Jurisprudence is a legal term that means the philosophy of law or legal philosophy; i.e. what people think about the law. The word can also be defined as the science of law. It is a word derived from two Latin terms namely juris meaning law and prudentia meaning knowledge, skill or study of law. Jurisprudence has other meanings too. For example, it can be used to mean an approach to a particular field of law; for instance one can refer to the jurisprudence of contract law. Jurisprudence can also be defined as the course followed by a court of law in deciding a particular matter, for example the Supreme Court’s 1st Amendment jurisprudence ( Gottlieb et al., 2006). Jurisprudence is also one of the major subjects taught in the Law faculty. This course entails a broad range of ideas and different law professors approach and teach it differently since it involves different ways of thinking about how legal ideas have been shaped and how they have matured over time. This paper will examine into detail jurisprudence as a legal philosophy.
As early as the time of Plato, Socrates, Aristotle, Thomas Aquinas, Cicero and others who were famous philosophers, jurisprudence existed. This is so because these philosophers had ideas about many social subjects; one of them being law. They expressed what they thought about law and laid down some of the foundations of today’s legal systems. However these were philosophers from the west. There were also writings from the Ancient Near East such as the Code of Hammurabi, which explained early forms of jurisprudence. From these ancient times there was a distinction between analytical and critical jurisprudence. Analytical jurisprudence is a branch of jurisprudence that was mainly advanced by English philosopher John Austin who thought of law as a command issued by a sovereign backed by sanctions (Green, 1999). Critical jurisprudence on the other hand is described by Douzinas and Gearey (2005) as a broader way of thinking about the law and adopts a classical way of thinking about law as opposed to the narrow thinking associated with analytical jurisprudence. These are the major divisions of jurisprudence as legal philosophy.
Jurisprudence is not only important to those who practice law or legal students but is also useful to laymen. It is important that an individual discerns what they think about the law before applying it. For instance, in jurisprudence, there is a school of thought called ‘natural school of thought’ where the philosophers believed that law is that which is divine and comes from God. Legal positivism on the other hand, asserts that law comes from a human sovereign who is not inferior to anyone. The naturalists contend that the law that is not divine should not be obeyed whereas the positivists propose that all law should be obeyed. With these kinds of theories that have been advanced, one can decide whether they subscribe to the naturalist or positive school of thought. This also comes in handy in understanding judgments from courts of law.
Jurisprudence is quite different from other fields of law. It is very broad and there is no one universally accepted definition or approach of teaching it. One can easily define the parameters of such a field of law as family or matrimonial law. However, there can be no limiting boundaries for jurisprudence. This is because there are always new emerging thoughts on the subject of law. Jurisprudence also incorporates other legal fields, for example one could refer to the jurisprudence of environmental law or feminist jurisprudence.
A lot has been written and said on jurisprudence by legal scholars as well as philosophers and it is very clear that its definition has not yet come to an end. This is because the field of law is still expanding and society is also rapidly changing. New scholars are also coming up and giving their opinion on this subject which is broad.
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