What is a theory in law ?
This expression can be easily used but is difficult to understand. My students made me realize I needed to be more clear about my point of view. In my original publication, I invented “professor Tartanpion” and showed how and when he is used that expression ; see :
"Théorie juridique" : les sept sens de l’expression (dans la bouche du Prof. TARTANPION) (Première partie).
1) The doctrinal theory
In this case, the theory is a doctrinal position. It is supported by current ideas that from time to time would challenge some minds and some publications.
2) Legal theory
In this case, some law articles would be the reference. This theory is based on 3, 4, 15… articles linked together by intelligence and pragmatism of law makers. The legal theory is the applicable law in fact ! To explain law is the main task of professor Tartanpion.
3) The jurisprudence theory
Here the professor Tartanpion gave a solution which source is in the jurisprudence that would grant compensation. Here again, the legal theory is the applicable law.
Those 3 theories to link it to a legal source, jurisprudential or doctrinal are really concrete. Sometimes the expression will have the 3 meanings of the expression: a legal theory will be complemented by the jurisprudence and lightened by the doctrine.
4) Theory doctrinal paralegal
Professor Tartanpion can teach “the theory of contract is and always will be the foundation of the contract of the firm and the corporate body…”. In this case, the theory is a vision that would be supporting the legal means. Why and how the law maker did select those rules and mechanisms? Because he was inspired by the contract. Here we get into a real theory, a fundamental explanation. In case of doubt about the making or the meaning of the rule of law, this legal theory, the one based on the contract will enable an interpretation of reason.
This doctrinal point of view, purely theoric, will overcome the difficulty, will give a solution where there is no obvious one for the jurist. In this case according to the legal theory the law is not applicable, it is essence itself. It’s a daily doctrinal labour.
5) Fundamental doctrinal theory
This theory explains the positive law, in order to give it a real meaning. This legal theory transcends the positive law, the doctrine, and the jurisprudence. We frequently find this kind of work – so the best level – in a doctorate thesis (“thèse”, or “thèse de doctrorat” in french).
6) Legal theory: social theory of a general public
Then the legal theory is for some jurists an opinion more or less general, which is irrelevant regarding that a jurist should take into account to defend a clerk, to go back to trial.
The legal theory is as such a level of generality that his juridicity could be challenged.
7) The legal theory: the opposite of practise
“Theoritically you have legal right, but you can’t always exercise them”. In this case, there is no precise legal theory. We know the so called experts who have an approximative talking about the practical opinion and, at the opposite, the enemies of practise who have never written a contract. Let’s be clear there is an opposition between practise and theory only if you lack pragmatism. What oppose theory and practise, it is the enability of the practioner to implement it or when the practicioner is enable to identify the legal reasoning of his practise.