Explanation of the Term Jurisprudence and Layers of Interpretation - Essay Example

Jurisprudence Introduction: Explanation of the Term and layers of Interpretation Every system, method or that is used for the purpose of social governance, has a philosophical or scientific foundation: law, as one of the most important devices for social control and governance, uses jurisprudence as it foundation for both articulation and orientation in various societies, at different points of time. Jurists and scholars have clearly opined that society has its own natural or organic process of transformation. Society never changes according to the nature of law; rather to retain the issues of social control and harmony law and the related institutions are required to keep a close watch on changing traits of society. Consequently, keeping in accordance with such traits law and the institutions that aim at implement legal systems in a social context are required to transform them so that the basic issues of individual liberty and equality can be attained or maintained. However, understanding nature of such social change is not an easy method; rather it requires substantial empathetic or farsighted observation so that pulse of such change can be perceived accurately and in this context, relevance of Jurisprudence can be realized. If an attempt is made to analyze the term “Jurisprudence”, it will be found that the word is a fusion of two words “Jurist” and “prudence”: leading a student of law to the realization that scholarly opinion or prudence of jurists is actually known as jurisprudence. According to the legal scholars like Roscoe Pound, jurisprudence is actually “the science of law” and they have contradicted opinion of legal philosophers like Austin who suggested that jurisprudence is actually “a philosophy of law” (Pound, 2002, p. 7-11). The historical development of jurisprudence, starting from ancient Greek civilization to modern time is clearly suggestive of the fact that a lot of changes have occurred in the arena of jurisprudential observation regarding society, its transformation and the scope of implementing legal principles within the ever changing scope of social domain. There are several ways that the term “law” is used in social context. One of the major ways is that “It is used to mean the regime of ordering human activities and adjusting human relations through the systematic application of the force of a politically organized society” (Pound, 2000, p. 13). The changing nature of society and scope of legal application alter considerably mainly due to mutual interaction of people, inhabiting within a social domain. According to natural school of jurisprudential rational, every human being is entitled to receive equal recognition and enjoyment of their respective civil rights to the best extent. However, arbitrary actions of individuals, quest to gain more power and social control devastate such sense of equality and often deprive an individual or a particular socio group from enjoying their justified rights. Application of legal order, in this context, is actually aimed at ensuring a “specialized phase of social control” (Pound, 2000, p. 13). However, if such application of legal order is done without a proper understanding or estimation of society and its cultural traits, there is always a risk that the desired goal will not be attained and it will finally lead to worsening of the entire situation. Thus, legal scholars, jurists and philosophers deviated from pre-establishes notion of social equality as enshrined under natural jurisprudential principles and provided more stress on understanding the nature of human behaviorist condition under different socio-cultural context. Cultivation in this arena of jurisprudence finally led to development of social contract theory and founding over this theoretical approach attempts have been made to solve problems regarding implementation of legal orders in social domain. Social Contact theory: The social contract theory has received its philosophical culmination through observation and interpretation of French philosopher Jean-Jacques Rousseau. Generally speaking, the social contract theory mainly emphasizes over the fact that inhabitants of a particular social domain automatically develop a sense of agreement in order to enjoy the facilities granted to them by the society to the best possible extent. Unless there is formation of such an unacknowledged social contact, there are numerous possibilities that an individual can be exploited out deprived of his basic rights either by actions of other human beings or by social institutions. Starting from the early days of human civilization to modern times, people have developed social contract in order to survive the situations of both individual and communal crisis. Observing such spontaneous nature of citizens to come under terms of social contract, Rousseau has commented, “ ‘To find a form of association which may defend and protect with the whole force of the community the person and property of every association, and by means of which each, coalescing with all, may nevertheless obey only himself, and remain as free as before’. Such is the fundamental problem of which the social contract furnishes the solution. The clauses of this contract are so determined by the nature of the act that the slightest modification would render them vain and ineffectual; so that, although they have never perhaps been formally enunciated, they are everywhere the same, everywhere tacitly admitted and recognised, until, the social pact being violated, each man regains his original rights and recovers his natural liberty, whilst losing the conventional liberty for which he renounced it” (Rousseau, 1998, p. 14-15). However, Rousseau’s observation on social contract exists in deep contradiction with other philosophers such as Thomas Hobbes and John Locke. These two renowned and widely appreciated Western philosophers have provided their arguments on social contract and how the process functions in social context. At the same time, changing nature of implementing legal order, keeping in accordance with social contract has also attracted a great deal of attention in their discussion. Thomas Hobbes and social contact: While Rousseau is of opinion that human beings come under social contract for the purpose of protecting their mutual or individual rights and also attempt to maintain the ambiance of social harmony, Hobbes has reflected a completely different individual perception about human nature and the way people actually inhabit in a society, “Hobbes characterizes the natural condition of humankind as a mutually unprofitable state of war of every person against every other person. Since Hobbesian persons value self-preservation above all else, and since universal war affords each person the prospect of life that is nasty, brutish and short, ending in violent death, some explanation of the natural emergence of such war is evidently needed” (Morris, 1999, p. 60). In his famous book Leviathan, Hobbes has provided his individual perception of human nature and unlike Rousseau such observation is completely devoid of the fact of mutual co-existence. Hobbes is of opinion that human beings seek for social companionship or admit to the terms of social contract as they believe that there is a greater power than every respective individual, no matter how much powerful he/she is. Thus, every human being actually searches for the stronger power that would provide him better protection in time of crisis and so that he can enjoy the benefits of social rights compared to his other human counterparts. In support of this observation, he has provided the logical argument as, “… men have no pleasure … in keeping company where there is no power able to overawe them all. For every man looketh that his companion should value him at the same rate he sets upon himself, and upon all signs of contempt or undervaluing naturally endeavors, … to extort a greater value from his contemners, by damage; and from others, by example” (Hobbes, 1950, p. 85). Thus, what Hobbesian observation actually suggests regarding social contract by human beings is that unlike Rousseau’s observation people do not actually have any spontaneous or organic response to develop social contract; rather it is a particular type of obligation that human beings fulfill and most of the time they actually do it even by going against their will. One of the main reasons behind a person’s coming in terms with social contract is his fear and respect for the power that is superior to him. Thus, though every individual possesses within his character three basic traits, namely, competition, diffidence and lust for glory (Hobbes, 1050, p. 85), these aspects are not executed, they are suppressed on most of the cases as they always have a fear of being condemned by the greater power. An inevitable question can be raised in this context that what actually Hobbes mean by presence of such a power that is capable of “overawe” human beings. Looking at any social context, it can easily be understood that there is not end to the system of power hierarchy. Thus, if there is a most powerful person, whose power is feared by all: he has the capacity of undertaking any step that he likes and there will be no power to stop him. Hobbes answers this argument by stating there is a “common power” which is feared and respected by all and once the power ceases to exist, there would be a situation of anarchy as he is of opinion that every human being wishes to attain the best of social rights and facilities by defying others, “Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war is of every man against every man” (Hobbes, 1950, p. 86). However, when a situation of war comes where “every man against every man” then the basic lessons of morality and social existence will be automatically ignored. The common conceptions regarding good or evil, moral and immoral undergo a drastic transformation and what ultimately comes out is that everything is just and acceptable. In this context, Hobbes’ observation is really interesting as he suggests that there can be also a situation where there will be no injustice even when men are engaged in a process of continuous war against one another, “To this war of every man against every man, this is also consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice, have there no place. Where there is not common power, there is no law; where no law, no injustice” (Hobbes, 1950, p. 87). Law is an effective source of common power and the power has been conferred by the common people to act as a supervisor or protector of both social and mutual benefit in the society. Despite the fact that there has been emergence of several disciplines and varieties of approaches within the vast domain of jurisprudential observation but each of those disciplines have ultimately attempted to ensure one basic aspect and that is to provide common people with basic benefits of social existence to the best possible extent. However, the jurisprudential rational as reflected by Hobbes will ultimately lead to a situation of anarchy and lawlessness where without presence of any common power such as law, powerful section of the society will keep on torturing their less powerful counterparts and churn all benefits of social existence in their behalf. The development of human civilization has witnessed numerous such conditions that when a situation of lawlessness exists to which extent the magnitude of common people’s suffering can extend. Thus, the Hobbesian model of social contract cannot produce the kind of facilities that inhabitants actually seek for from a socialist existence; rather Hobbes’ arguments or jurisprudential rational fit best when it comes to explaining whether existence of a common power, such as law is necessary within a anarchical or tyrannical social existence. John Locke: The social contract theory and its application John Locke’s theory of social contract has been laid down in his famous book, Two Treatises of Government. While getting into the discussion about social contract and man’s existence as a social creature, Locke has clearly divided the human era into two separate divisions: in the first division he has referred to the time when people used to be entirely dependent on natural law, they used to be free and enjoyed an equal social existence without interference from any political authority. The second division, according to Locke’s observation is in sharp contrast with that of the first one. In this division people are coming in terms with each other through “a framework of political institution (Boucher, and Kelly, 1994, p. 52) and in this political framework, different types of political and social institutions act as means for communication among people. Locke’s social contract theory actually aims at bridging gap between these two divisions, as David Boucher and Paul Joseph Kelly have mentioned that in order to strengthen the social contact process, as Locke also has emphasized over is that there a need for development of a “newly constituted community” where people will come together and they will depend on a majority decision making process that will initiate “specialist agencies to which its power is entrusted for the purposes of legislation, the execution of laws, the promotion of public good and possible confederation with other groups” (Boucher, and Kelly, 1994, p. 52). In his book, Locke, like Hobbes, also has provided a considerable degree of interest in the spontaneous existence of human beings, which he has referred as the state of nature. Hobbes also in the Leviathan has repeatedly spoken about importance of individual existence without any interference of effective governance or a common power on the actions of common people. However, in this context, it can be said that Locke’s observation and jurisprudential rational regarding development of a community and adhering to the law established by majority is more acceptable in the context of developing a politically and morally organized social existence. While Hobbes has provided highest and entire importance on human existence just as the state of nature without any moral or social rights and obligation, Locke, besides giving considerable importance on man’s state of nature existence, also has provided a great deal of importance on the fact that fulfillment of social rights and moral obligations are very important if the human kind wishes to enjoy a harmonious social existence and churn out the best benefits while living in a common social plain. Conclusion: Thomas Hobbes and John Locke both have provided their respective analysis of social contract and their respective perspectives are quite fitting for different social set ups at different points of time. While Hobbes is more concerned about providing an obligation free existence to common people to enjoy the injustice free situation, as he has asserted that absence of an effective government or a common power would lead a society to an injustice free condition, Locke is of opinion that besides giving scope to common people a scope to enjoy nature of the state existence they are also under needs to fulfill certain communal, social and moral obligations. The theory of social contract, as it has appeared through writing of Jean-Jacques Rousseau, may not have entire support from both these philosophers but the same time it must be admitted that Lockian observation is closer to the development of an organized social contract theory and also contributes to a great extent within the arena of both modern social existence and application of jurisprudential rational in the context of applying legal order to maintain clauses of the social contract from being violated. References Boucher, D. and Kelly, P.J. 1994. The social contract from Hobbes to Rawls. London: Routledge Hobbes, T. 1950. Leviathan. Forgotten Books Morris, C.W. 1999. The social contract theorists: critical essays on Hobbes, Locke, and Rousseau. Maryland: Rowman & Littlefield Pound, R. 2000. Jurisprudence. New Jersey: The Lawbook Exchange, Ltd Rousseau, J. 1998. The social contract: or, principles of political right. Hertfordshire : Wordsworth Editions Read More