Jurisprudence ch.01 introduction

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Introduction to Jurisprudence

PrudentiaPrudentia

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Literal Meaning:

JurisJuris

JurisprudenceDerived from

Two Latin Words

• Law

• Wisdom,• Knowledge• Philosophy

, OR• Science

What is Jurisprudence?An Introduction

Jurisprudence

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Literal Meaning:

means


Hence

Wisdom of Law

Knowledge of Law

Philosophy of Law

O R

O R

O R

Science of Law

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Key Terms in Understanding Definition of Jurisprudence:

Science

Philosophy

Law

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Science i Knowledge gained through a systematic study, is called science

i Systematic Study means, a Study consisted of;

Deduction

Experiment

Hypothesis

Observation

What is JurisprudenceAn Introduction

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Philosophyi Derived from two Latin words

PHILOSOPHY

Philo

Means ‘love’

Sophy

Means Wisdom or knowledge

i Knowledge gained through the application of mind

i Examining the basic concepts such as ‘truth’, ‘existence’ ‘soul’, ‘hereinafter life’ etc.


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Lawi A set of rules and regulations that

regulates human behaviour in societies

i It determines human conduct and regulates it.

i The subject-matter of Jurisprudence is Law

i There are different types of Law and the jurists are debating as to which type is the true subject-matter of Jurisprudence


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i This Typology of Law is based on the fact that from where Law comes or what is the ultimate source of its recognition (nature).

i Hence, it is a broad typology of law

TYPOLOGY OF LAW

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Natural Law. Norms. Reason based

God-made LawTypes of

LawMan-made Law

Physical Law. Chemistry. Physics etc

Divine Law. Religious Law. Scriptures

Positive Law

Moral/Ethical Law

Abstract Law. Fundamental Principles. General Notions

Law as it OUGHT to be

Philosophical Law

Law as it is

Analytical Law

Law of Nature

Concrete Law. Real Law/ Applicable Law. Statutes, Acts, Decisions


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Definition of Jurisprudence

i There is no uniform definition of Jurisprudence

Reason:

h The subject-matter of Jurisprudence is Law

h But there is no uniform definition of law.


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Definition By Eminent Jurists:

Ulpian:

i Classical Concept

“The observation of things human and divine, the knowledge of just and unjust.”

A celebrated Roman Jurist

h Criticism: Being meta-physical in nature its value cannot be evaluated.

h The first formal definition of jurisprudence.h In the contemporaneous socio-political setups he had given

the best definition.


(170 AD - 228 AD)

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John Austin:

“Jurisprudence is the Philosophy of Positive Law.”

h Criticism: The terms ‘Philosophy’ and ‘Positive Law’ are misleading

h He lived in circumstances when Europe was witnessing changes especially in Politics.

h He separated the meta-physical controversy from legal enterprise

Definition By Eminent Jurists:i Classical Concept


(1790 AD - 1859 AD)

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Thomas Erskine Holland:

“Jurisprudence is the formal science of Positive Law.”

h The criticism on the term ‘Philosophy’ of Austin definition led Holland to present this definition

h It substituted ‘Philosophy’ in Austin definition by ‘Formal Science’.



h ‘Formal’ means fundamental legal principles

(1835 AD - 1926 AD)

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Salmond:

“The science of the first principles of civil law.”

h Science: A systematic intellectual inquiry

h Civil law: The whole corpus of law applicable in a State

h By term ‘Law’ Salmond means ‘Positive Law’

h ‘First Principles’: Fundamental principles



h Law: As Administered by Courts

(1862 AD - 1924 AD)

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Keeton:

“Jurisprudence is the study of the systematic arrangement of the general principles of law.”



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Gray:

“The science of law, the statement and systematic arrangement of the rules followed by the Courts and the

principles involved in those rules.”



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Dean Roscoe pound

“The science of social engineering”

Definition By Eminent Jurists:i Modern Conception


h An idea of giving the most complete security and effect to the whole scheme of human demands and desire which are pressing for recognition, with the least sacrifice, least friction and least waste.

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Classification of Jurisprudence


i Jurisprudence was classified by:

Jeremy Bentham

John Austin

Salmond

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Bentham

Censorial Jurisprudence

Expositorial JurisprudencePhilosophical

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Censorial Jurisprudence

ExpositorialJurisprudence

Study of Law ‘as it ought to be’

Study of Law ‘as it is’

Bentham’s Classification

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General Jurisprudence

Particular Jurisprudence

Study of Ethical Law (Law ‘as it ought to be)

The study of Positive Law (Law ‘as it is)

Austin’s Classification

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Analytical Jurisprudence

Study of Positive Law (Law ‘as it is)

The study of Ethical Law (Law ‘as it ought to be)

Salmond Classification

Historical Jurisprudence

Philosophical Jurisprudence

The study of Historical Development of Law

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Scope of Jurisprudencei According to the most celebrated

view:


Jurisprudence studies Law

Study is analytical/scientific

Law is man-made/positive

It is not discussing the content but the essence of law

But recently again the jurists like Roscoe Pound and Julius Stone seem to enhance the scope of Jurisprudence

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Significance or Utility of Jurisprudence


i Being an abstract and theoretical science, jurisprudence has a little practical value

Practical value: Master of a Legal System

The eye of Law

The key to legal understanding

Sharpens argumentative capacity

Educational value

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Psychology

Economics

Politics

Social Science

History

EthicsSociology

Jurisprudence

Relation of Jurisprudence with other Social Science

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What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science

Jurisprudence

– Studies Law

– Law is the set of rules regulating the conduct of human beings living in a society

Politics

– Study of the Government

– Government means the institution to administer the affairs of the society

Both are contemplating on the society

Relation

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Jurisprudence

– Law is regulating the external conduct of human beings

Psychology

– Study of internal conduct of human beings

– In other words it analyses the mental state of a person at a given movement

Relation

Both are contemplating

the mental state of human

beings– But external conduct is depending on internal conduct (e.g. intention, malice etc.)

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Jurisprudence– Studies Law

– Deals with framed rules

Economics

– Study of wealth

– Concentration of wealth in a society brings prosperity for its members

Relation

Both are contemplating on the social

and economic well-being of

people

– All legal concepts are social oriented

– Not possible without having sound legal system

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Jurisprudence

– Studies Law

– Legal Concepts has arisen in a particular period and then developed through ages

History

– Study of the past events

– Provides historical background behind legal concepts

Relation

Both contemplates history from

different perspectives

Historical Jurisprudence

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Jurisprudence

– Studies Law

– All legal concepts are social oriented

Sociology

– Study of society

– Looks into the social significance of law in society

Relation

Both contemplates

on social structure from

different angles Sociological

Jurisprudence

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Jurisprudence

– Studies Law

– Law aims at upgrading the social conditions

Social Work

– The study as to welfare of the society

– Through counseling services, health clinics, recreation halls etc.

Relation

Both contemplates

on up gradation of social

conditions of the community

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Jurisprudence

– Studies Law

– Law aims at the positive behaviour of human beings

Ethics

– Science of human conduct

– What should be human behaviour and an ideal human behaviour

Relation

Both contemplates

on human conduct from

different angles Ethical

Jurisprudence– ‘Is’ conduct

– ‘Ought’ conduct

End of chapter # 01

Jurisprudence ch.01 introduction

Education

Transcript of Jurisprudence ch.01 introduction