Meaning and classification jurisprudence

What is jurisprudence? Attempt the classification of jurisprudential thoughts and what are the problems associated with its classification?

Introduction: 

Controversy surrounds not only the acceptability of the many attempts made to define jurisprudence; the very possibility of producing a precise definition is challenged, as is the validity of the defining process.

There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject. The English word is based on the Latin maxim jurisprudentia: juris is the genitive form of jus meaning law, and prudentia means prudence or knowledge. The word is first attested in English in 1628, at a time when the word prudence had the meaning of knowledge of or skill in a matter. The word may have come via the French jurisprudence, which is attested earlier. Hence jurisprudence is the knowledge or skills of the law

Utopian: The knowledge of things divine and human, the knowledge of the just and unjust’

Allen: “scientific synthesis of the law’s essential principles.’

Fitzgerald: The name given to a certain type of investigation into law, an investigation of an abstract, general and theoretical nature, which seeks to lay bare the essential principles of law and legal systems.’

Jolowicz: ‘A general theoretical discussion about law and it’s principles, as opposed to the study of actual rules of law.’

Stone: ‘The lawyer’s examination of the precepts, ideals and techniques of the law in the light derived from present knowledge in disciplines other than the law.’

Schumpeter: ‘The sum total of the techniques of legal reasoning and of the general principles to be applied to individual cases.’

Holmes: ‘Jurisprudence, as I look at it, is simply law in its most generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions.’

Cross ‘The study of a lawyer’s fundamental assumptions.’

Llewellyn: ‘Jurisprudence means to me any careful and sustained thinking about any phase of things legal, if the thinking seeks to reach beyond the practical solution of an immediate problem in hand. Jurisprudence thus includes any type at all of honest and thoughtful generalization in the field of the legal.’

Keeton considered jurisprudence as the study and systematic arrangement of the general principles of law. According to him, Jurisprudence deals with the distinction between Public and Private Laws and considers the contents of principle departments of law.

Roscoe Pound described jurisprudence as the science of law using the term ‘law‘ in juridical sense as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice.

Holland defined jurisprudence as the formal science of positive laws. It is an analytical science rather than a material science. Positive law means the general rule of external human action enforced by a sovereign political authority. Jurisprudence is a science because it is a systematized and properly co-ordinated knowledge of the subject of intellectual enquiry.

Jurisprudence as science

Some definitions of jurisprudence (see, eg, that of Allen) suggest that it possesses some of the characteristics of a science. It may claim a place in the social sciences, i.e, those ‘inexact areas’ of knowledge based on the study of aspects of social organizations and the interrelationships of individuals. The collection and systematization of facts, the deduction of general principles from data concerning legal systems, may suggest that jurisprudence is a methodical study of an aspect of society and maybe classed, therefore, as a social science. But the pretensions of some jurists, implying the right of jurisprudence to be classed as an exact science are difficult to support.

It is doubtful whether jurisprudence can be classified as a science: scientific method is rarely used in jurisprudential investigation; few universal, verifiable principles have emerged from jurisprudence. Loevinger reminds us: ‘The unanswerable questions of life belong to the realm of philosophy, and jurisprudence is the philosophy of law.’

Classification of jurisprudential thoughts

                              

Attempts have been made to categorize the wide variety of theories of jurisprudence. Jurisprudence could be divided into three fundamental branches: ‘analytical’ (essentially, an investigation of the law’s first principles); ‘historical’ (involving the origin and development of the law and legal concepts); ‘ethical’ (concerning the theory of justice in relation to law).

Historical Jurisprudence

Historical Jurisprudence gives the answers of the questions, origin of law, the development of law, evolution of law and philosophy of law. It constitutes the general portion of legal history. It deals with the general principles governing the origin and development of law as also the origin development of legal conceptions and principles found in the philosophy of law. Historical jurisprudence has value on the catalogue the development of law and allotting to each phase its true position in the completed narrative. It indicates the processes of change, and is therefore descriptive. It is the function of historical jurisprudence to interpret these changes and to expose the forces which have brought them about.

Ethical Jurisprudence

The branch of jurisprudence deals with basic principles of ethics and moral values. Ethical jurisprudence is a branch of legal philosophy which approaches the law from the viewpoint of its ethical significance and adequacy. It deals with the law as it ought to be an ideal state.

This area of study brings together moral and legal philosophy. It is connected with the purpose of which the law exists and the manner in which such purpose is fulfilled. Salmond observes that ethical jurisprudence is the meeting point and common ground of moral and legal philosophy of ethics in jurisprudence. Ethical jurisprudence has for as its object the conception of justice, the relation between law and justice.

Sociological Jurisprudence

Sociology is the study of men in society. A sociologist considers law as a social phenomenon. The object of sociological jurisprudence is to work upon jurisprudence with reference to the adjustment of relations of ordering of conduct which is involved in group life.

A theme of this branch is to study living law in the same manner as a psychologist studies living issue. The most important branch of legal sociology is penology, which studies the causes of crimes, behavior of criminal and effect of different theories of punishment. The only principle in penology is to find out why a man does wrong to make it not worth his while.

Analytical jurisprudence

The branch of jurisprudence gives analysis to basic principles of civil and their interpretation. The purpose of this branch of study is to analyze and dissect the law of the land as it exists today. This analysis as the principles of the law is done without reference to their historical origin or their ethical significance. Analytical jurisprudence it examines the relations of civil law with other forms of law, analysis the various constituent ideas of which the complex idea of the law is made up.

The problem of classification

Classification in relation to jurisprudence is neither easy nor exact. The following problems have arisen.

‘Arrangement is not classification, although classification is arrangement; the difference being that while arrangement may be empirical, classification must be in accordance with some principle’: De Witt Andrews (‘The Classification of Law’ in Readings in Jurisprudence, ed Hall (1938)). It is not easy to discover an appropriate principle: classifications based upon historical context or methodology, for example, are rarely satisfactory and tend to be little more than arrangements of legal authors and their ideas.

The problem of overlap is considerable: Some schools of thought overlap, and a rigid compartmentalization of ‘schools of jurisprudence’ may perpetuate perceptions of sharp divisions where, in reality, none exists.

Conversely, dissimilar types of our is prudential speculation may be brought together under one heading, suggesting a unity of thought where none exists; thus, it is not easy to perceive similarities between the thoughts of Savigny and Maine as for example.

It  is  virtually  impossible  to  place  some  jurists  in  any  of  the  ‘standard  schools’  of jurisprudence. Thus, the contemporary American jurist, Dworkin, appears to be in a category of his own. How may we categorize Fuller, a self-proponent of natural law, who rejects many aspects of thought associated with that doctrine?