Jurisprudence

I

Introduction

Jurisprudence (Latin jurisprudentia, from jus, “law” and prudentia, “knowledge”), knowledge of the law and its interpretation, or the science and philosophy of law. In ancient Rome the term was used in the former sense. Those who were so skilled in the law that they could decide a novel or doubtful case were called juris prudentes, whether or not they were judges, and the body of law built up by their interpretation was called juris prudentia. This development of law by interpretation is akin to what English-speaking peoples call case law—that is, law arising from a body of decided cases; in France and Spain the term “jurisprudence” is still used in that sense.

II

Science of the Law

The word “jurisprudence” is usually used to describe what was often called at an earlier time the philosophy of law, and what Continental writers now call the theory or science of law. A treatise on jurisprudence defines the essential elements in the conception of law; the relation that law bears to relative social sciences, politics, ethics, and economics; the way in which law originates—in popular customs, judicial usage, and legislation—and the way in which it ceases to exist—through lack of use, change of usage, abolishment, or repeal; its application with reference to people, time, and place; and the way in which it is enforced. Jurisprudence formulates legal relations, rights, and duties. It may undertake to classify law and to construct a system in which every rule of law may find an appropriate place. It may also attempt to classify all the relations that the law recognizes or creates and which it regulates or orders, that is, the relations of state and government to individuals and groups, and of individuals and groups to each other. It may even analyse the fundamental conceptions of the family, of property, and of succession.

III

Schools of Jurisprudence

The principal modern schools of jurisprudence are the natural-law school, the analytical school, the historical school, the comparative school, and the sociological school. Critical legal studies and feminist jurisprudence are also making their mark. The first three schools differ mainly in their views of the nature and origin of law and its relation to ethics, as explained briefly below.

To the natural-law jurist, law is antecedent to the state; to the analytical jurist, it is the creation of the state; and to the historical jurist, state and law are social products, developing side by side, each influencing the other. To the natural-law jurist, laws can be formulated by pure reason; to the analytical jurist, by the command of the sovereign power; to the historical jurist, by the formulated wisdom of men and women. To the natural-law jurist, law is applied ethics, and, in the extreme form of the theory, that which is not right is not law. To the analytical jurist, on the other hand, a law that commands what is ethically wrong or forbids what is ethically right is no less a law if it proceeds from the political sovereign. The historical jurist accepts this latter position, but points out that it is difficult for a lawmaker to act other than in accordance with the contemporary sense of right, and that laws that run counter to that sense are not likely to be enforced. Historical jurisprudence differs from analytical jurisprudence chiefly in emphasizing the great part played by social custom in developing and establishing law. To the analytical jurist, such customary law, including judicial custom, is an anomaly that should be abolished by covering the whole field of social relations with written codes.

The natural-law school has its roots in Aristotelian philosophy and Roman jurisprudence; it was increasingly dominant in Europe from the Reformation to the close of the 18th century, and has recently seen a revival. The theory of the analytical school was first sharply formulated by the English philosopher Thomas Hobbes in his Leviathan (1651). The views of this school, however, did not originate in England. The tendency to exalt the function of the legislator appeared on the Continent at the close of the Middle Ages and was associated with the efforts of the national states to rid themselves of the chaos of varying provincial and local customs that had taken form during that period. This end could be attained only by national legislation and has been fully attained only by the adoption of national codes.

In the 20th century the analytical school has found its expression in positivism, which attempts to describe the nature of systems of rules without reference to their ethical content, and is notably represented by H. L. A. Hart and the Austrian jurist Hans Kelsen. A related jurisprudence that might be said to bridge the gap between natural law and positivism is the theory of Ronald Dworkin, which presents law as a process of interpretation of a community’s past legal acts in the light of the social context.

The historical school dates from the 19th century, as a reaction against natural-law ideas. Its principles were first clearly defined in 1814 by the German jurist Friedrich Karl von Savigny. The comparative school of the 19th century, of which the leading early exponents were the German legal scholar Rudolf von Jhering and Albert Hermann Post, represents a widening of the field of investigation. Each national law is studied historically and the various national systems compared at similar stages of development. As a result of this process, not only may the normal course of legal development be discovered, but that which is universal and human may be separated from that which is particular to a single nation or to a special stage of development. Then, as Jhering hoped, it may eventually become possible to write a history of the law of the world. Among the leading British and American writers on comparative law were James Barr Ames, Oliver Wendell Holmes, Henry Maine, Frederick William Maitland, and Sir Frederick Pollock.

The sociological school of jurisprudence is largely a product of the 20th century. Its approach to the analysis of law differs from that of the other schools in that it is concerned less with the nature and origin of law than with its actual functions and end results. The proponents of sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control. They are concerned with practical improvement of the legal system and feel that this can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences. The American jurist Roscoe Pound was a prominent figure in the school of sociological jurisprudence.

The most recent schools of legal philosophy are critical legal studies and feminist jurisprudence. Critical legal studies denies that law is rational, as other schools claim, and sees it as essentially incoherent, believing that sense can only be made of it if it is viewed as representative of the power structures of legal institutions and society. Feminist jurisprudence examines law as it represents and reinforces, in the present and in the past, the subordinate position of women in society; it applies a feminist analysis to law as a male-dominated institution.