Jurisprudence                                              Concept of Law

The actual definition of jurisprudence can vary, dependent on the context of the usage. Jurisprudence can have different meanings for different people. Theoretically, however, it is the science, philosophy and the study of the law. Originally conceived by the College of Pontiffs in Ancient Rome, the indirect body of laws created became the basis of what we today view as modern jurisprudence.

There are different aspect of jurisprudence which, when examined, help to clarify post-modern concepts of the study of the law. The first dichotomy is Legal Realists versus Formalists. Formalists believe that it is individual judges are responsible for identifying the legal issues at the heart of a dispute and applies them logically to the facts to determine the outcome of a case. Legal Realists, in opposition, believe that judges must balance interests by using their own psychological, economic and political inclinations to make determinations. This perspective encourages judges to review all relevant facts and then draw an arbitrary line on which to settle disputes.

Another set of opposing views of jurisprudence occurs with the Analytic perspective versus the Normative perspective. Analytics view jurisprudence as how the law 'is' at the present time. Normativists look at jurisprudence as what the law 'ought' to be. These two views are in direct contrast and if a judge rules under the normative perspective, she could be accused as being an activist judge - someone who wants to expand the law. Judges who rule under analytic views are viewed often as conservative judges as they apply the law as they believe it was written with the original intentions. They do not like to expand jurisprudence beyond the clear, and sometimes limiting, rules of law created by government. Also within activist jurisprudence can be sub-categories. These can include Feminists where they seek to ensure that the law is written and applied fairly towards both sexes. Islamic jurisprudence is another idea where the religion supersedes all other laws including laws of man created by governments. 

Positivists versus Naturalists are another set of contrasting views on jurisprudence. Positivists believe that laws are dictated by government and government alone. They see no connection between morality and the law. Laws are man-made and to be applied in a consistent as opposed to fluid manner. Naturalists believe that there can be laws made by governments but that there can be other 'natural' laws as well. Morality, philosophy, individual conscience and group reason can also be used to create laws to be followed. This perspective puts humanity on the same par as government when it comes to writing and enacting laws. From the writing of laws to the enacting of said laws, jurisprudence studies the structure of the legal system and how it impacts the citizens.

Jurisprudence is not only the study and application of current laws, it is the theoretical study of where the law ought to be headed. The study includes the reviewing of how laws came to be and how they ought to develop into the future. Another subdivision in jurisprudence is the ethics and ethical questions which arise when the law is being applied. The best aspect of jurisprudence is that it a fluid, changing, growing and expanding concept which can be as progressive (or regressive) as judges, lawyers, legislators and governments choose it to be.

law magazine  - 

Monday March 21 2011