n every field of study and in all human endeavour, it is imperative to inquire into its essence. Law in practical terms is not complex. The actual rules and regulations that make up laws of modern society may themselves not be that complex in the sense that they may be embedded in charter, constitutions, bills of rights etc. The Magna Carta,
which represents one of the earliest forms of written laws, is quite clear and specific as to the rights protected. The Magna Carta is dated 1215. The Institutes of Justinian which is one of the earliest codifications of the laws regulating society was coded by the emperor Justinian, the last of the great emperors of the Roman Empire. It is however of great importance that the Philosophical foundations for the transformation of these laws into formal rules and regulations coded in documents referred to as Charter, Constitution etc. be ascertained in order to understand its very essence to and in society.
Professor Khan – Freund has pointed out in his work on the reflections on Legal Education that any academic discipline worthy of its name must entail instilling in the student a capacity for critical thought. I respectfully agree with the Professor. A Lawyer must be able to conceptualize the idea of law as he sees or deems it to be from a deep philosophical foundation. One of the negative impacts of the Industrial Revolution is the fact that it introduced the idea of Mass Production of goods in industrial activity and also in the acquisition of education. It is safe to state that by the mid 20th century, education had become a product which could be acquired by the study of the basics of any particular subject a student was interested in.
Now, it is imperative that law being the very essence of order in society be given very close inquiry. According to Lloyd , jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the relationship of law and justice and morality and about the social nature of law.
He states further that the study of jurisprudence should encourage the student to question assumptions and develop a wider understanding of the nature and working of law. I have postulated in another paper (The idea of Law/Guardian. Law Report/Guardian Newspaper 8/2/2000) that the idea of law in every society simple and complex, primitive and modern is constant. It is a constant denominator in any formation of man. The idea of law and the nature of law are two different things whilst law as a mechanism for societal order is constant in all societies, the nature of the laws applicable vary from society to society and this is subjective and peculiar to any particular society.
Lloyd states and I respectfully agree with him that “One of the jobs of jurisprudence is to supply an epistemology of law, a theory as to the possibility of genuine knowledge in the legal sphere.” He asks “Is objective knowledge possible or must it be distorted by our values and biases” This is a difficult question and perhaps the answer lies in ethical jurisprudence.
Lord Radcliffe was absolutely right when he said “You will not mistake my meaning or suppose that I depreciate one of the great humane studies if I say that we cannot learn law by learning the law. It is to be much more than itself; a part of history, a part of economics and sociology, a part of ethics and philosophy of life.”
Lord Radcliffe captures the very essence of this article which is the fundamental relevance of jurisprudential learning and thought to enable society better understand the actual workings of the laws they operate. A distinction must therefore be made between law as in positive law and going behind what we know as our laws which are really basic rules and regulations to see how and why we came about these laws and how and why we choose to operate these particular laws and also the dynamism of societal laws.
The learned authors of Salmond on Jurisprudence state that jurisprudence includes the entire body of legal doctrine. It is jurisprudential the knowledge of law and in this sense all law books are books of jurisprudence. This is a narrow view of the interpretation of jurisprudence and seems to conform to the definition given to it by continental lawyers (continental Europe). However, the learned authors in their appraisal of the subject also define jurisprudence as the science of civil law. This definition is broader in the sense that it looks at it from the point of view of intellectual inquiry as to how civil law or law came about.
It is referred to as the science of the first principles of the law. In this context, the approach is to deal not with the outlines of the law, but with its ultimate conceptions. In effect, one is delving into the tedious terrain of theoretical jurisprudence. Theoretical jurisprudence according to Salmond is concerned with the fundamental principles and conceptions rather than its practical and concrete details. This is also known as jurisprudence generalis (general jurisprudence). It is also called the philosophy of law.
Salmond’s approach to this appraisal is one, which I gratefully adopt. Jurisprudence as philosophy of law can be divided into three; (a) Analytical jurisprudence (b) Historical jurisprudence (c) Ethical jurisprudence.
The approach of analytical jurisprudence is general and philosophical in the sense that it analyses laws without reference to its historical origin or their ethical significance or validity. It delves into deep analysis of the civil law of the state and examines the relationship between civil law and other forms of law.
Historical jurisprudence deals in the first place with the general principles governing the origin and development of law and with influences that affect law. In the second place, it deals with the origin and development of those legal conceptions and principle, which are so essential in their nature as to deserve a place in the philosophy of law. This can be referred to as the history of the first principles and conceptions of the legal system.
Ethical jurisprudence deals with the Law from the standpoint of its ethical significance and adequacy. Salmond states that “It is concerned with the purpose for which the legal system exists and the measure and manner in which that purpose is fulfilled. It can indeed be referred to as the meeting point between moral and legal philosophy. In the Article titled “The Logic of the Rule of Law” I opined on the idea of the rule of law and its very essence. This is a piece on what may be referred to as ethical jurisprudence in the sense that I concurred with the views of Fuller and other proponents of an objective concept of the Rule of Law. The objectivity is based on a concept of objective morality permeating society.
It is indeed of great importance that the philosophical foundations of law be studied and understood in order to appreciate its very essence and relevance in and to society. It is important to know what the law is about, what was and should be the role of law and the lawyer in society.
Lloyd argues that “Law is not unique in its tendency to reflect the ideologies of its place and time and that the approach by any particular jurist is governed by his allegiances and those of his society.” To a very great extent, the learned author is right but it must not be forgotten that it is very possible and indeed it does occur that jurists and thinkers in the field of philosophy of law will often disagree passionately with what is going on in their particular society and proffer principles and theories of jurisprudence totally at variance with that which operates in their society. As stated earlier, the field of jurisprudential thought is a tedious terrain, it is not often easy to keep a steady course. Whilst I had argued in the “Logic of the Rule of Law” from the point of view of natural law, I took a different course in “The Concept of Justice” by introducing the theory of relativity in the appraisal of the concept of justice as it applies in different societies at different times in history.
Legal theorists must of course continue to ponder about questions like ‘what is a legal system?’ ‘What is meant by revolution?’ ‘What is the role of a judge in the legal system?’ The issues of euthanasia, internet adoption, surrogate parents, the use of drugs, etc. ‘What happens when a lady of mature years but with the mind of a child gets pregnant and the Welfare Officers apply for an abortion, how does society combat the idea of abortion, free choice with freedom of expression?’ The deep appraisal of jurisprudence is as important as the idea of law is to man and society. It is important therefore that the view with which I humbly concur. Lloyd states and I respectfully agree that “it is difficult to characterize jurisprudence; there are many rooms in its mansion.”