2. What is “jurisprudence”?
Jurisprudence generally refers to the ideas or philosophies of law that have developed. Understanding the philosophy behind the existence of law is important for understanding: 1) the justification for legislation, and 2) the judicial reasoning applied when interpreting laws.
• Natural Law – This legal philosophy relies on reason drawn from perceived universal moral principles in order to explain laws. It assumes that some values or beliefs are universal due to a common human nature and the ability to reason. Natural law theorists often cite the Declaration of Independence (stating “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”), to support the Founders’ belief in natural law.
• Positive Law – This legal philosophy looks at laws as the legal standards of conduct outlined by governments. It does not look at the natural existence of standards leading to law; rather, it focuses on the objectives outlined by the governing body. Rather than occurring naturally, law and the rights resulting therefrom are the result of human insistence.
• Historical Law – This view recognizes law as the embodiment of human cultures and traditions. Like natural law, it focuses on the influence of nature, logic, ethics, and religion on law. It focuses on a historical understanding of right and wrong in society.
• Sociological Law – This legal philosophy sees law as an ever-evolving embodiment of societies beliefs. Particularly, it focuses on the interaction between law and societal norms. Law has evolved over time in relation to the influences on society, such as cultural, social, political, and economic factors. In turn, this philosophy recognizes that law and social interaction develop in concert and influence each other. As such, law is only partially distinct from these influences.
• Legal Realism – This philosophy goes behind the legal principle to look at what the administrators of law do or are thinking as they carry out their roles. It posits that laws (particularly common law) are subjective. The development of law is based upon the predilections of state and federal lawmakers and judges. As such, legal reasoning is not separate from the ethical, moral, social, and political beliefs of those charged with making and interpreting the law.
The above examples of legal philosophy are commonly recognized examples of the theoretical underpinnings of legal reasoning. Individuals may employ or be influenced by any of these philosophical approaches when confronted with any type of law.
• Discussion: Ask yourself, what is the legislatures purpose and beliefs that drove/drive the drafting of the relevant law? Further, what judicial philosophy does an appellate judge employ when interpreting statutes (developing the common law)?