Jurisprudence
Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values; and the relationship between law and other fields of study, including economics, ethics, history, sociology, and political philosophy.
Modern jurisprudence began in the 18th century and was based on the first principles of natural law, civil law, and the law of nations. Contemporary philosophy of law addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists. Jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered:
- Natural law holds that there are rational objective limits to the power of rulers, the foundations of law are accessible through reason, and it is from these laws of nature that human laws gain force.
- Analytic jurisprudence attempts to describe what law is. The two historically dominant theories in analytic jurisprudence are legal positivism and natural law theory. According to Legal Positivists, what law is and what law ought to be have no necessary connection to one another, so it is theoretically possible to engage in analytic jurisprudence without simultaneously engaging in normative jurisprudence. According to Natural Law Theorists, there is a necessary connection between what law is and what it ought to be, so it is impossible to engage in analytic jurisprudence without simultaneously engaging in normative jurisprudence.
- Normative jurisprudence attempts to prescribe what law ought to be. It is concerned with the goal or purpose of law and what moral or political theories provide a foundation for the law. It attempts to determine what the proper function of law should be, what sorts of acts should be subject to legal sanctions, and what sorts of punishment should be permitted.
- Sociological jurisprudence studies the nature and functions of law in the light of social scientific knowledge. It emphasises variation of legal phenomena between different cultures and societies. It relies especially on empirically-oriented social theory, but draws theoretical resources from diverse disciplines.
- Experimental jurisprudence seeks to investigate the content of legal concepts using the methods of social science, unlike the philosophical methods of traditional jurisprudence.
Overview
Whereas lawyers are interested in what the law is on a specific issue in a specific jurisdiction, analytical philosophers of law are interested in identifying the features of law shared across cultures, times, and places. Taken together, these foundational features of law offer the kind of universal definition philosophers are after. The general approach allows philosophers to ask questions about, for example, what separates law from morality, politics, or practical reason. While the field has traditionally focused on giving an account of law's nature, some scholars have begun to examine the nature of domains within law, e.g. tort law, contract law, or criminal law. These scholars focus on what makes certain domains of law distinctive and how one domain differs from another. A particularly fecund area of research has been the distinction between tort law and criminal law, which more generally bears on the difference between civil and criminal law.In addition to analytic jurisprudence, legal philosophy is also concerned with normative theories of law. "Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law."
Etymology and terminology
The English word is derived from the Latin, iurisprudentia. Iuris is the genitive form of ius meaning law, and prudentia meaning prudence. It refers to the exercise of good judgment, common sense, and caution, especially in the conduct of practical matters. The word first appeared in written English in 1628, at a time when the word prudence meant knowledge of, or skill in, a matter. It may have entered English via the French jurisprudence, which appeared earlier.History
Ancient jurisprudence begins with various Dharmaśāstra texts of India. Dharmasutras of Āpastaṃba and Baudhāyana are examples.In Ancient China, the Daoists, Confucians, and Legalists all had competing theories of jurisprudence.
Jurisprudence in ancient Rome had its origins with the periti—experts in the jus ''mos maiorum, a body of oral laws and customs. Praetors established a working body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offences, or in extraordinary situations, additions made to the edicta. A iudex would then prescribe a remedy according to the facts of the case.
The sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting the law to newer social exigencies. The law was then adjusted with evolving institutiones, while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience. Under the Roman Empire, schools of law were created, and practice of the law became more academic. From the early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians. The scientific nature of the studies was unprecedented in ancient times. After the 3rd century, juris prudentia'' became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.
Modern jurisprudence began in the 18th century and was based on the first principles of natural law, civil law, and the law of nations.
Natural law
Natural law holds that there are rational objective limits to the power of rulers, the foundations of law are accessible through reason, and it is from these laws of nature that human laws gain force. The moral theory of natural law asserts that law is inherent in nature and constitutive of morality, at least in part, and that an objective moral order, external to human legal systems, underlies natural law.On this view, while legislators can enact and even successfully enforce immoral laws, such laws are legally invalid. The view is captured by the maxim: "an unjust law is no law at all", where 'unjust' means 'contrary to the natural law.' Natural law theory has medieval origins in the philosophy of Thomas Aquinas, especially in his Treatise on law. In late 20th century, John Finnis revived interest in the theory and provided a modern reworking of it. For one, Finnis has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position.
In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on the basis of being analogous to the laws of physical science. Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition. Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance.
- The strong natural law thesis holds that if a human law fails to be in response to compelling reasons, then it is not properly a "law" at all. This is captured, imperfectly, in the famous maxim: lex iniusta non est lex.
- The weak natural law thesis holds that if a human law fails to be in response to compelling reasons, then it can still be called a "law", but it must be recognised as a defective law.
Aristotle
Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed, his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions toward others are completely virtuous in all matters, Aristotle calls them "just" in the sense of "general justice"; as such, this idea of justice is more or less coextensive with virtue. "Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably.
Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was adverse to the case being made, not that there actually was such a law. Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.