What Does Jurisprudence Mean?
What Does Jurisprudence Mean? The term jurisprudence also refers to the philosophy of law, which is concerned not with the law of a particular state or country but with the nature of law more generally.
The philosophy of law is concerned with the origin of law, the difference between law and other social norms, the difference between legal systems and other institutions, and the legitimacy of laws and legal systems. Some philosophical inquiries focus on what the law is, and these inquiries form the basis of analytic jurisprudence. Other philosophical inquiries focus on what the law should be, and these inquiries form the basis of normative jurisprudence. Analytic jurisprudence addresses questions about what the law is: What do we mean by the term law? How do we come to understand the law? What differentiates laws from other norms and institutions?
What is the relationship between the law and other concepts, such as power and morality?
Perhaps the most significant and fundamental issue in the context of analytic jurisprudence is the debate between natural law theorists and legal positivists.
Although philosophical writings dating back to Aristotle (384–322 BCE) reflect the theory of natural law, its most prominent champion in the twentieth and early twenty-first centuries is the Australian legal scholar John Finnis.
Some of the most notable proponents of legal positivism include the British jurist John Austin (1790–1859) and the British scholar H. L. A. Hart (1907–1992). Legal interpretivism presents a conceptual alternative to both natural and positive theories of law. The interpretivist approach argues that law is not a fixed concept at all, but the result of legal practice. Rules articulated by the state must be interpreted, and their interpretation by legal practitioners is necessarily informed by those practitioners’ moral beliefs. Thus, law does not derive from morality but is shaped by it. The interpretivist approach is most often associated with the American legal scholar Ronald Dworkin.
Whereas analytic jurisprudence seeks to describe law and legal systems objectively and, in some circumstances, to address the relationship between law and morality, normative jurisprudence addresses the moral questions raised by legal problems: When should the rights of one person be compromised to protect the rights of another? Is a state justified in restricting an individual’s liberty to protect that individual by, for example, requiring the use of automobile seat belts or prohibiting suicide? Why and how should violations of the law be punished?
Normative jurisprudential debates frequently invoke religious arguments and overlap with political philosophy. For example, one of the most enduring questions of normative jurisprudence is whether a state is ever justified in imposing capital punishment. Both the popular and scholarly dialogues on the issue frequently involve arguments based on religious teachings. Similarly, in the United States, the capital punishment debate is sometimes framed as a political question: As the ultimate restriction on liberty, is capital punishment consistent with liberal democratic values?
- Coleman, Jules, and Scott Shapiro, eds. 2002. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press.
- Dworkin, Ronald. 1986. Law’s Empire. Cambridge, MA: Harvard University Press.
- Finnis, John. 1980. Natural Law and Natural Rights. New York: Oxford University Press.
- Garner, Bryan A., ed. 1999. Black’s Law Dictionary. 7th ed. St.Paul, MN: West Group.
- Hart, H. L. A. 1961. The Concept of Law. New York: Oxford University Press.
- Wendy L. Watson