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.