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Jurisprudence, the modern trend in legal analytical studies

Jino M Kurian

Jurisprudence is a branch of studies which systematically researches law. A jurist is a


researcher who detects responses of a society and reveals its legal impacts to the awakened
world. He critically analyses conflicts between society and law and proposes remedies for it.
This character of this branch makes it different from other social researches.
Law prevails in society by the consent of people. Individuals consent to follow law for
their mutual existence. It is a moot question whether individual or society more influences the
legislature in the process of legislation. Occasionally, the binding effect of law causes
inconsistency among the people of the society. A jurist can analyze the implications of a policy
from different perspectives of the society.
Jeremy Bentham, the first exponent of Utilitarianism2, teaches law as morality. In his
opinion, moral values are mastered by pain and pleasure. Pleasure promotes happiness of
majority. A legislation, which increases pain of a society, cannot be encouraged in utilitarian
views. JS Mill, also a follower of the same school states that morality is right3. Prevailing
legislations, of the time, claim that they are legislated for the common good of the society.
Utilitarian Jurists, especially Jeremy Bentham, introduced a system of calculation of pain and
pleasure of the society.4 Indias recent economic policy to permit foreign direct investment in
multi branded retail sector can be analyzed on a juristic view5.
It is evident that there are a number of non branded retailers in Indias retail sector. More
number of consumers in India depends on non-branded retailers than branded. Branded retailers
are very few in number. If foreign direct investment is permitted in multi brand retail sector, then
1

He is a first year LL.M (Corporate Laws) student of NALSAR University of Law, Hyderabad, India. Contacted at
jinomkurian@yahoo.co.in.
2
Utilitatrian School is evolved in the 18 th Century. Jeremy Bentham, John Austin, Hobbes, JS Mill are proponents
of this school. Jeremy Benthams Utilitarianism followed the concept of maximum happiness to maximum number.
3
JSMills thoughts can be considered as in between utilitarian and libertarian views. He is supporting pleasure of
more number while some liberty of an individual also. In his opinion, morality is right and right is which increases
happiness and deprives pain.
4
It is Hedonistic Calculus. Seven units of this calculus are intensity, duration, certainty, propinquity, fecundity,
purity and extent.
5
It can be explained on the basis of hedonistic calculus also.

Electronic copy available at: http://ssrn.com/abstract=2202030

it can support only those retailers who sell branded products. It will adversely affect non-branded
retailers. From a utilitarian perspective, the introduction of FDI in multi branded retail sector
may result in a scenario where majority suffering for the sake of a minority. Eventually it will
result in an economic fall down of the whole society.
Libertarians advocate individual freedom and liberty. In their opinion, law should not
curtail liberty of an individual. Individual should have the right to decide what he wants or what
he doesnt want.

When liberty is absolute, people can do whatever they like. They can

propagate, practice and profess their ideas without any interventions. On the other hand they may
use others as a means to attain this. Critically discussed topics like euthanasia, organ harvesting,
change of the concept of marital relation to living relationship, homosexual relations etc can be
justified on the basis of libertarian view.
Immanuel Kants 6 thoughts on liberty have slight differences. He prescribes law with
liberty but which is not absolute. It has to undergo certain conditions. 7 He held that no one shall
use others as a means for their end. He explains that even a person couldnt use himself as a
means to fulfill his own desires. He gave emphasis to universalization of laws. This means that if
a law is uniformly applicable to all circumstances, then it is justifiable. He teaches that no one
should do an act by the influence of an external pressure. 8 Thrust to obey law should come from
inside not from outside.9
General belief among the academicians about jurisprudence is that they are only
dogmatic kind of principles which cannot be implemented. In factual circumstance,
jurisprudence is the most valuable promise of law for the society. Each and every impulses of the
society would be reflected in jurisprudential thoughts. A jurist can easily explain the different
perspectives of a policy forwarded by a government. Recommendations of jurists should be
analyzed and experimented carefully then the government would be able to initiate more
progress in the society. Then the legislatures can serve up their ultimate aim to the people.
Jurisprudential analysis can only settle the hard questions in legal social problems exist in a
society. Now this is the time encourage budding jurists of the society. The time urge to do it.
6

Immanuel Kant is a philosopher, whose thoughts are different from Utilitarian and libertarian view.
Universalisation and categorical imperative are the two tests to determine a just law.
8
categorical imperative in his theory.
9
i.e., I should obey law not because I fear punishment but as it is as my desire
7

Electronic copy available at: http://ssrn.com/abstract=2202030