Definition of Jurisprudence
Definition of Jurisprudence
Definition of Jurisprudence
Definition of Jurisprudence
= According to Ulpian, “Jurisprudence is the knowledge of things human
and divine, the science of the just and unjust.”
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= According to Prof. Gray- “Jurisprudence is the science of law, the
statement and systematic arrangement of the rules followed by the
courts and the principles involved in those rules.”
Prof. Gray is of the opinion that jurisprudence deals with that kind of law
which consists of rules enforced by courts while administering justice. In
other words, the laws of the jurists deal with man and seek to regulate
external human conduct in the society. It does not concern itself with
the inner beliefs of man imposed in religious laws which derive their
authority from superhuman source which we call as ‘God’. The sanction
for their enforcement is spiritual reward or curse according to man’s
deeds.
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jurisprudence from a systematized branch of learning, jurisprudence is a
science.
Nature of jurisprudence:
Scope of jurisprudence-
Importance of jurisprudence:
The apart, jurisprudence also has great educational value. The logical
analysis of legal concepts widens the outlook of lawyers and sharpens
their logical technique.
It helps them in shedding aside their rigidity and formalism and trains
them to concentrate on social realities and the functional aspect of law.
It is not the form of law but the social function of law which has
relevance in modern jurisprudence.
Law has to take note of the needs of society and also of the advances in
the related and relevant disciplines such as sociology, economics,
philosophy, psychiatry etc.
Analytical School:
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of law as they actually exit in a given legal system. The exponents of
analytical school of jurisprudence consider that the most important
aspect of law is its relation to the state. They treat law as a command
emanating from the sovereign, namely, the state. This school is
therefore, also called the imperative school. The advocates of this
school are neither concerned with the past of the law nor with the
future of it, but they confine themselves to the study of law as it actually
exits i.e. positus. It is for this reason that this school is also termed as
the positive school of jurisprudence.
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2. Law improperly so called
- The chief supporter of the school are- Savigny, Carter, Puchta, Henary
Maine and G.C. Lee. Under Historical School of jurisprudence we study
the origin, development and systematized change in law and legal
concepts. In this school the study of mutual relation of state and law is
made in Historical perspective. According to the view of historical school
law is found, not made. Law is based on customs and usages. One of the
main exponents of this school is Savigny.
Savigny:
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lifeless mechanical device.” Thus, the origin of law lies in the popular
sprit of the people which Savigny termed as Volksgeist.
2. Law Develops Like Language and has a National Character-
Savigny pointed out that law has a national character and it develops
like language and binds people into one whole because of their common
faith, beliefs, and convictions. He pointed out that, “Law grows with the
grows of the society and gains its strength from the society itself and
finally it withers away as the nation loses its nationality. Law, language
customs and government have no separate existence from the people
who follow them. Common conviction of the people makes all these as a
single whole.
3. Early development of law is Spontaneous; latter on it is
Developed by jurists- Accordind to Savigny in the earlier stages law
develops spontaneously according to the needs of the community but
after the community reaches a certain level or civilization, the different
kinds of national activities, hitherto developing as a whole, bifurcate inn
different branches to be taken up for further study by specialists such as
jurists, linguists, anthropologists, scientists etc. law has to play a duel
role, namely as a regulator of general national life and as a distinct
discipline for study. The former may be called the political element of
law while the latter as a juristic element but both have a significant role
in the development of law. The history of Roman law furnishes the best
illustration of these processes.
4. Savigny’s view on codification of law : Although Savigny was not
totally against codification of law. He, however, opposed the codification
of the German law on the French pattern at that time because Germany
was then divided into several smaller states and its law was primitive
immature and lacked uniformity. He said that Germany law could be
codified at a large stage when the unification of Germany takes place and
there is one law and one language throughout the country. Since
Volksgeist i.e. common consciousness had not adequately developed at
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that time, therefore, codification would have marred the evolution and
growth of law.
5. Law is a continuous and unbreakable process: Tracing the
evolution of law from Volksgeist, Savigny considered its growth as a
continuous and unbreakable process bound by common culture
traditions and beliefs. It has its roots in the historical processes which
should constitute the subject of study for the jurists.
6. Admiration for Roman Law :-While emphasizing Volksgeist as the
essence of law, Savigny justified adoption of Roman law in the texture of
German law which was more or less diffused in it. He, therefore, located
Volksgeist in the Romanized German customary law. He considered
Roman law as an inevitable tool for the development of unified system
of law in Germany.
Henry Maine:
Pater families dominated the entire family including all its male and
female members, children and slaves as also the property. The word of
the Pater families was to them which they were supposed to follow.
There were, however, some communities which followed matriarchal
pattern in which the eldest female of the family was the central
authority to manage all the affairs of the family. It is because of his
kinship, namely blood relationship with the family that a person
acquired a status. Thus, the law of person was to be determined on the
basis of his status. Thus, slave, servant, ward, wife, citizen, etc., all
symbolized statutes which the law recognized in the interest of the
community. Maine was of the view that Pater-familiar constituted the
lowest unit of primitive communities. A few families taken together
formed the Family-group which consisted of union of families. An
aggregation of families constituted Gens which in turn led to the
formation of tribes. A collection of tribes formed the community which
Maine termed as commonwealth. It was in this manner that early
primitive societies evolved, their relationship being regulated by the law
of status which was also called as law of persons.
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Stages of development of law – According to Maine the evolution and
development of law may be traced through following four stages-
Contribution of Maine
Dias and Hughes describe natural law as a law which derives its validity
from its own inherent values, differentiated by its living and organic
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properties, from the law promulgated in advance by the State or its
agencies.
From the jurisprudential point of view, natural law means those rules
and principles which are supposed to have originated from some
supreme source other than any political or worldly authority. Some
thinkers believe that these rules have a divine origin, some find their
source in nature, while others hold that they are the product of reason.
4. The concept of 'Rule of Law' in England and India and 'due process' in
USA are essentially based on natural law philosophy.
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Natural Law as distinguished from other Laws
Natural law also differs from other forms of law such as the canon law,
common law, constitutional law, international law etc. in the following
aspects :
1. Natural law is eternal and unalterable but the other forms of laws are
subject to periodical changes and alterations.
3. Natural law is not enforced by any external agency but every other
form of law is enforced by State, sovereign or ruler and there is always a
coercive force behind it.
5. Unlike other forms of laws, natural law has no formal written code.
Also there is no precise penalty for its violation nor any specific reward
for abiding by its rules.
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theories in Britain at that time. He, therefore, ame out with a new
interpretation of the social contract rejecting obbes' earlier concept of
state of nature. He stated that the life in state f nature was not as
miserable and brutish as depicted by Hobbes, instead it was reasonably
good and enjoyable except that the property was insecure. In order to
ensure proper protection of property, man entered into the 'social
contract' surrendering only a part of his rights, and not all the rights as
contemplated by Hobbesian theory.
Thus, it would be seem that locke's idea of social contract was founded
on new secular approach to natural law whereby power of the
government was conceded on trust by the people to the rulers and any
infringement of the conduct by the rulers was treated as a breach of the
people's fundamental natural rights which justified revolt against the
government.
The natural law philosophy and docti Me of social contract was further
supported by Kant and Fichte in eighteenth century. They emphasised
that the basis of social contract was reason' and it was not historical
fact. Kant drew a distinction between natural rights and the acquired
rights and recognised c al) the former which were necessary for the
freedom of individual. He favoured separation of powers and pointed
out that function of the State should be to protect the la Kant's
philosophy destroyed the foundation of natural law theories towards
the end of 18th century which suffered a death blow at the hands of
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Bentham in the earl nineteenth century because of his theory of
hedonistic individualism.
The part played by the natural law in development of modern law can
hardly be exaggerated. Legal history testifies that it was natural law
which directly or indirectly provided a model for the first man-made law.
Appreciating the contribution of natural law Roscoe Pound said. "the
uncertainty of the higher law is preferable to the arbitariness and
insolence of naked force".
Despite the merits of natural law philosophy, it has been criticised for
its weaknesses on the following grounds :
1. The moral proposition, i.e., 'ought to be' may not always necessarily
conform to the needs of the society. For instance, it is natural for men to
beget children, as it is for trees to bear fruit. But the factual position
may be different since many countries including India, may like to
restrict the growth of their population by resorting to family planning
devices. While, on the other hand, no one would ever like to restrict the
growth of fruits on trees.
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3. The rules of morality embodied in natural law are not amenable to
changes but the legal rules do need a change with the changing needs of
the society.
4. Legal disputes maybe settled by law courts but the disputes relating
to morality and law of nature cannot be subjected to judicial scrutiny,
and even if they are challenged in a court of law, the correctness of the
verdict may always be questioned since it is based on subjective
discretion of the Judge.
The main concern of sociological jurists is to study the effect of law and
society on each other. They treat law as an instrument of social
progress. The relation between positive law and ideals of justice also
affects the sociology of law.
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solely based on the coercive power of the State and completely rejected
the pursuits of morality and justice as irrelevant in human relations.
Characteristic:
(2) The Impact of Darwinian Evolutionary Theory : The next stage in the
development of sociological jurisprudence has been called as the
'biological stage' because of the influence of the Darwin's evolutionary
theory. Herbert Spencer explained social phenomenon as a biological
process adapting itself to the changing needs of the society He asserted
that law must evolve and adapt itself to the changing needs of the
progressive society as a whole.
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Pound laid greater stress on functional aspect of law. This is why his
approach has been termed as 'functional school' by some writers. He
defined law as containing "the rules, principles, conceptions and
standards of conduct and decision as also the precepts and doctrines of
professional rules of art." He thus considers law as a means of a
developed technique and treats jurisprudence as a 'social engineering'.
The end of law according to him, is to satisfy a maximum of wants with a
minimum of friction or confrontation.
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(a) Interests in the preservation of the State as such; and
(iii) Social Interests : The social interests which need legal protection
are :
Jural Postulate III : In civilised society men must be able to assume that
those with whom they deal as a member of the society will act in good
faith and hence :
Jural Postulate IV: In civilised society men mut be able to sume that
those who engage in some course of conduct will act' with e care not to
cast an unreasonable risk of injury upon others.
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natural tendency to cross the boundaries of their proper e will restrain
them and keep them within their proper bounds.
Criticism Against Pound's Theory: Dr. Allen has criticised the tilitarian in
Pound's theory as it confines the interpretation of 'wants d desire' to
only material welfare of individual's life completely gnoring the personal
freedoms which are equally important for a happy ocial living.
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characteristic features of Realist jurisprudence as stated by Goodhart
are as follows :
(1) Realists believe the that there can be no certainty about law as its
predictability depends upon the set of facts which are before the
court for decision.
(4) Realists are opposed to the value of legal terminology, for they
consider it as tacit method of suppressing uncertainty of law.
(5) The realist school prefers to evaluate any part of law in terms of
its effects.
Scandinavian Realism
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Contribution of Realist School of Jurisprudence
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the court. Therefore, it is erroneous to think that law evolves and
develops only through court decisions. In fact a great part of the law
enacted by legislature never comes before the court, nevertheless, it
does remain a law enforceable and applicable in appropriate cases and
situations.
Besides the administration of civil and criminal justice, the higher courts
in India have also taken up the task of social justice administration
through judicial activism in the exercise of their writ jurisdiction. This
trend is discernible from the decisions of the Supreme Court and some
of the High Courts onwards lat seventies of the 20th century. The higher
judiciary realized that India being a welfare State, it is committed to the
cause of social justice and the courts must respond to this cause keeping
in view the felt needs of the Indian Society.
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Minerva Mills cases further observed that the expression `social justice'
in the Preamble recognizes the Benthamite principle o greatest
happiness of the greatest number without deprivation of leg rights of
persons.
Article 39-A contains a directive for legal aid to poor ensuring the poor
sections access to justice and law courts. It is on the basis of this
provision that legal aid programmes have been launched by most of the
States in India. The Legal Services Authorities Act, 1987 has been
enacted in order to achieve the objective enshrined in Art. 39A. For the
disposal of cases expeditiously and without much cost, Lok Adalats have
been constituted under the Act which are functioning as voluntary and
conciliatory agencies. More recently, the Supreme Court Legal Service
Committee Rules have been framed in 2000 with a view to providing
free legal services to indigent and needy litigants in their cases before
the Supreme Court.
Likewise, Article 43 regarding living wages and Article 43-A which was
introduced by 42nd Constitution Amendment, 1976 regarding
participation of workers in management of industries are directed
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towards ensuring social justice for the industrial workers. That apart,
Article 41 regarding public assistance to disabled and aged persons and
Article 42 regarding securing just and humane condition of work etc. are
all directed towards the attainment of the object of social justice.
Besides, the above provisions, Article 311 (i) which provides that no
person in the civil service shall be removed or reduced in rank unless
given a reasonable opportunity of being heard is again based on sound
principle of natural justice.
Apart from the foregoing provisions, the recent trend of public interest
litigation which Professor Upendra Baxi preferred to call the Social
Action Litigations (SAL) has revolutionalised the whole law relating to
writ remedies under the constitutional provisions as provided in Article
32 and. Article 226. Now even an ordinary prayer of petition to the
Supreme Court under Article 32 or to the High Court under Article 226,
maybe taken up and heard by these Courts as writ petition if it is filed on
behalf of some group of persons who themselves are unable to move
the Court due to poverty, misery etc. That is, under PIL justice has been
taken to the door-steps of the poor, down-trodden and persons of
meager resources. The land-mark decisions in People's Democratic
Right v. Union of India; Bandhua Mukti Morcha case; M _ C. Mehta v.
union of India; Olga Tellis v. Maharashtra State; Neerja Choudhri v. State
of Maharashtra; Meneka Gandhi v. Union of India; Vishakha v. State of
Rajasthan are only some of the best illustrations of demonstrate the
incorporation of the principles of social justice through this new trend of
writ jurisdiction.
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Secondary Functions of Court
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