Jurisprudence

Overview
The word jurisprudence derives from the Latin term juris prudentia, which

means "the study, knowledge, or science of law." In the United States
jurisprudence commonly means the philosophy of law. Legal philosophy has
many aspects, but four of them are the most common:
1. The first and the most prevalent form of jurisprudence seeks to

analyze, explain, classify, and criticize entire bodies of law. Law school
textbooks and legal encyclopedias represent this type of scholarship.
2. The second type of jurisprudence compares and contrasts law with
other fields of knowledge such as literature, economics, religion, and
the social sciences.
3. The third type of jurisprudence seeks to reveal the historical, moral,
and cultural basis of a particular legal concept.
4. The fourth body of jurisprudence focuses on finding the answer to such
abstract questions as "What is law?" and "How do judges (properly)
decide cases?"
Schools of Jurisprudence
Formalism vs. Realism
Apart from different types of jurisprudence, different schools of
jurisprudence exist. Formalism, or conceptualism, treats law like math or
science. Formalists believe that a judge identifies the relevant legal
principles, applies them to the facts of a case, and logically deduces a rule
that will govern the outcome of the dispute. In contrast, proponents of legal
realism believe that most cases before courts present hard questions that
judges must resolve by balancing the interests of the parties and ultimately
drawing an arbitrary line on one side of the dispute. This line, realists
maintain, is drawn according to the political, economic, and psychological
inclinations of the judge. Some legal realists even believe that a judge is
able to shape the outcome of the case based on personal biases.
Positivists v. Naturalists
Apart from the realist-formalist dichotomy, there is the classic debate over
the appropriate sources of law between positivist and natural law schools of
thought. Positivists argue that there is no connection between law and
morality and the the only sources of law are rules that have been expressly
enacted by a governmental entity or court of law. Naturalists, or proponents
of natural law, insist that the rules enacted by government are not the only
sources of law. They argue that moral philosophy, religion, human reason
and individual conscience are also integrate parts of the law.
Some have attempted to break down schools of positivism and naturalism
(aka: anti-positivism) into 3 distinct groups:
1. exclusive legal positivists

1. According to exclusive legal positivists, what makes up the law
is exclusively determined by social facts
2. anti-positivists
1. According to anti-positivists, moral facts determine the legal
relevance of actions which people/institutions take
3. inclusive legal positivists
1. According to inclusive legal positivists, moral facts might play a
part in determining the content of the law, but only if the
relevant social practices assign them that role. Inclusive legal
positivism is a form of positivism because it holds that social
facts are the ultimate determinants of the content of the law,
and that the law might be determined by social facts alone. But
it allows that people might choose to have the content of their
law depend on moral facts, as they seem to do, for example,
when they prohibit punishment that is cruel, or confer rights to
legal protections that are equal.
The above mentioned schools of legal thoughts are only part of a diverse
jurisprudential picture of the United States. Other prominent schools of legal
thought exist. These include but are not limited to:
1. Critical legal studies
Overview
Critical legal studies (CLS) is a theory which states that the law is necessarily intertwined with
social issues, particularly stating that the law has inherent social biases. Proponents of
CLS believe that the law supports the interests of those who create the law. As such, CLS states
that the law supports a power dynamic which favors the historically privileged and disadvantages
the historically underprivileged. CLS finds that the wealthy and the powerful use the law as an
instrument for oppression in order to maintain their place in hierarchy. Many in the CLS
movement want to overturn the hierarchical structures of modern society and they focus on the
law as a tool in achieving this goal. S
History
CLS was officially started in 1977 at the conference at the University of Wisconsin-Madison, but
its roots extend earlier to when many of its founding members participated in social activism
surrounding the Civil Rights movement and the Vietnam War. The founders of CLS borrowed
from non-legal fields such as social theory, political philosophy, economics, and literary theory.
Among noted CLS theorists are Roberto Mangabeira Unger, Robert W. Gordon, and Duncan
Kennedy.
Influences
Although CLS has been largely contained within the United States, it was influenced to a great
extent by European philosophers, such as Karl Marx, Max Weber, Max Horkheimer, Antonio
Gramsci, and Michel Foucault. CLS has borrowed heavily from Legal Realism, the school of
legal thought that flourished in the 1920s and 1930s. Like CLS scholars, legal realists rebelled
against accepted legal theories of the day and urged the legal field to pay more attention to the
social context of the law.
Subgroups
CLS includes several subgroups with fundamentally different, even contradictory,
views. Feminist legal theory examines the role of gender in the law. Critical race theory
(CRT) examines the role of race in the law. Postmodernism is a critique of the law influenced by
developments in literary theory, and it emphasizes political economy and the economic context
of legal decisions and issues.
Further Reading
For more on critical legal studies, see this University of Minnesota Journal of Theory and
Practice article, this Harvard Law Review article, and this University of Pennsylvania Faculty
Scholarship article.
2. feminist jurisprudence,
Feminist Jurisprudence: An Overview

Feminist jurisprudence is a philosophy of law based on the political,
economic, and social equality of sexes. As a field of legal scholarship,
feminist jurisprudence began in 1960s. It now holds a significant place in
U.S. law and legal thought and influences many debates on sexual and
domestic violence, inequality in the workplace, and gender-based
discrimination. Through various approaches, feminists have identified
gendered components and gendered implications of seemingly neutral laws
and practices. Laws affecting employment, divorce, reproductive rights,
rape, domestic violence, and sexual harassment have all benefited from the
analysis and insight of feminist jurisprudence.
Feminists believe that history was written from a male point of view and
does not reflect women's role in making history and structuring society.
Male-written history has created a bias in the concepts of human nature,
gender potential, and social arrangements. The language, logic, and
structure of the law are male-created and reinforce male values. By
presenting male characteristics as a "norm" and female characteristics as
deviation from the "norm," the prevailing conceptions of law reinforce and
perpetuate patriarchal power. Feminists challenge the belief that the
biological make-up of men and women is so different that certain behavior
can be attributed on the basis of sex. Gender, feminists say, is created
socially, not biologically. Sex determines such matters as physical
appearance and reproductive capacity, but not psychological, moral, or
social traits.
Though feminists share common commitments to equality between men and
women, feminist jurisprudence is not uniform. There are three major schools
of thought within feminist jurisprudence. First, traditional or liberal,
feminism asserts that women are just as rational as men and therefore
should have equal opportunity to make their own choices. Liberal feminists
challenge the assumption of male authority and seek to erase gender-based
distinctions recognized by law thus enabling women to compete in the
marketplace.
Another school of feminist legal thought, cultural feminism, focuses on the
differences between men and women and celebrates those differences.
Following the research of psychologist Carol Gilligan, this group of thinkers
asserts that women emphasize the importance of relationships, contexts,
and reconciliation of conflicting interpersonal positions, whereas men
emphasize abstract principles of rights and logic. The goal of this school is to
give equal recognition to women's moral voice of caring and communal
values.
Finally, radical or dominant feminism focuses on inequality. Similarly to
liberal feminism, radical feminism asserts that men, as a class, have
dominated women as a class, creating gender inequality. For radical
feminists, gender is a question of power. Radical feminists urge us to
abandon traditional approaches that take masculinity as their reference
point. They argue that sexual equality must be constructed on the basis of
women's differences from men and not be a mere accommodation of those
differences.
3. law and economics,

4. utilitarianism,
5. legal pragmatism
Further Reading
More more on jurisprudence, see this Yale Law Journal Article, Washington
University Jurisprudence Review, and this Michigan Law Article.
menu of sources
other references
key internet Sources
 Law and Economics
Useful Offnet (or Subscription - $) Sources
 Good Starting Point in Print: Steven J. Burton, An Introduction to Law

and Legal Reasoning, Aspen Publishing (2d ed. 1995)
other topics
Category: Legal Theory
 wex
o ACADEMIC TOPICS
o courts
o wex definitions
 Keywords
o philosophy
o legal scholarship
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Overview

The word jurisprudence derives from the Latin term juris prudentia, which

1. The first and the most prevalent form of jurisprudence seeks to

1. exclusive legal positivists

1. Critical legal studies

Feminist Jurisprudence: An Overview

3. law and economics,

 Law and Economics

Useful Offnet (or Subscription - $) Sources

 Good Starting Point in Print: Steven J. Burton, An Introduction to Law

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