JURISPRUDENCE

CHAPTER ONE
 Definition of Jurisprudence
• Literally [Latin] –knowledge of
law/Skill in law
• Technically-no universal or
uniform definition (jurists have
different ideologies and
notions about jurisprudence)
 Definition….examples
• Ulpian-the knowledge of things; divine and
human, the knowledge of the just and unjust.
• J. Stone-the lawyers` examination of the
precepts, ideals and techniques of the law in
the light derived from present knowledge in
disciplines other than law.
• Schumpeter-the sum total of techniques of
legal reasoning and of the general principles
to be applied to individual cases.
• Dias and Hudges-any thought or writing about
law rather than a technical exposition of a branch
of law itself.
• Lloyd holds that jurisprudence involves the study
of theoretical questions about the nature of lawa
and legal systems, about the relationship of law
to justice and morality and about the social
nature of law
• Conclusion-jurisprudence is a study that concerns
with disquisitions about law and its intricacies.
 Scope of Jurisprudence
• Jurisprudence is a study about law. So,
Jurisprudence deals with any thing related to law.
• Thus, its scope is wide, trenching in the fields of
history, psychology, philosophy, economics,
anthropology, politics, etc…as well as the
precepts, ideals, and techniques of the law in
light of the knowledge of social sciences.
• Wortley- jurisprudence is the knowledge of law in
its various form and manifestations.
 Scope…
• Bodenheimer-the subject matter of
jurisprudence is a very broad one,
encompassing the philosophical,
sociology, historical, as well as
analytical components of legal
theory.
• Karl Lewellyn-jurisprudence is as big
as law and bigger
 Scope…

• Conclusion-Jurisprudence is
very wide in scope
encompassing every branch of
knowledge relating to law.
 Utility of the Study
• Since Jurisprudence is a vast subject, it
broadens the knowledge of law and would
make its pursuers learned and wise.
• Since the study of jurisprudence discusses and
examines the precepts, the ideas, the
techniques, values, standards of the law itself-
a person cannot understand the law without
understanding jurisprudence.
• This subject has its own intrinsic interest and
value because this is a subject of serious
scholarship and research; researchers in
Jurisprudence contribute to the development
of society by having repercussions in the
whole legal, political and social schools of
thoughts.
 Utility….
• Jurisprudence also has an educational value. It
helps in the logical analysis of the legal
concepts and it sharpens the logical
techniques of the lawyer. The study of
jurisprudence helps to combat the lawyer’s
occupational view of formalism which leads to
excessive concentration on legal rules for their
own sake and disregard of the social function
of the law.
 Utility…
• The study of jurisprudence helps to put law in its
proper context by considering the needs of the
society and by taking note of the advances in
related and relevant disciplines.
• Jurisprudence can teach the people to look, if not
forward, at least sideways and around them and
realize that answers to a new legal problem must
be found by a consideration of present social
needs and not in the wisdom of the past.
 Utility…
• Jurisprudence is the eye of law and the
grammar of law because it throws light on
basic ideas and fundamental principles of law.
Therefore, by understanding the nature of law,
its concepts and distinctions, a lawyer can find
out the actual rule of law.
• It helps a lawyer in his practical work.
A lawyer always has to tackle new
problems every day. This he can
handle through his knowledge of
Jurisprudence which trains his mind
to find alternative legal channels of
thought.
 Utility…
• Jurisprudence helps the judges and lawyers in
ascertaining the true meaning of the laws passed
by the legislators by providing the rules of
interpretation. Therefore, the study of
jurisprudence should not be confined to the
study of positive laws but also must include
normative study i.e. that study should deal with
the improvement of law in the context of
prevailing socio-economic and political
philosophies of time, place and circumstances.
 Utility…
• Jurisprudence provides the
necessary foundations for lawyers, a
lawyer who has not understood
jurisprudence is half a lawyer
because his knowledge of law is
without foundations (without
jurisprudence)
 Value of jurisprudence in
Contemporary world
• As a tool for improvement and development
of law. A jurist understands that the law
should not be static, it has purposes to serve,
with that understanding the jurist is in a
better to improve the law and suggest reform
to meet the demands of the society.
 Value…
• The study of jurisprudence which
encompasses the study of the philosophy of
law, its rules, principles, doctrines, the society,
and etc…this would help the jurist in solving
arising problems in the society from a wider
perspective.
 Schools of Jurisprudence
• There are basically five schools of
jurisprudence:-
– Philosophical school or Natural law school
– Analytical School
– Historical School
– Sociological School
– Realist School
 Schools…
• Natural law school
• concerns itself chiefly with the relation of law to certain ideals
which law is meant to achieve.
• It seeks to investigate the purpose for which a particular law has
been enacted.
• It is not concerned with its historical or intellectual content.
• The notable jurists of this school are Grotius (1583-1645),
Immanuel Kant (1724-1804) and Hegel (1770-1831). These
jurists regard law neither as the arbitrary command of a ruler
nor as the creation of historical necessity. To them law is the
product of human reason and its purpose is to elevate and
ennoble human personality.
 Schools…
• Analytical School
– It is also called positivist school of jurisprudence
because it considers law as it is and not as it ought
to be.
– This school is also called imperative school
because it treats law as a command of sovereign.
– Bentham introduced legal positivism and treated
legal theory as a science of investigation which
should be approached through scientific method
of experimenting and reasoning.
 Schools…
• John Austin is the father of Analytical School. Austin
said that only positive law is the subject matter of
jurisprudence.
• He separated both the morals and the religion from the
definition of the law.
• Prior to Austin the law was based upon customs and
morals but Austin reduced all things from the
definition of law.
• This viewpoint is based on two principles.
– Law is the command of the sovereign.
– Force is the essence of law. (i.e. what cannot be enforced
is not a law)
 Schools…
• Analytical school deals with the following matter:-
– An Analysis of the conception of civil law.
– The study of various relations between civil law and other
forms of law.
– An inquiry into the scientific arrangement of law.
– An account of legal sources from which the law proceeds.
– The study of the theory of liability.
– The study of the conception of legal rights and duties.
– To investigate such legal concepts as property, contracts,
persons, acts and intention etc.
 Schools…
• This theory was bitterly criticized in the 19th
century by the Pluralists and the sociological
jurists. Despite its shortcoming this theory has
explained a lot about law. The analytical
school of jurisprudence provides that law
must be made by the state in the interest of
general welfare. It favours codification of law
and regards law as a command with legal
sanction behind it.
 Schools…
• Historical School
– believes that law is an outcome of a long historical
development of the society because it originates
from the social custom, conventions religious
principles, economic needs and
relations of the people.
 Schools…
– According to this theory law is the product of the
forces and influence of the past.
– Law is based on general consciousness of
people. The consciousness started from the very
beginning of the society.
– There was no person like sovereign for the
creation of law. Savigny, Sir Henry Maine and
Edmund Burke are the renowned jurists of this
school.
 Schools…
– This theory has some defects. Being conservative
in its outlook it relies on past, however its merit is
that it shows that law must change with the
changes in society. It clearly believes that if a law
is not according to the will of the people, it will
never be obeyed. In this way it supplemented the
analytical school of law.
 Schools…
• Sociological School of Jurisprudence
– The exponents of this school treat law as a social
phenomenon.
– According to them, law is a social function, an
expression of human society concerning the external
relations of its individual members.
– They lay grater stress on the functional aspect of law
rather than its abstract contents. They regard law as a
social institution essentially inter-linked with their
disciplines bearing direct impact on the society.
 Schools…
– Every individual has to observe these rules because he
understands that only by following these rules he can
realize all his needs.
– The supporters of sociological school are of
the view that the state does not create the laws but
only formulates, so that social unity is preserved
and social needs are satisfied. So laws did not come
from states but from society. The sanction behind law
is not the force of state but the awareness on the part
of individual.
– Montesquieu, Auguste Comte, Herbert Spencer,
Duguit and Rosco Pound are the notable jurists of this
school.
 Schools…
• Realist School
– In America, Sociological Jurisprudence has developed an
extreme wing under the name of the realist school.
– They concern with the study of law as it works and
functions which means investigating the social factors that
makes a law on the hand and the social results on the
other.
– The emphasize more upon what the courts may do rather
than abstract logical deductions from general rules and on
the inarticulate ideological premises underlying a legal
system.
– The prominent jurists of this thought are Holmes, Gray and
Jerome Frank.