jurisprudence

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jurisprudence

jurisprudence (jo͝orˌĭspro͞odˈəns), study of the nature and the origin and development of law. It is variously regarded as a branch of ethics or of sociology. Many of the major systematic philosophers (e.g., Aristotle, St. Thomas Aquinas, and Kant) have expounded jurisprudential theories. Before the 19th cent. most jurisprudents adhered to natural law, which maintained that sound legal doctrine was derivable only from a supposed law of nature established by divine ordinance. The natural-law school did not deny that the details of legal regulation depended upon the will of the sovereign. However, the positivist, or analytical, school, which first became important in the late 18th cent., insisted that law was entirely a matter of sovereign decree, distinct from morality and theology. Among important 19th-century trends was the view, represented by Savigny, that a people's legal system expressed the national spirit. In the mid-19th cent. many jurisprudents attempted to avoid what they felt were theoretical preconceptions and to demonstrate a uniform evolution from primitive times to modern industrialized society. Other thinkers were skeptical of evolutionary explanations and sought the basic principles underlying all systems of law in various fields, including economics and psychology. Among the more important legal thinkers in the United States have been Learned Hand, Oliver Wendell Holmes, and Roscoe Pound.

Bibliography

See J. Hall, ed., Readings in Jurisprudence (1938); W. S. Carpenter, Foundations of Modern Jurisprudence (1958); D. Lloyd, Introduction to Jurisprudence (3d ed. 1972).

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jurisprudence

legal and sociological theories which seek to situate the body of laws and legal institutions in an overall social context. Thus, jurisprudence to some extent overlaps with the SOCIOLOGY OF LAW.

Historically, it is possible to identify the following subdivisions of jurisprudence:

  1. legal positivism, e.g. Kelsen's conception of law as an objectively statable, hierarchical system of norms, or Hart's view of law as resting on ‘basic norms’. This view of law has been seen as ‘in tune’ with traditional legal professionalism, and viewed by its practitioners as involving theories requiring little input from social science. Jeremy BENTHAM's application of utilitarianism to legal reform can also be seen as a form of legal positivism;
  2. natural law theories (see NATURAL RIGHTS AND NATURAL LAW), theories which were a main target of the legal positivists;
  3. historical and evolutionary theories, e.g. MAINE's theories, and Savigny's account of laws as reflecting the custom or Volkgeist of a nation or people;
  4. conflict theories, theories which emphasize the conflicts of interest underlying the formation and social control functions of legal systems, e.g. Roscoe Pound's ‘pluralism’;
  5. legal realism, US approaches influenced by PRAGMATISM, which emphasized the social basis, and fluid, ‘living character’ of law.

All of the above approaches have exerted an influence on the sociology of law, but a recent resurgence of sociolegal studies has owed much to a new vein of empirical sociological studies of legal systems and he operation of the law.

Collins Dictionary of Sociology, 3rd ed. © HarperCollins Publishers 2000

jurisprudence

1. the science or philosophy of law
2. a system or body of law
3. a branch of law
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Collins Discovery Encyclopedia, 1st edition © HarperCollins Publishers 2005