Jurisprudence

Introduction-1
Meaning of Jurisprudence
• The term “jurisprudence” comes from the Latin word “juris-
prudentia,” which translates to “knowledge of law” in its broadest
sense.
• Specifically, “juris” means law and “prudentia” means skill or
knowledge.
• Therefore, jurisprudence refers to the understanding of law and its
practical application.
Meaning of Jurisprudence
• Jurisprudence is the study and theory of law, particularly the
philosophy of law.
• It involves examining the fundamental principles and concepts of law,
the role and function of law in society and the methods and
techniques used to interpret and apply the law.
Meaning of Jurisprudence
• Jurisprudence explores the nature of law, legal systems and legal
institutions and seeks to understand the social, political and cultural
contexts in which law operates.
• It is a broad field that encompasses a range of perspectives, including
legal positivism, natural law, legal realism and critical legal studies.
• Through the study of jurisprudence, scholars and practitioners seek to
develop a deeper understanding of the law and its role in shaping
society.
Definition of Jurisprudence
• Oxford Dictionary defines ‘Jurisprudence’ as the systematic and
formulated knowledge or the science of human law.
Legal Realism
• Legal realism is also thought of as a naturalistic approach to law in
that jurisprudence should emulate the methods of natural science;
that is, it should rely on empirical evidence and hypotheses that have
been tested against the reality of the world, rather than rely on
theoretical assumptions about the law.
• According to Legal Realism, when deciding cases judges should
consider not only abstract rules, but also social interests and public
policy.
Legal Formalism
• Legal formalism refers to an approach to jurisprudence that emphasizes
the discovery of legal principles through logical analysis, and the
application of those principles to the facts of a case.
• Formalists believe that by applying a consistent set of legal rules to a
given case, sound legal decisions will be the outcome of logical
deduction.
• Legal formalism differs from legal realism, as it does not consider the
social interests and public policy ramifications of rulings-legal formalism
is an attempt at creating a rational and scientific legal system, absent
of political considerations.
Legal Formalism
• Proponents of legal formalism argue that legal formalism is necessary
to maintain the separation of powers.
• By limiting judges to adjudicating what the law currently is, rather
than on what the law ought to be, legal formalism prevents the
encroachment of judicial powers into the powers of the legislative
and executive branches.
• Critiques of legal formalism argue that this approach is ill suited to
resolve injustice or promote fundamental rights.
Critical Legal Theory or Studies
• Critical legal studies (CLS) is a theory which states that the law is
necessarily intertwined with social issues, particularly stating that the
law has inherent social biases.
• It was officially started in 1977 in the USA.
• Proponents of CLS believe that the law supports the interests of those
who create the law.
• As such, CLS states that the law supports a power dynamic which
favours the historically privileged and disadvantages the historically
underprivileged.
CLT or CLS
• CLS finds that the wealthy and the powerful use the law as an
instrument for oppression to maintain their place in hierarchy.
• Many in the CLS movement want to overturn the hierarchical
structures of modern society and they focus on the law as a tool in
achieving this goal.
Legal Pragmatism
• Legal pragmatism is a theory critical of more traditional pictures of
law and, more specifically, judicial decision-making.
• The classical view of law offers a case-based theory of law that
emphasizes the universal and foundational quality of specifically legal
facts, the meticulous analysis of precedent and argument from
analogy.
• Legal pragmatism emphasizes the need to include a more diverse set
of data and claims that law is best thought of as a practice that is
rooted in the specific context at hand, without secure foundations,
instrumental, and always attached to a perspective.
Utilitarianism
• Utilitarianism is an ethical theory that determines right from wrong by
focusing on outcomes.
• It is a form of consequentialism.
• Utilitarianism holds that the most ethical choice is the one that will
produce the greatest good for the greatest number.
Legal or Rule Utilitarianism
• The legal rule-utilitarianism principle says that a decision is right if it is
based on that rule whose employment would have best
consequences for the majority.
• In searching for the ideal rule for a given case, the rule-utilitarian
judge is expressly not limited to the statutes and precedents which
the legal system already has-he should look for what would be best
for the majority.
Legal Rationalism
• Legal rationalism is the view that "regards reason as the chief source
and test of knowledge" or "any view appealing to reason as a source
of knowledge or justification", often in contrast to other possible
sources of knowledge such as faith, tradition, or sensory experience.
• More formally, rationalism is defined as a methodology or a theory "in
which the criterion of truth is not sensory but intellectual and
deductive"
Empiricism
• Empiricism is an epistemological view which holds that true
knowledge or justification comes only or primarily from sensory
experience.
• It is one of several competing views within epistemology, along with
rationalism and skepticism
Scepticism or Skepticism
• Scepticism, also spelled skepticism in American English, is a
questioning attitude or doubt toward knowledge claims that are seen
as mere belief or dogma.
• For example, if a person is sceptical about claims made by their
government about an ongoing taxation then the person doubts that
these claims are accurate.
• In such cases, sceptics normally recommend not disbelief but
suspension of belief, i.e. maintaining a neutral attitude that neither
affirms nor denies the claim.
Contemporary Theory
Ulpian and Cicero
• Ulpian a Roman jurist defines jurisprudence as “the knowledge of
things divine and human, the science of just and unjust.”
• Cicero defines jurisprudence as “the philosophical aspect of the
knowledge of law”.
Austin
• Austin defines jurisprudence as the “philosophy of positive law”.
• By positive law or jus positivism, he means the law laid down by a
political superior for controlling the conduct of those subject to his
authority
Holland, Salmond, Kant and Roscoe
Pound
• Holland has defined jurisprudence as the “formal science of positive
law”.
• Salmond: “the science of the first principles of the civil law.”
• Kant defines jurisprudence as “the science of right.”
• Roscoe Pond defines jurisprudence as “the science of law”.
Gray, Allen, Keeton, Stone and Laski
• Gray defines jurisprudence as “the science of law, the statement and
systematic arrangement of the rules followed by the courts and the
principles involved in these rules.”
• Allen defines jurisprudence as “the scientific synthesis of the essential
principles of law.”
• Keeton defines jurisprudence as “the study and systematic
arrangement of the general principles of law.”
• Julius Stone defines jurisprudence as a “lawyer’s extraversion.”
• Laski defines jurisprudence as “Jurisprudence’ is an eye of law.”
Nature of Jurisprudence
• Jurisprudence is the study of theory of law and it plays a critical role in
shaping our understanding of the legal system.
• Jurisprudence provides insights into the fundamental principles and
concepts of law, including the meaning of rights, duties, possessions,
property and remedies.
• By examining these concepts, jurisprudence helps us to better
understand the role and function of law in society.
Nature of Jurisprudence
• One of the key aspects of jurisprudence is its focus on the sources of
law.
• This field provides insights into the various sources of law, including
statutory law, common law and constitutional law.
• Through the study of jurisprudence, scholars and practitioners seek to
develop a deeper understanding of how these sources of law interact
with each other and how they influence the development of legal
systems over time.
Nature of Jurisprudence
• Another important aspect of jurisprudence is its role in clarifying the
concept of law itself.
• While the law is often thought of as a set of rules and regulations,
jurisprudence helps us to understand that law is a complex and
multifaceted concept that cannot be reduced to a simple definition.
• Instead, the law is a dynamic and evolving concept that is shaped by a
range of social, cultural and political factors.
Eye of the Law
• It is important to note that jurisprudence is neither substantive nor
procedural law.
• Rather, it is an uncodified law that provides a framework for
understanding the legal system as a whole.
• Jurisprudence serves as the “eye of law,” providing insights into how
the law operates and how it can be used to achieve justice and
fairness in society.
Natural or Social Science?
• While some scholars view jurisprudence as a science, others view it as
a social science.
• Scholars of the historical school of jurisprudence, for example, view
jurisprudence as a social science that is shaped by historical, cultural
and political factors.
• Regardless of how one views jurisprudence, however, it is clear that
this field plays a critical role in shaping our understanding of the legal
system and in guiding the development of legal theory and practice
over time.
Scope of Jurisprudence
• Jurisprudence is a field of study that encompasses a wide range of
topics and disciplines.
• It explores the relationship between law, culture and society and it
seeks to understand the fundamental principles and concepts that
underpin the legal system.
• One of the key aspects of jurisprudence is its focus on legal logic,
which involves the study of legal frameworks, bodies of law and the
reasoning behind legal decisions.
Jurisprudence
Scope of Jurisprudence
• The scope of jurisprudence goes beyond just the study of legal logic.
• It also encompasses other fields, such as psychology, politics,
economics, sociology and ethics.
• This is because the law is not created in a vacuum, but rather is
shaped by the social, cultural and political context in which it
operates.
• Therefore, jurisprudence seeks to understand how these various
fields intersect with the law and how they influence the development
and application of legal principles.
Scope of Jurisprudence
• The study of jurisprudence is also important for understanding the
nature of law itself.
• It explores questions such as the origin of law, the need for law and
the utility of law and seeks to develop a deeper understanding of how
the law operates in practice.
• This includes studying various legal systems and traditions and how
they have evolved over time.
Jurisprudence versus Legal Theory
• Jurisprudence and legal theory are two related but distinct fields of
study. Jurisprudence is a broader field that encompasses the study of
the nature of law and its principles, while legal theory is a subset of
jurisprudence that specifically examines the philosophical content of
the law.
• Jurisprudence covers a wider field of study compared to legal theory.
• It involves an investigation of abstract, general and theoretical aspects
of the law.
• In contrast, legal theory seeks to clarify the most fundamental legal
concepts and answer the question, “what is law?”.
Classification of Law
• Classification of law is an ancient idea that goes back in time.
• The original organisers of things were the Roman legal experts.
• Laws can be classified in many ways, such as criminal law and civil law,
public law and private law, the real rules and the process rules, laws
of one country and laws that work across countries, EAC, EU, etc.
Meaning of Classification
• The classification of law refers to the systematic arrangement and
categorisation of various legal principles, rules and areas of law based
on their nature, purpose and scope.
• It involves grouping different types of laws together to facilitate better
understanding, organisation and study of the legal system.
Meaning of Classification of Law
• By classifying laws, legal experts and practitioners can easily identify
and differentiate between different aspects of the law, making it more
manageable to navigate the complex and diverse field of legal
regulations.
• The classification helps in structuring legal education, practice and
research and it assists in clarifying the relationships between different
branches of law and their applications in various situations.
Purpose of Classification of Law
• The purpose of classifying law is to bring order and clarity to the
intricate web of legal principles and regulations.
• By systematically categorising different types of laws based on their
characteristics, nature and scope, the classification process enhances
the understanding, interpretation and application of the legal
framework.
• This organisation aids legal professionals, scholars and students in
comprehending the diverse aspects of law more effectively.
Purpose of Classification
• Classification enables streamlined legal education and research by
providing a structured roadmap to navigate the complexities of the
legal system.
• It assists in identifying connections and distinctions between various
branches of law, fostering a more cohesive understanding of the legal
landscape
Nature of Classification of Law
• The classification of law involves categorising different types of laws
based on their nature, scope and purpose.
• This helps in organising and understanding the various branches of
law.
• Public Law vs. Private Law: This classification divides law into public
laws that deal with government and society (like constitutional law
and administrative law) and private laws that regulate relationships
between individuals and entities (like contract law and tort law).
Nature of Classification of Law

• Substantive Law vs. Procedural Law: Substantive law defines rights, duties
and responsibilities, while procedural law outlines the process of enforcing
those rights and resolving disputes.
• Civil Law vs. Criminal Law: Civil law deals with disputes between
individuals or entities, seeking compensation or specific actions, while
criminal law addresses offences against society, aiming to punish
wrongdoers.
• National Law vs. International Law: National law pertains to rules within a
specific country, while international law governs relations between
countries and entities on a global scale.
International Law
• International Law is a classification of law that deals with the rules for
how countries interact with each other.
• It is a set of guidelines that countries follow when they have dealings
with one another.
• These rules are based on traditions and agreements that countries
agree to follow when they interact.
Nature of Classification of Law
• (a) Public International Law
• This is the set of rules that controls how one country behaves toward
other countries. For instance, if two countries agree to send back
criminals who have run away to the other country, that’s an example of
Public International Law.
• (b) Private International Law
• This means the rules that decide what happens when situations involve
different countries. For example, if an a Kenyan and a British person
make a deal in Rwanda but it is supposed to be carried out in Morocco,
the rules that decide what rights and duties the people have are called
‘Private International Law.’
Municipal or National Law
• Municipal Law refers to the laws of a specific nation, the laws that
apply within a country’s borders.
• It is the internal law that governs the people who are part of that
country.
• This is different from International Law, which deals with how
countries interact on a global level.
• Municipal Law handles things like how individuals relate to each other
within the country and how the country’s government interacts with
its citizens.
Nature of Classification
• Municipal Law can be classified into two main parts:
• Public law
• Private law
Public Law
• Public law refers to the part of the law that handles relationships
between legal entities, like individuals and the government.
• It also deals with interactions among different parts of a country’s
institutions, including different branches of the government.
• Public law covers relationships that directly affect society; how the
government functions and is accountable.
• By ‘public,’ we mean the state itself or parts of it that have authority,
as well as individuals or bodies that have been given power by the
state.
Private Law
• Private Law is the branch of law that deals with legal relationships and
disputes between individuals, organisations or entities that are not of
significant public concern.
• It governs the interactions and obligations of private parties, such as
individuals, businesses and organisations, in their personal and
business affairs.
• Private law encompasses a wide range of legal matters, including
contracts, property ownership, torts (civil wrongs like negligence or
defamation), family law (such as marriage, divorce and child custody),
inheritance and more.
Nature of classification: Civil Law
• Civil law refers to the legal area that deals with actions that cause
harm to an individual or a private party, like a company; civil law cases
include instances of defamation, breach of contracts, negligence that
results in harm or death and causing damage to property.
• Typically, a judge makes the decisions. Penalties in civil law cases
usually involve monetary compensation and never imprisonment.
• The plaintiff needs to prove the defendant’s responsibility based on
the “preponderance of evidence,” which means showing it’s more
likely than not.
Criminal Law
• Criminal law involves actions that are considered crimes against the
public, society or the state, even if an individual is the immediate
victim.
• Examples include murder, assault, theft and driving under the
influence.
• In criminal law, the focus is on protecting public interests.
• This includes punishing and rehabilitating offenders while
safeguarding society.
Substantive Law
• Substantive law is the set of laws that outlines the original rights and
responsibilities of individuals.
• It can come from common law, statutes or a constitution.
• For instance, a legal claim related to breach of contract, negligence or
fraud is considered a substantive right under common law.
• This law essentially defines the rules that determine the rights and
duties of both individuals and groups.
Procedural Law
• Procedural law is the set of legal rules that establish how substantive
law is developed, upheld and used, especially within a courtroom.
• Procedural law deals with the specific processes that guide the
progression of a case.
• It outlines the methods through which substantive laws are enforced
and applied.
• In essence, procedural laws lay down the guidelines for ensuring that
substantive laws are followed correctly.