on what picture of law we have. Legal theory asks: What is the nature of law (everywhere, or just in the modern state)?

In a three year English undergraduate law degree, Jurisprudence has traditionally been studied as a compulsory module in the third year which concentrates on legal theory. One thing students immediately notice is that the exact scope and definition of jurisprudence is disputed (which can be discomforting since all the other modules they have hitherto studied - Contract, Tort, Crime, etc- have clear definitions). This uncertainty is exacerbated by the fact that legal theories which come under the umbrella term of legal positivism have as one of their central themes the proposition that jurisprudence should only be concerned with positive law and that legal theory need not (and should not) look outside to ideas of morality or natural law. In other words not only do different legal theories have different explanations of the phenomenon of law, but they actually disagree about the scope of what it is they are supposed to be explaining!

Traditionally jurists thought of God as the ultimate law-giver whose laws were written on human hearts (conscience). This is the "natural law" which human legislators add to by creating "positive law". For example murder is contrary to natural law but you need human laws to define the different categories of homicide, the prescribed penalties, and the procedure by which accusations are tried and decided. You also need human laws to define the circumstances in which a contract comes into being etc.

Note: positive in used in its old original meaning of "laid down" as distinct from natural. It is nothing to do with the modern meaning of positive as being the opposite of negative.

William Blackstone, in Vol. 1, Commentaries on the Laws of England (1765) Page 27, wrote:

This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian1 has reduced the whole doctrine of law. This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws. Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law....

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae [in the court of conscience] to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so...

In the Province of Jurisprudece Determined (1832) John Austin wrote at length about both natural law and positive law and sought to draw a line of distinction between them:

AS one of the Law-Professors at the University of London, I planned and partly delivered a systematical Course of Lectures on General or Abstract Jurisprudence. In the ten lectures delivered at the beginning of my Course, I distinguished positive law (the appropriate matter of jurisprudence) from various objects with which it is connected by resemblance, and from various other objects to which it is allied by analogy. Out of those ten discourses, I have made the treatise which I now submit to the public, and which I venture to entitle “the province of jurisprudence determined.”

Determining the characters of positive laws, I determine implicitly the notion of sovereignty, with the implied or correlative notion of independent political society. For the essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be stated generally in the following manner. Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign body of persons to a member or members of the independent political society wherein that person or body > is sovereign or supreme. Or (changing the phrase) it is set by a monarch, or sovereign number, to a person or persons in a state of subjection to its author. To elucidate the nature of sovereignty, and of the independent political society that sovereignty implies, I examine various topics which I arrange under the following heads: First, the possible forms or shapes of supreme political government; second, the limits, real or imaginary, of supreme political power; thirdly, the origin or causes of political government and society. Examining those various topics, I complete my description of the limit or boundary by which positive law is severed from positive morality. For I distinguish them at certain points whereat they seemingly blend, or whereat the line which divides them is not easily perceptitible.

Austin's account of positive law (essentially a command of a sovereign accompanied by a threat of sanction for non-compliance) has been criticised as being simplistic and of failing to provide an adequate explanation of law and legal systems, but to be fair to Austin he never claimed that his theory of positive law could alone explain what happens in legal systems. He recognised the influence of natural law/morality as part of an explanation. He simply wished to define the limits of Jurispudence as an academic subject, which he did narrowly.

Some jurists, however, have subsequently sought to produce theories of law which seek to explain what the phenomenon of law is, and how it works, based only on positive law. Such theorists are called "positivists" and their school of thought is called legal positivism.

In 1960 Hans Kelsen published Reine Rechtslehre which was translated into English in 1967 as The Pure Theory of Law. As the word pure in the title suggests Kelsen's theory is in the legal positivism school of thought - i.e. it seeks to explain law and legal systems by reference only to positive law.

Kelsen himself was a moral relativist but not all legal positivists are necessarily atheists or moral relativists. Some may personally think that natural law/morality is important but nevertheless think that the discipline of law should be "self contained" and should be capable of being completely and satisfactorily explained without brining natural law/morality etc. into it.

Natural lawyers critique the theories of legal positivism by saying that they are incomplete as they leave so much unexplained. Legal Positivists reply that their theories have a restricted scope precisely because everything outside the scope of the theory is not really law at all and so does not need to be explained by the theory.

So you can see that the definition of Jurisprudence is rather woolly but philosophy of law with particular emphasis on competing theories of what the phenomenon of law actually is might be a short rough definition to convey the general idea of Jurisprudence as the word in generally used today.

4
  • Nemo, the @ syntax does not work inside an answer, only in a comment, and only if the user mentioned has previously commented on that post. Oct 18 '21 at 2:42
  • @DavidSiegel Noted. Is there another convention for referring in one answer to an answer given by another user?
    – Nemo
    Oct 18 '21 at 10:06
  • I would usually just say "In the answer by Nemo, it is said that..." This will not notify you, but any user is notified of any comment on an answer that s/he gave, and a user can "follow" a question and be notified of all answers and comments on that question. There is nothing wrong with using the @-syntax in an answer, but it will not notify anyone. You can get a link to an answer from the "share" link below an answer, and a link to a comment by right-clicking the timestamp, if you want to refer to one specifically, such as in another thread, or a meta post. Oct 18 '21 at 14:04
  • Thanks for the info.
    – Nemo
    Oct 18 '21 at 14:08

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.