Lesson-1 An Introduction To Jurisprudence

Lesson-1: An Introduction to Jurisprudence
School of Law
Quaid-i-Azam University Islamabad
Lesson-1
An Introduction
to
Jurisprudence
Copyright © Shaukat Hayat 2018
َّ َ ْ َّ َّ ْ
‫ِبس ِم الل ِه الرحم ِن الر ِحيم‬
Copyright Notice
All rights concerning this presentation are
reserved. No part of this presentation shall be
reproduced or transmitted in any form or by any
means electronic, mechanical or an information
retrieval system, without the written permission
from the author.
Shaukat Hayat,
School of Law,
Quaid-i-Azam University,
Islamabad.
Teacher’s Introduction-I
 Academic Qualifications:
 LL.M in Commercial & Corporate Law from the University of
London, U.K (2000);

 LL.M in Islamic Laws from the IIUI (1987);
 LL.B from the University of Peshawar (1981);
 Legal Practice:
 Practiced as an advocate at Peshawar District Courts (1981-83);
 Teaching Experience:
 Department of Law, International Islamic University, Islamabad
(1987-2013);
 The School of Law, Quaid-i-Azam University, Islamabad (2015- to
date).
 Coordination of Courses:
 Conducted training courses for Session Judges, Prosecutors,
Attorneys, Police Officers and the Law Officers of the JAG

branches of the Armed Forces (2007-2013);
Teacher’s Introduction-II
 Study Tours:
 Visited the Arab Republic of Egypt, the Kingdom of Saudi Arabia
and the Republic of Sudan as head of delegation for the study of
the judicial and legal systems of the brotherly states.
 Publications:
Authored many research articles and the following two books:
 “An Islamic Code of Judicial Conduct” (2000);
 “A Contemporary Discourse on the Islamic Law of Civil
Procedure” (2012).
 Contact Details:
 WhatsApp Only: +923325496782,
 E-Mail: shaukath871@outlook.com,
 Link of the Group, “Jurisprudence” on Facebook:
https://www.facebook.com/groups/549043921937524/

Meaning and Definition of Jurisprudence-I

 Different meanings have been assigned to the term
“Jurisprudence” by different Jurists.
 The term, “Jurisprudence” is derived from the Latin
word “Jurisprudentia” which is made of two words
“Juris” meaning “law” and “Prudentia” meaning
“knowledge” which essential means, “Knowledge of
Law”.
 In simple words, it can be said that jurisprudence is a
certain type of investigation into law, an investigation
of an intellectual, general and theoretical nature,
which try to find essential principles of law and legal
systems.
 Therefore, jurisprudence deals with “knowledge of
law” and not “the law”.
1)- John Austin’s Definition

 John Austin (1790 –1859) was a noted
English legal theorist who strongly
influenced British and American law with
his analytical approach to jurisprudence
and his theory of legal positivism.
 He defines jurisprudence as "the philosophy
of positive law."
 He is of the view that the appropriate
subject of jurisprudence is a positive law
i.e. law made and enforced by the state on
its subjects.
Austin’s Classification
of Jurisprudence-I
 Austin divides jurisprudence into the following
two classes:
1) General jurisprudence:
 By “General Jurisprudence” is meant
science of positive law not limited to one
particular place. It is a science of different
systems of laws obtaining in different
societies.
 It is universal in nature and takes account
of various systems of law and thus is also
called as pure or universal jurisprudence.
Austin’s Classification
of Jurisprudence-II
2. Particular Jurisprudence:
 According to Austin “Particular Jurispru-
dence” is the science of a particular
system of law, present or past. Such as
the present legal system of the United
Kingdom or in past the legal system of
the Roman Empire.
 The Particular Jurisprudence is confined
to the legal system of one particular state
and is, therefore, sometimes termed as
“National Jurisprudence” as well.
Austin’s Classification of Law

a) Positive Law:
The phase, ”Positive Law” refers to laws
made by man. These are statutes, codes,
and regulations that have been enacted by
a legislature.
b) Natural Law:
“Natural Law” refers to the principles that
are universal, governing moral and religious
actions. The examples of Natural Laws can
be the moral values of a society or the
religious duties of the individuals.
2)- Salmond’s Definition-I

 Sir John William Salmond (1862 –1924)
was a legal scholar, public servant and
judge in New Zealand.
 Salmond defines Jurisprudence as the
"Science of civil law".
 In Salmond's point of view, Jurisprudence
thus deals with civil law or the law of the
state.
 This kind of law consists of rules applied by
courts in the administration of justice.

2)- Salmond’s Definition-II

 There are three kinds of laws that govern the conduct of
human in a society:
a) Theologian Laws:
Theologian Laws derive their authority from a divine or
superhuman source intended to regulate human conduct as
well as beliefs and are enforced by spiritual rewards or
penalties in the other world.
b) Moralist Laws
Moralist Laws are man-made that exist in all societies.
There is no definite authority to enforce the laws, but the
public opinion.
c) Jurist Laws:
Jurist Laws regulate external human conduct only and not
inner beliefs. They can exist in politically organized
societies, which has a Government. They are enforced by
courts which applies a variety of sanctions ranging from
fines to capital punishments.

Salmond’s Classification of Jurisprudence

 Salmond has divided jurisprudence into the following two kinds:
1) Generic Jurisprudence:
This kind of jurisprudence includes the entire body of legal principles i.e. the
entire legal systems.
2) Specific Jurisprudence:
This kind of jurisprudence deals with the particular portion of the principles of
a legal system, such as rights, contract or punishments etc.
He has divided Specific Jurisprudence into the following three kinds:
a) Analytical Jurisprudence:
Analytical jurisprudence deals with the contents of an actual legal system
existing at any time, past or the present such as the Equity and Common
Law system of the U.K.
b) Historical Jurisprudence:
Historical jurisprudence is concerned with the legal history and its
development.
c) Ethical Jurisprudence:
Ethical jurisprudence deals with the ‘ideal’ of the legal system and the
purpose for which it exists. In other words this kind of jurisprudence deals
with the law as it ought to be.
3)- Holland’s Definition

 Sir Thomas Erskine Holland (1835 –1926)
was a British jurist.
 He has defined jurisprudence as the “formal
science of positive law.”
 Jurisprudence in this view should concern
itself with the general portion of legal
principles.
 It should deal with the general conceptions
and pervading principles that constitute the
basis of any system of laws.

4)- Gray’s Definition

 Sir Horace Gray (1828–1902) was
an American jurist.
 Gray also defined ‘Jurisprudence’
more or less in the same manner.
 He is of the view that:
“Jurisprudence is the science of law,
the systematic arrangement of the
rules followed by the courts and the
principles involved in these rules.”

Contents of Jurisprudence
 There are divergent views regarding
the exact contents of jurisprudence.
 However, it has been generally
accepted that the following constitute
the main premises of the study of
jurisprudence
1) Sources;
2) Legal Concepts; and
3) Legal Theory.

1)- Sources
 It is well known that the basic feature
of a legal system is mainly to be
found in its authoritative sources.
 Therefore, they obviously form the
content of jurisprudence because
jurisprudence essentially deals with
sources of law;
 It means that the first thing with
which jurisprudence concerns is the
sources of law.
2)- Legal Concepts

 Another important area with which
jurisprudence has concern is the
analysis of legal concepts;
 Such as rights, property, ownership,
contracts and different liabilities etc.
 The study of these legal concepts
furnishes a background for better
understanding of law in its various
forms.
3)- Legal Theory

 Legal theory is concerned with law as
it exists and functions in the society
and manner in which it is created and
enforced as well as the influence of
social opinion and law on each other.
 The example of legal theories may be
Vicarious Liability, Self Defence,
Burdon of Proof etc.

Significance of the
Study of Jurisprudence-I
1) Jurisprudence discloses knowledge of general ideas and principles
of all legal systems, that is why it is called eye of the law.
2) It teaches some fundamental concepts like negligence, liability
mens rea etc. Therefore, it helps the Judges and Lawyers to find
out true meaning of law.
3) Jurisprudence helps in the logical analysis of the legal concepts
and it sharpens the logical techniques of the lawyers and law
students.
4) Jurisprudence is some times is called the eye of law as well as the
grammar of law. This is because it throws light on basic ideas and
fundamental principles of law. By understanding the nature of law,
its concepts and distinctions, a lawyer can find out the actual rule
of law.

Significance of the
Study of Jurisprudence-II
6) Jurisprudence provides logical training for lawyers
and law students which they can find from the
study of Jurisprudence.
7) Jurisprudence trains the critical faculties of the
mind of the law students, consequently, they can
avoid mistakes and use accurate legal terminology
and expressions in the arguments they construct.
8) A lawyer always has to come across novel
situations and problems every day. This he can
handle through his knowledge of Jurisprudence
which trains his mind to find alternative legal
solutions and remedies.
Schools
of
Jurisprudence
1)- Analytical School of Jurisprudence-I
 The Analytical School of Jurisprudence is also

called “Positivist School of Jurisprudence”
because it considers law as “it is” and not as
“it ought to be”.
 The viewpoint of the exponents of this school
is based on the following two principles:
a) Law is the command of the sovereign
enforced upon the subjects of the state i.e.
law is made only by the sovereign authority
of the stale. The law made by any other
source is not law.

1)- Analytical School of Jurisprudence-II
b) Physical force of the state behind

the law is the essence of law i.e.
therefore, what cannot be enforced
by the physical force of the state
can not be called law in the true
sense of the term.
 The Analytical School of Jurispru-
dence says that laws must be made
by the state in the interest of general
public.
2)- Historical School of Jurisprudence

 The exponents of the Historical School of
Jurisprudence are of the opinion that law is an
outcome of a long historical development of the
society;
 They say that law is the outcome of the social
custom, conventions religious principles and
economic needs and relations of the people.
 It clearly says that if a law is not according to the
will of the people, it will never be obeyed.
 The merit of this School is that it shows that law
must change with the changes in the society.

Sociological School of Jurisprudence

 According to the supporters of the Sociological School of
Jurisprudence law has its source and sanction in social needs and
necessity.
 They say that every individual has to obey rules because he
understands that only by following rules he can realize all his needs.
 The supporters of this School are of the view that the state does not
create the laws but only formulates, so laws do not came from the
state but from the society i.e. this is the society that urges the state
to make certain law which the society is in need of.
 According to them the sanction behind law is not the force of the
state but the awareness on the part of the individual that his
disobedience will meet with the disapproval of the society. In other
words the members of the society obey laws because they serve their
purposes.

‫‪Lesson-1: An Introduction to Jurisprudence‬‬
‫فرمان رسول هللا صلى هللا عليه و سلم‬

‫حضرت ابوہریرہ رضى هللا عنه سے روایت ہے کہ‬
‫رسول هللا صلى هللا عليه و سلم نے ارشاد فرمایا‪:‬‬
‫“ تم جنت میں نہیں جاسکتے جب تک مؤمن نہ ہوجاؤ‬
‫اور تم اس وقت تک مؤمن نہیں ہوسکتے جب تک آپس‬
‫میں ایک دوسرے سے محبت نہ کرو۔ کیا میں تمہیں وہ‬
‫عمل نہ بتادوں جس کے کرنے سے تمہارے درمیان‬
‫محبت پیدا ہوجائے؟ سالم کو آپس میں خوب پھیالؤ۔”‬
‫‪Copyright © Shaukat Hayat 2018‬‬

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Lesson-1: An Introduction to Jurisprudence

London, U.K (2000);

 LL.B from the University of Peshawar (1981);

Attorneys, Police Officers and the Law Officers of the JAG

Copyright © Shaukat Hayat 2018

Meaning and Definition of Jurisprudence-I

1)- John Austin’s Definition

Austin’s Classification of Law

2)- Salmond’s Definition-I

Copyright © Shaukat Hayat 2018

2)- Salmond’s Definition-II

Copyright © Shaukat Hayat 2018

Salmond’s Classification of Jurisprudence

3)- Holland’s Definition

Copyright © Shaukat Hayat 2018

4)- Gray’s Definition

Copyright © Shaukat Hayat 2018

Copyright © Shaukat Hayat 2018

2)- Legal Concepts

3)- Legal Theory

Copyright © Shaukat Hayat 2018

Copyright © Shaukat Hayat 2018

1)- Analytical School of Jurisprudence-I

 The Analytical School of Jurisprudence is also

Copyright © Shaukat Hayat 2018

1)- Analytical School of Jurisprudence-II

b) Physical force of the state behind

2)- Historical School of Jurisprudence

Copyright © Shaukat Hayat 2018

Sociological School of Jurisprudence

Copyright © Shaukat Hayat 2018

‫فرمان رسول هللا صلى هللا عليه و سلم‬

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