Jurisprudence, can be defined as thescience of law, the study of law or the philosophy of law. Jurisprudence helpslawmakers, law enforcers and the public to understand the creation, applicationand enforcement of laws or in simpler words it helps them understand the natureof law. (Dugger, 2013) The nature of law is concerned about ishow 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 theworld, in the same way, people who interact with the law do so from differentperspectives.
In law there are many kinds of people whoperceive law from many different angles. Some people believe the state hassovereign authority, hence they are obligated to follow commands, others areguided by values of ethics and justice, and so on. In this piece ofwriting, I will be going through various schools of jurisprudential thought andthe principles that guide them.
1. Political science concept Political science deals with positivelaw, that is, law that has already been written down. Individuals who view lawfrom the political science perspective, talk about commands given and enforcedby the state, which it does through its sovereign political authority.
Theybelieve that people are commanded to do something and if they do not comply thestate will enforce it. This thinking can further be explainedlooking at the theory of social contract by the philosopher Thomas Hobbes. Inthe animal kingdom, the lion wakes up knowing that it must out run the weakestgazelle, and the gazelle also wakes up knowing that it has to run faster thanthe fastest lion, this is the state of nature. Life in this state of nature isdescribed by Hobbes as short, brutish and cruel. Therefore human beings, desiring to bean exception to this state of nature, enter into what Hobbes calls a ‘socialcontract’ where we recognize that all of us are able to do numerous thingsindependently, but that, that kind of life is short and brutish and cruel, sowe all decide that we are going to pick one person (or group of people), who weare all going to give our (main) powers, to exercise them on our behalf, weexpect them to put in place structures that are going to benefit each one of us. Ordinarily, political science theory comesfrom this form of thinking: that we have given someone political sovereigntyover us, hence the ability to make commands and enforce them. Using the example of Swaziland’s reeddance, one can say that because it is ordered by the king (the sovereignpolitical 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 byforcing them to come through the use of police or by enforcing a punishment fornoncompliance, such as monetary fines.
2. Philosophical concept: Philosophers by their very nature areusually people who are concerned with the reasoning surrounding issues. Underthis concept laws are judged through ethical and justice principles. It is no longer about what you have beentold, but why you have been told to do it. Is it justifiable? Is itethical? Here Philosophical jurists areconcerned with the formation of an ideal system of law that will be based uponethical principles of justice.
In Swaziland, the reed dance, a Swazi cultural tradition that celebrateschastity and virginity, wherea large number of women go and display themselves in front of the king, and areexpected to dance bare-breasted in parade, and the king is allowed tochoose a wife. Those who do not go are often fined, charges which themajority cannot afford. If an individual is coming from aphilosophical concept perspective, the question will not be that this rule hasbeen put in place, and therefore every woman must go, withoutquestion and display herself in front of the king, they will nowquestion the ethics and justice principles behind the law/command, askingthemselves if it is good or bad for our daughters to be doing this every year,is this justifiable that they as parentshave to send my daughter far away every year for this festival? Is it ethical for women to be made to paradepartially nude, especially against their moral will? The jurists here seize to be rule-followingrobots, and become reason-oriented, as well as value-oriented human beings 3. Sociological concept: Here law is viewed as a means ofachieving and advancing certain sociological goals. Here jurists are concernedabout the type of society they desire to see.
They believe that most ofthe 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) GenderRule was enacted, the Kenyan Government was trying to address the social needfor gender equality in positions held in government. They did not want thegovernment to seem discriminatory towards any gender. It was thought that menoften dominate many positions in government so, they needed to provide someform of protection for this category of women, so that they are also able toparticipate in society, and take up government positions, just like men. Therefore, if you view law as a tool tohelp improve society, then you view law from a sociologicalconcept/perspective. You can also explain the reed dance froma sociological perspective, where one could say that this festival can helpbring tourists into the country and they obtain a lot of money from it, whichhelps build roads, and brings in extra income for the people (as often explainedby Swaziland officials), hence enforcing the participation of the country’swomen in this festival, would help advance sociological goals.
4. Analytical concept: In this school of thought, juristsbelieve that law is shaped by logic. Itdeals with positive law.
Here they take a piece of law and analyze/scrutinize it.They search for the central principles and theories underlying the deliberatelaws laid out and enforced by the state. For example, there is a provision in theKenyan constitution that requires the Independent Electoral and BoundariesCommission (IEBC) to conduct free, fair, transparent, verifiable andaccountable elections. An analytical concept will look at this positivelaw, and analyze how it has been written.
The guiding factor being the generalwelfare of the people or utility (how can it be used; what is themeaning/purpose; how can we make it useful for the people) An example to look at would be theapproach to the appeal of the presidential elections in Kenya, in the years2013 and 2017. In the appeal for the Kenyan presidential elections in 2013, thepetitioners argued that ‘the process mattered’, that is how you vote, tally,transmit and announce the votes is very important, while the IEBC argued thatnumbers are what mattered, that is you could do whatever it is you wanted whilevoting, while transmitting, while announcing, but as long as the number is whatis was supposed to be everything should be fine. Hence the Chief Justice of the time tookthe position, that numbers are indeed all that mattered. But the Chief Justice of the Supremecourt of Kenya in 2017, from an analytical concept view thought about, how canwe better make use of our laws for the general welfare of society, coming tothe conclusion that we cannot always just look at the numbers, because it isthe process that always makes people go to the streets, and start fighting,therefore he overturned the decision of the previous chief justice. Not becausethe previous chief justice was wrong, but because the law allows him to makesure that the general welfare of the society is protected. 5. Historical concept: The law is thought to be aggregate ofsocial traditions and customs.
The historical concept sees the people of thestate as law-makers, through the formation of habit and customs. The historicaljurists believe that human nature in itself is what creates law and not thelegislative authorities, they say that the nature of law should be analyzed bylooking at the people’s customs and traditions, which they believe have ahigher legal power than the legislative bodies themselves. (Dhawan, 2012) Historical jurists talk about the modernlaw but look at it from historical point of view, because they respect historyvery much. When thinking about the historical concept one should think abouthow grandparents will often tell their grandchildren about life when they weregrowing up. Some would talk about past presidents, traditions, behaviors, warsand how the nation was and compare it with how it is now. This history willaffect their view of numerous things, including the law and how to implementit. Another example can be derived by looking at theSwaziland reed dance, someone who comes from the historical concept might lookat the controversies surrounding the festival and say that because thisfestival has been held for many years in the past, has been a part ofSwaziland’s culture and tradition for years, has been a part of the citizenslives, has been a source of income for many poor girls and their families, andfor the most part has been approved by the people, there would be no reason totake these controversies into consideration.
What has worked for the Swazipeople in the past should work for them now. 6. Comparativeconcept: Comparative jurists examine and comparehistorical and current legal systems, and relevant sciences to try and reachsound judgements regarding law.
They may study different angles of the same lawand compare them. Trying to look out at the outside environment for new ideasin how to deal with law. Comparative jurists are looking forsound solutions from everywhere and in everything, to assure themselvesthat the conclusion reached is very good for the future of their country. An individual may desire to improve alaw or legal process within their own country and through the eyes of acomparative jurist, decide to look at how other countries deal with the samelaw or process, and then compare it with their system and find out why oneworks and the other does not, make suggestions for changes in law, and possiblyimplement their improvements. An example can again be derived bylooking at Swaziland’s reed dance. A comparative jurist might look at the legalsystem within Swaziland and the legal system of other countries, with similarlegal history (that is other African countries which started out with anabsolute monarchy system of authority), as well as systems with slightlydifferent legal history and come to the conclusion that, it is not right forthe king to have so much power and rid his people of their rights, by forcingthem to parade bare-breasted if they do not desire to.
They might look at otherAfrican nations with similar legal history and decide that it may be best forthe country to move from their system of absolute monarchy to one of democracy,for this very reason. 7. ConclusionTheseare a handful of the schools of jurisprudence, that explain the origin andnature of law today. It is very common to find that individuals share beliefsfrom several of the different schools, some beliefs being stronger than others.It is clear to see the many different angles from which an individual maychoose to view the same legal matter, and it is key to note that no view ismore 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: http://www.shareyouressays.com/88611/6-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