LLB 214 - JURISPRUDENCE

R.E. Kapindu
2023
The meaning and nature of
Jurisprudence
• The term ‘jurisprudence’ is derived from two Latin words:
➢juris—meaning ‘of law’, or ‘about law’, and
➢prudens—meaning ‘skilled’.
• Some call it “the theory of law” or “philosophy of law.”
• Jurisprudence seeks to understand the nature of law, its
purpose, and how it should be applied.
• Jurisprudence delves into the fundamental concepts and
theories that underpin the law. It addresses questions
such as the relationship between law morality, law and
justice, and generally the role of law in society.
The meaning and nature of
Jurisprudence (Cont.)
• Jurisprudence engages in philosophical inquiries to
understand the nature of law and legal concepts. It
explores topics like legal positivism, natural law theory,
legal realism, legal formalism, and legal interpretation.
• Jurisprudence considers the social, political, and
historical factors that shape law and legal systems.
• It examines how law interacts with society, power
dynamics, social change, and the impact of legal
decisions on individuals and communities.
The meaning and nature of
Jurisprudence (Cont.)
• Thus jurisprudence plays a crucial role in shaping legal
thinking, policy-making, and the development of just and
effective legal systems.
• Legal theory, which is an integral part of jurisprudence,
provides the tools and methodologies for legal
professionals and scholars to analyze and interpret legal
texts, resolve ambiguities, and apply the law to specific
cases.
The meaning and nature of
Jurisprudence (Cont.)
• Legal theory plays a crucial role in critiquing existing
legal systems and advocating for legal reform. By
engaging with different legal theories, scholars and
activists can identify flaws, inconsistencies, and
injustices within legal systems. For example, critical legal
theory examines how power dynamics and social
structures influence the creation and application of law,
aiming to uncover hidden biases and promote social
justice. Legal theory provides a basis for challenging
unjust laws, proposing alternative legal frameworks, and
advocating for legal change.
The meaning and nature of
Jurisprudence (Cont.)
• A study of jurisprudence encourages the student to
question assumptions and to develop a wider
understanding of the nature and working of law.
• Jurisprudence applies rational techniques of the
discipline of philosophy to the subject matter of law.
• Philosophy consists in raising fundamental questions
about issues, concepts, phenomena, experiences, etc; and
seeking the truth.
The meaning and nature of
Jurisprudence (Cont.)
• In jurisprudence, we raise such questions as:
• What is law?
• What is justice?
• What is punishment and why do we punish people?
• What are rights and how are they conceived in society?
• …and the like.
 The meaning and nature of
Jurisprudence (Cont.)
• According to Lloyds on Jurisprudence (2014), “The hard-headed and
pragmatic attitude of common lawyers to the law and the absence of any
philosophical tradition informing legal education or the practice of law
in common law countries have tended to provoke scepticism towards
theory among judges, legal practitioners and even academic lawyers.”
The meaning and nature of
Jurisprudence (Cont.)
• According to Lloyds, this is a skepticism “which may be shared by
law students.”
• The learned authors of Lloyds add that:
• “This has been considerably reinforced by the fact that it is only in
comparatively recent times that legal education has established itself
in English universities. Law was previously taught under an
apprenticeship system. The lawyer was expected to apply himself to
the problems of clients without pausing to explore or speculate upon
what the law was about; what was or should be the role of the law and
the lawyer in society; whether it was capable of responding to
contemporary needs.” (Lloyd’s, 2014)
The meaning and nature of
Jurisprudence (Cont.)
• Any serious academic discipline must entail instilling in the
student a capacity for critical thought.
• The deep concern of English law with the concept of
“authority” has encouraged pragmatism and diminished
critical faculties of students.
• Education which consists simply in the instilling of dogma,
authoritative though it may be, is hardly worthy of its name.
(Lloyd’s, 2014) – endorsing Kahn-Freund.
The meaning and nature of
Jurisprudence (Cont.)
• “It is well accepted that judges must give reasoned decisions.
But what constitutes good reasons? In the run-of- the-mill
cases there is a straightforward answer: there is statutory
authority or the case clearly falls within an existing precedent
which cannot be rationally distinguished from it. But what of
the “hard case”, what happens when the law appears to have
gaps?” (Lloyd’s, 2014)
The meaning and nature of
Jurisprudence (Cont.)
• In summary, jurisprudence affords the student an opportunity to
reflect, in a disciplined and critical way on:
➢the meaning and nature of law;
➢the structure and functions of law ;
➢the legal institutions and systems;
➢the nature of legal reasoning and discourse, and/or;
➢the relationship between law and justice;
➢the connections between law and morality and/or;
➢the law and other human relationships and characteristics.
Analytical Jurisprudence vs
Normative Jurisprudence
• John Austin distinguished between analytical
jurisprudence and normative jurisprudence.
• Analytical jurisprudence is concerned with the logical
analysis of the basic concepts that arise in law- e.g.,
rights, duties, responsibilities, and the concept of law
itself, among others.
Analytical Jurisprudence vs
Normative Jurisprudence (Cont.)
• E.g. In Donoghue vs Stevenson [1932] AC 562– Per Lord
Atkin:
• “The liability for negligence, whether you style it such or
treat it as in other systems as a species of “culpa”, is no
doubt based upon a general public sentiment of moral
wrongdoing for which the offender must pay. But acts or
omissions which any moral code would censure cannot in
a practical world be treated so as to give a right to every
person injured by them to demand relief. In this way rules
of law arise which limit the range of complainants and the
extent of their remedy.”
Analytical Jurisprudence vs
Normative Jurisprudence (Cont.)

• Normative jurisprudence is concerned with the rational

criticism and evaluation of legal practices and norms.
• E.g., when we reflect and realize that it is possible for
certain laws (e.g.Nazi holocaust era laws in Germany) to
require conduct that is immoral, we realize that law and
morality are in some sense different even if closely
related.
• So rational criticism and evaluation of the nazi era laws is
an enterprise in normative jurisprudence.
Analytical Jurisprudence vs Normative
Jurisprudence (Cont.)
• Oppenheimer v Cattermole [1976] A.C. 249; see also F. Mann
(1973) 89 L.Q.R. 194.
• A German Jewish refugee was deprived of his German
nationality by a Nazi decree. The question (over 30 years
later) was whether an English court should regard him as
effectively deprived of his German nationality. If so, he
would be unable to claim dual nationality entitling him to
exemption from United Kingdom tax on a pension paid by
the Federal Republic of Germany. The Federal
Constitutional Court [in Germany] had decided in 1968 that
the law was so obviously inconsistent with fundamental
principles of justice as not to be regarded as valid law, but
that a person was not to be treated as a German unless he
applied for renaturalisation.
Analytical Jurisprudence vs
Normative Jurisprudence (Cont.)
• The House of Lords accordingly felt itself bound to hold
that Oppenheimer had lost his German citizenship in
1949 (the date of the German Basic Law) since he never
applied for renaturalisation. Obiter views were expressed
as to whether, apart from the renaturalisation provision,
an English court would have upheld the deprivation of
nationality under the Nazi decree. A majority favoured
rejecting this argument, reliance being placed on public
policy. But Lord Cross also said that to his mind “a law of
this sort constitutes so grave an infringement of human
rights that the courts of this country ought to refuse to
recognise it as a law at all”. [1976] A.C. 249, 278.
Descriptive Laws vs Prescriptive
Laws
➢descriptive laws -statements of how things, as a matter
of fact, regularly do happen. The so-called "law of gravity"
is an example of a descriptive law.
➢prescriptive laws -authoritative statements about what
should or ought to happen or about what should or ought
to be permitted to happen.
➢prescriptive laws and systems of prescriptive laws, are
the object of study in jurisprudence (the philosophy of
law). Descriptive laws are examined in the philosophy of
science.
Descriptive Laws vs Prescriptive
Laws (Cont.)
• As clear as the distinction between descriptive laws and
prescriptive laws is, the two senses of "law" are still
sometimes confused.
• Some people, for example, are inclined morally to
condemn certain sexual practices (e.g., oral or anal
copulation) as “contrary to the laws of nature” or simply
“unnatural” in order to support their belief that these
practices are evil and should be punished by the criminal
law. But the critics ask: when they speak here of
“contrary to natural law”, what in the world can they
possibly mean by this phrase? Or what is “nature”, or
what is and who defines “the order of nature”?
Descriptive Laws vs Prescriptive
Laws (Cont.)
• Surely they do not mean that such acts cannot naturally
happen, that such sexual acts are like acts of changing
water into wine, contrary to descriptive laws of nature in
the sense that their occurrence would be a miracle.
Does "contrary to laws of nature" then mean "statistically
infrequent"? If so, then the claim is clearly descriptive
and one can draw no moral or other evaluative or
prescriptive conclusion from it.
• They ask: (Artistic creativity and genius are statistically
infrequent. Does that make expression of these traits
immoral?)
Descriptive Laws vs Prescriptive
Laws (Cont.)
• Suppose then that these persons mean something
prescriptive when they say “laws of nature.” We
might then well ask them what authority prescribes
that nature - is there perhaps a cosmic legislature?
• Some scholars therefore argue that if, as is most
likely the case, by “contrary to nature”, these people
really mean something like "contrary to my religion’s
interpretation or understanding of God’s commands,”
then they should simply say this and avoid all the
confusing and ambiguous references to laws of
nature
THEORIES OF LAW
 Natural Law
• Law is a fundamental requirement of human life in
society.
• Natural Law theory generally comprises an approach
which seeks to explain law as a phenomenon whose
existence is an expression of some higher law, to
which it must necessarily approximate.
• Natural Law is based on value judgments which
emanate from some absolute source and which are in
accordance with nature and reason.
 Natural Law (Cont.)
• The principles of Natural Law are immutable,
eternally valid and can be grasped by the proper
employment of human reason.
• According to natural law theorists, these
principles are universal and, when grasped, they
must overrule all positive law, which will not
truly be law unless it conforms to Natural Law.
 Natural Law (cont.)
• Secular theories proceed from the premise that
humans have a certain conception of morality
which is intrinsic to them and to their nature.
• These principles are identifiable through the
application of reason, which is a faculty or
capacity that all humans have, enabling them to
understand the universe.
 Natural Law Secular theories (cont.)
• The principles make humanity tend towards the
virtues, such as justice and kindness, and away
from the vices, such as malice and violence.
• Such principles, then, ought to form the proper
basis for law-making and, to this extent, they
constitute a ‘higher law’ to which all human laws
must strive to conform.
 Natural Law Secular theories (cont.)
• Many Natural Law theorists have a teleological
view of the universe and of human society.
• The purpose of human laws is to provide for the
attainment of the ultimate state of perfection in
accordance with the principles of Natural Law
 Natural Law Secular theories (cont.)
• Therefore, human laws must be constantly
evaluated in light of the principles of Natural
Law, which specify the proper path towards the
ultimate state of perfection and which, in turn,
provide humans with a proper basis for their
morality and law.
• Article I All human beings are born free and equal in
dignity and rights. They are endowed with reason and
conscience and should act towards one another in a
spirit of brotherhood
 Natural Law Secular theories (cont.)
• The important question concerning the nature of
law is, therefore, not what the law is at any point
in time, since this may not be a true reflection of
the principles of Natural Law, but what the law
ought to be, in order for it to be a true reflection
of such principles.
• the validity or otherwise of laws must be judged
in accordance with the extent to which they
accord with natural laws.
 Natural Law Secular theories (cont.)
• A law which substantially deviates from these
principles is not only a bad law, but can be
regarded as invalid as well, since it does not truly
reflect the model of what law ought to be.
Theological premises of natural law
 Classical Philosophy: Socrates
• Socrates (470–399 BC) and Plato (428–348 BC)
argued that there were principles of morality
which it was possible to discover through the
processes of reasoning and insight. Law based on
these principles would thus be the product of
correct reasoning.
Classical Philosophy: Plato
• Plato further developed the ‘idea’ of justice as an
absolute ‘thing in itself, having qualities of truth and
reality higher than those of positive law, which could
then be seen as a mere shadow of real justice. Law must
constantly strive to approximate to the absolute idea of
justice, and ideal justice could only be achieved or fully
realised in an ideal state, ruled over by philosopher-
kings, who would be capable of grasping the absolute
idea of justice.
 Classical Philosophy: Aristotle
• Aristotle (384–322 BC) recognised nature as the capacity for
development inherent in particular things and aimed at a
particular end or purpose, both in relation to physical and
moral phenomena. He also made a distinction between:
• (a) Natural justice, common to all humanity and based on
the fundamental end or purpose of human beings as social
and political beings, which he concluded to be the
attainment of a ‘state of goodness’.
• (b) Conventional justice, which varies from state to state in
accordance with the history and needs of particular human
communities.
 Cicero
• Cicero (106–43 BC) argued that nature provided rules
by which humanity ought to live; these rules, which
could be discovered through reason, should form the
basis of all law.
• “True law is right reason in agreement with nature, it is
of universal application, unchanging and everlasting; it
summons to duty by its commands and averts from
wrongdoing by its prohibitions… It is a sin to try and
alter this law, nor is it allowable to repeal any part of it,
and it is impossible to abolish it entirely.”
 Cicero (Cont.)
• “Nor will it be one law at home and a different one at
Athens, nor otherwise tomorrow than it is today; but
one and the same law, eternal and unchangeable,
binding all peoples and all ages; and God, its designer,
expounder and enactor, will be, as it were, the sole ruler
and governor of all things.” - De Legibus
• Cicero established the view that an unjust law is not
law, arguing that a test of good law was whether it
accorded with the dictates of nature.
 The Stoics
• The Stoics identified nature with reason, arguing
that reason governs all parts of the universe and
that humans, as part of the universe and of
nature, are also governed by reason. People will
therefore live ‘naturally’ if they lived according to
their reason.
Medieval times - St Thomas Aquinas (1224–74).
• Aquinas divided law into four categories:
• (a) Eternal law—which constitutes God’s rational guidance of all created
things and is derived from the divine wisdom and based on a divine
plan.
• (b) Divine law—that part of eternal law which is manifested through
revelations in the Christian scriptures.
• (c) Natural Law—which describes the participation of rational creatures
in the eternal law through the operation of reason.
• (d) Human law—which is derived from both divine law and Natural
Law and which is, or must be directed towards the attainment of the
common good. This law may be variable in accordance with the time and
circumstances in which it is formulated, but its essence is to be just. Thus,
lex injusta non est lex (an unjust law is not law).
St Thomas Aquinas (Cont.)
• For Aquinas, a human law would be unjust where it:
(a)furthers the interests of the lawgiver only;
(b)exceeds the powers of the lawgiver;
(c)imposes burdens unequally on the governed.
• Under these circumstances, disobedience to an unjust law
becomes a duty.
• However, such disobedience, though justified, should be
avoided where its effects would be to lead to social
instability, which is a greater evil than the existence of an
unjust law.
Secularised natural law: Hugo Grotius

• One of the main secular Natural Law theorists at this

stage was Hugo Grotius, a Dutch statesman and jurist
who, in his writings, sought to separate Natural Law
from its narrow theological foundations. Instead,
Grotius emphasised the classical explanation of Natural
Law as being grounded in the authority of reason based
on the Aristotelian system— that is, that Natural Law
principles are derived or derivable from the nature of
the human intellect, which requires and desires society
to be peaceful.
 Hugo Grotius (Cont.)
• These principles are independent of divine
command, and it is possible to have Natural Law
without appealing to God. Any law contrary to
the principles so derived would be invalid from
the point of view of rationality, and laws could be
seen as having a constructive and practical
function—the creation and maintenance of a
peaceful society.
 Other thinkers
• Thinkers like Charles de Montesquieu (1689–1755),
David Hume (1711–76) and Adam Smith (1723–90)
criticized Natural Law theory for its assertion that there
was some ultimate, metaphysical purpose to human
existence and human society, separate from the moral
and physical realities of everyday life.
• Hume especially attacked the a priori reasoning behind
most Natural Law thought, especially what he regarded
as being the irrational attempt to derive ought
propositions from is propositions.
19th Century – further departure from natural
law
• Hegel, sought to deify the State, which he regarded as an end in
itself, an absolute sovereign whose essence derived from the
laws of history and was, therefore, not subject to some external,
higher law.
• Positivist approaches to law, as expounded by such theorists as
Jeremy Bentham and John Austin, which sought to place a strict
separation between the two notions of what the law is and what
it ought to be. Law and morality could and, indeed, should be
kept separate, and the principles of Natural Law were regarded
as belonging more to the realm of morality than to that of law.
 20th Century - The revival of Natural Law
theory
• The notion that there must be a higher set of principles,
separate from the positive law, which the latter must
satisfy if it is to be regarded as valid law.
• The horrors of the two world wars
• The Holocaust
• Advent of the modern human rights movement (1945
to date)