1.2.

Scope and Importance of

Jurisprudence
• It is only in comparatively recent times that legal
education has established itself as an
acknowledged discipline in English universities.
• Law was previously taught under an
apprenticeship system whereby knowledge of
the law was picked up in the course of legal
practice without any systematic instruction.
• The lawyer was expected to apply himself to the
problem of his clients without pausing, either as
student, practitioner or even judge,
 Scope and Importance
• Without pausing to explore or speculate upon
i) what the law was about;
ii)what was or should be the role of the law and
the lawyer in society;
iii) whether it was capable of responding to
contemporary needs.
 Scope and Importance
• Very different has been the tradition of civil
law countries
• where universities were founded for the
purpose of educating for the professions,
• especially that of the law.
• The academic approach to legal education,
with its more philosophic and rationalistic
orientation, thus became an essential feature
of the civil law.
 Scope and Importance
• An academic tradition, as against training by
apprenticeship, is more likely to inspire
i) more philosophical attitudes and
ii) less impatience with "mere theory".
• Kahn-Freund's view was that legal education
needs to teach both
i) law and
ii) its context, social, political, historical and
theoretical.
 Scope and Importance
• Instead of regarding rules of law as simply
something to be accepted as part of the
natural order of society, every aspect of the
legal system:
i) the legislative and judicial process,
ii)the working of the legal profession,
iii)the nature and functioning of law
are now recognized as legitimate and indeed
pressing fields of study.
 Scope and Importance
• The links between jurisprudence and other fields
of study, such as
i) sociology,
ii) psychology and
iii)anthropology,
• which could contribute substantially to our
understanding of law, has now been overtaken
by a situation where such interdisciplinary study
and research have been greatly developed and
expanded.
 Scope and Importance
• Jurisprudence involves the study of general
theoretical questions about the
i) nature of laws and legal systems,
ii)about the relationship of law to justice and
morality and
iii)about the social nature of law.
 Scope and Importance
• A proper discussion of questions such as these
involves understanding and use of
i) philosophical and
ii)sociological theories and
iii) findings
in their application to law.
 Scope and Importance
• A study of jurisprudence should encourage
the student
i) to question assumptions and
ii)to develop a wider understanding of the
nature and working of law.
• Questions of theory constantly spring up in
legal practice
 Scope and Importance
• The German case depriving a German Jewish
refugee of nationality through a decree during
Nazi rule.
• The English Court had to decide whether he was
deprived of German nationality.
• The House of Lords accordingly felt itself bound
to hold that Oppenheimer had lost his German
citizenship in 1949 (the date of German Basic
Law) since he never applied for renaturalisation.
(Oppenheimer v Cattermole)
 Scope and Importance
• Deprivation of nationality (a man without a state is
violation of human rights)
• But what are 'human rights',
• indeed what are 'rights' and
• what is a sufficiently 'grave' infringement and
• who is to decide and what are the effects of so deciding?
• Is such a law not a law at all?
• And if it is not, are citizens released from their obligation to
obey?
• Indeed, do citizens have an obligation?
 Scope and Importance
• and is it absolute to obey law? and
• if so what is the nature of this obligation? and
• is it absolute or qualified?
• and, if qualified, qualified in which way?
• Jurisprudence does not provide answers to these
questions
• but it does offer pointers, clues, insights
• it teaches students the rudiments (basics;
fundamentals) of moral arguments.
 Scope and Importance
• What is the legal system?
• What is meant by 'revolution'?
• Is it juridically different from coup d'etat?
• What is the role of a judge in such a situation?
• What is the relationship between validity and
effectiveness?
• What is the relationship of laws to each
other?
 Scope and Importance
• Are all rules equally authoritative?
• What gives rules their authority?
• Is there all or nothing concept of law?
• Is law affected by selective enforcement?
• What is the effect on a legal system of
attenuation (lessening) of consent?
• Is the force of authority of a law diminished by
poor reasoning?
 Scope and Importance
• It is well accepted that judges must give reasoned
decisions.
• But what constitutes good reasons?
• In the run-of-the-mill (not special in any way;
unexceptional) cases there is a straightforward
answer:
i) there is statutory authority or
ii) the case clearly falls within an existing precedent
which cannot be rationally distinguished from it.
 Scope and Importance
• But what of the 'hard case', what happens when the
law appears to have gaps?
• Can the judge turn to nonlegal sources?
• Are there legal sources to which he can go when he
appears to run out of rules?
• If so, what is it that makes these non-rules into law?
• Are they validated in the same way as rules?
• What light does this throw on a legal system's
"pedigree test"?
• To what sort of standards, other than rules, may
judges appeal?
 Scope and Importance
• Is it legitimate for them to confine themselves to
the deontological (ethical theories concerned
with duties and rights), to rights and principles?
• Is there a right answer and is that answer to be
found embedded in the law?
• What is meant by "the law"?
• How far does it extend?
• These questions only occasionally surface in
litigation but they are pervasive (enveloping;
encompassing) if implicit and inarticulate.
 Scope and Importance
• Can Parliament pass any law?
• or are there fundamental values such as
human rights, democracy and the rule of law
embedded within the constitution?
• Are there limits on what Parliament can do?
• Could it abolish elections?
• Can it extend the period for which there can
be detention without trial, and, if so, to what?