Difference Between Jurisprudence And Legal Theory Pdf

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Philosophy of law or legal philosophy is concerned with providing a general philosophical analysis of law and legal institutions. Issues in the field range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relationship between law and morality and the justification for various legal institutions.

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Jurisprudence and Legal Theory (LAWS0208)

Philosophy of law or legal philosophy is concerned with providing a general philosophical analysis of law and legal institutions. Issues in the field range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relationship between law and morality and the justification for various legal institutions.

Topics in legal philosophy tend to be more abstract than related topics in political philosophy and applied ethics. For example, whereas the question of how properly to interpret the U. Constitution belongs to democratic theory and hence falls under the heading of political philosophy , the analysis of legal interpretation falls under the heading of legal philosophy.

Likewise, whereas the question of whether capital punishment is morally permissible falls under the heading of applied ethics, the question of whether the institution of punishment can be justified falls under the heading of legal philosophy.

There are roughly three categories into which the topics of legal philosophy fall: analytic jurisprudence, normative jurisprudence, and critical theories of law. Analytic jurisprudence involves providing an analysis of the essence of law so as to understand what differentiates it from other systems of norms, such as ethics.

Normative jurisprudence involves the examination of normative, evaluative, and otherwise prescriptive issues about the law, such as restrictions on freedom, obligations to obey the law, and the grounds for punishment. Finally, critical theories of law, such as critical legal studies and feminist jurisprudence, challenge more traditional forms of legal philosophy.

The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient conditions for the existence of law that distinguish law from non-law. While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law.

As Brian Leiter points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix distinguishes a number of different purposes that can be served by conceptual claims:.

In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law can be divided into two main headings: a those that affirm there is a conceptual relation between law and morality and b those that deny that there is such a relation. All forms of natural law theory subscribe to the Overlap Thesis , which is that there is a necessary relation between the concepts of law and morality.

According to this view, then, the concept of law cannot be fully articulated without some reference to moral notions. Though the Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be interpreted.

The strongest form of the Overlap Thesis underlies the classical naturalism of St. Thomas Aquinas and William Blackstone. As Blackstone describes the thesis:. This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other.

It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original , p.

In this passage, Blackstone articulates the two claims that constitute the theoretical core of classical naturalism: 1 there can be no legally valid standards that conflict with the natural law; and 2 all valid laws derive what force and authority they have from the natural law. On this view, to paraphrase Augustine, an unjust law is no law at all.

Finnis believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual account of the existence conditions for law. Accordingly, an unjust law can be legally valid, but cannot provide an adequate justification for use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust law fails to realize the moral ideals implicit in the concept of law.

An unjust law, on this view, is legally binding, but is not fully law. Lon Fuller rejects the idea that there are necessary moral constraints on the content of law. P1: the rules must be expressed in general terms; P2: the rules must be publicly promulgated; P3: the rules must be prospective in effect; P4: the rules must be expressed in understandable terms; P5: the rules must be consistent with one another; P6: the rules must not require conduct beyond the powers of the affected parties; P7: the rules must not be changed so frequently that the subject cannot rely on them; and P8: the rules must be administered in a manner consistent with their wording.

A system of rules that fails to satisfy P2 or P4 , for example, cannot guide behavior because people will not be able to determine what the rules require. Opposed to all forms of naturalism is legal positivism , which is roughly constituted by three theoretical commitments: i the Social Fact Thesis, ii the Conventionality Thesis, and iii the Separability Thesis. The Social Fact Thesis which is also known as the Pedigree Thesis asserts that it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts.

According to the Conventionality Thesis, it is a conceptual truth about law that legal validity can ultimately be explained in terms of criteria that are authoritative in virtue of some kind of social convention.

Thus, for example, H. Hart believes the criteria of legal validity are contained in a rule of recognition that sets forth rules for creating, changing, and adjudicating law. The Social Fact Thesis asserts that legal validity is a function of certain social facts. Borrowing heavily from Jeremy Bentham , John Austin argues that the principal distinguishing feature of a legal system is the presence of a sovereign who is habitually obeyed by most people in the society, but not in the habit of obeying any determinate human superior.

Hart takes a different view of the Social Fact Thesis. As Hart points out, the rules governing the creation of contracts and wills cannot plausibly be characterized as restrictions on freedom that are backed by the threat of a sanction. Most importantly, however, Hart argues Austin overlooks the existence of secondary meta-rules that have as their subject matter the primary rules themselves and distinguish full-blown legal systems from primitive systems of law:.

They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined Hart , p. As we have seen, the Conventionality Thesis implies that a rule of recognition is binding in S only if there is a social convention among officials to treat it as defining standards of official behavior. The final thesis comprising the foundation of legal positivism is the Separability Thesis.

In its most general form, the Separability Thesis asserts that law and morality are conceptually distinct. This abstract formulation can be interpreted in a number of ways.

This interpretation implies that any reference to moral considerations in defining the related notions of law, legal validity, and legal system is inconsistent with the Separability Thesis. More commonly, the Separability Thesis is interpreted as making only an object-level claim about the existence conditions for legal validity. Insofar as the object-level interpretation of the Separability Thesis denies it is a necessary truth that there are moral constraints on legal validity, it implies the existence of a possible legal system in which there are no moral constraints on legal validity.

Though all positivists agree there are possible legal systems without moral constraints on legal validity, there are conflicting views on whether there are possible legal systems with such constraints. In contrast, exclusive positivism also called hard positivism denies that a legal system can incorporate moral constraints on legal validity. Exclusive positivists like Raz subscribe to the Source Thesis, according to which the existence and content of law can always be determined by reference to its sources without recourse to moral argument.

On this view, the sources of law include both the circumstances of its promulgation and relevant interpretative materials, such as court cases involving its application. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition Dworkin , p.

Nevertheless, since judges are bound to consider such principles when relevant, they must be characterized as law. There are, then, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light.

Thus, Dworkin argues, a judge should strive to interpret a case in roughly the following way:. Thus, a legal principle maximally contributes to such a justification if and only if it satisfies two conditions:.

The most familiar occasion of interpretation is conversation. We interpret the sounds or marks another person makes in order to decide what he has said.

Artistic interpretation is yet another: critics interpret poems and plays and paintings in order to defend some view of their meaning or theme or point. General theories of law must be abstract because they aim to interpret the main point and structure of legal practice, not some particular part or department of it.

But for all their abstraction, they are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice Dworkin , p.

Hart distinguishes two perspectives from which a set of legal practices can be understood. Hart understands his theory of law to be both descriptive and general in the sense that it provides an account of fundamental features common to all legal systems-which presupposes a point of view that is external to all legal systems.

For his part, Dworkin conceives his work as conceptual but not in the same sense that Hart regards his work:. We all-at least all lawyers-share a concept of law and of legal right, and we contest different conceptions of that concept. Positivism defends a particular conception, and I have tried to defend a competing conception. We disagree about what legal rights are in much the same way as we philosophers who argue about justice disagree about what justice is.

I concentrate on the details of a particular legal system with which I am especially familiar, not simply to show that positivism provides a poor account of that system, but to show that positivism provides a poor conception of the concept of a legal right Dworkin , These differences between Hart and Dworkin have led many legal philosophers, most recently Bix , to suspect that they are not really taking inconsistent positions at all.

Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law. Laws limit human autonomy by restricting freedom. Criminal laws, for example, remove certain behaviors from the range of behavioral options by penalizing them with imprisonment and, in some cases, death.

Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts. John Stuart Mill provides the classic liberal answer in the form of the harm principle:. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.

Over himself, over his own body and mind, the individual is sovereign Mill , pp. While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm. Many philosophers believe that Mill understates the limits of legitimate state authority over the individual, claiming that law may be used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior.

The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society:. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart.

A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. Devlin , p. Hart points out that Devlin overstates the extent to which preservation of a shared morality is necessary to the continuing existence of a society. While enforcement of certain social norms protecting life, safety, and property are likely essential to the existence of a society, a society can survive a diversity of behavior in many other areas of moral concern-as is evidenced by the controversies in the U.

Dworkin , p. Thus, for example, a law requiring use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider.

According to Dworkin, there are goods, such as health and education, that any rational person needs to pursue her own good-no matter how that good is conceived. Dworkin offers a hypothetical consent justification for his limited legal paternalism. On his view, there are a number of different situations in which fully rational adults would consent to paternalistic restrictions on freedom.

Jurisprudence and legal theory LA3005

The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law. Legal philosophy has many aspects, but four of them are the most common:. Apart from different types of jurisprudence, different schools of jurisprudence exist. Formalism , or conceptualism, treats law like math or science. Formalists believe that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute. In contrast, proponents of legal realism believe that most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line, realists maintain, is drawn according to the political, economic, and psychological inclinations of the judge.

Jurisprudence and Legal Theory

The module provides the opportunity for careful and rigorous study of selected topics in analytical and normative Anglo-American jurisprudence. The Module is divided in two parts: general jurisprudence Term 1 and particular jurisprudence Term 2. General jurisprudence Term 1 , broadly speaking, is an inquiry into the nature of law, and deals with some of the relevant issues such as the nature of legal adjudication, the relation between law and morality, the difference between norms and values on the one hand and natural and social facts on the other, etc. Particular jurisprudence Term 2 will explore the philosophical foundations and normative questions within specific areas of law.

This book is also available in other formats: View formats. Please note that ebooks are subject to tax and the final price may vary depending on your country of residence. Modern jurisprudence embodies two distinct traditions of thought about the nature of law. The first adopts a scientific approach which assumes that all legal phenomena possess universal characteristics that may be used in the analysis of any type of legal system.

Jurisprudence , or legal theory , is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning , legal systems , legal institutions , and the role of law in society. Modern jurisprudence began in the 18th century and was focused on the first principles of natural law , civil law , and the law of nations.

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2 Response
  1. Pete K.

    In the final section, we outline how a folk theory of law constrains both conceptual and interpretive enterprises in jurisprudence.

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