Jurisprudence - Northwestern University School of Law：西北大学法学院法理学-[精品].doc

Jurisprudence The heuristic value of jurisprudence- uncovers the structure of where your argument is coming from and helps you conceptualize other related arguments that will help you. Where does the law come from? What is its scope? -Not all of human existence is encompassed by law. -All of human existence falls under legal thought. You can get a yes or no to anything you ask. -Law only exists when it speaks to answer a question. When no question is asked, law does not exist. Positivism would say that there are pockets of human existence that are not covered by the law. Natural law, on the other hand, is pervasive, all around. Every case is unique but the law is a generalization. In that way every case involves facts that are not covered by current law. That does not mean that we always say the law is silent on the issue. As lawyers, with an unknown variety of cases to be brought to us, we do not have the liberty to declare ourselves beholden to one philosophy or another. A judge may be able to say “I am a natural lawyer,” but a lawyer cannot. We must be more heuristic, knowing each of the possible philosophies and be able to apply them comfortably. Is Jurisprudence concerned with how we as advocates should analyze and argue what the law is, or is it concerned with what occurs inside a judge’s head? Maybe it’s both or it’s neither. We can look into a judge’s head by reviewing previous decisions or what arguments worked and which didn’t. We can use our own philosophies to figure out how to better persuade other people. This involves how the judge conceives his/her role. Lord Devlin conceptualizes his role as representative of the people. He’s visiting society’s ideas upon the defendants who appear before him. Another category of judges are the benevolent dictators, like Posner, who believe that they are going to make rules which will then be imposed because they are considering what is in the best interests of the public. Case of the Speluncean Explor