JURISPRUDENCE

By Dr. Myint Zan

Definition , Nature and Scope of Jurisprudence Latin term: Juris meaning of [about] law , Prudence: Prudence: skilled therefore: Jurisprudence: knowledge about law or study about law

Compare in a colloquial sense Law books v Books about law Jurisprudence books would probably fall into the category of books about law rather than law books

Compare also Asking the law question (Law Book Company) ISBN-10: 0455212422 a book authored by ISBNMargaret Davies It is not asking the law a question nor is it asking the law questions In one sense a study of the problematique (apparently a word of French origin) of law NOT problematic (which means problem-ridden or problemmerely a problem )

Compare: in French jurisprudence means something like case law . In English study of law In the English or common law legal tradition authority is valued (compare the important role of doctrine of precedent )

Therefore it has been argued by some academics that the emphasis and orientation in English law ( Common law ) encouraged pragmatism and diminished the critical thinking of students Education which merely consists in teaching dogmas and authoritative thoughts (but compare religious and political concepts) is not worthy of name ( M.D.A Freeman in Lloyd s Introduction to Jurisprudence, p 3)

But even in the study of jurisprudence the role of dogma or ideology is inherent Examples of Ideologies: democracy , liberalism , freefree-market economics , Marxism, Freudianism, Feminism Compare a book entitled Jurisprudence as Ideology by Valerie Kerruish (Routledge) ISBNISBN10: 0415088577 but also ideology can be camouflaged as Jurisprudence Role and proper limits of jurisprudence could well be defined sub-consciously (Freud) by the subjurist s ideology

Jurisprudence straddles the disciplines of history, sociology, philosophy, psychology, anthropology, and increasingly economics (for e.g.) Economic analysis of the law (one proponent is Posner ) and politics as well Jurisprudence is also the study of general theoretical questions about the nature of the law and legal systems, about relationship of law to justice and about the social nature of law

Jurisprudence is connected with political philosophy One of the issues of political philosophy pertaining to governance is Why Should [we] Obey the Law ? This political philosophy though there are linkages with jurisprudential issues can be considered as an issue in political theory

Legal theory is concerned mainly with the question What is law : Jurisprudence also covers this issue and the theories of law Both the political theory and the legal theory should constitute part of the study of jurisprudence

Philip Soper in his book A Theory of Law argued that jurists and political theorists concentrates on what is called the the concept (or problematique ) of obligation (why should we obey the law) hence political theory and the concept of obligation is linked

Legal theorists considers the issue of what is law ( the concept of law ) Soper argues for the need to link political theory and the concept of law and the legal theory and the concept of obligation

Hence the importance of political philosophy or theory in the study of jurisprudence Then what is Philosophy ? Greek word Philo = love of Sophia = wisdom

Love of wisdom Random names of Eminent Philosophers in (Western) philosophy Thales, Socrates, Plato, Aristotle (Classical) St Thomas Aquinas, St. Augustine (Medieval)

Machiavelli, Hobbes, Spinoza, Locke, Rosseau and most importantly Karl Marx (1818(1818-1883) (Enlightenment and postpostindustrial period) Twentieth Century Philosophers Bertrand Russell (1872- 1970) (1872Jean Paul Sartre ( 1905-1980) 1905-

Late 20th Century legal philosophers H L A Hart (1917- 1992) author, among others, of (1917The Concept of Law (first published 1961) Lon L Fuller (1902-1978) author, among others, (1902of The Morality of Law (first published 1964) John Rawls (1921-2002) author among others of A (1921Theory of Justice (first published 1971) Ronald Dworkin (born 1931) author, among others, of Law s Empire (first published 1986)

Political philosophies and systems of governance: Monarchy Aristocracy Tyranny Oligarchy Democracy

Classical : In the West Plato s in The Republic (proposed an oligarchical form of government ) In the East: Confucius, Mencius, Medieval St Augustine s City of God

Analytical Legal Philosophers Schools of Jurisprudence (Classical) Analytical School : John Austin (1790-1859); Positvism Later (1790rejected and refined by H L A Hart Historical School: Carl Von Savigny (1779-1861) (1779-

Ethical School Immanuel Kant (1724-1824) (1724Sociological School Roscoe Pound (1870-1964) (1870Socialist School Karl Marx (1818-1883) (1818-

Predominance of Analytical School in the 19th and early 20th centuries: Law as separate from morals, customs, etiquette Generally held sway among jurists till about Second World War

Analytical Philosophy In part dependent on the use of language to clarify thought and posit philosophical ideas

The golden mountain does not exist." The ambiguity is that the words "golden mountain" may be taken to indicate a something where there is really a nothing. One might ask: "What is it that does not exist?"

The answer would be "the golden mountain," implying that it has some kind of reality. Bertrand Russell's solution was to turn the substantive phrase into what he called a descriptive phrase, i.e.: "There is no entity c, such that 'x is golden and mountainous' is true when x is c, but not otherwise."

Analytical jurisprudence draws from some of the tenets of analytical philosophy. In one sense analytical legal philosophers would include John Austin John Austin (1790-1859) who in his The Province (1790of Jurisprudence Determined (1832) basically defined laws (properly so-called) as socommand of the sovereign (See pages 19-21 of 19Lloyd s Introduction to Jurisprudence) Jurisprudence)

Austin s theory of law which can also be expressed as positivism (though nowadays in a very old and outdated form) is not, in its full sense accepted by legal philosophers or jurists In parts of the 19th century Austin s theories have considerable influence however in the 20th century many critiques were made of Austin s analytic jurisprudence or Command theory of law

Among those critics were H.L.A Hart (1907(19071992) whose The Concept of Law (first published 1961, Revised edition 1994) was very influential