Key Terms in Jurisprudence

THEORIES AND
KNOWLEDGE OF LAW
OUTLINE OF DISCUSSION
o What is jurisprudence and its relevance
o Key terms and vocabulary
o What is law
o Normative character of the law
o The spelucean explorers case
o Introduction to key philosophers
WHAT IS JURISPRUDENCE
 From two latin terms juris prudential – science of the law or
knowledge
 Distinguish between philosophy ( love of wisdom) and law
 Distinguish between philosophy from the other sciences
 Philosophy as a human activity
 Philosophical investigations
 Philosophy establishes and clarifies basic principles of law
 Philosophy referring to case law- how each judge deals with
a matter
RELEVANCE OF JURISPRUDENCE
 Base for critical thought- not to look at law as authority
 Look at law in its context- political, social, historical etc
 Jurisprudence links to other fields such as sociology,
psychology etc which are key to understanding law
 helps students to question assumptions
 Jurisprudence involves the study of general theoretical
questions about the nature of law and legal systems, about
the relationship of law to justice and morality and about the
social nature of law.
 Understand subject matter in law- looking at rules and
principles of law.
KEY TERMS OF VOCABULARY
 Absolutism – no limit to the rights and power of government.
 Prior reasoning- reasoning that proceeds by reaching
conclusions from what happened before
 Dialetic- process of obtaining truth and knowledge of any topic
 Empiricism – experience as the source of knowledge
 Epistemology – how knowledge is acquired
 Cognitivism - act of knowing – knowing absolute truth about
things
 Hegemony- influence by only one class of people
 Fascism- industrial action controlled by one class, no political
opposition allowed
CONTINUATION ON KEY TERMS
 Idealism – reality is fundamentally mental in nature
 Imperative theory of the law- law being in the nature of a
command
 Induction – inferring a general principle or law from observation of
particular instances
 Materalism – world is entirely composed of matter
 Dialetical materialism- embracing philosophy of nature and science
(it is associated with Marxism )
 Historical materialism- Marxist view of history – looking at the great
moving power of all human events in the economic development of
society.
 Natural law- status of law and morality
 Ought- principle expressing an obligation and duty
 Positivism – law as decreed or stated irrespective of its content
 Post-modernism – reactions against naïve and earnest confidence
in progress and against confidence in objective scientific truth.
 Pragmatism – belief that the meaning of a doctrine is the same as
the practical effects of adopting it.
 Realism – something, fact, affair has a real existence- looking at
the actualities of a situation.
 Social contract- political power in the idea of a contract
( contract formed between the citizens and the sovereign power)
 Teleological – everything has a preordained end or purpose
 Utilitarianism – greatest good for the greatest number of
people
WHAT IS LAW?
 This discussion should be guided by what law is from what the students know in
terms of introducing law.
 Set of rules that govern a country or communities.
 It is intended to regulate the conduct of people
 It is in the form of constitutions, legislations, code,
 If the law is broken it is subject to punishment
 Law is associated to a legal system that operates in a society
 Hart describes law as a complex social and political institution with the ruled
governed aspect. He also defines it as coercive orders that forces people to
behave.
 Kelsen defines law as a coercive norm or guide
 J Austin- defines law as a rule laid down for the guidance of an intelligent being
an having power over him.
 Law is important for rational beings
NORMATIVE CHARACTER OF THE LAW
 Consider law from a critical point of view
 Laws are not statements of facts- but rules or norms-
prescribing conduct.
 Rule will prescribe the consequence of non-compliance
 law has similar normative usages such as commands, ethical
or religious code of conduct
 Normative rules – can be true or false
 Normative rules- standard of correctness in terms of behavior
 Normative rules state what ‘ought to be’- what is to happen.
THE CASE OF SPELUCEAN EXPLORERS
 Discuss the facts of the case
 The decision of each judge ( Truepenny, Foster, Tatting,
Keen, Handy)
 Differentiate the views of each judge and how law and
morality comes into the picture.
INTRODUCTION OF KEY PHILOSOPHERS
 Plato ( existed between 427-347 BC)- soul separate from the body
 Aristotle ( 384-322 BC)- freedom is a good, God the unmoved mover
 Augustine ( 345-430 BC)- combining faith and reason- just war theory
 Thomas Aquinas – natural law theorists
 Thomas Hobbes (1588-1679)- social contract –people desire security and
peace
 David Hume- (1711-1777) “Nothing is in the mind that was not ﬁrst in the
senses”
 Jean Jacques Rousseau (1712-1778)- social contract- the importance of
freedom
 Immanuel Kant( 1724-1804) -Recognises the empiricist claim that sense
experience is the source of all beliefs, but thought that such beliefs are
justiﬁed

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