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The jurisprudence, also known as philosophy of law, traces its origins to the early 19th century when Georg Wilhelm Friedrich Hegel, a seminal German philosopher, introduced his influential work, “Elements of the Philosophy of Right” in 1821 and, shortly after, the English philosopher John Austin contributed to the discourse with his publication, “The Province of Jurisprudence Determined,” in 1832.
Despite such beginnings, the roots of jurisprudence extend back to ancient times. Greek philosophers, notably Aristotle, had already engaged in deep reflections on the nature of law, leaving a legacy that continues to be a subject of study in contemporary jurisprudence.
1. What is Jurisprudence?
Jurisprudence is a discipline that seeks to understand and expound upon the very essence of law. Its primary purpose is to explore the fundamental concepts, purposes, and principles underlying the law. In modern times, the jurisprudence has become an integral part of legal studies globally, standing alongside other legal theories in law school curricula.
The role of jurisprudence can be multifaceted. It encompasses various tasks, including: (1) defining law and elucidating the principles that constitute the juridical science; (2) offering a distinct methodology for the juridical science; (3) examining law through a sociological view; (4) introducing and clarifying concepts of law; and (5) suggesting legal policies from a ‘de lege ferenda’ perspective (‘de lege ferenda,’ a Latin term, refers to the concept of law as it should be or could be in the future, often used in contrast to ‘de lege lata,’ which means the existing law).
To fully appreciate jurisprudence, it is crucial to delineate its scope and distinguish it from related fields such as philosophy, juridical science, sociology of law and political philosophy. Although there are intersections, each field has its unique focal point.
A key debate in the legal academic community is whether the general theory of law, which aims to define the concept of law and its basic notions, should be considered a part of the jurisprudence. Some scholars argue that the general theory of law falls under the juridical science due to its focus on defining and connecting general concepts of law. Others, however, contend that the general theory of law and the jurisprudence are distinct, because the former goes beyond the mere definition of general concepts to critically analyze legal doctrines and their evolution in response to changes in positive law.
2. ‘Quid jus?’ và‘Quid juris?’
A central inquiry in jurisprudence is encapsulated by two questions posed by Immanuel Kant, another towering figure in German philosophy, in his work “The Metaphysical Elements of Justice.” Those questions are “Quid jus?” (What is law?) and “Quid juris?” (What is of law?).
The first question, “Quid jus?”, invites a broad examination of law as a concept, provoking thoughts on the nature of justice and injustice. In contrast, “Quid juris?” delves into the practicalities of law, focusing on its manifestation as a set of legal rules in reality, i.e. positive law. Kant argued that the juridical science might not provide a definitive answer to “Quid jus?”, but it could address “Quid juris?”.
This distinction underscores a fundamental point: while the juridical science deal with the study and application of law, the jurisprudence defines what law is in its universal concept. A definition of law lies outside the purview of specialized branches of law, but remains a cornerstone of jurisprudence.
Historically, societies always have positive law — sets of enforceable legal rules and institutions designed to guide social conduct. These systems, varying across time and cultures, are the study focus of the juridical science. Juridical science is broadly categorized into public law and private law, each further subdivided into specialized subjects. For instance, public law includes areas like international law and constitutional law, while private law covers fields such as civil law and commercial law.
Kant further explores this dichotomy in his essay “The Conflict of the Faculties”, where he distinguishes the roles of the jurist and the philosopher. He suggests that the jurist is primarily concerned with the study and application of positive law. In contrast, the philosopher’s realm includes probing the essence of justice itself.
Jurisprudence’s domain extends beyond the practical application of law, which is the primary concern of the juridical science. Jurisprudence delves into the broader, more abstract notions of what law is and should be.
In summary, jurisprudence transcends the practicalities of legal doctrines and positive law. It engages in a deeper, more critical exploration of the law, its underlying principles, and its potential future developments, thus contributing significantly to the broader discourse on legal theory and practice.
