3/12/24, 6:14 PM What is the difference between jurisprudence and legal theory?

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What is the difference between jurisprudence

and legal theory?
July 19, 2022

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).

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What is the purpose of jurisprudence

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to better comprehend the law, legal
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The study of law – including its origins, history, and its principles – and legal
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philosophy provides a deeper understanding of the subject. It also helps illustrate
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3/12/24, 6:14 PM What is the difference between jurisprudence and legal theory? - University of Lincoln

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 [https://www.lawsociety.org.uk/en/public/for-public-
visitors/resources/who-does-what] 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?’. Linda
2. Normative jurisprudence, which examines questions such as ‘What is the
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The five schools ofHow can thought

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3/12/24, 6:14 PM What is the difference between jurisprudence and legal theory? - University of Lincoln

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 [https://law.nd.edu/news-events/news/legacy-of-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. Linda
H.L.A. Hart, a legal philosopher who published the influential The Concept of
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Law [https://www.bloomsbury.com/uk/reading-hla-harts-the-concept-of-law-
questions you may have.
9781849463249/] in 1961. Hart said that a legal system’s validity comes from
what he called the “rule of recognition”
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before authoring a significantly expanded second edition in 1960.
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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

Lindacentury alongside
sociology and other social sciences. Today, it helps shed light on the relationship
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between law and culture. questions you may have.

The key contributor to this school of thought is Roscoe Pound, formerly the Dean
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of Harvard’s school of law, who helped emphasise the importance of social
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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 [https://www.britannica.com/biography/John-Austin] and Joseph
Raz [https://www.philosophy.ox.ac.uk/article/memoriam-joseph-raz-1931-
2022] . Its detractors include Ronald Dworkin
[https://www.theguardian.com/law/2013/feb/14/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:

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International law.
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Criminal law.

Common law.
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Human rights.

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