Jurisprudence

JURISPRUDENCE. - From the Latin iurisprudentia, it means expertise in law, an expertise that is at once theoretical science and practical wisdom. Such, in fact, is the value of the Latin prudentia, corresponding to the Greek φρόνησις.

Thus the Romans understood and defined jurisprudence, for whom it was at once the science and the art of law; in the celebrated definition of Ulpian: «Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia» (D. 1, 1, 10, 2), jurisprudence is par excellence the science of justice, conceived as the supreme norm of all the relationships of life—juridical, moral and religious.

At present, in its most general meaning, jurisprudence indicates the science and practice of law; in this sense it is also customary to group the various branches of the juridical sciences under the common denomination of jurisprudence.

In its strict and specific meaning, however, the term jurisprudence currently refers to only one particular aspect of juridical activity and indicates, from the objective material side, the production of the jurisdictional organs that apply the law to factual relationships, that is, the body of decisions issued by the various tribunals in the exercise of their function of practical application of the law. From the objective formal side, it is the same concrete interpretation of the laws in force that is made with constancy by the tribunals, that is, the body of juridical maxims that result from the uniformity of judgments concerning the same kind of relationships. Such maxims, which come to be constituted when several judgments coincide in the specific juridical element (ratio decidendi), that is, in the evaluation of the fact in relation to the application of the same article of law, correspond to just as many concrete and tested interpretations of the law itself and can in turn serve as a norm in the definition of controversies of the same tenor.

The Romans defined jurisprudence, thus conceived, as: «auctoritas rerum perpetuo similiter iudicatorum» (D. 1, 3, 38) and recognized its value, although on the other hand the principle later encompassed by the gloss under the following rubric was in force: «Ne exemplis, sed legibus iudicetur» (C. 7, 45, 13). Among the glossators it goes under the name of usus forensis or praxis iudicialis. The canonists identified it with the stylus iudicialis, whose notion, however, was and has remained more comprehensive, including the concept of procedure in general, even as regards the purely formal part.

Taken in this sense, jurisprudence comprises all the various branches of law and is specified as civil, criminal, commercial, ecclesiastical, etc., on the basis of the object of the decision and the nature of the judicial organ. Sometimes, by analogy, the uniform manner of deciding of administrative organs is also called jurisprudence, though the denomination of administrative praxis belongs to it more properly.

The immediate and specific task of jurisprudence is to interpret the laws and apply them to the contested case; its mediate task is to set the interpretation and application of those same laws on a plane of stability and certainty that can serve as an authoritative guide to others for future decisions of the same kind. By means of judicial interpretation—that which the canonists call interpretation per modum sententiae iudicialis (can. 17 § 3), which is carried out through the jurisdictional function and which, among the various forms of interpretation, plays a role of the very first importance, even superior, in point of fact, to that played by the authentic interpretation of the legislator—jurisprudence, which is the same judicial interpretation consecrated by the constant uniformity of judgments, becomes in reality the forge par excellence of legal hermeneutics, by virtue of which the laws are rendered applicable to concrete cases. The same doctrinal interpretation, which moreover is utilized therein to the maximum as its principal collaborator, sometimes undergoes therein a process of re-elaboration that aligns it with the jurisprudential tendency.

This activity of jurisprudence is at once conservative and innovative. On the one hand it sets the interpretation of new laws on the rails of traditional orthodoxy, which allows their currency without offense to fundamental juridical principles; on the other, as the laws grow old, it subjects them to a slow, assiduous work of revision and renewal that ensures harmony between the norms of objective law and the demands of life. These are two distinct activities, converging nonetheless in the single purpose of keeping the laws alive and operative without detriment to the juridical system of which they are a part.

In this way jurisprudence completes and prolongs its task beyond the immediate interpretation of the legislative text, so as to become not only a safeguard of juridical orthodoxy, but the most important factor in the elaboration and systematization of law, a preparation and sure guide to the renewing work of future legislators. There belongs to it, moreover, the coordinating activity of the various norms and the various interpretations, a most important activity that gives uniformity and certainty to the laws and security to the citizens who must observe them.

One now easily understands what the historical function of jurisprudence has been in other epochs, and the reason for its great merits (it suffices here to recall Roman law alone).

It is true that in more recent epochs, for example in the eighteenth century, jurisprudence became subject to crises of delay in its activity and showed symptoms of fatigue and disorientation in the discharge of its functions. It has been reproached, and sometimes is still reproached, for unreasonable conservatism, for insensitivity to real moral and social needs, for a formalistic spirit, for abject attachment to the letter of the laws and above all for excessive readiness to fluctuate and contradict itself. But, apart from the groundlessness and exaggeration of some of these censures, often due to the specific incompetence of those who raised them—mostly men of letters, historians and philosophers—it is right to note that they are for the most part defects imputable not so much to jurisprudence in itself as rather to the historical crisis of law, to the diversity and plurality of legal orders and especially to deficient legislation.

Nevertheless, however great the authority of jurisprudence may be, it is never such as to confer normative efficacy binding the decisions of the tribunals.

To wish to deduce the obligatory character of jurisprudence by considering it under the aspect of custom means to shift the problem, since the question here is not whether a custom obliges, but whether jurisprudence obliges by itself. On the other hand, although the uniform and constant adoption of a jurisprudential tendency may in reality bring about the birth of a usage, this cannot constitute a true custom, since there does not exist on the part of those bound the conviction that the tendency itself is obligatory. That the opinio iuris of the judges should replace, in the case, that which is lacking on the part of those bound, as some authors claim, is a gratuitous assertion, devoid of foundation.

Nor is it of any avail to invoke the analogy with institutions proper to foreign legal orders, for example, with the arrêts de règlement of the old French parlements, which once had the force of law within the jurisdictional ambit of the Parlement that had issued them: or with the present bindings or authoritative precedents (judgments constituting authoritative precedents) of the higher courts in the Anglo-Saxon countries governed by the common law, which make law with respect to the lower courts. Although in such institutions there is undeniable a very close resemblance, it would be an error to affirm that they exactly reproduce the autoritas rerum similiter indicatarum.

A different solution to the problem is given by the canonists, especially those of the Middle Ages. On the basis of a decretal of Innocent III, which introduces into the ecclesiastical order the efficacy of Justinian's constitution Si imperialis (C. 1, 14, 12) and sets forth the value of jurisprudence, the ancient canonists attributed first of all the efficacy of universal law to the sentences of the Supreme Pontiff: a doctrine, this, later abandoned with the generalizing of the principle now sanctioned in can. 17 § 3. They attributed, moreover, the value of law to jurisprudence, considering it however not as such, but as usus fori and as custom. To induce this, even only two conforming sentences pronounced within a decade were held sufficient, and sometimes even a single one given in adversarial proceedings, provided however that the consensus populi was established, on which consensus, more than on the conforming repetition of acts, the juridical efficacy of custom was based, according to the theory of that time. To jurisprudence as such, therefore, it does not appear that the value of law was attributed. Not too dissimilar, moreover, was the doctrine of the lay glossators at that time. Even at present, despite the uncertain wavering of many among the best canonists, the prevailing doctrine remains on the same positions. In itself, it is affirmed, jurisprudence does not make law, as is easy to conclude from can. 17 § 3: it does make law, however, especially if it is a question of the jurisprudence induced by the apostolic tribunals, when custom concurs with it. For this reason it is taught that jurisprudence exerts such efficacy only when it is firm, that is, when, after an adequate number of conforming sentences, the time necessary to prescribe custom has elapsed. Such a doctrine, however, is not free from doubts and difficulties, chief among them all that based on the observation of the non-existence, in the case, of the communitas legis recipiendae capax, a constitutive element of every custom (can. 26), on the part of which there should be the repetition of acts and the animus of binding oneself. To say that the communitas is here supplied by the consensus legislatoris is to wish to ignore the precise content of can. 26. Nor should the orientation of the ancient canonists be misleading, since at that time custom based its efficacy on principles in part later abandoned. On the other hand, it is very indicative that even before the S. Rota a jurisprudential maxim is never, in fact, held to be such that it cannot be corrected by future decisions.

Even while denying to jurisprudence the efficacy of a productive source of law, a very high moral authority is recognized for it; it is undeniable that a jurisprudential orientation, when it is constantly adopted by the tribunals and tested by long and uniform observance, imposes itself as a norm of conduct that is morally obligatory. A moral authority, much more noble and no less effective than the juridical, inasmuch as it binds not ratione imperii, but imperio rationis.

The value of jurisprudence varies with the variation of the degree and authority of the body from which it emanates. The greatest authority is given, in the Italian order, to the jurisprudence of the Court of Cassation and, in the ecclesiastical order, to that of the S. Rota and of the Apostolic Signatura. The value of jurisprudence also varies by reason of the degree of uniformity, in order of space, and of the degree of constancy, in order of time, with which the jurisprudential maxim has been adopted and followed by the various courts. Different, therefore, is conforming and constant jurisprudence, and different is jurisprudence that is only conforming or merely prevailing.

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