BOOK REVIEW OF "JURISPRUDENCE AND LEGAL THEORY"

Updated: 2 days ago

AUTHORED BY:

ADITI KALBHOR (RESEARCH INTERN)


INTRODUCTION:


Jurisprudence has its evolutionary beginning from the classical Greek period to 21st-century modern jurisprudence. Jurisprudence and legal theory lay the foundation of the whole framework of legal studies and law. Stephen Guest, Adam Gearey, James Penner and Wayne Morrison's "Jurisprudence and Legal Theory" is an imperative and authoritative resource work that prepares and helps you as a law student. The study of jurisprudence and legal theory is a theoretical study of law that seeks to obtain a deeper understanding of the nature of law, legal reasoning, legal systems, legal institutions and the overall role of law in society. It sets out the basic legal structure. This textbook covers the nature and subject matter of jurisprudence, Natural Law theory, Legal Positivism, various law theories of scholars, etc. making it the definitive textbook in the field of academic study.

SUMMARY OF BOOK:


The authors began the book by introducing the subject of jurisprudence and legal theory. Chapter 1 is an introductory chapter that has been divided into three main parts that are how to study jurisprudence, essential reading material and lastly how to prepare for an examination in jurisprudence. This chapter is all about getting to know the syllabus, forming a structure of answer by referring to the primary and secondary sources and thoroughly preparing for an examination in jurisprudence. Chapter 2, the nature of jurisprudence introduces us to the scope and subject matter of jurisprudence and to different methods that jurists have used to produce their theories of law. The subject matter has been broadly classified into descriptive and normative. Besides, there is the third type of theory, an interpretive theory. The interpretive approach distinguishes between the concepts and conceptions. While descriptive theory describes things as they are and normative tells about how we ought to regard the law. Jurisprudential studies include several disciplines such as economics, political science, philosophy, sociology, history, psychology, and criminal justice.

The next part of the book enumerates imperative or command theories of outstanding thinkers. These include Thomas Hobbes, Hart, Jeremy Bentham and John Austin. This chapter tries to put before us Hobbes's conception of sovereignty derived from long traditions of political thought but adapted and understood differently by Bentham and Austin. In 'Leviathan', Hobbes explained the natural condition of mankind. There are four parameters to describe the nature of the artificial man that he considers. It includes the Matter thereof and the Artificer, both which is a man; How, and by what Covenants it is made; what are the Rights and just Power or Authority of a Sovereign, and what it is that preserveth and dissolveth it; what is a Christian Common-wealth and lastly, what is the Kingdom of Darkness. This is what Hobbes' narrative of the natural condition of mankind looks like. He then focuses upon the felicity meaning happiness and misery of mankind. According to him, the law is the command that has the sovereign power and the human condition or the need for man to set up a common authority leads to social contract which authorises the sovereign. Hart's analysis of human condition is based on truisms. His view somewhat differs from Hobbes. He aims at social arrangement but with continuous existence. He forms a logical demonstration that human society cannot survive unless human beings accept certain constraints on their behaviour. He terms these constraints as minimum content of natural law. Truisms are true things, which are self-evidently true and we might sometimes take them for granted without knowing its significance. There are two main truisms which lead to specific content that is human vulnerability and limited resources. Others include approximate equality, limited altruism and limited understanding and strength of will. Jeremy Bentham the founder of modern utilitarianism proposed legal, social and moral principles. According to him, jurisprudence is the art of knowing what has been done in the way of internal government. The principle of the greatest happiness of the greatest number was to govern every institution and action. John Austin as a utilitarian is considered by many to be the creator of the school of analytical jurisprudence, as well as, more specifically, the approach to the law known as legal positivism. He applied utilitarianism to law and set out the path for legal reform. In his early life, both Austin and his wife Sarah tried to achieve legal reform to have a clear understanding of the nature of law. They tried to understand the confusions and mysteries of the common law tradition by putting positive law into a political framework. Later, his wife edited all the notes and published a set of his lectures known as 'Lectures On Jurisprudence' in 1873. This book explains Lecture I, V and VI briefly. Thus, Austin's command theory is the law of command of the sovereign imposing a duty which is enforceable by sanction.

The last section deals with classical and modern natural law theory. It describes the origins of natural law in ancient Greece and Rome and the basic ideas which inform the natural law tradition, the natural law theory of Aquinas, Finnis modern natural law theory and lastly, Fuller's inner morality of law. The phenomenon of the natural law tradition arose as the application of a theory of morality which emphasised man's common moral nature to the legitimacy of states. Due to the question of the legitimacy of states, there wasn't any universal basis of morality as some emphasised upon human beings intellect, others on their purpose and some on others revelation of God's will. Acquinas natural law theory comprised of the eternal law, natural law, divine law, and human law. It depicts man, because of his reason, to be a participant in divine wisdom, whose purpose is to live in a flourishing Christian community. It gives importance to the law as a necessary institution that will reflect directly (specification) or indirectly (determination) the universal morality of natural law. John Finnis and Fuller are proponents of modern natural law theory. Finnis talks about the ethical theory based on valuable basic goods and the purpose of the law is to provide conditions in which these good values can be realised. The last theory is Fuller's natural law theory that tries to prove the notion of legality or the rule of law. He describes morality as legality that is morally sound rules of governance. Despite all these theories, the debate over the relation between law and morality continues.

CONCLUSION:


Jurisprudence and legal theory being an in-depth study of law and its role in society provide an insight into the subject of jurisprudence and the natural law theories. I recommend this book to anyone studying law at the undergraduate or graduate level. The style of writing, describing and linking the concepts is what I liked in this book. The theories and ideas of scholars have been elucidated properly. This is a perfect book for understanding and preparing for academics in jurisprudence. Moreover, it will help the reader to construct a philosophical argument, apply it to real problems and contexts and then critically assess legal and political theories. All in all, it is essential reading.

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