Jurisprudence

J u r i s p r u d e n c eShubhranshu [email protected]

Prof KennyAs a method Jurisprudence deals with concepts which regulates human conduct in accordance with various values, needs and goals of a society. These values, needs and goals vary in due course of time and with changes occurring in society. The meaning and scope of Jurisprudence thus also changes.According to Prof. Kenny, Definitions belong rather to the end of our knowledge than to the beginning of it.

AustinScience of law which concerns with analysis of concepts or its underlying principles.

Theoretical Or General Jurisprudence

Definitions

AllenExistence of general Jurisprudence is possible as there are certain elements inherent in conception of law viz. dispensation of justice, preservation of order, determination of rights, ownership, possession etc.

GreyAccepts but prefers term “comparative ” for “General”

SalmondJurisprudence generalis is not the study of legal system in general but the study of general and fundamental principles of a particular legal system.

Salmond repudiates general jurisprudence and held “ Particular is the only kind.” For him Jurisprudence is the science of civil law.


Historical School JuristsDenied general Jurisprudence. Law like language, evolution conditioned by local factors which vary from place to place and hence only particular Jurisprudence.

HollandFor him, jurisprudence is formal science of positive law.Formal science is that which deals with the relations which are regulated by legal rules than with the rules themselves which regulate these relations. Only General. Example Geology-- study of composition and structure of earth. If science it must be general.

SalmondJurisprudence generalis is not the study of legal system in general but the study of general and fundamental principles of a particular legal system.

Salmond repudiates general jurisprudence and held “ Particular is the only kind.” For him Jurisprudence is the science of civil law.


Austinian school OR Imperative school

• Treats law as command of sovereign

• Dias termed this approach as positivism and the subject matter of the approach positive law.

• Gained prominence in 19th century.

• Reason was the distinctive feature of 18th century juristic thought.

• Kant, Rousseu, Locke advocated reason as the last guide and judge in every thing and sphere.

• Benthem breaks away from Natural law and emphasized utility.

• Benthem propounds concept of expository jurisprudence which deals with law as it is.

• Austin takes over the subject of expository Jurisprudence and subjected it to detailed, thorough and searching analysis.

• His approach was secular, positive and impirical.

• Austin propounded theory of positive law.

Analytical School

Analytical SchoolFactors of emergence

Impact of Natural Law

Reaction against airy assumptions of Natural Law school.Principles of Natural law school were considered as supreme and according to some writers could override man made law.Impact of progress in physical sciences.

Physical scientists adopted the a posteriori approach from particular to general and reject the priori approach from general to particular approach of Natural law.

Political factor: To justify power of ruling Monarch against that of other agencies viz. feudal lords, pope etc.

Analytical SchoolBenthem

• Can be said to be the founder of this school

• Limits of Jurisprudence defined 1872, published in 1945.

• He divided jurisprudence in to Expository (as it is) and censorial (ought to be).

• Censorial indicative of Natural Law.

• Talked of utility as a governing factor.

• Law defined as assemblage of sign

• declarative of volition, adopted by sovereign in a state.• Sovereign = any person or assemblage of persons to whose will a whole political

community obey.

• Political community = no of persons in habit of paying obedience to a person or

assembly of person, of a known and certain description.

Analytical SchoolExponentsIn 1832 John Austin’s lectures published under the title of " Province of Jurisprudence determined".This was the first systematic and comprehensive treatment of subject which expounded analytical positive approach.Austin is known as father of Analytical school.According to him analysis was the principal method of study in Jurisprudence.He built this foundation only on expository Jurisprudence.To him Jurisprudence meant formal analysis of legal conceptions.

Jurisprudence i. Generalii. ParticularGeneral Jurisprudence Science concerned with expression of Principal, notions and distinctions common to any system of Law.Particular JurisprudenceScience of any actual system of law or of any portion of it.

Analytical SchoolExponents

Austin

Positive law is out come of state and sovereign and is different from positive morality. Positive law is set by political superior

Positive morality is not the offspring of state and sovereign.

Science of Jurisprudence is only concerned with positive laws without regard to goodness or badness.

Analysis of positive law by operation of logic on law without consideration to history of ethical significance.


Austin ignored social factors also in his analysis of law. He emphasized that by operation of logic it is possible to find out universal element in law. E.g. notions found common in all legal systems.

Austin’s approach, analysis and deduction are applicable where constitution is based on parliamentary sovereignty. In India and America it does not have that relevance.

Holland differs from Austin in interpretation of law. For him laws are not command of sovereign rather laws are rules of external human actions enforced by sovereign political authority.


Salmond

According to him there is nothing like universal element in law, because it is the science of law of land and thus conditioned by local factors.Salmond deals with law as it is.

Law is to be defined not in terms of sovereign but in terms of courts. Law emanates from courts only. No of jurists criticized Salmond on this point

He did not agree with Austin that analysis of law can be done with the help of logic alone. He points out that study of Jurisprudence which ignore ethical and historical aspects is a barren study.

Analytical SchoolBasic Tenets

i. Distinction between is and ought; law and moral

ii. Concentration of positive law

iii. Law in terms of and product of state.

iv. Logic is the main instrument

v. Typical law is statute

Historical SchoolIntroduction

Relations to legal history at large.

Deals with general principles governing origin and development of law and with influences that affect law

Deals in second place with origin and development of those legal conceptions and principles which are dealt differently in analytical Jurisprudence.

Historical Jurisprudence is the history of first principles and conceptions of legal systems.

According to Prof Dias “Historical school emerged as a reaction against Natural law theory.”


MontesquieuLaws are creations of climate, local situations, accident or imposture.His suggestion that law should answer the needs of the time and place was a step in the direction of new thinking.HugoLaw like language and manners of people forms and develops itself as suited to circumstances. The essence of law is its acceptance, regulation and observance by people.BurkeLaw could only be the result of gradual and organic growth.HerderEvery nation possess its own individual character and qualities and none is intrinsically superior to other. Any attempt to bridge this numerous manifestations under general command of universal natural law based on reason could result in imposing a crippling uniformity.

Historical SchoolOrigin Originated in Germany due to political changes brought about by Napoleon wars.

A need for codification of law in Germany was felt on the basis of code Napoleon which remained in force in many parts of Germany during the period of French domination.

Savigny opposed Thaibaut who was a supporter of codification.

Savigny had knowledge of defects of contemporary codes . In his views codes were not suitable instrument for development of German law. His contention was that law is a product of lives of people and manifestation of their spirits.

The source of law is general consciousness of people and can not be borrowed from outside.


F.K.Von Savigny

Founder of Historical school Law is a product of times the germs of which like the germs of state , exist in the

nature of man being made for society and which develop from this germ various forms, according to environing influences which play upon it.

His works include

i. Law of possessionii. The History of Roman law in middle agesiii. System of modern lawiv. On the vocation of our time for legislation and Jurisprudence.

"Law grows with growth and strengthens with strength of the people and finally dies away as the nation loses its nationality.

F.K.Von Savigny

The sum of this theory is that all law is first developed by custom and popular faith, next by Jurisprudence--- every where by internal silently operating powers, not by arbitrary will of law given.

According to Savigny nature of any particular system of law was a reflection of the spirit of people who evolved it. Volksgeist by Puschta

All law is manifestation of common consciousness Broad principles of system are to be found in the spirit of people and they manifest

themselves in customary law. Customs not only precede legislation but follow it. Legislation should always confirm to popular consciousness.



F.K.Von Savigny

Any law making should follow historical development.

Law is not of universal application.

The Volksgeist can not be criticized for what it is. It is the standard by which laws, which are the conscious product of will as distinct from popular conviction , are to be judged.

The Volksgeist was a unique, ultimate and often mystical reality which was linked to the biological heritage of people.

All law originated in custom and only much later was created by juristic activity.

Historical SchoolCriticism

Dias Idea of Volksgeist is acceptable in a limited way but Savigny extrapolated it into a

sweeping universal. He treated it as a discoverable thing, but even in small groups people hold different views on different issues and the spirit does not exist.

Transplanting Roman law in alien climate of Europe after 1000 years is inconsistent with Savigny’s idea of Volksgeist.

Law some times used as an instrument to change the existing ideas. In 1871 Law in context of accidents changed ideas pertaining to Railways and Factories as the law were considered to relate to unions and industries.

Improved rules of law some times emerge as a result of conflicting and violent struggle between conflicting interests.

Far from law being reflection of Volksgeist, the Volksgeist had been shaped by law.

Importance of study Jurisprudence

Lawyers bring theory and life in focus

Teachers learn to think rather than just know

Students cultivating original ideas

Foundation of all legal studies

Fundamental Principles

Study of JurisprudenceMeanings

PattersonBody of ordered knowledge deals with particular species of law

Julius StoneLawyers Extraversion

Ogden & RichardAny thought or writing about law

Dias & HughesAbout concept of law, social functions or purposes of law

Kelsen Study of hierarchy of norms. The validity of each norm depending on that of a superior norm

GC LeeScience which endeavors to ascertain.

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Jurisprudence