JURISPRUDENCE

Response Paper



Response Paper

Introduction

The article of Gerald J. Postema, Law's Autonomy and Public Practical Reasons, discusses in detailed and thorough manner, the main jurisprudential idea, which he refers to as the thesis of autonomy. According to Postema, the autonomy thesis aims to explain the core concept of law, which is to bring together public political judgment and also organizing societal interaction. In one way or the other Postema himself supports the core idea discussed in the article. However, in the article Postema criticizes the widely accepted notion as explicated by the thesis of autonomy. The thesis of autonomy is blemished, and it should be rejected. Postema, supporting his conclusive idea of the article, he gives in to not-at-all tempting trends of present day political and legal philosophy, he does not limits himself to extend somebody's views, but he extends an array of views (George, 1996, pp. 79-112). This approach allows an individual to develop or form his/her target by choosing features from a wide selection of authors, which means that the actual view point remains no one's specific view, but a general view; and all the individuals who are cited in the argument as supporting the thesis would not agree with it.

Discussion

Jurisprudence has three distinct meanings. Primarily, it is the philosophy of law, that is, speculative thought about law. It can, however, be used to refer to the study of legal systems. It can also be used to designate judicial precedents as a whole or, more narrowly, case law. It is interesting to observe that these secondary meanings can be respectively mapped onto two fundamental traditions of modern legal thought (Castoriadis, 1991, pp. 65-78). Legal positivist jurisprudence is dedicated to theorizing law as a system of rules, and legal realist jurisprudence develops out of a concentration on the judicial process and case law.

Legal positivism originates in the nineteenth century with the jurisprudence of John Austin and Jeremy Bentham, and it is conceived in opposition to the natural law tradition. For natural law jurists, a valid law must conform either to the law of nature (in Stoic and ancient philosophy), to divine law (in Jewish and Christian philosophy), or to certain universal human ends and needs (in secular and humanist philosophy). For positivists, by contrast, the criterion for a law's validity is its source or pedigree, not its content. Positivism establishes a strict separation between what it calls censorial jurisprudence, which aims to reform law, and analytical jurisprudence, which seeks to understand the logical or formal structure of a legal system. In this sense, positivism is critical: It establishes precise limits within jurisprudence by delineating two branches of investigation. A major aim of positivism is to grant censorial jurisprudence its place but to insist that it should not be confused with analytical jurisprudence. Positivist jurisprudence analyzes law as a system of rules, in which each rule (with the single exception of the highest order norm or rule) finds its condition of existence.

Legal realism developed in the first half of the twentieth century ...