Jurisprudence is a different sort of subject touching on legal theory and legal concepts. Its understanding is fairly abstruse and monotonous. Essentially, one should enter into a dialogue with the texts being read. Imagine the person who wrote the text is beside you. One should not try to learn what the other person in the text is saying, rather one should engage oneself in conversation and should either agree or disagree with what the text is saying.
Professor Twining has identified three levels on which to read a jurisprudence text:
By its very nature this is a topic whose province has been re-determined from time to time. In 1832, Austin published the first six lectures of the total of 57 he gave when first appointed as a Professor. The best of these, published in 1954 under the title The Province of Jurisprudence Determined, is edited by H L A Hart. At the end of this edition, there is a shortpiece entitled ‘On the Uses of the Study of Jurisprudence’ with which Austin originally began his lectures. In it, he sets out a number of reasons why jurisprudence should be regarded as an integral part of law teaching. He says that, there are two ways of studying the subject. There is ‘particular jurisprudence’, which is the study of the positive law of a particular legal system, and there is ‘general jurisprudence’, which is the study of ‘ the principles, notions, and distinctions which are common to systems of law’. He says that he means by ‘systems of law’:
‘… the ampler and maturer systems which, by reason of their amplitude and maturity, are pre-eminently pregnant with instruction.’
As a comparative lawyer, Austin was well versed in the European legal systems. He thought it was blind of lawyers to be concerned only with their own particular systems. What was needed was a general overall view of the structure and content of law, a view of the nature of law. Only then, he thought, could lawyers fully appreciate in practice what they were doing. To illustrate –
‘…. a previous well-grounded knowledge of the principles of English jurisprudence, can scarcely incapacitate the student for the acquisition of practical knowledge in the chambers of a conveyancer, pleader, or draughtsman. Armed with the previous knowledge, he seizes the rationale of the practice which he there witnesses and partakes in, with comparative ease and rapidity; and his acquisition of practical knowledge, and practical dexterity and readiness, is much less irksome than it would be in case it were merely empirical.
In my view, navigating into jurisprudence is like searching the heart and soul of law. It is the jurisprudence that keeps the logical relationship of law, society, culture, anthropology, politics and economics alive. It is this system through which law needs to be seen in the light of general jurisprudence which provides for an alternative vision and agenda for legal theorizing that includes creating reasonably comprehensive overviews of laws of the world. The rules of reasoning are certainly not different in law from the rules recognized in the ordinary interchange of thoughts. In this sense, the usual rules as to the concepts and conclusions remain in full force as regards legal deductions.
A remarkable feature in the formation of social and legal doctrines is the fact that the principal schools of thought arise and displace one another under the influence of actual changes in world politics, even though the material struggle for power or property was reflected in the consciousness of thinkers and contributed substantially to bring about change in the orientation of thought. Indeed, juries attending to the arguments of the parties have to be careful not to be misled by fallacies. The logical co-ordination of juridical ideas reaches a still higher level when the object is not to interpret, to apply or to formulate a rule, but to set-up a doctrine, that is, a complex of mutually dependant rules. I think that, the important feature of the “subjective idealism” taken up by the modern thinkers, who do not wish to surrender to sensualism and rationalism, forms the distinction between the formal and the material elements in morality. The imperative of duty is a category of the human mind, but the actual precepts as to the duty are not innate in any sense. Thus, the necessity for revising the comparative method is one of the lines on which the modern jurisprudence has to take up the thread of investigation. And the inference must be preceded by a careful study of individual cases where juridical analysis ought to receive more attention.
In my view, most of the lawyers and jurists demarcate their object of enquiry by speaking of “law enforced by the courts” immensely believing that ‘”Law is what the Court says” as the realists school postulated. In today’s scenario, this does not help us to comprehend as to why courts enforce this law and not all the other prospectively enforceable kinds of law. The dialogue on positive law involves an array of fundamental descriptive and normative concepts and a set of contrasts that go to the heart of philosophical jurisprudence. It is equivalently essential to the entire plan of criticism and reform of law, that, we do not confuse the existence of law with its justice. Categorically, the legal percepts must provide much more specific guidance to human law and human justice rather than moral precepts, as law must provide a clear and determinate guidelines, if, it is to coordinate numerous human endeavors.
Talking in terms of the natural school of thought, many naturalists go beyond methodological naturalism to embrace a substantive doctrine vis-à-vis the promulgation of norms by which to regulate our epistemic practices. A major impetus to the renaissance of naturalists thought in modern jurisprudence was given by the problems associated with the rise of Fascism in Europe. The invigorated consideration of naturalist principles in Western jurisprudence gave birth to the question as to the nature of law and the obligation to obey the law which was generated by the abuse of legal processes in an iniquitous state. Let us take an example of a judge who transforms a custom into a legal rule or makes a legal rule not suggested by a custom, then, the legal rule which he establishes is established by the sovereign legislature. In other words, the portion of the sovereign power lies at this disposition which is purely delegated.
The natural law tradition arose as the application of a theory of morality which emphasized man’s common moral nature to the legitimacy of the states. The question as to the legitimacy of states and their laws has become politically important for the sole reason that they empire and sought to rule over different peoples with different customs in a way that is so natural that law seemed ideally placed to provide a universal standard of justice. The Government of India’s initiative towards reformulation of law of acquisition is a clear indication of revival of natural law theory in the governance and re-established the truth that positivists command theory has its inherent limitation.
Insomuch, that the study of the general principles of jurisprudence, instead of having any of the tendency which the opinion in question impute to it, has a tendency (by ultimate consequence) to qualify for practice, and to lessen the natural repugnance with which it is regarded by beginners.’
What does Austin mean in this passage by ‘rationale’ and ’empirical’? He means that a full education in the law requires more than just empirically pocketing bits of statutes, or bits and pieces of the common law. By studying the nature of law, knowledge of how it is coherent becomes more apparent. If you do not agree with this view of Austin you should consider why you disagree. You also might consider reasons why jurisprudence is taught as part of a university degree. You might consider what a university is for and what ought to encompassed by the idea of a university education.
There are different classifications of jurisprudence. General jurisprudence is concerned with speculations about law as distinct from speculations about a specific law. There are many ways to arrange the questions that are posed in general jurisprudence. One will not find any agreed list from the literature. Questions such as the following seem to be common to most –
These are a few of the questions that are the concern of general jurisprudence. They demonstrate that general jurisprudence is the area where the work of the legal scientist overlaps with other disciplines such as the study of morality, anthropology, politics and economics. These questions make up a substantial portion of the course covered in this textbook. The student ought to be thinking about some of these questions throughout the course. Experience shows that the student’s answer will undergo a substantial change towards the latter part of the course, when the questions may be asked again.
Some of the scholars hold that general jurisprudence is of little value in instilling the technical skills of legal reasoning andargumentation. They believe that these skills come from ‘immersing oneself in substantive legal studies’. On the other hand, some of the scholars see some value in particular jurisprudence which involves speculations about particular legal concepts such as rights and duties etc. We study the various theorists because they throw light on these rather difficult topics. The perception, of course, should remain that of the reader. In a study by Kind entitled, The Concept, the Idea and the Morality of Law (1966) the author asks whether it is possible to define the object of inquiry without anticipating the result. Take the work of John Rawls. His theory of justice arrives at the conclusion that might be expected from a democratic liberal, viewing justice as fairness yet subjecting economic inequality to political equality. Did he arrive at that view only after writing his book or did he have in mind his conclusion before he set pen to paper? Our assumptions will find their way into our account of law, having a considerable influence on subsequent exposition. By reflecting on this point at an early stage the student will equip himself to deal with the plethora of literature. An easy way to test this concept is to check what assumptions an author makes in the Preface or Foreword to a work. Great insights into Hart’s and Kelsen’s work, for examples, can be made in this way.
There are, of course, problems about what is meant by defining law. It is not as if one can just look the matter up in a dictionary. One can try it and see as to what an unhelpful endevaour that is. Get into the problem of definition by examining continuously the question of what the jurists are trying to do. Hart in The Concept of Law, sets out three major reasons why he wishes to define law: he wants it to be able to answer the problems of the relationship between law and coercive orders, the difference between legal and moral obligation and thedefinition of what it means to say that a social rule exists.
We can, of course, make ourselves and other people more aware of the way we understand language which expresses the law. We could, therefore, use a dictionary as a starting point in this direction. We might follow up all the words that relate to law, like ‘rules’ and ‘norms’ and ‘mandate’ and ‘commands’. Then we could test all the possible uses of these words, trying them in different sentences and different contexts. We should also contrast lawrelated words such as ‘morals’, or ‘custom’ with other kinds of words that appear in the same sorts of contexts. In this regard one may also see what amounts to correct and incorrect use of language.
However, take the Marxists, they appreciate the difference in our linguistic practices but they are unwilling to say that the law is fundamentally different from naked coercion. They are not keen to affirm that it has any connection with the idea of obligation. They will produce thearguments that law only appears to have legitimacy because a dominant class of people have encouraged such a view to further their own economic interests. This sort of argument cannot be met by merely citing dictionary definitions. It makes a point beyond that of showing our agreement in linguistic practice. It is most significant that Hart has recognised the serious limitations of this form of approach in an admission in the Preface to his book Essays in Jurisprudence and Philosophy (1983):
“The methods of linguistic philosophy which are neutral between moral and political principles and silent about different points of view which might endow one feature rather than another of legal phenomena with significance are not suitable for resolving or clarifying those controversies which arise, as many of the central problems of legal philosophy do, from the divergence between partly overlapping concepts reflecting a divergence of basic point of view or values or background theory, or which arise from conflict or incompleteness of legal rules. For such cases, what is needed is first, the identification of the latent conflicting points of view which led to the choice of formation of divergent concepts, and secondly, reasoned arguments directed to establishing the merits of conflicting theories, divergent concepts or rules, or to showing how these could be made compatible by some suitable restriction of their scope”.
The tools of the lawyers’ trade are words. These tools are not expressible in terms of mathematical precision, yet they are the only tools available with which the lawyer will perform his function. This can be seen as the cause of many of theproblems of the law. The majority of appellate court cases concern the construction of words and phrases used in statutes. As Oliver Wendell Holmes observed, words are not crystals, they are not clear. They are capable of different meanings. Jurisprudence, according to Holmes, should be concerned with the reality of the legal experience. To that extent, definitions are useful if they correspond to the way in which lawyers actually behave and think. Otherwise a definition is of no value. Much in Jurisprudence is concerned with definitions. Indeed one of the earlier writers on this subject, John Austin, in his The Province of Jurisprudence Determined, sought by definition to determine the limits of the course of study. The problems with definitions are that they may be derived from inadequate prior knowledge and involve misconceptions formed at the outset which further burden the definition, and thirdly that they impose artificial limits on the area of study. Professor Hart has assailed the practice of building a theory on the back of definition and shown that it is preferable to engage in an essay in descriptive sociology- descriptive at least of concepts.
Hart has identified in words a core of settled meaning around which there will be no dispute and a penumbral area of doubt in which disputes will arise. Say a hypothetical law provided that all vehicles were to be taxed at £ 100 per annum. Within that core meaning would come cars and lorries, but what about a skateboard? Or a spaceship?Or a Chariot? The issue would become important when a person in control of a chariot was charged with failing to tax hisvehicle. He would not argue that the law was unjust; rather he would argue that it did not apply to chariots. The whole issue will determined on the basis of interpretation given to the words.
The same difficulty is faced in jurisprudence where many problems can be reduced to questions of semantics. For example, Hohfeld attempted to clarify some of the linguistic problems surrounding the use of the word right. Wittgenstein observed that the meaning of a word depends on the context in which it is used; the meaning of a word is its use in the language. The context will require an explanation for the whole sentence or phrase. Hence the Phrase that X owns Y will require an explanation of the concept of the ownership. Would it include the control over Y exercised by a thief? Would it include the right of a tenant to enjoy for the present exclusive possession of the property? In many instances, this approach will be satisfactory; however, even then, it will not be sufficient in all cases.
Thus, semantics and semiotics can be a very reliable tool of analysis for the understanding of a legal text.
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