Why do we need a legal theoretical approach in jurisprudence : What does the theory, philosophy and sociology of law have in common and how do they differ?
Abstract
The aim of this contribution is to answer why we need a legal theory (ie. analytical) approach in jurisprudence. To do so, it is necessary to clarify what is meant by this legal theory approach and to distinguish it, in particular, from that of legal philosophy.
The theory of law treats its subject, ie the legal norm, as something that exists a priori. The legal theorist thus recognizes the norm with his intellect, but by no means creates it.
This is what distinguishes it from the philosophical approach that recognizes, evaluates, but also creates, or at least co-creates the legal rule. When a legal philosopher tells us what solution to a particular case can be considered fair and therefore correct, it also creates the norm that leads to such a fair solution.
The legal-philosophical process of knowing the legal norm is thus inseparably connected with its creation. The need for an analytical approach is related to how a lawyer - unlike a layman - literally "grasps" legal information systems.
Without legal theoretical training, knowledge of the structure and understanding of law as a system, a knowledgeable lawyer can turn into a dependent user who is not the one who controls and manages the legal information system, but who is beeing controlled.