PREVIEW JURISPRUDENCE AND LEGAL THEORY I
“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?
In fact, legal theory can be regarded as falling within the ambit of jurisprudence. Jurisprudence being broader….. THIS IS THE PREVIEW VERSION. KINDLY DOWNLOAD THE NOTE.