What Is Jurisprudence all About - Coursework Example

What is Jurisprudence all about? Introduction Jurisprudence has many definitions but the various definitions as discussed by Hart (1997) and Dworkin (2002) seem to suggest that Jurisprudence is the understanding of law which comes from the theories and the fundamental philosophies followed within the law. To better understand what Jurisprudence is all about, it would be ideal to focus on two famous legal experts i.e. Hart and Dworkin in order to analyze their explanation of the term as it applies to the philosophy of laws today. Hart Between the two, Hart can easily be classified as a legal positivist when it comes to the idea of jurisprudence. He is a legal positivist because he considers laws to be disconnected from morality itself and more in line with a system of social guidelines which come with punishments for violations. Thus the viewpoint taken of jurisprudence by him is one of the analytical side where jurisprudence is taken as the philosophy which guides rules in a society that are in turn made into the laws of the society. In effect, Jurisprudence is based on primary rules which actually define acceptable and unacceptable conduct in a social system and secondary rules which tell law officials how to use the primary rules. There are further subdivisions of secondary rules which include the rules of adjudication, the rules of change, and the rules of recognition. In these, the rules of adjudication show ways in which the jurisprudence governs the resolution of legal disputes. The rules of change govern how laws can be altered while the rules of recognition allow rules to be considered valid or invalid. In terms of jurisprudence as it connects with the rules that form the laws in society, it can be debated if morality should be made a part of the equation and there are those who suggest that morality is an important element when it comes to making or altering laws. However, considering that Hart takes morality out of the equation, it could make jurisprudence more dynamic as the norms of society may change much faster than the moral standards of a given social order. Dworkin Ronald Dworkin is perhaps more important of these two legal thinkers since his contributions to the field of law extend far beyond jurisprudence alone. He also works with the philosophy of law and political ideology debates where his opinions have been widely accepted and opposed as well (Burgess-Jackson, 1998). With regard to jurisprudence, his leading theory is the theory of integrity as it applies to the philosophy of law and the participants in the legal system. An understanding of this philosophy becomes important for any student of politics or law who wishes to understand Dworkin’s approach to jurisprudence. Dworkin’s thoughts about jurisprudence present an excellent counter point to Hart since his theory takes a different view to the legal positivist approach recommended by Hart (Burgess-Jackson, 1998). The counter point comes in the argument concerning jurisprudence where Dworkin does not agree with the idea that the legal system should be completely based on preset socially agreed upon rules (Doubt, 1998). In fact, Dworkin sees jurisprudence as being based on a lot more than rules since he notes the importance of others guiding principles which include things such as cultural norms, government guidelines and the spirit of the times (Doubt, 1998). Further, he believes that rules apply exclusively to a particular case or a given scenario and thus they cannot have partial application. On the other hand, the principles which guide the laws can be applied partially. Dworkin explains that since principles can be in conflict with each other, the conflict can lead to different decisions from various judges (Dworkin, 2002). Of course in such scenarios where principles are in conflict, the weight of each principle can act as a balancing force to the other and the strongest one helps in making the best decision. If both the principles applicable in terms of the principles of jurisprudence are quite strong, then a compromise between the two must be made. This balancing leads to a final decision which would be ethical as well as legally correct (Doubt, 1998). However, as a nod to Hart, since the principles would come from the Jurisprudence system which made the laws in the first place, the verdict would therefore be based on the dictates of society. This brings the idea of integrity to jurisprudence where Dworkin believes that two types of integrities must exist. The first is the legislative integrity which means that the people who make the laws and those who hand out justice must have integrity when they make the laws in the first place. Further, the basis of all laws used in a society should have their foundations in the guiding principles on which the social order runs. The second integrity comes in the shape of judicial integrity which is focused on the judges who give decisions on cases by interpreting the laws. If they act in a manner which is consistent with principles of jurisprudence with integrity then they can be said to have acted with a high level of judicial integrity (Dworkin, 2002). In fact, the idea of integrity further extents to the law enforcement agencies themselves since they are the primary arm of the law which deals with society at large. With regard to jurisprudence, the concept of integrity can be made simply if it is seen as being a consistent application of the philosophy of the law and a lack of ambiguity when it comes to making laws simple and rational. Undoubtedly, the principles of a society may change with time as in case of legalization of alcohol, legalization of drugs, permitting sex workers to operate and even abortion but such changes in the philosophy of jurisprudence represent changes in the social system as well as the mood of society itself and not the personal opinions of any one individual (Dworkin, 2002). While Jurisprudence can be seen as the theory of law, society itself can be seen as an individual body to which the theory of law is applicable. The collective decisions made by the society can affect laws as well as jurisprudence. However, in all cases, society must remain honest with its own self and handle the various members of the body with a high level of integrity. Dworkin agrees that society is made up of individuals, yet he maintains that every member is an individual who is more disconnected from society than he or she is connected to it. This situation demands that the decisions made by society for all its members regarding the laws or the philosophy by which laws are made must be dependent on honesty and integrity which leads to the idea that a society with a good jurisprudence system would be speaking as one (Dworkin, 2002). Under normal circumstances where jurisprudence is practiced, a society would have complete power over an individual but to exercise that power rightfully Dworkin wants the society to justify its position of power over the individual. Society has to show that it is powerful and is rightfully controlling the actions of individuals but this can only be done through showing people that society has the virtues of legal integrity and equality for all. In terms of Jurisprudence, Dworkin’s idea of society speaking with one voice is more than consistent application of the law since it includes the idea that society will also give the equality of respect to all its members with the jurisprudence system followed in that particular social system (Dworkin, 2002). So with regard to jurisprudence, Integrity becomes an essential virtue for people who work with legal authorities, for the judges who interpret the laws and the of the law itself. If the people who make the laws were ethical and had integrity and the judges who enforced or interpreted the laws had integrity then the laws which were created, upheld and enforced would also have integrity. Indeed this is an idealistic viewpoint but Dworkin seems to know that such changes cannot be made overnight (Wolfe, 1994). In fact, what Dworkin appears to be looking for is a personal level of integrity for all members of society that would eventually lead to the idea of integrity itself being a part of society. In such conditions, the notion of equality becomes a part of the moral and legal philosophy that defines jurisprudence. The idea of equality itself has been discussed by many philosophers and thinkers in the past and Dworkin (2002) has given his own notion of equality where he suggests that all persons are to be held responsible for their personal actions as well as the choices which they make. Therefore, a plea for making bad choices in life should not affect the equality of justice. Additionally, the idea of equality for Dworkin (2002) connects directly with the idea of the natural gifts a person has been given by nature. These include things such as intelligence, strength, charisma, mental abilities etc. These natural gifts are not to be connected with the idea of morality and they should in no way influence how the equitable resources of a given society are shared amongst the members of the society. Amongst these equitable resources is the idea of equal consideration through jurisprudence and the level of respect awarded by the law to one individual should be the same as it is given to any other person who appears before the judges. Moreover, the concern shown by the law for the life of one individual should be the same as the other. The structure of the society in terms of wealth, resources, abilities or social position of the individual should have no bearing on how they are treated by the law. Clearly, with such an idea of equality and equal treatment, Dworkin (2002 ) comes across as being someone who would be as hard on those who have committed white collar crime as those who commit armed robberies. Conclusion While there may be those who disagree with the notion of jurisprudence as connected with moral as well as the economic ideals which a society strives for as described by Dworkin, It is easy to agree with him knowing what sort of society and jurisprudence would come from such a system. Just the idea of integrity itself asks for all of society to work with honesty and make sure that no laws are created which are unfair and the application of the law itself is complete. It seems that Dworkin as well as Hart do believe that Justice is an end in itself while being something that society must work towards both in terms of action and words. In this instance, Dworkin’s theory of using integrity while developing a system of jurisprudence certainly helps a society see where it is going in terms of being honest to its contractual partners and also allows judges a measure of testing their own valuations and their judgments on the scale of integrity. This is also supported by the idea of creating a society where the equality of respect exists without regard to social position, social rank or wealth. It may be impossible to try and create a system where every resource within the social order could be given to everyone in society on equal terms but respect from the law is certainly one of the few resources such as votes which can be given out in equal measure to everyone who comes to a court of law. Dworkin is therefore quite right in suggesting that such equality should be an integral part of the jurisprudence system along with his ideas of the correct application of legal and social principles. Word Count: 2,018 Works Cited Burgess-Jackson, K. 1998, ‘Teaching Legal Theory with Venn Diagrams’, Metaphilosophy, vol. 29, no. 3, pp. 159-178. Doubt, K. 1998, ‘Dworkins Moral Hermeneutics and Sociological Theory’, Social Science Journal, vol. 35, no. 3, pp. 333-246. Dworkin, R. 2002, Sovereign Virtue: The Theory and Practice of Equality, Harvard University Press. Hart, H. 1997, The Concept of Law, Oxford University Press Wolfe, C. 1994, ‘Liberalism and paternalism: A critique of Ronald Dworkin’, Review of Politics, vol. 56, no. 4, pp. 615-640. Read More