The term Jurisprudence is an all ramifying and dynamic discipline that has defied all reasonable attempt to produce and effect a clear definition of the term. The basic reason for this is not far-fetched, as the term may mean or be ascribed with several Ideological concepts from various jurists emanating from different jurisdictions. Thus, it will be an extravagant exaggeration to say that every jurist has his own notional and proper meaning of the term jurisprudence. However since various definitions propounded by several jurists have been criticized in one way or the other as lacking some basic elements and ingredients that are supposed to mature and conclude the overall defining process, Thus the acceptability and validity of the subject has proved to be a very herculean task.
Many attempts made by several philosophers from the time of St. Augustine, Aquinas and Grotius in the 16thcentury A.D who propounded the philosophy of law from a Naturalist point of view down to the Austinian Positivism which both contradicts each other. The Naturalist will deny the validity and the legality of a rule or action of the political authority that contradicts the fundamental principles of justice; whereas the positivist argues that law is a political instrument, a body of rules manifesting the policies of the legitimately constituted political authority.
These competing and conflicting interests from various sources, legal jurists and schools of legal philosophy poses a great challenge and problem in establishing a universal and well acceptable, workable standard of the definition of the term jurisprudence. The purpose of this paper is centrally focused on the challenge of preferring a precise and a universal acceptable standard of definition of the term Jurisprudence. This will be done with a view of examining the nature and basic concept that surrounds the definition of jurisprudence.
Jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the nature of law to justice and morality and about the social nature of law itself. Next to jurisprudence is related to investigation, inquiries of the most fundamental nature which in themselves are often difficult to define in terms of nature, meaning and perception.
It is without controversy that the term jurisprudence is basically concerned with a variety of peripheral matters which generally cuts across the social boundaries of traditional legal studies such as justice, morality, grundnorm, and the legality of coups etc. Because of this very unique nature that surrounds the subject of jurisprudence, it is often beclouded by a variety of different ideological reasoning, schools of thought which conflicts and sometimes overlaps with each other and therefore renders the defining process cumbrous and technical to deal with. It is difficult to characterize jurisprudence; there are many rooms in its mansion.
Contemporary jurisprudence reflects philosophical debates about the meaning of social knowledge, law, social sciences, legal reasoning, logical intuitions etc. One major difficulty in addressing a precise definition is because the term jurisprudence has acquired an expanded meaning from the original etymological concept. Despite its western origin and root, it is still however true that even western orientation and viewpoint, the term has attracted several meaning such that its overall essence and form seem to be wrapped in obscurity and pettiness.
Lastly, the term jurisprudence may seem difficult in attempting an acceptable definition because of the fact that certain legal principles are dynamic in their nature and the classification and categorization of jurists who contributed to the subject matter based their work on that particular age of reasoning which affected the theories they propounded and also influenced their intellectual work. In this paper, we propose to examine some critical issues addressed by the various jurists relating to the definition of the term jurisprudence and also comment on the validity of the term within its legal parameters, but which have hitherto posed a tremendous challenge to the acceptability of the viewpoints. These issues shall be discussed and further analysed with a view to determining the extent of the validity and acceptability of several attempted definition of the philosophical term and whether under the current framework of things the legal machineries on ground can be able to overcome them.
What is Jurisprudence?
According to Lloyd’s and Freeman to ask this question is to be reminded of the old adage, quot homines, tot sententiae. Thus, in its literal sense, jurisprudence may be defined simply as ‘‘Knowledge of the Law’’ or ‘‘skill in law’’ whereas in its technical sense, it merely denotes the restricted or specialised field of study designed for the training of undergraduates in the LL.B. degree programme and also at the post-graduates level in the universities.2 On the other hand for jurists, the term jurisprudence has taken on a complexity only comparable to its uniqueness as various jurists have defined it from a different analytical perspectives based on their own perception and philosophical notion of the term jurisprudence.
For an analytical positivist like John Austin defines it as ‘‘the science concerned with the expositions of the principles, notions, and distinctions which are common to systems of law… in developed societies,’’ e.g. the notions and concepts of ‘‘right’’ ‘‘duty’’, ‘‘contract’’ ‘‘ownership’’ ‘‘crime’’ ‘‘tort’’, etc. Hart indeed, categorised his elucidation of the term jurisprudence as an essay in contemporary descriptive sociology. But whether jurisprudence is a social science or not the debate about the methodology in the social sciences between the positivists or empiricists and practitioners of hermeneutics are echoed in juristic literature. Although therefore both the law as a system of norms and the form of social control based on certain pattern of human behaviour are equally legitimate field of study and enquiry, it is suggested that it is an unduly narrowing attitude to limit jurisprudence rigidly to one approach derived from one or other of these viewpoints alone.
Modern jurisprudence began in the 18th century and was focused on the principle of the natural law, civil law, and the law of nations. On the other hand the term jurisprudence has taken on a complexity only comparable to its unique nature as various jurists have defined it from widely different perspectives.
From a purely theoretical and sociological standpoint, jurisprudence may be described as that amalgam of the art, science philosophy, psychology, sociobiology and epistemology of law. It is the scientific investigation and systematic analysis, synthesis and presentation of certain abstract, general and theoretical ideas about law and legal system, carried out with a view to discovering those ultimate truth and principles(if any) that are common to human societies, which might possibly lead to replacing and reforming those principles or improving upon their functioning. It is a chemical built up from subjectmolecules, external to, but not entirely alien to law.
Similarly Cohen and Cohen define jurisprudence distinguishable from legal theory as the jurist quest for a systematic vision that will order and illumine the dark realities of law, Whilst legal theory is the ‘‘Philosopher’s effort to understand the legal order and its role in human life. Thus, this is a modern approach adopted in this work. Thus jurisprudence may be seen as the halfway house between philosophy and legal theory. Deriving its intellectual categories from philosophy and its ideas of justice from political theory, it formulates political thought from in terms of legal principles. And like philosophy and political theory, it attempts to answer the question, ‘‘What is the purpose of life?’
The Nature Of Jurisprudence
According to professor Adaramola he noted that jurisprudence contrast sharply with other law subjects in the LL.B curriculum such as Contract, Crime, Torts, and Property etc. While these subjects consist of rules and principles derivable from legal authorities such as judicial decisions known as precedent, jurisprudence has no sources of authority. Whereas, other law subjects are used to solve complex practical life problems jurisprudence is not ordinarily applicable to such situations. whereas in the law subjects of Contract, Tort, Property, and Crime the word ‘‘right’’ or ‘‘duty’’ is variously used in different situations in favour or against certain persons and also occurs in usages such as ‘‘human right’’, ‘‘voting right’’, ‘‘right of option’’ ‘‘right of easement’’, ‘‘right of ownership’’ and ‘‘right of possession etc.. Jurisprudence is the subject in which the true properties of these words and usages are properly examined and determined for the purpose of clarity of thought and expression and for better comprehension and application. By simple analogy one may say that jurisprudence is the dormitory or repository for law subjects and legal concepts. From a utilitarian point of view, it is the lifemanship of the law.
It must be clearly noted, that the central and most indispensable chief priest on the altar of jurisprudence of any given legal system is the judge representing the entire judiciary which is a crucial arm of a truly democratic society. The structure, nature and foundation of the legal system determine the character of the judge in the exercise of his challenging statutory functions.
Accordingly, to our mind debates in jurisprudence often tend to be timeless. This is because it seems interminable and incapable of resolution, are better understood as reflecting specific responses in legal philosophy to pressures, developments and conditions arising in particular time and place.
The Challenge of Producing a Precise Definition
Jurisprudence is written by philosophers and academic lawyers who have been influenced by the ways of philosophers. So they often have divergent views of the subject matter which sometime conflict with each other. Therefore one realizes that the aim of each writer is not expressed in clarity but most times expressed with obfuscation. In fact it is understood that if the concept of law is riddled with so many difficulties that of jurisprudence is much more problematic.
Viscount Radcliff opined ‘‘you will not mistake my meaning or suppose that I depreciate one of the greatest human studies if I say that we cannot learn law by learning law’’.
Hart has noted that one main difficulty in preferring a precise definition of the term jurisprudence is because of the fact that for instance no one has thought it illuminating that Medicine is what doctors do about illness or a prediction of what doctors will do, these are few of many assertions and denials about the nature of jurisprudence and why in adopting a precise definition seems cumbrous. Some definition seems to conflict with the most firm and rooted beliefs about the term jurisprudence and to be easily refutable.
Professor Hart further said that ‘‘Even if we confine our attention to the legal theories of the last 150 years and neglect medieval and classical speculation about the nature of law we shall find a solution not parallel in any other subject systematically studied as a separate study’’.
Lastly, Prof. Utuama A.A alleges that the concept of jurisprudence like the notion of law has generally defied all the universally acceptable meaning. The reason is simply that jurisprudence is an all ramifying dynamic discipline.
The Question of Validity and Acceptability
The notion of jurisprudence has defied all acceptable standard of definition. The basic reason for this is not far-fetched as different jurists from several part of the globe have propounded their various definitions which have been criticized, challenged and ultimately questioned in terms of its validity and acceptability. From the medieval era till date it can be gleaned that the philosophical mind-set, political institution, psychological and religious beliefs greatly influenced the writings and several views of this philosophers and academic lawyers. One can rightly say that because the subject of jurisprudence demands thinking and reasoning outside the box or the purview of the law and beyond all statutory bodies the views of these jurists must differ from one another. And therefore it becomes difficult in providing an acceptable and well approved universal definition of the term.
In German law for instance jurisprudence is synonymous with the law of scientific study. As an Anglo- American term it is understood to represent the various aspects of the theoretical study of law.
In French legal theory, According to Friedman, jurisprudence stands for the jurisdiction of the court both as the interpreter and the developer of several codes and legislation. By the Austinian positivist approach to law, different judges would act differently in situations. This is for the simple reason that jurisprudence can be very misleading for the simple reason that it is formalistic and above all, seeks to divorce law from its ideological context.
Flowing from the above it suffices to hold the view that since jurisprudence is as big as law and bigger than law because it carries with both the municipal legal system and in international jurisprudence which involves the analysis upon which inter-state laws rest.
We have traversed most of the salient definitions of the term jurisprudence. However, the fact remains that no one definition supersedes the other, rather they all assist, guide and give us a clue on what the term jurisprudence is all about. The divergence of views is nothing that each definition propounded by various jurists and schools of legal philosophy is largely influenced by its social and political experience, historical context, and chosen points of emphasis.
While some jurists approach the question by reference to former characteristics of law, others attempt to formulate ideal roles which they think it ought to play in the society or in the academic world or adopt a more functional approach by highlighting its actual operation in practice and the resultant impact it contributes to law, reason, society and most importantly to law students.
Fredrick Anthony Okagua ESQ DIL (Benin); LL.B (Hons) Benin; B.L (Lagos)