The Meaning of Jurisprudence Studied From Its Theoretical Perspective

In English the meaning of jurisprudence was defined as a theory about study of law, while the sense of jurisprudence used in cluster systems “Case Law” or “Judge-made Law”. Then the word “Jurisprudenz” in German means the science of law, in the narrow sense (in school of Doctrine of Law), for example
Begriff-jurisprudenz, Interressen jurisprudenz and so forth. The technical term from German language for the the sense of jurisprudence, is the word “Ueberlieferung”.

The meaning of jurisprudence can be summarized as a source of law in the sense that formal. If studied from the theoretical aspect, the existence of jurisprudence is important when correlated against the duties of judges. While from the perspective of the legism school, the role of jurisprudence is relatively less important because it is assumed all the laws contained in the legislation. Therefore, judge in carrying out his duty is attached with what is in the law, thus act as law enforcement. Meanwhile, according to Freie Rechtsbewegung, judge in carrying out their duties is free, not tied to the content in any legislation.

This could happen since the judge duty is to perform “Rechtsschepping”, means to perform the creation of legal. Corollary, understanding jurisprudence are things that are substantial in the study of law, while studying law is of secondary nature. While according to rechtsvinding school, jurisprudence role is relatively important and this aspect was left to the discretion of the judge. According to this school, the judge is attached by the law, but not as tight as legism school, because the judge has a “freedom-bound” (gebonden Vrijheid) or “free entanglement” (Vrije Gebondenheid).

Therefore the task of the judge mentioned as do “Rechtsvinding” which means harmonize legislation in accordance with the spirit of the age. Freedom-bound and free entanglement is able through the various interpretations, such as the interpretation of the law, the analogy (abstraction),Rechtsverfijning/determinatie which makes specialization of a principle in the legislation that has a broad sense (from broad to specific). Studied from the perspective of judicial practice, then the meaning of jurisprudence in Anglo Saxon/Case Law system is binding with the principle “the binding force of precedent”.

 

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