JURISPRUDENCE JURISPRUDENCE AND AND LEGAL THEORY LEGAL THEORY Dr, V. D. MAHAJAN MA (Hons) 1B, Ph. D ‘Advocate, Supreme Court of dia EASTERN BOOK COMPANY LAW PUBLISHERS & BOOKSELLERS 34, LALBAGH, LUCKNOW.226 005CONTENTS Chapters Pages 1, Nature and Scope of Jurisprudence ae A Wha 6 Joripradence (I-11) Austin (2-5) —Holland (6-8}-Salmond (@-9)—Keeton (9-10)—Pound (10-11) 2 Bcope of Jurisprudence (11-12)—Approach to study of Jurisprudence (12)—Significance and. utity of Jurisprudence (1215)—Relation of Jurisprudence with other socal sciences (15-16)~Juripradence and Sociology. (16-18)—-Jurisprudence and’ paychology (16)—Jurisprudence “and Ethics (18-20)—Jurspra dence and Economies (20)—Juisprodence and History (20)—Juripradence and ~Polites (21)~Synthetie iaprudence (21-23) 2. The Nature of Law . of Austins theory of law (85-41) — fon of law (41-45)—Legal sanctions (65-47) —Territorial nature. of law (47-30)—Purpose and function of law ($0-58)—Uses or advantage of law (68-95) Disadvantages of law (55) -Quentions flaw and fact (5558)—Questons of law (56-57)— ‘Question of fact (87-88)—Questons of fact and dizer tion (50-59}—Mized questions of law and fact (59)— “Transformation of questions of fact into law (59)— Discordance between law and fact (50-60)—Legal resumption (60-61)-—Lega elon (61-63). 3. Kinds of Law . ‘| Troperative law (6465)—Phyical or scent laws (G8-66)—Natural law or moral law (669) —Conven- Sonal law (69-70)—Castmary law (70-71) Practical or technical aw (71)—International law (71-78)-—Civil Inw (76-77)—Common law (77-79)—Equity (79-80)— i 26 on 4 Definition of law (26-31)--Austin's theory of Iaw== x {JURISPRUDENCE AND LEOAL THEORY Chapters Pages Constitutional Jaw —(80-85)—~Admunstrative | aw (65-85)—General law and special law (B7-88)—Kinds of Special lars (89-92)—Loeal law (88)—Foreign law (88-89}—Conventional law (89)—Autonomic law {89-90)—Martial law (90:91}—Invernational law as adminixered by Pre Courts (Puze Law) (91-92)— Mercantile customs (92) 4, Classification of Laws. . International law and monserpal law (94-95)— ‘Municipal law (95-96)—Pubhe law (95)—Consta tional law (95)—Administratwve lave (05)—Criminal lave (95-96) —Prvate law (96). 5, Law and Morals. - Dastnction between law and morals (29-103)— Relauionship hetween Inw and morals (108-06)— Morals as part of law (106-07)--Legal enforcement of ‘moras (107)—Influence of morals on law (107-08) 6. State and Sovereignty Defimtuon of State (103-10)—Esvential elements of the State (110-11)—Funcuions of the State (112-13)— Primary fancuons of the State (112-13)—Secondary functions of the State (113}—Unitary and componte States (I18-14)—The State and law (11415)— Sovereignty (115427)—Salmond on sovereignty (11617) —Dicey on sovereignty (117)—Jethrow Brown. fon sovereygnty (117-18)—Keleen on sovereignty (118) —Dugut on sovereignty _(118)—Pluralte on soveresgnty (118)—Marxist view of sovereignty (118-19)—Austin’s theory of sovereignty (119-27). 7, Administration of Justice i : / ‘oportance of justice (128)—Admnistration of justice (128-29)—Necesity of admnsetration of justice (129-80}—Origin and growth of administration of 97 109 128Chaplers / 4 Pages Justice (130-31)—Advantages and disadvantages of legal justice (181-2)—Public justice (132-88)—Justice according to lay, (133)—Cwil and Criminal justice (133-36)—Thedrier_of punishment (136-48) — Deterrent theory of ponishment (136-38)—Preventive theory of punishment (138)—Relation between deter- rent and preventive theories (138-38)—Reformative- theory (139-42)—Relation between deterrent and reformative theories (149-45)--Retnibutwe theory (14547) —Theory of compensation (147-48)-—Kinds of punishment (148-63)—Capital punishment (148-60)— Deportation (161}—Corporal punishment (161-22}— Imprisonment (162)—Solitary confinement (162-63)— Indecermmnate sentence (163)—Cuil justice (163-66)— Primary and Secondary rights (163-64)—Penal and remedial proceedinge (164)--Secondary functions of court of law (165-66) . Sources of Law i . 169 Meaning of sources of law (169-70)—Austin’s (170-71)--Sociclogical view (171)—View of Salmond ((71)—Material sources of law (171-74)—Legal and histoncal sources of law (171-74)—Legal sources of English law (175-76)—Sources of law and sources of rights (176)—Ulimate legal prinaples (176-77). Legislation Meaning of eiauon (16 law (178-79}—Supreme and subordinate legislation (179.83)—Subordinate legislation (180-81) —Dele- gated legislation (181-83)—Methodi of control of ‘delegated legislation (182-88)—Legislation and pre ccedents_ (183-84) —Legilation and. custom (184-85) — Advantiges of legislation over precedent (185-87) — ‘Advantages of precedent over legislation (187-68)— Codification (188.95)—Kinds of codification (190)— Ments of codification (199-92)—-Demerits of codifica +. 178 Legislation aFtouree of (i Su a JURBPRUDENCE AND LEOAL THEORY Chapters Pages tion (192-95)—Rules of interpretation of legislation (195-205)—Grammatical interpretation —(195-97)— Golden rule of interpretation (197-98)—~The Mischief rule (198-99)—Logical interpretation (199-201) — Strict and equitable interpretation (201) —Restr lave and extensive interpretation (201-U2)—Historical interpretation (202-08)-Sociological interpretation (203-04)—Equity of @ statute (208)—Rule of Casus ‘Omissus (204-05)—Rules of interpretation of statutes (205-14), 10, Precedent >" o +. U5 Precedent a5 source of law (Q15-17}—Nawee of precedent (217)—Authority of precedent (217-19)— Crroumstances which destroy or weaken the binding, force of precedent (219-24)—Abrogated decisions (219-20) —Atirmatve or reversal on a different ground (22021)—Ignorance of statute (221)—Inconsistency ith earlier decisions of higher courts (221)—Inconsie- tency between earher decisions of the courts of the same rank (221)—Precedents sub sletio or not fully argued (222)—Decisons of equally divided courte (222.23) —Erroneous decstons (223-24) —Cireumstances ‘hich increase the authority of a precedent (224)—Do judges make lav? (224-32)—Judges as law-makers (227-80)—Methods of judicial decsions (232) — Defects im judicial legislation (252-88)—Kinds of precedents (233-88)—Authoritatwe and persuasive ‘precedents (283-34)—Absolute and conditional precedents (284-37)—Declaratory and original. prece- dents (238)—Stare Ducts (288-41)—Decssions reached (er wearin (24142)—Decsions sub stletin (242-48) — Doctrine of Prospective overruling (243)—Ratio~ Decidends (244-45)—Obnler Dictum (245-47) —Det fon authority and decision on principle (247)— Disregard of precedent (247-48)—Precedent and legal evelopment (248-80)—Sources of yudilal principles (250)—Funetions of judges and yary (250-52).Chapters Poges UC Custom” ee - 54 12. 13. Definition of castom (25455)—Origin of stom (255-57)Uindie force of custom (257-59)—Theories regarding transformation of eusoms int Iw (259-6) Tinds of custom (264.68)—Legal cantom (268)— Conventional custom or wage (26468)—The Law Merchant (26667)—Local_euitom_(267-68)—General custom (26069)—Reuister of a valid exntom—S% (26972)—Custom amv be immemorial (269-70)— Gast most be renvonable (270 71)--Casom mut be coninuounly observed (271)—Custom and preserip- tion (272-73)—Presnt position of eastomary In @n.14. Professional Opinions and Religion 2 15 Profesional opinions (275-80)—Retigion as source of law (280)—Agieement as source of law (280-81). Legal Rights and Duties ©. fer Juin. - “4, 28 Legal wrong (209-08)—Duty (283-85)—Definition of legal rights (285-09) ~Theories about Legal Rights (285-91) Wall theory of rights (289-90)—Soterest theory of rights 280)—Pssentils ofa legal right (21-—" 93)—Pactes toa legal ight (293)—Enforcement of legal rights (29-54)—Batinction of rights (284)—Rela- tion between right and legal hibery. (29498) —Righe and power (25-86)—Powers and Immunity (296)— Relation between rights and duties (296-89)—Owne les sights (289300)-—Classigeation of rights according to thelr objects (300:02)—Legal rights in a-wider sense ($02.04)-—Kinds of legal burden (304-08)—Rights and dues ofthe State (305-06)—Rights againa State (306- (07)—Eaate and Status (307-08)—Rights of benefciacy ($06-09)—Kinds of clvt rights (808-10)—Kinds of legal igh (310-22)—Pesfect and. Imperfect Rights (St0-1)—Postive and Negative Rights (31 and Personal Rights (311+12)—Right fn em and righ in xv JomNPRUDENCE AND LEOAL THEORY. Chapters ‘percnom (B12-14)—Right mw Rem (31814)-—Right én Peranan (314)—Popietary and. Personal ight (314 1S}—Iaheritable and uninheritable rights” (315)— Rughte mie propria and rights ie aliens (815+16)— Princpal and. Accessory rights (S16-17)—Legal and Equitable right (317-18)—Primary and. Secondary rights (519)—Antecedent and remedial rights (319)— Public and private rights ($19-20)—Vested and eontine ent rghts (820)—Servient and dominant sights (320) Manipal and international rights (321)—Rights at reat and rights in motion (921)—Ordinary and funda rental rights (821)— ar ad rm (321-22). 14, Ownership and Possession : Development of the idea of ownership (324) —Defni tion of ownership (324-30)—View of Austin (328)— View of Holland (327)—View of Markby (327)— View of Hibbert (327)—View of Paton (327-28)— Pages 324 View of Pollock (328-29)—View of Salmond (329)— Criticism ofthe idea of ownership (829-80) —Basential ‘of ownership (330-32}—Subject-matter of ownership’ (382-33)—Right of ownership and ovnershup of aright (883)—Modes of acquiring ownership (333-34)— Different kinds of ownersp (384-36)—Corporeal and ancorporeal ownership (888)—Trust and. beneficial ownership (835-36)—Trust and bailment (396)—Trust and executorship (836-37)-—Trust and contract (337)— ‘Trust and Agency (338)—Trust and mortgage (388- 59)—Legal and Equitable ownership (399-40)—Vested and contingent ownership (340-42)—Contingent inter- ext (642)--Distinction between vested and contingent interest (42-44) —Condition precedent and condition subsequent (344}—Distinction between condition prece- dent and condition eubeequent (545-46)—Sole owner ship and co:ownership (346-47)-—Absolute and limited ‘ownership (347-48)-—Tmportance of posession (348-51) ‘—Development of the concept of possession (951) Powession in fact and posestion law (951-52) —Chapters 18. 16. aut Elements ‘of’ possession (352)—Corpus of postesson (683)—Relation of possesor t0 other pereons (353-56) Animus Posidends (387-58)—Savigny’s theory of por reson (358-63)—Methods of transfer of possesion (363-68) —Rer allie (864-65)—Kinds of possession (365-68)-—Immediate and Mediate postesion (365-68) ‘—Corporeal and incorporeal possession (366-67) —Re- presentative posession (367)—Concurrent possession (267)—Derivative possession (867-68)—Constructive posession (368)—Adverse possession (368)—Duplicate potsesson (368)—Why posession 1s protected? (369-71) Distinction between possession and ownership (373 75). Persons .. in _ Definiuon of person (877-78)—Legal stats of lower ‘animals (378-80)—Legal status of dead person (380-83) _—Legal status of unborn persons (382-83)—Legal status of an idol (383)—Legal status of mosque (383- 84)—Kinds of persons (884)—-Natural person (868)— Legal parson (884-85)—Kinds of legal persons (385-90) =-Corporation aggregate (886-87)—Corporation sole (687)—Corporation and fiem (389)—Corporation and Pages 377 natural persons (989-90}—Theonies of corporate per-42 sonality (390-96)—Fietion_ theory of corporation (390- S1)—Realstic theory of person (881-93)—Concession theory (598)—Bracket theory (894)—Purpose theory (694)—Nationality of corporation (397-400}—State as 1 corporation (400)—Uses and purposes of incorpora tion (401-08)-—Jodicial decisions (403.05) Title : : _ and nature of utle (407-08)—Clasafieaton of titles (408-10)—Tmportance of agreements (410-11)— Kinds of agreements (411-12)—Validity of agreements (412-18)—Modes of aequiting posesnon (413) Moder of acquiting ownership (413-14)—Preseription (414- 19). . 407 a JoRBRUDENGE AND LEOAL THEORY Chapters Paes 17. Liability .. . 416 Defovion and nature of Habitiy 416)—Kinds of 18. (416-17) Remedial (417-10)—Penal liability (#18-19)—Viearious ity (420-23}—Abrolute or striet lability (423-25) General conditions of liability (425)—Act (425-26) Jurstic acts (427)—Wrongful acts (427)—Domnum ine mguria (427)—Iuria syne Dammam (427-28)—Mens ea (428-34)—Mene Rea when not essential (#31-34)— ‘Transferred Malice (34)—Presummption of Innocence (434-35)—Stages in thé commission of a crime (£45-37) fenton, preparation, attempt and commission of crime (48687) —Jus Necsitalis (487-88)—Intention (489-49)—Dafference between intention and motive (0-41) —Malice (441)—Negligence (441-48)—Negli- igence and inadvertence (443)—Negligence and inten- tion (443-44)—Calpable negligence (H4)—Duty of care (444)—-Standard of care (444-46)—Theories of negligence (446-51)—Subjective theory of negligence (H7)—Objective theory of negligence (447)—Cont bbutory negligence (450-51)—Measure of Penal hability (451-52)—Motive of offence (451)—Magnitude of the ‘offence (351-52)—Character of the offender (452)— Measure of civil ability (452-53)—Crime and tort— distinction (483-54)-—Exemptions from criminal Tiabiy (455-56) Law of Property. : Meaning-of property (458-59)—Kinds of property (459)—Corporeal property (459-60)—Real and. per- sonal property (460-61)—{ncorporeal property (461)— Rights in re propa (461)—Rights mn re aliena (462-63) — ‘Leases (463}—Servitudes (465-68)—Kinds of servitades (461-65) —Personal servitude (464)—Public servitude (468)—Positive servitude (468)—Securites (465) — Mortgage and Lien (465-66)—Kinds of liens (866)— rust (466-67)—Modes ofacquistion of property (367 458«Chapters 19, a. 22. 471)—Possession_(467)—Prescriprion —_(467-68)— Theories of property (471-74)—Natural law theory of property (471-72)—Metaphysical theary of property (472)—Historical theory of property (472-73)—Pasitive theory of property (473)—Paychological theory of property (473)—Sociological theory of property (475- 74)—Property and law, relation between (474) Law of Obligations Definition of obligation (475-76)—Chose inaction (476)—Chose in porsesion (476)—Soldary obligations (476-77) Three kinds oftolidary obligations (47-00) tees of obligation (480-84) Obligations arising from contracts of contractual obligations (480)— Obligations arising from tort oF delictl obligations (481)—Ditinetion between contractual obligation and Aelctal obligation (481-82)-Obligations arising from quasicontracts (402-88)—Innominate obligatons (94). |. The Law of Procedure Law of procedure and substantive Taw (#85-88)-— Elements of judicial procedure (408)—Definition of wi- ence (488-89)—Kinds of evidence (489-91)—Judicial ‘evidence (489-90)—Personal or real evidence (490)— Primary or secondary evidence (490)—Direct or ecm stantial evidence (490-91)—Production of evidence (491-92)—-Probative value of evidence (492-9) Conclusive proof (492-93)—Presumptive proof (498)— Exclusive evidence (498). Legal Theory Legal Theory : a Analytical Legal Posi Different approaches (503)—Positiviem in law (303-08) Analytical schoo! (505-40)—Bentham —(S07-14)— Pages - 475 485 497 503 Chapters 23. 25, 6. {JonspRUDENGE AND LEGAL TIFORY ‘John Austin (514-26)—Austin and Bentham (526-27) —Neo-Austinian Schoo! (527-28)—H L.A {Tart (520+ 40). Pure Theory of Law i Kalen and Pare Theory of Caw (4845)—Keken and the Basie Norm (845-46)—Implicauons of Pure ‘Theory of Law (546-50)—Critici of Pore Theory of Law (550-54)—Contribution of Ketsen (554-58)—Kel- sen and Bentham (855.55). Historical School of Law [Nature of Historical Schoo! of Law (557-58)—Montes- ion (558)—Herder (559)—Burke (389)—Hugo (339) —Savieny (360-71}—Criticim of Savigny (863-70)— Gontsibution of Savigny (870-71)—Puchta (571)~ Gierke (871-72)—Sir Henry Maine (572-68)—Writ- ings of Maine_(573)—Moverent Irom status to con- tract (676)—Contrbution of Maine (581-82)— Influence of Maine (582-83)—Estimate of Historical School (588-64)—Comparison of Historeal and Anal tical Schools (684-85)—-Distinction between legal Tisory and historical jurisprudence (585-86). ‘The Philosophical School of Law Jurisprudence and ethies (588-80)—Exponents of Philosophical School (590)—Grotius (590-91)—Kant (691-98)—Fichte (598-94)—Hegel (59-96)—TInfivence of Kant, (699)—Stammler (699-602)—Del Vecchio (60208). Sociological School Montesquiew (605-07)—Auguste Comte (607}—Dur- ‘heim (607-08)—Herbere Spencer (600-09)—Duguit (609-16)—Gierke (616)—Hauriow — (616-18)—Max Weber (618-19)—Thering (619-25)—Birlich (625-82) Pages 543 587 588 605,Chapters ay (ZRoseoe Pound (682-48)—Theory of Social Engineer- (634-43)—Pound on Sec Jutice (643-48)— Pound’s contribution (63448)—Karl Renner (645.46) —Pashokanis (646)—Parzone (646)—Stone (646-47))— Evaluation of Sociologia! Schoo! (47-49) 27. American Realism... - Realist_movement in the United States (652-54)— Gray (654)—Justice Holmes (654-56)—Jerome Frank (656-60)—Llewellyn _(660-65)—Compater Prediction (665-66}—Awessment of the Realist Movement (656- 70). 28. The Scandinavian Realists ‘Fagerstrom (672-74)—Empirical basi of rights (673)— Historical basis of rights (678) Objective values (673- 14)--Olivecrona (674-77)—Binding_ force of law (675- 76)—Rights (676)—Estimate of Olivecrona (676-77)— AUC Ross (677-81)—Valid law (678)—Norm (679-80)— ‘The Verifabiliy Prineyple (680)--Reduetionism and Tegal concepts (680-81)—A V. Lundstedt (681-84)— Scandinavian and American Realism (684-88)—Criti- cam of the Realists in general (685-86) —Contribution ‘of the Realist (686) 29. Natural law 7 7 Natural law sn. general (688-69)—Greece (699-90)— Socrates (690)—Plato (690)—Aristotle (690-91) — ‘Stoies (691)—Rome (691)—Gaiue (692)—Cicera (692) —The Middle Ages (692)—Aquinas (692-96)—Gro- tius (696.97)—Pufendorf (697) —Wolff (697) — (687-98)—Natural law and social contract (686)—Gro- tius (699}—Hobbes (699-701) —Locke (701-08) —Rowe- seau (708-07) —Kant (708.09)—Fichie (709)—Decline ‘of natural law theories (709-10)—David Hume (710)— Bentham (711) —Austun (711-12)—Natural law ideas in English law (712-18)—Natural law in American Juris Pages == 652 =. G92 =. 688 EN |JURBPRUDENEE AND LEOAL THEORY Chapters prudence (719-14) —Revi (rte) Date (5 16)-Semmler (71618) John Rawls (718-20)—Clarence Morris (720-21)—Del ‘Vecchio (721-23)—Geny (723)—Le Fur (723)—Hall (723-28)—John Wild (724-25)—L. L. Faller (725-28) —Castberg (726)—D'Enweves (726)— HL. A Hart (728-80)—Natural_ law and the Supreme Court of - 733I NATURE AND SCOPE OF JURISPRUDENCE, ‘What is Jurisprudence? Teas dificult to give a universal and uniform defimtion of Jurisprudence. Livery jurist has his own notion of the subject ‘matter and the proper limite of jurisprudence depend upon his fdeology and the nature of society. Moreover, the growth and development of law in diferent countries has been under different social and political conditions The words used for law in different countries convey different meanings. The words of fone language do not have synonyms in other languages conveying the same meaning. Thestord jurisprudence” is not generally used jn other languages in the English sense. In French, it refers to something like “ease law”. The evolution of society is of dynamic mature and hence the dificulty in accepting a defi by all, New problems and new isues demand new solutions and new interpretations under changed circumstances. However, scientific inventions have brought the people of the world closer to each other which helps the universalisation of ideas and thoughts and the development of a common terminlogy. ‘The study of jurisprudence started with the Romans. (The Latin equivalent of “jurisprudence” is jensprudentia which migans cither “Knowledge of law’ or “skill in law") Ulpian defines jurisprudence as "the knowledge of things divine. and hun, 1he"icience of the just and unjust”. Paulus, another Roman, jurist, maintained that “the law is not to be deduced from the role, ‘but the rule from the law". The definitions given by the ‘Roman jurists are vague and inadequate but they put forth the idea ofs legal science independent ofthe actual institutions of a particular society. In England, the word jurisprudence was in use throughout the early formative period of the common lav, but as meaning Title more than the study of or skill ia law. Te was not until the /RUDENCE AND LEGAL THEORY [Cuar, 2 yom time of Beatham and his dpe Avsin in the ealy port of the Toth century at the ‘word. began fo acquire a tecinial Sigifcance among Engin lawyers, Denar divingushed Sica iamiaten of the, nw at ih and ae out tobe ‘copestra” and "eemoria” jnspradenes). tin occa ict with ‘espostory jursprudence and’ hk work consisted Iriniy of «formal analyis of the sractre of Engh law. “raya expoton the type which Hentham pioneered and ‘Auth developed, has dominated English Tegal thought up (o the modern tine, ‘The word yuriprudence has eome o mean in Englund lot excisiely an analy ofthe foal srvture of taweand icone, = = There tas been a shift during the last one century and Jrgprodence today is envisaged in an immeasurably broader and tore sweeping sense than that in which Austin understood it, To quote Buckland “The analysis of legal concepts is what juripr dence meant for the student inthe days of my youth. In fact it meant Austin. He was a religion; today he seems to be regarded, rather as a diteaz”” Julies Stone describes jurispradence as the lawyer's extraverion. Tt isthe lawyer's examination ofthe precepts ideals and techniques of the law in che light derived from present Knowledge in disciplines other than the law”, (Leil Syiter ond Laer? Reasonngs, p 16). Lord Radel writes: “You wil not mistake my meaning oF suppose that I deprecate ‘one of the great humane studies if Tsay that we cannot learn law by fearing law. If i is to be anything more than just a technique, iis to beso mich more than itcif: a part of history, & part of economics and soeiology, a part of ethics and philosophy fle.” (The Law ad le Compas, pp 92-98). in is that the science of jurisprudence is concemed with positive law, with ‘laws stricly so-called”. thas nothing to do with the goodness or badness of law. Austin divided the subject into general and particular jerispradene. General Jurisprudence includes such subjects or ends of law as are common ‘wall systems while particular jurisprudence is confined only to the study of any actual system of law or any portion of it. "To quote Austin: “I mean then by general jurisprudence the’icience0 [NATURE AND SCOPE OF JURISPRUDENCE, 3 concerned with the exposition of the principles, notions and distinctions which are common to all systems of lave, understanding by system of law the ampler and maturer systems which, by reason of their amplitade and maturity, are pre-eminently pregnant with anstructions.” Again, ‘the proper subject of ‘general or universal jurisprudence i a description of such subjeets and ends of laws a8 are common to all systems and those resemblances between different systems which are bottomed in the common nature of mep-or correrpond to the resembling points in the several portions"”. (General jurigprudence js an attempt to expound the fundamental prscipes and broadest generaliations ‘of two or more systems, Tt isthe province of general, pure or ct jurisprudence to analyse and systematise the ostential clemente underlying the indefinte variety of legal rules without special reference to the institution of any particular country. Particular jurisprudence i the scienee of particular law. Its the science of any system of positive Jaw actually obtaining in @ specifically determined political society. To quote Avsti ‘Particular jurisprudence is the science of any actual system of Ta or any portion of it The only practical jurisprudence is particular”) _ General and particular jurisprudence differ from each other riot ii essence but im their scope. The field of general jurispru- dence is a wider one It takes its data from the systems of more ‘than one State while particular jurisprudence takes its data from a particular system of law Its principles are coloured and shaped by the concrete details of a particular system However, in both ceases, the subject of jurisprudence is positive laws ‘The relation of general and particular jurisprudence may be shown by an example. Possession is one of the fundamental Tegal concepts recognised by all systems of law. The function of Jurisprudence is to explain its characteristics, its legal value, ‘mode of its acquisition and extinction General jurisprudence will analyse it without reference to any particular legal system, Dut particular jurisprudence will do the same thing but with reference to some particular system of law. Austin’s classification of jurispradence into general and particular jurisprudence has been criticised by Salmond, Holland 4 JURISPRUDENCE AND LEGAL THEORY [Cuar. and other jurins. The main contention i rejceting the casifiss tion of Ausun is based ‘upon sts smpracicabiy. Salmond points out thatthe error in Austin’s idea of general jurispradence Tier in the fact that he acsmes thet unless a legal principle f common to many legal eytems, it eannot be dealt within general Jorsprudence, "There may be many school of junsprudence but there ate not diferent kinds of jrgpradence, Junspradence is one Integral social scence The disnction between general and sci unspradence snot proper. Tt is not correct to tHe Foch terms as Hinds juesprudenee, Roman junprudence oF English jurisprudence Actually what we are dealing with are not diferent kinds of jonnpradence but diferent systems of Iw. Its more appropnate 1 we the term jurisprudence sone without any qualifjing epithet. Jurisprudence as 2 zcial deals with soci insuations governed by Ine from the point of view oftheir legel significance Holland also bas criticised the classification of Austin. Referring to the particular jurisprudence of Austin, Holland Points out that it is only the maternal which is particular and riot the science itself The study of a particular legal system is not a science, Giving the example of the geology of England, Holland points out that: “A science isa system of generalizations which, though they may be derived from observation over a limited area, will hold good everywhere assuming the subject matter of the science to pasess everywhere the same characteristics.” Again, “principles of geology elaborated from the observation of England alone hold good all ever the globe in so far as the same substances and forces are everywhere present and the principles of jurispra- dence, if arrived at entirely fiom English data, would be true if applied tothe particular law of any other community of human beings, assuming them to resemble in essentials to the human beings who inhabited England”, ‘The criticum of Holland is based on the assumption that law thas the same characteristics all over the world but that is opposed to human experience, Maitland points out that ‘races and nations do not travel by the same roads and at the same rate”. Lord Bryce writes: “The law of every country is the outcome ‘nd result of the economic and social conditions of that country0 [NATURE AND SCOPE OP JURKPRUDENCE 8 as well as the expression of its intellectual capacity for dealing ‘with these conditions.” Buckland observes: “Law is not a mechanical structure like geological deposits; it isa growth and its true analogy is that of biology.” Savigny saye: “Law grovs with the growth and strengthens with the strength of people and fits standard of excellence will generally be found at any given period to be in complete harmony with the prevailing ideas of the Dest class of citizens.” Puchta writes: “The progress in the formation of law accordingly keeps pace with the progress in the knowledge of the people of the facts which they ‘observe and hence it 1 that law has its provincialisms no less ‘marked than language. Dias and Hughes point out serious ambiguities in Austin’s Aefinition of general jurisprudence. Austin gi teri for amplitude and maturity. He also does not explain whether the common principles are those which are in fact found to be ‘common or those which for some reason are treated as being necessarily common. ‘There is no demonstration that the notions Which he put into his book are in truth shared by “‘ampler and natural system’? whatever they may be. When we look at the substance of his book, we find that it is drawn mainly from English law with occasional superficial references. to Roman law. His jurisprudence is exentally comparative. Buckland points out that Austin and others who profess ‘general jurisprudence” do not adhere to it in practice, eltend Sir Thomas Erskine Holland defines jurlprudence as “the orl aence of poise la”. Yes a-formalor_analytical Tather than a material science. The erm positive law ‘fined by Holland 3 "Ue-general rule of external human action enforced by a sovereign polideal authority"? Holland follows the definition of Austin but he adds the, term formal, which reans ‘that which concerns only the fon aid iat is essence ‘Aformal ssc 1s one which decnbes only the form or the external side of the subject and not its internal” contents, Jurisprudence is not concerned with the actual material contents ‘of law but with its fundamental conceptions Holand cane to SD LEGAL THEORY [Cuar. 6 entspgubEn the eonelovon that juaprudene is not a mate songs but vn etfoenal wienee Te. quote. Wm. Tho serio that Pa ses genial een may prope bo made arr Jerre Hany indsndel shoud ssinuates knowledge a reerepean ez a atl cach pe om the et wets’ mbes of ba. mumdy la adrenals ook be bet ractbedar amacuraeacjostance wath the legal seme of Sere aE eh of thee apts were enuncly ani the vt Pea en th a had bo tafe inthe course of history Feetedetwihe al, such a Uaingunbed pt could do. no- More‘ than endcavour to old Cat and to svt confusing the Felice ate for folie i nde pe Sires havea, ast omc that de lews of ove counry touin’a common ements tint thy have ben eonstroted in to enc te ous Pad ees ncn tir moral phenomena to cvaywbute essing, then such & ferton mught provd to ame ot of ho accmlied materials a Eieme ofthe purpres,tnetoat and. Wens common to. Overy tm oflaw,. Sucha seteme would be afrmal sence of la ‘ecrung Many tnloges to grammar, the sotence of thot dens relation whl, in geste ot tay pericuon, and aten in the frost dunt ways, ave expresed in al the languages of mmacknd. Justa smlariies and dllences the grow of Gifaent Ianuage ace collected. and arranged by comparative plilology and the facs ths called are the foundation of tact amma so comparative law collects and tabulate the Tegal tons of vane euunees and from the elt thus pared, the slttct somnee of urepeudence @ enabled Co et forth sm orderly view ofthe des and methods which have bewn ‘anouly setved in actual otonns Ty for anes the eer 1 comparative lay to mceran what have been a dierent met tnd plies the peo of prenpuon or te fequats of a. food marmage. It for junpradence to elutie the meaning of procrplon int reltion to enmcohip and to atuor; oF (0 Sxplain the gal supe of mange and na connection wath property and the Gamly. We ae nt andeed to tuppoe that Jrbpradence is imposible unles ti presded by comparatee inv. “Asyuem of jurisprudence nigh cancetvably be conseced from he abvevaton of one new of lw only. at one epochn NATURE AND s00PE OF JURISPRUDENCE 7 of its growth.” Again, “Surisprudence is therefore not the material science of those portions of the law which various nations have in common, but the formal science of those relations of mankind which are generally recognized as having legal consequences”. Jurisprudence “deals rather with the vanous relations which are regulated by legal rules than with the rules which themselves regulate these relations” Many eminent juists have etiticwed the view of Holland that jursprudenes i a formal science of postive law. According to Gray" “Juvisprudence is, in teuth, no more a formal science thin physiology. As bones and museles and nerves are the subject matter of physiology, 30 he acts and forbearances of men and the events which happen to them are the subject matter of jurisprudence and physiology could as well dupense with the former 32 jurpeudence with the latter.” Again, "the. real relation of jurisprudence to law depends upon not what law is treated but iow lar is toated. A treats on juruprudence may go into the minutest particulars or be confined to the most feneral docitines and in either case deserves its mame; what ss essential to it is that it should be an orderly, stenifie treatise in ‘which the subjects are duly clasifed and subordinated”. De. Jenks asks: “Can jurisprudence be truly sad tobe a purely formal science? Not it's submited, unles the word ‘formal! be used in a strained and arufical sense. Iw true that a junst can only recognize a law by st form, for xt is the form which, 5 has been said, causes the manifold matter of the phenomena to be percsived. But the jurist, having got the form as it were, fon the operalung table, has to disect it and ascertain its meaning. Jurisprudence concerned with means rather than with ends, ‘hough some of ts means are ends in themselves. Dut to say that jurisprudence ss concemed only with forme a to degrade it from. the rank ofa ecionce to that ofa craft.” Prof, Platt also criticises the definition of Holland ia these ‘words: “Without resorting toacis and forbearances and to the state of facts under which they are commanded law cannot be differentiated at all; not so much as the bare framework of its chief departments ean be erected An attempt to conetruct quite apart from all the matter of law even the most general conception 8 JsunsspRUDEXCE AND LEGAL THEORY [cuar. of ownership or contract would be like trying to make bricks not recy without straw but without clay as well” Holland’s definition of jurisprudence appears to be a good fone There it no reasonable reason to criticwe it. The Criteism of Gray is not without doubt. In his view a scientific treatise on any department of the law may be described as jurisprudence Such usage is by no means uncommon, but if we tunderstand by jursprudence “the science of law in general”, ‘ye must admit it to be a misapplication of this ponderous Gguadnsjlable, Dr, Jenks stems to confuse a formal science with a “formalitic” manner of dealing with the science. Ifthe jorist attaches undue importance to mere forms, takes positive view as the highest law and fails to penetrate to the social forces which would mould the law, his treatment of his subject would be formalisue and unworthy of a great social science, Jurisprudence, as a science, is concerned only wath the form which conditions socal hfe, with human relations that have grown up in society and to which society attaches legal significance. In this sense, yurprudence is a formal science, Being the systematised and properly coordinated knowledge of a subject of intellectual inquiry, yorigprudence is a science. The subject of inquiry is the smal relations of men living together 1m an organised society. The term “positive law’ confines the inguiry to those social relations which are regulated by the rules imposed by the State and enforced by its courts. ‘The prefix formal” indicates that the science deals only with the porposes, methods and ideas at the basis of the logal system as distinet from a material science”* which deals with the concrete details of law. Selmond ‘Salmond defines jurisprudence as ‘the science of Jaw"*, By law he means the law of the land or evil law. Jn that sense, jurisprudence is of three kinds. Expository or systematic jurispra~ dence deals with the contents of an actual legal sysiem as existing ‘av any time, whether in the pastor in the present. Legal history js concerned with a legal system in ite process of historical evelopment. The purpose of the science of legislation is to set forth law as it ought tobe.” edeals with the ideal ofthe legal ‘system and the purpose for which it exists,, ie