Jurisprudence from Natural, Positive and Realistic Perspectives

Abstract

What is law? What is its purpose? Does it consist merely of rules? Can anything be law? What has law to do with justice? Or morality? Democracy? What makes a law valid? Do we have a duty to obey the law? Th ese, and many other, ‘theoretical’ questions suffuse the fabric of jurisprudence and legal theory. 1 Jurisprudence is consequently ubiquitous. Its concerns are an inescapable feature of the law and legal system. But it is more. As will soon be evident, it is both informed by, and has significant implications for, economic, political, and social theory. Drawing the boundaries of this vast terrain is therefore a challenging exercise. Studying jurisprudence means stepping back and reflecting on the ideas and assumptions that underlie and thereby define legal practices and institutions. Whereas in other law courses one studies areas of substantive law, jurisprudence studies law in a much more general way, and asks much more abstract and theoretical questions about law as such. Jurisprudence has been there from the times of Socrates2 . Jurisprudence considers general philosophical and theoretical questions about the nature, purpose and operation of law. Jurisprudence can be broken down in to two words which would consist of juris meaning the law and prudence meaning the logic. Therefore, one can say that jurisprudence is about the logic of law or as the science of law. Jurisprudence is only concerned about the nature of law and not a single law such as contract, tort, constitutional, international etc. while many have championed particular subject areas of law, no one has completely championed the jurisprudence since many of the theories that have been advanced by philosophers of their generations have often collided with the ideologies and opinions of others. Simmonds3 states that, jurisprudence is the term normally used in English speaking countries to refer to general theoretical reflections upon law and justice. Suri Ratnapala on the other hand opines that, jurisprudence consist of ‘scientific and philosophical investigations of the social phenomenon of law and of justice generally. It embraces studies, theories and speculations about law and justice undertaken with the knowledge and theoretical tools of different 1 R Wacks, Understanding Jurisprudence (3rd Edn, OUP 2012) 2 S. Ratnapala, Jurisprudence (2nd Edn, Cambridge 2013) P1. 3 N. Simmonds, Central Issues in Jurisprudence: Theory, Law and Rights (2nd Edn, Sweet and Maxwell 2002) P1. 1 | Page disciplines – such as law, history, sociology, economics, political science, philosophy, logic, psychology, economics, and even physics and mathematics.’4 Lord Templeman observes that, jurisprudence is a different sort of subject to study from most aspects of the law which largely deals case law and statutory materials.5 McCoubrey & White6 Bix7 states that, historically, the question ‘what is law?’ was the central focal point of jurisprudence. He explains that all most all the legal theories which makes the general body of jurisprudence has tried to answer this central question though with sharp distinctions in ideology. Commenting on the term law, H.L.A. Hart in his seminal work The Concept of Law8 opines that there is no any other question which is more difficult than the question ‘what is law?’. For example, we would generally agree that a ‘chair’ is something that we can sit on and the fact whether the chair is made of wood, stone or steel would not deny it being a chair. In sharp contrast to this, when one speaks about the nature of law, they insist that law should possess such characteristics which are inherent and in the absence of such, no rule or regulation would become a valid law. This is especially true concerning that natural law school, where their central argument is that, there is a necessary connection between law and morality and as such that, where a law fails to adhere with the general notions of morality it would not be considered as being valid. In sharp contrast to natural law we find legal positivism which claims that there is no necessary connection between law and morality and that the arguments put forward by the natural law school are not valid. In complete contrast to both natural law and positivism we find realism which is focused on what happens to law once it has been enacted by the legislature and implemented by the executive. Jurisprudence can be sub divided in to two parts consisting of analytical jurisprudence and normative jurisprudence. Analytical jurisprudence seeks to explain what the law is, and why, and its consequences. normative jurisprudence, on the other hand, are concerned with what the law ought to be. Put differently, analytical jurisprudence concerns about facts; normative jurisprudence is about values. This essay concerning the nature of law is made out with three different jurisprudential theories which includes natural law, positivism and realism. These three theories were selected for two main reasons. Firstly, to show the sharp distinction between theories and secondly to elaborate 4 Ibid P4. 5 L. Templeman, Jurisprudence: The Philosophy of Law, A Textbook (1st Edn, Old Baily Press 1997) P3. 6 J. E. Penner and E. Melissaris, McCoubrey & White’s Textbook on Jurisprudence (5th Edn, OUP 2012) 7 B. Bix, Jurisprudence: Theory and Context (4th Edn, Sweet and Maxwell 2006) P9. 8 H.L.A. Hart, The Concept of Law (3rd Edn, OUP 2012) 2 | Page the difference of approach taken by each theory in rationalizing their own interpretation as the the nature of law.