Jurisprudence 1.pptx

Jurisprudence: What is it?
Mohammad Mamunur Rashid

Definition of Jurisprudence (Contd… )
• Art helps Nature, by reducing such wild, austere, and dangerous
Ground, into a pliable, fine, fertile and, sound Earth.
• William Ellis
• Jurisprudence is the study and theory of law. It includes principles
behind law that make the law. Scholars of jurisprudence, also
known as jurists or legal theorists (including legal philosophers and
social theorists of law), hope to obtain a deeper understanding of
the nature of law, of legal reasoning, legal systems, and of legal
institutions.

• In the celebrated Corpus 1uris Civilis of 534
A.D., the Roman Emperor Justinian proclaimed
A definition of jurisprudence which is Believed
to have originated with the classical Roman
jurist Ulpian. The definition reads As follows:
"Jurisprudence is the knowledge of things
divine and human, the science of the just and
of the unjust."

• Modern jurisprudence began in the 18th
century and was focused on the first principles
of the natural law, civil law, and the law of
nations. General jurisprudence can be divided
into categories both by the type of question
scholars seek to answer and by the theories of
jurisprudence, or schools of thoughts,
regarding how those questions are best
answered.

• Contemporary philosophy of law, which deals
with general jurisprudence, addresses
problems in two rough groups: The latin roots
juris means rule (norm or law) and prudentia
means knowledge (not information or just
legal code). The Romans used the word
jurisprudence as synonymous to law.

• Where there is a systemize branch of
knowledge, there the concept science comes
into existence. As law is a systemized branch
of knowledge, it is a science. The name of the
science is Jurisprudence. This word has its
roots in the Latin word "Jurisprudentia".

Definition of Jurisprudence (Contd…)
• Juris means law and prudentia meaning
knowledge. Thus jurisprudence is knowledge
of law or skill in law. It is the science of legal
principles and philosophy of law which
includes the entire system of legal doctrine.

• Jurisprudence is probably the best defined
negatively as encompassing all kinds of
general intellectual inquiries about law that are
not confined solely to doctrinal exegesis or
technical prescription.

The qualification ‘general’ is important. If
jurisprudence is unified at all it is by a concern
with theoretical generalization, in contrast to
the emphasis on the particular and the
immediate that characterize most professional
legal practice.

Jurisprudence and Legal Practice
• Jurisprudence is the study legal principles. It
helps the legal thinkers to explore the
dimensions of the applicable law.
• How much Legal Philosophy applies in practice
• How it is Science of Law?

Taking Natural Law as an Aspect of
Jurisprudence
• State law should be free from all kinds of in-
built humane and ethical considerations that
has nothing to do with the system of coercive
methods of executing laws through state
machinery.
• Condemnation to the police sate
(Contradiction).
• Political pluralism and Jurisprudence.

Taking Natural Law as an Aspect of
Jurisprudence
• Creation of human beings and natural laws,
God’s Intention
• Colonialism and Crusade enlarged due to
national and ethnical supremacy.

Contextualization of law
• Contextualization makes the adaptable to the
society, existing politics and socio-economics.

Conclusion
• Jurisprudence is the area of study providing
comprehensive knowledge on the legal
principles which would help the learners to
contextualize the concept of law and meaning
of law. It would not mean the codification of
the legal texts merely.

Schools of Jurisprudence: (Analytical
School)
• Its founder was John Austin and hence it is also called
Austinian School. The purpose of analytical
jurisprudence is to analyze the first principles of law
without reference either to their historical origin or
development or their validity. ... The positive law takes
law as the command of the sovereign.
• Analytical school is also known as the positivists. The
proponents of this school had little to do with vague
and abstract notions of natural law. The term
'positivism' was invented by Auguste Comte, a French
thinker.

Analytical School
• The exponents of this school are neither concerned with the past nor
with the future of law but with the law as it exists, i.e. with law 'as it
is' (Positrum). Its founder was John Austin and hence it is also called
Austinian School.
• The purpose of analytical jurisprudence is to analyze the first
principles of law without reference either to their historical origin or
development or their validity.
• Another purpose is to gain an accurate and intimate understanding
of the fundamental functional concepts of all legal reasoning.
• The positive law takes law as the command of the sovereign. It puts
emphasis on legislation as the source of law. It regards law as a
closed system of pure facts from which all norms and values are
excluded.

Analytical School (Importance)
There are few importance of the Analytical
School. These are following. This school
(1) brought about precision in legal thinking;
(2) provided us with clear and scientific
terminology;
(3) Excluded external considerations which fall
outside the scope of the law.

Analytical Schools (proponents)
• Bentham
2. Austin
3. Salmond
4. Holland
5. Hart
Apart from these, this school received
encouragement from Europe from Kelson.
This article primarily deals with Bentham, Austin,
Pound and Salmond to understand the evolution
of this school.

Analytical School (Bentham)
• According to him, no reform of substantive law could be brought
about without a reform of its original form and structure.
• However he drew a distinction between social desirability and
logical necessity, which Austin did not. The model of Austin was the
criminal statute. But Bentham undertook “rational reconstruction”
which is wider that the model of Austin.
In his book An Introduction to ‘the Principles of Morals and
Legislation’, he has moved to ask questions about the penal and
civil code. While investigating its answers, he was led to Laws in
General. What was originally conceived as an appendix developed
into a major consideration which was finished in 1782 and
published in 1945 as The Limits of Jurisprudence Defined.

• Every law according to Bentham has a directive
and a sanctioned part. Here, directive aspect
refers to the aspects of sovereignty will towards
an act situation and the sanctioned aspect refers
to the force of a law. The law in force is
dependent upon motivation for obedience:
political, physical, moral, religious and threats of
punishments and rewards.
• Sanctions are provided by subsidiary law but they
themselves require a further set of subsidiary
addressed to judges to prevent any further evil.

• Jeremy Bentham’s aim in writing An
Introduction to the Principles of Morals and
Legislation was to discover the foundations for
a scientific approach to penal legislation.
Because he found these in human nature,
rather than in statutes and precedents, his
work is also a book on morals.

• Two distinct elements appear in Bentham’s theory. The
first is a psychology of motivation according to which
all the actions of people are directed toward pleasures
or away from pains. The second is a principle of social
ethics according to which each person’s actions ought
to promote the greatest happiness of the greatest
number of persons. That the two principles are
independent in their origin and application is not
altered by the fact that happiness, according to
Bentham, consists in nothing other than pleasure and
the avoidance of pain.

• 1st Part: Principles of legislation in matters of civil,
more distinctively termed private distributive, or
for shortness, distributive, law.
• 2nd Part: Principles of legislation in matters of
penal law.
• 3rd Part: Principles of legislation in matters of
procedure: uniting in one view the criminal and
civil branches, between which no line can be
drawn, but a very indistinct one, and that
continually liable to variation.

• 4th Part: Principles of legislation in matters of reward
• 5th Part: Principles of legislation in matters of public
distributive, more concisely as well as familiarly termed
constitutional, law.
• 6th Part: Principles of legislation in matters of political
tactics: or of the art of maintaining order in the
proceedings of political assemblies, so as to direct them to
the end of their institution: viz., by a system of rules, which
are to the constitutional branch, in some respects, what the
law of procedure is to the civil and the penal.
• 7th Part: Principles of legislation in matters betwixt nation
and nation, or, to use a new though not inexpressive
appellation, in matters of international law.

• Part the 8th. Principles of legislation in matters of
finance.
• Part the 9th. Principles of legislation in matters of
political economy.
• Part the 10th. Plan of a body of law, complete in all its
branches, considered in respect of its form; in other
words, in respect of its method and terminology;
including a view of the origination and connection of
the ideas expressed by the short list of terms, the
exposition of which contains all that can be said with
propriety to belong to the head of universal
jurisprudence.

Analytical School (Austin)
• Natural law theories hold that there is a
necessary connection between law and
morality. Legal positivists deny that this is so.
They claim that laws have to come from an
appropriate source: they need not be morally
acceptable.
• Austin’s version of legal positivism treats laws
as commands.

Analytical School (Elements of
Positivism by Austin)
• Laws are Commands
• They should bear/have Sanctions(penalty)
• The should create Obligations
• They should come from Sovereignty
• Will/unwill of the subjects:

Analytical School (Elements of
Positivism by Austin)
• According to Austin, all laws are commands. All
commands, in turn, involve threats of sanctions. And
being threatened, in turn, is the same thing as having
an obligation to comply with the command. So
‘command,’ ‘sanction,’ and ‘obligation’ are all defined
in terms of one another.
• Sovereignty is defined in terms of habitual obedience.
The sovereign in a society is habitually obeyed by the
bulk of the population while not habitually obeying
anyone else. While many people could issue
commands, as Austin understands them, only
sovereigns can issue commands that are laws.

• Both the legal positivists and the natural lawyers
agree that immoral rules are bad. Their
disagreement is over whether immoral rules
would constitute laws or not.
• Since both sides would think it’s desirable to
eliminate bad rules, what’s the significance of
that disagreement?
• Hart and Fuller’s Debate (Lecture-4)
• Riggs Vs Palmer (Lecture-4)
– Slayer Rules (Lecture-4)

• Laws are the commands of human beings;
• There is no connection between law and morals;
• The question what law is and what it ought to be is an
irrelevant issue;
• It is worth trying to know the difference between the
historical origins of laws and their sociological
phenomenon;
• Laws do not require any social aims, policies, and
moral standards;
• Moral judgments should not be used to accept or
reject anything; law or legal judgment should be solely
based on rational arguments.

Analytical Positivism (Criticism)
•
1. Law is always not a command.
2. Law is not a duty, it is rather enabling than restrictive.
3. This definition does not cover customs and international
law, religious law
4. Also his definition ignores the social aspect of law and
psychological factors which secure its obedience.
5. It has no universal application.

Merits
• This definition lays down precise boundaries
within which jurisprudence is to work.
• This definition completely applies to English
law.

Pound (Self study)
• The definition of law according to Pound gave a valuable
approach and opened new fields of study in context of
social problems. According to him, law is a social institution
to satisfy social wants.
The only criticism received to his definition was that it gave
no heed to nature and character of law.
The merit of this definition was that it talks about policy
and progress as well as theory of justice.
• Salmond
Law as per Salmond is that it is body of principles recognized
and applied by State in the administration of justice.

Criticism:
1. He confuses justice with law: Law is actually in force
whether it is evil or good, whereas justice is the ideal founded
in moral nature of man.
2. Law is defined in terms of purpose: Law serves many ends
and by confining it only to pursuit of justice, Salmond has
narrowed the field of law.
3. Courts not legislation: conventions are not included in this
definition because they are not enforced by Courts. Meaning
of courts is not defined. Certain areas of law, like customs,
international law etc. can also not be incorporated since even
these are not enforceable by law.

Merits:
1.This definition bought about a change in
analytical positivist view.
2.It expanded the boundaries of jurisprudence
that was narrowed by Austin.
2.It gave importance to courts.
3.By including its purpose and emphasizing the
role of Court in its enforcement, he gave law a
practical shape.

Jurisprudence 1.pptx

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Jurisprudence 1.pptx