1. AMALIA SULAIMAN UKM LAW SCHOOL 2020/2021
INTRODUCTION TO JURISPRUDENCE
3W : What, Who, Why
1. WHAT is Jurisprudence?
2. WHO should study Jurisprudence?
3. WHY study Jurisprudence?
Glossary:
Latin: prudentia juris = skill (ed) in law
Ancient Roman: juris + prudencia = exclusive power of judgment on facts
17th
Century English: knowledge of or skill in law
Synonyms: Jurisprudence, Theory of Law, Philosophy of Law
1. WHAT is Jurisprudence?
Jurisprudence involves the study of general theoretical questions about the nature of law and
legal systems about the relationship of law to justice and morality and about the social nature
of law.
• The philosophical interpretation of concept, the nature and the purpose of law
• One must look at jurisprudence outside of law
• Idea from human behaviours from many centuries and religion
• Jurisprudence answers to:
✓ What is law?
✓ What are the criterias for legal validity?
✓ What is the relationship between law, morality and justice?
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1.1 Nature of Jurisprudence:
• Has no authority / law / precedents
• It is a writing of scholars / jurists / philosophers
• There is no answer to a particular issue
• There is no right or wrong
• It requires deep thinking, critical analysis and in-depth discussion
Georg Wilhelm Friedrich Hegel (German Philosopher): “philosophy cannot teach the world
what it ought to be”
• The philosophy is far from the matters of fact treated in empirical sciences.
• The materials have not the pedagogical interest produced by casebook dogno
• The law is the only institution that is mainly a deductive system or employs
predominantly the logic of subsumption
2. WHO should study Jurisprudence?
First: Jurisprudence may be taught in the art and philosophy departments preceding the law
studies or concurrently with law studies.
Second: Jurisprudence may be taught in post-graduate studies.
Third: Jurisprudence is totally situated in the legal realm. Thus, it shall be studied by lawyers.
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3. WHY study Jurisprudence?
Professor Max Rheinstein (American-German jurist)
“To be a good craftsman of the law, students must not only learn the law, but also become
proficient in the use of its tools. These tools are concept, logic and language.”
Students should study jurisprudence:-
• To understand law
• To know the idea behind law
• To know the impact of law
• To know the wholesome of law
• To check the credibility of law
• To understand the different perspective of law
• It is a form of weapon for lawyers
4. Two Main Streams in Jurisprudence
Naturalism Positivism
• A system of universal moral and
ethical principles.
• It is aim to preserve freedom and
morale.
• Law is the supreme will of the state.
• It is aim to ensure the existence of
society.
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4.1 Foundational Outlook
Analytic Jurisprudence Normative Jurisprudence
• Concerns with the inquisitive nature
of academics carrying out their
studies in this area- asking questions
like;
‘What is law?’
‘What is the relationship between law
and sociology?’
‘What is the relationship between law
and morality?’
• Jurists: HLA Hart and John Austin
Question ask: What law is instead of
what it ought to be.
This area of legal theory is clearly not
concerned with the hypothethical
only the reality of a given situation
within a set of circumstances at a
particular time in a particular place.
• Recognises what law ought to be in
an ideal world and overlaps this idea
with both moral and political
philosophy, in relation to as to wether
the law should be punished, the use
of regulation and as to how the
judiciary should reach its judgments.
• Jurists: John Rawls, Fuller
5. Meaning of Law
CASE: Che Ani Bin Itam v PP [1984] MLJ 113 at 115
“It is now firmly established that ‘law’ in the context of such constitutional provisions as Articles
5, 8 and 13 of the Constitution refers to a system of law which incorporates those fundamental
rules of natural justice that had formeed part and parcel of the common law of England that
was in operation at the commencement of the Constitution”.
Article 160 FC defines “law” to include:
“Written law, the common law in so far as it is in operation in the Federation or any part thereof,
and any cutom or usage having the force of law in the Federation or any part thereof”.
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6. Abstract and Theoretical Questions of Law
• Origin of law
• Nature of law
• Purpose of law
• Morality and justice of law
• Role and relationship of law
7. Contextual Understanding of Legal Theories and Law
Various basics contexts:
1. Religion: jurists look at the religious teaching
2. Historical: jurists work within the intellectual climate of their era
3. Cultural: legal concepts differs from one culture to another. Rights, freedom and
justice.
4. Social: The setting of the society determine the structure of the law
Context of the questions asked and how a person viewed a situation influence the
understanding.
8. Modern Jurisprudence
Professor Hari Chand;
“Jurisprudence is a science which aims at perfecting law to achieve its purpose in the broader
sphere of social justice. In other words, jurisprudence is an endeavour to trace a law behind
laws so that it becomes a more serviceable tool in the service of mankind.”
Modern Issue: Abortion in Malaysia
• What is the objective of abortion law?
• Does it fulfill the requirements of morality and justice?
• What is the impact of the society?
• Should the conduct be illegalised or legalised?
• Legality or legitimacy?
