Jurisprudence 1.1. General Introduction
Topic 1: THE NATURE AND MEANING OF JURISPRUDENCE
“Jurisprudence” in Latin: “Jurisprudentia” means knowledge of law. “Juris” which means law and “prudence” which means wisdom. Juris+prudence= Knowledge/wisdom of the law. Jurisprudence is concerned with law at a high level of abstraction. It tries to understand and appraise the law.
Oliver Wendell Holmes: “jurisprudence… is simply law in the most generalized part”. Stone: “jurisprudence is the lawyer’s examination of precepts, ideas and techniques of law”. Llewellyn: “careful or sustained thinking about any phase of things legal”. Freeman (in Lloyd’s Introduction to Jurisprudence) said that jurisprudence involves theoretical questions about the nature of laws. It has been noted that every jurist is a lawyer but not every lawyer a jurist.
The scope of jurisprudence cannot be precisely determined.
Topic 1.1: DISTINCTION BETWEEN JURISPRUDENCE AND LEGAL THEORY:
This distinction is such an academic exercise that doesn’t solve any real problem.
Legal theory is the study of the various philosophies of law while jurisprudence itself can be regarded as the philosophy of law. According to Jerome Hall; jurisprudence looks at the general idea, theories and characteristics of law while legal theory is concerned with the particular theory/philosophy of law. Patterson also notes that jurisprudence consists of general theories of law while legal theory focuses on the particular theories. Jurisprudence describes the main universal concept inherent in legal theory. Jurisprudence is abstract, general and universal while legal theory is concrete, specific and particular. Lord Denning once remarked; “jurisprudence is too abstract for my liking”.
Legal theories are mere applications of existing rules to present situations but jurisprudence requires abstract philosophical considerations. E.g. Actus non facit nisi men sit rea. A theory which states that a crime needs both mental element and physical act. Legal theory would apply this to the facts of a case. E.g. A stabs B multiple times with a dagger and B dies. Legal theory applies the theory and A is said to have “actually” and “intentionally” killed B. However, jurisprudence would look at the fact and still ask; did A intend to kill B or another person? Did B die as a result of injuries from the dagger? Would it be just and fair to convict A? in convicting A should the court exercise discretion and reduce the sentence? Bla, bla, bla.
In fact, legal theory can be regarded as falling within the ambit of jurisprudence. Jurisprudence being broader.
Topic 1.2: JURISPRUDENCE: THE PHILOSOPHY OF LAW OR THE SCIENCE OF LAW?
Philosophy seeks to discover the nature of things. Science also tries to discover the scientific truth. Therefore, philosophy and science appear to be similar. To answer the above question, we need to discuss a little about Philosophy and Science and then conclude on the appropriate field which jurisprudence should fall under.
Topic 1.2.1: UNDERSTANDING PHILOSOPHY AND ITS INFLUENCE ON JURISPRUDENCE:
Cynthia, in her Note Series on Jurisprudence remarked that jurisprudence just like philosophy contains more basic questions than it can settle. Philosophy is the mother of knowledge. Philosophy literally means “the love of wisdom”. The search for self-understanding. Socrates noted that “the unexamined life is not worth living… man know thyself”. Plato also remarked: “he who sees with his eyes is blind”.
In the beginning all courses/subjects fell under philosophy (including Sciences). However, certain subjects began to concretise and separate from philosophy. The fields of philosophy and their contributions to the law shall be appraised: They include:
- Logic: deals with finding out the truth through the use of various techniques. It studies how one ought to think if he were rational. It has been argued that most lawyers employ logical rules like syllogism when framing their arguments. Also the classification of Law into tort, crime, contract, etc. is very similar to the logician’s use of mnemonic for easier application. The use of Judicial precedents and ratio decidendi in law follows logic. This shows that logic has a place in the law[1].
- Ethics[2]: deals with “values”. Good or bad, virtuous or vicious- Admonitions as to how men ought to behave. Ethics requires virtue[3]. Law just like ethics looks at the motive and intention[4]–U.S V Dotterweich[5] “knowingly”… Just like Ethics, Law takes note of the harmful consequences of an act e.g. the doctrine of actus reus. Therefore, ethics has contributed to law.
- Semantics/Semionics: The theory of meaning. Deals with the meaning of words, terms and symbols. It deals with communication. Semantics (theory of meaning) is divided into three.
- The psychological theory of meaning: looks at the mental message passed by communication. Here there is the –Utterer (person talking) –Symbol (the word(s)) –Referent (what it refers to) –The Utteree (the person that hears the utterer)[6].
- The Operational Theory: scientific in nature. It posits that a statement is meaningless until it can be verified/tested by experimentation. Hohfeld for example introduced the concept of Legal Relations (Jural correlatives and Jural Opposites) which serves as a scientific way of ascertaining concepts like “right” “duty”, “priviledge” and so on.
- Nominalism: Labelling things with a name. E.g. Criminal Law, toothbrush, toilet roll.
- Realism/Ontological Meaning: tries to capture the essence/characteristics of things. Plato says that one can only truly see where one sees things in terms of their “eternal essences”
- Instrumentalism/Teleology: Describes the use to which a thing is being put. A pen is used to write. If it stops writing, should it still be regarded as a pen?
- Contextual Theory: That meanings vary from context to context. E.g Battery (for phone) – battery(touching of another without consent), damages(spoils)-damages(amount of compensation paid to the plaintiff), advance (loan)-advance(to move forward). E.t.c. Therefore, as was noted in Smith V Lewis “not all legal terms can have a fixed meaning”. Same point noted in Cross V British Oak Ins Co. Although in De mott V National Bank of New Jersey, the court noted that this does not mean that legal terms are mere labels. Their meanings can be deciphered based on the context in which they are used. E.g. “Wale, kindly give me your battery”. Or “I’m suing Wale for battery”.
- Conceptualism: reducing a thing to a concept in the mind with no physical contact.
Since the law needs to be effectively communicated, Semantics has a place in law.
- Metaphysics: Deals with the ultimate nature of being or existence. Metaphysics, looks at the Status of universals (which consists of symbols, ideas in the mind and objects in the existential world outside the mind).
- Empiricism: Deals with and advocates methodology… experimentation. Verifying statements, ideas, concepts and so on through testing.
- Aesthetics: is the theory of beauty or theory of the beautiful. Has very little influence in law. Although Professor Llewellyn notes that “a craftsman-like judicial opinion is a thing of beauty”. Anyhow sha, aesthetics has little or no significant role in the law.
- Epistemology: “the theory of knowledge”. It is the branch of philosophy that discusses knowledge. Seeks to understand the nature of knowledge… the concept of truth. Divided into. Ontology (which deals with the characteristics and essence of things) and teleology (which deals with the use a thing is put to).
Socrates and Theodorus were involved in a discussion on the distinction between a philosopher and a lawyer. Socrates said that a lawyer speaks from both sides of the mouth, is always in a hurry to win his case and thrives on monopoly of ideas and legal principles. Meanwhile, a philosopher tries to reason and takes his time to examine the propriety of a particular issue.
1.2.2 UNDERSTANDING SCIENCE AND ITS INFLUENCE ON THE LAW:
Sir Allen once remarked that jurisprudence is “the scientific synthesis of law’s essential principles”. Science may be divided into social and physical science (like chemistry, physics and so on). Social Science deals with human behaviour while physical sciences studies non-living phenomena. Scientific laws are descriptive (tells you the relationship between phenomena and what would happen in certain circumstances.) rather than normative (tells you what you should and should not do… followed with sanction for disobedience).
Since law applies to humans, it falls under social science. A social science deals with verified observation of man’s social conduct. The content of law is influenced and partly determined by what goes on in the society…. This influences the lawmaker. Since law has sanction, it means it can be verified/proved just like social science. The making and enforcement of law has effects on the behaviour of men in a society… these effects can be factually investigated.
Social science is divided into:
- Political Science: The science of government. Concerned with the structure of government, how it functions, the advantages and disadvantages to the citizens, freedom right and enforcement of the state and its citizens. These are also part of Jurisprudence’s concerns. In fact, (initially) law and politics were fused. However, over time, the legal profession began to crystalize and became independent from the state or politics.
- Economics: has shaped the law. Looking at laws like CAMA, Bofia, Insurance Act, Foreign Exchange Laws, etc. we notice some economic undertone. Even Adam Smith regarded his work; Wealth of Nations as a work on political economy or jurisprudence.
- Anthropology: Study of human kind, its culture and development.
- Social Psychology: deals with the mental aspect of human life.
- Sociology: A famous writer describes sociology as the “residual legatee” of social sciences. It treats other parts of the social sciences that were not catered for by political science, economics or antropology. It deals with folkways, economic organization, industrial corporations, labour unions, mores of society and moral questions. Sociology has contributed to law, e.g. the Criminalisation theory, introduction of the Juvenile Justice System, and so on.
1.2.3 The Scientific Method compared with Legal Method.
The scientific method is thus:
Step 1: A hypothesis is formed: This is what the scientist proposes to explain certain occurrence.
Step 2: An experiment is conducted: The experiment seeks to validate the truth or falsity of his proposition.
Step 3: A theory is formulated: if the experiment shows that the hypothesis/postulation is true, then it becomes a theory.
The Legal Method: we make use of reasoning and logic. The logic here may be deductive (syllogism) or inductive. Deductive involves arguing from the general to particular while inductive logic is vice versa.
An example of syllogism is:
- All men are mortal.
- Yinka is a man.
- Therefore Yinka is mortal.
Deductive logic is mostly used in applying statutory provisions. E.g. Section 83 of the Criminal Code prohibits people from fighting in public. -Yemi and Donald fought in a public place. -Yemi and Donald have broken the law. In practice it is not as straightforward as this tho.
From all the above, we can conclude that although concerns of jurisprudence can be found in both philosophy and sciences, the scale weighs in favour of placing jurisprudence under philosophy moreover, since philosophy is the mother of all knowledge, it would be more appropriate to call jurisprudence the philosophy of law.
[1] Although Roscoe Pound criticised the application of logic to law as it tends to make law stereotyped and mechanistic.
[2] Ethics is not the same as morals. Ethics relates to an individual while morals relates to attitudes and practices which prevail in any given society or class of society-T. V. Smith(Encyclopedia of Social Sciences). You say ethics of Mr John and Morals of the Eskimos/Lagosians.
[3] So does a host of Laws. E.g. The Petition of R, Various Sections of the 1999 Constitution which disentitle person of immoral character (or one that has been convicted for an offence involving fraud) from contesting for certain posts., and a host of cases decided on equitable principles.
[4] Although some rules (like strict liability) does not look at intention.
[5] So does a host of laws. See US V Dotterweich.
[6] Effective communication occurs where the utteree has the same referent in mind as that which the utterer has in mind-Ogden and Richards.
