We explain what jurisprudence is, its origin, types and characteristics. Furthermore, its importance in the judges' decisions.
What is jurisprudence?
The jurisprudence It is the legal doctrine established by the judicial bodies of a State through its judicial resolutions reiterated over time. In certain contexts, the science that studies law or the philosophy of law is also called jurisprudence, although this use of the term, at least in Spanish, is now considered obsolete.
Jurisprudence is the understanding and interpretation of legal rules based on past sentences issued by official bodies of the judiciary of a nation. That is to say, to understand how the current rules of a legal system work, one must necessarily review how they were applied in the past.
Jurisprudence unifies and integrates the legal system, to the extent that it has value as a source of positive law. That is, it is a formal source of continental law, but Its practical value may be greater or less depending on the case thus preventing the same legal situation from receiving different interpretations from different courts or by it at different historical moments.
It is for this reason that jurisprudence is studied in a diachronic, that is, historical, perspective, since this gives us a better vision of the way in which laws are applied, than simply reviewing the written body of positive law.
In common law, Its origin dates back to the time of William I of England (c. 1028-1087) nicknamed William “the conqueror.” He was the first English king of Norman origin, who distributed judges throughout the country to establish the idea that justice came from the monarch, although at the same time it was considered that it emanated from God. In this way, a way of interpreting the common law could be imposed despite the distance.
See also: Sources of law
Characteristics of jurisprudence
The jurisprudence is characterized by the following:
- It consists of a body of sentences and interpretations coming from official legal bodies, such as the Supreme Court or the Supreme Court of Justice, for example. The organizations in charge of issuing jurisprudence are contemplated in the legal system of each nation, that is, in its Magna Carta.
- It is formed from all the rulings and decisions of the courts in such a way that a decision by a judge not only fulfills an immediate purpose, but also a future one. That is why “setting jurisprudence” means that a judge sets a precedent for future judicial interpretations.
- It is considered a formal source of law although it fulfills this role from a rather pragmatic point of view. In common law, for example, it is considered a primary source, called Common Lawand judges are expected to investigate and learn about past rulings, rather than sticking to the literality of a written rule.
- Behaves in accordance with the provisions of the National Constitution and national legal systems, so it may vary according to the specific nation and legal tradition.
- Formerly, It was the name used to refer to the Philosophy of Law or to legal sciences.
Types of jurisprudence
We can talk about the following types of jurisprudence, differentiated by their condition with respect to the law:
- Jurisprudence contra legem. When it determines results contrary to the law. This is only possible in certain legal systems, in which jurisprudence is, precisely, above what is written in the laws.
- Distorting jurisprudence When it is issued to apply a law to a case other than the case for which it was intended, it is understood that the law has been “deformed.”
- Repealing jurisprudence When it classifies any legislation or act as unconstitutional and, therefore, invalid. It is not about annulling a written law, but about the inapplicability of its facts.
- Plenary jurisprudence When it comes from a court or plenary chamber, that is, one that brings together all the judges thereof.
- Restrictive jurisprudence When it interprets a law in such a way that its application is restricted or limited.
Importance of jurisprudence
Jurisprudence is a key concept of legal practice, since allows the formation of legal criteria necessary for judges. Thus, they do not act mechanically, following the law to the letter, but rather they can interpret it, consider it in the light of their own history and the history of local law.
It is particularly important in the face of the need to make decisions that do not appear in the written law. After all, if it were as easy as following a guideline or a written rule, there would be no need for judges to interpret it and decide how it applies to the case they are judging.
For this reason, jurisprudence allows a judge not only to act to deliver justice in a specific and present case, but also to establish precedents of importance for the legal future of his nation. Therefore, future situations come into consideration in a judge's decision in which said law must be, again, interpreted.
Continue with: Branches of Law
References
- “Jurisprudence” on Wikipedia.
- “Jurisprudence” in Legal Encyclopedia.
- “What is jurisprudence?” (video) in Judicial News of the Judicial Branch of Chile.
- “What is Jurisprudence?” (video) in Éducaloi.
- “Jurisprudence (Law)” in The Encyclopaedia Britannica.
