THE NATURE OF JURISPRUDENCE
The difference between a lawyer and a philosopher can be seen from the discussion between Socrates and Theodora. A lawyer’s main interest is to win his case whether good or bad but a philosopher is interested in the propriety of the applicable rules his main interest being the truth or justice of the matter. As we will see later, a lawyer is largely interested in the law as it is (lex lata) while the philosopher is interested in what should be the law (lex ferenda).
We now move to the nature of jurisprudence. The import of studying this course is to acquaint us with the thinking of law at a high level of abstraction and to enable us to capture the intricacies of the law. Jurisprudence seeks to distinguish between rules and how they are applied.
Aside Jurisprudence, we also have legal theory which is the principle under which a litigant proceeds, or on which a litigant bases its claims or defence in a case. The question then is whether there is any plausible distinction between the two? This is explained by the fact that whereas jurisprudence looks at general idea, general theories, the properties, characteristics of law everywhere, legal theory looks at particular things.
The relationship between jurisprudence and legal theory is a dialectical one or what we can regard as osmosis relationship, that is, one leading to another. But the key difference between the two lies in the level of their generality. As Jerome Hall noted that it is not the extent of the system discussed but the generality of the concepts which determines the nature of the subject.
Legal theory deals with the general principles involved in branches of positive law e.g. mistake, mens rea etc. while jurisprudence describes the more universal concepts inherent in legal theory. In Criminal Law for example, while legal theory may be interested in the mens rea of an offence, jurisprudence is interested in both the actus reus and the mens rea of that offence. In this regard, we can say jurisprudence looks at general things while legal theory looks at particular things.