Second place of the Law School Blog Article Competition: “Jurisprudence ” by Antonia Michaelide

Jurisprudence is often described as the general reflections upon law and justice. The word Jurisprudence is based on the Latin terms of jus which means law, and prudentia which means discretion.  The Oxford English Dictionary of Law, defines Jurisprudence as “The theoretical analysis of legal issues at the highest level of abstraction.” Jurisprudence is one of the most important aspects of legal education, especially a lawyer, should know about. It is not a study that will directly improve one’s professional skills, but it will allow the individuals to obtain a deeper understanding of the concept of law.

So why should a lawyer know anything about the philosophy of law? Even in its most mandate aspects, the lawyer’s business is a matter of argumentation and reasoning. The lawyer must think swiftly, come up with the appropriate solutions for his client’s problem and give a reasoning for his decisions. These are skills that the lawyer develops once he immerses himself in the practical aspect of the profession. Jurisprudence is what will make the individual stand out from the crowd. Intellectual reflection about the law will allow the individual to understand why the law was necessary and how it can be applied best in other cases. By simply following a practical procedure, the lawyer will act based on procedural assumptions and not critical analysis.

Applying scrutiny to the knowledge that you obtain gives you the opportunity to make a difference. A prime example is a book published on 1736 by Chief Justice Hale, in which he stated that a man cannot be guilty of rape ‘committed by himself against his legal wife’ since marriage implies consent for as long as the two are married. But, in the case of R v R [1992] AC 599, the judges used their discretion and decided that the old interpretation of the law was wrong. They broke new legal ground and established a principle that respected and protected the women of the United Kingdom, by reinterpreting the Sexual Offences Act of 1976. Understanding that legal rules do not exhaust one’s legal education will allow the men and women of the legal profession to break through old perspectives and the residues of a past society. Old assumptions and principles might no longer be applicable today, and through change, the citizens can freely enjoy a lot more rights than in the past.

Jurisprudence, as a complex science, broadly speaking has four schools of thought with many theorists aiming to find answers to problems regarding the law and how society reflects it.

Natural law, one of the four schools of thought, emphasizes that the purpose of law is to protect the common good and to enforce justice. For natural lawyers, a law is by definition moral or just and if a rule does not have these characteristics, then it’s not law.  One of the most influential persons in the legal world is Aristotle, often described as the father of Natural Law. As the Greek Philosopher has emphasized in his book Ethics, before the formulation of general principles, actual moral judgement will produce the ethics upon which the law relies on. He considered ethics to be one of the most fundamental aspects of law, since the law is the enforceable body of rules that governs society. The law must reflect the society’s morality and vice versa. One of the quotes chosen by the Justices of the Supreme Court of the United Kingdom to adorn the wooden and glass balustrade of the Supreme Court Library is by Aristotle who said: “Man perfected by society is the best of animals; he is the most terrible of all when he lives without law, and without justice.”

Another school of thought is Legal Positivism. This school supports the opinion that morality and law do not have to be connected. Positivists explain that what is law is not always moral. Some laws might try to enforce morality, but a failure to do so does not make them any less valid. As long as the law is established through the appropriate procedures and organs of the state, it is valid. There is also a debate as to whether an immoral law ought to be obeyed by the society or not. One of the very first positivists was Thomas Hobbes who wrote the very famous book Leviathan, in which he explained how the human nature is always violent and animalistic. He explained how the law is there to limit humans’ natural urges to be violent. Irrespective of what societal morality states. It protects humans and allows them to create a civilized society. What makes the law is not morality, but the authority of the ruler.

Realism, the third school of thought, argues that what determines the law is the way the law is applied in practice. Legislators, judges and lawyers, are the ones which give the law the power that it has. This school defies the “perfect” image that these professions often portray and instead focuses on the external non-legal factors that influence their decisions. Realism, as a movement of Jurisprudence, ‘died’ in the 1960s but it has helped to develop the last school of thought. Critical Legal Studies is a relatively new school of thought which states that all the other legal theories are fundamentally flawed.

Critical Legal scholars believe that in many instances the law contradicts itself and that there is no one single truth as proven by the many structures and hierarchies in a legal system. They are liberal thinkers that preserve the hegemony of the law and believe that judges are not at all affected by the law. Some even claim that the law is not important at all, it is just useful to hide the real agenda of the judges.  A very fundamental gap in this school is that while these theorists have a distaste towards a judicial system, they fail to introduce any alternative so far. All other schools of thought have suggested alternatives.

To conclude, as analysed above, Jurisprudence is a science that covers many different opinions and beliefs. All these schools of thought were created and supported by individuals who dared to think outside the box and beyond what is established. Critical thinking enables anyone to keep searching and to always seek improvement. Those creating, applying and using the law need to respect the principles that created the law in the first place. But, they also need to be able to evaluate them.

Written by Antonia Michaelide

Posted in Article Competition, Rule of Law, Uncategorized