JIGL CS Executive Notes PDF - Jurisprudence

JIGL CS Executive Notes PDF – Jurisprudence

JIGL CS Executive Notes PDF

Chapter 1- Jurisprudence

JIGL CS Executive Notes PDFThere is no defined or agreed definition of Jurisprudence.

Jurisprudence in the simple terms can be defined as “General Knowledge of Law” or “study of Law”. It is the study of the science of law. The word Jurisprudence is derived from the word ‘juris’ which means law and ‘prudence’ which means knowledge.

Jurisprudence deals with the analysis of law, how and why do they emerge in a society? It is the study of theories and philosophies regarding law.

Definitions of Jurisprudence

Various schools of jurisprudence define law in their own ways, for example:

  • Analytical jurisprudence: It is a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and the modes of its operation.
  • Sociological jurisprudence: According to this theory, the very purpose for the existence of law is to furnish an answer to social problems. Therefore, some knowledge of these problems is necessary if one seeks to understand the nature of law. One can understand what a thing is only if one examines what it does.
  • Teleological school of jurisprudence: It emphasizes that a mere collection of facts concerning social life is of no avail. Law is the product of human reason and is intimately related to the notion of purpose. Hence, this school seeks to find the supreme ends which law should follow.

According to John William Salmond, jurisprudence can be further divided into three streams:

  • Civil Jurisprudence (study of the science of civil law),
    • Systematic Jurisprudence (legal exposition),
    • Historical jurisprudence (legal history) and
    • Critical jurisprudence (science of legislation)
  • International jurisprudence (study of the science of international law), and
  • Natural jurisprudence (based on the concept that law should be based on morality and ethics)

English jurist Jeremy Bentham had used ‘jurisprudence’ in two sense-

  • one as ‘law’ referring to the substance and interpretive history of a given legal norm, consisting of case laws, precedents and other legal commentary and
  • the other as ‘theory’ or the study of general theoretical questions about the nature of laws and legal systems.

He also distinguished between

  • expository jurisprudence (what the law is) and
  • censorial jurisprudence (what law ought to be)

Prof. Julius Stone defined ‘jurisprudence’ as the lawyer’s extraversion. According to him jurisprudence is the lawyer’s examination of the precepts, ideals and techniques of the law in the light derived from present knowledge in disciplines other than the law.

According to Prof. G.W. Paton, jurisprudence is founded on the attempt, not to find universal principles of law, but to construct a science which will explain the relationship between law, its concepts, and the life of society.

Jurisprudence is not primarily interested in catalouging uniformities, or in discovering rules which all nations accept. In all communities which reach a certain stage of development there springs up a social machinery which is called law and the task of jurisprudence is to study

  • the nature of law,
  • the nature of legal institutions,
  • the development of both the law and the legal institutions and their relationship to society.

JIGL CS Executive Notes PDF

Legal Theories - Jurisprudence

Legal theory is a field of jurisprudence that involves the development and analysis of the foundations of law. Two most prominent legal theories are

  • the normative legal theory (seeks to explain what the law ought to be) and
  • the positive legal theory (seeks to explain what the law is and why it is that way, and how laws affect the world).

There are other theories of law like the sociological theory, economic theory, historical theory, critical legal theory etc.

Theory of Legal Positivism
The term positivism is derived from posit/positum, meaning, “to put forward as fact”.

“Positive law” is that which is man-made, i.e., formally laid down.

According to this theory, laws are valid not because they are rooted in moral or natural law but they are enacted by legislature and accepted by society. The “merits” of a law are a separate issue: it may be a “bad law” by some standard, but if it was added to the system by a legitimate authority, it is still a law.

Natural Law Theory
Natural law theory is a legal theory that recognizes law and morality as deeply connected. Natural law theorists believe that human laws are defined by morality, and not by an authority figure, like a king or a government. According to it, an immoral rule cannot be ‘law’ even if it satisfies all the formal requirements.

Sociological Jurisprudence
It is a method which attempts to use the various social sciences to study the role of the law as a living force in society and seeks to control this force for the social betterment. Thus, law maker should take into account of social facts in making, interpretation and application of laws because the ultimate goal of laws shall be social betterment.

JIGL CS Executive Notes PDF

Prof. Herbert Lionel Adolphus Hart (H.L.A Hart)

H.L.A.Hart was an law professor. He is the author of ‘The Concept of Law’. He is a leading representative of British Positivism. According to him:

  • Laws are commands of Politically Superiors to Politically Inferiors
  • The law as it is laid down (written by authorities) should be kept separate from the law that ought to be.

Decisions can be drawn logically from predetermined written rules (without referring to social aims, policy or morality – what ought to be).

Legal theory by John Austin

John Austin was a noted British legal theorist who strongly influenced Anglo-American law by means of his analytical approach to jurisprudence and his theory of legal positivism. He wrote a book “The Province of Jurisprudence Determined”.

He was the first occupant of the chair of Jurisprudence at the University of London. Austin is known for the Command Theory of law.

Austin was a positivist, meaning that he concerned himself on what the law was instead of going into its justness or fairness. He differentiated between ‘Laws properly so called’ and ‘laws improperly so called’. Laws properly so called means laws having all essential elements for the required purpose.

Laws improperly so called means laws not having all essential elements or law which is not complete in itself but analogous (similar) to  “Laws properly so called”.

According to Austin, law is a command of sovereign which imposes a duty and the failure to fulfill the duty is met with sanctions (punishment).

Thus Law has three main features:

  1. It is a command
    • an expression of wish or desire of an intelligent person (politically superior), directing another person (politically inferior) to do or not to do something, failure to which leads to punishment.
  2. It is given by a sovereign authority
  3. It has a sanction (punishment) behind it.

Criticism of Austin’s Command Theory of law

  1. Welfare states pass a number of social legislations that does not command the people but confer rights and benefits upon them. Such laws are not covered under the command theory.
  2. According to Austin the sovereign does not have to obey anyone but the modern states have their powers limited by national and international laws and norms. For example, the Government of India cannot make laws that are violative of the provisions of the Constitution of India.
  3. Austin does not provide for judges made laws. He said that judges work under the tacit command of the sovereign but in reality judges make positive laws as well.
  4. Since the presence of sovereign is a pre-requisite for a proposition to called law, Austin did not recognize international laws as such because they are not backed by any sovereign.

JIGL CS Executive Notes PDF

Legal theory by Roscoe Pound

He was an American legal scholar and a leading jurist of 20th century. He was one of the biggest proponents of sociological jurisprudence which emphasized taking into account of social facts in making, interpretation and application of laws.

Roscoe Pound drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. According to him, the goal of laws was to build such a structure of society where the satisfaction of maximum of wants was achieved with the minimum of friction and waste.

According to Roscoe Pound, for determining the scope and the subject matter of the legal system, following five things are required to be done:

  1. Preparation of an inventory of interests and their classification.
  2. Selection of the interests which should be legally recognized.
  3. Demarcation of the limits of securing the interest so selected.
  4. Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited, and
  5. Evolution of the principles of valuation of interests.

Roscoe Pound’s classification of interests are as follows:

  1. Individual interest: These are claims or demands determined from the standpoint of individual’s life and concern. They are-
    • Interest of personality: This includes physical integrity, freedom of will, honor and reputation, privacy and freedom of conscience.
    • Interest in domestic relations: This includes relationships of parents, children, husbands and wives.
    • Interest of substance: This includes interests of property, freedom of association, freedom of industry and contract, continuity of employment, inheritance and testamentary succession.
  1. Public interest: These interests are asserted by individual from the standpoint of political life. They are:
    • Interests of the state as a juristic person: It includes integrity, freedom of action and honour of the state’s personality, claims of the politically organized society as a corporation to property acquired and held for corporate purposes.
    • Interests of the state as guardian of social interest.
  1. Social interests: It is from the point of view of protecting the general interest of all members of the society. Social interests include-
    • Social interest in the general security: This includes general safety, peace and order, general health, security of acquisition and transaction.
    • Social interest in the security of social institutions such as domestic, religious, political and economic institutions.
    • Social interest in general morals like laws dealing with prostitution, gambling, bigamy, drunkenness.
    • Social interest in the conservation of social resources like the natural and human resource.
    • Social interest in general progress: It has three aspects- economic, political and cultural.
    • Social interest in individual life: It involves self-assertion, opportunity and conditions of life. Society is interested in individual life because individuals are its building blocks.

Criticism of Roscoe Pound’s theory of law

  1. Pound said that interest pre-exist laws and the function of legal system should be to achieve a balance between competing interests but we see that a lot of interests today are a creation of laws.
  2. The theory does not provide any criteria for the evaluation of interest. It is not interests as such, but the yardstick with reference to which they are measured that matter.
  3. Pound’s theory of balancing interests can be effectuated most effectively by judges because the judges get to translate the activity involved in the cases before them in terms of interests and select the ideal with reference to which the competing interests are to be measured. Thus his theory gives more importance to judiciary in comparison to the legislature.
  4. Pound’s distinction between Public and Social interests is doubtful and even the distinction between Individual and Social Interest is of minor significance. It is the ideal with reference to which any interest is considered that matters, not so much the interest itself, still less the category in which it is placed.
  5. The recognition of a new interest is a matter of policy. The mere presence of a list of interests is, therefore, of limited assistance in helping to decide a given dispute.

JIGL CS Executive Notes PDF

Jeremy Bentham

He was the pioneer of analytical jurisprudence in Britain. Bentham’s concept of law is an imperative one. He claimed that nature has placed man under the command of two sovereigns- pain and pleasure. The function of laws should be to bring about the maximum happiness of each individual for the happiness of each will result in the happiness of all.

Bentham said that every law may be considered in eight different respects:

  1. Source of Law: The source of a law is the will of the sovereign. Sovereign may create laws or adopt laws previously issued by other sovereigns or subordinate authorities.
  2. Subject of Law: These may be persons or things.
  3. Objects of Law
  4. Extent of Law: Applicable to home land or to some specific area
  5. Aspects: Every law has ‘directive’ and a ‘sanctional’ part. Directive part concerns the aspects of the sovereign will towards an act/situation and the Sanctional part concerns the force of a law.
  6. Force/motivation to obey a law.
  7. Remedial measures provided in the law through which the judges cure the evil (compensation), stop the evil or prevent future evil.
  8. Expression of sovereign’s will

According to Bentham law should be complete and integrated. Integrality means that a law should be complete in expression, connection and design. A law is complete in expression when the actual will of the legislation has been completely expressed. A law is complete when various parts of it dealing with various aspects are well coordinated.

Criticism of Bentham’s theory of law

  1. Due to Bentham’s imperative theory of laws, all laws have to be either command or permission. He does not take proper account of laws conferring power like the power to make contracts, create title etc.
  2. Bentham did not give a fair treatment to custom as a source of law. He said customs could never be ‘complete’.
  3. Bentham’s theory did not allow for judge made laws and hoped that such laws would be gradually eliminated by having ‘complete laws’.
  4. To judge an action according to the pleasure- pain criterion is to judge it subjectively. The theory did not provide how a subjective criterion of pain and pleasure can be transmuted into an objective one.
  5. It is not always true that an increase in the happiness of a certain segment of society will lead to an increase in the overall happiness level because it might be associated with a diminution in the happiness of some other rival section of the society.

JIGL CS Executive Notes PDF

John William Salmond

The purpose of law was the deliverance of justice to the people.

He was a law professor in New Zealand who later also served as a judge of the Supreme Court of New Zealand.

Salmond claimed that the purpose of law was the deliverance of justice to the people and in this sense he differed from Bentham and Austin who went into the analysis of law as it stood without going into its purpose. But Salmond also necessitated the presence of the state for implementation of laws just like Bentham and Austin.

According to Salmond law is the body of principles which are recognized and applied by the state in the administration of justice. His other definition said that law consists of a set of rules recognized and acted on in courts of justice.

Salmond says that human experience has made it clear that some form of compulsion is required to maintain justice. It is in the nature of things to have conflict, partly real, partly apparent, between the interests of man and man, and between those of individuals and those of society at large; and men cannot be left to do what they believe is right in their own eyes.

Therefore, if a just society is to be maintained, it is necessary to add compulsion so as to complement to walk on the desired path. Hence, there exists various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint.

Salmond argued that the administration of justice was the primary task of a state and the laws were made to achieve that objective.

Criticism of Salmond’s theory

  1. Salmond’s assertion that justice is the end and law is only a medium to realize it does not always hold true because there are a number of laws that can be called ‘unjust’.
  2. The pursuit of justice is not the only purpose of law, the law of any period serves many ends and these ends themselves change with the passage of time.
  3. There is a contradiction when Salmond says that the purpose of law is the administration of justice but limits ‘jurisprudence’ to the study of the ‘first principles’ of civil law of a national legal system because justice is a universal concept, the jurisprudential analysis of law should not be constrained by national boundaries.

Legal Theory by Hans Kelsen

Hans Kelsen was an Austrian philosopher and jurist who is known for his ‘Pure Theory of Law’.

According to him, study and therories of law were impure as they were drew upon from various other fields like religion and morality to explain legal concepts.

Kelson was also a positivist. He focused his attention on what the law was and divested moral, ideal or ethical elements from law. He discarded the notion of justice as an essential element of law because many laws, though not just, may still continue as law.

According to Kelsen, ‘norm (sanction) is rules forbidding or prescribing a certain behaviour’. He saw legal order as the hierarchy of norms having sanction, and jurisprudence was the study of these norms which comprised legal order.

According to him, every norm gains its validity from some other basic norm, and the most basic norm is called Grundnorm. Grundnorm does not derive its validity from any other norm and its validity must be presupposed. For example in India, Constitution is the Grundnorm and all other norms are based on the Constitution. Unconstitutional norms are not law.

Criticism of Kelsen’s Pure Theory

  1. It is difficult to trace ‘grundnorm’ in every legal system. Also, there is no rule or yardstick to measure the effectiveness of grundnorm.
  2. Kelsen’s theory ceases to be ‘pure’ the moment one tries to analyse the grundnorm because then one will have to draw upon subjects other than law like sociology, history and morality.
  3. International law does not sit well with Kelsen’s Pure theory. He advocated a monist view of the relationship between international and municipal law and declared that the grundnorm of the international system postulated the primacy of international law. The actual experience has been to the contrary and the countries of the world mostly give primacy to municipal laws over international laws.

JIGL CS Executive Notes PDF

Leave a Comment