Talk:Jurisprudence

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Contents

[edit] Embarrassing

Frankly, this is one of the most embarassingly bad entries on anything to do with law or philosophy in all of Wikipedia. But, as many of the notes below complain, the problem is knowing just where to begin. Start over entirely, I guess. Or just give links to something from the Stanford Encyclopedia of Philosophy. I'm not sure. Almost none of the definitions are correct; the whole emphasis is quirky; the most significant and influential writers are either not mentioned or misunderstood (Aquinas, Bentham, Austin, Kelsen, Hart, Fuller, Raz, Dworkin, would be a start.) Maybe ppl who know the subject would be willing to take on chunks? Then perhaps we could think of trying to put it into reasonable English. I made a start on the first para. Would someone knowledgeable about the modern natural law tradition in Simon, Finnis, Fuller and Soper please correct the mistakes in the existing material.

1] No, jurisprudence is not definable as simply "the law." --LMS

It certainly can be and often is without offering more. It is not enough to state what it is not, one must state then what it is! - RB

Somebody might want to look at the punctuation in this page (do a search for '?' in your browser to see what I mean). I'm not sure if someone edited the page in Word, but there seems to be errant question marks (possible apostrophes?); in addition, some sentences seem to lack ending punctuation. -- Notheruser 22:20 May 12, 2003 (UTC)

2] I agree with the opinion gave in wikipedia for 'jurisprudence', but it could be interesting to note or to add, that in continental and latinamerican contexts, 'jurisprudence' also means some stream of opinion prevaling in tribunals. For example, we says that "according to the prevaling jurisprudence contractants ought to...", o "according with the dominant jurisprudence [or the jurisprudence followed by this court] the article 14 of our constitution means...". [O. Sarlo, Montevideo, 08/02/2004)

The lead section of this article should probably be cleaned up according to wikipedia style (specifically having only two or three paragraphs before the Table of Contents). --Interiot 22:21, 3 October 2005 (UTC)

This article needs a lot of work. I am going to edit it drastically because it falls so far short of how an encyclopedic entry for jurisprudence should. It is going to take ages. --Never29 00:20, 16 November 2005 (UTC)
This article states some "incorrect" uses of the term jurisprudence that are not incorrect at all. Seeing them as incorrect is a result of merging jurisprudence and philosophy of law. Philosophy of law is, indeed, one meaning for jurisprudence, but so is "Knowledge of or skill in law." (first OED entry) "The science which treats of human laws (written or unwritten) in general" (second OED entry - which is listed as equivalent to "philosophy of law" and "A system or body of law; a legal system." (the second meaning of the term in the OED). I submit that jurisprudence qua philosophy of law is a subset of jurisprudence in general, and that there are many jurisprudential subjects that philosophers won't touch upon (such as the rationale of particular laws).
Yes, you are right. I've deleted that passage, don't know when it popped up. It was wrong, and there's a disamiguation link at the top to show for it, because the jurisprudence of the courts is a way of saying case law. It seems that the person who put it in also had something against European law. Ignorance produces prejudice perhaps! That said, you could have simply done the same yourself. Be bold in editting! Wikidea 00:49, 5 June 2007 (UTC)

[edit] Definition

Would an expert PLEASE write a better definition of "jurisprudence" than:

"It is a historical, social, and cultural movement with the inherent contradiction that analysis of the law and understanding of its politics will unravel and reveal the 'truth' behind legal reasoning and the exercise of legal power, even while at the same time admitting there is no such thing."

The existing definition doesn't make sense. Subversive 03:24, 9 January 2006 (UTC)

I've rewritten this in a way that I think is both clearer and more reflective of what jurisprudential scholars/philosophers of law actually think they are doing. Metamagician3000 01:34, 26 January 2006 (UTC)

[edit] Positivism

The definition and discussion of positivism really described an extreme theory that is not held by any theorist in recent times. I doubt that even someone like Austin believed something this crude. I have rewritten this to give a better indication of what is believed by leading positivists such as H.L.A. Hart. Metamagician3000 01:05, 26 January 2006 (UTC)

[edit] Natural law - No Locke?

Actually, the discussion here is also a bit of a caricature. I've made a first attempt at rewriting it. It should be noted that modern natural law and positivist theories often converge on many points. The differences can be more ones of degree. E.g. a positivist can find much that is useful in the claims made by Fuller. Metamagician3000 01:14, 26 January 2006 (UTC)

Why is Thomas Hobbes mentioned here and not John Locke? The two are inteimately connected, and also unique. Locke merits his own sections, imo. 69.178.122.114 (talk) 22:34, 14 December 2007 (UTC)

[edit] Dooyeweerd?

The emphasis on Dooyeweerd's work - a relatively obscure Christian philosopher - is not justified. Major philosophers of law - contemporary or not- (e.g.Grotius, Hart, Raz, Dworkin, Austin, etc.) are not mentioned.

Well, edit boldly. I made a start some time back, but didn't get very far. Yes, the article needs to discuss those, and other major jurisprudential thinkers. Metamagician3000 14:38, 17 May 2006 (UTC)

[edit] Merging

Reasons to merge:

1. There is no difference between 'jurisprudence' and 'philosophy of law' - it's really the same thing generally, and only little fiddly differences could be conjured up

2. Both articles cover broadly similar topics - they talk about positivism and natural law, although there are strengths in some bits and not others, e.g. the philosophy of law page has a useful list of authors; or the jurisprudence page has an interesting stub referring to islamic jurisprudence User:Wikidea


Forgot that perhaps the talk page from philosophy of law is needed to be merged too!!Wikidea 01:33, 9 December 2006 (UTC)


[edit] Discussion brought from Philosophy of Law page

The original article didn't seem like nonsense, so much as a woefully inadequate stub (or, worst case, a dictionary entry). There really is such a thing as a "philosophy of law" (just do a search in Google and see how many responses come back), and while "A system of values that informs a legal system" doesn't do the topic justice (no pun intended), and the definition wasn't so much nonsense as dictionary-like.

Right, philosophy of law is a well-established branch of philosophy. The definition given was completely inadequate as a definition of this philosophical subdiscipline; as a philosophical subdiscipline, it's not a "system of values" at all, or only in the most tenuous of senses. Hence, nonsense. --LMS

Au contraire. Unlike the grand concept of philosophy, a philosophy of "law" cannot exist without a "system of values" because the very word "law" comes with core defined assumptions about its meaning.

The current revisions aim to flesh out the article, which is still inadequate. There is a need for more discussion of legal positivism, especially the work of H.L.A. Hart and Joseph Raz. More discussion of natural law theory is needed, especially the work of John Finnis. There should be individual entries on various topics in substantive areas such as contract theory, tort theory, etc., as well as summaries of those entries in the philosophy of law entry. Lot's of work here.

I think something should be said of the effect that post-modernism has had on legal thinking. Deconstruction and other concepts relating to literary analysis and power relationships have been applied to the law to good effect. I could add something but it wouldn't be that complete, I didn't understand it that well in my "history and philosophy of law" class :) Psychobabble

I'm looking for an explanation of facts in the natural world and facts in the legal world. Clearly they are not the same as the rules governing what is accepted as fact in science is very different from that in law. Mulp 6 July 2005 23:46 (UTC)

I think an essential aspect of the nature of the philosophy of law is greatly neglected in the article. The philosophical debate as to the role of 'reason' within law, presented in such works as Aristotle's 'The politics' and Thomas Hobbes' 'A dialogue between a philosopher and a student of the the common laws of England'. 'Law is reason free from passion'; the debate on the matter is that there is a rational basis of law, i.e. law is informed by reason and cannot be law if it conflicts with reason. However the problemwith such a statement is that to reduce law to only reason would ope the way to disobedience on the part of man (and these can be many, who claims to be more reasonable than is the law itself. Thus the hard case is put: If law is reason and reason alone generates law, then law gains greatly in dignity but loses its own nature; for it is of the nature of law to commandthat it comport with obedience; but a command whose authoritativeness begins and ends with the reasonableness of the command will not, by its nature, procure obedience, for it is of the nature of reason to be always open to question. [Im just doing research on this as it is a question in a 45mins essay i will do when i start law school in Sept.] 21/08/2005, 16:33 GMT [samir_sa@hotmail.com]

I removed the citations of Dworkin's Sovereign Virtue: The Theory and Practice of Equality and Mark Tushnet's Red, White and Blue: A Critical Analysis of Constitutional Law. These are both excellent works, but they hardly fit the definition of philosophy of law given by the article. Nor would any legal philosopher say they were works in philosophy of law. Sovereign Virtue is a work in political philosophy. Red, White and Blue is a work in constitutional theory.

Agreed. I've corrected the mistakes in the positivism section. The errors in the Natural Law section now also need to be fixed. Could someone who knows the contemporary literature (especially Finnis, Alexy, and Murphy) try to do this.

The Dworkin book does fit into jurisprudence - I've been reading it of late for another purpose, and I'd say it is definitely "doing" philosophy of law as well as political philosophy (hey, it's most unclear where one ends and the other begins). The Tushnet book I am less familiar with, but from what I know of it I agree - more a book done from within the field of law than one looking at it from a more philosophical perspective. Or at least so it seems to me. Metamagician3000 08:17, 17 March 2007 (UTC)

[edit] Merging

Reasons to merge:

1. There is no difference between 'jurisprudence' and 'philosophy of law' - it's really the same thing generally, and only little fiddly differences could be conjured up

2. Both articles cover broadly similar topics - they talk about positivism and natural law, although there are strengths in some bits and not others, e.g. the philosophy of law page has a useful list of authors; or the jurisprudence page has an interesting stub referring to islamic jurisprudence User:Wikidea

I agree that they are the same thing, and I'm not opposed to a merge - though I'm also not all that strongly in favour because my view that they are the same thing might be contested by some thinkers. Metamagician3000 05:11, 28 November 2006 (UTC)
Which thinkers do you have in mind? I agree, that there are always going to be some that want to draw a distinction. But it's probably true that the leading ones - Dworkin, Hart, Raz, Finnis, etc, have always taught them as the same, right? Besides, the articles' contents are pretty identical. User:Wikidea
I said "might" because I don't particularly have anyone in mind. As I say, I agree they are the same thing. I guess I sometimes see legal theory texts that might count as jurisprudence but are not written by philosophers, and there may be questions about where philosophy of law begins and where the theoretical study of substantive legal doctrine or of sociology of law ends - and how much some of these other things count as being part of "jurisprudence". For what it's worth, though, when I did a jurisprudence subject at Law School we were told that "jurisprudence" is just a fancy word for philosophy of law ... and that's how I still think of it. Yes, I consider Dworkin, Hart, Finnis, Raz, blah, blah to be philosophers of law and jurisprudential scholars, and the terms to be interchangeable when applied to them. :) Metamagician3000 14:01, 1 December 2006 (UTC)

[edit] More alterations

Might it be a good idea to structure the page by philosophers, rather than by the 'schools' that they belong to? It makes more sense to look at one person at a time maybe?Wikidea 01:39, 9 December 2006 (UTC)