One of the reasons you failed a law test is because you got the definitions by heart, and you never knew why the law was necessary.
Or even you perhaps disputed with somebody on whether a law was fair and half way through the discussion you found yourself saying that neither of you truly understood the essence of law.
That is the gap, the space between the knowledge of the rule and knowing of the reason that lives in jurisprudence.
And no it is not something that law professors use to sound smart.
The Generation Gap That Made This Article Necessary
This is not what law-students are fond of discussing.
Your grandfather believed in the law since it was a product of authority. When it injured them, your parents challenged the law. The reason why you are reading this now is because you want to know whether the law is even rational.
That shift in thinking? It is jurisprudence as it occurs in actual time, cross-generational.
Whenever society inquires to know whether this should be a law. or “is this law actually just?” it is doing jurisprudence. Just describes what people have been doing since the beginning of time.
So What Is Jurisprudence, Really?
Jurisprudence refers to the study of law and not to particular laws but to the concept of law. What it is? Where it comes from? Why it has power over us?
Think of it this way. A doctor studies medicine. A philosopher of medicine will ask about why we are defining health the way we are, who is in charge and whether our system is constructed in a manner that is fair. Is jurisprudence not the same thing to law?
It is an English word derived in Latin; juris prudentia, which translates to knowledge of law. It is one thing to know a law and to know the foundation under it.
One of the most referred to legal thinkers of all times, John Austin, described it as the philosophy of positive law. Positive law refers to the law as it exists in practice, i.e. written by governments, and administered by the courts. Not ideal law. Not natural law. The real stuff.
But other thinkers did not agree with Austin at all, and that is the whole thing.
The Three Big Questions Jurisprudence Tries to Answer
1. What is law?
This appears so self-evident until you attempt to respond to it. Is it a custom observed by all, and no one wrote down a law? Does the fact that an unjust rule has been formally enacted make it a law? Is there international law where there is no enforcer?
These are not problems of trick questions. They are a thorn in the flesh of courts and governments.
2. Where does law get its authority?
Why do you have to follow it? It is because somebody with a gun says so? Due to its reflection of common moral values? You agreed to it because a social contract said you did?
According to Thomas Hobbes, there is law because without a powerful authority, life is anarchy. According to John Locke, there is law in order to safeguard the natural rights that you already possessed prior to the existence of any government. The legal systems produced by these two answers are absolutely different.
3. What should law do?
Is morality the right thing to legislate? Or should it simply be able to control behavior effectively, whether it is ethical or not? It is at this point that jurisprudence gets awkward, in that various responses have rationalized civil rights movements, to authoritarian regimes.
The Main Schools of Jurisprudence (Explained Without the Textbook Tone)
Natural Law Theory
The oldest idea. According to it, there is the higher moral law over human law and the rule that is against it is not a law at all.
Aristotle believed in it. So did the Catholic Church. And so had the American Founders written all men are created equal into a document warranting a revolution.
It was natural law reasoning when a court in Germany after World War II convicted Nazi officials on the ground that they had obeyed directions that were legally correct according to German law at the time. The rationale was that there are things that are so bad that no law can in any way render them right.
The problem: Who is to determine what the higher moral law says? History has demonstrated that there is a violent disagreement between people on this.
Legal Positivism
The counter-argument was clear in the works by H.L.A. Hart who wrote in the 20th century. Law is what it is. Separate it from morality. It is right because if a law was created the right way by the right authority it is right.
This is cold or mean position. It will in fact guard individuals against the judges who may be inclined to apply their own moral ideologies in the name of natural law. Positivism dictates: do it according to the rules and when you wish otherwise, then do it according to the process.
The problem: It can result to the argument that an evil law is a valid law. And history knows the consequence thereof.
Legal Realism
This school claimed that both parties were naive.
Law is not what written in books. Judges themselves are human and make decisions of law and they are influenced by their history, prejudices, financial interests, and political agendas.
Oliver Wendell Holmes said plainly: The life of the law has not been logic; it has been experience.
Legal realists urged the analysis of the law as it actually functions in the real world, and not merely in theory. This school of thought assisted in the introduction of modern disciplines of law and economics, critical legal studies, and empirical legal research.
The problem: Or, the law is just when judges want it to be, what then becomes the safeguard of the common man against the bad judge when he is in a bad mood, on a bad day?
Sociological Jurisprudence
According to the argument of Roscoe Pound, law must be studied within its social context. The society and the law influence one another. A rule that can be highly successful in one culture is utterly devastating in a different culture.
This was a school that challenged courts to consider social implications. That is why it is not uncommon to hear an economist, psychologist and sociologist working in a modern court, not only a lawyer.
Critical Legal Studies (CLS)
CLS was born in the 1970s in American law schools, and its position held that law is not neutral. It is a mirror and expression of the strength of its designer. The legal systems are made up of race, class, and gender, which are usually marginalized.
This school made a number of lawyers uneasy. It was supposed to.
Its legacy is in such movements as Critical Race Theory, feminist legal theory, and whether equal justice under law is not a slogan but a carving in the court.
The Nature of Jurisprudence: Why It Refuses to Stay Still
This is one of the things that introductory articles tend to omit.
Jurisprudence is not a fixed discipline. It lacks ultimate solutions. The legal questions which the previous generation was unable to answer are inherited by every generation and new ones are presented.
The 20 th century was the era when the human rights law and the problem of the existence of rights beyond the national borders appeared. Artificial intelligence is finding its way into the courtrooms of the 21 st century and it is questioning whether the current categories of law can deal with it.
Who is responsible in case an AI commits a medical error? Is it possible to have an intellectual property belonging to an algorithm? What will be considered surveillance in a world where everybody will wear a tracking device?
These are questions of jurisprudence. Even the textbooks of law schools ten years old ago do not know.
Why Jurisprudence Matters Outside Law School
The majority of the readers of this are not lawyers. So why should you care?
Since law is the law which determines the terms of your life, and jurisprudence is the law.
When an organization claims that its data gathering is legal, it is relying on you not to inquire as to whether legal and right are synonymous. Whenever a politician declares a new law to be unconstitutional, such statement is based on a whole philosophy of what constitutions are and how they are to be interpreted.
All the discussion of criminal justice change, reproductive liberty, immigration, surveillance, taxation and corporate control are arguments of jurisprudence beneath the noises.
It is the person who knows about jurisprudence that is able to see when it is a power argument that is disguised as a legal argument and uses neutral language.
A Real Case That Shows Jurisprudence at Work
Brown v. was a case resolved by the U.S. Supreme Court in 1954. Board of Education. It decided that racially segregated schools were against the constitution.
However, in 1896, Plessy v. the same court had decided otherwise. Separate but equal facilities According to Ferguson, separate but equal facilities were absolutely constitutional.
The law had not changed. The same document was the Constitution. The only difference was the jurisprudential framework under which the court interpreted the same.
The court interpreted the 14 th Amendment in 1896 in a formalist manner. Separate is equal when there is equality in the physical facilities.
By 1954 the court was interpreting it sociologically. Psychologists had given evidence on the actual harm that segregation had done to children in the real world. The damage, as opposed to the official classification, was brought into the legal arena.
One document. Two readings. Sixty years apart. Millions of people having completely different fates.
This is the strength of jurisprudence. It is never just academic.
The Importance of Jurisprudence in 5 Honest Points
It makes lawyers better at their jobs. A lawyer who only knows rules is an operator. One who understands why those rules exist can argue, adapt, and innovate.
It protects rights more effectively. Rights that are grounded in clear philosophical foundations are harder to erode than rights that are just listed in a document.
It helps societies reform their laws. Every major legal reform in history was preceded by a shift in how people thought about law. Jurisprudence is where that shift starts.
It holds power accountable. When governments abuse law, jurisprudence provides the vocabulary and the framework to say exactly how and why.
It keeps law connected to justice. Without philosophical reflection, law becomes just a tool for whoever holds power. Jurisprudence is what keeps asking: but is this right?
The Bottom Line
Jurisprudence is not a memorizing genre. It is a habit of thinking.
It challenges you to consider any law, any court ruling, any legal assertion, and inquire: whence comes this? What does it assume? Who does it serve? Is it just?
Those are not questions of law school. They are human questions. And the more you learn to ask them, the more difficult it becomes, so that anyone, a government, a company, a court, will employ legal language to close your mind.
The law will always be there. Whether it is just rests upon whether sufficiently many people have a knowledge of jurisprudence that requires it to be so.
Written with reference to the works of John Austin (The Province of Jurisprudence Determined), H.L.A. Hart (The Concept of Law), Oliver Wendell Holmes (The Common Law), Roscoe Pound (An Introduction to the Philosophy of Law), and landmark cases including Brown v. Board of Education (1954) and Plessy v. Ferguson (1896).
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