Jurisprudence, that is, law that has already been

 

Jurisprudence, can be defined as the
science of law, the study of law or the philosophy of law. Jurisprudence helps
lawmakers, law enforcers and the public to understand the creation, application
and enforcement of laws or in simpler words it helps them understand the nature
of law. (Dugger, 2013)

 

The nature of law is concerned about is
how individuals explain law, that is, the personal bias or lens which, an individual uses to view matters concerning the law.
Everyone has a way in which they look at things, and in which they view the
world, in the same way, people who interact with the law do so from different
perspectives.

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 In law there are many kinds of people who
perceive law from many different angles. Some people believe the state has
sovereign authority, hence they are obligated to follow commands, others are
guided by values of ethics and justice, and so on. In this piece of
writing, I will be going through various schools of jurisprudential thought and
the principles that guide them.

 

1.        Political science concept

 

Political science deals with positive
law, that is, law that has already been written down. Individuals who view law
from the political science perspective, talk about commands given and enforced
by the state, which it does through its sovereign political authority. They
believe that people are commanded to do something and if they do not comply the
state will enforce it.

 

This thinking can further be explained
looking at the theory of social contract by the philosopher Thomas Hobbes. In
the animal kingdom, the lion wakes up knowing that it must out run the weakest
gazelle, and the gazelle also wakes up knowing that it has to run faster than
the fastest lion, this is the state of nature. Life in this state of nature is
described by Hobbes as short, brutish and cruel.

 

Therefore human beings, desiring to be
an exception to this state of nature, enter into what Hobbes calls a ‘social
contract’ where we recognize that all of us are able to do numerous things
independently, but that, that kind of life is short and brutish and cruel, so
we all decide that we are going to pick one person (or group of people), who we
are all going to give our (main) powers, to exercise them on our behalf, we
expect them to put in place structures that are going to benefit each one of us.

 

Ordinarily, political science theory comes
from this form of thinking: that we have given someone political sovereignty
over us, hence the ability to make commands and enforce them.

 

Using the example of Swaziland’s reed
dance, one can say that because it is ordered by the king (the sovereign
political authority) that the citizens must present their girls to the king,
then it must be done without question, and if not, the king will enforce it by
forcing them to come through the use of police or by enforcing a punishment for
noncompliance, such as monetary fines.

 

 

 

 

 

 

 

 

2.      
Philosophical concept: 

 

Philosophers by their very nature are
usually people who are concerned with the reasoning surrounding issues. Under
this concept laws are judged through ethical and justice principles.

 

It is no longer about what you have been
told, but why you have been told to do it. Is it justifiable? Is it
ethical?  Here Philosophical jurists are
concerned with the formation of an ideal system of law that will be based upon
ethical principles of justice.

 

In Swaziland, the reed dance, a Swazi cultural tradition that celebrates
chastity and virginity, where
a large number of women go and display themselves in front of the king, and are
expected to dance bare-breasted in parade, and the king is allowed to
choose a wife. Those who do not go are often fined, charges which the
majority cannot afford.

 

If an individual is coming from a
philosophical concept perspective, the question will not be that this rule has
been put in place, and therefore every woman must go, without
question and display herself in front of the king, they will now
question the ethics and justice principles behind the law/command, asking
themselves if it is good or bad for our daughters to be doing this every year,
is this justifiable that they as  parents
have to send my daughter far away every year for this festival?  Is it ethical for women to be made to parade
partially nude, especially against their moral will?

 

The jurists here seize to be rule-following
robots, and become reason-oriented, as well as value-oriented human beings

 

3.      
Sociological concept:

 

Here law is viewed as a means of
achieving and advancing certain sociological goals. Here jurists are concerned
about the type of society they desire to see. They believe that most of
the laws which are enacted today come from a realization that there is a gap,
in society which needs to be filled. 

 

For instance, when the Two-Thirds (2/3) Gender
Rule was enacted, the Kenyan Government was trying to address the social need
for gender equality in positions held in government. They did not want the
government to seem discriminatory towards any gender. It was thought that men
often dominate many positions in government so, they needed to provide some
form of protection for this category of women, so that they are also able to
participate in society, and take up government positions, just like men. 

 

Therefore, if you view law as a tool to
help improve society, then you view law from a sociological
concept/perspective.

 

You can also explain the reed dance from
a sociological perspective, where one could say that this festival can help
bring tourists into the country and they obtain a lot of money from it, which
helps build roads, and brings in extra income for the people (as often explained
by Swaziland officials), hence enforcing the participation of the country’s
women in this festival, would help advance sociological goals. 

 

 

 

 

 

 

4.      
Analytical concept: 

 

In this school of thought, jurists
believe that law is shaped by logic.  It
deals with positive law. Here they take a piece of law and analyze/scrutinize it.
They search for the central principles and theories underlying the deliberate
laws laid out and enforced by the state.

 

For example, there is a provision in the
Kenyan constitution that requires the Independent Electoral and Boundaries
Commission (IEBC) to conduct free, fair, transparent, verifiable and
accountable elections.

 

An analytical concept will look at this positive
law, and analyze how it has been written. The guiding factor being the general
welfare of the people or utility (how can it be used; what is the
meaning/purpose; how can we make it useful for the people)

 

An example to look at would be the
approach to the appeal of the presidential elections in Kenya, in the years
2013 and 2017. In the appeal for the Kenyan presidential elections in 2013, the
petitioners argued that ‘the process mattered’, that is how you vote, tally,
transmit and announce the votes is very important, while the IEBC argued that
numbers are what mattered, that is you could do whatever it is you wanted while
voting, while transmitting, while announcing, but as long as the number is what
is was supposed to be everything should be fine. 

Hence the Chief Justice of the time took
the position, that numbers are indeed all that mattered.

 

But the Chief Justice of the Supreme
court of Kenya in 2017, from an analytical concept view thought about, how can
we better make use of our laws for the general welfare of society, coming to
the conclusion that we cannot always just look at the numbers, because it is
the process that always makes people go to the streets, and start fighting,
therefore he overturned the decision of the previous chief justice. Not because
the previous chief justice was wrong, but because the law allows him to make
sure that the general welfare of the society is protected.

 

5.      
Historical concept:

 

The law is thought to be aggregate of
social traditions and customs. The historical concept sees the people of the
state as law-makers, through the formation of habit and customs. The historical
jurists believe that human nature in itself is what creates law and not the
legislative authorities, they say that the nature of law should be analyzed by
looking at the people’s customs and traditions, which they believe have a
higher legal power than the legislative bodies themselves.  (Dhawan, 2012)

 

Historical jurists talk about the modern
law but look at it from historical point of view, because they respect history
very much. When thinking about the historical concept one should think about
how grandparents will often tell their grandchildren about life when they were
growing up. Some would talk about past presidents, traditions, behaviors, wars
and how the nation was and compare it with how it is now. This history will
affect their view of numerous things, including the law and how to implement
it.

 

 Another example can be derived by looking at the
Swaziland reed dance, someone who comes from the historical concept might look
at the controversies surrounding the festival and say that because this
festival has been held for many years in the past, has been a part of
Swaziland’s culture and tradition for years, has been a part of the citizens
lives, has been a source of income for many poor girls and their families, and
for the most part has been approved by the people, there would be no reason to
take these controversies into consideration. What has worked for the Swazi
people in the past should work for them now.

 

6.       Comparative
concept:

 

Comparative jurists examine and compare
historical and current legal systems, and relevant sciences to try and reach
sound judgements regarding law. They may study different angles of the same law
and compare them. Trying to look out at the outside environment for new ideas
in how to deal with law.

 

Comparative jurists are looking for
sound solutions from everywhere and in everything, to assure themselves
that the conclusion reached is very good for the future of their country.

 

An individual may desire to improve a
law or legal process within their own country and through the eyes of a
comparative jurist, decide to look at how other countries deal with the same
law or process, and then compare it with their system and find out why one
works and the other does not, make suggestions for changes in law, and possibly
implement their improvements.

 

An example can again be derived by
looking at Swaziland’s reed dance. A comparative jurist might look at the legal
system within Swaziland and the legal system of other countries, with similar
legal history (that is other African countries which started out with an
absolute monarchy system of authority), as well as systems with slightly
different legal history and come to the conclusion that, it is not right for
the king to have so much power and rid his people of their rights, by forcing
them to parade bare-breasted if they do not desire to. They might look at other
African nations with similar legal history and decide that it may be best for
the country to move from their system of absolute monarchy to one of democracy,
for this very reason.

 

7.       Conclusion

These
are a handful of the schools of jurisprudence, that explain the origin and
nature of law today. It is very common to find that individuals share beliefs
from several of the different schools, some beliefs being stronger than others.
It is clear to see the many different angles from which an individual may
choose to view the same legal matter, and it is key to note that no view is
more wrong or correct than the other, it is all subjective.

 

 

 

 

 

 

 

 

 

 

 

 

 

References

Dhawan, S. (2012, June 20). 6 Modern Schools of
Law – Analytical, Historical, Philosophical, Comparative, Sociological and
Marxian Concept of Law. Retrieved from Shareyouressays:

6 Modern Schools of Law – Analytical, Historical, Philosophical, Comparative, Sociological and Marxian Concept of Law


Dugger, A. (2013, April 23). Schools of
Jurisprudence: Theories & Definitions. Retrieved from www.Study.com:
http://study.com/academy/lesson/schools-of-jurisprudence-theories-definitions.html
 

 

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