Jurisprudence
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Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence (or legal theory, or legal philosophy—the terms are often used synonymously in English) hope to obtain a deeper understanding of the nature of law, of legal reasoning, and of legal institutions. The normative side of jurisprudence is part of moral and political philosophy, and includes questions of whether we should obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation, etc. (These are also central questions of moral and political philosophy.)
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[edit] Etymology
The Latin word juris is the genitive form of jus meaning "law." So, 'juris' means "of law" or "legal." In particular, 'juris' refers to oral legal tradition and to functional applications of law, to and in particular sets of facts and circumstances. The word "jury" is also an English form of 'jus/juris,' and juries do just as the term implies: apply law to facts and circumstances, and draw a conclusion therefrom on the defendant's culpability.
'Prudentia,' meaning "knowledge" in Latin, translates directly to English as "prudence." The native English word is "wisdom," which also originally meant "knowledge." In either case, one behaves prudently or wisely because one has knowledge of the possible consequences of a particular action.
[edit] History of jurisprudence
Jurisprudence already had this meaning in Ancient Rome, even if at its origins the discipline was a monopoly of the College of Pontiffs (Pontifex), which detained an exclusive power of judgement on facts, being the only experts (periti) in the jus of traditional law (mos maiorum, a body of oral laws and customs verbally transmitted "by father to son"). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases.
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 equitative interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Pontiffs were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience. And yet it is true.
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 Proculians and Sabinians. 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.
After 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. 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 Justinian's Corpus Juris Civilis was born.
[edit] Modern jurisprudence
Influential positions in jurisprudence include legal positivism, natural law theory and legal interpretivism.
[edit] Positivism
Positivism simply means that the law is something that is "posited": laws are validly made in accordance with socially accepted rules. Laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Providing a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, whether or not it is just by some other standard.
Another principle is that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely. What the law is determined by social facts (or "sources'); what obedience the law is owed is determined by moral considerations.
[edit] Natural law reasoning
In contrast, natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the slogan that "an unjust law is no law at all", but as John Finnis, the most important of modern natural lawyers has argued, this slogan is a poor guide to the classical Thomist position.
Other natural law theorists, notably Lon L. Fuller, emphasise that the law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argues, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, law has an internal morality that goes beyond the social rules by which valid laws are made.
[edit] Comparisons
Sophisticated positivist and natural law theories sometimes resemble each other more than the above descriptions might suggest, and they may concede certain points to the other "side". Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work.
[edit] Analytic and normative 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." 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.
Analytic jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. The focus is on what the system is, not on what it should or ought to be. Thus when engaging in analytic jurisprudence moral questions and questions of value are only considered insofar as to describe them as questions of consideration but the analysis goes no further.
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?
Normative jurisprudence considers what law ought to be, what values are important and looks at questions of morality. 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?
[edit] Fiqh: jurisprudence in Islamic context
Fiqh is Islamic jurisprudence made up of the rulings of Islamic jurists to direct the lives of Muslims. A component of Islamic studies, Fiqh expounds the methodology by which Islamic law is derived from primary and secondary sources.
[edit] See also
[edit] External links
- [1] Navigate to page for Encyclopedia of the Science of Law (Mellen, 2002).
- John Witte, Jr: A Brief Biography of Dooyeweerd, based on Hendrik van Eikema Hommes, Inleiding tot de Wijsbegeerte van Herman Dooyeweerd (The Hague, 1982; pp 1-4,132)[2]
- LII Law about... Jurisprudence
- The Case of the Speluncean Explorers: Nine New Opinions, by Peter Suber (Routledge, 1998.) Lon Fuller's classic of jurisprudence brought up to date 50 years later.
- The Roman Law Library, incl. Responsa prudentium by Professor Yves Lassard and Alexandr Koptev.
bar:Rechtswissenschaft
da:Retsvidenskab
de:Rechtswissenschaft
fa:فقه
id:Yurisprudensi
it:Giurisprudenza
ja:法学
nds:Juristeree
nl:Rechtsgeleerdheid
pl:Prawoznawstwo
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