Category: Law, Constitution, and Jurisprudence

Jurisprudence or legal theory is the theoretical study of law, principally by philosophers but, from the twentieth century, also by social scientists. Scholars of jurisprudence, (jurists or legal theorists), seek to obtain a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.

ROMAN LAW

ORIGIN

Jurisprudence in Ancient Rome had its origins with the (periti)—experts in the jus mos maiorum (traditional law), a body of oral laws and customs.

DEVELOPMENT

he sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting the law to newer social exigencies. The law was then adjusted with evolving institutiones (legal concepts), while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.

FORMALIZATION

Under the Roman Empire, schools of law were created, and practice of the law became more academic. From the early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians. The scientific nature of the studies was unprecedented in ancient times.

INSTITUTIONALIZATION

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.

EUROPEAN LAW :

ORIGIN: NATURAL LAW

Begins with Aristotle

In its general sense, natural law may be compared to both state-of-nature law and analogous to the laws of physical science.

natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance.

The Strong Natural Law Thesis holds that if a human law fails to be in response to compelling reasons, then it is not properly a “law” at all. This is captured, imperfectly, in the famous maxim: lex iniusta non est lex (an unjust law is no law at all).

WEAK LAW (DEVELOPMENT)

The Weak Natural Law Thesis holds that if a human law fails to be in response to compelling reasons, then it can still be called a “law”, but it must be recognised as a defective law.

POSITIVE LAW (FORMALIZATION)

Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition. Positive law is not law per se, but regulation, contract, or command.

LEGAL REALISM (INSTITUTIONALIZATION)

Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood as, and would be determined by, the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties, and imperfections.

CRITICAL RATIONALISM AND THE LAW (REFORMATION)

Karl Popper originated the theory of critical rationalism. According to Reinhold Zippelius many advances in law and jurisprudence take place by operations of critical rationalism. He writes, “daß die Suche nach dem Begriff des Rechts, nach seinen Bezügen zur Wirklichkeit und nach der Gerechtigkeit experimentierend voranschreitet, indem wir Problemlösungen versuchsweise entwerfen, überprüfen und verbessern” (that we empirically search for solutions to problems, which harmonise fairly with reality, by projecting, testing and improving the solutions).

LEGAL INTERPRETIVISM (“RELATIVISM”) (DECLINE)

Contemporary philosopher of law Ronald Dworkin has advocated a more constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.[37] In his book Law’s Empire,[38] Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. He argued that law is an “interpretive” concept that requires barristers to find the best-fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the best moral justification for the institutional facts and practices that we intuitively regard as legal. It follows from Dworkin’s view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some truths about the moral justifications of the social and political practices of that society. It is consistent with Dworkin’s view—in contrast with the views of legal positivists or legal realists—that no-one in a society may know what its laws are, because no-one may know the best moral justification for its practices.