Jurisprudence

Overview

The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law." In the United States jurisprudence commonly means the philosophy of law. Legal philosophy has many aspects, but four of them are the most common:

  1. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Law school textbooks and legal encyclopedias represent this type of scholarship.
  2. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences.
  3. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept.
  4. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as "What is law?" and "How do judges (properly) decide cases?"

Schools of Jurisprudence

Formalism vs. Realism

Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism, or conceptualism, treats law like math or science. Formalists believe that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute. In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line, realists maintain, is drawn according to the political, economic, and psychological inclinations of the judge. Some legal realists even believe that a judge is able to shape the outcome of the case based on personal biases.

Positivists v. Naturalists

Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources of law between positivist and natural law schools of thought. Positivists argue that there is no connection between law and morality and the the only sources of law are rules that have been expressly enacted by a governmental entity or court of law. Naturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources of law. They argue that moral philosophy, religion, human reason and individual conscience are also integrate parts of the law.

Some have attempted to break down schools of positivism and naturalism (aka: anti-positivism) into 3 distinct groups:

  1. exclusive legal positivists
    1.  According to exclusive legal positivists, what makes up the law is exclusively determined by social facts
  2. anti-positivists
    1. According to anti-positivists, moral facts determine the legal relevance of actions which people/institutions take
  3. inclusive legal positivists 
    1. According to inclusive legal positivists, moral facts might play a part in determining the content of the law, but only if the relevant social practices assign them that role. Inclusive legal positivism is a form of positivism because it holds that social facts are the ultimate determinants of the content of the law, and that the law might be determined by social facts alone. But it allows that people might choose to have the content of their law depend on moral facts, as they seem to do, for example, when they prohibit punishment that is cruel, or confer rights to legal protections that are equal.

The above mentioned schools of legal thoughts are only part of a diverse jurisprudential picture of the United States. Other prominent schools of legal thought exist. These include but are not limited to:

  1. Critical legal studies,
  2. feminist jurisprudence,
  3. law and economics,
  4. utilitarianism,
  5. legal pragmatism 

Further Reading

More more on jurisprudence, see this Yale Law Journal ArticleWashington University Jurisprudence Review, and this Michigan Law Article.

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Category: Legal Theory