Jurisprudence has many definitions but generally, jurisprudence is a study of the fundamental legal principles including the philosophical, historical, sociological bases, also legal concepts. It does not contain any set of rules as in other subjects but it has its values and is unique and distinctive. Whereas legal theory is a subset of Jurisprudence as a whole, understanding legal theory is the main facet in understanding Jurisprudence. There are different theories according to various jurists, the author here has tried to discuss the main theories of law and the relationship between legal theory and Jurisprudence. The author has also tried to describe the importance of understanding jurisprudence as a whole to understand the law from all angles when it is necessary.
Jurisprudence is derived from the Latin terms ‘Juris; meaning legal and prudential meaning ‘knowledge’ so it deals with the knowledge of the law. It is essential to understand the jurisprudence to understand and interpret the laws correctly and it facilitates the right decision making by the judges of the courts. Jurisprudence is a broader term and legal theory is a part of jurisprudence although it is sometimes used as a synonym to jurisprudence it is just a part of it and jurisprudence deals with historical, philosophical and other factors in law as well.
Legal scholars have traditionally concerned themselves with discovering the meaning of law and the necessary preconditions for its validity. There are many theories in jurisprudence since the modern jurisprudence began in the 18th century, but the major theories are Natural Law theory, Positive law theory, Marxist Law theory, Realist theory of law.
Major Theories of Law
Natural law theory
Natural law is defined by Salmond as “the principles of natural justice if we use the term justice in its widest sense to include all forms of rightful actions.” There are moral principles in nature, and which does not change according to situations. Some jurists believe that natural laws are not taught to people but we discover it. Natural law is not made by any external authority it is derived from nature by human beings. Law consists of principles of justice and morality. Aristotle believed that “what was just by nature was not always the same as what was just by law”. Natural law theory makes the enacted law to align with the natural law and not otherwise. This theory ensures standards in-laws are followed but practically it is not implemented properly and changes with time. It is also not universal in nature, one law or practice may not be accepted or practiced in another country.
Henceforth, the laws made in natural law theory are to align with set morale and principles but the main criticism of this theory is that the set morale may not be, universally applicable and may depend on the environment and hence since it is ambiguous, many people did not want to use this theory during the 19th century. Another criticism is that what is morale will not be the same for everybody in a society and that will cause confusions on what is right and wrong in a particular society and this is why few people don’t prefer natural law theory
Positive Law Theory
Positive law theory is something that is opposite to natural law and the jurists place their opinions accordingly on whether to stick with natural law or positive law. Positive law theory is something that is made by the state for the people of the particular region. This is ever-changing and since the environment is dynamic and the need for new laws comes up time and again, the state is forced to make new laws now and then. The concept of morality, reason, and justice is not given importance in this theory to determine the validity of the law. The creation of law is nothing more than the use of power by the authority and it is not necessary to show that the law follows the moral principles and the law is valid because it is enacted by the authority. There are three elements in this theory – Command, Sovereign, Sanction. The command is the rule given by the sovereign to the subjects or people under the rule of the sovereign. Sovereign can be a government or authority that demands obedience in the state.
The criticisms of the positive theory of law are that a state is defining law, which is older than the state history and the law even exists without the state. This is why in natural law even without a state, the law will prevail and that is not the situation for positive law theory. Another criticism of this theory is that the validity of the law is justified just because it is enacted by the state and the command of the sovereign is taken as the source of the validity of the law. In Natural law, it is not the case where the source of law is in nature itself and the validity of the law enacted can be concluded because the source is in nature only.
Realist Theory of Law
The other theories are good in paper and have a way that tries to make it work, but this theory is realistic and according to theory the laws will just be laws until the courts provide a judgment under the act. The judgments will act as a precedent to the society and until then the legislations made will just be dead woods. This theory is of the view that the judge will be the lawmakers and not the legislative body and the law available before a decision will just be a statement of law.
According to Dean Roscoe Pound, Judges should knowingly and appropriately use wide discretion, should recognize unique circumstances, should employ flexible standards as opposed to fixed rules, and should be encouraged to a “free judicial finding of the grounds of decision.” This is necessary and important since judges have to legislate for the judgment to act as a precedent and the people in that society can act accordingly. One of the main criticisms of this theory is that the judges have an immense amount of power and duty in their hands and the judges provide value to the act only through their decisions which results in overreach in their duties. Through this theory, the executive gives value to legislatures only after their pronouncements. Other criticisms include that this theory may not hold value in the civil law legal system where precedents hold no value. However, this theory is the best realistic theory but has its flaws but can hold value with necessary changes.
Marxist Theory of Law
According to this theory, material conditions such as economic, physical, environmental are the most important factors in life. They believe that private property is the basis for which law came into being in the first place. The private property was the reason for the creation of classes in society and this theory on social development places much more emphasis on the historical development that human beings have gone through in their lives. According to this theory, there are six stages that societies are supposed to go – Primitive communalism, slave mode of production, the feudal mode of production, the capitalist mode of production, socialistic mode of production, communist mode of production. In this theory, the machines are always expected to be running properly and Marxist theory insisted that in the socialist country there should be no state. However, all the principles were without adequate proof and this is one of the main criticisms for this theory.
The major theories of law in jurisprudence have been discussed above and other theories may come and go in jurisprudence as the need for new theories is always there due to the ever-changing environment. The major theories that are always going to be there and is important to know are discussed in this article and now it is clear to know that the relationship between legal theories and jurisprudence is that the former is just a part of the latter and only a brief of that part is discussed in this article. Jurisprudence is always evolving and its analysis of the philosophical, economical aspects of law, and it will make a lot more sense to learn and understand how the law works if we understand jurisprudence as a whole. It is important to understand this because we will need to analyze various legislations, judgments, and sometimes understanding it over the provisions, and going behind the legislative intent is necessary to understand why a particular law is enacted in some way. Henceforth it is inevitable and necessary to understand the relationship between legal theories and jurisprudence and to understand jurisprudence as a whole.
- What is jurisprudence and its significance in law?
- What are the major legal theories in law?
- Is legal theories part of jurisprudence?
- Relationship between Legal theory and jurisprudence?
- Why should a lawyer understand jurisprudence?