What Were 4 of the Early Forms of Jurisprudence

In imperial times, jurisprudence became a scientific profession with competing schools of thought. First, the lawyers advised government officials on which laws and decrees should still be in force. Finally, some jurists received from the emperor the privilege of issuing legal opinions (responsa prudentium), which were binding on judges. Although later nations avoided giving so much power to law professors, a prominent role in jurisprudence has remained an important feature of civil law research because there is no precedent rule. Jews and Muslims also have several schools of legal thought, but the law they interpret is a common tradition, beyond the authority of existing legislation, and the judgments of past scholars are often considered authoritative by future generations. Jurisprudence or legal theory is the theoretical study of the relevance of law. Jurists seek to explain the essence of law in its most general form, providing a deeper understanding of legal reasoning and analogy, legal systems, legal institutions, and the proper application and role of law in society. [1] Roman civil law, or ius civile, began as a kind of common law, a body of traditional legal customs that were not initially prescribed in writing. At least since the beginning of the Republic, civil law was recognized as ius populi or law of the people, as it was determined by the popular assemblies, especially the assembly of centurions (comita centuriata). Unlike the Athenian system (but similar to other Greek city-states), the Roman public assembly had real legislative power.

Nevertheless, the early Roman legal concept (ius), like the Greek nomos, derived primarily from the people`s sense of what is right or just. Since law embodies traditional moral notions of justice, it is natural that the preservation of the law should first be entrusted to the care of priests. For American legal realists in the early twentieth century, legal realism sought to describe how judges decide cases. For legal realists like Jerome Frank, judges start with the facts they have and then move on to legal principles. Before legal realism, theories of jurisprudence reversed this method, where judges should start with legal principles and then examine the facts. A relatively new field in jurisprudence, the therapeutic branch studies how the legal system affects the emotional state, mental health, and behavior of legal participants, including clients, lawyers, and judges. The purpose of therapeutic jurisprudence is to bring compassion and understanding to legal practice by promoting awareness of emotional and psychological issues such as trust, confidence, and stress. The most important legacy of English common law jurisprudence in the United States is the rule of stare decisis or rule of precedent.

This rule has long been considered a strength of Anglo-American jurisprudence, as it gives stability to the law and places the interpretation of the law in the hands of judges on the bench rather than in the hands of distant scholars. The main danger of this system is that a bad decision will have more profound and lasting effects than would be the case alone. This danger is greatest precisely where the courts have the greatest power when it comes to rights that go beyond legal law. John Rawls was an American philosopher; Professor of Political Philosophy at Harvard University; and author of A Theory of Justice (1971), Political Liberalism, Justice as Fairness: A Restatement, and The Law of Peoples. He is considered one of the most important English-speaking political philosophers of the 20th century. His theory of justice uses a method called the “primordial position” to ask us what principles of justice we would choose to regulate the fundamental institutions of our society if we were behind a “veil of ignorance.” Imagine if we didn`t know who we are – our race, gender, wealth, status, class, or any other differentiating factor – for fear of being biased in our favor. Rawls argued from this “original position” that we would choose exactly the same political freedoms for all, such as freedom of speech, the right to vote, etc. In addition, we would choose a system in which there are only inequalities, as this creates incentives for the economic well-being of society as a whole, especially the poorest.

This is Rawls` famous “principle of difference”. Justice is fairness in the sense that the fairness of the initial position of choice guarantees the fairness of the principles chosen in that position. With the collapse of the Frankish Empire, the uniformity of public law disappeared. In the absence of a strong central government, the feudal system gained in importance. Feudal power relations between large and small nobles were determined by personal oaths of loyalty. Each vassal could have its own unique conditions, so there was no uniform flow of authority within a European nation, but a complex web of relationships between nobles, each with its own particular characteristics. This personal rule effectively replaced the rule of law in the public sphere, although the nobles felt bound by habit and the feudal arrangements themselves constituted a kind of law. If the civil law system seems to give too much power to the legislature, the common law system can be accused of giving too much power to the judiciary.

This flaw in the common law system lies not in the common law itself, but in the principle of stare decisis. The common law, which is a recognized body of custom, has the advantage of limiting the power of the state, including judges, but this advantage is undermined by stare decisis, which gives judges the ability to effectively define what the law means in their opinions, because all similar cases are supposed to be judged in the same way. Stare decisis makes it possible to establish a general rule in a particular case, and the establishment of general rules is essentially a legislative act. Analytical or “clarifying” jurisprudence means adopting a neutral point of view and using descriptive language when dealing with different aspects of legal systems. It was a philosophical development that rejected the fusion of what law is and what it should be by natural law. [4] David Hume argued in A Treatise of Human Nature[29] that people inevitably move from describing what the world is to asserting that we should therefore follow a certain course of action. But out of pure logic, we can`t conclude that we should do something just because something is. The analysis and clarification of how the world is must therefore be treated as a strictly normative and evaluative question about what to do. Sophisticated positivist and natural law theories are sometimes similar and may have some similarities. The identification of a particular theorist as a positivist or theorist of natural law sometimes involves questions of emphasis and degree and particular influences on the work of the theorist. Natural law theorists of the distant past, such as Thomas Aquinas and John Locke, made no distinction between analytical and normative jurisprudence, while modern natural law theorists such as John Finnis, who claim to be positivists, still hold that law is inherently moral. In his book Natural Law and Natural Rights (1980, 2011), John Finnis proposes a reformulation of the doctrine of natural law.

[28] The rule of precedent, according to which the courts do give substance to the law, is an essential feature of the English system. It became necessary because there was no codification or legislative body. Once implemented, the rule of precedent served as an adequate substitute for codification, allowing England to resist the advance of Roman jurisprudence that invaded the continent in the twelfth and thirteenth centuries. In ancient China, Taoists, Confucians, and legalists all had competing theories of jurisprudence. [9] Francisco de Vitoria was perhaps the first to develop a theory of ius gentium (the rights of peoples) and is therefore an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that these issues should be determined by forms that respect the rights of all, and that the common good of the world should take precedence over the good of a single state. This meant that relations between States had to move from violent justification to law and justice. Some scholars have confused the standard narrative of the origins of international law, pointing to Hugo Grotius` seminal text De iure belli ac pacis, arguing for Vitoria and later Suárez`s importance as a forerunner and perhaps founder of the field.

[26] Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have established international law in the modern sense, but that it has its origins after 1870. [27] A key difference between the common law and civil jurisprudence is the role of the judiciary in developing the content of the statute. In modern common law countries, court decisions establish general rules for all similar cases, although such decisions must generally relate to the law or a written constitution. While this may seem to give too much power to judges in a single case, it has the advantage of creating stability in the law. As Lord Coke noted in his comments on English law, common law jurisprudence creates a unified authority for the interpretation of law.