Jurisprudence & Legal Theory

Nothing excites the faculties and warmth the passions of poets, philosophers and man alike as the phenomenon of law. There is a badge of authority whenever one makes a claim in the name of the law. The law emits an aura of respect, awe and wonder to those who encounter it. This veneer of respectability also cloaks an intuitive fear of treading beyond the perimeters of legality. The law has touched us in some ways or another. The man in the street and lawyers seem to encounter little difficulty in recognizing “law” as a being, an entity capable of existence on its own, a creature or reified as some other identifiable field of meaning.

Any lawyer could answer a professional question that rape had occurred when one had unlawful sexual intercourse in the sense that it was done without the victim’s consent. We are victims of countless unsolicited advice not to park at the yellow line. You would have in your black letter’ pre-Part 11 days dogmatically accepted these rules, principles and concepts of law to solve specific areas of legal doctrine. You might be a master at it, sussing out the system and adapt it to the demands of the rituals of the examination.However, in practice, the legal realm can be viewed at an angle that surpasses the immediate experiences and needs of professional practice. There is an uncharted terrain lying beyond these seemingly normal but specific circumstances.

Think again. Is rape a merely act of sexual intercourse without consent as apparent from its definition? Why not ask about the purpose of prohibiting rape in the first place. Is it to protect morality? Does it arise from the need to protect a distinct human right? This in turn give rise to the question, what rights? Are they inborn and inalienable? Or do they just arise as a matter of the fact of human survival? Is the protection of these rights meritable? Jurists who subscribe to what is misleadingly referred to as ‘analytical jurisprudence’ might just contend themselves to just issue that we should not commit rape because it is prohibited by law in the sense that we are obeying a command or that we are merely following a legal rule set by the state. On the other hand, natural lawyers criticise this approach as being inadequate as it misses out on an important moral dimension that justify such laws. The rights theses go a step further to articulate that such a piece of legislation is intended for the protection of rights.

From a wider perspective, feminists see a paradox in that the laws prohibiting rape does not really protect at all but work to suppress the female gender. The feminists argue that such suppression is part of a larger scheme of things the domination of the male factor. This, it is argued, is apparent from the male definition of rape that center on the activity of sexual intercourse. The definition is myopic of the actual mental trauma and physical violence left on the female victim. Hence, feminist jurisprudence strive to make us conscious — to see beyond the ideological hegemony - of what might have been an unconscious scheme of domination.

Welcome to the world of jurisprudence. A world where ideas are at a premium. A world that is, in the words of Llewellyn, ‘as big as law — and bigger!’ Jurisprudence provides you with an opportunity to view law beyond its instrumental value. You break free from the stifling nature of ‘black letter’ law subjects. No longer would you dogmatically accept law as ‘law’ in its professional context. You are now required to think through arguments and perspectives, which have a distinctive tradition and pedigree. The only limitation is your imagination.

Jurisprudence descends from the professional question of ‘what is the law?’ — which involves questions of particular rules, policies and principles — to more general processes and issues. Jurisprudence is concerned with the question of ‘What is Law?’

2. What is Law?

At face value, this question may appear simple. It is deceiving. If jurisprudenee is this easy, why is it that this question still continue to plague since the time of the classical Greeks over 2,000 years ago, and no conclusive ‘truth’ - not in its Dworkinian sense, of course - has been arrived at?

This should not shy you from jurisprudence but to spur you to take over the mantle of the greats in this enterprise. An enterprise to attain legal (juris) wisdom (prudence). Reflect on the philosophical question — What is Law? Remember that jurisprudence is not about the study of legal philosophy. It is an activity of philosophising. In other words we are not interested in merely seeking knowledge of the - black letter - law, but to articulate what it means to talk of law at all. This enterprise of ‘making sense’ of law reveals a certain reflexive undertone. Reflexivity means that we go beyond the desire to understand the issues raised by the question ‘What is Law?’ It is an endeavour to comprehend the conditions and stimuli, which sparked off these questions, and to make sense of why these make us thirst tbr meaning. it is a unique brand of self-questioning. Ask yourself; What is law? Why do we need laws? Why do we obey laws? Are evil laws possible’? If so, should we obey them?

3. Do these Questions Make Me a Lawyer?

It is conceded that jurisprudence will not help you draft a will nor will it help you fill in your tax forms. Neither will it assist you in renting out your flat. It will, however, definitely help you appreciate what law is about. This exercise is not devoid of practical value. On the contrary, it is brimming with it. Bentham and Austin thought that law is about power manifested in a command. On the other hand, Hart and Kelsen believe that law is about acceptance of rules and of authority. This authority must not be confused with moral authority that Natural Lawyers believe to be essentially connected to law. On another plane, Austin believes that judges were deputy legislators but Bentham chides judge made law as ‘dog law’. On the other side of the spectrum, Dworkin thinks that judges ought not and do not make law. They merely interpret law, which is already there. Hart occupies a middle ground by saying that judges only make law in ‘legally unregulated’ cases where they had run out of rules.

Outside the boundaries of this so-called ‘analytical jurisprudence’, jurists like Rawls, Nozick and even Dworkin is of the opinion that law should respect and enforce moral rights. Rights are trumps. Others, like Bentham, cynically brands rights as ‘nonsense upon stilts!’

From another rangle, law is also a social phenomenon - of tension, conflict, ideology, domination, consensus and power relation within society. As seen above, feminist legal scholars view law as a product of male thought. They believe that law is part of a conspiracy of male domination. Marxists, on the other hand, side step the gender issue to concentrate on the economic structure. To them, law is a tool of oppression and suppression of the working class. It merely serves the interest of the rich and powerful. The point that the feminists and Marxists are trying to drive at is that we should open our eyes and minds - to make conscious what is otherwise an unconscious scheme of domination. This endeavour takes a cynical turn with the Critical Legal Scholars attempt to let us peer beyond the veneer of respectability put up by law schools and witness what is, in ‘reality’, chaos and conflict.

Brought down to earth, these issues suggest some very practical solutions to the problem that plague politicians, judges and practising lawyers. You could be faced with a constitutional crisis. You could be required to solve the problems of revolutions (the Taleban seizure of power in Afghanistan), coup d ‘tat (in Cambodia) to peaceful granting of independence (Malaysia and Singapore), cases which were significantly inflt~enced by Kelsen and Austin. In fact, these ‘greats’ occupy over 1,000 pages of the judgmmt of the Rhodesian High Court in Madzimbamuto v Lardner-Burke.

Do not forget the Nazi experience and the Holocaust. The laws were contrary to very sense of human decency. Were Hitler’s judges and generals merely dutifully carrying out their duties under the law? These are real life issues that demand an answer today after the Bosnian War. Imagine yourself as a judge, faced with such a dilemma. Imagine people like Himmler and Karadzic standing before you!

4. Is Jurisprudence Difficult?

Jurisprudence could now come as a rude shock. You are snatched from the comforts of your favourite Denning judgment and friendly statute and thrown into the murky depths of a world inhabited with seemingly unpronounceable terminology, epistemology, sociology, teleology, normativity and metaphysics. The fact that you are presumed to have understood philosophy, sociology, economics and even anthropology does not augur well with your already failing confidence.

The trick is to change your mindframe. The mind is like a parachute; it only works when it is open. Do not be discouraged by the absence of a conclusively ‘right’ answer. As Dworkin argues, there is never one lying ‘out there’. No one definition could adequately capture the essence of jurisprudence. To embrace jurisprudence is not to hold on to one conclusive conception of truth. This would dull the subject. Jurisprudence is about being a part of a series of traditions of intellectual effort. Jurisprudence is your passport to a borderless world to exchange wisdom, to be part of a grand tradition and to contribute to better understand the enterprise of law in modern society