Jurisprudence
Jurisprudence (from Latin: juris prudentia — by the activity of prudentes; advisors, experts), is the philosophy, science, study, and application of law, shuch as law of gravitation. In a legal sense, Jurisprudence is the rationale behind the existence of a norm.
History
Jurisprudence already had this meaning in ancient Rome, even if at its origins the discipline was a monopoly of the college of the Pontiffs (Pontifex), which detained an exclusive power of judgement on facts, being the only experts (periti) in the jus of traditional law (mores maiorum, a body of oral laws and customs verbally transmitted “by father to son”). Pontiffs indirectly created a body of laws by their pronunciations (sententiae) on single concrete (judicial) cases.
Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitative interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Pontiffs were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.
Under the Roman Republic, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The degree of scientific depth of the studies was unprecedented in ancient times and reached still unrivalled peaks of skill. It is about this activity that it has been said that Romans had developed an art out of the law.
After 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Byzantine Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian’s Corpus Juris Civilis was born.
Modern use
In modern studies jurisprudence is both the branch of humanist sciences that studies the law and the complex of legal principles that can be desumed by the sentences. Sentences are in this sense authoritative interpretations of the formal law that, starting from a concrete judicial case, usually contain general reflections on the sense and the scopes of the law, and on its potential extent.
Jurisprudence refers either of two things. First, in common law jurisdictions, it means simply “case law”, i.e. the law that is established through the decisions of the courts and other officials. Second, it means the philosophy of law, or legal theory, which studies not what the law is in a particular jurisdiction (say, Turkey or the United States) but law in general–i.e. those attributes common to all legal systems.
Jurisprudence in the second sense is conventionally divided into two parts: descriptive, or analytic, jurisprudence, and normative jurisprudence. Analytic jurisprudence studies what law ‘is’; normative jurisprudence studies what law ‘ought to be’.
Among the most important questions of analytic jurisprudence are these: What is a law? What is a legal system? What is the relationship between law and power? What is the relationship between law and justice or morality? Does every society have a legal system? How should we understand concepts like legal rights and legal obligations or duties? The most influential works of analytic jurisprudence include: Jeremy Bentham, Of Laws in General; Hans Kelsen, The Pure Theory of Law; H.L.A. Hart, The Concept of Law; and Ronald Dworkin, Law’s Empire.
Among the most important questions of normative jurisprudence are these: What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? The most influential works of normative jurisprudence include all the classics of political philosophy. Among contemporary writers, the following have been particularly influential: John Rawls, A Theory of Justice; H.L.A. Hart, Punishment and Responsibility; Joel Feinberg, The Moral Limits of the Criminal Law; Joseph Raz, The Morality of Freedom; Ronald Dworkin, A Matter of Principle.
