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The term jurisprudence refers generally to the science or study of law and encompasses any effort to define, describe, or conceptualize the nature of the law. In practice, such efforts vary dramatically in scope and focus. Broadly speaking, jurisprudential efforts can be divided into two types: applied jurisprudence and the philosophy of law.
Applied, or empirical, jurisprudence is the study of the nature and development of the law through its actual practice. In other words, the endeavor of applied jurisprudence is to examine judicial decisions in which rules of law are applied to actual cases and conflicts, and from that application infer something about the nature of the law being applied. For example, one might look at a series of U.S. Supreme Court decisions that apply the establishment clause of the First Amendment to actual conflicts and, from those decisions, develop an understanding of what the establishment clause means and how it might be applied to other, hypothetical situations. This understanding and the judicial decisions giving rise to it would be known, collectively, as establishment clause jurisprudence.
Applied jurisprudence is particularly important in common law legal systems—primarily in England and its former colonies. Black’s Law Dictionary defines common law as “the body of law derived from judicial decisions, rather than from statutes or constitutions” (1999, p. 270). Common law systems are based on the idea that law derives primarily from custom or usage. In a common law system, the basis or grounds on which a court resolves a dispute comes from past decisions of the court; those past decisions are called precedents. Statutes and other codified laws may alter or supersede common law principles, but common law principles are used to interpret statutes, and traditional common law principles fill the interstices between codified laws.
In common law systems, legal norms develop incrementally over time, with judicial decisions announcing or explaining the law only when necessary to resolve the particular dispute before it. Anticipating how the law will be applied to a new factual scenario necessarily requires assimilating a large number of judicial decisions and analogizing to the new fact pattern. As a result, the endeavor of applied jurisprudence—looking at judicial decisions and, from them, discerning the nature of the law—is an integral part of the practice of law in common law countries.
Philosophy of Law
The term jurisprudence also refers to the philosophy of law, which is concerned not with the law of a particular state or country but with the nature of law more generally. The philosophy of law is concerned with the origin of law, the difference between law and other social norms, the difference between legal systems and other institutions, and the legitimacy of laws and legal systems. Some philosophical inquiries focus on what the law is, and these inquiries form the basis of analytic jurisprudence. Other philosophical inquiries focus on what the law should be, and these inquiries form the basis of normative jurisprudence.
Analytic jurisprudence addresses questions about what the law is: What do we mean by the term law? How do we come to understand the law? What differentiates laws from other norms and institutions? What is the relationship between the law and other concepts, such as power and morality?
Perhaps the most significant and fundamental issue in the context of analytic jurisprudence is the debate between natural law theorists and legal positivists. Put very simply, natural law theorists assert that law derives from a higher order, imposed by God or nature and adducible by reason; law exists independently of states and sovereigns, and law is inseparable from morality. A state may articulate a rule and use its coercive power to enforce that rule, but the rule is not genuinely law unless it conforms with some standard of what is right, moral, or just. Although philosophical writings dating back to Aristotle (384–322 BCE) reflect the theory of natural law, its most prominent champion in the twentieth and early twentyfirst centuries is the Australian legal scholar John Finnis.
In contrast to natural law, legal positivism views law as a purely social construct and asserts that the law is what the sovereign declares it to be; the question of whether a law is good or right is distinct from the question of whether it is, in fact, a law. Some of the most notable proponents of legal positivism include the British jurist John Austin (1790–1859) and the British scholar H. L. A. Hart (1907–1992).
Legal interpretivism presents a conceptual alternative to both natural and positive theories of law. The interpretivist approach argues that law is not a fixed concept at all, but the result of legal practice. Rules articulated by the state must be interpreted, and their interpretation by legal practitioners is necessarily informed by those practitioners’ moral beliefs. Thus, law does not derive from morality but is shaped by it. The interpretivist approach is most often associated with the American legal scholar Ronald Dworkin.
Whereas analytic jurisprudence seeks to describe law and legal systems objectively and, in some circumstances, to address the relationship between law and morality, normative jurisprudence addresses the moral questions raised by legal problems: When should the rights of one person be compromised to protect the rights of another? Is a state justified in restricting an individual’s liberty to protect that individual by, for example, requiring the use of automobile seatbelts or prohibiting suicide? Why and how should violations of the law be punished?
Normative jurisprudential debates frequently invoke religious arguments and overlap with political philosophy. For example, one of the most enduring questions of normative jurisprudence is whether a state is ever justified in imposing capital punishment. Both the popular and scholarly dialogues on the issue frequently involve arguments based on religious teachings. Similarly, in the United States, the capital punishment debate is sometimes framed as a political question: As the ultimate restriction on liberty, is capital punishment consistent with liberal democratic values?
- Coleman, Jules, and Scott Shapiro, eds. 2002. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press.
- Dworkin, Ronald. 1986. Law’s Empire. Cambridge, MA: Harvard University Press.
- Finnis, John. 1980. Natural Law and Natural Rights. New York: Oxford University Press.
- Garner, Bryan A., ed. 1999. Black’s Law Dictionary. 7th ed. St. Paul, MN: West Group.
- Hart, H. L. A. 1961. The Concept of Law. New York: Oxford University Press.
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