DICTAeducation
Defence of
Jurisprudence
In
Matthew Birchall argues that legal
philosophy should be studied ‘actively’.
T
he study of jurisprudence, or ‘the philosophy of law,’ is split into
two main branches: analytical jurisprudence and normative jurisprudence. The former seeks to answer the question ‘what is law?’ through
empirical analysis of legal systems and concepts, whereas the latter is concerned with determining what the law ought to be – i.e. what constitutes
‘good’ law. A common student response to these questions, however, is:
‘Why does it matter?’
There are, you may be surprised to hear, those who thoroughly enjoy
the subject from the very first lecture, though this would appear to be a
minority view. For others it is an acquired taste: something which they
learn to appreciate, or at least tolerate. For the rest, jurisprudence is often
seen as abstract, impenetrable, and irrelevant to
pursuit of a career in the law. It is certainly easy
to see why this has become the prevailing view
– after all, jurisprudence is not a requisite component of a qualifying law degree, so why not
study something of more practical use? Even
for those who have decided to read law, with
no intention whatsoever of becoming a lawyer,
the lack of a ‘correct’ answer to jurisprudential
questions may be an intensely frustrating aspect
of the subject. This is undoubtedly made worse
by the amount of time dedicated to exposing
the flaws of each and every theorist’s account
of law, with plausible solutions to their shortcomings few and far between.
However, whilst these complaints may be understandable from the perspective of the modern student, they overlook the purpose of studying
jurisprudence in the first place and therefore ruin any chance of enjoying
the subject.
The primary goal of studying jurisprudence is not necessarily to find
definitive answers to the philosophical questions surrounding law, but
rather to explore them and develop a greater understanding of issues.
For example, why do people obey the law? Is it due to fear of sanctions
for breaching law, as advocated by command theorists like John Austin?
Or is H.L.A. Hart’s theory more accurate – that it is due to an acceptance
by legal officials of the legitimacy of the legislator combined with public
acceptance of the validity of the legal system as a whole that makes individuals feel under an obligation to obey the law? Though the question may
seem abstract, it has important ramifications in terms of the efficiency of
the criminal justice system. If command theories are accurate, then high
incidence of breaking a particular law would seem to indicate that the
relevant sanction is not severe enough. However, if other theories, such as
Hart’s, are more accurate, then increasing severity of the punishment for
breaking a particular law may have negligible impact upon the undesirable
behaviour.
Moreover, the study of a subject as complex and indeterminate as jurisprudence requires students to develop a solid grasp of the concepts and
be able to reflect upon their relative merits, as
opposed to learning how to apply law to specific
circumstances. Through studying jurisprudence
at Bristol, I have found that it provides an excellent opportunity to enhance rational t