JURISPRUDENCE
Short Tutorial
For Exit Exam Sitters
By: Anteneh G.
UNIT ONE: Introduction
• What is Jurisprudence- comes from the Latin term juris
prudentia, which means "the study, knowledge, or science of
law." This signifies that like any other social study, law can also
be studied scientifically or systematically.
• it seeks to analyze, explain, classify, and criticize entire bodies
of law.
• It compares and contrasts law with other fields of knowledge
such as literature, economics, religion, and the social sciences.
• It raises fundamental questions about the law itself & focuses
on even more abstract questions, including, what is law?
• Why we study Jurisprudence- it develops the ability to analyze
and to think critically and creatively about the law.
• At a professional level, jurisprudence is the way lawyers and
judges reflect on what they do and what their role is within
society.
• Schools of Jurisprudence
• 1) Natural Law School
• 2) Legal Positivism (Analytical School)
• 3) Historical School: views law as an evolutionary process
and concentrates on the origin and history of the legal
system.
• 4) Sociological School: Unlike the Historical School that
conceives a nations law as tied to the primitive
consciousness of its people, sociological conception of
law locate the law in the present-day institutions of its
society.
• 5) Legal Realism- conceives law as judge made and by
doing so it puts the court at the center.
UNIT TWO: Classical Natural Law Theory
• The Notion of Natural Law- its adherents believe that
beyond, and superior to the law made by man are certain
higher principles, the principles of natural law.
• It comprises a body of permanent, eternal truths, truths
embodying precepts of universal applicability, part of
immutable order of things, unaffected by changing human
beliefs or attitudes.
• Ancient Greece: Natural Law as Source of Justice and
Virtue
• 1)Socrates - his idea of law as recorded in Apology and
Crito, two different writings written by his pupil Plato.
Apology is all about Socrates defense in court, while
Crito is a discourse made between Socrates and his
friend Crito in prison.
• In his apology , he importantly said that it was good to
obey the law and the order of a commander so long as
they are just.
• Socrates justified the coercive power of the state laws
(positive law) and thereby upholding and respecting the
decision of the courts (not to escape from prison) on three
grounds.
• * on moral grounds, to do injustice in return for injustice or
to return harm for harm is also bad.
• * citizens are not justified to back-harm their country
whatever harm the country caused to them.
• * there was a tacit agreement between Socrates (and
other citizens for that matter) and the state of Athens
• 2) Plato- concerned to redefine the nature of justice by
relating it to something far more permanent and absolute
than the nomos (man-made laws) of the city-state.
• 3) Aristotle-There are two sorts of political justice, one
natural and the other legal. The natural is that which has
the same validity everywhere (as fire burns both in Greek
and in Persia are the same) and does not depend upon
acceptance; the legal is that which in the first place can
take one form or another indifferently.
• The Stoics: Natural Law as a Reason- existed from the life
time of its founder Zeno (during the 3rd century BC) down
to about the fourth century AD & represented by the writings
of Cicero, Seneca, and the Emperor Marcus Aurelius.
The conception of a universal law for all mankind
under which all men are equal;
The idea of a method of deriving universal principles
of law from the observation of the laws of different people;
And the conception of a law binding upon all states,
which has got today the name international law.
• Stoics added flesh to the bones of natural law. Tolerance,
forgiveness, compassion, fortitude, uprightness, sincerity,
honesty these were the qualities that the Stoics believed
that natural law required of men.
• Cicero-Law is the highest reason, implanted in nature,
which commands what ought to be done and forbids the
opposite.
• Seneca has also emphasized the need for rational
approach, i.e. that man shall live in harmony with nature.
Christianity: Natural Law as Morality
• St. Augustine of Hippo- De Civitate Dei (the City of
God), the will of God is then seen as the highest law,
eternal law, for all people.
• St. Thomas Aquinas- Summa Theologica, (1) Eternal
Law; (2) Divine Law; (3) Natural Law; and (4) Human Law
• Nature of Man and Justification for Law- The medieval
power of the church dissolved with the coming of
Renaissance and political writers such Hobbes, Locke
and Rousseau.
• Tomas Hobbes- Leviathan, postulates a natural condition
of mankind in order to explain the origin and nature of the
state and to show the justifications behind a strong
sovereign power. He imagined a natural condition of man,
termed as State of Nature, in which there was no law and
government.
• John Locke- The Second Treatise of Civil Government,
Unlike the Hobbessian picture of mans natural condition,
which was a state of perpetual warfare, Locke depicts the
state of nature as one of peace in which most men
respect the lives, liberties, and estates of others. These
are the natural rights of man, given to him by the law of
nature which commands that no one ought to harm in
his life, health, liberty, and possession.
Kelsens Criticism on Natural Law Theory
• -Natural law confuses value and reality- value cannot be
deduced from reality.
• -Good/Bad contradiction- Natural lawyers justify positive law
(man-made or human law) on the ground that these are
needed because of man’s badness. At the same time their
doctrine requires an assumption that man is good, because it
is from human nature that the principle of natural law are to be
deducted.
• -Insincerity- Where a law of the state conflicts with natural
law do natural lawyers in fact say that a citizen should disobey
it?
• -Absolute values and Relative values- knowledge is relative
to the person seeking it. Reality exists only in relation to our
own feelings and convictions.
• So, there is one nature but we have different systems of law;
different beliefs of goodness and badness.
UNIT THREE: The Revival Of Natural Law
• Introduction- the massive human delinquencies by the
Nazis during the Second World War and the emergence
of totalitarian States and dictators stimulate in the 20th c
the rethinking of natural law theory. Jurists raised
questions whether positive law is adequate enough to
protect mankind.
• Procedural Natural Law: Lon L. Fuller- Morality of Law,
published in 1963, His first step was to repeal all existing
laws and to set about replacing these with a new code.
• In a legal system the laws must be:
Generality (not made ad hoc or for temporary purpose
only), Published, Prospective, not retroactive, Intelligible
(clear or understandable), Consistent, Capable of being
complied with, Endure without undue changes, Applied in
the administration of the society
• These qualities make up the inner morality of law.
• Substantive Natural Law: John Finnis - Natural Law and
Natural Rights, there is a strong affinity between Finnis
view of natural law and that of Aquinas.
• Finnis seven basic goods are life, knowledge, play,
Aesthetic experience, Sociability or friendship, Practical
reasonableness & religion.
• Finnis asserts that these goods are not the result of
speculative reason. They are not goods because of
anything, they are just good.
UNIT FOUR: POSITIVISM
Introduction
• by requiring that all law be written or somehow
communicated to society, it ensures that the
government will explicitly apprise the members of society
of their rights and obligations.
• positivism reduces the power of the judge to the
application of laws, it does not allow judges to make laws.
• Influence of David Hume- it was Hume who first opened
the eyes of positivists who challenged the close
relationship of law and morality; that law has nothing to
do with morality or religion. Law should be investigated
beyond any bias of morality.
• Jeremy Bentham- had many specific complaints about
common law theory and its practice.
The Command Theory: John Austins Positivism
• Law is a command of the sovereign enforced by sanction.
• Strongly influenced by Hume and Bentham, Austin wrote
that the starting point for the science of law must be clear
analytical separation of law and morality.
• positive morality is distinguished from positive law; and it
is positive because it is laid down by human beings
for human beings.
• He developed separation thesis, the existence of law is
one thing, its merit or demerit is another.
Criticism on Austin by HLA Hart
• - Laws as we know them are not like orders backed by
threats
• -Austin’s notion of the habit of obedience is deficient,
law should not be based on one particular body.
• - Austin’s notion of sovereignty is deficient, In Austins
theory of law, there is no legal limit on a sovereign’s
power
• Pure Theory of Law: Hans Kelsen - He declares that law
must be studied as a pure science independent of other
incidents, like morality and justice.
• The law, according to Kelsen, is a system of norms.
• The basic norm, then, is the most general norm which
is hypothesized as the norm behind the final authority to
which all particular valid norms can be traced back.
• H L A Hart- The Concept of Law (1907- 1992)- He
distinguishes first between social rules which constitute
mere regularity from social habits.
• Primary rules of law are said to be those which are
essential for any kind of social existence, those which
prescribe, prevent or regulate behavior in every area with
which the law is concerned. These are all the rules
constraining anti-social behavior; rules against theft,
cheating, violence and so on.
• secondary rules are those that stipulate how, and by
whom, such primary rules may be formed, recognized,
modified or extinguished. The rules that stipulate how
parliament is composed, and how it enacts legislation. . .
Dworkins criticism on Hart/Positivism
• Legal positivism envisaged, Dworkin claimed, that the law
consists of rules only. However, this is a serious mistake,
since in addition to rules, law is partly determined by legal
principles.
UNIT FIVE: Historical And Sociological Legal Theory
• Historical School
• 1)The Spirit of the People: Savigny- the principles of law
derive from the beliefs of the people.
• 2)The Changing process of Ancient Law: Henry Maine-
Maine departed from Savigny in two important respects:
he believed in stages of legal evolution, in which the
primitive ideas might be discarded; and he sought to
discover by comparative studies of different systems of
law the ideas which they had in common.
• Sociological School
• 1)Living Law: Eugen Ehrlich- earlier legal theories that
recognize law as a sum of statutes and judgments
gave an inadequate view of the legal reality of a
community.
• 2)Law in Action: Roscoe Pound- saw a legal system as
being a phenomenon which intimately interacts with the
prevalent political, economic, and social circumstances in
a given society and which constantly alters with them in a
living process of development.
UNIT SIX: LEGAL REALISM
• Introduction- it attempts to describe the law without
idealizing it, to portray the law as it is not how it should
be.
• American Realists
• 1)Pragmatist approach- Oliver Wondel Holmes and John
Chipman Gray are the two mental fathers of the
American Legal Realism.
• Its theme is how the rule of law works, not what they are
on paper.
• 2) Law as prophesy of the court: Oliver W. Holmes- The
actual life of the law has not been logic: it has been
experience.
• But, This approach disregards the rules and laws that
establish the judiciary itself.
• 3) Centrality of the judge: John Chipman Gray- it is not a
law until it had been interpreted by the courts, for the
courts put life into the dead words of the statutes.
UNIT SEVEN: Radical Legal Theories
• 1)Critical Legal Studies-The critical legal studies
movement, was initially emerged in the United States in
the 1970s in part as a successor to the American realist
movement,
• The overall aim of critical theory is to destroy the notion
that there is one single 'truth', and that by disclosing the
all-pervasive power structures and hierarchies in the law
and legal system, a multitude of other possibilities will
be revealed, all equally valid.
• The Critique of the Liberal Legal Tradition from critical
legal scholars - The law is portrayed as rational, coherent,
necessary and just by liberal legal scholarship, when in
fact, according to the critical legal scholars, it is arbitrary,
contingent, unnecessary and profoundly unjust.
• 2)Critical Legal Studies and Feminist Legal Theory-
Feminist legal theories represent the most important
modern development in the analysis of law, concerned
with the treatment of women by the legal system and
the perception, or lack of perception, of women's
experience and needs in legal provision.
• Feminism and critical legal studies are, of course, two
entirely different creatures. Feminism is only partially
and peripherally concerned with academic theorising. It is
motivated by the dissatisfactions of a wide spectrum of ...
women and by the everyday experience of such women.
• The value of critical methodologies in the display and
analysis of such gender distortions in law and legal
administration should be evident.
• 3)Postmodern Legal Theory- the latest radical theory to
challenge the liberal orthodoxies that society has a
natural structure and that history is simply a process
of evolution towards that truth.
• Liberalism and capitalism are not the end of the road but
are simply the major components of what the
postmodernists call 'modernity'.
• In essence, postmodernism is not anti-modernism, for as
Lyotard's example illustrates 'a work can only become
modern if it is first postmodern', so that postmodernism is
definitely 'a part of the modern', not a historical period
beyond modernity.
• Identity and the 'Other'- the 'other' (eg women and
racial minorities) appears to be the individual who is
outside the system, who is disadvantaged by it.
• postmodernism is inclusive in that it purports to embrace
the 'other'. the postmodernist concern with the 'other', the
law should seek to accommodate their claims but to
what extent and in what manner cannot be determined.
UNIT EIGHT: JUSTICE
• Introduction- Justice concerns the proper ordering of
things and persons within a society.
• John Rawls: Justice as Fairness- Theory of Justice
(1972), Rawls makes a distinction between the concepts
of justice and conception of justice. He claims that any
theory of justice must deal with both of these.
• By a concept of justice, Rawls means the role of its
principles in assigning rights and duties and in defining the
appropriate division of social advantage.
• The conception of justice for Rawls can be stated in the
form of two principles as follows: first, each person
participating in a practice, or affected by it, has an equal
right to the most extensive liberty compatible with a like
liberty for all, providing everyone with basic human
freedoms such as freedom of thought, religion, belief,
expression etc. and
• Second, inequalities are arbitrary unless it is reasonable
to expect that they will work out for everyone's advantage,
equal distribution of primary social resources to
everyone and inequalities are arbitrary.
• The first principle has absolute priority over the second
• Will Kymlicka: Justice and Minority Rights- forms of
group-specific rights:
• One mechanism for recognizing claims to self-government
is federalism, which divides powers between the central
government and regional subunits.
• polyethnic rights - are intended to help ethnic groups
and religious minorities express their cultural particularity
and pride without it hampering their success in the
economic and political institutions of the dominant society.
• unlike self-government rights, polyethnic rights are usually
intended to promote integration into the larger society,
not self-government.
• The Equality Argument- ethnic and national minorities
are needed to ensure that all citizens are treated with
genuine equality.
• equality-based argument will only endorse special rights
for national minorities if there actually is a disadvantage
with respect to cultural membership, and if the rights
actually serve to rectify the disadvantage.
CHAPTER NINE: LIBERTY
• Introduction- Liberty is generally considered as a concept of
political philosophy that identifies the condition in which an
individual has the ability to act according to his or her
own will.
• liberty and equality are principles of justice
• Isaiah Berlin: Two Concepts of Liberty
• the 'negative' sense, is involved in the answer to the
question 'What is the area within which the subject - a
person or group of persons - is or should be left to do or
be what he is able to do or be, without interference by
other persons?'
• The second, positive sense, is involved in the answer
to the question 'What, or who, is the source of control or
interference that can determine someone to do, or be,
this rather than that?'
CHAPTER TEN:EQUALITY
• Equality: Defining the Concept- Equality (or equal)
signifies correspondence between a group of different
objects, persons, processes or circumstances that
have the same qualities in at least one respect, but not all
respects, i.e., regarding one specific feature, with
differences in other features. distinguished from
identity
• Principles of Equality and Justice
• 1)Formal Equality- When two persons have equal status
in at least one normatively relevant respect, they must be
treated equally with regard to this respect.
• 2)Proportional Equality- proportional or relatively equal
when it treats all relevant persons in relation to their
due. Just numerical equality is a special case of
proportional equality. Numerical equality is only just under
special circumstances, viz. when persons are equal in the
relevant respects so that the relevant proportions are
equal.
• 3)Moral Equality- This principle is too abstract and needs
to be made concrete if we are to arrive at a clear moral
standard.
• 4)Presumption of Equality- requires that everyone,
regardless of differences, should get an equal share in the
distribution unless certain types of differences are relevant
and justify, through universally acceptable reasons,
unequal distribution.
