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Nature of Jurisprudence

Nature of Jurisprudence

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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 ) .

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

p 3) .D.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.A Freeman in Lloyd s Introduction to Jurisprudence.

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 . liberalism .But even in the study of jurisprudence the role of dogma or ideology is inherent Examples of Ideologies: democracy .

g. about relationship of law to justice and about the social nature of law . sociology. and increasingly economics (for e.) 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. psychology.Jurisprudence straddles the disciplines of history. philosophy. anthropology.

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 .

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

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

among others. 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. of (1917The Concept of Law (first published 1961) Lon L Fuller (1902-1978) author. of Law s Empire (first published 1986) .Late 20th Century legal philosophers H L A Hart (1917.1992) author. among others.

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

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

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- .

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

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

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

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

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 .

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

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