Free Essay Example - Jurisprudence

Published: 2023-04-19
Free Essay Example - Jurisprudence
Type of paper:  Essay
Categories:  Knowledge Science Judicial system
Pages: 7
Wordcount: 1787 words
15 min read

The theoretical study of law is referred to as jurisprudence, and scholars have the objective of explaining the nature of law in its general form. They seek to offer an in-depth understanding of the legal reasoning, systems, and institutions and the function played by law in the society. There are different ways in which jurisprudence contributes to a detailed understanding of the law. First, it considers the nature of law defining factors and underlying assumptions that support legal practices and institutions. Second, it probes the role of law in society. Thirdly, it offers an overview of the relationship between law and other institutions in society. Fourth, it provides an overview of the meaning of laws, its fundamental concepts, and structure. Lastly, it provides appropriate tools in the examination and criticism of existing law to better understand the law. There are three main dimensions of jurisprudence and include general analytical jurisprudence, particular analytical jurisprudence, and normative jurisprudence. The study of jurisprudence is full of confusion because it is complex and challenging, encompassing abstract ideas. Its issues are an inescapable attribute of the law and legal system. For a long time, legal theory has emphasized on one goal, understanding and defining law. In this process, theorists have utilized the conceptual analysis methodology. The outcome has been claimed concerning the nature of law. However, students and scholars have experienced obstacles in understanding the importance of these claims and their rationale. As a result, this paper uses three theorists, namely Dworkin, Hart, and Durkheim, in explaining the jurisprudential issues.

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Jurisprudential Issues

Jurisprudence presents critical questions concerning the nature of law, its role in the society, and the operation of legal systems. It encourages critical thinking concerning law and its purpose. Jurisprudential issues revolve around the scrutiny, classification, and explanation of the law. The question of what is law in a specific issue is answered based on the particular jurisdiction they are asked. In comparison, the philosophy of law is concerned with the general question, what is law? According to the general question, there is the presupposition that law is a particular social-political concept possessing universal features that can be determined using philosophical analysis. General jurisprudence is, therefore, considered to be comprehensive. The premise is that law contains specific features by its very nature. However, this presumption in controversial in addition to the unclear reason for the philosophical interest. There is an intellectual interest in understanding the law, which is considered a complex social concept. However, it is regarded as a normative social phenomenon of law that seeks to control human behavior. The endeavor to illustrate the normative aspect is one of the critical issues of general jurisprudence. It is important to note that the two sources of interest concerning the nature of law are interlinked. Another issue is trying to understand how the law differs from and interacts with another similar normative sphere in society, such as religion, morality, and etiquette, among others.

It is essential to examine how contemporary legal theories explain the two fundamental interests, like law. One issue is understanding the conditions that would make putative norms to be accepted as legally abiding. It is concerned with the requirements of legal validity. The second issue is about the normative context of law, which is double-sided. First, a philosophical narrative of the normativity of law which encompasses the explanatory and justificatory activities. The illustrative aspects entail the need to define how legal norms result in the reason for the action and the types of reason in question. The justification aspect entails if people ought to adhere to law demands, which involved understanding the legitimacy of law and the need for compliance. The described issues and interests have been a matter of concern for years for theorists. It is, therefore, to explain the jurisprudential problems from the perspective of these theorists.

Jurisprudential Issues according to Hart

Jurisprudence is defined as the contemplation by lawyers and judges on their work and role in society (Brix, 2015). The relationship between jurisprudence and legal practice indicates a fixation with theoretical practice. It presents a situation whereby a professional in necessitated to adhere to a personally-constructed theoretical model to fulfill a specific role. The fixation on adjudication has adversely affected legal theory, which suggests that law is just what happens in courts rather than being the fabric of the society. Legal positivism is a school of thought of analytical jurisprudence, and its emergence and development were experienced in the 18th and 19th centuries. The primary legal thinkers at the time were John Austin and Jeremy Bentham. The emergence of positivism was due to factors such as the impact of natural law, the effect of development in physical law, and political issues. One of the significant development in this school of thought was by H.L.A Hart, who formulated positivism as utilized in law and also considers an exponent of analytical positivism. It is involved with the law as it is as opposed to what it ought to be.

Hart's most significant contribution to jurisprudence is referred to as the concept of law and encompasses the evaluation of the link between law and society. Hart's other goal involves the explanation of his thoughts of law, coercion, and morality. He postulated that law is a system that is comprised of primary and secondary rules. Hart refutes Austin's claim that rule is a type of command and replaces a more comprehensive and general analysis of what rules entail. His observation that the combination of these rules was a critical tool resulting in an appropriate general analysis of the case raised by Austin's definition of law.

Hart postulates that a rule creates an obligation, and it is a standard used to judge the rightness or wrongness of a rule. In Austin's definition of law has primary and secondary rules. The fundamental rules ensure individuals or abstain from specific actions, whether they like it or not, such as criminal law. They govern the general conduct of society and construct legal obligations and outcomes when disobeyed. For instance, there is criminal law against murder, and it forbids individuals from killing and provides the consequences for such actions. Then, there are secondary rules which confer power by providing techniques for the recognition of primary rules. As postulated by Hart, secondary rules deal with three fundamental issues of legal systems that encompass uncertainty, efficiency, and static quality issues of the law.

Different secondary rules address a specific issue. These secondary rules include the rule of recognition, of change, and adjudication. According to Hart, rules of recognition address the issue of uncertainty of the law. It is a collection of standards and factors that guide the validity of all rules. Therefore, this rule validates other rules, thereby confers power to them. There is the rule of change that addresses the issue of static quality of law, which bestows and prohibits the power of creation and alteration of rules, whether primary or secondary. These rules change in complexity, such as being limited to specific cases, defining individuals to legislate, and the procedures to be adhered to. Hart explains there exists a relation between rules of change and those of recognition in that in the existence of rules of change, those of recognition provide a reference as an identifying characteristic of the rule. Lastly, there is a rule of adjudication whose objective is addressing the inefficiency of the present social pressure. It provides powers to people to authoritatively determine whether primary rules have been broken. They usually govern the procedures of the judiciary, in supplement with the rules of recognition. It is essential to understand that, according to Hart, the encompassment of the primary and secondary rules is critical to the science of jurisprudence.

Overall, according to Hart, rules are developed in a manner that addresses issues as to how they are done and not how they will happen. This implies that rules are imperative and lack the indicative aspects of them. Also, Hart claims that rules are independent, and they somewhat tend to limit or self-legitimize characters. In other terms, Hart identifies rules as entities that define different activities regardless of their occurrence. Therefore, the social rules, unlike legal rules, are crafted in a manner that is only open to amendments by institutions that are solely granted the mandate to tailor them in ways that complement and regulate the activities of the respective society. This means that social issues are resolved interpretively as dictated by the governing institution. Any complexity that is encountered during the interpretation process is subject to adjudication to structure the rule appropriately. Contrary, legal and moral rules, as Hart notes, are not subject to interpretation and adjudication, and any encountered difficulty is not subject to legislative alteration. In other terms, Hart implies that moral and law issues are invitum and command respect and adherence form everyone. Otherwise, any action against the set rules is resolved by punishing the offenders based on the stipulated set of actions.

Jurisprudential Issues according to Dworkin (Natural Law)

Jurisprudence according to Dworkin For a long time, the opinions of judges have been used to address the gaps left by rules. Austin and Hart focus on the positivism jurisprudence, which emphasizes the role of judges in the exercise of the law. However, this was criticized by Ronald Dworkin, which later come to be known as the Hart/Dworkin debate. Dworkin, when examining jurisprudential issues, identified the critical question, which was "What, in general, is a good reason for a decision by a court of law?" (Reeves, 2015).

In his theoretical explanation, Dworkin identified reason as one of the primary factors that legal practitioners should take into considerations in the legal process. Reason, as Dworkin claims, provides a sound and viable basis upon which judges and lawyers can use to structure a rigorous and legal decision while taking into account its implications. In other terms, Dworkin's legal theory provides a basis that facilitates the proper and legal decision-making process by addressing the moral challenges that hindered the legal decision-making process. To have a reason for the law, Dworkin stated that the right entities needed to contemplate ad familiarize themselves with crucial aspects of the law. For instance, legal practitioners, such as judges, should first understand what is to have a reason for the law and its implication to both the officials and subject. Also, Dworkin postulated that it was also necessary for the legal officials to understand how legal norms are handled and treated by the practical reason of not only the officials but also the subjects. By having a clear understanding of the two aspects, judges can facilitate the formulation and implementation of the right decisions, which plays a critical role in structuring and shaping societal norms.

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