JURISPRUDENCE
- Jurisprudence is derived from Latin word ‘juris-prudentia’- knowledge of law or skill in law.
- Study of jurisprudence first started by Romans.
- Jeremy Bentham(1748-1832) is known as father of modern jurisprudence.
Jurisprudence is basically the theoretical aspect of the word law. In jurisprudence, we do not deal with the practically applicable pieces of statutory law; rather we try to understand the very essence of law and its various dimensions. Like in the other subjects, for example, geography, we have geographical thought as a subject of study, similarly, in law we have got "legal thought" which is called "jurisprudence". The basic questions that we try to answer in jurisprudence are - What is law?, Why should it exist?. What should be the nature and purpose of the law?, What are rights and duties and what should be their nature?, What is ownership and possession and why does law have to protect them?, etc.
Jurisprudence refers to a certain type of enquiry or investigation into law, an enquiry of a general nature the purpose of which is to bring out the underlying and essential principles of law and legal system while a typical legal subject like contract involves the study of legal rules and principles derived from authoritative sources and its application to practical situation
Thus while the law of contract deals with right of one party to a contract against the other contracting party, in jurisprudence the emphasis is on the study of nature and underlying meaning of term 'right' and different kinds of legal rights.
As observed by Salmond "in jurisprudence we are not concerned to derive rules from authority and apply them to problems, we are concerned rather to reflect on nature of legal rules and underlying meaning of legal concepts and in the essential features of legal system. Thus whereas in law we look for the rule relevant to the given situation, in jurisprudence we ask for what is for a rule to be a legal-rule and what distinguishes law from morality, etiquette and other related phenomenon.
Value of jurisprudence
In general, jurisprudence cannot be applied to practical situations. The question arises: What possible value can there be in an abstract subject like jurisprudence?
Salmond in his "Treaties on jurisprudence" has mentioned the following uses of jurisprudence:
1) The value of jurisprudence lies in its own intrinsic interest. While fascination of a subject however is no guarantee of its Worth, researches into jurisprudence may well have an impact on the whole of legal, political and social thought.
2) Just as in science and Maths, progress has been largely due-to-increasing generalisation, in law too; generality can mean improvement. One of the tasks of jurisprudence is to construct and explain organizing concept serving to make law's complexities more manageable and rational.
3) Jurisprudence has an educational value. Logical analysis of legal concepts and study of jurisprudence can assist combing the vice of formalism. The excessive emphasis on legal form ather than social realities and making one more aware of social function of law. jurisprudence an influence and teach a lawyer to look around him and to create an awareness that answers to new legal problems must be found by consideration of prevent social needs and realities than. in wisdom of the past.
4) Jurisprudence gives shape to practical law. It helps in shaping the practical law in a form so that it can serve the society,
Definitions of jurisprudence
Ulpian (Roman jurist): "Juris prudentia est divinarum, atque humanarum rerum notitia, justic atque injustic scientia" ie Jurisprudence is the knowledge of things divine and human the science of right and wrong. Paulus (Roman jurist): The law is not to be deduced from the rule but the rule from the law.
Hobbes: In 'Elemental philosophiae deals with the nature of national law, political government and sovereignty.
Black Stone: 'Jurisprudence is the study of science of law'.
Wurzel: "Jurisprudence was the first of social science to be born."
Bentham (1748-1832): Some important points about Bentham:
- He distinguished between examinations of the law as it is (expositional) and as it ought to be (censorial) jurisprudence.
- His theory is called a "utilitarian individualism" - He was an individualist. He criticised the method of law making corruption and inefficiency of the administration of justice and restraints on the individual liberty. He said that the function of law is to emancipate the individual from the bondage and restraint upon his freedom. Once the individual was made free he himself shall be looking after his welfare. In this way he was a supporter of laissez faire principle of economics. He pleaded for codification and condemned judge- made law and customs etc. He was a utilitarian also. According to him, the end of legislation is the greatest happiness of the greatest number. He defined utility as the 'property or tendency of a thing to prevent some evil or to procure some good'.
- The theory of pleasure and pain. The purpose of law is to bring pleasure and avoid pain.
SCHOOLS OF JURISPRUDENCE
Different approaches to the treatment of jurisprudence are represented by its various
schools of thoughts. Salmond preferred three schools:
- Analytical (dogmatic).
- Historical School.
- Ethical (legal exposition) School.
1.Analytical/ Imperative School (Positivism)
The analytical school is ‘positive’ in its approach to the legal problems in the society. It concentrates on things as they are, not as they ought to be. The main concern of the positivists is ‘law that is actually found ,positum, and not the ideal law. The most important legal sources are Legislation, Judicial precedents and Customary law.
This school, dominant in England, lays down the essential elements that go to make up the whole fabric of law e.g. State sovereignty and the administration of justice. The motto of Analytical school is Ubi civitas ibi lex i.e. where there is State, there will not be anarchy; State is a necessary Evil. The main proponents of this school are: Bentham, Holland, Austin, Salmond, etc.
(a) Bentham's Concept of Law
Bentham (1748-1832), the founder of Positivism, should be considered the “Father of analytical positivism”, and not Austin as it is commonly believed (In fact, Austin owes much to Bentham). He was a champion of codified law (legislation). Bentham’s work was intended to provide the indispensable introduction of a civil code {Paton).Bentham distinguished expositorial jurisprudence (i.e. what the law is) from censorial jurisprudence (i.e. what the law ought to be). His concept of law is imperative one i.e. “law is assemblage of signs, declarations of volition conceived or adopted by sovereign in a State”. While supporting the economic principle of Laissez faire (minimum interference of State in the economic activities of individuals), he propounded the principle of utilitarianism: ‘The proper end of every law is the promotion of the greatest happiness of the greatest number.’ He defined ‘utility’ as ‘the property or tendency of a thing to prevent some evil (‘pain’) or procure some good (‘pleasure’).’
Like Austin's theory, Bentham advocated an imperative theory of law in which the key concepts are those of sovereignty and command. Bentham accepts divided and partial sovereignty. He discussed the legal restrictions that may be imposed upon the sovereign power To quote him: "The business of the ordinary sort of law is to prescribe to the people what they shall do: the business of this transcendent class of laws is to prescribe to the sovereign what he shall do." Bentham believes a sovereign may bind his successors.
Bentham thought that a sovereign's command would be law even if supported only by religious or moral sanctions.
The model of Austin was the criminal statute Bentham has undertaken "rational reconstruction" which is wider than the model of Austin. According to Bentham, the individuality of a law "results from the integrality and the unity of it laid together". The pur- pose of individuation "is to ascertain what a portion of legislative matter must amount to in order on the one hand not to contain less, on the other hand not to contain more than one whole law". A law should be complete in expression, in "connection" and in "design".
Bentham laid the basis for a new relativist tendency in jurisprudence called sociological jurisprudence He related law to definite social purposes and a balance of interests.
(b) John Austin (1790-1859)
John Austin was born in 1790. He joined the Army at the age of 16 and served as a lieutenant in Malta and Sicily up to 1812. He resigned his commission in the army and started studying law. In 1818, he was called to the Bar. For seven years, he practised law but without success. In 1819, he married Sarah Taylor, a woman of great intelligence, energy and beauty. After their marriage, the Austin's became neighbours of Bentham and the Mills in London.
Austin is called the father of English jurisprudence and the founder of the Analytical School. However, the title of Analytical School is misleading as it suggests that analysis is the exclusive property of this school instead of being the universal method of jurisprudence. Austin's Theory of Law: Austin's most important contribution to legal theory was his substitution of the command of the sovereign for any ideal of justice in the definition of law. He defined law as "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him". According to Austin, positive law has four elements viz., command, sanction, duty and sovereignty. In the words of Austin: "Laws properly so called are a species of commands. Being a command, every law properly so called flows from a determinate source. Whenever a command is expressed or intimated, one party signifies a wish that another shall do or forbear and the latter is obnoxious to an evil which the former intends to inflict in case the wish is disregarded. Every sanction properly so called is an eventual evil annexed to a command. Every duty properly so called supposes a command by which it is created and duty properly to called is obnoxious to evils of the kind. The science of Jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard to their goodness or badness.
2.Historical School of Jurisprudence
The Historical School of Jurisprudence emphasizes that law is not artificially created but evolves organically through society's customs, traditions, and experiences. This school views law as a continuous historical development rather than the product of arbitrary legislative action. It suggests that law develops in response to social, economic, and cultural needs, growing alongside society.
The proponents of this school reject the idea that law can be created by the mere will of a sovereign or a legislator. Instead, they argue that law is deeply rooted in the collective consciousness of the people (Volksgeist) and reflects their common spirit and values.
Key Features of the Historical School:
1. Law is an evolutionary process: Law develops gradually through the customs, traditions, and habits of people.
2. Volksgeist (Spirit of the People): Law is a reflection of the unique spirit or collective consciousness of a particular society.
3. Customs as a source of law: Customs are considered the original source of law, and legislations merely formalize them.
4. Organic Growth: Law evolves naturally rather than being imposed artificially by rulers or lawmakers.
5. Close connection with society: Law and society are interdependent, and changes in society influence changes in law.
a) Frederick Karl von Savigny (1779–1861)
Savigny is regarded as the founder of the Historical School of Jurisprudence. He was a German jurist and one of the most influential legal philosophers of the 19th century.
Key Ideas of Savigny:
1. Volksgeist (Spirit of the People):
Savigny introduced the concept of Volksgeist, which means the 'spirit of the people.' He argued that law is a manifestation of the spirit of the people and cannot be arbitrarily imposed by rulers or legislators. Each society has its unique legal system because every society has a unique Volksgeist.
2. Law Evolves Organically:
Law is not a creation of the State but evolves from the customs, traditions, and shared beliefs of people. It grows alongside the society it serves and cannot be imposed externally.
3. Critique of Codification:
Savigny opposed the premature codification of laws, especially in Germany, as he believed that codification could not capture the spirit of the people. He argued that codification should occur only when the law has matured and is in harmony with the Volksgeist.
4. Custom as the True Source of Law:
For Savigny, customs and traditions are the primary sources of law. Legislation and codification should only formalize these customs and not attempt to replace them.
Example:
The German Civil Code (Bürgerliches Gesetzbuch - BGB) was drafted later in 1900, long after Savigny’s death, reflecting his belief that premature codification would disrupt the natural evolution of law.
b) Sir Henry Sumner Maine (1822–1888)
Sir Henry Maine was a British jurist and historian known for his work, "Ancient Law" (1861). He expanded the ideas of the Historical School and examined the historical development of legal institutions.
Key Ideas of Maine:
1. Law Progresses from Status to Contract:
Maine’s most famous theory is that societies evolve from 'Status' to 'Contract'. In primitive societies, individual rights and obligations were determined by status (e.g., caste, family, or social hierarchy). In modern societies, relationships are based on contractual agreements, allowing individuals to freely negotiate their rights and obligations.
In ancient societies, a son was obligated to follow the family profession because of his status. In modern times, individuals are free to choose their profession based on personal agreements (contracts).
2. Static and Progressive Societies:
Maine divided societies into Static Societies (those bound by rigid customs and traditions) and Progressive Societies (those evolving through reasoning and contracts). Static societies rely heavily on customs, while progressive societies rely on legal institutions and contracts.
3. Legal Fictions, Equity, and Legislation:
Maine emphasized the role of Legal Fictions, Equity, and Legislation in legal development.
Legal Fictions: Adjusting outdated laws without openly changing them. (e.g., Adoption in Roman law to ensure lineage continuity).
Equity: Providing remedies where the rigid application of law creates injustice.
Legislation: Formal law-making became prominent in progressive societies.
4. Patriarchal Theory:
Maine argued that early societies were patriarchal in nature, with the family being the central unit of society.The father or patriarch had absolute authority over family members.
In ancient Hindu law, the head of the family (Karta) had significant powers over family affairs, reflecting Maine’s theory of patriarchal society.
Comparison Between Savigny and Maine:
The Historical School of Jurisprudence highlights the organic growth of law as an expression of society's collective spirit. Savigny emphasized the spirit of the people (Volksgeist) as the foundation of law, while Maine examined the evolution of legal systems through historical analysis, focusing on the transition from status to contract. Both thinkers significantly influenced modern legal thought and contributed to understanding the interplay between law, society, and history.
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