Jurisprudence versus Legal Theory

Think of economics. Economics is the whole discipline: it includes national accounts, tax rules, market data and the study of particular industries. Economic theory is the set of general explanations offered within it: classical, Keynesian, monetarist, Marxist. Economic theory is not one school; it is the arena in which all the schools compete. Jurisprudence and legal theory stand in the same relation. Jurisprudence is the subject on the syllabus, with its chapters on rights, possession and legal personality. Legal theory is the set of competing general accounts of what law is, why it binds and how it works, from Aquinas to Austin, Savigny, Pound, Marx, Kelsen, Hart and Dworkin. Notes 2 and 5 explain how jurisprudence relates to science and to legal philosophy; this note fixes the place of legal theory.

1. Correcting a Common Error

Some summaries say that legal theory is 'chiefly the analytical and conceptual core' of jurisprudence, that is, positivist analysis in the style of Austin and Hart, set apart from the historical and sociological wings. That is wrong, and an examiner who knows Friedmann will mark it down. Legal theory in standard English usage means the general explanatory theories of law of every school. Savigny's theory that law grows from the common consciousness of the people is a legal theory. So are Pound's social engineering, the realists' prediction theory, the Marxist view of law as the superstructure of class rule and Finnis's theory of basic goods. The analytical school has no monopoly on theory; it is one of the competitors.

2. Friedmann: Legal Theory Between Philosophy and Politics

Wolfgang Friedmann's Legal Theory is the classic textbook of the subject in the common-law world, and its structure proves the point above. It surveys the natural law tradition, the analytical and positivist theories, the historical school, the sociological and realist movements, the Marxist and Soviet theories of law, and the theories of justice. Friedmann's central insight is that no legal theory stands alone. Every legal theory rests, on one side, on a philosophical outlook (a view of human nature, of knowledge and of values) and, on the other, is tied to a political theory (a view of the State, of the individual and of the ideal society). Legal theory is the meeting point of the two, brought down to the level of law.

3. Rechtstheorie and the General Theory of Law

Continental Europe draws finer lines than English. German legal scholarship distinguishes Rechtsphilosophie (philosophy of law, dealing with justice and the ultimate grounding of law), Rechtsdogmatik (the doctrinal exposition of a particular positive legal order, much like a textbook on the Indian Contract Act) and Rechtstheorie (legal theory in a narrower, technical sense: the general structure, concepts, logic and methods of law, studied across systems). Sociology of law (Rechtssoziologie) is yet another field. In this usage legal theory sits between philosophy and doctrine, and it is closer to what Austin called general jurisprudence: the concepts and distinctions common to mature legal systems.

Kelsen's General Theory of Law and State (1945), written in America, carries this continental tradition of a general theory of law into English. It aims to state the basic concepts of any legal order (norm, sanction, validity, hierarchy, the State as a legal order) without reference to the content of any particular system and without moral evaluation (Note 12). So the word 'theory' can be used in two ways: broadly, for the explanatory theories of every school (Friedmann), and narrowly, for a general structural theory of law (Rechtstheorie, Kelsen). An exam answer should mention both.

4. Descriptive and Normative Legal Theories

A second way to divide legal theories is by their aim. A descriptive (or analytical) legal theory tries to explain what law is, as a social institution found in many societies, without passing moral judgment on it. Hart claimed this for The Concept of Law (1961): in the Postscript, published posthumously in 1994, he described his account as general (not tied to any one legal system) and descriptive (morally neutral, not seeking to justify law). A normative legal theory, by contrast, asks what law ought to be, or claims that one cannot say what law is without moral argument. Dworkin argued that legal theory is unavoidably interpretive: to state the law one must show the legal practice in its best moral light, which is why in Law's Empire (1986) he called his theory law as integrity (Note 19). Natural law theories such as Finnis's are normative too. Sociological theories, such as Pound's, add a third, explanatory-functional aim: to show what law does in society.

5. The Two Compared

With the error corrected, the relation can be stated plainly. Jurisprudence is the broader name for the whole discipline. It includes legal theory, but also the patient analysis of particular legal concepts (the modes of acquiring possession, the elements of a right in Salmond, the kinds of legal persons), the theory of sources (legislation, precedent, custom) and the study of legal reasoning. Much of that analytical work is useful and systematic but is not itself a general theory of law. Legal theory is the part of jurisprudence that offers general explanations of law as such, and it runs across all the schools. In most English and Indian writing the two words are used interchangeably, and many university courses called 'Legal Theory' are simply jurisprudence under another name.

6. Legal Theory in Indian Courts

Indian constitutional adjudication shows why legal theory is not an armchair pursuit. Great cases have turned on which theory of law the judges adopted. Gopalan (1950) read 'law' in a positivist way; Maneka Gandhi (1978) moved towards a theory in which law must be fair; ADM Jabalpur (1976) and Puttaswamy (2017) show two theories of rights producing opposite results (Notes 1 and 9).

7. Why the Distinction Matters in Exams

A question such as 'Distinguish jurisprudence from legal theory' rewards three moves. First, concede that the terms often overlap and are used interchangeably. Second, show where a distinction is drawn: jurisprudence is the discipline, legal theory the general explanatory theories within it, of every school, citing Friedmann and his link of legal theory to philosophy and politics. Third, add the refinements: the German Rechtstheorie and Kelsen's general theory of law, and the contrast of descriptive (Hart) and normative (Dworkin) theories. Avoid the claim that legal theory is only analytical positivism, and do not repeat at length the material on jurisprudence as science and philosophy, which belongs to Note 2.

8. Frequently Asked Questions

Q. Is there a real difference between jurisprudence and legal theory?
A. Only a modest one. The words are often used interchangeably. Where they are distinguished, jurisprudence is the whole discipline, including the analysis of particular legal concepts, and legal theory is the set of general explanatory theories of law, drawn from every school.

Q. Is legal theory the same as analytical jurisprudence?
A. No. Analytical jurisprudence is one school. Legal theory covers the theories of all schools; Friedmann's Legal Theory treats natural law, historical, sociological, realist and Marxist theories alongside positivism.

Q. What did Friedmann say about legal theory?
A. That every legal theory is connected on one side with philosophy, since it rests on a view of human nature and values, and on the other with political theory, since it reflects a view of the State and society.

Q. What is Rechtstheorie?
A. The German term for legal theory in a technical sense: the general study of the structure, concepts and methods of law across systems, kept distinct from the philosophy of law (Rechtsphilosophie) and from the doctrinal study of a particular legal order (Rechtsdogmatik).

See also: Note 2 (jurisprudence as science, philosophy and legal theory), Note 3 (schools), Note 5 (jurisprudence versus legal philosophy), Note 12 (Kelsen), Note 19 (Dworkin), Note 64 (Hart versus Dworkin).