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jurisprudence:definition_and_theories_of_jurisprudence

Definition And Theories Of Jurisprudence

Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence hope to obtain a deeper understanding of the nature of law, legal reasoning, legal systems and legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the law of nature, civil law, and the law of nations.

General Jurisprudence can be broken into categories both by the types of questions scholars seek to address and by the theories of jurisprudence or schools of thought regarding how those questions are best to be answered.

Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups.

  1. Problems internal to law and legal systems.
  2. Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Answers to these questions come from four primary schools of thought in general jurisprudence:

Natural law

Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human created laws gain whatever force they have.

Legal positivism

Legal Positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are.

Legal Realism

Legal Realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is. the law has the force that it does because of what legislators, judges, and executives do with it.

Critical Legal Studies is a younger theory of jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an expression of the policy goals of the dominant social group.

The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning “law”, and prudentia means “knowledge”. The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of “knowledge or skill in a matter”.

Nature of Jurisprudence

Philosophers of law ask “what is law?” and “what should it be?”

Nature and scope of Jurisprudence depends upon the ideology and nature of the society and the jurist according to their own notion, Growth of the Law is different and it differs according to social and political condition. There are different meaning for the word “Law” for example in French = Jurisprudence means “case Law”.

Due to the evolution of the society it is difficult to accept definition by all. The study of Jurisprudence started from Romans. Latin word “Jurisprudence” evolved = “knowledge of Law” or “skill in law”. Ulpian = “The knowledge of things divine and human”.

“The science of the just and unjust”.

Paulus = “The law is not to be deducted from the rule, but the rule from the law”.

But these definitions are vague and inadequate but they put forth the idea of a legal science.

England:

During formative period of the common law the word Jurisprudence was in use. Meaning is little more than the study of or skill in law.

Early part of the 19th century the word began to acquire a technical significance among English lawyers.

Bentham distinguished

  1. Expositorial Jurisprudence.
  2. Censorial Jurisprudence.

Austin occupied himself with “expository” Jurisprudence. (His work consisted mainly at a formal analysis of the structure of English law).

Bentham analytical exposition or pioneered and Austin developed. Hence the word Jurisprudence has come to mean in English almost exclusively an analysis of the formal structure of law and its concepts.

Buckland: The analysis of legal concepts is what Jurisprudence meant.

Julius Stone: The lawyer’s extraversion, It is the lawyer examination of the precepts, ideas and techniques of the law in the light derived from present knowledge in discipline other than the law.

Austin:

He says the science of Jurisprudence is concerned with positive law. It is no matter whether it is good or bad law.

Austin divides the law as general jurisprudence and particular jurisprudence. General Jurisprudence is common to all systems.

Particular Jurisprudence confined only to the study of any actual system of law or any portion of it.

General Jurisprudence = science which is concerned with the exposition of the principles notions and distinctions which are common to all system of law.

Particular Jurisprudence is the science of any system of positive law actually obtaining in a specifically determined political society.

General Jurisprudence is a province of pure abstract jurisprudence to analyze and systematize the essential elements underlying the indefinite variety of legal rules without special reference to the institution of any particular country.

Particular Jurisprudence is a science of particular law General and particular jurisprudence differs from each other in this scope but not in its essence.

Generally it takes data from the system of more than one state while particular takes the data from a particular system of law.

Both are positive only.

Example: Possession is one of the fundamental legal concepts recognised by all system of law.

Criticism by Salmond Holland

  1. Impracticability.
  2. Error in Austin’s idea of general jurisprudence.
  3. Jurisprudence is the integral social science and the distinction between general and particular jurisprudence is not proper.
  4. There may be many schools of jurisprudence but there are not different kind of Jurisprudence.
  5. He says it is not correct to use English Jurisprudence as Hindu jurisprudence.
  6. We are dealing with different systems of law and not different kinds of jurisprudence.
  7. He says jurisprudence is a social science which deals with social institutions governed by law it studies them from the point of view of their legal significance.

Holland

  1. Error on particular Jurisprudence.
  2. We can classify a material into general and particular but we can’t classify the science hence the study of particular legal system is not a science.
  3. Example Geology of England Geology of India etc.

Lord Bryce “The law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions”.

Savigny “Law grows with the growth and strengthens with the strength of people and its standard of excellence will generally be found of any given period to be in complete harmony with the prevailing ideas of the best class of citizens

Progress in the formation of law keep pace with the progress in the knowledge of the people.

Holland

Jurisprudence is the formal science of positive law.

It is a formal or analytical science rather than material science.

He terms the positive law as the general rule of external human action enforced by a sovereign political authority.

He follows the definition of auction but he adds the term formal which means that which concerns only the form and not its essence.

A formal science is one, which describes only the form or the external side of the subject and not it internal contents.

Salmond:

Jurisprudence as the science of law means civil law or law of the land. Jurisprudence is of 3 kinds.

Expository or systematic jurisprudence deals with the contents of an actual legal system as existing at any time whether past or present.

Legal history says about the process of historical development which helps us to set forth law as it ought to be. It deals with the ideas of the legal system and the purpose for which it exists.

Salmond makes distinction as generic Jurisprudence and specific Jurisprudence Generic Jurisprudence includes the entire body of legal doctrines and specific jurisprudence deals with a particular department of those doctrines.

He defines Jurisprudence as the science of the first principles of the civil law.

Specific Jurisprudence has three branches

  1. Analytical Jurisprudence.
  2. Historical Jurisprudence.
  3. Ethical Jurisprudence.

Keeton

Jurisprudence the study and systematic arrangement of general principles of law. Jurisprudence deals with the distinction between public and private laws and considers the contents of the principal departments of law. Pound

Jurisprudence the science of law using the term law in the juridical sense as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice.

Gray

Jurisprudence is the science of law the statement and systematic arrangement of the rules followed by the courts and principles involved in those rules.

Jurisprudence is the study of fundamental legal principles it is any thought or writing about law and its relation to other disciplines such as philosophy, psychology, economics etc.

Scope of Jurisprudence

No unanimity of opinion regarding its scope.

However it covers moral and religious precepts but that has created confusion. Credit goes to Austin who distinguished law from morality and theology.

He also restricted the term to the body of rules set and enforced by the sovereign or supreme law making authority within the realm.

In the present view its scope includes all the conduct of human order and human conduct in state and society.

Nature of Law

Natural law

Aristotle is often said to be the father of natural law. Socrates Plato and Aristotle posted the existence of natural justice or natural right.

Natural law theory asserts that there are laws that are imminent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim an unjust law is not a true law, lex iniusta non est lex, in which ‘unjust’ is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God.

Natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote ‘the good’. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focussed upon. Natural law is sometimes identified with the maxim that “an unjust law is no law at ali”.

Thomas Aquinas was the most important Western medieval legal scholar. Main article: Thomas Aquinas.

He is the foremost classical proponent of natural theology. Aquinas distinguished four kinds of law.

These are:

  1. The eternal law
  2. Natural law
  3. Human law and
  4. Divine law.

Eternal law is the decree of God which governs all creation.

Natural law is the human “participation” in the eternal law and is discovered by reason.

Natural law is based on “first principles”: this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this The desire to live and to procreate are counted by Aquinas among those basic (natural) human values on which all human values are based.

Human law is positive law:

The natural law applied by governments to societies. Divine law is the law as specially revealed in the scriptures and teachings of the apostles Thomes Hobbes

He was an English enlightenment scholar.

Hobbes expresses a view of natural law as a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a social contrarian and believed that the law gained peoples’ tacit consent.

He believed that society was formed from a state of nature to protect people from the state of war between mankind that exists otherwise. Life is, without an ordered society, “solitary, poor, nasty and short”.

Legal positivists

Positivism simply means that the law is something that is “positive”: laws are validly made in accordance with socially accepted rules. The positivist view are Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.

What the law is - is determined by social facts

What obedience the law is owed - is determined by moral considerations.

Hans Kelsen is considered one of the pre-eminent jurists of the 20th century. He is most influential in Europe, where his notion of a Grundnorm or a “presupposed” ultimate and basic legal norm, still retains some influence.

It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and “simple” law are based. Kelsen’s pure theory of law described the law as being a set of social facts, which are normatively binding too. Law’s normativity, meaning that we must obey it, derives from a basic rule which sits outside the law we can alter. It is a rule prescribing the validity of all others.

H. L. A. Hart

H. L. A. Hart, who argued that the law should be understood as a system of social rules.

Hart rejected Kelsen’s views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts.

Hart divided into primary rules (rules of conduct) and secondary rules (rules addressed to officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). The “rule of recognition”, a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law.

Legal realism

Oliver Wendell Holmes was a self-defined legal realist.

The law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises.


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Created on 2020/10/19 23:14 by • Last modified on 2020/11/07 18:33 (external edit)