What is the difference between jurisprudence and legal theory?

Jurisprudence, in its simplest form, is the philosophy of law. It includes the study and analysis of law generally, as well as its systems, institutions, and principles. Legal theory, meanwhile, focuses specifically on the law in practice: how it functions and operates within societies. So while jurisprudence and legal theory are intrinsically linked, and often used synonymously, one (legal theory) is actually a subset of the other (jurisprudence). 

What is the purpose of jurisprudence and legal theory?

Jurisprudence and legal theory help people to better comprehend the law, legal systems, and legal reasoning.

The study of law – including its origins, history, and its principles – and legal philosophy provides a deeper understanding of the subject. It also helps illustrate how the law has shaped – and been shaped by – societies past and present.

This can benefit a number of people, including:

• Law students.
• Lawyers.
• Judges.
• Jurists.

This is because a thorough understanding of legal philosophy and law’s theoretical and historical foundation ensures that those working within legal systems better understand the fundamentals of the law. It enables legal professionals to appropriately apply the law and better perform legal tasks and activities.

Examples of jurisprudence and legal theories

The common consensus is that general jurisprudence includes two categories and five main schools of thought. And within each of these, there are a number of different legal theories.

The two categories of jurisprudence

1. Analytical jurisprudence, which examines questions such as ‘What is the law?’.
2. Normative jurisprudence, which examines questions such as ‘What is the purpose of the law?’ and ‘What is the value of the rule of law?’.

The five schools of thought in general jurisprudence

Philosophical school of thought 

Philosophical jurisprudence is rooted in natural law – the belief that law is a logical extension of humanity’s inherent morals and common societal rules.  

Key contributors to this school of thought include:

• Aristotle, the Greek philosopher who is widely considered to be the father of natural law. While Aristotle spoke more on morality, rather than the law as we know it, his arguments about political justice and political philosophy – that justice is derived from both nature and convention – have helped shape the arguments of modern natural law theorists.
• Thomas Equinas, the theologian who argued that there were four kinds of law: eternal law – divine reason known only to God – natural law, divine law as shared through scripture, and human law.
• John Finnis, a modern natural law theorist who maintains that law is moral by nature.

Analytical school of thought 

The analytical school of thought borrows from analytical philosophy to better understand the nature of law. It asks questions such as ‘What are laws?’, ‘What is the relationship between law and power?’, and “What is the relationship between law and morality?’.

Key contributors to this school of thought include:

• Jeremy Bentham, a philosopher and jurist who opposed the idea of natural law and championed social reforms such as individual freedom, equal rights for women, the decriminalisation of homosexuality, and the abolition of slavery.
• H.L.A. Hart, a legal philosopher who published the influential The Concept of Law in 1961. Hart said that a legal system’s validity comes from what he called the “rule of recognition” – the combination of primary and secondary rules and sources of law that create the legal system. 
• Hans Kelsen, an Austrian jurist who published Pure Theory of Law in 1934 before authoring a significantly expanded second edition in 1960.

It’s worth noting that Hart and Kelsen’s books are still commonly cited in jurisprudential research, and both men are considered among the foremost legal philosophers of the twentieth century.

Historical school of thought

Historical jurisprudence rejects the idea of natural law, and asserts that law is found, rather than made, within a community of people. 

The key contributor to this school of thought was Friedrich Carl von Savigny, who believed that the purpose of jurisprudence was to examine existing bodies of law for insight into their historical origins and subsequent transformations.

Realist school of thought 

The realist school of thought suggests that jurisprudencial research should mirror natural scientific methods rather than philosophical ones. 

Key contributors to this school of thought include:

• Oliver Wendell Holmes Jr., an American jurist and Supreme Court Justice who argued that judges and legal professionals draw from realist influences, such as public policy, as well as personal prejudice and experience, when practising law or deciding cases.
• Karl Llewellyn, an American jurisprudential scholar, who argued that the law is composed of the facts and outcomes of cases, rather than legal rules and legal doctrines.

Sociological school of thought

Sociological jurisprudence developed in the twentieth century alongside sociology and other social sciences. Today, it helps shed light on the relationship between law and culture.

The key contributor to this school of thought is Roscoe Pound, formerly the Dean of Harvard’s school of law, who helped emphasise the importance of social relationships in the development of law, as well as the importance of law within social relationships.

Common legal theories

1. Natural law. Natural law theory suggests that the law should be based on humanity’s intrinsic ethics and morals. It is the key theory within jurisprudence’s philosophical school of thought, and is associated with the maxim ‘An unjust law is no law at all’.
2. Legal positivism. Legal positivism is the dominant theory within the analytical school of thought. Positive law is effectively the antithesis to natural law, proposing that the law isn’t actually connected to any kind of inherent morality, but rather is the product of a human body such as the government. Prominent positivist proponents include Bentham, and jurists John Austin and Joseph Raz. Its detractors include Ronald Dworkin, an American philosopher whose critiques of the theory argue that the law cannot be separated from morality.
3. Legal realism. Legal realism is the foundation for the realist school of thought, and also has ties for the sociological school of thought. It contends that the law should be descriptive, and should account for the reasons – besides legal rules – that lead to any particular legal ruling or decision.
4. Critical legal studies. Critical legal studies is a relatively new theory that has developed over the past few decades. With ties to legal realism, it suggests that the law is contradictory, and is effectively an expression of a dominant social group’s policy goals.

Additional legal theories cover topics such as:

• International law.
• Criminal law.
• Common law.
• Constitutional law.
• Critical race theory.
• Feminist legal theory.
• Human rights.