JURISPRUDENCEJURISPRUDENCE

By Dr. Myint Zan ©By Dr. Myint Zan ©

► ‘‘Definition’, Nature and Scope of Definition’, Nature and Scope of Jurisprudence Jurisprudence

►Latin term: Latin term: JurisJuris meaning “of [about] meaning “of [about] law”, law”,

►PrudencePrudence: ‘skilled’ therefore: : ‘skilled’ therefore:

► Jurisprudence: ‘knowledge about law’ or Jurisprudence: ‘knowledge about law’ or ‘study about law’‘study about law’

►Compare in a ‘colloquial sense’ Compare in a ‘colloquial sense’

►Law books v ‘Books about law’ Law books v ‘Books about law’

► Jurisprudence books would probably Jurisprudence books would probably fall into the category of ‘ books about fall into the category of ‘ books about law’ rather than ‘law books’law’ rather than ‘law books’

Compare also Compare also Asking the law question Asking the law question (Law (Law Book Company) Book Company) ISBN-10:ISBN-10: 0455212422 0455212422 a book a book authored by Margaret Davies authored by Margaret Davies

It is not ‘asking the law ‘a’ question nor is it It is not ‘asking the law ‘a’ question nor is it asking the law ‘questions’ asking the law ‘questions’

In one sense a study of the ‘In one sense a study of the ‘problematique’problematique’ (apparently a word of French origin) of law(apparently a word of French origin) of law

NOT problematic (which means ‘problem-NOT problematic (which means ‘problem-ridden’ or merely a ‘problem’ )ridden’ or merely a ‘problem’ )

►Compare: in French ‘jurisprudence Compare: in French ‘jurisprudence means’ something like ‘case law’. means’ something like ‘case law’.

► In English ‘study of law’ In English ‘study of law’

► In the English or ‘common law legal In the English or ‘common law legal tradition’ authority is valued (compare tradition’ authority is valued (compare the important role of ‘doctrine of the important role of ‘doctrine of precedent’) precedent’)

► Therefore it has been argued by some Therefore it has been argued by some academics that the emphasis and academics that the emphasis and orientation in ‘English law’ (‘Common law’) orientation in ‘English law’ (‘Common law’) encouraged ‘pragmatism’ and diminished encouraged ‘pragmatism’ and diminished the critical thinking of students the critical thinking of students

► Education which merely consists in teaching Education which merely consists in teaching ‘dogmas’ and ‘authoritative thoughts’ (but ‘dogmas’ and ‘authoritative thoughts’ (but compare religious and political concepts) is compare religious and political concepts) is ‘not worthy of name’ ( M.D.A Freeman in ‘not worthy of name’ ( M.D.A Freeman in Lloyd’s Lloyd’s Introduction to Jurisprudence, Introduction to Jurisprudence, p 3)p 3)

► But even in the study of jurisprudence the But even in the study of jurisprudence the role of ‘dogma’ or ‘ideology’ is inherent role of ‘dogma’ or ‘ideology’ is inherent

► Examples of Ideologies: ‘democracy’, Examples of Ideologies: ‘democracy’, ‘liberalism’, ‘free-market economics’, ‘liberalism’, ‘free-market economics’, Marxism, Freudianism, FeminismMarxism, Freudianism, Feminism

► Compare a book entitled Compare a book entitled Jurisprudence as Jurisprudence as IdeologyIdeology by Valerie Kerruish (Routledge) by Valerie Kerruish (Routledge) ISBN-10:ISBN-10: 0415088577 but also ideology 0415088577 but also ideology can be camouflaged as ‘Jurisprudence’ can be camouflaged as ‘Jurisprudence’

► Role and proper limits of jurisprudence could Role and proper limits of jurisprudence could well be defined ‘sub-consciously’ (Freud) well be defined ‘sub-consciously’ (Freud) by the jurist’s ‘ideology’ by the jurist’s ‘ideology’

► Jurisprudence ‘straddles’ the disciplines of Jurisprudence ‘straddles’ the disciplines of history, sociology, philosophy, psychology, history, sociology, philosophy, psychology, anthropology, and increasingly economics anthropology, and increasingly economics

(for e.g.) ‘Economic analysis of the law’ (one (for e.g.) ‘Economic analysis of the law’ (one proponent is Posner ) and politics as wellproponent is Posner ) and politics as well

Jurisprudence is also the study of general Jurisprudence is also the study of general theoretical questions about the nature of the theoretical questions about the nature of the law and legal systems, about relationship of law and legal systems, about relationship of law to justice and about the social nature of law to justice and about the social nature of law law

► Jurisprudence is connected with Jurisprudence is connected with political philosophy political philosophy

►One of the issues of political philosophy One of the issues of political philosophy pertaining to governance is ‘Why pertaining to governance is ‘Why Should [we] Obey the Law’? Should [we] Obey the Law’?

►This political philosophy though there This political philosophy though there are linkages with jurisprudential issues are linkages with jurisprudential issues can be considered as an issue in can be considered as an issue in ‘political theory’‘political theory’

► ‘‘Legal theory’ is concerned mainly Legal theory’ is concerned mainly with the question ‘What is law’ : with the question ‘What is law’ : Jurisprudence also covers this issue Jurisprudence also covers this issue and the theories of law and the theories of law

Both the political theory and the legal Both the political theory and the legal theory should constitute part of the theory should constitute part of the study of jurisprudencestudy of jurisprudence

►Philip Soper in his book Philip Soper in his book A Theory of A Theory of Law Law argued that jurists and political argued that jurists and political theorists concentrates on what is theorists concentrates on what is called the ‘the concept (or called the ‘the concept (or ‘problematique’) of obligation’ (why ‘problematique’) of obligation’ (why should we obey the law) hence should we obey the law) hence ‘political theory’ and the ‘concept of ‘political theory’ and the ‘concept of obligation’ is linkedobligation’ is linked

►Legal theorists considers the issue of Legal theorists considers the issue of ‘what is law’ ( ‘the concept of law’)‘what is law’ ( ‘the concept of law’)

► Soper argues for the need to link Soper argues for the need to link political theory and the concept of law political theory and the concept of law and the legal theory and the concept and the legal theory and the concept of obligation of obligation

►Hence the importance of political Hence the importance of political philosophy or theory in the study of philosophy or theory in the study of jurisprudence jurisprudence

Then what is ‘Philosophy’?Then what is ‘Philosophy’?

Greek word Greek word ‘Philo‘Philo’ = love of ’ = love of

‘‘Sophia’Sophia’ = wisdom = wisdom

►Love of wisdomLove of wisdom

►Random names of Eminent Random names of Eminent Philosophers in (Western) philosophy Philosophers in (Western) philosophy

►Thales, Socrates, Plato, Aristotle Thales, Socrates, Plato, Aristotle (Classical)(Classical)

►St Thomas Aquinas, St. Augustine St Thomas Aquinas, St. Augustine (Medieval) (Medieval)

►Machiavelli, Hobbes, Spinoza, Locke, Machiavelli, Hobbes, Spinoza, Locke, Rosseau and most importantly Karl Rosseau and most importantly Karl Marx (1818-1883) (Enlightenment and Marx (1818-1883) (Enlightenment and post-industrial period)post-industrial period)

►Twentieth Century Philosophers Twentieth Century Philosophers ►Bertrand Russell (1872- 1970)Bertrand Russell (1872- 1970)► Jean Paul Sartre ( 1905-1980)Jean Paul Sartre ( 1905-1980)

► Late 20Late 20thth Century ‘legal philosophers’ Century ‘legal philosophers’►H L A Hart (1917- 1992) author, among others, H L A Hart (1917- 1992) author, among others,

of of The Concept of Law The Concept of Law (first published 1961) (first published 1961) ► Lon L Fuller (1902-1978) author, among Lon L Fuller (1902-1978) author, among

others, of others, of The Morality of Law The Morality of Law (first published (first published 1964)1964)

► John Rawls (1921-2002) author among others John Rawls (1921-2002) author among others of of A Theory of JusticeA Theory of Justice (first published 1971) (first published 1971)

► Ronald Dworkin (born 1931) author, among Ronald Dworkin (born 1931) author, among others, of others, of Law’s EmpireLaw’s Empire (first published 1986) (first published 1986)

►Political philosophies and systems of Political philosophies and systems of governance: governance:

►MonarchyMonarchy►AristocracyAristocracy►TyrannyTyranny►Oligarchy Oligarchy ►DemocracyDemocracy

►Classical : In the West Plato’s in Classical : In the West Plato’s in The The RepublicRepublic (proposed an oligarchical (proposed an oligarchical form of government ) form of government )

► In the East: Confucius, Mencius, In the East: Confucius, Mencius, ►Medieval St Augustine’s Medieval St Augustine’s City of God City of God

►Analytical Legal Philosophers Analytical Legal Philosophers ►““Schools of Jurisprudence” (Classical)Schools of Jurisprudence” (Classical)►Analytical School :Analytical School :

John Austin (1790-1859); “Positvism” John Austin (1790-1859); “Positvism” Later rejected and refined by H L A Later rejected and refined by H L A Hart Hart

►Historical School:Historical School:

Carl Von Savigny (1779-1861)Carl Von Savigny (1779-1861)

► Ethical School Ethical School ► Immanuel Kant (1724-1824)Immanuel Kant (1724-1824)

► Sociological School Sociological School

Roscoe Pound (1870-1964)Roscoe Pound (1870-1964)► Socialist School Socialist School

Karl Marx (1818-1883)Karl Marx (1818-1883)

►Predominance of Analytical School in Predominance of Analytical School in the 19the 19thth and early 20 and early 20thth centuries: centuries:

►Law as separate from morals, Law as separate from morals, customs, etiquette customs, etiquette

Generally held sway among jurists till Generally held sway among jurists till about Second World War about Second World War

►Analytical Philosophy Analytical Philosophy ► In part dependent on the use of In part dependent on the use of

language to clarify thought and posit language to clarify thought and posit philosophical ideas philosophical ideas

►The golden mountain does not exist." The golden mountain does not exist." The ambiguity is that the words The ambiguity is that the words "golden mountain" may be taken to "golden mountain" may be taken to indicate a something where there is indicate a something where there is really a nothing. One might ask: "What really a nothing. One might ask: "What is it that does not exist?"is it that does not exist?"

►The answer would be "the golden The answer would be "the golden mountain," implying that it has some mountain," implying that it has some kind of reality. Bertrand Russell's kind of reality. Bertrand Russell's solution was to turn the substantive solution was to turn the substantive phrase into what he called a phrase into what he called a descriptive phrase, i.e.: "There is no descriptive phrase, i.e.: "There is no entity c, such that 'x is golden and entity c, such that 'x is golden and mountainous' is true when x is c, but mountainous' is true when x is c, but not otherwise." not otherwise."

► Analytical jurisprudence draws from some of Analytical jurisprudence draws from some of the ‘tenets’ of analytical philosophy. In one the ‘tenets’ of analytical philosophy. In one sense analytical legal philosophers would sense analytical legal philosophers would include John Austin include John Austin

► John Austin (1790-1859) who in his John Austin (1790-1859) who in his The The Province of Jurisprudence Determined Province of Jurisprudence Determined (1832)(1832)

basically defined laws (properly so-called) as basically defined laws (properly so-called) as ‘command of the sovereign’ (See pages 19-‘command of the sovereign’ (See pages 19-21 of 21 of Lloyd’s Introduction to JurisprudenceLloyd’s Introduction to Jurisprudence))

► Austin’s theory of law which can also be Austin’s theory of law which can also be expressed as ‘positivism’ (though nowadays expressed as ‘positivism’ (though nowadays in a very old and outdated form) is not, in its in a very old and outdated form) is not, in its full sense accepted by legal philosophers or full sense accepted by legal philosophers or juristsjurists

► In parts of the 19In parts of the 19thth century Austin’s theories century Austin’s theories have considerable influence however in the have considerable influence however in the 2020thth century many critiques were made of century many critiques were made of Austin ‘s ‘analytic jurisprudence’ or Austin ‘s ‘analytic jurisprudence’ or ‘Command theory of law’‘Command theory of law’

►Among those critics were H.L.A Hart Among those critics were H.L.A Hart (1907-1992) whose (1907-1992) whose The Concept of The Concept of LawLaw (first published 1961, Revised (first published 1961, Revised edition 1994) was very influential edition 1994) was very influential