Jurisprudence

Jurisprudence (term deriving from the Latin language iurisprudentia, derivation of iurisprudens, i.e. prudens iuris: expert in law, or juridical sciences; it refers to the exercise of good judgment, common sense, and caution, especially in the conduct of practical matters) is the science that studies law and its interpretation. In a more technical sense, the term indicates the set of judgments and decisions through which the judicial bodies of a State interpret the laws applying them to the concrete cases that are presented to them.

Modern jurisprudence began in the eighteenth century and focused on the first principles of natural law, civil law and the law of nations. General jurisprudence can be divided into categories both by the kinds of questions scholars seek to answer and by the theories of jurisprudence, or schools of thought, about how these questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems within law and legal systems and problems of law as a social institution that relates to the broader political and social context in which it exists.

In common law systems, judgments issued by judges, related to each other by their subject matter, constitute binding precedent with normative value, according to the rule of stare decisis.

In civil law systems, however, the judiciary, unlike the other two (legislative and executive) is not deputed to the issuance of general and abstract normative acts, but is bound to apply the legal syllogism contained in the written rules to the facts of the case.

Hence the expression of Montesquie, who, at the dawn of the liberal state, epitomized judges as “bouche de la lois”.

In a civil law system, there is no possibility of binding judges to pass judgements by applying the principles of the maxims which, in the past, have regulated similar cases in a given way. It is a constant in the courts, however, that the established jurisprudential orientations are placed as a basis for the acts of the parties and the decisions of the judges themselves, as validating authority for their conclusions.

To close the system, it is considered appropriate to cite the thesis of authoritative doctrine (Zweigert – Kotz) according to which, for some time now, “there are grounds for supposing that from opposing starting points the Common Law and the Civil Law can gradually approach each other in their methods and techniques”. This statement is based on the observation of the felt need, in common law systems, to order the jurisprudential system, to make it more comprehensible and recognizable. On the other hand, the jurisprudence of the civil law courts acquires more and more value because its interpretative work often goes beyond the simple normative interpretation to give life to a fairer law.

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