Abstract: Jurisprudence is dedicated to studying the determinative or binding nature of norms, but it is not equivalent to the actual effectiveness of norms.
Part2 · Chapter1 Characteristics of Jurisprudence#
Law is a complex phenomenon in human society#
- "Human" means not "natural phenomenon", "complex" means it is possible to observe the situation of law from multiple perspectives and in multiple ways.
- Different branches of philosophy of law, legal theory, sociology of law, legal history, and legal doctrine (jurisprudence) are generated based on different perspectives and methods of observation.
Law is the sum of rules that humans rely on to establish and balance their behavior towards each other#
- Law is a prerequisite for all highly developed social forms because it can prevent disputes or resolve disputes that have already arisen in a peaceful manner.
Jurisprudence is the method by which legal professionals study the law#
- The characteristic of jurists, as distinguished from sociologists of law and legal historians, lies in their use of the methods of jurisprudence (legal doctrine) to observe the law, rather than sociological or historical methods.
- Jurisprudence is dedicated to studying the determinative or binding nature of norms (oughtness), but it is not equivalent to the actual effectiveness of norms (isness).
Jurisprudence is based on positive law as a working premise, but it can also criticize it#
-
If jurisprudence does not want to evolve into a social theory based on natural law, philosophy of history, or philosophy of society, and wants to maintain its true nature as jurisprudence, it must assume that the current legal order is generally reasonable.
-
Jurisprudence is fundamentally aimed at a specific legal order at a given time, that is, it is based on a framework of "positive law". However, by studying the underlying legal ideas and evaluation criteria of this positive law and maintaining distance from individual norms, it can obtain a "intrinsic" basis for criticism and take a critical stance towards the norms and problem-solving solutions of the current law. (This criticism does not originate from ethical norms outside the existing legal order).
Legal policy is the legitimate research field of jurisprudence#
- Jurisprudence often points out the defects of current norms in its criticism, stimulates improvement suggestions, and indicates the direction of improvement; in addition, legal policy needs to first rely on jurisprudence to transform the obtained conceptual goals into applicable norms.
- Even when conducting "legal policy" arguments, jurisprudence must adhere to its boundaries, that is, it must be guided by the basic principles of the current legal order and make every effort to examine the justice implications of individual provisions or decisions.
- Jurisprudence is concerned not only with clarity and legal stability but also with gradually implementing "more justice" in detail.