WHAT IS JURISPRUDENCE?
Jurisprudence is the science, study and theory of law. It is a study of the law, done by scholars of law (‘Jurists’), to understand the nature, principles and patterns of the law. Jurists in the world seek to develop a deeper understanding of legal principles, legal systems and reasons why certain laws exist. Law itself is an intangible being, you cannot touch it; you cannot see it; and you cannot feel it. Therefore, it becomes extremely difficult to study the central assessment of it. Yet it still exists; law shapes, guides and dictates how it’s subjects should and should not behave. Jurists study different forms of laws and try to grasp why these laws were made or what made them.
DIFFERENT THEORIES OF LAW
There exist four primary schools of thought in general Jurisprudence:
- Natural Law
- Legal Positivism
- Legal Realism
- Critical Legal Studies
Natural law is the theory that certain rights or values are essential by virtue of human nature and universally identifiable through human reason. Historically, natural law refers to the use of reason to compare both social and personal human nature to understand the binding rules of human behaviour. The law of nature being determined by nature, is universal.
An example of natural law is the insistence of religious and natural scholars that law was created by nature. They believe that as humans are a creation of nature, nature itself dictates how they should live. Some scholars of natural law insist that through nature human beings can understand what is right and what is wrong. According to this theory, what is good and what is evil is already known to humans upon birth; anything which harms a human’s mind, body or being is wrong.
Theories of natural law circle around what is considered moral or immoral. Therefore, there is a link a between the morals of humans and the law they follow.
Unlike natural law, legal positivism says that there is no link between morality and law. This insists that laws are created and dictated by how human beings behave socially. In the positivist’s view law is established by some socially recognised legal authority. The merits of the law are not something that need to be considered; it might be ‘bad law’ by some standards but as long as it is governed by an authority it is still law.
According to legal positivism, the fact that a policy is just, wise, efficient or sensible is never enough reason for thinking that it is actually the law; and the fact that it is unjust, unwise, inefficient or insensible is never enough reason to doubt whether a law or set of laws are valid or not.
So according to this theory of law; the laws established by Hitler to persecute the Jews were valid laws; anyone following and working under those laws did not do anything wrong as these laws were made by a legitimate authority ‘the government’.
Legal realism argues that the real world practice of law is what determines what is the law, the law has the force that it does because of what legislators, lawyers and judges do with it. Some realists believe that one can never be sure that the facts and law identified in the judge’s reasons were the actual reasons for the judgement, whereas other realists accept that a judge’s reasons can often be relied upon, but not all of the time. Realists are interests in methods of predicting judges with more accuracy.
According to realists, if a law is passed with a certain and consistent pattern then that pattern is the law. Legal realists do not rely on the text or the documentations of law but rather just focus on the people who practice law. Therefore, according to them, the concept of law is evident in how lawyers and judges apply it.
CRITICAL LEGAL STUDIES
Critical legal studies are a relatively new theory of jurisprudence that has developed since the 1970s. it is a negative thesis that says that the law is largely contradictory and can be best analysed as an expression of the policy goals of the dominant social group. Scholars of this legal theory believe that the dominant beings in a class of people dictate what the law should and should not be.
The scholars of this theory argue that the current laws are the evidence of the will of dominant classes. For example, the creation of the UN is an example of law created through legal dominance. The UN was created by the victors of the second world war; hence they were the dominant group who had the power to create and dictate law.
WHICH THEORY TO FOLLOW
No legal system, country, judge, lawyer or human being can only follow one theory of law. If any person follows only one theory of law, the legal system would stop working. Even though the law is supreme, it is important to question and follow it at the same time. The questioning allows the authorities to correct any flaws in the law and the following keeps the law supreme.