What is jurisprudence?15 October 2022
NB. This post provides a summary of jurisprudence and is not intended to be an authoritative account of the various legal theories that exist.
Jurisprudence has been around since at least the time of the philosopher Socrates, from when various philosophers and scholars attempted to answer questions about what is law and justice. However, questions continue to persist (Ratnapala, 2017: 1).
The reason why it is necessary to ask such questions is explained by Harris (2007):
“We live in a society in which everyday life is touched by legal regulation more than at any other period in history. Laws themselves are the result of intricate historical processes and of contemporary policies … [and] I see neither use nor virtue in presenting or studying law as if it were merely a package of rules; or in a way which suggests there is nothing wrong with it. … [It] cannot properly be understood, and certainly ought not to be studied, in a way which fails to take account of the social, economic and political contexts out of which the law arises and in which it operates.” (Harris, 2007, p. xi)
Therefore, jurisprudence allows for a critique or evaluation of the law by which citizens are expected to abide by. It is made up of the following theories, all of which attempt to explain what law is.
Positivism posits that the law should be examined scientifically, without reference to moral or ethical criteria, and essentially draws a distinction between the law that is, that can be seen or measured, and the law that ought to be, which is concerned with its merits or validity.
In contrast, natural law theory considers the law to be a phenomenon that is based on a higher law that reflects principles of morality, with those principles originating from either religion or reason, that is, what the law ought to be.
Legal realism rejects the view of law as a rational, coherent body of rules, and make a distinction between law in the books and law in action, arguing that the latter should take priority as decisions about the law or in interpreting the law should not be made in isolation from the realities of society.
The Marxist attitude towards law is centred on the idea that society is governed largely by economic and material factors, that is, capitalism, and the law is a tool of the powerful.
Critical legal studies theory emerged in the latter part of the twentieth century, and seeks to challenge accepted norms and opinions in established legal theory (see above). There are numerous critical perspectives that fall within the critical legal movement, all of which have common themes: law is a tool of injustice, law has an ideological nature and law is politics. The perspectives include critical race theory, feminist legal theory, queer theory and critical disability theory. It is argued that DLT falls within this group of perspectives.
The final theory is that of justice theory, which argues that society should be regulated by principles of justice and that this should be designed by a person who is shrouded in a veil of ignorance and does not have knowledge of their own status in that society.
This summary of the various schools of thought in jurisprudence provides the wider context within which we aim to develop DLT.
Harris, P. (2007). An Introduction to Law. (7th Edition). Cambridge: Cambridge University Press.
Ratnapala, S. (2017). Jurisprudence. (3rd Edition). Melbourne: Cambridge University Press.
Wacks, R. (2021). Understanding Jurisprudence: An Introduction to Legal Theory. (6th Edition). Oxford: Oxford University Press.
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* D/deaf, Sign Language Peoples, Deafblind, hard of hearing