The term jurisprudence has been used in very different senses. Originally it meant the science of Right. Afterwards it was used to mean knowledge of the principles of law, or skill in its practice. In the institutes of Justinian Jurisprudence is define d to be the knowledge of what is just and unjust. Upon the revival of learning in Europe in the sixteenth century, jurisprudence was used to signify the knowledge of the Roman law. The term has also been used in a sense borrowed from the French to imply a collection of the principles belonging to particular branches of law – thus, Equity Jurisprudence, Maritime Jurisprudence.
The term has also been used to signify the whole body of the law of a State—thus, the Jurisprudence of England. The classification of laws has never yet been adopted upon the grand scale demanded by Jurisprudence. If a system of the Law were correctly framed, and if codes of laws were drafted of one true principle by all civilized nations, the language of each race would serve as a glossary by which all systems of positive law might be explained; whilst the matter in each code would afford a test and standard by which all might be tried.
By law is here understood positive law—that is, the law existing by position, or, the law of human enactment. Jurisprudence is the science of positive laws, and, as such, is the theory of those duties which are capable of being enforced by the public authority. Jurisprudence, so treated, may take its place as one of those inductive sciences in which, by the observation of the facts and use of reason, systems of doctrine have been established which are universally received as truths among thoughtful men.
But Jurisprudence in its in its investigation of the origin, principles, and development of law, obviously furnishes rules which teach men to acknowledge and select good laws, to shun evil laws, and to practice the existing laws and apply them skillfully. Hence, Jurisprudence is not only the Science of Positive Laws but is also the Art of Legislation and the practice of Advocacy. A Jurist may state principles of law in his study, enact laws in the senate, or advocate rights in his forum (Heron, 2001).
Jerome and West contribution The American Legal Realists exhibited many and diverse, not always compatible, attitudes towards the possibilities of exploring the future, even while making important contributions to needed theory and procedures. Thus Jerome Frank was a leader in deriding the possibilities of predicting official behaviour by the application of traditional legal rules and was most skeptical of the potentialities of reliable prediction by any means; yet he made uniquely significant contribution by drawing upon many psychologies to demonstrate the importance of predispositional factors (the subjectivities of decision makers) in affecting all decision.
The insistence of the Realists, already described, that technical legal rules be related to categories of events in community process that raise comparable policy problems has tremendously increases the possibilities of achieving comprehensive and precise description of relevant past trends in decision and value consequences (Lasswell & McDougal, 1992). Jerome Frank has set out in his well known work… to analyze the law from a psychoanalytical point of view.
In the traditional teaching and presentation of the law Frank discerns a desire for certainty which he likens to the infant’s craving for infallible authority (father complex). Lawyers in general, and judges in particular, have clung to the myth of legal certainty, by establishing fictitious system of precedents, hiding before themselves and others the fact that every case is unique and requires creative decisions. A similar myth surrounds the activities of juries. Analytical jurisprudence expresses this child like desire for certainty and stability.
Frank’s own ideal is the “the completely adult lawyer” (Marke, 1995). Although Gray joins Holmes as one of the two great Jurisprudential heroes for Jerome Frank, Karl Llewellyn, and the other legal realists, he is much more than that ; he is a kind of American John Austin, but one whose analytical Jurisprudence does not act as if legal concept originated and developed outside legal history. He represents the positivistic branch of the American pragmatic legal tradition.
He is closer to Austin than Holmes, than but not as influenced as Holmes— or John Dewey— by historical jurisprudence, or the evolutionary controversy, or the increasing respect philosophers paid to the very idea of historical development( Gray,1999). Jerome was heavily critical of the work of Christopher Columbus Langdell, the American legal academic whose is best known for introducing the ‘case method’ of teaching law into American law Schools. Langdell viewed law as a science, which could be practiced very simply by applying legal rules mechanically to specific cases recorded in the law reports.
Langdell’s method rested heavily on the positivistic notion that law resided solely in the reports of decided cases or in statutes. Jerome criticized this arguing that Langdellian legal science had very little to do with law, because it overlooked such things as the lawyer-client relationship and the rule of the jury. He argued that Langdell’s attitude towards law was typical of what he termed ‘the basic legal myth’; lawyers promote the myth that legal rules can be applied in a mechanical way because they, like all human beings, are constantly looking for certainty.
The purpose of Realism, on the other hand, was to expose this myth. This concern with what Frank saw as law in action, rather than with the ‘legal myth’ of the law in the books, was typical of the concerns expressed by members of the legal realist movement. The contradiction which can be found in the work of not only of Jerome, but also of another American Legal Realists, is a serious flaw. However, American Legal Realism, with it emphasis on ‘law in action’ rather than ‘law in the books’ had a positive contribution to make to the development of Jurisprudence(Cownie, Bradney & Burton, 2007).
While some sought a stable referent, others, such as Mackinnon and Matsuda, sought to refashion old tools to serve new purposes. The equal protection clause of the American constitution seemed a promising candidate, and the Jurisprudence of antisubordination was born. West, Kennedy, Mackinnon and Matsuda are united in the belief that outsiders will not find freedom, justice, or equality in the law as it is. They insisted that law’s empire is defined not by attitude, but by what really happens (and what does not happen).
Inequality…is not a bad attitude that floats in the sky but an embodied particular that walks on the ground. ” An attitude of equal concern, one might say, can very easily leave unaltered the “embodied particulars” that constitute the reality of inequality as opposed to the theory (Berns, 1993). By promoting the idea that rights are crucial for the protection of individual autonomy, Robin West argues, liberal jurisprudence fails adequately to represent more identifiably ‘feminine’ values such as intimacy and care.
Liberal jurisprudence is essentially masculine jurisprudence, in other words, because it prioritizes the distinctively male ethic of justice or rights. Robin West claims, ‘it is nevertheless an institution within which we work from a position of relative disempowerment. ’ For feminist legal theorists, this sense of marginalization is attributable primarily to the fact that critical legal studies, like liberal jurisprudence, fails sufficiently to take into account women’s experience, values and concerns (Duxbury, 1997).
In 1988, Robin West began her well known-article “Jurisprudence and Gender” by asking WHAT IS A HUMAN BEING? “What is a human being? Legal Theorist must, perforce, answer this question: jurisprudence, after all, is about human beings. ” Robin West. She concluded that women are not human beings insofar as legal theory is concerned. Her question, and the contribution of feminist theory to answer, forms a central theme to this work. If the definition of a human being is central to jurisprudence, it is vital to uncover whether that definition adequately encompasses all human beings.
Western conceptions of human beings have been inadequate in that they have failed to encompass all human beings. In some instances this is because of the inherent constitution of the definition, while in others, the problem arises from the way theories have been misinterpreted (Marshall, 2005). Towards a Fist Amendment Jurisprudence of Respect. Robin comments that Goerge Fletcher’s recent article helps us see that those understandings, in turn, rest on two different conceptions of what he labels our senses of “constitutional identity.
Although it is largely undefined by Fletcher, we might take his phrase “constitutional identity to refer” to refer to that aspect of our collective and individual self-conception which we owe to our shared constitutional heritage, and which at least on occasion determines outcomes in close constitutional heritage, and which at least on occasion determines outcomes in close constitutional cases in ways that “overarching principles of political morality” do not.
The two understanding of our constitution identity that seem to bolster these conflicting accounts of the constitutional status of hate speech regulations might be called, however unimaginatively, the liberal and the progressive paradigm. Both the liberal and unquestionably dominant account of free speech and the correlative liberal arguments against the constitutionality of hate speech regulations are deeply familiar.
Both were recently affirmed by the Supreme Court, and both are eloquently spelled out in Fletcher’s article. Like prayer in earlier times, expression of our innermost selves is a vital means of self fulfillment, and hence it is itself a moral act of high order. We each bare our individual, our innermost souls when we express ourselves. And, because we value individual souls, we protect and value our speech, whatever its context or side effects.
We protect expression today for essentially the same reason we once protected religion—namely, the constitutive role of expressive religion in earlier times, and expressive speech today, in the development of the individual’s personality(West,1994). Relevance of Jurisprudence The broad division of jurisprudential inquiry indicates that jurisprudence covers a wide area of study, dealing with a variety of issues and topics, as well as touching on a whole range of other subjects and disciplines.
The unifying element in all these aspects of the study, however, is that, in every case, the main question that is being investigated and to which an answer is being sought is, briefly, ‘what is law? ’ According to Chinhengo (2000), essentially, all jurists are seeking to explain the incidence, existence and consequence of law as a social phenomenon. Consequently, general questions to be answered are concerned with such matters as the following:
• the origin and sources of law generally and/or in specific societies; the historical development of law in general and the emergence and evolution of specific legal systems, traditions and practices; • the meaning of specific legal concepts and the construction of various legal structures and processes; • the link between law and other social phenomena, such as political ideologies, economic interests, social classes, and moral and religious conventions; • the operation of the law as a mode of social control and the effects that it has on the persons to whom it applies, in terms of justice as well as social, economic and political developments.
This interdisciplinary quality of jurisprudence has meant that a student of the subject has to touch on matters that would normally belong to such diverse other disciplines as philosophy, economic theory, sociology, anthropology, history, theology, and even geography. Within all these other areas of study are to be found the munitions of the jurists, who uses the conclusions and insights of scholars studying in such areas to explain law as a social phenomenon, and applies the methodology of these other modes of enquiry to further the understanding of particular legal concepts.
In conclusion Jurisprudence, as a subject in many law school curricula, is intended to provide the law student with a device by which he can ground his or her academic knowledge of the black-letter of the law to the reality of the social context in which the legal rules, structure and processes actually occur and operate. The idea, then, is to link the wealth of legal concepts, rules, statutes, precedents, structures, and processes, which one has imbibed haphazardly over a period of time, to the systematic theoretical and sociological insights about the role and place of law in society which jurisprudence seeks to provide (Chinhengo, 2000).
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 17 October 2016
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