Jurisprudence: Legal Theory, Natural Law, and Utilitarianism

This essay provides a detailed exploration of jurisprudence, examining its core tenets and its relationship to legal theory. It delves into the concept of natural law, discussing its creation and continued relevance in contemporary lawmaking and enforcement, exemplified by the right to life. The essay further analyzes legal positivism, contrasting it with natural law and evaluating its influence on Western legal systems, particularly in areas like same-sex marriage. The discussion extends to liberalism, its various strands, and its impact on law creation and enforcement through individual freedoms and democratic processes. Finally, the essay addresses utilitarianism, a justice theory focused on maximizing overall well-being, tracing its historical roots and significance in ethical decision-making. Desklib offers more resources for students seeking to deepen their understanding of these complex legal and philosophical concepts.

1 Running Head: Jurisprudence
Professors Name
Student Name
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2 Running Head: Jurisprudence
Question 1
Jurisprudence entails the study of essential legal doctrines of a theoretical, scientific and
chronological nature that form the basis of various types of laws such as criminal, civil and
constitutional. Although in dealing with the subject of jurisprudence, it’s important to note that
various meanings have been proposed as to what jurisprudence means such that there has been
no unanimity in regards to its scope thou it has been narrowed to the study of the concepts of
positive law and ethics1. Regarding the scope, authors such as Wurzle, note that it was one of the
first social sciences to be developed and that its province is usually determined often since no
description of its scope can be regarded as final2. Further, scholars such as Austin refer to it as
the philosophy of positive law meaning the law put forward by a political superior for controlling
the conduct of his subjects.
On the other hand, there has been different views in regards to what constitutes
jurisprudence thou the generally agreed on components include legal theory, sources of law and
legal concepts. Outlining the constituents of jurisprudence is important as it plays a crucial role
in bringing out the difference between legal theory and jurisprudence which in this sense it that,
legal theory forms part of the components of jurisprudence and it deals with the law as it is &
how it operates in society3. Legal theory also concerns the creation of laws, enforcement and the
impact social views and law on each other. Therefore, it’s correct to conclude that a difference
exists between jurisprudence and legal theory as one entails various components whereas the
other deals with a specific thing4.
The study of jurisprudence is of importance as it enables one understand the
foundation/development of law, the sources of various categories of law, how laws are created
and implemented5. It also aids in understanding the different legal systems and further
understanding concepts such as human rights.
1 Matsuda, M. J. (2017). Liberal jurisprudence and abstracted visions of human nature: A feminist critique
of Rawls’ theory of justice. In Gender and Justice (pp. 47-64). Routledge.
2 Baker, S., & Mezzetti, C. (2012). A theory of rational jurisprudence. Journal of Political Economy, 120(3),
513-551.
3 Powell, R. (2009). Zakat: Drawing insights for legal theory and economic policy from Islamic
jurisprudence. Pitt. Tax Rev., 7, 43.
4 Malinowski, B. (2013). Crime and Custom in Savage Society:[1926/1940]. Routledge.
5 Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford University Press.

3 Running Head: Jurisprudence
Question 2
Natural law refers to a kind of philosophy that proposes that some rights, moral principles
and responsibilities are innate in human nature & that those human rights can be understood
through some reasoning6. Throughout all chronological events the term concerns itself with
shaping how humans ought to conduct themselves morally and since it’s a universal law it
applies to every individual in equal measure. On the other hand, the American legal system
defines natural law as a form of legal theory that regards morality & law to be inter-linked such
that practically they are the same7.
In addition to that, natural laws come into existence through following the substantive
procedure set out in the relevant legislations of a state, whereby the law makers through
sponsoring a bill have to ensure that it goes through the required stages upon which its success,
its assented to by the person in charge normally the president and therefore becomes a law.
Similarly, such laws come into existence through the common law system of practice whereby
previous case laws set as precedents are used to determine future cases with similar facts in order
to come up with similar results.
In regards to the practice of natural law, it’s still put in practice in coming up with new
laws and enforcement and a relevant example of such laws include the right to life whereby its
granted to all individuals by virtue of them human beings and therefore calls upon every person
to respect the right to life by not taking his life or the life of any other individual8. Outlining the
constituents of jurisprudence is important as it plays a crucial role in bringing out the difference
between legal theory and jurisprudence which in this sense it that, legal theory forms part of the
components of jurisprudence and it deals with the law as it is & how it operates in society. Legal
theory also concerns the creation of laws, enforcement and the impact social views and law on
each other9. Also another controversial example where the concept of natural law has been taken
6 d'Entreves, A. P. (2017). Natural law: an introduction to legal philosophy. Routledge.
7 Habermas, J. (2015). Between facts and norms: Contributions to a discourse theory of law and
democracy. John Wiley & Sons.
8 Kugler, P. N., & Turvey, M. T. (2015). Information, natural law, and the self-assembly of rhythmic
movement. Routledge.
9 Porter, J. (2010). Ministers of the law: a natural law theory of legal authority. Wm. B. Eerdmans
Publishing.

4 Running Head: Jurisprudence
into account is the issue of same sex marriage whereby some countries such as Kenya in
determining the rights in regards to lesbian gay bisexual transgender it has failed to recognize
them on the basis that they are in contravention with their religious ethics and that they
undermine the concept of morality as envisaged10.
10 Chernilo, D. (2013). The natural law foundations of modern social theory: A quest for universalism.
Cambridge University Press.

5 Running Head: Jurisprudence
Question 3
Legal positivism refers to the positivist school of thought that proposes to look at the law
as what it is and not what it ought to be. Legal positivism has been seen as a school of thought
that has had most impact in jurisprudence. The theory was first put forward by John Austin and
Jeremy Bentham around the 19th c11. Subsequently, H.L.Hart and Joseph Raz contributed to it by
taking it forward and despite the fact they hold different views, one common thing that stands
among them is that they consider the law as it is and not as it ought to be as promoted by the
natural school of thought counterparts. In addition to that, they all consider law and moral
principles as two complete separate things12. They also believe that law does not relate to morals;
however their opinion is that from time to time law reflects people’s morality i.e. those of whom
it’s applied to. In their opinion, laws are laid down by the superior body and therefore do not
need to be in consonance with morals and ethics. In addition, the school of thought is divided
into two i.e. negative & positive positivist where the positivist like Hart hold the opinion that
despite the existence of morals, they don’t have to be incorporated with the law and he indicates
that’’’’ it is no sense a necessary truth that law satisfy demands of morality, though in fact they
have often done so’ while the negative positivist hold the opinion that morals and ethics do not
exist13.
In regards to whether the western system of law is found on legal positivism theory, the
statement holds some concrete truth in the sense that most countries in the western world such as
Australia have legalized practices such as same marriage rights or rather the rights of lesbian gay
bisexual transgender by not taking into account the morality concept as compared with other
common law countries more so in Africa which their main reason for not promoting such rights
is because they hold the view that they are contrary with their moral and ethics14.
11 MacCormick, N., & Weinberger, O. (2013). An institutional theory of law: new approaches to legal
positivism (Vol. 3). Springer Science & Business Media.
12 Bix, B. (2017). On the dividing line between natural law theory and legal positivism. In Law and
Morality (pp. 49-60). Routledge.
13 Golding, M. P., & Edmundson, W. A. (Eds.). (2008). The Blackwell guide to the philosophy of law and
legal theory. John Wiley & Sons.
14 Raz, J. (2013). Legal positivism and the sources of law. Arguing About Law, 117.

6 Running Head: Jurisprudence
Question 4
The concept of liberalism is a universal view founded on the ideas of liberty and equality
within which the rule of law is understood as liberty. In this regard, L.T. Hobhouse holds the
idea that, ‘the first condition of a free government is one without subjective determination of the
leader, but by rules of laws put in place where the leader himself is subject to’15. Further, liberals
espouse a wide array of views depending on their understanding of these principles but generally
they support ideas such as free and far elections, civil rights, freedom of the press, freedom of
religion and private property16.
In addition, there exist various forms of liberalism which include; classical liberalism;
social liberalism; international liberalism, radicalism and progressive liberalism. Classical
liberalism developed in the 18th C by thriving on the work of Adam Smith envisions a narrow
and strictly limited role for the government. As the classical liberals view is that, the role of the
government involves solely and exclusively guaranteeing the protection of life, health, liberty
and private property against violent attacks and that anything that goes against this is an evil.
Further, it builds upon the view that human beings are independent, rational individuals
dedicated to maximizing their interests17. On the other hand, liberal internationalism concerns
itself with fundamental level in the attempt to promote the principles of liberty and equality and
institutions across national borders and apply variations thereof to international relations.
Further, progressive liberalism is founded of the idea of progress which affirms that development
in science & technology, social and economic corporations play a significant role in the
improvement of the conditions of man while radicalism is a kind of liberalism that often
responds to industrial movements and the right of radical construct.
Subsequently, liberalism impacts a lot in the making and putting into force various laws
in the sense that, by it advocating for freedom of individuals, it allows them to participate in the
law making process either directly or in-directly whereby the citizens are allowed to take part in
15 Habermas, J. (2012). Reconciliation through the public use of reason: Remarks on John Rawls’s
political liberalism. In Habermas and Rawls (pp. 37-57). Routledge.
16 Barry, A., Osborne, T., & Rose, N. (2013). Foucault and Political Reason: liberalism, neo-liberalism and
the rationalities of government. Routledge.
17 Ege, R., & Igersheim, H. (2008). Rawls with Hegel: The concept of ‘Liberalism of freedom’. The
European journal of the history of economic thought, 15(1), 25-47.

7 Running Head: Jurisprudence
referendums to come up with a new constitution or to take part in the law making process
through their elected representatives18. Liberalism also plays a big role in ensuring that
individuals freely own property anywhere in a state and therefore leading to developing up of
rights such as intellectual property rights and also ensuring that citizens have the right to
information which promotes the freedom of the media that plays a critical role in the attainment
of liberty as promoted by the liberal school of thought.
18 Pennington, M. (2012). 221 Robust Political Economy. Classical Liberalism and the Future of Public
Policy. PRACTICE, 36(2), 221-227.

8 Running Head: Jurisprudence
Question 5
Utilitarianism refers to a just theory according to which the correctness and wrongness of
acts fully depends on facts about the maximization of overall well-being and it’s often linked
with the phrase ‘the greatest good for the greatest number’19. The concept can be traced in the
works of Plato and Aristotle. Further works were promoted by Jeremy Bentham who wrote the
first complete treatise of utilitarianism in his work of 1789 “an introduction to the principles of
morals and legislation20.” Also, John Stuart Mill highly contributed to the concept in his essay of
1861 “utilitarianism” by building on the ideas of Bentham and also adding up more ideas such as
the role of moral rules in utilitarian reasoning about moral problems. Further, the concept is
usually defined by characteristics such as welfare, individualism, aggregation, consequentialism
and maximization.
On the other hand, the concept of the ‘greater good’ means that individuals should carry
out themselves in whatever way that results in the greatest possible amount of well-being where
well-being is closely related to happiness. It requires that all human coexist with each other and
ensure that individual rights are protected to whatever level, such that all enjoy the common
good of coexistence21. Liberal internationalism concerns itself with fundamental level in the
attempt to promote the principles of liberty and equality and institutions across national borders
and apply variations thereof to international relations22. Further, progressive liberalism is
founded of the idea of progress which affirms that development in science & technology, social
and economic corporations play a significant role in the improvement of the conditions of man
while radicalism is a kind of liberalism that often responds to industrial movements and the right
of radical construct23.
19 Mill, J. S. (2016). Utilitarianism. In Seven Masterpieces of Philosophy (pp. 337-383). Routledge.
20 Renouard, C. (2011). Corporate social responsibility, utilitarianism, and the capabilities
approach. Journal of business ethics, 98(1), 85-97.
21 Barrow, R. (2010). Plato, Utilitarianism and Education (International Library of the Philosophy of
Education Volume 3). Routledge.
22 Varner, G. E. (2012). Personhood, ethics, and animal cognition: Situating animals in Hare's two level
utilitarianism. Oxford University Press.
23 Scarpi, D. (2012). Work and fun on the internet: the effects of utilitarianism and hedonism
online. Journal of interactive marketing, 26(1), 53-67.

9 Running Head: Jurisprudence
Bibliography
Matsuda, M. J. (2017). Liberal jurisprudence and abstracted visions of human nature: A feminist
critique of Rawls’ theory of justice. In Gender and Justice (pp. 47-64). Routledge.
Baker, S., & Mezzetti, C. (2012). A theory of rational jurisprudence. Journal of Political
Economy, 120(3), 513-551.
Powell, R. (2009). Zakat: Drawing insights for legal theory and economic policy from Islamic
jurisprudence. Pitt. Tax Rev., 7, 43.
Malinowski, B. (2013). Crime and Custom in Savage Society:[1926/1940]. Routledge.
Wacks, R. (2017). Understanding jurisprudence: An introduction to legal theory. Oxford
University Press.
d'Entreves, A. P. (2017). Natural law: an introduction to legal philosophy. Routledge.
Habermas, J. (2015). Between facts and norms: Contributions to a discourse theory of law and
democracy. John Wiley & Sons.
Kugler, P. N., & Turvey, M. T. (2015). Information, natural law, and the self-assembly of
rhythmic movement. Routledge.
Porter, J. (2010). Ministers of the law: a natural law theory of legal authority. Wm. B. Eerdmans
Publishing.
Chernilo, D. (2013). The natural law foundations of modern social theory: A quest for
universalism. Cambridge University Press.
MacCormick, N., & Weinberger, O. (2013). An institutional theory of law: new approaches to
legal positivism (Vol. 3). Springer Science & Business Media.
Bix, B. (2017). On the dividing line between natural law theory and legal positivism. In Law and
Morality (pp. 49-60). Routledge.
Golding, M. P., & Edmundson, W. A. (Eds.). (2008). The Blackwell guide to the philosophy of
law and legal theory. John Wiley & Sons.
Raz, J. (2013). Legal positivism and the sources of law. Arguing About Law, 117.
Habermas, J. (2012). Reconciliation through the public use of reason: Remarks on John Rawls’s
political liberalism. In Habermas and Rawls (pp. 37-57). Routledge.
Barry, A., Osborne, T., & Rose, N. (2013). Foucault and Political Reason: liberalism, neo-
liberalism and the rationalities of government. Routledge.
Ege, R., & Igersheim, H. (2008). Rawls with Hegel: The concept of ‘Liberalism of freedom’. The
European journal of the history of economic thought, 15(1), 25-47.
Pennington, M. (2012). 221 Robust Political Economy. Classical Liberalism and the Future of
Public Policy. PRACTICE, 36(2), 221-227.
Mill, J. S. (2016). Utilitarianism. In Seven Masterpieces of Philosophy (pp. 337-383). Routledge.
Renouard, C. (2011). Corporate social responsibility, utilitarianism, and the capabilities
approach. Journal of business ethics, 98(1), 85-97.
Barrow, R. (2010). Plato, Utilitarianism and Education (International Library of the Philosophy
of Education Volume 3). Routledge.
Varner, G. E. (2012). Personhood, ethics, and animal cognition: Situating animals in Hare's two
level utilitarianism. Oxford University Press.
Scarpi, D. (2012). Work and fun on the internet: the effects of utilitarianism and hedonism
online. Journal of interactive marketing, 26(1), 53-67.