Introduction Of jurisprudence

 Meaning
 Definition
 Nature
 Scope
 Importance
 The Case of the Speluncean Explorers 1949
 Philosophy
 School

Meaning: -
The word Jurisprudence derives from the Latin term Jurisprudentia.
Juris: -Law / Legal
Prudentia: -The Study or Knowledge

*The Study or Knowledge of law

Definitions

Austin: - “The philosophy of Positive law”.

Holland: - “Jurisprudence is the formal science of positive law”.

Salmond: - Jurisprudence can be defined “as a Science of Civil Law”.

Nature of Jurisprudence

Jurisprudence, in its nature, is a different subject. It is neither a procedural subject nor a substantive
subject. It is the mainstream of whole law, from where the different laws originate. It is not a
codified law like the Indian Penal Code, Criminal Procedure Code, or the Constitution. Jurisprudence
being an ever-growing and dynamic subject has no limitation on itself.

Scope of Jurisprudence

The Scope of Jurisprudence has widened considerably over the years. Commenting on the scope of
jurisprudence Justice P.B Mukherjee observed,” Jurisprudence is both an intellectual and idealistic
abstraction as well as the behavioral study of man in society. It includes political, Social, economic
and cultural ideas. It covers the study of man in relation to society”

Importance of Jurisprudence

1. Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws
passed by the legislatures by providing the rules of interpretation.
2. Jurisprudence may also be helpful to legislatures who play a crucial role in the process of law
making.
 3. Jurisprudence provides the rule for interpreting the law.
4. The study of jurisprudence is equally beneficial for the sociologists and moralities
5. Jurisprudence is also the grammar of law. It helps a person to understand the language and the
grammar of law.

The Case of the Speluncean Explorers 1949

The case involves five explorers who are caved in following a landslide. They learn via intermittent radio
contact that, without food, they are likely to starve to death before they can be rescued. They decide
that one of them should be killed and eaten, so that the others might survive. They determine who
should be killed by throwing a pair of dice. After the four survivors are rescued, they are charged and
found guilty of the murder of the fifth explorer. If their appeal to the Supreme Court of New Garth fails,
they face a mandatory death sentence. Although the wording of the statute is clear and unambiguous,
there is intense public pressure to spare the men from the death penalty.

This case offers five possible court responses. Each differs in its reasoning and on whether the survivors
should be found guilty of breaching the law. Two judges affirm the convictions, emphasizing the
importance of the separation of powers and literal approach to statutory interpretation. Two others
overturn the convictions; one focuses on "common sense" and the popular will while the other uses
arguments drawn from the natural law tradition, emphasizing the purposive approach when applying
law. A fifth judge, who is unable to reach a conclusion, recuses himself. As the court's decision is a tie,
the original convictions are upheld and the men are sentenced to death.

Two judges affirm the convictions

Chief Justice Truepenny

Statute is unambiguous and must be applied by judiciary notwithstanding personal views. Clemency
is a matter for the executive, not the judiciary. Court should joint petition to Chief Executive for
clemency. Affirms convictions but recommends clemency

Justice Keen

Criticizes Chief Justice's proposed appeal to Chief Executive for clemency given need to respect
separation of powers; should only make appeal in capacity as private citizens. Moral considerations
are irrelevant in applying the statute. Affirms convictions

Two others overturn the convictions;

Justice Foster

Defendants were in a "state of nature" so New Garth’s normal laws did not apply to them; the laws
of nature would allow them to agree to sacrifice one's life to save the other four. If the laws of
Newgarth do apply, then a purposive approach must be taken to the statute. Judges can find an
exception to the law by implication, as the courts had earlier done with self-defense. Principal
 purpose of the criminal law – deterrence – would not be served by convicting the defendants. Sets
aside convictions

Justice Handy

Court should take account of public opinion and "common sense “Aware that 90% of the public
want the men to face a lesser punishment or be released. Has heard rumors that the Chief Executive
will not commute the sentence despite strong public opinion. Sets aside convictions

A fifth judge, who is unable to reach a conclusion.

Justice Tatting

Criticizes Justice Foster's approach. The natural law under the posited "state of nature" prioritizes
freedom of contract above the right to life, which Tatting argues is absurd. Purposive approach to
statutory interpretation is difficult when there are multiple purposes (here, retribution and
rehabilitation) Cannot decide case due to competing legal rationales and emotions. Withdraws from
case and makes no decision

PHILOSOPHY
As a branch of knowledge, it covers 6 main aspects.
Otology

which is the study of being, example why is you here? We try to analyses the very existence of man
and other realities

Epistemology

the theory of knowledge, we ask how do you know? How does the child know and what assist him
to know?

Ethics

study of about morals.

Logical

a study of concept reasoning /argumentation

Theology

Is the analysis of religion

Aesthetes

The study censured cognition i.e. the study of how you know the world around you through your
own senses.
In propounding ideas philosophers have fallen into two main blocks/groups,

 Idealistic
 Materialistic trend.

IDEALISTIC TREND:
It has three main characteristics
• The material world is dependent on the spiritual world. i.e. the material world is
determined by the spiritual world.
• The spirit /mind come and does exist in separation from matter i.e. a spirit or an
ideal or your own cognition exist independent from matter.
• That there exist a realm of the mysterious and the unknowable above and beyond
what can be known and ascertained by perception, experience or science.

MATERIALISTIC TREND :
(i) They say the world is by its very nature material and every thing which exists
came into being on the bases of material causes, arises and developed in
accordance with the laws of motion of matter.
-Matter was their Internet

(ii) Matter is objective reality existing outside and independent of mind, that is the
material we have existed independent from what you know from your mind.
-Everything mental /spiritual is a product of material processes.
iii) The material world /nature and its laws are knowable, i.e. there is nothing you
can’t know, while Marx in the material world may not be known.
-There is no unknowable fear of reality which lies outside the material world i.e.there is nothing apart
from matter.

HISTORY OF PHILOSOPHY

Philosophy is the highest thought of abstraction and thought. Philosophy has its origin at a certain
period of time.In the primitive mode of production everything was communally owned.During this
period, man depends on nature i.e. was only hunting and gathering, No philosophy. Man was tied to
nature with no time to reflect and to understand nature. The level of critical thinking was very low.
Development of productive forces i.e. means of labour led to the coming of slave mode of production,
initially they came with division of labour. Other people cultivating, others were herding cattle.

Later on there was a division between mental and manual labour, in this development, there was a
division of society into classes. There were two modes of classes.
1. Slave owned class

2. Slave themselves.
Slave owners had leisure time; slave owners could think others and the society. The
thinking group belong to the ruling class. Philosophers during this period were from the
ruling class. Apart from this development there was other development.
I. This was the art of writing developed from Egypt, i.e. there is Alphabet

II. There was a system of counting numbers that encouraged thinkers

II. An increase for commodity production of exchange, which led to development ofmoney. Originally
there was exchange for goods. Thereafter there was a universal equivalent, which was “money”.
-Philosophers started to understand nature.

MYTH AND TOTEMISM.

The earliest form of philosophy was in the form of myth and totemism.
The life of the earliest man was regarded as ignorant. Man did not understand nature and then he
resorted to myth in trying to explain what was around him. He looks on explanations to explain nature.
They tried to think the reality with a particular object for instance Stone. There were some links with
certain object called “Totem” so they link the society with certain objects. Totem was a mixture of
beliefs of a particular clan/society.

PRE CLASSICAL PHILOSOPHY IN ANCIENT GREEK

Around 6th and 5th century. There were two classes: -
(I) Slaves

II) Slave owners

Philosophers

1. Thales
2. Anaximanders
3. Aneximenes

The ideas of these philosophers.

 They did not distinguish natural and supernatural but to them was the same thing.
 Their ideas were based on simple observation of nature and not science.
 Their works referred as “Natural philosophy”

THALES 585 BC

Was interested in astronomy, geometry and engineering, Commerce and philosophy. He took time
to explain how the world began. He said the world evolved out of water since everything has moist
characteristics. And he said, whoever made the world whether natural or super natural he was a
farmer. He called him a master farmer who reclaimed the earth from the water. He said that the
world is floating over the water.

ANEXIMANDER 612 BC
 He said that the world was formed from unlimited powers that are immaterial (i.e. not matter)
imperishable and endowed with motion as a source. He said that the unlimited power composed 2
powers in opposite. One is the hot and cold. Two is the wet and dry. As consequences of motion,
these opposite elements dry, hot and cold led the formation of the earth and other objects around
it.

ANAXIMENES

He said that the world come from the air. He said that the air became more and more and lighter
and formed fire. Made the air condense as a result producing water earth. He was not strictly talking
law but nature.

There are three premises resting on these philosophers

1) Common origin of the universe, they are saying that the universe had evolved from a single mass
2) The universe is always moving i.e. perpetual motion
3) Development consists of conflict of movement. They are talking about developments. It is a step to
explain myths.
Their explanation was rational to explain nature. It was a result of their own thinking, (i.e. by simple
thinking)
The level of thoughts or standard of ideas goes hand in hand with the change of economy. The economy
was a factor of development.
Schools of Jurisprudence

1. The Natural Law School. This school explained everything I the context of nature.
2. Legal Positivism/Analytical Jurisprudence: It rejects natural law.
3. Sociological Jurisprudence There is a branch called the Realist School Movement; in which you
get, - American Realism- Scandinavian Realism This school looks the law as it is. Here the law is
viewed as a phenomenon i.e. law comes from the society
4. The Historical School: Law to them is a historical phenomenon.
5. The Marxist School/ theory

The Natural Law school.

Natural law is known as a higher law or the law of nature which has been continually dominating the
entire basis of politics, Law, Religion and social philosophy. Natural law is said to be these sets of
unwritten law which contains the principles of ought as revealed by the nature of man or reason or
derived from God.

 Natural law is a philosophy of law that forces on the law of nature. This school of jurisprudence
represents the belief that they are inherent laws that is common to all societies.
 Natural law is also known as the moral law Divine law, the law of God, law of Reason, law of
nature, Universal law and unwritten law.
 The sources of Natural law were that-
 God
  Nature
 Reasons

FREDRICK ENGELS.

He gave the materialistic conception of Natural Law. To him natural law is an ideology of what you
believe.
Division of natural law

Natural law can be broadly divided into four period:

1. Ancient period/classical period

2. Medieval period/Middle Ages
3. Renaissance Period
4. Modern period

1. Ancient period/classical period

The story of natural law behind the philosophers of ancient Greece. The Greeks traditionally regarded
law as being closely related to justice and ethics.

The ancient period is further divided into two periods that are:

A. Greek period

The main authors of Greek period are as follows;

Socrates

According to Socrates “Law is a product of correct reasoning”1. ‘Human insight’ that a man has capacity
to distinguish between good and bad and is able to appreciate the moral values

Plato

It is a supporter _ minimum governance policy means “ultimate” justice is discoverable through reason.
Plato also supports the Socrates theory of Natural law.

Aristotle

It believes that Natural law has elements of reason, justice and ethics

According to him, man is a part of nature in two ways: Firstly, he is the part of the creatures of the god
and secondly, he possesses insight and reason by which he can shape his will

B. Roman period

The main author Roman periods as follows: -

Cicero

He said the law is the highest reason, implanted in nature which commands what ought to be done and
forbids the opposite.

2. Medieval period/Middle Ages

It is a time of catholic philosophers or logicians of the Middle Ages gave a new theory of ‘Natural law’

Church fathers were the philosophers and they include the following:

ST. AUGUSTINE

He was a Bishop of Roman Catholic church and he represent the ideas of Natural law as developed
by church fathers. He came with different theories based on justice and the state. He wrote a book
called “THE CITY OF GOD” or “DE CIVITATE DEI” In this book he discussed about human institution.
He said all man social institutions are sinful including the State. Man can only justify his institution by
creating those which corresponds to the likeness of the City of God. He said since man’s mission is to
approximate the likeness of God, it follows that this institution should approximate that of God.

ST. THOMAS AQUINAS

He was a church father and a professor of theology. During that time the church and the state were
very close. He wrote a book called SUMMA THEOLOGICA, He tried to reconcile the conflicts between
Natural law and positive law. He defined law as an ordinance of reason for common good made and
promulgated by him who has the care of the community. He disagrees with ST. AUGUSTINE that
human beings are evil. He said, the foundation of all laws is divine law. That human inclination and
reasoning have a certain role in realization of law.
St. Thomas classified law into four groups:

 Lex eterna (Eternal law)

 Lex naturale (Natural law)
 Lex humana (Human law)
 Lex divina (divine law)

Eternal Law

That law which exists because of God’s Divine Providence As God created the Universe, the Universe
is governed by His laws. Eternal law is the basis for all other kinds of laws.

Divine law

Divine law is derived from eternal law as it appears historically to humans, especially through
revelation, i.e., when it appears to human beings as divine commands. Divine law is divided into Old
Law and New Law which corresponded with the Old and New Testaments of the Bible. Old Law
commands conduct externally, and it reaches humans through their capacity for fear. In obedience
 to this Law, earthly rewards are promised through social peace and its benefits. New Law commands
internal conduct and it reaches humans by the example of divine love. It promises heavenly reward.

Natural Law

The natural law is deeply connected to the eternal law and provides precepts orienting rational
beings to their end established by the eternal law. Natural law precepts thus rise up out of the
eternal law as the frame of a building rises out of the foundation. Basic formulation: “do good, avoid
evil”

Human (Positive) Law

Thomas thinks of human laws as laws, devised by human reason, adapted to particular geographical,
historical and social circumstances. Human laws are subject to change, according to Aquinas,
because experience in practical matters may allow us to improve them. A means to enable man to
live virtuously

3. Renaissance Period

It is revival of learning as scholar re-studying Greeks and Roman instead of relying on scriptures, they
looked at the purpose of human life itself to extract Natural law principles

The main authors of Renaissance period are as follows: -

Hugo Grotius

It is known as father of international law. Grotius built his legal theory on ‘Social Contract’. His view
in brief is that political society rest on a ‘social contract’ It is the duty of the sovereign to safeguard
the citizens because the form was given power only for that purpose

Thomas Hobbes

It was a supporter of absolute power of the ruler and subjects had no right against the sovereign

4. Modern period

The modern period is further divided into two that is: -

A. 19th century unfavorable to natural law.

The decline of natural law theories took place in the 18th- 19th Century with the advancement of
empirical methods of study and scientific behavior. Natural law theories were denounced primarily
because its source was said to be a divine entity. The profounder Austin rejected Natural law on the
ground that it was ambiguous and misleading and mercilessly criticized the natural law school as
“simple nonsense, natural and imprescriptible right rhetorical nonsense upon stilts.”

B. 20th century the Revival of Natural

Towards the end of the 19th century, a revival of the natural law theories took place. It was due to
many reasons. The reaction against 19th-century legal theories which had exaggerated the
importance of ‘positive law’ was due and theories which over emphasized positivism failed to satisfy
the aspiration of the people because of their refused to accept morality and reason as an element of
law. Positivists discouraged the philosophical speculations about the purpose and nature of law as
propounded by Natural Law lawyers. They argued that there is no need of searching for ultimate
value of behind the law.
Reasons for Revival of Natural Law in 1945 after the WWII. Conflicts within the capitalist system
which led to two world wars where by many people died and great suffering was occasioned i.e.
The events of WWI & WWII prompted the attitude of evaluating human action which led to
evaluation of Law. The fascist government which were the authors of the two wars had very
repressive state as a result citizen and foreigners under this regime suffered a lot under the hand of
this government.