Jurisprudence-1

by
Dr. Usman Hameed
What is Jurisprudence?
What is it all about
• Jurisprudence seeks to answer fundamental questions about law.
What is law? What is its purpose? Does it consist merely of rules?
What has law to do with justice or morality or democracy? What
makes a law valid? Do we have a duty to obey the Law. These
theoretical question constitute the fabric of jurisprudence & legal
theory.
• Jurisprudence concerns theoretical analysis of Law. The words
‘jurisprudence’, legal theory’ & ‘legal philosophy’ can be used
interchangeably.
• ‘Legal theory’ is used to denote theoretical enquiries about law.
Nature of jurisprudence-2
• Jurisprudence is informed by economic, political & social theory.
• The purpose of course of jurisprudence is to include an examination
of leading legal theories, and selected legal concepts & an attempt to
place them in the context of the legal system.
• It requires an analysis of general theoretical questions about the
nature of laws & legal systems in modern societies and the
relationship of law with justice and morality.
Why Jurisprudence?
• Jurisprudence has generous frontiers.
• No society can be properly understood or explained without a
coherent conception of its law & legal doctrine.
• The social, moral & cultural foundations of the law & and the
theories which both inform & account for them are no less
important than law’s black letter.
• Among many topics within legal theory is that of the definition of
law as well as legal concepts. We cannot begin our analysis of law &
legal system without some shared understanding of the meaning of
law.
Descriptive, normative & critical legal
theories
• Descriptive legal theory seeks to explain what the law ‘is’ and why,
and its consequences.
• Normative legal theory is concerned with what the law ‘ought to be’.
• Descriptive legal theory is about facts, normative legal theory is
about values.
• Critical legal theory questions the very foundation of jurisprudence.
This theory has misgivings about the concept of a universal
foundations of law based on reason.
Speluncean Explorers
• A launching pad for comprehension of legal ideas is Fuller’s hypothetical case
of Speluncean Explorers.
• It contains five judgements of the Supreme Court of Newgarth in year 4300.
Four members of speluncean were trapped in an underground cave. On the 20 th
day of their ordeal the ill fated explorers decided that they could avoid death by
starvation before they could be rescued only if they killed & ate one of their
number. The idea was proposed by whetmore one of the explorers, that they
should roll dice to determine who should be eaten. After long discussion, this
was accepted whereupon whetmore declared that he withdrew from the
agreement. The others decided to proceed & one of them roll the dice on
behalf of whetmore’s behalf. The throw went against him & whetmore was duly
killed & eaten. The survivors were eventually rescued & charged with murder.
Speluncean explorers-2
• Each of the 5 judges adopts a different approach & conclusion to the
case. And each of the judge reflects a different personality.
• The Chief justice Truepenny is a self important formalist. Keen J is an
unyielding positivist.
• Tatting J is indecisive & rather tutored.
• Handy J is an arch realist.
• Foster adopts a purposive vision of law.
The case was constructed for the sole purpose of bringing into common
focus certain divergent philosophies of law & government.
Speluncean Explorers-3
• 1. Is it morally justifiable/ definsible to kill & eat a human being?
• 2. Regardless of morality, is it legally justifiable to kill & eat a human to
save one’s life?
Decision:
The court is equally divided in determining the guilt of the accused.
Tatting J is uncertain of morality of defendant’s actions. Truepenny CJ &
Keen J conclude that the defendants were despite the circumstances
guilty of murder. Handy & Foster JJ would overturn the conviction. As a
result the court is split & defendant’s conviction is upheld.
Speluncean Explorer-4
• Truepenny CJ & Keen J justify their decision by focusing on what
they conceive to be the clear language of the legislature. They also
suggest moral considerations are irrelevant in applying the statute.
Tatting J withdraws on the basis he cannot reach a decision. Foster J
appeals to the purpose of Law & states If laws of the country are to
apply, their purpose must be taken into account. Handy J rests his
decision on ‘common sense’ supported by articulated public
opinion.
• The most significant contrast is between the standpoint of Handy &
Foster JJ. The former is a realist who conceives law as a matter of
practical politics.
Rule of Law
• Dicey’s three principles of Rule of law:
• 1. No man is punishable or can be made to suffer in body or goods except for
distinct breach of law established in the ordinary legal manner before ordinary
courts of the land.
• 2. Every man whatever be his rank or condition is subject to ordinary law of the
realm & amenable to jurisdiction of the ordinary tribunals.
• 3. The British constitution is pervaded by rule of law on the ground that general
principles of the constitution (such as fundamental rights) are with us as a result
of judicial decisions determining rights of private individuals in cases brought
before the court. For Dicey individual liberty is more secure where it was product
of judicial decisions rather than being susceptible to repeal by government.
Jurisprudence Defined
Roman:
• The study of jurisprudence started with Romans. The Latin equivalent
of Jurisprudence is ‘Jurisprudentia’ which means either ‘knowledge of
Law’ or ‘skill in law’. Ulpian defines jurisprudence as ‘knowledge of
things divine & human, the science of just or unjust.’
• English:
Bentham distinguished between examination of law as ‘it is’ & as it
‘ought to be’ (expositorial & censorial jurisprudence).
The word ‘jurisprudence’ has come to mean in England almost
exclusively an analysis of the formal structure of law & its concepts.
Jurisprudence Defined2
• Austin:
The view of Austin is that the science of jurisprudence is concerned with positive law,
with “laws strictly so called”. It has nothing to do with goodness or badness of law.
Austin divided the subject into general & particular jurisprudence. General
jurisprudence includes such subjects or ends of law as are common to all legal
systems while particular jurisprudence is confined only to the study of any actual
system of law or any portion of it. However, in both cases, the subject of jurisprudence
is positive law.
Example: Possession is one of the fundamental legal concepts recognized by all
systems of law. The function of jurisprudence is to explain its characteristics, its legal
value & modes of acquisition & extinction. General jurisprudence will analyze it
without reference to any particular legal system but particular jurisprudence will do
the same with reference to some particular system of law. (such as law of Pakistan)
Jurisprudence Defined3
• Holland:
Holland defines jurisprudence as the ‘formal science of positive law’.
The term positive law has been defined by Holland as the ‘general
rule of external human action enforced by sovereign political
authority.’ Holland follows Austin’s definition but he adds the term
‘formal’ which means that which concerns only the form & not its
essence.
Thus, according to Holland, jurisprudence is not concerned with the
actual material contents of law but with its fundamental
conception.
Jurisprudence Defined4
Crux of Holland
• Jurisprudence is not the science of those portions of the law which
various nations have in common, but the science of those relations
of mankind which are generally recognized as having legal
consequences.
• Jurisprudence deals rather with the various relations (contract etc)
which are regulated by legal rules than with the rules which regulate
those relations.
Jurisprudence Defined 5
• Salmond
Salmond defines jurisprudence as ‘the science of law’. By law he means law
of the land or civil law.
Salmond makes a distinction between use of the term jurisprudence in
generic & specific sense. Generic jurisprudence includes the entire body
of legal doctrines whereas specific jurisprudence deals with a particular
department of those doctrines.
In specific sense salmond has made a division of the subject into 3 branches
of analytical, historical & ethical jurisprudence. For a comprehensive
treatment of the subject, all the 3 branches must be studied.
Jurisprudence Defined 6
• Keeton:
Keeton consider jurisprudence as ‘the study and systematic arrangement of
general principles of law’. Jurisprudence considers the elements necessary
for the formulation of a valid contract but it does not attempt to enter into
a full exposition of the detailed rules of the law of contract, either in English
law or in other systems.
Gray:
Jurisprudence is the science of law, the statement & systematic arrangement
of rules followed by the courts and the principles involved in those rules.
Jurisprudence Defined 7
• Allen:
Jurisprudence is the scientific synthesis of all the essential principles of law.
Paton:
Jurisprudence is particular method of study, not of law of one country but
the general notion of law itself. It is a study of law in general.
Clark:
Jurisprudence is the science of law in general, it does not confine itself to
any particular system of law but applies to all systems of law or to most of
them. It gives general ideas, conception & fundamental principles on
which all or most of the systems of the world are based.
Modern definition of Jurisprudence
• Dias & Hughes:
Jurisprudence can be described as any thought or writing about law,
other than technical exposition of a branch of the law itself.
So if X writes a book on economic effects on the families of convicted
prisoners of their conviction, this could be called a contribution to
jurisprudence.
In short, jurisprudence is the study of fundamental legal principles.
At present juncture, the term jurisprudence may be described as any
thought or writing about law & its relation to other disciplines
philosophy, psychology, economics and many more.
Scope of Jurisprudence
Austin’s View:
• It goes to the credit of Austin that he distinguished law from morality & theology and
restricted the term jurisprudence to the body of rules set and enforced by sovereign or
supreme law making authority within the realm. Thus, the scope of jurisprudence was
limited to study of the concepts of positive law, and ethics & theology fall outside the
province of jurisprudence
Present View:
Now, there is a tendency to widen the scope of jurisprudence & at present we include
what was previously considered to be beyond the province of jurisprudence. The
present view is that the scope of jurisprudence cannot be circumscribed or
regimented. It includes all concepts of human order & human conduct in state &
society. Anything that concerns with order in state & society falls under the domain of
jurisprudence.
Scope of Jurisprudence2
• According to P.B Mukherji, jurisprudence is both an intellectual &
idealistic abstraction as well as behaviouristic study of man in
society. It includes political, social, economic & cultural ideas. It
covers the study of man in relation to state & society.
• In the words of Lord Redcliffe, jurisprudence is a part of history, a part
of economics & sociology, a part of ethics & philosophy of life.
Significance & utility of jurisprudence
• It is as natural to generally speculate on nature of law as on the nature of light. Researches
in jurisprudence may have repercussions on the whole of legal, political & social thought.
• Practical value:
• The reflection can mean improvement in law. The English law of ‘negligence’ has
progressed from a host of individual rules about particular types of situations to a general
principle. One of the task of jurisprudence is to construct & elucidate concepts serving to
render the complexities of law more manageable & more rational. In this way, theory can
help to improve practice.
• Educational Value:
The logical analysis of legal concepts sharpen the logical technique of the lawyer. The study
of jurisprudence can also help to combat the lawyer’s occupational view of formalism
which leads to excessive concentration on legal rules for their own sake & disregard the
social function of law. Law is to be put in proper context by considering the needs of society
& by taking note of the advances in related & relevant disciplines.
Significance & utility of jurisprudence2
Example
• A proper grasp of the law of contract may require some understanding of
economics & economic theory, a proper grasp of criminal law, some knowledge
of criminology & psychiatry.
Looking sideways
• Jurisprudence can teach the people to look sideways & around them & realize
that answers to new legal problems must be found by a consideration of the
present social needs & not in the wisdom of the past.
• By understanding the nature of law, its concepts & and distinctions, a lawyer can
find out the actual rules of law.
Significance & utility of jurisprudence3
• Training of students:
Jurisprudence trains the critical faculties of its students so that they can
detect fallacies & use actual legal terminology & expression.
In his practical work, a lawyer has to tackle new & difficult problems which he
can handle through his knowledge of jurisprudence which trains his mind
into legal channels of thought.
For example, a question may arise whether a certain person is entitled to
certain property by virtue of adverse possession for more than prescribed
period of time. His knowledge of jurisprudence will tell him what
constitutes possession & that will help him in tackling the problem before
him.
Significance & utility of jurisprudence4
• Legislators:
Jurisprudence helps legislators by providing them a precise &
unambiguous terminology. It relives them of the botheration of
defining again & again in each Act certain expression such as right,
duty, possession, ownership, liability, negligence etc.
Judges & Lawyers:
Jurisprudence helps the judges & lawyers in ascertaining the true
meanings of the laws passed by the legislatures by providing rules of
interpretation.
Significance & utility of jurisprudence5
• Improving Law:
The true purpose of the study of jurisprudence should not be confined to the study of
positive law alone but must include normative study. That study should deal with
the improvement of law in the context of prevailing socio-economic & political
philosophies of time, place & circumstances.
Social engineering:
• One should agree with Pond’s philosophy of regarding law as ‘social engineering’ the
utility of which should be tested every now & then by the jurists who should
improve its quality at every stage.
Teachers:
• Teachers of law hope to encourage their pupil to learn how to think rather than what
to know & jurisprudence is particularly suited to this end.
Relation of Jurisprudence with other social
sciences
• All social sciences stand in close connection with one another. All of
them study the actions of human beings though from different
angles & with different ends.
• According to Julius Stone, jurisprudence is lawyer’s examination of
the precepts, ideals & techniques of law in the light derived from
present knowledge in disciplines other than law.
Jurisprudence & sociology
• There is a separate branch of sociological jurisprudence based on
sociological theories & is essentially concerned with the influence of
law on society at large, particularly social welfare.
• The sociological approach to legal problems is essentially different
from that of a lawyer. In case of crime in society, its causes are to a
great extent sociological & to understand their pros & cons one
must have a knowledge of society.
• Sociology has helped jurisprudence in its approach to the problem
of prison reforms & has suggested ways & means of preventing
social wrongs.
• Behind all legal aspects, there is something social. The causes of
crime are partly sociological & an understanding of sociology helps
the legislators in their task of prison reforms & prevention of crime.
Jurisprudence & Psychology
• Psychology has been defined as the science of mind and behavior. No
science can be discussed properly without a thorough knowledge of
human mind & hence its close connection with jurisprudence.
• Both psychology & jurisprudence are interested in solving such
questions as the motive for crime, a criminal personality, whether a
criminal gets pleasure in committing a crime, why are there more
crimes in one society than another & what punishment should be
given in in any particular case.
• It is the duty of a lawyer to understand the criminal & working of a
criminal mind. Similarly, it is the duty of law giver to understand
man & not to pass judgment & say what man ought to do or ought
not to do. Psychology can help law maker not only in making &
executing the law.
Jurisprudence & Economics
• Economics studies man’s effort in satisfying his wants & producing &
distributing wealth.
• Economics is the science of wealth & jurisprudence is the science of
law. There is a close relationship between the two. Very often
economic factors are responsible for crimes. The aim of economist is
to improve the standard of life of the people & also to develop their
personality.
• Jurisprudence teaches the legislators how to make laws which will
promote social & economic welfare.
• Both jurisprudence & economics aim at betterment of the lives of
people. There are laws relating to workmen’s compensation, laws
relating to insurance, welfare, bonus & leave facilities for workman.
Synthetic Jurisprudence
• The necessity for synthetic jurisprudence arises from the fact that it is
necessary to determine the truth from all aspects & from all angles.
• Knowledge is a synthetic whole & cannot be divided into water-tight
compartments. It is our duty to amalgamate half truths in order to
form the whole truth.
• Synthesis enables us to reconcile the conflicting theories. In
synthetic jurisprudence, we study the various topics & theories from
the point of view of synthesis. We analyze, we retrospect, we
compare, we philosophize, we socialize & we synthesize.
• The fruits of synthesis are well balanced & well digested truths.
• The advocates of synthetic jurisprudence consider jurisprudence as
a study of fundamental legal principles, including their historical,
philosophical, scientific & sociological basis & including an analysis