Jurisprudence Essay Example for Free

canon EssayThe term enactment has been used in very different senses. Origin aloney it meant the science of Right. Afterwards it was used to mean fellowship of the patterns of legal philosophy, or skill in its practice. In the institutes of Justinian Jurisprudence is define d to be the experience of what is moreover and unjust. Upon the revival of learning in Europe in the sixteenth century, command was used to allude the knowledge of the Roman justness of nature. The term has also been used in a sense borrowed from the French to imply a collection of the principles belonging to particular branches of jurisprudence thus, Equity Jurisprudence, Maritime Jurisprudence. The term has also been used to signify the whole body of the law of a Statethus, the Jurisprudence of England. The classification of laws has never save been choose upon the grand scale demanded by Jurisprudence. If a system of the Law were correctly framed, and if codes of laws were drafted of one tru e principle by all civilized nations, the language of each race would serve as a rubric by which all systems of positive law might be explained whilst the matter in each code would afford a test and standard by which all might be tried.By law is here understood positive lawthat is, the law existing by position, or, the law of kind-hearted enactment. Jurisprudence is the science of positive laws, and, as such, is the theory of those duties which are capable of being enforced by the universal authority. Jurisprudence, so treated, may take its place as one of those inductive sciences in which, by the contemplation of the circumstances and use of reason, systems of doctrine have been established which are universally received as truths among thoughtful men. entirely Jurisprudence in its in its investigation of the origin, principles, and development of law, obviously furnishes rules which teach men to acknowledge and strike good laws, to shun evil laws, and to practice the existing laws and apply them skillfully. Hence, Jurisprudence is not only the cognition of Positive Laws but is also the Art of Legislation and the practice of Advocacy. A Jurist may solid ground principles of law in his study, enact laws in the senate, or advocate rights in his forum (Heron, 2001).Jerome and West functionThe American Legal Realists exhibited many and diverse, not al itinerarys compatible, attitudes towards the possibilities of exploring the future, even magic spell making important constituents to demand theory and procedures. Thus Jerome Frank was a leader in deriding the possibilities of predicting official behaviour by the lotion of traditional legal rules and was most skeptical of the potentialities of reliable prediction by any means yet he made uniquely significant contribution by drawing upon many psychologies to demonstrate the immensity of predispositional factors (the subjectivities of decision makers) in affecting all decision.The insistence of the Reali sts, already described, that technical legal rules be colligate to categories of events in community process that raise comparable policy problems has tremendously increases the possibilities of achieving comprehensive and precise commentary of relevant past trends in decision and value consequences (Lass tumefy McDougal, 1992). Jerome Frank has set out in his well kn let fly the coop to analyze the law from a psychoanalytical point of view.In the traditional direction and presentation of the law Frank discerns a desire for certainty which he likens to the infants want for infallible authority (father complex). Lawyers in popular, and judges in particular, have clung to the story of legal certainty, by establishing delusive system of precedents, hiding before themselves and others the fact that every case is unique and requires creative decisions. A identical myth surrounds the activities of juries. Analytical jurisprudence expresses this child like desire for certainty an d stability.Franks own ideal is the the completely adult lawyer (Marke, 1995). Although Gray joins Holmes as one of the two great jurisprudential heroes for Jerome Frank, Karl Llewellyn, and the other legal realists, he is much more than that he is a kind of American stool Austin, but one whose analytical Jurisprudence does not act as if legal concept originated and unquestionable outside legal history. He represents the positivistic branch of the American pragmatic legal tradition.He is close to Austin than Holmes, than but not as influenced as Holmes or John Dewey by historical jurisprudence, or the evolutionary controversy, or the increasing respect philosophers paid to the very idea of historical development( Gray,1999). Jerome was heavily comminuted of the work of Christopher Columbus Langdell, the American legal academic whose is best known for introducing the case method of command law into American law Schools. Langdell viewed law as a science, which could be practiced very only when by applying legal rules mechanically to peculiar(prenominal) cases recorded in the law reports.Langdells method rest heavily on the positivistic notion that law resided solely in the reports of decided cases or in statutes. Jerome criticized this arguing that Langdellian legal science had very little to do with law, because it overlooked such things as the lawyer-client kindred and the rule of the jury. He argued that Langdells attitude towards law was typical of what he termed the basic legal myth lawyers promote the myth that legal rules can be applied in a mechanical way because they, like all human beings, are constantly looking for certainty.The purpose of Realism, on the other hand, was to unveil this myth. This concern with what Frank saw as law in action, rather than with the legal myth of the law in the books, was typical of the concerns expressed by members of the legal realist movement. The contradiction which can be found in the work of not only of Je rome, but also of another American Legal Realists, is a sound flaw. However, American Legal Realism, with it emphasis on law in action rather than law in the books had a positive contribution to make to the development of Jurisprudence(Cownie, Bradney Burton, 2007).While some sought a permanent bushelent, others, such as Mackinnon and Matsuda, sought to refashion old tools to serve new purposes. The tally protection article of the American constitution waited a promising candidate, and the Jurisprudence of antisubordination was born. West, Kennedy, Mackinnon and Matsuda are united in the belief that outsiders exit not find freedom, justice, or equality in the law as it is. They insisted that laws empire is defined not by attitude, but by what really happens (and what does not happen).Inequalityis not a bad attitude that floats in the sky but an embodied particular that walks on the ground. An attitude of equal concern, one might say, can very easily leave unaltered the embod ied particulars that constitute the earthly concern of inequality as opposed to the theory (Berns, 1993). By promoting the idea that rights are crucial for the protection of singular autonomy, Robin West argues, noble jurisprudence fails adequately to represent more identifiably feminine determine such as intimacy and care.Liberal jurisprudence is essentially masculine jurisprudence, in other words, because it prioritizes the distinctively male ethic of justice or rights. Robin West claims, it is nevertheless an institution within which we work from a position of relative disempowerment. For feminist legal theorists, this sense of marginalization is attributable primarily to the fact that critical legal studies, like big(p) jurisprudence, fails sufficiently to take into account womens experience, values and concerns (Duxbury, 1997).In 1988, Robin West began her well known-article Jurisprudence and Gender by asking WHAT IS A HUMAN being? What is a human being? Legal Theorist m ust, perforce, answer this question jurisprudence, after all, is about human beings. Robin West. She concluded that women are not human beings insofar as legal theory is concerned. Her question, and the contribution of feminist theory to answer, forms a central theme to this work. If the definition of a human being is central to jurisprudence, it is vital to uncover whether that definition adequately encompasses all human beings.Western conceptions of human beings have been understaffed in that they have failed to encompass all human beings. In some instances this is because of the inherent constitution of the definition, while in others, the problem arises from the way theories have been misinterpreted (Marshall, 2005). Towards a Fist Amendment Jurisprudence of Respect. Robin comments that Goerge Fletchers upstart article helps us see that those understandings, in turn, rest on two different conceptions of what he labels our senses of ingrained identity.Although it is largely undefined by Fletcher, we might take his phrase fundamental identity to refer to refer to that aspect of our collective and individual self-conception which we owe to our shared constitutional heritage, and which at least on join determines outcomes in close constitutional heritage, and which at least on occasion determines outcomes in close constitutional cases in ways that overarching principles of political morality do not.The two understanding of our constitution identity that seem to bolster these conflicting accounts of the constitutional status of hate speech regulations might be called, however unimaginatively, the liberal and the progressive paradigm. Both the liberal and unquestionably dominant account of free speech and the correlative liberal arguments against the constitutionality of hate speech regulations are deeply familiar.Both were recently affirmed by the Supreme Court, and both(prenominal) are eloquently spelled out in Fletchers article. Like prayer in earlier times, verbalism of our innermost selves is a vital means of self fulfillment, and hence it is itself a moral act of utmost order. We each bare our individual, our innermost souls when we express ourselves. And, because we value individual souls, we protect and value our speech, whatever its circumstance or side effects.We protect expression today for essentially the same reason we once defend religionnamely, the constitutive role of expressive religion in earlier times, and expressive speech today, in the development of the individuals personality(West,1994). Relevance of Jurisprudence The broad division of jurisprudential inquiry indicates that jurisprudence covers a wide area of study, dealing with a variety of issues and topics, as well as jot on a whole range of other subjects and disciplines.The unifying element in all these aspects of the study, however, is that, in every case, the main question that is being investigated and to which an answer is being sought is, briefl y, what is law? According to Chinhengo (2000), essentially, all jurists are seeking to explain the incidence, existence and consequence of law as a social phenomenon. Consequently, general questions to be answered are concerned with such matters as the following the origin and sources of law generally and/or in specific societies the historical development of law in general and the emergence and evolution of specific legal systems, traditions and practices the meaning of specific legal concepts and the construction of various legal structures and processes the link between law and other social phenomena, such as political ideologies, economic interests, social classes, and moral and religious conventions the deed of the law as a mode of social control and the effects that it has on the persons to whom it applies, in hurt of justice as well as social, economic and political developments.This interdisciplinary quality of jurisprudence has meant that a student of the subject has to touch on matters that would normally belong to such diverse other disciplines as philosophy, economic theory, sociology, anthropology, history, theology, and even geography. Within all these other areas of study are to be found the munitions of the jurists, who uses the conclusions and insights of scholars studying in such areas to explain law as a social phenomenon, and applies the methodology of these other modes of interrogative sentence to further the understanding of particular legal concepts.In conclusion Jurisprudence, as a subject in many law school curricula, is intended to provide the law student with a device by which he can ground his or her academic knowledge of the black-letter of the law to the reality of the social mount in which the legal rules, structure and processes actually occur and operate. The idea, then, is to link the wealth of legal concepts, rules, statutes, precedents, structures, and processes, which one has imbibed randomly over a period of time, to the systematic theoretical and sociological insights about the role and place of law in society which jurisprudence seeks to provide (Chinhengo, 2000).