Juris intro 1.docx

7/24/2019 Juris intro 1.docx

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LLB PART ONE JURISPRUDENCE NOTES

The Science of Jurisprudence as subject

Kinds of Jurisprudence

Relation of Jurisprudence with other social sciences

The Nature of Law

The Administration of Justices

The Source of Law

Legislation

Precedent

Custom

Legal Rights

wnership

Possession

Persons

Titles

BOOKS RECOMMENDED FOR JURISPRUDENCE LLB PART ONE

Jurisprudence b! John Salmond edited b! "rit# $erald %latest edition&'

Jurisprudence b! (ibbert %latest edition&'

Jurisprudence b! )ennis Llo!ds %Ste*en and sons Ltd'+ London&'

Jurisprudence b! C, Paton

Justice %R& - A Channa+ Precedents
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JurisprudenceFrom Wikipedia, the free encyclopedia

For the "jurisprudence" of courts, see Case law."Concept of law" redirects here. For the book by H. L. A.Hart, see The Concept of Law.

Philosophersof law ask "what is law, and what should it be?"

Jurisprudenceis the science, studyand theoryof law. Itincludes principles behind law that make the law. Scholars

of jurisprudence, also known asjuristsor leal theorists!includin leal philosophers and social theorists of law,hope to obtain a deeper understandin of the nature of law,of leal reasonin, leal systemsand of leal institutions.#odern jurisprudence bean in the $%th century and wasfocused on the first principles of the natural law, ci&il law,and the law of nations.'$()eneral jurisprudence can bedi&ided into cateories both by the type of *uestion scholarsseek to answer and by the theories of jurisprudence, orschools of thouht, reardin how those *uestions are bestanswered. +ontemporary philosophy of law, which dealswith eneral jurisprudence, addresses problems in tworouh roups'-(

$. Problems internal to law and lealsystems as such.

-. Problems of law as a particular socialinstitution as it relates to the larerpolitical and social situation in which iteists.
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/nswers to these *uestions come from four primary schoolsof thouht in eneral jurisprudence'-(

Natural lawis the idea that there arerational objecti&e limits to the power ofleislati&e rulers. 0he foundations of laware accessible throuh reason and it isfrom these laws of nature that human1created laws ain whate&er force theyha&e.'-(

Legal positivism, by contrast to naturallaw, holds that there is no necessaryconnection between law and moralityand that the force of law comes fromsome basic social facts. 2eal positi&istsdiffer on what those facts are.'3(

Legal realismis a third theory of

jurisprudence which arues that the realworld practice of law is what determineswhat law is4 the law has the force that itdoes because of what leislators,barristers and judes do with it. Similarapproaches ha&e been de&eloped inmany different ways in socioloy of law.

Critical legal studiesare a younertheory of jurisprudence that hasde&eloped since the $567s. It is primarilya neati&e thesis that holds that the lawis larely contradictory, and can be best
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analy8ed as an epression of the policyoals of the dominant social roup.'9(

/lso of note is the work of the contemporary philosopher of

law :onald ;workinwho has ad&ocated a constructi&isttheory of jurisprudence that can be characteri8ed as amiddle path between natural law theories and positi&isttheories of eneral jurisprudence.'-%,'>(at atime when the wordprudencehad the meanin of

"knowlede of or skill in a matter". 0he word may ha&ecome &ia the Frenchjurisprudence, which is attested earlier.

Contents 'hide(

$istory of jurisprudence

-@atural law

3/nalytic jurisprudence

9@ormati&e jurisprudence
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:eferences

6Further readin

%=ternal links

History of jurisprudence'edit(/ncient Indian jurisprudence is a&ailable in&arious ;harmaABstratets startin from the ;harmasutra

of Chodhayana. Durisprudence already had this meanin'citation

needed(in/ncient :omee&en if at its oriins the discipline wasa !periti in thejusof mos maiorum!traditional law, a bodyof oral lawsand customs &erbally transmitted "by father toson". Praetors established a workable body of laws by

judin whether or not sinular cases were capable of beinprosecuted either by the edicta, the annual pronunciation ofprosecutable offense, or in etraordinary situations,

additions made to the edicta. / iude then would jude aremedy accordin to the facts of the case.

0heir sentences were supposed to be simple interpretationsof the traditional customs, but effecti&ely it was an acti&itythat, apart from formally reconsiderin for each case whatprecisely was traditionally in the leal habits, soon turnedalso to a more e*uitable interpretation, coherently adaptin

the law to the newer social instances. 0he law was thenimplemented with new e&oluti&e nstitutiones!lealconcepts, while remainin in the traditional scheme.Praetors were replaced in 3rd century C+ by a laical bodyofprudentes. /dmission to this body was conditional uponproof of competence or eperience.
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Ender the :oman =mpire, schools of law were created, andthe acti&ity constantly became more academic. In the aefrom the early :oman =mpire to the 3rd century, a rele&antliterature was produced by some notable roups includinthe Proculiansand Sabinians. 0he scientific depth of thestudies was unprecedented in ancient times.

/fter the 3rd century, !uris prudentiabecame a morebureaucratic acti&ity, with few notable authors. It was durinthe =astern :oman =mpire!


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this maim is a poor uide to the classical 0homistposition.Stronly related to theories of natural law are classicaltheories ofjustice, beinnin in the Westwith PlatoGs :epublic.

Aristotle'edit(ain article#Aristotle

/ristotle, by Francesco aye8

/ristotle is often said to be the father of natural law.'6(2ikehis philosophical forefathers Socrates, Plato, and other

Indian philosophers,/ristotleposited the eistence of naturaljusticeor natural riht !dikaion physikon, &'()*+-/'(0, 2atinis natural. is association with natural law islarely due to the way in which he was interpretedby 0homas /*uinas.'%(0his was based on /*uinasconflation of natural law and natural riht, the latter of which

/ristotle posits in Cook H of the $icomachean 1thics!Cook IH of the 1udemian 1thics. /*uinass influence wassuch as to affect a number of early translations of thesepassaes,'5(thouh more recent translations render themmore literally.'$7(

/ristotles theory of justice is bound up in his idea ofthe olden mean. Indeed his treatment of what he calls"political justice" deri&es from his discussion of "the just" asa moral &irtue deri&ed as the mean between opposin &ices,

just like e&ery other &irtue he describes.'$$(is lonestdiscussion of his theory of justice occurs in $icomachean1thicsand beins by askin what sort of mean a just act is.e arues that the term "justice" actually refers to twodifferent but related ideas eneral justice and particular
https://en.wikipedia.org/wiki/Thomismhttps://en.wikipedia.org/wiki/Justicehttps://en.wikipedia.org/wiki/Platohttps://en.wikipedia.org/wiki/Plato_Republichttps://en.wikipedia.org/w/index.php?title=Jurisprudence&action=edit&section=3https://en.wikipedia.org/wiki/Aristotlehttps://en.wikipedia.org/wiki/Aristotlehttps://en.wikipedia.org/wiki/Francesco_Hayezhttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-7https://en.wikipedia.org/wiki/Socrateshttps://en.wikipedia.org/wiki/Platohttps://en.wikipedia.org/wiki/Aristotlehttps://en.wikipedia.org/wiki/Natural_justicehttps://en.wikipedia.org/wiki/Natural_justicehttps://en.wikipedia.org/wiki/Latinhttps://en.wikipedia.org/wiki/Thomas_Aquinashttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-8https://en.wikipedia.org/wiki/Nicomachean_Ethicshttps://en.wikipedia.org/wiki/Eudemian_Ethicshttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-9https://en.wikipedia.org/wiki/Jurisprudence#cite_note-10https://en.wikipedia.org/wiki/Golden_mean_(philosophy)https://en.wikipedia.org/wiki/Jurisprudence#cite_note-11https://en.wikipedia.org/wiki/Thomismhttps://en.wikipedia.org/wiki/Justicehttps://en.wikipedia.org/wiki/Platohttps://en.wikipedia.org/wiki/Plato_Republichttps://en.wikipedia.org/w/index.php?title=Jurisprudence&action=edit&section=3https://en.wikipedia.org/wiki/Aristotlehttps://en.wikipedia.org/wiki/Aristotlehttps://en.wikipedia.org/wiki/Francesco_Hayezhttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-7https://en.wikipedia.org/wiki/Socrateshttps://en.wikipedia.org/wiki/Platohttps://en.wikipedia.org/wiki/Aristotlehttps://en.wikipedia.org/wiki/Natural_justicehttps://en.wikipedia.org/wiki/Natural_justicehttps://en.wikipedia.org/wiki/Latinhttps://en.wikipedia.org/wiki/Thomas_Aquinashttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-8https://en.wikipedia.org/wiki/Nicomachean_Ethicshttps://en.wikipedia.org/wiki/Eudemian_Ethicshttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-9https://en.wikipedia.org/wiki/Jurisprudence#cite_note-10https://en.wikipedia.org/wiki/Golden_mean_(philosophy)https://en.wikipedia.org/wiki/Jurisprudence#cite_note-11


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justice.'$-('$3(When a persons actions are completely &irtuousin all matters in relation to others, /ristotle calls her "just" inthe sense of "eneral justice4" as such this idea of justice ismore or less coetensi&e with &irtue.'$9("Particular" or "partial

justice", by contrast, is the part of "eneral justice" or theindi&idual &irtue that is concerned with treatin otherse*uitably.'$3(/ristotle mo&es from this un*ualified discussionof justice to a *ualified &iew of political justice, by which hemeans somethin close to the subject of modern

jurisprudence. Jf political justice, /ristotle arues that it ispartly deri&ed from nature and partly a matter of con&ention.

'$


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Thomas Aquinas'edit(

0homas /*uinaswas the most influential Western medie&allealscholar

ain article# Thomas A3uinas

Saint 0homas /*uinas, '0homas of /*uin, or /*uino( !c.$--< K 6 #arch $-69 a &ery contro&ersial person, was anItalian philosopherand theoloian in the scholastictradition,known as ";octor /nelicus, ;octor Eni&ersalis". e is theforemost classical proponent ofnatural theoloy, and the

father of the 0homisticschool of philosophy, for a lon timethe primary philosophical approach of the :oman +atholic+hurch. 0he work for which he is best known is the 4ummaTheolo5ica. Jne of the thirty1fi&e ;octors of the +hurch, heis considered by many +atholics to be the +hurchs reatesttheoloian. +onse*uently, many institutions of learninha&ebeen named after him.

/*uinas distinuished four kinds of law eternal, natural,human and di&ine

=ternal law refers to di&ine reason,

known only to )od. It is )ods plan forthe uni&erse. #an needs this, for withoutit he would totally lack direction.

@atural law is the "participation" in the

eternal law by rational human creatures,and is disco&ered by reason.

;i&ine lawis re&ealed in the scriptures

and is )ods positi&e law for mankind.
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uman lawis supported by reason and

enacted for the common ood.'$5(

@atural law, of course, is based on "first principles"

. . . this is the first precept of the law, that 5ood is to be doneand promoted, and e6il is to be a6oided. All other preceptsof the natural law are based on this . . .'-7(

0he desires to li&e and to procreate are counted by /*uinasamon those basic !natural human &alues on which allother human &alues are based.

School of Salamanca'edit(ain article# 4chool of 4alamancaFrancisco de Hitoriawas perhaps the first to de&elop atheory of ius 5entium!the rihts of peoples, and thus is animportant fiure in the transition to modernity. eetrapolated his ideas of leitimate so&erein power tosociety at the international le&el, concludin that this scopeas well ouht to be ruled by just forms respectable of therihts of all. 0he common ood of the world is of a cateorysuperior to the ood of each state. 0his meant that relationsbetween states ouht to pass from bein justified by force tobein justified by law and justice. Some scholars ha&e upsetthe standard account of the oriins of International law,which emphasises the seminal tet 7e iure belli ac pacisby)rotius, and arued for Hitoria and, later, SuLre8s

importance as forerunners and, potentially, founders of thefield.'-$(Jthers, such as Moskenniemi, ha&e arued that noneof these humanist and scholastic thinkers can beunderstood to ha&e founded international law in the modernsense, instead placin its oriins in the post1$%67 period.'--(
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Francisco SuLre8, rearded as amon the reatestscholastics after /*uinas, subdi&ided the concept of ius5entium. Workin with already well1formed cateories, hecarefully distinuished ius inter 5entesfrom ius intra5entes. us inter 5entes!which corresponds to moderninternational law was somethin common to the majority ofcountries, althouh, bein positi&e law, not natural law, wasnot necessarily uni&ersal. Jn the other hand, ius intra5entes, or ci&il law, is specific to each nation.

Thomas Hobbes'edit(ain article# Thomas Hobbes

In his treatise Le6iathan, 89:;9


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Writin after World War II, 2on 2. Fuller notably emphasisedthat the law must meet certain formal re*uirements !such asbein impartial and publicly knowable. 0o the etent that aninstitutional system of social control falls short of thesere*uirements, Fuller arues, we are less inclined toreconise it as a system of law, or to i&e it our respect.0hus, law has an internal morality that oes beyond thesocial rules by which &alid laws are made.

John Finnis'edit(ain article# !ohn Finnis

Sophisticated positi&ist and natural law theories sometimesresemble each other more than the abo&e descriptionsmiht suest, and they may concede certain points to theother "side". Identifyin a particular theorist as a positi&ist ora natural law theorist sometimes in&ol&es matters ofemphasis and deree, and the particular influences on thetheorists work. In particular, the older natural lawyers, suchas /*uinas and Dohn 2ocke made no distinction between

analytic and normati&e jurisprudence. Cut modern naturallawyers, such as Dohn Finnis claim to be positi&ists, whilestill aruin that law is a basically moral creature.

Sharia and Fiqh in slam'edit(ain articles# 4hariaand Fi3h

/llamahSayyid /bul /la #aududi, an Islamic jurist

Sharia !!"#$ %&'($ refers to the body of Islamic law, which is themost widely used reliious law in the world. 0he term means"way" or "path"4 it is the leal framework within which publicand most pri&ate aspects of life are reulated for those li&inin a leal system based on Islamicprinciples of
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jurisprudence. Fi*his the term for Islamic jurisprudence,made up of the rulins of Islamic jurists. / component ofIslamic studies, Fi*h epounds the methodoloy by whichIslamic law is deri&ed from primary and secondary sources.

#ainstream Islam distinuishes fi3h, which meansunderstandin the details and inferences drawn by scholars,from sharia, which refers to the principles behind the fi3h.Scholars hope that fi3hand shariaare in harmony in anyi&en case, but this cannot be assured.'-9(

=arly forms of loic in Islamic philosophywere introduced inIslamic jurisprudence from the 6th century with the processof =iyas. ;urin theIslamic )olden /e, there was a loicaldebate amon Islamic philosophersandjuristso&er whetherthe term =iyasrefers to analoical reasonin, inducti&ereasoninor cateorical sylloism. Some Islamic scholarsarued that =iyasrefers to reasonin. Ibn a8m!5591$7>9disareed with this, aruin that =iyasrefers rather tocateorical sylloism in a realsense and to analoical

reasonin in a metaphoricalsense. Jn the other hand, al1)ha8ali!$7


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of what law is and what it ouht to be. '->(;a&idumefamously arued inA Treatise of Human $ature'-6(thatpeople in&ariably slip between describin that the world isacertain way to sayin therefore we ou5htto conclude on aparticular course of action. Cut as a matter of pure loic, onecannot conclude that we ou5htto do somethin merelybecause somethin isthe case. So analysin and clarifyinthe way the world ismust be treated as a strictly separate*uestion to normati&e and e&aluati&e ou5ht*uestions.

0he most important *uestions of analytic jurisprudence are"What are laws?"4 "What is thelaw?"4 "What is the

relationship between law and powerNsocioloy?"4 and "Whatis the relationship between law and morality?" 2ealpositi&ism is the dominant theory, althouh there are arowin number of critics who offer their own interpretations.

Legal positivists'edit(ain article# Le5al positi6ism

Positi&ism simply means that law is somethin that is"posited" laws are &alidly made in accordance with sociallyaccepted rules. 0he positi&ist &iew on law can be seen toco&er two broad principles Firstly, that laws may seek toenforce justice, morality, or any other normati&e end, buttheir success or failure in doin so does not determine their&alidity. Pro&ided a law is properly formed, in accordancewith the rules reconi8ed in the society concerned, it is a

&alid law, reardless of whether it isjustby some otherstandard. Secondly, that law is nothin more than a set ofrules to pro&ide order and o&ernance of society. @o lealpositi&ist, howe&er, arues that it follows that the law istherefore to be obeyed, no matter what. 0his is seen as aseparate *uestion entirely.
https://en.wikipedia.org/wiki/Jurisprudence#cite_note-26https://en.wikipedia.org/wiki/David_Humehttps://en.wikipedia.org/wiki/David_Humehttps://en.wikipedia.org/wiki/A_Treatise_of_Human_Naturehttps://en.wikipedia.org/wiki/A_Treatise_of_Human_Naturehttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-27https://en.wikipedia.org/w/index.php?title=Jurisprudence&action=edit&section=11https://en.wikipedia.org/wiki/Legal_positivismhttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-26https://en.wikipedia.org/wiki/David_Humehttps://en.wikipedia.org/wiki/David_Humehttps://en.wikipedia.org/wiki/A_Treatise_of_Human_Naturehttps://en.wikipedia.org/wiki/Jurisprudence#cite_note-27https://en.wikipedia.org/w/index.php?title=Jurisprudence&action=edit&section=11https://en.wikipedia.org/wiki/Legal_positivism


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What the law is!le lata 1 is determined

by historical social practice !resultin inrules

What the law ou5ht to be!le ferenda 1

is determined by moral considerations.

)entham and Austin'edit(

Centhamsutilitarian theories remained dominant in law until thetwentieth century

ain articles# !eremy >enthamand !ohn Austin 8le5al

philosopher ar&ard Eni&ersity Press

39. Jump up 4"Durisprudence". Wests=ncyclopedia of /merican 2aw. =d. Deffrey
https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-24https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-25https://en.wikipedia.org/wiki/Oxford_University_Presshttps://en.wikipedia.org/wiki/Special:BookSources/0198240430https://en.wikipedia.org/wiki/Special:BookSources/0198240430https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-26https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-27http://etext.library.adelaide.edu.au/h/hume/david/h92t/https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-28https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-29https://en.wikipedia.org/wiki/Special:BookSources/0198761228https://en.wikipedia.org/wiki/Special:BookSources/0198761228https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-30http://www.law.ed.ac.uk/staff/neilmaccormick_51.aspxhttps://en.wikipedia.org/wiki/Jurisprudence#cite_ref-31https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-32https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-33https://en.wikipedia.org/wiki/Harvard_University_Presshttps://en.wikipedia.org/wiki/Jurisprudence#cite_ref-34https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-24https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-25https://en.wikipedia.org/wiki/Oxford_University_Presshttps://en.wikipedia.org/wiki/Special:BookSources/0198240430https://en.wikipedia.org/wiki/Special:BookSources/0198240430https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-26https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-27http://etext.library.adelaide.edu.au/h/hume/david/h92t/https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-28https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-29https://en.wikipedia.org/wiki/Special:BookSources/0198761228https://en.wikipedia.org/wiki/Special:BookSources/0198761228https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-30http://www.law.ed.ac.uk/staff/neilmaccormick_51.aspxhttps://en.wikipedia.org/wiki/Jurisprudence#cite_ref-31https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-32https://en.wikipedia.org/wiki/Jurisprudence#cite_ref-33https://en.wikipedia.org/wiki/Harvard_University_Presshttps://en.wikipedia.org/wiki/Jurisprudence#cite_ref-34


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2ehman, Shirelle Phelps. ;etroit0homsonN)ale, -77


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+otterrell, :. !-773. The olitics of

!urisprudence# A Critical ntroduction toLe5al hilosophy, -nd ed.

Jford Jford Eni&ersity Press.

Freeman, #.;./. !-7$9. Lloyds

ntroduction to !urisprudence. 5th ed.2ondon Sweet and #awell.

Fruehwald, =dwin Scott, Law and

Human >eha6ior# A 4tudy in >eha6ioral

>iolo5y, $euroscience, and theLaw!Handeplas -7$$. ISC@ 56%1$1>779-1$9917

Hart, H. L. A. 89J:9P 9JJM, nd ed with

ostscript$IB9JBON:9BO.+heck date &alues in |

date=!help

art8ler, . :ichard !$56>. !ustice,

Le5al 4ystems, and 4ocial 4tructure.Port Washinton, @U Mennikat Press.

1n5le, 1ric 8!uly I9I$JNOIJOIN9OM.

utchinson, /llan +., ed. !$5%5. Critical

Le5al 4tudies. 0otowa, @D :owman T2ittlefield.
https://en.wikipedia.org/wiki/Oxford_University_Presshttps://en.wikipedia.org/wiki/Special:BookSources/9781600421440https://en.wikipedia.org/wiki/Special:BookSources/9781600421440https://en.wikipedia.org/wiki/The_Concept_of_Lawhttps://en.wikipedia.org/wiki/International_Standard_Book_Numberhttps://en.wikipedia.org/wiki/Special:BookSources/0-19-876122-8https://en.wikipedia.org/wiki/Special:BookSources/0-19-876122-8https://en.wikipedia.org/wiki/Help:CS1_errors#bad_datehttps://books.google.com/books?id=nz4DasoEUesChttps://books.google.com/books?id=nz4DasoEUesChttps://books.google.com/books?id=nz4DasoEUesChttps://en.wikipedia.org/wiki/International_Standard_Book_Numberhttps://en.wikipedia.org/wiki/Special:BookSources/9780980731842https://en.wikipedia.org/wiki/Critical_Legal_Studieshttps://en.wikipedia.org/wiki/Critical_Legal_Studieshttps://en.wikipedia.org/wiki/Oxford_University_Presshttps://en.wikipedia.org/wiki/Special:BookSources/9781600421440https://en.wikipedia.org/wiki/Special:BookSources/9781600421440https://en.wikipedia.org/wiki/The_Concept_of_Lawhttps://en.wikipedia.org/wiki/International_Standard_Book_Numberhttps://en.wikipedia.org/wiki/Special:BookSources/0-19-876122-8https://en.wikipedia.org/wiki/Special:BookSources/0-19-876122-8https://en.wikipedia.org/wiki/Help:CS1_errors#bad_datehttps://books.google.com/books?id=nz4DasoEUesChttps://books.google.com/books?id=nz4DasoEUesChttps://books.google.com/books?id=nz4DasoEUesChttps://en.wikipedia.org/wiki/International_Standard_Book_Numberhttps://en.wikipedia.org/wiki/Special:BookSources/9780980731842https://en.wikipedia.org/wiki/Critical_Legal_Studieshttps://en.wikipedia.org/wiki/Critical_Legal_Studies


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Mempin, Dr., Frederick ). !$5>3. Le5al

History# Law and 4ocial Chan5e.=nlewood +liffs, @D Prentice1all.

2lewellyn, Marl @. !$5%>. ?arl $.

Llewellyn on Le5al 2ealism.Cirminham, /2 2eal +lassics 2ibrary.!+ontains penetratin classic "0heCramble Cush" on nature of law.

#urphy, +ornelius F.

!$566. ntroduction to Law, Le5alrocess, and rocedure. St. Paul, #@West Publishin.

:awls, Dohn !$555.A Theory of !ustice,

re&ised ed. +ambride ar&ardEni&ersity Press. !Philosophicaltreatment of justice.

Wacks, :aymond

!-775. Gnderstandin5 !urisprudence#An ntroduction to Le5al TheoryJfordEni&ersity Press.

Washinton, =llis !-77-. The

nseparability of Law and orality#

1ssays on Law, 2ace, olitics and2eli5ionEni&ersity Press of /merica.

Washinton, =llis !-7$3. The

ro5ressi6e 2e6olution, IINBIOKritin5sBEol. 9P IIJ Kritin5sBEol. ,
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Liberal Fascism throu5h theA5esEni&ersity Press of /merica.

Vinn, oward !$557. 7eclarations of

ndependence# CrossB1%aminin5American deolo5y.@ew Uork arper+ollins Publishers.

Vippelius, :einhold

!-7$$. 2echtsphilosophie, >th ed.#unich +.. Ceck. ISC@ 56%13197>1

>$$5$15 Vippelius, :einhold !-7$-. 7as Kesen

des Fechts, /n Introduction to 2eal0heory, >th ed., Stuttart W.Mohlhammer. ISC@ 56%131$617--3


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Dohn Witte, Dr / Crief Cioraphy of

;ooyeweerd, based on endrik &an=ikema ommes, Inleidin tot de

Wijsbeeerte &an erman ;ooyeweerd!0he aue, $5%-4 pp $K9,$3-. :edeemer Eni&ersity +ollee

2II 2aw about... Durisprudence.

Filosofiadeldiritto.it"2Ircocer&o. :i&ista

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iuridica, teoria enerale del diritto edottrina dello stato" 2ircocer&o.it

The Case of the 4peluncean 1%plorers#

$ine $ew Dpinions, by Peter Suber!:outlede, $55%. 2on Fullers classic of

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Durisprudence :e&ision @otes for

Students 1 2aw0eacher.net 1Durisprudence

Foundation for 2aw, Dustice and Society

Ciblioraphy on the Philosophy of 2aw.

Peace Palace 2ibrary

@orweian /ssociation for 2eal

Philosophy

u

1urisprudence

/lso found in.ictionar2,Thesaurus,5edical, 6nc2clopedia, 7i/ipedia.:elated to jurisprudence slamic 1urisprudence

Jurisprudence

From the Latin termjuris prudentia, which means "the study, knowled5e, or science of law"P in the Gnited

4tates, morebroadly associated with thephilosophy of law.

2eal philosophy has many branches, with four types bein the most common. 0he most pre&alent form o

fjurisprudenceseeks to analy8e, eplain, classify, and critici8e entire bodies of law, ranin from contract t

o 0J:0 to Constitutional

Law.2eal encyclopedias, law re&iews, and law school tetbooks fre*uently contain this type ofjurisprude
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ntial scholarship.0hesecond type ofjurisprudence compares and contrasts law with other fields of knowle

de such as literature, economics,reliion, and the social sciences. 0he purpose of this type of study is to

enlihten each field of knowlede by sharininsihts that ha&e pro&en to be important in ad&ancin essen

tial features of the compared discipline.

0he third type ofjurisprudence raises fundamental *uestions about the law itself. 0hese *uestions seek to

re&eal thehistorical, moral, and cultural underpinnins of a particular leal concept. The Common Law!$%

%$, written by J2IH=: W=@;=22J2#=S D:., is a well1known eample of this type of jurisprudence. It traces

the e&olution of ci&il and criminal responsibilityfrom unde&eloped societies where liability for injuries was b

ased on subjecti&e notions of re&ene, to modern societieswhere liability is based on objecti&e notions of

reasonableness.

0he fourth and fastest1rowin body ofjurisprudence focuses on e&en more abstract *uestions, includin,

What is law? owdoes a trial or appellate court jude decide a case? Is a jude similar to a mathematicia

n or a scientist applyin autonomousand determinate rules and principles? Jr is ajude more like a leisl

ator who simply decides a case in fa&or of the mostpolitically preferable outcome? #ust a jude base a d

ecision only on the written rules and reulations that ha&e beenenacted by the o&ernment? Jr may ajude also be influenced by unwritten principles deri&ed from theoloy, moralphilosophy, and historical practi

ce?

Four schools ofjurisprudence ha&e attempted to answer these *uestions formalism proposes that law is

a science4 realismholds that lawis just another name for politics48ositivismsuests that law must be c

onfined to the written rules andreulations enacted or reconi8ed by the o&ernment4 and naturalism mai

ntains that the law must reflect eternal principlesofjustice and morality that eist independent of o&ernm

ental reconition.

#odern E.S. leal thouht bean in $%67. In that year, olmes, the father of the E.S. leal realist mo&em

ent, wrote his firstmajor essay for theAmerican Law 2e6iew, andChristopher Columbus

Langdell, the father of E.S. leal formalism,joinedthe faculty at ar&ard 2aw School.

Formalism

2eal formalism, also known as conceptualism, treats law like a math or science. Formalists belie&e that i

n the same way amathematician or scientist identifies the rele&ant aioms, applies them to i&en data, an

d systematically reaches ademonstrable theorem, ajude identifies the rele&ant leal principles, applies t

hem to the facts of a case, and loicallydeduces a rule that will o&ern the outcome of a dispute. Dudes

deri&e rele&ant leal principles from &arious sources ofleal authority, includin state and federal constituti

ons, statutes, reulations, and case law.

For eample, most states ha&e enacted leislation that prohibits courts from probatin a will that was not

sined by twowitnesses. If a court is presented with a number of wills to probate for the same estate, and

only one of those wills has beenwitnessed by at least two persons, the court can *uickly deduce the corre

ct leal conclusion in a formalistic fashion eachwill that has been sined by fewer than two witnesses will

ha&e no leal effect, and only the will eecuted in compliance withthe statutory re*uirements may be prob

ated.
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Formalists also rely on inducti&e reasonin to settle leal disputes. Whereas deducti&e reasonin in&ol&es

the application ofeneral principles that will yield a specific rule when applied to the facts of a case, induct

i&e reasonin starts with a numberof specific rules and infers from them a broader leal principle that may

be applied to comparable leal disputes in thefuture. ):ISWJ2; H. +J@@=+0I+E0, 3%$ E.S. 965, %< S. +t. $

>6%, $9 2. =d. -d


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etermination on a precisealebraic e*uation. Instead, thejude balances the competin economic and so

cial interests of the parties, and rules infa&or of the litiant with the most persuasi&e case. :ealists would t

hus contend thatjudes who are ideoloically inclined tofoster business rowth will authori8e the continua

tion of a harmful acti&ity, whereas judes who are ideoloically inclined toprotect the en&ironment will not.

Second, realists belie&ed that becausejudes decide cases based on their political affiliation, the law ten

ds always to labehind social chane. For eample, the realists of the late nineteenth century saw a dram

atic rise in the disparity betweenthe wealth and workin conditions of rich and poor E.S. citi8ens followin

the industrial re&olution. 0o protect societyspoorest and weakest members, many states bean draftin le

islation that established a 5inimum

7ageand maimumworkin hours for &arious classes of eploited workers. 0his leislation was part of th

e E.S. Proressi&e mo&ement, whichreflected many of the realists concerns.

0he Supreme +ourt bean strikin down such laws as an unconstitutional interference with the freedom o

f contractuaranteed by theFourteenth

Amendmentof the E.S. +onstitution. E.S. realists claimed that the Supreme +ourt justiceswere simply u

sin the freedom1of1contract doctrine to hide the real basis of their decision, which was their personaladherence to free1market principles and laisse81faire economics. 0he realists arued that the free1market sys

tem was notreally free at all. 0hey belie&ed that the economic structure of the Enited States was based o

n coerci&e laws such as theemployment1at1will doctrine, which permits an employer to dischare an empl

oyee for almost any reason. 0hese laws, therealists asserted, promote the interests of the most powerful

E.S. citi8ens, lea&in the rest of society to fend for itself.

Some realists only souht to demonstrate that law is neither autonomous, apolitical, nor determinate. For

eample, D=:J#=F:/@M, who coined the term le5al realismand later became a jude on the E.S. +ourt of

/ppeals for the Second +ircuit,emphasi8ed the psycholoical foundation ofjudicial decision makin, arui

n that ajudes decision may be influenced bymundane thins like what he or she ate for breakfast. Fra

nk belie&ed that it is decepti&e for the leal profession toperpetuate the myth that the law is clearly knowa

ble or precisely predictable, when it is so plastic and mutable. M/:222=W=22U@, another founder of the E.S.

2eal Jurisprudence

jurisprudence! an overview

The wordjurisprudence derives from the Latin termjuris prudentia, which means "the

study, knowledge, or science of law." In the United States jurisprudence commonly

means the philosophy of law. Legal philosophy has many aspects, ut four of them are

the most common. The first and the most prevalent form of jurisprudence seeks to

analy!e, eplain, classify, and critici!e entire odies of law. Law school tetooks and

legal encyclopedias represent this type of scholarship. The second type of jurisprudence

compares and contrasts law with other fields of knowledge such as literature,

economics, religion, and the social sciences. The third type of jurisprudence seeks to

reveal the historical, moral, and cultural asis of a particular legal concept. The fourth

ody of jurisprudence focuses on finding the answer to such astract #uestions as $hat

is law% &ow do judges 'properly( decide cases%
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)part from different types of jurisprudence, different schools of jurisprudence

eist. *ormalism , or conceptualism, treats law like math or science. *ormalists elieve

that a judge identifies the relevant legal principles, applies them to the facts of a case,

and logically deduces a rule that will govern the outcome of the dispute. In contrast,

proponents of legal realism elieve that most cases efore courts present hard

#uestions that judges must resolve y alancing the interests of the parties and

ultimately drawing an aritrary line on one side of the dispute. This line, realists

maintain, is drawn according to the political, economic, and psychological inclinations of

the judge. Some legal realists even elieve that a judge is ale to shape the outcome of

the case ased on personal iases.

)part from the realist+formalist dichotomy, there is the classic deate over the

appropriate sources of law etween positivist and natural law schools of thought.

ositivists argue that there is no connection etween law and morality and the the only

sources of law are rules that have een epressly enacted y a governmental entity orcourt of law. -aturalists, or proponents of natural law, insist that the rules enacted y

government are not the only sources of law. They argue that moral philosophy, religion,

human reason and individual conscience are also integrate parts of the law.

There are no right lines etween different schools of jurisprudence. The legal

philosophy of a particular legal scholar may consist of a comination of strains from

many schools of legal thought. Some scholars think that it is more appropriate to think

aout jurisprudence as a continuum.

The aove mentioned schools of legal thoughts are only part of a diverse jurisprudentialpicture of the United States. ther prominent schools of legal thought eist. /ritical

legal studies, feminist jurisprudence, law and economics ,utilitarianism , and legal

pragmatism are ut a few of them.

,ealismmo&ement, similarly belie&ed that the law is little more than putty inthe hands of ajude who is a

ble to shape the outcome of a case based on personal biases.

Since the mid1$5>7s, this theme has been echoed by the Critical Legal

Studiesmo&ement, which has applied theskeptical insihts of the realists to attack courts for renderin d

ecisions based on racial, seist, and homophobic prejudices.For eample, feminist leal scholars ha&e pill

oried the Supreme +ourts decision in Crai5 6. >oren, 9-5 E.S. $57, 56 S. +t.9owers 6.Hardwi

ck, 96% E.S. $%>, $7> S. +t. -%9$, 5- 2. =d. -d $97 !$5%>, for failin to reconi8e a fundamental constitu

tional rihtto enae in homoseual Sodom2.0he Supreme +ourts -773 decision inLawrence v+

Te9as


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Jther realists, such as ,oscoe

8ound, were more interested in usin the insihts of their mo&ement to reform the law.Pound was one of

the oriinal ad&ocates of socioloicaljurisprudence in the Enited States. /ccordin to Pound, the aim ofe

&ery lawOwhether constitutional, statutory, or caseOshould be to enhance the welfare of society. Jerem2

)entham, aleal philosopher in =nland, planted the seeds of socioloicaljurisprudence in the eihteent

h century when he arued thatthe law must seek to achie&e the reatest ood for the reatest number of

people in society. Centhams theory, known as3tilitarianism,continues to influence leal thinkers in the

Enited States.

2aw and economics is one school of thouht that traces its lineae to Centhamite jurisprudence. 0his sch

ool, also known aseconomic analysis of the law, arues thatjudes must decide cases in order to maimi

8e the wealth of society. /ccordinto law and economics eponents, such as :I+/:; PJS@=:, each pers

on in society is a rational maimi8er of his or her ownself1interest. Persons who rationally maimi8e their s

elf1interest are willin to echane somethin they &alue less forsomethin they &alue more. For eample,

e&ery day in the Enited States, people &oluntarily i&e up their time, money, andliberty to ac*uire food, pr

operty, or peace of mind. 0his school of thouht contends that the law must facilitate these&oluntary ech

anes to maimi8e the areate wealth of society.

/nother school of thouht Centham influenced is known as leal pramatism. Enlike law and economics

eponents, lealpramatists pro&ide no formula for determinin the best means to impro&e the welfare of

society. Instead, pramatistscontend that judes must merely set a oal that they hope to achie&e in resol

&in a particular leal dispute, such as thepreser&ation of societal stability, the protection of indi&idual rih

ts, or the delineation of o&ernmental powers andresponsibilities. Dudes must then draft the best court or

der to accomplish this oal. Pramatists maintain that judes mustchoose the appropriate societal oal by

weihin the &alue of competin interests presented by a lawsuit, and then usin a"rab ba" of "anecdot

e, introspection, imaination, common sense, empathy, metaphor, analoy, precedent, custom,memory, e

perience, intuition, and induction" to reach the appropriate balance !Posner $557, 63.

Pramatism, sometimes called instrumentalism, is best eemplified by Dustice olmess statement that co

urts "decidecases first, and determine the principle afterwards." 0his school of thouht is associated with r

esult1orientedjurisprudence,which focuses more on the conse*uences of ajudicial decision than on how t

he rele&ant leal principles should be applied.

The ,ealist:Formalist .ebate

0he realist1formalist dichotomy represents only half of the jurisprudential picture in the Enited States. 0he

other halfcomprises a dialoue between the positi&ist and natural1law schools of thouht. 0his dialoue re

&ol&es around the classicdebate o&er the appropriate sources of law.

Positi&ists maintain that the only appropriate sources of law are rules and principles that ha&e been epressly enacted orreconi8ed by a o&ernmental entity, like a state or federal leislature, administrati&e body,

or court of law. 0hese rules andprinciples may be properly considered law, positi&ists contend, because in

di&iduals may be held liable for disobeyin them.Positi&ists belie&e that other sources for determinin rih

t and wron, such as reliion and contemporary morality, are onlyaspirational, and may not be leitimately

consulted byjudes when renderin a decision.
http://legal-dictionary.thefreedictionary.com/Pound%2C+Roscoehttp://legal-dictionary.thefreedictionary.com/Pound%2C+Roscoehttp://legal-dictionary.thefreedictionary.com/Bentham%2C+Jeremyhttp://legal-dictionary.thefreedictionary.com/Bentham%2C+Jeremyhttp://legal-dictionary.thefreedictionary.com/Utilitarianismhttp://legal-dictionary.thefreedictionary.com/Utilitarianismhttp://legal-dictionary.thefreedictionary.com/Pound%2C+Roscoehttp://legal-dictionary.thefreedictionary.com/Pound%2C+Roscoehttp://legal-dictionary.thefreedictionary.com/Bentham%2C+Jeremyhttp://legal-dictionary.thefreedictionary.com/Bentham%2C+Jeremyhttp://legal-dictionary.thefreedictionary.com/Utilitarianism


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@atural1law proponents, or naturalists, aree that o&ernmental rules and reulations are a leitimate sou

rce of law, butassert that they are not the only source. @aturalists belie&e that the law must be informed b

y eternal principles that eistedbefore the formation of o&ernment and are independent of o&ernmental

reconition. ;ependin on the particular strain ofNatural

Law,these principles may be deri&ed from theoloy, moral philosophy, human reason, historical practice,

andindi&idual conscience.

0he dialoue between positi&ists and naturalists has a lon history. For many centuries, historians, theolo

ians, andphilosophers distinuished positi&ism from naturalism by separatin written law from unwritten l

aw. For eample, the 0en+ommandments were inscribed on stone tablets, as were many of the laws of th

e ancient )reeks. :oman =mperorJustinian !/.;. 9%-K

57, 2ocke established the idea that all p

eople are born with theinalienable riht to life, liberty, and property. 2ockes ruminations about indi&idual ri

hts that humans possess in the state ofnature prior to the creation of o&ernment foreshadowed Defferso

ns ;eclaration of Independence. In $66>, the ;eclaration ofIndependence announced the self1e&ident truth that "all men are created e*ual" and are "endowed by their +reator withcertain inalienable :ihts," incl

udin the riht to "2ife, 2iberty and the pursuit of appiness."

Coth positi&ism and naturalism ha&e had an enormous influence on how E.S. citi8ens think about law. 0h

e institution of/fricanK/mericanSlaver2, which was reconi8ed by the E.S. +onstitution and leali8ed by

leislation passed in the Southprior to the +i&il War !$%>$K>


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nts, like the +i&il War, are not leislati&eenactments, althouh they may be the product of o&ernmental p

olicy. @or do historical e&ents embody eternal principles ofmorality, althouh they may be the product of cl

ashin moral &iews. Uet, historical e&ents shape both morality and law.0hus, many positi&ists and naturali

sts find a place for historical jurisprudence in their leal philosophy.

For eample, Dustice olmes was considered a positi&ist to the etent that he belie&ed that courts should

defer toleislati&ejudment unless a particular statute clearly &iolates an epress pro&ision of the +onstit

ution. Cut he *ualified thisstance when a i&en statute "infrine's( on fundamental principles as they ha&e

been understood by the traditions of ourpeople and our law" !2J+@=: H. @=W UJ:M, $5% E.S. 95.
http://legal-dictionary.thefreedictionary.com/Legal+Historyhttp://legal-dictionary.thefreedictionary.com/Legal+Historyhttp://legal-dictionary.thefreedictionary.com/Legal+Historyhttp://legal-dictionary.thefreedictionary.com/Legal+Historyhttp://legal-dictionary.thefreedictionary.com/Legal+History


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Patterson, ;ennis #. -77-. hilosophy of Law and Le5al Theory.#alden, #ass. Clackwell.

Posner, :ichard /. -77$. Frontiers of Le5al Theory.+ambride, #ass. ar&ard Eni&. Press.

OO. $557. roblems of !urisprudence.+ambride ar&ard Eni&. Press.

Smith, Ste&en ;. -77$. "=pressi&ist Durisprudence and the ;epletion of #eanin." aryland Law 2e6iew>7 !summerK66.

Stoner, Dames. $55-. Common Law and Liberal Theory.2awrence Eni&. Press of Mansas.

0erry, ;oulas /. -77-. ";ont Foret /bout :eciprocal /ltruism +ritical :e&iew of the =&olutionary Duris

prudence#o&ement." Connecticut Law 2e6iew39 !winter 966K


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=the study of law in the philosophical sense, considerin *uestions like [what is law?G 0here are many sc

hools ofthouht, the leadin ones beinNAT3,AL LA7,8>ST0S5and ,6ALS5.

Sometimes a body of thouht is known by the name of a particular leal philosopher, e.. HA,TANand

*6LSNANjurisprudence.

?the decisions of the courts, more often seen used in this way in ci&ilian systems, since in /nlo1/merican systemsthe phrase [the common lawG has this meanin.

+ollins ;ictionary of 2aw Z W.D. Stewart, -77>

DE:ISP:E;=@+=. 0he science of the law. Cy science here, is understood that conneion of truths which

is founded onprinciples either e&ident in themsel&es, or capable of demonstration4 a collection of truths of

the same kind, arraned inmethodical order. In a more confined sense,jurisprudence is the practical scie

nce of i&in a wise interpretation to the laws,and makin a just application of them to all cases as they ar

ise. In this sense, it is the habit ofjudin the same *uestionsin the same manner, and by this course ofj

udments formin precedents. $ /yl. Pand. 3 0oull. ;r. +i&. Fr. tit. prel. s. $, n.$, $-, 554 #erl. :ep. h.t.4 $5

/mer. Durist, 3.

/ 2aw ;ictionary, /dapted to the +onstitution and 2aws of the Enited States. Cy Dohn Cou&ier. Published

$%.

,ant to than. T") for its e/istence0 Tell a friend a!u" us+ add a lin. to this page+ or *isit "#e

$e%as"er&s pa'e f!r free fun c!n"en"'

Lin. to this page1

"aceboo.

Twitter

Jurisprudence

1.The nature and scope of Jurisprudence2.The Nature of Law

3.Administration of Justice

4.The Sources of Law

A.Maxwell on Interpretation
http://legal-dictionary.thefreedictionary.com/natural+lawhttp://legal-dictionary.thefreedictionary.com/natural+lawhttp://legal-dictionary.thefreedictionary.com/positivismhttp://legal-dictionary.thefreedictionary.com/positivismhttp://legal-dictionary.thefreedictionary.com/realismhttp://legal-dictionary.thefreedictionary.com/Hartian+jurisprudencehttp://legal-dictionary.thefreedictionary.com/Hartian+jurisprudencehttp://legal-dictionary.thefreedictionary.com/Kelsinian+jurisprudencemailto:?subject=TheFreeDictionary&body=http://www.thefreedictionary.com/lookup.htmhttp://www.thefreedictionary.com/lookup.htmhttp://www.thefreedictionary.com/lookup.htmhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-nature-and-scope-of.htmlhttp://desikanoon.blogspot.in/2012/08/the-nature-of-law.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-administration-of.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-sources-of-law.htmlhttp://www.desikanoon.co.in/2014/05/maxwell-on-interpretation-of-statutes.htmlhttp://legal-dictionary.thefreedictionary.com/natural+lawhttp://legal-dictionary.thefreedictionary.com/positivismhttp://legal-dictionary.thefreedictionary.com/realismhttp://legal-dictionary.thefreedictionary.com/Hartian+jurisprudencehttp://legal-dictionary.thefreedictionary.com/Kelsinian+jurisprudencemailto:?subject=TheFreeDictionary&body=http://www.thefreedictionary.com/lookup.htmhttp://www.thefreedictionary.com/lookup.htmhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-nature-and-scope-of.htmlhttp://desikanoon.blogspot.in/2012/08/the-nature-of-law.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-administration-of.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-sources-of-law.htmlhttp://www.desikanoon.co.in/2014/05/maxwell-on-interpretation-of-statutes.html


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B.Interpretative Process

C.Ratio decidendi

D.Supreme Court onratio decidendi

E.Three Tests to determineratio decidendi

5.Legal Concepts

6.Theories of Juristic Personality

7.Schools of Jurisprudential ThoughtNa"ure and Sc!pe !f Jurisprudence

What is Jurisprudence?

"here is no universal or uniform definition of Jurisprudence since people have differentideologies and notions throughout the world# $t is a very vast su%ject#

&hen an author tals a%out political conditions of his society' it reflects that conditionof law prevailing at that time in that particular society# $t is %elieved that Romans werethe first who started to study what is law#

Jurisprudence( )atin word Jurisprudentia( *nowledge of )aw or Sill in )aw#(+ost of our law has %een taen from ,ommon )aw System#(-entham is nown as Father of Jurisprudence# Austin too his wor further#

-entham was the first one to analyse what is law# He divided his study into two parts!

.# Examination of )aw as it is( Expositorial Approach( ,ommand of Sovereign#/# Examination of )aw as it ought to %e( Censorial Approach( +orality of )aw#

However' Austin stuc to the idea that law is command of sovereign# "he structureof English )egal System remained with the formal analysis of law 0Expositorial1 andnever %ecame what it ought to %e 0,ensorial1#

J# Stone also tried to define Jurisprudence# He said that it is a lawyers extraversion#

He further said that it is a lawyer2s examination of the percept' ideas and techni3ues oflaw in the light derived from present nowledge in disciplines other than the law#

"hus' we see that there can %e no goodness or %adness in law# )aw is made %y the Stateso there could %e nothing good or %ad a%out it# Jurisprudence is nothing %ut the scienceof law#
http://www.desikanoon.co.in/2014/05/interpretative-process-hans-georg.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-ratio-decidendi.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-supreme-court-of.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-supreme-court-of.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-three-tests-to.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-three-tests-to.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-legal-concepts.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-theories-of.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-school-of-thoughts.htmlhttp://www.desikanoon.co.in/2014/05/interpretative-process-hans-georg.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-ratio-decidendi.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-supreme-court-of.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-three-tests-to.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-legal-concepts.htmlhttp://www.desikanoon.co.in/2014/05/jurisprudence-notes-theories-of.htmlhttp://desikanoon.blogspot.in/2012/08/jurisprudence-notes-school-of-thoughts.html


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Definitions by

.# Austin/# Holland4# Salmond

5# *eeton6# 7ound8# 9ias and Hughes

Austin( He said that :Science of Jurisprudence is concerned with 7ositive )aws thatis laws strictly so called# $t has nothing to do with the goodness or %adness of law#

"his has two aspects attached to it!.# !eneral Jurisprudence( $t includes such su%jects or ends of law as are common toall system#/# "articular Jurisprudence( $t is the science of any actual system of law or any

portion of it#

-asically' in essence they are same but in scope they are different#

#almonds Criticism of Austin

He said that for a concept to fall within the category of ;


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5# "his definition has %een critici=ed %y


47/166

0oscoe "ound( He descri%ed Jurisprudence as the science of lawusing theterm %lawin,uridical senseas denoting the %ody of principles recogni=ed orenforced %y pu%lic and regular tri%unals in the Administration of Justice#

Dias and $ughes( "hey %elieved Jurisprudence as any thought or writing

about law rather than a technical exposition of a branch of law itself#

Conclusion*"hus' we can safely say that Jurisprudence is the study offundamental legal principles#

#cope of Jurisprudence( After reading all the a%ove mentioned definitions' wewould find that Austin was the only one who tried to limit the scope ofjurisprudence# He tried to segregate morals and theology from the study of

jurisprudence#

However' the study of jurisprudence cannot %e circumscri%ed %ecause it includes allhuman conduct in the State and the Society#

Approaches to the study of Jurisprudence* 'here are two ways

.# Empirical( Facts to


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result is that the definition of lawis e&er chanin with the chane in society. 0he definition of law

considered satisfactory today miht be considered a narrow definition tomorrow. 0his &iew has been

put forward by Professor Meeton. e said that an attempt to establish a satisfactor2 definition of

law is to see/@ to confine 1urisprudence within a Straight Jac/et from which it is continuall2

tr2ing to escape.

Let us stud2 the views of Austin and Salmon on the Nature of Law+

/ustin said that law is the aggregate of the rules set b2 men as political superior or sovereign

to men as politicall2 sub1ect. In short, Law is the command of sovereign. It imposes a duty and

duty is backed by a sanction. e further said that there eists three elements in law

a+ Command

b+ .ut2

c+ Sanction

owe&er, Salmond defined law as the bod2 of principles recogni-ed and applied b2 the state in

the administration of 1ustice.

2et us comeback to /ustinGs definition now.

Austins Theor2 of Law or mperative Theor2 of Law

/s we know, accordin to /ustin, there are three elements in law

a+ t is a t2pe of commandb+ t is laid down b2 a political superior

c+ t is enforced b2 a sanction

e oes on to elaborate this theory. For him, :e*uests, wishes etc. are epressions of

desire. Command is also an e9pression of desire which is given b2 a political superior to a

political inferior. 0he relationship of superior and inferior consists in the power which the superior

en1o2s over the inferiorbecause the superior has ability to punish the inferior for its disobedience.

e further said that there are certain commands that are laws and there are certain commands that

are not laws. +ommands that are laws are eneral in nature. 0herefore, laws are general

commands. 2aws are like standin order in a military station which is to be obeyed by e&erybody.

e oes on to define who is a so&erein. /ccordin to him, Sovereign is a person or a bod2 or

persons whom a bul/ of politicall2 organi-ed societ2 habituall2 obe2s and who does not

himself habituall2 obe2 some other person or persons. Perfect obedience is not a re*uirement.


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He further goes on to classif2 the t2pes of lawsach person is to ha*e e4ual right to most e/tensi*e total s!stem of basic liberties compatible

with a similar s!stem for all'

9' Social and economic ine4ualities are to be arranged so that both are greatest benefit of the least

ad*antage consistent with the just sa*ing principle'

:' Attached to offices and persons open to all under fair e4ualit! for the protection of libert! itself'

a' 6a/imi#ation of libert! subsists onl! to such constraints as are essential for the protection of

libert! itself'

b' >4ualit! for all+ both in basic liberties of social life and also in distribution of all other forms of

social good' 3t is subject onl! to the e/ception that the ine4ualities ma! be permitted if the!

produce greatest possible benefit for those least well5off in gi*en scheme of ine4ualit!'

;' "air e4ualit! of opportunit! and elimination of all ine4ualities of opportunities based on birth or

wealth'

Clarence M!rris5 Laws ha*e to be good to achie*e justice' 6orris co*ers all *arieties of laws

which go*ern human conduct'Law means more than statutes and ordinances' 3t includes both adjudicated decisions of cases

and social recognition of those legal obligations that e/ist without go*ernmental promptings'

The conception of justice is inbuilt in law pro*ided law ta.es into account genuine aspirations of

people'

)oing justice through law means lawma.ers ser*e the public b! ad*ancing its genuine

aspirations which are deep seeded+ reasonable and non5e/ploitati*e' There is need for judicial

and legislati*e creati*it! for affecting the public aspirations'


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C!nf!r%i". $i"# Cul"ure0

3t is an awareness of lawma.er of his responsibilit! to the en*ironment where people e/ist and

li*e' The lawma.er must .eep in mind+ the en*ironment within which law has to e/ist and

de*elop'

6orris belie*es law to be justifies morall!+ sociall! and technicall!' (e does not assert that just

4ualit! is a necessar! condition for continuit! of law'Jer!%e 5all5 There is objecti*e and absolutel! *alid ethical *alues' )emocrac! is a part of

modern natural law because *alues incorporated in democratic law represents most stable polic!

decisions which to be implemented b! compulsion

In"e'ra"i,e Jurisprudence5 3t is a combined jurisprudence of positi*ists+ naturalists and

sociological description and an understanding of *alue components of legal order'

La$ !f Ac"i!n5 (all meant that law as social institution cannot be understood without

understanding da! to da! practices of judges+ administrators and law enforcement officials' Law

is not simpl! rules+ percepts and doctrines but is actual wor.ing of them' Therefore+ law as action

would necessaril! mean moral principles and ideas'

Karl Lle$ell.n5 8@:58D95 he recogni#ed the functional approach to law and delineated certainpositions as common to American Realist' (e summari#ed it'

8' The conception of law is in a constant state of flu/'

9' The conception of law is a means to social ends and not an end in itself so that an! part needs to

be constantl! e/amined for its purposes and for its effect and to be judged in the light of both and

of their relation to each other'

:' The conception of societ! is in flu/ and in flu/ it is t!picall! faster than the law so that

probabilit! is alwa!s gi*en that an! portion of law needs re5e/amination to determine how far it

fits the societ! it purports to ser*e'

;' "or the purpose of these en4uiries+ the jurist should loo. at what courts and officials and citi#ens

without reference to what the! ought to do' There should be a temporaril! di*orce of is and

ought for the purposes of stud!'


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The reputations of the opinion writing judge+ the principle of broad generali#ation to bring order

and sense in the precedent+ and polic! of prospecti*e conse4uence of the rule under

consideration are considerations which must be ta.en into account before e*aluating a judicial

decision'

The facts of law are facts of life and the precedence of courts whether lower or higher unit not in

the sense what the! ha*e decided but what was bothering and helping the court'Scandina,ian Realis" Sc#!!l

The approach which the! ha*e de*eloped o*er the centuries is peculiar and has *er! little

parallel with other countries' The law is Judge made law and little codification happens in these

countries'

Law can be e/plained onl! in terms of obser*able facts and the stud! of such facts which is the

science of law' Therefore+ law is a true science with an! other concern with facts and e*ents in

the realm of casualt!'

Law is nothing but the *er! life of man.ind in organi#ed groups and the conditions which ma.e

possible peaceful co5e/istence of mass of indi*iduals and social groups and the co5operation for

the other ends than mere e/istence and propagation'A:el 5a'ers"r!%5 8@D@58:5(e is considered to be the spiritual father of the Scandina*ian

Realists' (e mastered the Roman Law' (e was essentiall! a jurist of philosophical times' Legal

Science are important tools in reorgani#ation of societ! in just the same wa! as natural sciences

depict the natural phenomenon'

The rights+ duties+ propert!+ will of the state were all word pla!' Legal Philosoph! is a

sociological dispensation based on (istorical and Ps!chological Anal!sis' The idea of rights and

duties e/pressed in the imperati*e form is reall! about something which the legislator had in

mind too be actuali#ed b! means of the law'

The claims and assertions of rights and duties is basicall! what in fact a person claiming a right

can obtain from the part! who is under an obligation through the process of law' Judges while

appl!ing the legal odds+ Fit shall be so7 is nearl! a phrase which does not e/press an! .ind of idea

but ser*es as a ps!chological means of compulsion in a certain case'

3t is onl! from the ideas that logical content can be drawn' n the other hand the ideal content of

law is arri*ed at for ps!chological associati*e reasons'

The legal enactments concerning rights and duties are powers which fall outside the ph!sical

world' >*en if+ the legislator also understands wh! rights and duties are certain social state of

affairs which he aims at reali#ing+ !et the idea of rights and duties are supernatural powers and

bonds present and acti*e throughout' The essence of (agerstorm7s thesis is the e/trapolation of

the idea of rights and duties as the! are odd propositions but there content is something of

supernatural power with regard to things and persons'

The second aspect of his thesis is that rights and duties ha*e a ps!chological e/planation foundin the feelings of strength and power associated with the con*iction of possessing a right'

Therefore+ one fights better if one belie*es that one has right on one7s side'

Karl Oli,ercr!na0 (7895 Rules of law are independent imperati*es that are propositions in

imperati*e form but not issuing li.e commands from particular persons'

Law as fact5 Law is a lin. in the chain of cause and effect' The binding force of law is a realit!

merel! as an idea in human minds' The content of a rule of law loo.ing at both substanti*e and

procedural aspects ma! be defined as an idea of imaginar! action b! people+ for e'g' judges in


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imaginar! situations' The application of law consists in ta.ing these imaginar! actions as models

for actual conduct when the corresponding situations arise in real life'

Rule of Law is not command in the proper sense' 3ts innermost meaning is to range law among

the facts of actual world and the commands if there are an! are natural facts' State as an

organi#ation cannot issue commands as it is the indi*iduals who ma! issue commands' The rules

of law are independent imperati*es as the! are propositions which function independentl! of an!person who commands' Law chiefl! consists of rules about force' The rules of ci*il and criminal

are at one and at the same time+ the rules for pri*ate citi#ens as well as the use of force b! the

officials'

(e asserts that the belief that moral ideas are the primar! factors that the law is inspired b! them

and justice is represented b! rules of law is incorrect as the! are not based on facts rather are

superstitions'

Legal Language and Realit!5 (e held that the purpose of all legal enactments+ pronouncements+

contracts and other legal acts is to influence man7s beha*iour and direct them in certain wa!s'

T#e c!n"riu"i!n !f Oli,ercr!na is %ul"if!ld;

8' =! Stressing that Law as fact is something which has to be obser*ed and the legal conceptionsuch as command5dut!+ legal rights5duties are fantasies of mind'

9' The Ps!chological Pressures are the real reason for law'

:' Rules of Law are imperati*es distinct from commands'

A;B; Lunds"ed"0 (77)0(88-0 Le'al T#in6in' Re,isi"ed5 (e contends that natural justice is an

e/ternal factor for balancing the interests of the parties based on e*aluation' The entire

substratum of legal ideolog!+ the so called material law and its basis+ natural justice lac.s the

character of realit!' >*en legal rights+ legal obligations+ legal relationships and the li.e lac. such

a character' The common sense of justice is far from being able to support the material law+ on

the contrar!+ recei*es its entire bearing through the maintenance of law i'e' legal machiner!

which ta.es the common sense of justice into its ser*ice and directs it in gro*es and furrows

ad*antageous to societ! and its econom! and conse4uentl!+ legal ideolog! does not and cannot

percei*e those realities appertaining to legal machiner! but places them right on their head'

Legal conceptions such as wrongfulness+ guilt and the li.e are operati*e onl! in the subjecti*e

conscience and could not ha*e objecti*e meaning'

To contend that the defendant has *iolated a dut! was a judgment of *alue and thus+ an

e/pression of feeling' The onl! realistic significance that could be assigned to such terms was in

connection with the coerci*e legal machiner! of the state called into action for the purpose of

enforcing a contract or punishing a wrong5doer'

The idea of law as a means of achie*ing justice is chimerical' 3t is not founded on justice but on

social needs and pressures' (e promoted the method of social welfare which is a guiding moti*e

for legal acti*ities'Rylands v. Fletcher5 The court decided what the rules as to damages should be for cases in

which something dangerous had escaped from land' The fact that the court reasoned in terms of

obligation on the propert! owner was illusionar!+ superfluous and because it m!stifies+ also

harmful'

Legal acti*ities are indispensable for the e/istence of societ!' Social ,elfare as a guiding

principle of legal acti*ities are decent food+ clothing+ shelter+ all concei*able material comforts as

well as the protection of spiritual interests'


92/166

The contribution of Lundstedt in de*eloping a *alue neutral realist theor! is remar.able as it

stresses that concepts such as right and dut!+ liabilit! etc' are tools of thought used in deciding

the cases'

Alf R!ss5 8@5 The Concept of *alid law on the analog! of a game of chess being pla!ed b!

two pla!ers and an onloo.er who does not .now the rules of the game' (uman social life

ac4uires the character of communit! life from the *er! fact that a large number of indi*idualactions are rele*ant and ha*e significance on set of common conceptions of rules' The!

constitute a significant whole bearing same relation to one another as mo*e and counter mo*e'

A norm is a directi*e which stands in relation of correspondence to social facts' The norm is said

to be the directi*e in the sense of a meaning contained is a norm onl! if it corresponds to certain

social facts' The fundamental condition for an e/istence of a norm must be that it is followed b!

in the majorit! of casesG the pattern of beha*iour presented in the directi*e is followed b!

members of the societ!'

On La$ and Jus"ice0 Le'al Sanc"i!n0The! are applied as per the decisions of the courts'

Therefore+ the e/istence of a legal norm would ha*e to be deri*ed from an obser*ed regularit! in

the court7s decision' A norm ma! deri*e from a past decision and it follows from this *iew thatall norms include those of legislation+ should be *iewed as directi*es to courts' Legal rules are

rules about the e/ercise of force and as such are directed to officials'

Direc"i,es and N!r%s0(e contends that from a ps!chological point of *iew+ there is another set

of norms directed to indi*idual which are followed b! them and felt to be binding' The test of

*alidit! of law lies in the predictabilit! of decisions' So *alid law means the abstract set of

normati*e ideas which ser*es as a scheme of interpretation for the phenomenon of law in action

which again means that these norms are effecti*el! followed'

5is c!n"riu"i!n is %ul"i0di%ensi!nal;

8' (e is concerned to di*est legal *alidit! from all meta5ph!sical necessities'

9' (is thrust is that the legal norms are *alid if courts would enforce and predict them' Norms are

essentiall! addressed to courts rather than to pri*ate indi*iduals

:' The natural law philosoph! in recogni#ing the relationship between law and morals is fallacious'

Mar:is" T#e!r. !f La$

Karl %ar:5 8@8@58@@:5 "redreich >ngels5 =oth of them were the founders of the greatest social

and political mo*ement which began in 8thcentur! and flourished in 9Hthcentur! as a political

philosoph! in >astern >urope which is the erstwhile So*iet Inion and influenced all the

decoloni#ed colonies of the world and is practised in China7s Political Philosoph!'

6ar/7s *iew of state and law was co5terminus with the understanding of societ! and social

process' 6ar/7s originalit! of thought lies in the fact that he s!nthesi#ed almost entirephilosophical thought from Aristotle to (egel'

The sociological understanding of the societ! led 6ar/ to pronounce that the desired s!stem

would be a Communist Societ! based on rational planning+ co5operati*e production and e4ualit!

of distribution and most importantl!+ liberated from all forms of political and bureaucratic

hierarch!'


93/166

6ar/ condemned and rejected the state and mone! as =ourgeois concept and the proletariat has a

historical mission of emancipating the societ! as a whole' Law seems to be nothing than a

function of econom! without an! independent e/istence'

(is classification of societ! into *arious classes5

8' The capitalists

9' The ,age Labourers:' The land owners

This conflict will e*entuall! ha*e to be resol*ed' The resolution of the conflict will ta.e the

shape of a Proletarian re*olution' nce this re*olution ta.es place+ it

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