Jurisprudence

The term "jurisprudence"means literally and traditionally "practical widsom about law," the intellectual capacity to frame and apply laws according to sound theoretical principles. Nowadays, the term has several different meanings, all descendants of this classical sense.

First it is used to refer to abstract legal philosophy - the study of such topics as the general characteristics of legal rules, of legal norms, of legal systems and institutions; topics of legal reasoning and decision making; and topics of legal validity, legal rights and legal interpretation. Approaches to these problems tend to group into 3 large kinds: legal positivism, natural law theory and legal realism.

Legal Positivism

Legal positivism typically focuses solely on these abstract problems, and regards issues of moral or political content of law as not part of jurisprudence.

Natural Law Theory

Natural law theory, by contrast, regards the determination of law in accord with sound principles of political morality as essential to law making and law applying.

Legal Realism

Legal realism and its associates, critical legal studies, feminist legal theory and socialist legal theory, concentrates on the empirical realities of law making, law applying and law enforcing as they play themselves out in society - how the law supposedly serves certain race, gender and class interests rather than others, for example.

Second, "jurisprudence" is used to refer to the general legal, moral, political or economic policies and principles embodied in a body of law or a body of legal decisions. So one may speak of "the jurisprudence of Canadian tort law," meaning the underlying principles on which Canadian tort law is based. Or one may speak of "the jurisprudence of the Supreme Court concerning freedom of expression," meaning the principles which underlie the series of the Court's decisions concerning freedom of expression.

Jurisprudence as a subject taught in schools of law is usually a combination of both the senses distinguished, with different emphases as the curriculum requires. The same topics are also taught in university and college departments of philosophy under the title "Philosophy of Law." Jurisprudence ideally is an interdisciplinary subject, needing the skills of both a lawyer and a philosopher.

As an Academic Subject

As an academic subject, jurisprudence is very strong in Canada. The Canadian chapter of the International Society for Philosophy of Law and Social Philosophy, drawing membership from both law and philosophy, contains as members a number of internationally known scholars. The same is true of the Canadian Association of Law and Society. There are 2 specialist interdisciplinary degree programs focusing on jurisprudence at Queen's University (Kingston), and Western University (London), Ont. In addition there are specialist centres for applied ethics, including the ethical aspects of the law, at UBC, Western and McGill.

Importance to the Practice of Law

Jurisprudence has become especially important to the practice of law in Canada since the enactment of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS. The Charter makes the moral justification of legal norms and decisions an essential part of Canadian law. Canadian courts, and especially the Supreme Court, now have no choice but to explore the fundamental moral meaning of terms such as "freedom of expression," "equality," "security of the person" and so forth, in order to determine whether a particular piece of legislation or a particular legal rule is consistent with the Charter. Inevitably, some Charter decisions have been controversial. But in general it seems that Canadian courts and the Canadian legal community have risen well to the challenge of applying principles of jurisprudence to the practice of law.

Author ROGER A . SHINER

Links to Other Sites
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.

Canadian Online Legal Dictionary
The website for Irwin Law's Canadian Online Legal Dictionary.