WHAT IS JURISPRUDENCE?
Theories of natural law circle around what is
Jurisprudence is the science, study and theory
of law. It is a study of the law, done by scholars
of law (‘Jurists’), to understand the nature,
principles and patterns of the law. Jurists in
the world seek to develop a deeper
understanding of legal principles, legal systems
and reasons why certain laws exist. Law itself is
an intangible being, you cannot touch it; you
cannot see it; and you cannot feel it. Therefore,
it becomes extremely difficult to study the
central assessment of it. Yet it still exists; law
shapes, guides and dictates how it’s subjects
should and should not behave. Jurists study
different forms of laws and try to grasp why
these laws were made or what made them.
DIFFERENT THEORIES OF LAW
There exist four primary schools of thought in
general Jurisprudence:
1. Natural Law
2. Legal Positivism
3. Legal Realism
4. Critical Legal Studies
NATURAL LAW
Natural law is the theory that certain rights or
values are essential by virtue of human nature
and universally identifiable through human
reason. Historically, natural law refers to the
use of reason to compare both social and
personal human nature to understand the
binding rules of human behaviour. The law of
nature being determined by nature, is
universal.
An example of natural law is the insistence of
religious and natural scholars that law was
created by nature. They believe that as humans
are a creation of nature, nature itself dictates
how they should live. Some scholars of natural
law insist that through nature human beings
can understand what is right and what is
wrong. According to this theory, what is good
and what is evil is already known to humans
upon birth; anything which harms a human’s
mind, body or being is wrong.
considered moral or immoral. Therefore, there
is a link a between the morals of humans and
the law they follow.
LEGAL POSITIVISM
Unlike natural law, legal positivism says that
there is no link between morality and law. This
insists that laws are created and dictated by
how human beings behave socially. In the
positivist’s view law is established by some
socially recognised legal authority. The merits
of the law are not something that need to be
considered; it might be ‘bad law’ by some
standards but as long as it is governed by an
authority it is still law.
According to legal positivism, the fact that a
policy is just, wise, efficient or sensible is never
enough reason for thinking that it is actually
the law; and the fact that it is unjust, unwise,
inefficient or insensible is never enough reason
to doubt whether a law or set of laws are valid
or not.
So according to this theory of law; the laws
established by Hitler to persecute the Jews
were valid laws; anyone following and working
under those laws did not do anything wrong as
these laws were made by a legitimate authority
‘the government’.
LEGAL REALISM
Legal realism argues that the real world
practice of law is what determines what is the
law, the law has the force that it does because
of what legislators, lawyers and judges do with
it. Some realists believe that one can never be
sure that the facts and law identified in the
judge’s reasons were the actual reasons for the
judgement, whereas other realists accept that a
judge’s reasons can often be relied upon, but
not all of the time. Realists are interests in
methods of predicting judges with more
accuracy.
According to realists, if a law is passed with a
certain and consistent pattern then that pattern
is the law. Legal realists do not rely on the text
or the documentations of law but rather just
focus on the people who practice law.
Therefore, according to them, the concept of
law is evident in how lawyers and judges apply
it.
CRITICAL LEGAL STUDIES
Critical legal studies are a relatively new theory
of jurisprudence that has developed since the
1970s. it is a negative thesis that says that the
law is largely contradictory and can be best
analysed as an expression of the policy goals of
the dominant social group. Scholars of this
legal theory believe that the dominant beings in
a class of people dictate what the law should
and should not be.
The scholars of this theory argue that the
current laws are the evidence of the will of
dominant classes. For example, the creation of
the UN is an example of law created through
legal dominance. The UN was created by the
victors of the second world war; hence they
were the dominant group who had the power to
create and dictate law.
WHICH THEORY TO FOLLOW
No legal system, country, judge, lawyer or
human being can only follow one theory of law.
If any person follows only one theory of law,
the legal system would stop working. Even
though the law is supreme, it is important to
question and follow it at the same time. The
questioning allows the authorities to correct
any flaws in the law and the following keeps the
law supreme.
JURISPRUDENCE
As it deals with the study, theory, and
understanding of the law, American
jurisprudence refers to the act of scrutinizing,
classifying, and explaining the law. Such
information may be found in law textbooks, legal
encyclopedias, law reviews, and other
publications containing “jurisprudential”
information. Those who study jurisprudence, also
referred to as “legal theorists,” “legal
Philosophers,” and “social theorists of law,” seek
a deeper understanding of the nature and
reasoning of law and the country’s legal system.
To explore this concept, consider the following
jurisprudence definition.
Definition of Jurisprudence
Noun
1. The philosophy or science of law
2. A system or body of law
Origin
1600s Latin juris prudential
Branches of American Jurisprudence
Jurisprudence in the U.S. began in the late 1800s,
and is broken down into three branches of study:
analytical, sociological, and theoretical.
Analytical Jurisprudence
The analytical branch of American jurisprudence
analyzes the law, defining terms and putting
ideas into words on paper. Analysts of
jurisprudence critique entire bodies of law in an
attempt to bring a consistent, logical order to the
legal system.
Sociological Jurisprudence
Sociological jurisprudence evaluates the influence
of society on laws themselves, as well as on the
procedural aspects of the legal system. This type
of scrutiny compares the law with other
sociological fields of study, including religion,
economics, and literature, in an effort to bring
enlightenment by sharing understanding
between each sociological field.
Theoretical Jurisprudence
Studiers of theoretical jurisprudence seek to both
raise and answer elemental questions about the
law itself. Theoretical jurisprudence evaluates
laws as they relate to ideals, moral standards, and
goals, determining their historical and cultural
foundations. The theoretical branch often targets
abstract questions such as:
 How does a judge decide a case?
 Does he simply apply set rules and
regulations to the matter, or does he act as a
 legislator, deciding each case in favor of the
most preferable outcome to the public?
 Should a judge be allowed to be influenced
by unwritten moral, religious, and
sociological principles in deciding cases?
Schools of Jurisprudence
Modern jurisprudence has divided in to four
schools, or parties, of thought: formalism,
realism, positivism, and naturalism. Subscribers to
each school interpret legal issues from a different
viewpoint.
Formalism
Formalists view the law as a science, believing
that legal decisions should be reached in much
the same way a scientist or mathematician
reaches conclusions. In other words, a judge
should identify relevant legal principles, apply
them to the facts of the case before him, and
make a logical decision based on the outcome.
Appropriate sources of legal authority for
obtaining the necessary legal principles include
federal and state statutes and regulations,
federal and state constitutions, and prior case
law.
Additionally, formalists believe in inductive
reasoning in reaching court decisions. Inductive
reasoning allows the judge to gather a number of
relevant legal principles, laws, and rules, then
infer a broader legal principle to the matter
before him.
Realism
Realists take the view that the legal system is just
another form of politics. Oliver Wendell Holmes,
Jr., Supreme Court Justice from 1902 to 1932, and
active Chief Justice of the U.S. in 1930, wrote,
“The life of the law has not been logic, it has been
experience.” Indeed, realists disagree that the
law is a scientific endeavor, to which deductive
reasoning may be applied to reach a decision.
Realists also recognize that, because judges often
make decisions based on their political
affiliations, the law has a tendency to lag behind
social realities.
Positivism
Positivists take the view that the only proper
sources of legal authority are laws, rules, and
statutes that have been enacted by a
governmental entity, such as federal and state
legislatures, courts of law, and other
administrative bodies. Positivists hold that rules,
regulations, and principles may be considered as
“laws” because failure to obey them may result in
sanctions. Positivists assert that such issues as
religion and morality are only things people strive
for, and should not be used by a judge when
making a decision.
Naturalism
Naturalists believe it necessary for the law to be
bound by eternal principles present from time
immemorial. These principles, bound in religious
belief, moral philosophy, individual conscience,
historical practice, and human reason, remain
independent of governmental recognition and
influence. In light of these issues, naturalists
agree that laws, rules, and regulations are
legitimate, but believe they should not be the
only source of law.
A Dialogue Between Positivists and Naturalists
The early U.S. legal system took the attitude of
“right makes right,” carrying over the British
attitude of sovereign law, with the belief that
only the nation’s sovereign, or government, had
the power to back up such edicts with military
and police force. The Declaration of
Independence put a wrinkle in that line of
thought, however, with the introduction of the
self-evident truth that “all men are created equal
… [and] endowed by their Creator with certain
inalienable Rights.”
Slavery
An early example of this conflict was the practice
of slavery in the American South before the Civil
War. Slavery was recognized in the U.S.
Constitution, and legalized by the legislature,
making it legal to keep and trade in African-
American slaves. Contrary to the beliefs of by-the-
book positivists, abolitionists believed in a higher
power, and the “higher law principles” of religion
and conscience, and challenged the laws of the
time on the basis of the immorality of human
bondage.
Genocide
In the years leading up to World War II, the Nazi
regime passed laws making it legal to
exterminate European Jews. After the war, the
Allied powers were successful in prosecuting
German officials and military leaders for the
atrocities of genocide, relying on the natural-law
principle that every human had the inalienable
right to life and dignity. In the higher law
principle, no government or regime can take
away those rights through written law.
Therapeutic Jurisprudence
A relatively new field in jurisprudence, the
therapeutic branch studies how the legal system
affects the emotional state, mental health, and
behaviors of participants in the law, including
clients, attorneys, and judges. The goal of
therapeutic jurisprudence is to bring compassion
and understanding into the practice of law by
encouraging awareness of such emotional and
psychological issues as confidence, trust, and
stress.
Therapeutic jurisprudence promotes the concept
of problem-solving courts, such as those offering
drug treatment programs rather than
incarceration to those who may benefit from
such treatment. The goal of such changes is to
introduce changes in the way various legal
professionals, including judges, attorneys, law
enforcement personnel, and even expert
witnesses, interact with defendants.
It is felt that practicing with greater care,
empathy, and understanding improves the
psychological wellbeing of those they serve and
come in contact with professionally. Considering
solutions to problems, as well as the legal rights
of each client or defendant helps reduce the load
on the judicial system by preventing future legal
problems. This type of jurisprudence requires
some creative skills when it comes to adopting a
problem-solving approach to legal issues.
Medical Jurisprudence
Also referred to as “legal medicine,” medical
jurisprudence is the science of the relation
between legal issues and medical facts. This
includes applying the law to medical practices, as
well as applying medical science to legal matters.
This is commonly seen when doctors or other
medical professionals offer medical evidence at
trial, but is also applicable to medical
administrative panels, boards of inquiry, medical
licensing agencies, certification boards, and other
investigative bodies.
Medical jurisprudence comes into play in cases
concerning injury or death resulting from medical
malpractice, accidental trauma, or violence. It is
also used in cases where genetic relationships are
key, such as paternity testing.
Forensic medicine is one branch of medical
jurisprudence, dealing with questions regarding
such crimes as rape, homicide, and other
offenses. Modern forensic techniques provide
DNA testing of blood, semen, and hair, rape kit
analysis, and determination of cause of death.
Among the most frequent legal acts medical
professionals are required to do include providing
medical opinions and diagnoses to workers’
compensation and other insurance companies,
certifying time and cause of death, certifying
births, determining whether a psychologically
distressed person should be confined to protect
themselves or others, and notifying the
appropriate authorities in cases of infectious
disease, gun shots, and dog bites.
Jurisprudence Exam
Many states require those who work in various
medical and healthcare related professions to
certify they have read, and are familiar with, the
laws that govern their field. Generally it is
required that this jurisprudence exam be taken
before licensure or certification is issued to the
individual. Additionally, as it has become
apparent that healthcare professionals can
benefit greatly from a refresher in the applicable
laws, they may be required to test again with
each recertification, or from time to time.
While the exact nature of the jurisprudence exam
differs by jurisdiction and profession, common
topics include patient confidentiality, required
disclosure, code of ethics, and continuing
education. Tests on medical jurisprudence are
most commonly administered by computer at a
testing center, though some states have
instituted an online testing procedure.

Related Legal Terms and Issues

 Case Law – laws established by previously
made judicial decisions, rather than created
by legislative action.
 Higher Law – the principle or belief that
divine (the will of God) or moral laws are
superior to, and should be considered above,
man-made constitutions and legislation.
 Inalienable Rights – a right given by natural
law, which cannot be taken away,
transferred, or denied.