Jurisprudence

Jurisprudence is the study and theory of law. Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations. General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:  1.) Problems internal to law and legal systems as such.  2.) Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists. Answers to these questions come from four primary schools of thought in general jurisprudence:[2]  Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have.  Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are.  Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in sociology of law.  Critical legal studies is a younger theory of jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an expression of the policy goals of the dominant social group. Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence. The English term is based on the Latin word jurisprudentia: juris is the genitive form ofjus meaning "law", and prudentia means "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of "knowledge of or skill in a matter". The word may have come via the Frenchjurisprudence, which is attested earlier. History of jurisprudence Jurisprudence already had this meaning in Ancient Rome even if at its origins the discipline was a (periti) in the jus of mos maiorum (traditional law), a body of oral lawsand customs verbally transmitted "by father to son". Praetors established a workable body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex then would judge a remedy according to the facts of the case. Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitable interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience. Under the Roman Empire, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The scientific depth of the studies was unprecedented in ancient times. After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born. In ancient Indian vedic society, the law or Dharma, as followed by Hindus was interpreted by use of "Manu Smrti" - a set of poems which defined sin and the remedies.[citation needed]They were said to be written between 200 BC - 200 AD. In fact, these were not codes of law but norms related to social obligations and ritual requirements of the era. Natural law Main article: Natural law Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law, lex iniusta non est lex, in which 'unjust' is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good'. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the maxim that "an unjust law is no law at all", but as John Finnis, the most important of modern natural lawyers has argued, this maxim is a poor guide to the classical Thomist position. Aristotle Aristotle is often said to be the father of natural law. Like his philosophical forefathers,Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon, δικαίον φυσικόν, Latin ius naturale). His association with natural law is due largely to the interpretation given to him by Thomas Aquinas. This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of theNicomachean Ethics (= Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally. Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes.[11] His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions are completely virtuous in all matters in relation to others, Aristotle calls her "just" in the sense of "general justice;" as such this idea of justice is more or less coextensive with virtue.[14] "Particular" or "Partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature here are about the grounding of the morality enacted as law not the laws themselves. The passage here is silent as to that question. The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of ones' own city was adverse to the case being made, not that there actually was such a law; Aristotle, moreover, considered two of the three candidates for a universally valid, natural law suggested in this passage to be wrong.[ Aristotle's theoretical paternity of the natural law tradition is consequently disputed.

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