Second-year Law Notes & Flashcards

Introduction

Jurisprudence helps a person to understand the deeper meaning of the law. Jurisprudence is an integral part of the law which is based on theories and various analysis. Jurisprudence talks about the relationship of law with other social sciences, society, man and nature.

Meaning

Jurisprudence means the study of law in a logical and philosophical manner. The term ‘jurisprudence’ is derived from the Latin word ‘jurisprudentia’, which means the knowledge of the law. If the word jurisprudentia is dissected into Juris and prudentia, Juris means law and prudentia means skill. There is no such definite definition of jurisprudence.

However, various jurists have defined the term jurisprudence. Jeremy Bentham is considered the Father of Jurisprudence. According to him, jurisprudence is a set of philosophical principles and various interpreted theories. This eventually shows us the concept of law. According to Austin, the appropriate subject for jurisprudence is the existing laws or the positive law. He was the first philosopher and jurist who considered jurisprudence as a science. Keeton has defined jurisprudence as the study and systematic arrangements of the general principles of law.

Jurisprudence can also be referred to as a legal theory. Jurisprudence gives us an overview and a much more in-depth understanding of the law and the role of law in society. Jurisprudence deals with legal reasoning, legal institutions and legal systems.

Significance of Jurisprudence

It gives a multidimensional approach to the system of law. At times, a huge gap is observed between the law and its application in society. Jurisprudence helps in such cases. It helps in bringing logic to the rules of law so that the application in society can be beneficial for the people. It also shows us the connection of law with subjects such as philosophy, economics, psychology, politics, etc. People, especially judges and lawyers, get a better understanding of the concept of law through the study of jurisprudence. It also helps the authorities to understand how and when any reformation is required. Lord Tennyson, considers jurisprudence as ‘the lawless subject of law’.

One of the major importance of the study of Jurisprudence is its fundamental value. Jurisprudence mainly comprises of research and the method to construct and clarify the basic concepts of law. Jurisprudence is not concerned with the making of the new laws; rather, it focuses on existing laws in the system and Jurisprudence, and its theories can help lawyers to form a better and much more improved practice.

Jurisprudence can also help students. It has its own scholastic worth in the life of students. Jurisprudence not only focuses on primary legal rules, but it also talks about the social impact of those laws. Jurisprudence combines logical and theoretical analysis of legal concepts. So it proliferates the analytical methods and techniques of a student.

Jurisprudence also focuses on law and its social value. It talks about fairness and the articulation of law. Jurisprudence deals with the basic fundamentals of the law and it is the eye of law. It helps a person to understand the thoughts and divisions of law.

Jurisprudence is also the grammar of law. It helps a person to understand the language and the grammar of law. Legal language and grammar are very different when compared to ordinary language, so Jurisprudence trains the mind of a lawyer so that he can use proper legal vocabularies and expressions.

Jurisprudence teaches people that an answer to a legal problem is not hidden in the past or awaiting in the future rather than the answer to a legal problem is hidden around them in the fundamentals of legal studies.

Jurisprudence also talks about political rights and legal rights and how the system can strive to balance them out. A student can also look into it with the help of Jurisprudence.

Jurisprudence and its relationship with other sciences

1. Sociology and Jurisprudence

The sociological approach to Jurisprudence is easily the most important relation between Jurisprudence and other sciences. The reason why it is so important is that the sociological approach is much more concerned in the working of law rather than its fundamentals and basics. Sociological jurists want to know the effect of law in our society and how law and society work together. Sociological Jurisprudence sees the law as an institution. Sociological Jurisprudence thinks that laws can be made, transformed and changed according to the needs of society. Basically, it means the law can be adjusted as per societal needs.

2. Economics and Jurisprudence

Economic studies focus on wealth and its distribution in society with the aim to regulate the lives of people of a State. Similarly, the law also focuses on regulating the lives of the people through rules and regulations. Initially, the relationship between Jurisprudence and Economics was ignored for a long time until jurists realised the importance of economics in law. Normative Jurisprudence talks about the stable economic allocation of resources in a society and how it shall reflect consumer preference.

3. History and Jurisprudence

Historical Jurisprudence mainly forms a significant part of legal history as a subject. Law has been around for centuries, and as we know Jurisprudence is the study of law so if we don’t trace back the origin and development of laws, then we are missing out on a theoretical aspect of Jurisprudence. Development of law through the years gives us an insight, and it helps us to research more about it. Historical Jurisprudence sheds light on the influences that led to the development of a particular law.

4. Ethics and Jurisprudence

Ethics talks about the fact that how the law should be in an ideal state. Ethical Jurisprudence is focused on the fact of how law can be used as an instrument to affirm positive ethics. Ethics and Jurisprudence state that laws should be based on ethical principles and it should not be treated otherwise. Ethics helps to criticise laws which are unethical in nature.

5. Politics and Jurisprudence

Political Jurisprudence states that the laws made for people shall be unbiased. There should be no hidden political agendas in law. If a law is politically motivated, then it is clear that such laws shall have no place in our society. Laws must be influenced by the political environment of a country and that is why countries develop their own constitution which showcases the current social and political needs of a country.

Evolution of Jurisprudence

The origin of jurisprudence is in the Roman civilization. The Romans were quite interested to find out the meaning and the nature of the law. However, at that time the research was quite limited regarding the concept of law. It was also observed that the Greek civilization was also trying to understand the concept of law. Philosophers like Plato, Socrates, Aristotle, etc have given many references regarding the concept of law. With the fall of these civilizations, the Christian States emerged. However, with the emergence of secular States, various new theories came up proposed by John Locke, Rousseau, Blackstone, Hugo, etc, with concepts and evolution of law. During the 17th century, the positive approach towards law saw the light.

Different approaches towards the study of jurisprudence

Classical Theory

This theory associates jurisprudence with various legal theories proposed by different eminent jurists and philosophers. Some of the theories are:

Roman theory

It stated that the rule of law and morality were interlinked and connected. However, this theory was criticized on the basis that they had mixed up the concept of justice and morality. This theory does not hold any importance in the contemporary world.

Greek theory

This theory mainly focused on the system of natural law and justice.

Ancient Indian theory

This theory is based upon the concept of ‘Dharma’. Dharma is considered a set of rules which are ordered by nature itself. It is the most ancient legal system theory in the world.

Reformative theory

This theory focused on the development of secularism. The ideas of individualism arose. The functions of the State were limited. Three natural rights were guaranteed to every citizen, they are- the right to life, the right to liberty, and the property rights. In this theory, it was believed that law was made by either State or any sovereign. This theory holds a lot of importance even in today’s world in the study of jurisprudence. It is believed that this theory is quite appropriate for the democratic States.

Rationalist theory

This theory emerged as a consequence of the Industrial Revolution. This Revolution changed the economic conditions of Europe. The poor economic conditions, unemployment all over led to several issues. These issues, eventually, questioned the appropriateness of the reformative theory. It was also questioned whether the reformative theory is appropriate enough in a democracy. Thus, the concept of collectivism and socialism started to emerge. The rationalists gave immense power to the state. This theory is popular in almost all welfare States.

Modern theory

This theory tried to create dominance over the socialist concepts. It tried to give importance to the positive approach towards the law. This modern theory believed that the study of jurisprudence should rest upon the positive approach and have a strict boundary. The study of jurisprudence should not go beyond a limited boundary in a socialistic approach. This theory received both popularity and criticism. It was criticized on the basis that if the study of jurisprudence only focuses upon a positive approach and a limitation is set out, then the actual purpose of jurisprudence might fail.

Theories of law in Jurisprudence

Natural Law

Natural law is a part of Jurisprudence, and frankly, there is not a definite way to define natural law. Natural law can still somehow be stated as laws which originated from sources which are other-worldly or some God-like source, basically, the point is natural law did not originate from some political authority or any legislature. In Jurisprudence, it is believed that Natural law can be applied anywhere in the world i.e. Natural law has universal applicability. Whenever we talk about the term true law it can be said that laws which are obligatory in nature are said to be true law so by that analysis we can say that natural law is not true law. The reason natural law is not true law because natural law is not obligatory in its true sense. Natural law acts as a defence for moral relativism. Moral judgement varies from places to religion to culture and this theory was ascended by Greek philosophers. The philosophers drew a distinction between the law of nature and conventional human choices and this distinction acted against natural law. Natural law hence aims to find a common moral ground for different cultures and different religions. But still, the idea of natural law raises a lot of questions and the biggest and relevant one is whether moral proposition can be derived from the proposal of facts. So coming to realism and a realistic standpoint at certain cases natural law creates conflict between law and morals. Certain existing laws are inhumane if we consider the theory of natural law. So a law must be analysed on the basis of its efficiency, simplicity and if the law serves a right combination of justice and morality.

Imperative law

Imperative law directly opposes natural law. Imperative law is much more focused on realism when it is compared to natural law. So imperative law is laid down by the sovereign of a country and it is enforced by sanctions, and imperative law is a type of command. There is a distinct difference between command and law and for a command to qualify as laws that command must be given by a political superior or sovereign. Since this theory defines law in terms of command, sovereign and sanction we can conclude that Imperative theory cannot provide adequate analysis for standard law.

Legal realism

There is a certain similarity between the theories of legal realism and imperative law and that similarity is both the theories sees the law as a type of command. But in the case of the theory of legal realism, it sees the law as a type of command that must be given by the legislature and for legal realism, the sovereign is the Supreme Court. This approach is used in the United States with Holmes influencing it further. Holmes further states that law, in reality, is judge-made and not made by some supreme power and the actions of courts are not necessarily deduced by statutes and books.

Law of obligation

Law of obligation has been derived from Roman law in its legal sense. Law of obligation can be said to be a relationship of legal necessity in its original sense. All the law of obligation relates to being proprietary rights in its own sense. In Jurisprudence, a person who gains benefit from the law of obligation is termed as a creditor and the person who is bound by the law of obligation is termed as a debtor.

Schools of thought in Jurisprudence

Philosophical School

The Philosophical School focuses much more in the theory of natural law. This school seeks to find out the reason why a law is enacted and what are the effects of such a law in our society. They believe the purpose of the law is to enhance the nobility of humanity. The philosophical school is not concerned with the analytical and the historical aspect of law.

Analytical School

Analytical School is much more focused on the theory of imperative law. analytical school is related to the origin of civil law. Analytical school talks about the concept of rights and duties and investigates legal models such as acts and contracts. Analytical school of law believes that law should be codified and the law must be governed by the state with the aim of the benefit of people.

Historical School

The historical school believes that law is a consequence of years of growth of our society. The historical school believes that the sources of law are customs, religious philosophies and societal rules. Historical school is too much dependent in the past and as a result, it becomes much more conservative but still after such conservatism, the historical school states that law must change with the people.

Realist School

Realist school is technically not a school of jurisprudence; rather realist school is tutoring of thoughts. In realist school, they are much more focused on the actions of the court and what they create. Realist school merely does logical assumptions from the general law.

Sociological School

Sociological school concentrated more on the function of law rather than its intangible content. The sociological school came into existence due to the accumulation of various thoughts of jurists. The sociological school wanted to connect law with society and law can be adjusted according to the needs of the society. Sociological school talks about legal institutions, doctrines and other theoretical aspects of the law.

Famous jurists in Jurisprudence

Aristotle is also known as the father of natural law. He talked about the importance of natural law in the society and as we know he was correct since even in modern times a lot of tribunals across the world function on the basis of natural law and natural justice.

Thomas Aquinas distinguished four kinds of law and they were eternal law, natural law, human law and divine law. So for him, eternal law was made by God himself and natural law is discovered by motivation from the eternal law. Divine law are the laws which are God’s scriptures and human law is made by man.

John Austin opposed the theory of natural law. He wanted to convert law into science and he was positivist. The reason why he was a positivist is that he believed all the laws that are existent today can be drawn back to mortal lawmakers.

Jurisprudence in the Indian perspective

In ancient India, Jurisprudence was mainly based on the old customs or traditions. With the advancement of time, various things have changed. The then-concept of jurisprudence might become not so relevant. But are changes required? If so, then had the changes already been made? If not so, then what transformations are required? Let us look into certain spheres and analyze them.

Social Jurisprudence

Under the Indian Constitution, Part III provides us with the fundamental rights of every citizen. Part IV deals with directive principles. These provisions’ purpose is for social welfare. The concept of the issuance of Public Interest Litigation (PIL) was due to the emergency period in India. The PIL was beneficial especially for the underprivileged to get justice. Some of the landmark cases, where the judiciary in India has upheld the social jurisprudence are:

• Striking down of Section 377 of the Indian Penal Code (1860).
• Protecting the rights of women by abolishing triple talaq.
• The orders of courts in the benefit of migrant workers during Covid-19.

However, some cases have been criticized hugely. They have been criticized by people as they have observed the lack of social welfare.

Feminist jurisprudence

Feminist jurisprudence began in the year of 1960. Feminist jurisprudence mainly focuses on the social, economic, political equality of sexes. Under the Indian constitution, the protection of women is expressly mentioned in different Articles. Article 15 of the Constitution protects women from any discrimination. The same Article also gives power to the State to make any provisions for the benefit of women and children. There are also different Acts and statutes which expressly show the protection of women. In the case of MANU/SC/0309/2014 National Legal Services Authority vs. Union of India (UOI) and Ors. the Court held that the social, political, economic equality of women is enshrined in the Preamble itself. Though a lot of laws are there to protect the equality of women, yet women are still under the constant fight for their rights. Even in this modern century, a lot of cases happen where female foeticide takes place, a girl child is not allowed to study, and are the victims of the most heinous crimes like rape, sexual assault, etc. Various eminent personalities have criticized that the laws for women need to be interpreted widely and at some provisions, amendments are required.

The relation of politics and jurisprudence

In India, the judiciary holds an independent space along with the executive and legislation. India has followed the idea of separation of powers. However, the application of such doctrine was quite impossible in reality. In the case of MANU/SC/0011/1955 Rai Sahib Ram Jawaya Kapur and Ors. vs. The State of Punjab it was observed that the different organs of government would perform their functions, however, at times, they might perform the functions of other organs, to a certain limit. Some of the spheres which highlight the relation between politics and jurisprudence are the appointment of the judges, judges transfer, appointing Chief Justice of India, etc. However, it is observed that the total separation of the three functions of organs cannot take place in reality. Thus, the judiciary will be interlinked to some extent, but it should be taken into account that the influence of the other organs must not go beyond a limit that might disrupt the true sense of justice.

Conclusion

So we saw how Jurisprudence is different from the law we practise in general. Jurisprudence helps lawyers and judges to find the real sense of law. We came across various legal theories and how they have affected society and the law. Jurisprudence is an important part of the law and it can never be separated from it.

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