JURISPRUDENCE

An Introduction
LAW/LOI/ LEI/ LEGGE/GESETZ
What is Jurisprudence?
 INTRODUCTION
The law sometimes presents itself to us in unattractive ways when
it requires that we do things we would prefer not to do or that we
believe are positively evil to do. At other times the law can appear
almost beautiful when it protects us against harm or helps us to do
something we very much want to do-e.g., get married or divorced.
 INTRODUCTION
Under the law we can be discouraged from smoking marijuana, given or
deprived of a place in medical school through a program of preferential
admissions for minorities, drafted to fight in a war we may regard as evil,
allowed to seek and obtain an abortion-or prohibited from doing so,
compensated for injuries sustained through another's negligence,
protected against theft and bodily harm, facilitated in the making of a
contract, and so on.
 INTRODUCTION
Depending upon what we think of these various activities and
outcomes, we shall be inclined to view the law as either a force for
good or evil-though sometimes, we shall no doubt be forced to
admit, a necessary evil. One thing we cannot do, however, is avoid
the law. Like it or not, it is a pervasive feature of our lives and is
likely to remain such in any life that would hope to be social,
civilized, and predictable
 INTRODUCTION
Definition
What is Jurisprudence?
It is difficult to give a universal and uniform definition of jurisprudence.
Every jurist has his/her own notion of the subject matter and the proper
limits of jurisprudence, depending on individual ideology and the nature
of society. Moreover, the growth and development of law in different
countries has been under different social and political conditions.
 INTRODUCTION
The words used for law in different countries convey different
meanings. The words of one language do not necessarily have
synonyms in other languages conveying the same meaning.
The term ‘jurisprudence’ is not generally used in other languages to
denote its meaning in the English sense. In French, it means ‘case law’.
The term ‘jurisprudence’ traces its origin to Roman times and the Latin
term ‘jurisprudential’, which means ‘knowledge of law’ or ‘skill in law’.
Jurisprudence is the study of the theory and philosophy of law.
Jurisprudence is the “WHY” of law.
Law has three composite elements- The What (Substantive); The
How(Procedural Law) and The Why (Jurisprudential).
 INTRODUCTION
Jurisprudence sometimes refers to a body of substantive legal rules,
doctrines, interpretations and explanations that make up the law of a
country: thus, English, French or German jurisprudence refers to the laws
of England, France and Germany.
Jurisprudence may also refer to the interpretations of the law given by a
court. We speak in this sense of the constitutional jurisprudence of the
US Supreme Court and the High Court of Australia, and the
jurisprudence of the European Court of Human Rights. Jurisprudence in
this sense is not synonymous with law, but signifies the juristic
approaches and doctrines associated with particular courts.
THE LAW SYMBOLIZED BY THE TRIPOD/ THE AFRICAN
STOOL/ THE ELEMENTARY COMPONENTS OF THE LAW
 INTRODUCTION
For Professor Julius Stone, Jurisprudence is a lawyer’s extraversion.
He further stated that jurisprudence is a lawyer’s examination of the
percept, ideas and techniques of law in the light derived from present
knowledge in disciplines other than the law. This jurisprudence consists
of scientific and philosophical investigations of the social phenomenon
of law and of justice generally. It embraces studies, theories and
speculations about law and justice undertaken with the knowledge and
theoretical tools of different disciplines – such as law, history, sociology,
economics, political science, philosophy, logic, psychology, economics,
and even physics and mathematics. No discipline is unwelcome that
sheds light on the nature of law and its relation to society.
 INTRODUCTION
The range of questions about law and justice asked within this
jurisprudence is indefinite. What is law, and can it be defined? What are
the historical origins of law? How do rules of behaviour emerge in a
society even before they are recognised or enforced by the state? Is
there a basic set of rules that make social life possible? How does law
shape society? How does society shape law? What qualities must law
possess to be effective? How do judges decide hard cases? Whence
comes their authority? Is there superhuman natural law? If so, how do
we find its principles?
 INTRODUCTION
Why do people obey some laws even when they face no sanction
for disobedience? Is there a duty to obey an unjust law? Can we
make moral (or economic) judgments about particular laws or legal
systems? What do we mean by justice? Is there a special brand of
legal justice? Are there universal standards of justice? What is
natural justice and what are its minimum demands? What do we
mean by social justice?
INTRODUCTION
 THE MAJOR SCHOOLS OF THOUGHT
IN JURISPRUDENCE
It has been argued that Jurisprudence has six major theoretical
schools:
a) Historical
b) Positivist
c) Sociological
d) Realism
e) Natural Law
 "If
the written law tells against our
case, clearly we must appeal to the
universal law and insist on its
greater equity and justice.”
Aristotle
 THE MAJOR SCHOOLS OF THOUGHT IN
JURISPRUDENCE
The Natural Law School of Jurisprudence.
The Natural Law school understands that human beings possess intrinsic
(shared) values that govern their reasoning and behavior. Natural law
maintains that these rules of right and wrong are inherent in people and are
not created by society or court judges.(https://iep.utm.edu/natlaw/) .
According to natural law legal theory, the authority of legal standards
necessarily derives, at least in part, from considerations having to do with
the moral merit of those standards. There are a number of different kinds of
natural law legal theories, differing from each other with respect to the role
that morality plays in determining the authority of legal norms (Ibid)
 NATURAL LAW TO THE
SEVENTEENTH CENTURY
The Greek Origins Of Natural Law
In Greek philosophy natural law appears as a valiant and precocious
effort to rationalize a world in which the appearance was chaos and
conflict and the aspiration was order.
Natural Law theory generally comprises an approach which seeks to
explain law as a phenomenon whose existence is an expression of some
higher law, to which it must necessarily approximate.
 NATURAL LAW TO THE
SEVENTEENTH CENTURY
Natural Law is argued to be the name of the point if intersection
between law and morals – Prof. Alexander Passerin D’Entreves
The idea of natural law may be summarized as denoting that:
a)Law cannot be properly understood outside the precepts of morality
b)There is a higher moral law which cannot be subordinated to human
made law
 NATURAL LAW THEORY
Natural Law theories have historically tended to be either secular or
theological in their identification of the ‘higher law’ which governs human
society and which provides the model for human law.
Theological theories
These regard the universe, including human society, as having been
created and as being currently governed by some deity, who has laid down
constant principles which must eternally control all of creation. These
principles have been made known to humanity through revelation in the
scriptures, and they are common for all societies. Such principles provide
the morality which must govern all human communities and they constitute
a higher law to which all social arrangements, including the laws created
by people, must strive to approximate
 NATURAL LAW THEORY

Secular theories
Followers of this school believe humans have a certain conception
of morality which is intrinsic to them and to their nature. This
morality, which sometimes manifests itself in the form of conscience,
is made up of basic principles which form a basis for proper human
action. These principles are identifiable through the application of
reason, which is a faculty or capacity that all humans have, enabling
them to understand the universe. The principles make humanity
tend towards the virtues, such as justice and kindness, and away
from the vices, such as malice and violence.
 NATURAL LAW THEORY
Such principles, then, ought to form the proper basis for law
making and, to this extent, they constitute a ‘higher law’ to
which all human laws must strive to conform.
More recent Natural Law theories, such as that propounded by
John Finnis in his thesis Natural Law and Natural Rights, have
tended to deemphasise the metaphysical element of classical
Natural Law theories, with their reliance on a ‘higher law’, since
this has traditionally been a source of much criticism of the
Natural Law approach, especially by Positivist thinkers.

 NATURAL LAW

Instead, the modern theories have concentrated on the notion of

the ‘common good’, which is seen as the basis for the existence
of society, and argued generally that law must conform to or
advance the requirements of the general welfare if its existence
and operation is to be justified and if society is to continue to
exist and function as a viable entity.
 NATURAL LAW
Main presuppositions of Natural Law theory
Natural Law is based on value judgments which emanate from
some absolute source and which are in accordance with nature
and reason. These value judgments express objectively
ascertainable principles which govern the essential nature of
persons and of the universe. The principles of Natural Law are
immutable, eternally valid and can be grasped by the proper
employment of human reason. These principles are universal
and, when grasped, they must overrule all positive law, which will
not truly be law unless it conforms to Natural Law. Law is a
fundamental requirement of human life in society (Ubi societas,
ibi ius)
 THE GENERAL METHODOLOGY OF
NATURAL LAW THEORIES
First, many Natural Law theorists have a teleological view of the
universe and of human society. This means that they regard the
world, especially human society, as having an ultimate purpose.
Generally, this refers to some state of perfection, towards which
society must inexorably advance. It may also mean some social
goal which is regarded as being self-evidently ‘good’ and which,
it is assumed, all right thinking persons must desire, as when a
reference is made to the ‘common good’
 THE GENERAL METHODOLOGY OF
NATURAL LAW THEORIES
Secondly, Law, as a device for promoting the desired good, is
regarded as being a social necessity. Without it, persons in
society, although they would naturally tend towards goodness,
are liable to be corrupted by the exigencies of existence in a
relatively harsh and unfriendly environment; they will not be
able to achieve or even work purposefully towards the desired
goal. Law is therefore a guide to those working for the common
good and a deterrent to those who would work against it.
 THE GENERAL METHODOLOGY OF
NATURAL LAW THEORIES
All human laws must be created in such a way that they provide the
optimum conditions, resources and opportunities for the attainment of
the desired goal. Therefore, these laws must be constantly evaluated in
light of the principles of Natural Law, which specify the proper path
towards the ultimate state of perfection and which provide humans with
a proper basis for their morality and law.
The important question concerning the nature of law is, therefore, not
what the law is at any point in time, since this may not be a true
reflection of the principles of Natural Law, but what the law ought to be,
in order for it to be a true reflection of such principles
 THE GENERAL METHODOLOGY OF
NATURAL LAW THEORIES
Since the purpose of human laws is to provide for the attainment of
the ultimate state of perfection in accordance with the principles of
Natural Law, the validity or otherwise of laws must be judged in
accordance with the extent to which they accord with these
principles.
A law which substantially deviates from these principles is not only
a bad law, but can be regarded as invalid as well, since it does not
truly reflect the model of what law ought to be.
 THE GENERAL METHODOLOGY OF
NATURAL LAW THEORIES
The question of what the law ought to be is an important
question of morality, since it is ultimately based on the value
judgments of persons in society which are properly reached at
after the exercise of reason
RELIGIOUS TEACHINGS
A Source of Natural Law
 THE HISTORICAL ORIGINS OF
NATURAL LAW THEORY
Early beginnings
It is possible to trace Natural Law thinking from the earliest
stages of social development when, for many simple societies,
there was, at some stage, very little distinction made between
the religious and the secular, the spiritual and the physical. Many
early communities all over the world tended to see a link
between the natural world of physical matter and the spiritual
world of gods and spirits.
 THE HISTORICAL ORIGINS OF
NATURAL LAW THEORY
The spiritual world would be seen as being in control of the
physical, including human society and, with a multiplicity of
gods and spirits, there was a spiritual entity associated with the
workings of almost every aspect of the physical world. This
gave birth to the notion that there was some higher power in
control of human existence and, therefore, some higher set of
rules, principles or laws which humanity could discover with
effort, but which, if grasped, would reveal the plans of the
deities for human society.
 THE HISTORICAL ORIGINS OF
NATURAL LAW THEORY
In a harsh and capricious world, these divine plans must have
been seen as leading to an ultimate state of goodness, where life
would generally be easier for all members of society. This state of
perfection would be the purpose which the deities had in mind for
human society, and humans could assist, and indeed, had to
assist, the gods in their endeavours.
 THE HISTORICAL ORIGINS OF
NATURAL LAW THEORY
If humans could only decipher this purpose of the deities,
whether through reason or through revelation, they could then
govern themselves and organise their activity in a manner
which would hasten the attainment of the good life.
 THE CLASSICAL PERIOD AND THE
CHRISTIAN ERA
In Europe, the ascendance of the Judeo-Christian tradition replaced
the polytheism of the ancients with a monotheism which attributed the
creation, governance and ultimate judgment of human society to a
single deity. It was then possible to define a singular purpose for
human existence, with a divine lawgiver providing basic principles for
human morality and law through the scriptures and the revelations of
prophets, and demanding that societies govern themselves on the
basis of these principles, under the direction of kings and others ruling
by divine right.
 THE CLASSICAL PERIOD AND THE
CHRISTIAN ERA
Parallel to this spiritual/religious development of Natural Law,
early Greek and pre-Socratic philosophers developed the idea of
rationalism. They surmised that the universe was governed by
intelligible laws capable of being grasped by the human mind. It
was therefore possible to derive, from the rationality of the
universe, rational principles which could be utilised to govern the
conduct of persons as individuals in society.
 SOCRATES
NATURAL LAW THEORY
 THE CLASSICAL PERIOD AND THE
CHRISTIAN ERA
Examples of classical Natural Law thinking are:
1. Socrates (470–399 BC) and Plato (428–348 BC) argued that there
were principles of morality which it was possible to discover through
the processes of reasoning and insight. Law based on these principles
would thus be the product of correct reasoning.
2. Plato further developed the ‘idea’ of justice as an absolute ‘thing in
itself, having qualities of truth and reality higher than those of positive
law, which could then be seen as a mere shadow of real justice. Law
must constantly strive to approximate to the Absolute Idea of justice,
and ideal justice could only be achieved or fully realised in an ideal
state, ruled over by philosopher-kings, who would be capable of
grasping the Absolute Idea of justice.
 THE CLASSICAL PERIOD AND THE
CHRISTIAN ERA
Aristotle (384–322 BC) recognised nature as the capacity for
development inherent in particular things and aimed at a particular end
or purpose, both in respect to physical and moral phenomena. He also
made a distinction between:
(a) Natural justice, common to all humanity and based on the
fundamental end or purpose of human beings as social and political
beings, which he concluded to be the attainment of a ‘state of goodness’.
(b) Conventional justice, which varies from state to state in
accordance with the history and needs of particular human communities.
 THE CLASSICAL PERIOD AND THE
CHRISTIAN ERA
The Stoics identified nature with reason, arguing that reason
governs all parts of the universe and that humans, as part of the
universe and of nature, are also governed by reason. People will
therefore live ‘naturally’ if they lived according to their reason.
Cicero (106–43 BC) argued that nature provided rules by which
humanity ought to live; these rules, which could be discovered
through reason, should form the basis of all law.
 THE CLASSICAL PERIOD AND THE
CHRISTIAN ERA
In this regard, he claimed, in De Legibus: True law is right
reason in agreement with nature, it is of universal application,
unchanging and everlasting; it summons to duty by its
commands and averts from wrongdoing by its prohibitions… It
is a sin to try and alter this law, nor is it allowable to repeal any
part of it, and it is impossible to abolish it entirely.
 THE CLASSICAL PERIOD AND THE
CHRISTIAN ERA
And further, regarding the universality of law:
Nor will it be one law at home and a different one at Athens, nor
otherwise tomorrow than it is today; but one and the same law,
eternal and unchangeable, binding all peoples and all ages; and God,
its designer, expounder and enactor, will be, as it were, the sole ruler
and governor of all things.
Cicero established the view that an unjust law is not law, arguing
that a test of good law was whether it accorded with the dictates of
nature.
 THE MEDIEVAL PERIOD
This stage in European history saw the final integration of the
rationalist and the religious approaches to Natural Law. This was
mainly the work of St Thomas Aquinas (1224–74). Aquinas
divided law into four categories:
(a) Eternal law—which constitutes God’s rational guidance of all
created things and is derived from the divine wisdom and based
on a divine plan.
(b) Divine law—that part of eternal law which is manifested
through revelations in the Christian scriptures.
 THE MEDIEVAL PERIOD
c) Natural Law—which describes the participation of rational
creatures in the eternal law through the operation of reason.
(d) Human law—which is derived from both divine law and Natural
Law and which is, or must be directed towards the attainment of
the common good. This law may be variable in accordance with
the time and circumstances in which it is formulated, but its
essence is to be just. Thus, lex injusta non est lex (an unjust law
is not law).
 THE MEDIEVAL PERIOD
For Aquinas, a human law would be unjust where it:
1)• furthers the interests of the lawgiver only;
2)• exceeds the powers of the lawgiver;
3)• imposes burdens unequally on the governed.
Under these circumstances, disobedience to an unjust law becomes a
duty. However, such disobedience, though justified, should be avoided
where its effects would be to lead to social instability, which is a greater
evil than the existence of an unjust law.
 THE SECULARISATION OF NATURAL LAW

 This began with the decline of the Roman Catholic Church following from the
Reformation in Europe. Essentially, this secularisation resulted from Protestant
theorists seeking to develop a doctrine of Natural Law which would not be
dependent on the papacy and papal pronouncements for its coherence. One of
the main secular Natural Law theorists at this stage was Hugo
 Grotius, a Dutch statesman and jurist who, in his writings, sought to separate
Natural Law from its narrow theological foundations. Instead, Grotius emphasised
the classical explanation of Natural Law as being grounded in the authority of
reason based on the Aristotelian system— that is, that Natural Law principles are
derived or derivable from the nature of the human intellect, which requires and
desires society to be peaceful
 THE SECULARISATION OF NATURAL
LAW
Thus, these principles are independent of divine command, and it is
possible to have Natural Law without appealing to God. Any law
contrary to the principles so derived would be invalid from the point
of view of rationality, and laws could be seen as having a
constructive and practical function—the creation and maintenance of
a peaceful society.
 THE DECLINE OF NATURAL LAW
THEORY
The 18th and 19th centuries saw the decline of Natural Law theory
as it came under attack from rationalist and increasingly secularist
approaches to the problems of the human condition. In the 18th
Century, the ‘age of reason’, thinkers like Charles de Montesquieu
(1689– 1755), David Hume (1711–76) and Adam Smith (1723–90)
criticised Natural Law theory for its assertion that there was some
ultimate, metaphysical purpose to human existence and human
society, separate from the moral and physical realities of everyday
life.
 THE DECLINE OF NATURAL LAW THEORY
The 19th century also saw the rise of the Positivist approaches to
law, as expounded by such theorists as Jeremy Bentham and John
Austin, which sought to place a strict separation between the two
notions of what the law is and what it ought to be. Law and morality
could and, indeed, should be kept separate, and the principles of
Natural Law were regarded as belonging more to the realm of
morality than to that of law.
 THE REVIVAL OF NATURAL LAW
THEORY
The 20th century saw a decided revival of Natural Law approaches to
the study of law, particularly the notion that there must be a higher set
of principles, separate from the positive law, which the latter must
satisfy if it is to be regarded as valid law. This revival was the result of a
number of factors, including:
 THE REVIVAL OF NATURAL LAW
THEORY
1)The general decline of social and economic stability worldwide;
2) The expansion of governmental activity, especially the increasing
encroachment of state institutions on the private lives of citizens
through the medium of the law;
3) The development of weapons of mass destruction and their
increasing use in wars on a global scale;
4) Increasing doubts regarding the use and effectiveness of the
empirical sciences in determining and resolving problems of the
human condition.
 JOHN FINNIS—NATURAL LAW AND
NATURAL RIGHTS
JM Finnis proceeds from a denial of the criticism, first aired by
David Hume, that classical Natural Law theory irrationally sought
to derive an ought from an is, that is, to derive normative values
by reasoning from observed natural facts. He concedes that some
Natural Lawyers of the classical school, especially the Stoics and
the medieval rationalists, may have done so. However, he bases
his own restatement of Natural Law on the writings of Aristotle and
Aquinas, whom he claims were not guilty of this irrationality.
 JOHN FINNIS—NATURAL LAW AND
NATURAL RIGHTS
In his re-interpretation of the writings of Aquinas, Finnis argues
that the normative conclusions of Natural Law are not based on
observation of human or any other nature. Rather, they result
from a reflective grasp of what is self-evidently good for all
human beings and from a practical understanding gained by
experiencing one’s own nature and personal inclinations.
 JOHN FINNIS—NATURAL LAW AND
NATURAL RIGHTS
Finnis lists seven objective goods which he regards as being
irreducibly basic. These are:
1)life—the first basic value;
2)knowledge—a preference for true over false belief;
3) play—performance for the sake of it;
4)aesthetic experience—the appreciation of beauty;
5)friendship or sociability—acting for the sake of one’s friends’
purpose or well being;
JOHN FINNIS—NATURAL LAW AND
NATURAL RIGHTS
6) practical reasonableness—the use of one’s intelligence to choose
actions, lifestyle, character, etc;
7) religion—the ability to reflect on the origins of the cosmic order
and human freedom and reason
PROF. JOHN MITCHELL FINNIS, AC, KC (HON), FBA
NATURAL LAW AND NATURAL RIGHTS
 THE MAIN CRITICISMS OF NATURAL
LAW THEORY
Some of the main criticisms of Natural Law theory have been
articulated by writers and thinkers of the Positivist school.
Essentially, these have attacked Natural Law theory’s elevation of
propositions which, it is argued, cannot be empirically verified.
The close link which Natural Law places between morality and law
has also been seen as a result of irrationality and a source of
confusion. Some of the criticisms can be summarised as follows:
 THE MAIN CRITICISMS OF NATURAL
LAW THEORY
a)The attempt by Natural Law theorists to derive ought propositions
from is propositions is neither logically possible nor defensible.
b) Natural Lawyers are wrong to place a strong connection between
law and morality. Although law may sometimes reflect morality, the
two are distinct phenomena and should be recognised as such. An
analysis of the one should therefore not impinge upon our
conception of the other. A law can be valid because it has been
created validly, even though it may offend our moral sensibilities.
 THE CONTRIBUTION OF NATURAL LAW TO
LEGAL THEORY
. Probably the most significant contribution of Natural Law theory to
legal discourse is its invitation to all and sundry to critically reflect
upon the law as a social instrument for attaining various ends,
which may be shared by the majority of people in a community or
by a few persons in a position of political control.
The emphasis on the link between law and the moral values and
aspirations of persons in society is a recognition of the extent to
which law controls the everyday lives of citizens. An appreciation of
this fact will allow us to see law as something which can be used
positively or negatively and, as such, something which we need to
be constantly evaluating if we are not to allow society to slide into
tyranny and chaos
 THE MAIN CRITICISMS OF NATURAL
LAW THEORY
c) Morality is a matter of personal value judgments, which may change
erratically for a variety of reasons. It is therefore undesirable to base the
development of law, with its necessary requirement for certainty and
predictability, on moral considerations as the Natural Lawyers would
have us do.
d) The appeal by some Natural Law theorists to the existence of a
‘higher law’, which should be a measure of moral and legal propriety, is
an appeal to irrationality, since it is not possible objectively to
demonstrate the existence of such principles
THE END/ LA FIN
SEPTEMBER 2022