GIURISPRUDENZA. – From the Latin iurisprudentia, it means expertise in law, an expertise that is at once theoretical knowledge and practical wisdom. Such, in fact, is the meaning of the Latin prudentia, corresponding to the Greek φρόνησις.
The Romans understood and defined jurisprudence in this way; for them it was at once the science and the art of law. In Ulpian’s celebrated definition: «Iurisprudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia» (D. 1, 1, 10, 2), jurisprudence is pre-eminently the science of justice, conceived as the supreme norm of all the relations of life—legal, moral, and religious.
At present, in its most general meaning, jurisprudence denotes the science and practice of law; in this sense, the various branches of the legal sciences are also sometimes grouped under the common designation of jurisprudence.
In its narrow and specific meaning, however, the term jurisprudence currently refers to only one particular aspect of legal activity and denotes, from the objective material standpoint, the product of the judicial organs that apply the law to factual relations, that is, the body of decisions issued by the various courts in the exercise of their function of practically applying the law. From the objective formal standpoint, it is the concrete interpretation of the laws in force consistently given by the courts; that is, the body of legal maxims resulting from the uniformity of judgments concerning the same kind of relations. Such maxims, which come into being when several judgments coincide in the specific legal element (ratio decidendi), that is, in the assessment of the fact in relation to the application of the same article of law, correspond to equally concrete and tested interpretations of the law itself and may in turn serve as a norm in the resolution of disputes of the same kind.
The Romans defined jurisprudence, so conceived, as «auctoritas rerum perpetuo similiter iudicatorum» (D. 1, 3, 38), and recognized its value, although the principle later expressed by the gloss in the following rubric was also in force: «Ne exemplis, sed legibus iudicetur» (C. 7, 45, 13). Among the glossators it was known as usus forensis or praxis iudicialis. The canonists identified it with stylus iudicialis, whose notion, however, was and has remained more comprehensive, including the concept of procedure in general, even in its purely formal aspect.
Taken in this sense, jurisprudence comprises all the various branches of law and is specified as civil, criminal, commercial, ecclesiastical, etc., according to the subject of the decision and the nature of the judicial organ. Sometimes, by analogy, the uniform manner in which administrative organs reach decisions is also called jurisprudence, although the more proper designation for it is administrative praxis.
The immediate and specific task of jurisprudence is to interpret laws and apply them to the case in dispute; its indirect task is to set the interpretation and application of those laws on a plane of stability and certainty that may serve as an authoritative guide for others in future decisions of the same kind. Through judicial interpretation, which the canonists call interpretation per modum sententiae iudicialis (can. 17 § 3), carried out through the jurisdictional function and playing, among the various forms of interpretation, a role of the very greatest importance—indeed, in practical terms, one even greater than that played by the authentic interpretation of the legislator—jurisprudence, which is judicial interpretation itself as sanctioned by the constant uniformity of judgments, in reality becomes the principal workshop of legal hermeneutics, through which laws are properly rendered applicable to concrete cases. Doctrinal interpretation itself, which is moreover employed there to the greatest extent as its principal collaborator, sometimes undergoes a process of reformulation that brings it into line with the prevailing jurisprudential tendency.
This activity of jurisprudence is at once conservative and innovative. On the one hand, it directs the interpretation of new laws along the tracks of traditional orthodoxy, thereby permitting them to remain current without offending fundamental legal principles; on the other, as laws grow old, it subjects them to a slow and assiduous process of revision and renewal that ensures harmony between the norms of objective law and the requirements of life. These are two distinct activities, yet they converge in the single purpose of keeping laws alive and operative without detriment to the legal system of which they form part.
In this way jurisprudence completes and extends its task beyond the immediate interpretation of the legislative text, becoming not only the safeguard of legal orthodoxy but also the most important factor in the elaboration and systematization of law, as well as a preparation and sure guide for the renewing work of future legislators. Its proper function also includes the coordination of the various norms and interpretations, an extremely important activity that gives uniformity and certainty to the laws and security to the citizens who must observe them.
It can now readily be understood what the historical function of jurisprudence was in other periods, and the reason for its great merits (it is sufficient here merely to recall Roman law).
It is true that in more recent periods, for example, in the eighteenth century, jurisprudence underwent a crisis of delay in its activity and displayed symptoms of fatigue and disorientation in the discharge of its functions. It has been, and is sometimes still, reproached for unreasonable conservatism, insensitivity to real moral and social needs, a formalistic spirit, slavish attachment to the letter of the laws, and above all excessive susceptibility to fluctuations and contradictions. But, apart from the unfounded nature and exaggeration of some of these criticisms, often due to the specific incompetence of those who made them—mostly men of letters, historians, and philosophers—it is right to point out that these defects are attributable for the most part not so much to jurisprudence in itself as to the historical crisis of law, to the diversity and plurality of legal systems, and especially to deficient legislation.
Nevertheless, however great the authority of jurisprudence may be, it is never such as to confer normative force binding the decisions of the courts.
To deduce the obligatory force of jurisprudence by considering it from the standpoint of custom is to shift the problem, since the question here is not whether a custom is binding, but whether jurisprudence is binding in itself. Moreover, although the uniform and constant adoption of a jurisprudential approach may in reality bring about the emergence of a usage, this cannot constitute a true custom, since those concerned lack the conviction that the approach itself is obligatory. That the opinio iuris of the judges should in this case take the place of the absent conviction of those concerned, as some authors claim, is a gratuitous assertion devoid of foundation.
Nor is it valid to invoke an analogy with institutions belonging to foreign legal systems, for example, with the arrêts de règlement of the old French parlements, which once had the force of law within the jurisdictional sphere of the Parlement that had issued them; or with the present-day bindings or authoritative precedents (judgments constituting authoritative precedents) of the higher courts in Anglo-Saxon countries governed by common law, which make law with respect to the lower courts. Although an extremely close resemblance in such institutions cannot be denied, it would be erroneous to assert that they exactly reproduce the autoritas rerum similiter indicatarum.
A different solution to the problem is given by the canonists, especially the medieval ones. On the basis of a decretal of Innocent III, which introduces into the ecclesiastical legal order the efficacy of Justinian’s constitution Si imperialis (C. 1, 14, 12) and states the value of jurisprudence, the ancient canonists first attributed the force of universal law to the judgments of the Supreme Pontiff: a doctrine subsequently abandoned as the principle now sanctioned in can. 17 § 3 became generalized. They further attributed the force of law to jurisprudence, considering it not as such, however, but as usus fori and as custom. To establish the latter, even only two concordant judgments delivered within a decade were held sufficient, and sometimes even a single judgment delivered in adversarial proceedings, provided, nevertheless, that the consensus populi was evident; according to the theory of the time, the legal efficacy of custom rested more on this consent than on the repeated conformity of acts. Jurisprudence as such, therefore, does not seem to have been attributed the force of law. The doctrine of the lay glossators was, moreover, not very different at that time. Even at present, notwithstanding the uncertain fluctuations of many among the best canonists, the prevailing doctrine remains in the same position. It is maintained that jurisprudence in itself does not make law, as can easily be concluded from can. 17 § 3; it does make law, however, especially when it concerns jurisprudence established by the apostolic tribunals, when custom concurs with II. For this reason it is taught that jurisprudence has such efficacy only when it is settled, that is, when, after an adequate number of concordant judgments, the time necessary for the prescription of the custom has elapsed. This doctrine is not, however, free from doubts and difficulties, the chief among them being based on the observation that in this case there is no communitas legis recipiendae capax, a constitutive element of every custom (can. 26), on the part of which there must be repetition of the acts and the animus to bind oneself. To say that the communitas is here supplied by the consensus legislatoris is to disregard the precise content of can. 26. Nor should one be misled by the position of the ancient canonists, since at that time custom based its efficacy on principles later in part abandoned. Moreover, it is highly indicative that even in the S. Rota a jurisprudential maxim is, in practice, never regarded as incapable of being corrected by future decisions.
While denying jurisprudence the efficacy of a source productive of law, it is recognized as possessing the highest moral authority; it is undeniable that a jurisprudential tendency, when consistently adopted by the tribunals and tested by long and uniform observance, imposes itself as a morally obligatory rule of conduct. It is a moral authority much nobler and no less effective than legal authority, insofar as it binds not ratione imperii, but imperio rationis.
The value of jurisprudence varies with the rank and authority of the body from which it proceeds. In the Italian legal order, the greatest authority is given to the jurisprudence of the Court of Cassation and, in the ecclesiastical legal order, to that of the S. Rota and the Apostolic Signatura. The value of jurisprudence also varies according to the degree of uniformity, in terms of space, and the degree of constancy, in terms of time, with which the jurisprudential maxim has been adopted and followed by the various courts. Thus, jurisprudence that is concordant and constant is one thing; jurisprudence that is merely concordant or simply predominant is another.