- What is the study of Jurisprudence? Is Jurisprudence different to Legal theory? Why is it important to study Jurisprudence?
- What is Natural Law? How are Natural Laws created? Is Natural law still practiced today in law making and enforcement of law? Provide an example of this.
- It is said that the Western Legal Common Law system is primarily built on the theory of Legal Positivism. What is legal Positivism and do you agree with this statement.
- What is Liberalism? Are there different strands of Liberalism? How does Liberalism impact on the way in which laws are created and enforced?
- What is Utilitarianism? What does for “The Greater Good mean”? Explain this term in your own words.
Jurisprudence: Exploring the Study of Legal Doctrines
1.Jurisprudence entails the study of essential legal doctrines of a theoretical, scientific and chronological nature that form the basis of various types of laws such as criminal, civil and constitutional. Although in dealing with the subject of jurisprudence, it’s important to note that various meanings have been proposed as to what jurisprudence means such that there has been no unanimity in regards to its scope thou it has been narrowed to the study of the concepts of positive law and ethics. Regarding the scope, authors such as Wurzle, note that it was one of the first social sciences to be developed and that its province is usually determined often since no description of its scope can be regarded as final. Further, scholars such as Austin refer to it as the philosophy of positive law meaning the law put forward by a political superior for controlling the conduct of his subjects.
On the other hand, there has been different views in regards to what constitutes jurisprudence thou the generally agreed on components include legal theory, sources of law and legal concepts. Outlining the constituents of jurisprudence is important as it plays a crucial role in bringing out the difference between legal theory and jurisprudence which in this sense it that, legal theory forms part of the components of jurisprudence and it deals with the law as it is & how it operates in society. Legal theory also concerns the creation of laws, enforcement and the impact social views and law on each other. Therefore, it’s correct to conclude that a difference exists between jurisprudence and legal theory as one entails various components whereas the other deals with a specific thing.
The study of jurisprudence is of importance as it enables one understand the foundation/development of law, the sources of various categories of law, how laws are created and implemented. It also aids in understanding the different legal systems and further understanding concepts such as human rights.
2.Natural law refers to a kind of philosophy that proposes that some rights, moral principles and responsibilities are innate in human nature & that those human rights can be understood through some reasoning. Throughout all chronological events the term concerns itself with shaping how humans ought to conduct themselves morally and since it’s a universal law it applies to every individual in equal measure. On the other hand, the American legal system defines natural law as a form of legal theory that regards morality & law to be inter-linked such that practically they are the same.
In addition to that, natural laws come into existence through following the substantive procedure set out in the relevant legislations of a state, whereby the law makers through sponsoring a bill have to ensure that it goes through the required stages upon which its success, its assented to by the person in charge normally the president and therefore becomes a law. Similarly, such laws come into existence through the common law system of practice whereby previous case laws set as precedents are used to determine future cases with similar facts in order to come up with similar results.
Understanding Natural Law and its Role in Society
In regards to the practice of natural law, it’s still put in practice in coming up with new laws and enforcement and a relevant example of such laws include the right to life whereby its granted to all individuals by virtue of them human beings and therefore calls upon every person to respect the right to life by not taking his life or the life of any other individual. Outlining the constituents of jurisprudence is important as it plays a crucial role in bringing out the difference between legal theory and jurisprudence which in this sense it that, legal theory forms part of the components of jurisprudence and it deals with the law as it is & how it operates in society. Legal theory also concerns the creation of laws, enforcement and the impact social views and law on each other. Also another controversial example where the concept of natural law has been taken into account is the issue of same sex marriage whereby some countries such as Kenya in determining the rights in regards to lesbian gay bisexual transgender it has failed to recognize them on the basis that they are in contravention with their religious ethics and that they undermine the concept of morality as envisaged.
3.Legal positivism refers to the positivist school of thought that proposes to look at the law as what it is and not what it ought to be. Legal positivism has been seen as a school of thought that has had most impact in jurisprudence. The theory was first put forward by John Austin and Jeremy Bentham around the 19th c. Subsequently, H.L.Hart and Joseph Raz contributed to it by taking it forward and despite the fact they hold different views, one common thing that stands among them is that they consider the law as it is and not as it ought to be as promoted by the natural school of thought counterparts. In addition to that, they all consider law and moral principles as two complete separate things. They also believe that law does not relate to morals; however their opinion is that from time to time law reflects people’s morality i.e. those of whom it’s applied to. In their opinion, laws are laid down by the superior body and therefore do not need to be in consonance with morals and ethics. In addition, the school of thought is divided into two i.e. negative & positive positivist where the positivist like Hart hold the opinion that despite the existence of morals, they don’t have to be incorporated with the law and he indicates that’’’’ it is no sense a necessary truth that law satisfy demands of morality, though in fact they have often done so’ while the negative positivist hold the opinion that morals and ethics do not exist.
In regards to whether the western system of law is found on legal positivism theory, the statement holds some concrete truth in the sense that most countries in the western world such as Australia have legalized practices such as same marriage rights or rather the rights of lesbian gay bisexual transgender by not taking into account the morality concept as compared with other common law countries more so in Africa which their main reason for not promoting such rights is because they hold the view that they are contrary with their moral and ethics.
Legal Positivism and the Separation of Law and Morality
4.The concept of liberalism is a universal view founded on the ideas of liberty and equality within which the rule of law is understood as liberty. In this regard, L.T. Hobhouse holds the idea that, ‘the first condition of a free government is one without subjective determination of the leader, but by rules of laws put in place where the leader himself is subject to’. Further, liberals espouse a wide array of views depending on their understanding of these principles but generally they support ideas such as free and far elections, civil rights, freedom of the press, freedom of religion and private property.
In addition, there exist various forms of liberalism which include; classical liberalism; social liberalism; international liberalism, radicalism and progressive liberalism. Classical liberalism developed in the 18th C by thriving on the work of Adam Smith envisions a narrow and strictly limited role for the government. As the classical liberals view is that, the role of the government involves solely and exclusively guaranteeing the protection of life, health, liberty and private property against violent attacks and that anything that goes against this is an evil. Further, it builds upon the view that human beings are independent, rational individuals dedicated to maximizing their interests. On the other hand, liberal internationalism concerns itself with fundamental level in the attempt to promote the principles of liberty and equality and institutions across national borders and apply variations thereof to international relations. Further, progressive liberalism is founded of the idea of progress which affirms that development in science & technology, social and economic corporations play a significant role in the improvement of the conditions of man while radicalism is a kind of liberalism that often responds to industrial movements and the right of radical construct.
Subsequently, liberalism impacts a lot in the making and putting into force various laws in the sense that, by it advocating for freedom of individuals, it allows them to participate in the law making process either directly or in-directly whereby the citizens are allowed to take part in referendums to come up with a new constitution or to take part in the law making process through their elected representatives. Liberalism also plays a big role in ensuring that individuals freely own property anywhere in a state and therefore leading to developing up of rights such as intellectual property rights and also ensuring that citizens have the right to information which promotes the freedom of the media that plays a critical role in the attainment of liberty as promoted by the liberal school of thought.
5.Utilitarianism refers to a just theory according to which the correctness and wrongness of acts fully depends on facts about the maximization of overall well-being and it’s often linked with the phrase ‘the greatest good for the greatest number’. The concept can be traced in the works of Plato and Aristotle. Further works were promoted by Jeremy Bentham who wrote the first complete treatise of utilitarianism in his work of 1789 “an introduction to the principles of morals and legislation.” Also, John Stuart Mill highly contributed to the concept in his essay of 1861 “utilitarianism” by building on the ideas of Bentham and also adding up more ideas such as the role of moral rules in utilitarian reasoning about moral problems. Further, the concept is usually defined by characteristics such as welfare, individualism, aggregation, consequentialism and maximization.
Liberalism and the Role of Liberty in Free Government
On the other hand, the concept of the ‘greater good’ means that individuals should carry out themselves in whatever way that results in the greatest possible amount of well-being where well-being is closely related to happiness. It requires that all human coexist with each other and ensure that individual rights are protected to whatever level, such that all enjoy the common good of coexistence. Liberal internationalism concerns itself with fundamental level in the attempt to promote the principles of liberty and equality and institutions across national borders and apply variations thereof to international relations. Further, progressive liberalism is founded of the idea of progress which affirms that development in science & technology, social and economic corporations play a significant role in the improvement of the conditions of man while radicalism is a kind of liberalism that often responds to industrial movements and the right of radical construct.
Matsuda, M. J. (2017). Liberal jurisprudence and abstracted visions of human nature: A feminist critique of Rawls’ theory of justice. In Gender and Justice (pp. 47-64). Routledge.
Baker, S., & Mezzetti, C. (2012). A theory of rational jurisprudence. Journal of Political Economy, 120(3), 513-551.
Powell, R. (2009). Zakat: Drawing insights for legal theory and economic policy from Islamic jurisprudence. Pitt. Tax Rev., 7, 43.
Malinowski, B. (2013). Crime and Custom in Savage Society:[1926/1940]. Routledge.
Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford University Press.
d'Entreves, A. P. (2017). Natural law: an introduction to legal philosophy. Routledge.
Habermas, J. (2015). Between facts and norms: Contributions to a discourse theory of law and democracy. John Wiley & Sons.
Kugler, P. N., & Turvey, M. T. (2015). Information, natural law, and the self-assembly of rhythmic movement. Routledge.
Porter, J. (2010). Ministers of the law: a natural law theory of legal authority. Wm. B. Eerdmans Publishing.
Chernilo, D. (2013). The natural law foundations of modern social theory: A quest for universalism. Cambridge University Press.
MacCormick, N., & Weinberger, O. (2013). An institutional theory of law: new approaches to legal positivism (Vol. 3). Springer Science & Business Media.
Bix, B. (2017). On the dividing line between natural law theory and legal positivism. In Law and Morality (pp. 49-60). Routledge.
Golding, M. P., & Edmundson, W. A. (Eds.). (2008). The Blackwell guide to the philosophy of law and legal theory. John Wiley & Sons.
Raz, J. (2013). Legal positivism and the sources of law. Arguing About Law, 117.
Habermas, J. (2012). Reconciliation through the public use of reason: Remarks on John Rawls’s political liberalism. In Habermas and Rawls (pp. 37-57). Routledge.
Barry, A., Osborne, T., & Rose, N. (2013). Foucault and Political Reason: liberalism, neo-liberalism and the rationalities of government. Routledge.
Ege, R., & Igersheim, H. (2008). Rawls with Hegel: The concept of ‘Liberalism of freedom’. The European journal of the history of economic thought, 15(1), 25-47.
Pennington, M. (2012). 221 Robust Political Economy. Classical Liberalism and the Future of Public Policy. PRACTICE, 36(2), 221-227.
Mill, J. S. (2016). Utilitarianism. In Seven Masterpieces of Philosophy (pp. 337-383). Routledge.
Renouard, C. (2011). Corporate social responsibility, utilitarianism, and the capabilities approach. Journal of business ethics, 98(1), 85-97.
Barrow, R. (2010). Plato, Utilitarianism and Education (International Library of the Philosophy of Education Volume 3). Routledge.
Varner, G. E. (2012). Personhood, ethics, and animal cognition: Situating animals in Hare's two level utilitarianism. Oxford University Press.
Scarpi, D. (2012). Work and fun on the internet: the effects of utilitarianism and hedonism online. Journal of interactive marketing, 26(1), 53-67.
To export a reference to this article please select a referencing stye below:
My Assignment Help. (2021). Understanding Legal Philosophies: Jurisprudence, Natural Law, Legal Positivism And Liberalism. Retrieved from https://myassignmenthelp.com/free-samples/laws5030-jurisprudence/legal-doctrines.html.
"Understanding Legal Philosophies: Jurisprudence, Natural Law, Legal Positivism And Liberalism." My Assignment Help, 2021, https://myassignmenthelp.com/free-samples/laws5030-jurisprudence/legal-doctrines.html.
My Assignment Help (2021) Understanding Legal Philosophies: Jurisprudence, Natural Law, Legal Positivism And Liberalism [Online]. Available from: https://myassignmenthelp.com/free-samples/laws5030-jurisprudence/legal-doctrines.html
[Accessed 05 December 2023].
My Assignment Help. 'Understanding Legal Philosophies: Jurisprudence, Natural Law, Legal Positivism And Liberalism' (My Assignment Help, 2021) <https://myassignmenthelp.com/free-samples/laws5030-jurisprudence/legal-doctrines.html> accessed 05 December 2023.
My Assignment Help. Understanding Legal Philosophies: Jurisprudence, Natural Law, Legal Positivism And Liberalism [Internet]. My Assignment Help. 2021 [cited 05 December 2023]. Available from: https://myassignmenthelp.com/free-samples/laws5030-jurisprudence/legal-doctrines.html.