JURISPRUDENCE - I
(Legal Theory)
(Paper Code : K-1001)
[Chaudhary Charan Singh University]
[Chaudhary Charan Singh University]
The course shall comprise of the following :
(1) Introduction : Definition, Nature and Scope of Jurisprudence, Importance of the Study of Jurisprudence
(2) Natural Law School : Classical Natural Law, Revival of Natural Law : Rudolf
Stammler and Kohler.
(3) Analytical School : John Austin, Hans Kelsen, And H.L.A. Hart.
(3) Historical School : Frederick Karl Von Savigny, Sir Henry Sumner Maine.
(5) Sociological School : Background and Characteristics, Roscoe Pound, Leon Dugit.
(6) American Modern Realism.
(7) Economic Approach of Law : Marxist Economic Approach on Law.
[BOOKS RECOMMENDED >>
Bodenheilmer : Jurisprudence / Dias, Jurisprudence. / Friedman, Law in Changing Society. / Llyoyd, Introduction of Jurisprudence. / Mahajan V.D., Jurisprudence. Paton : Jurisprudence. / Salmond : Jurisprudence.]
[BOOKS RECOMMENDED >>
Bodenheilmer : Jurisprudence / Dias, Jurisprudence. / Friedman, Law in Changing Society. / Llyoyd, Introduction of Jurisprudence. / Mahajan V.D., Jurisprudence. Paton : Jurisprudence. / Salmond : Jurisprudence.]
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(1) INTRODUCTION: The word 'Jurisprudence' is derived from the Latin maxim jurisprudentia: juris is the genitive form of jus meaning "law", and prudentia means "prudence" (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628, at a time when the word prudence had the meaning of "knowledge of or skill in a matter". Thus the Jurisprudence signifies 'knowledge of law' and its application
>> DEFINITION OF JURISPRUDENCE <<
The word 'jurisprudence' is derived from the latin word 'jurisprudentia' which in its wider sense, means 'knowledge of law' or 'skill of law', The latin word 'juris' means law and 'prudentia' means 'knowledge or skill' Thus the Jurisprudence signifies 'knowledge of law' and its application.
Jurisprudence in simple words can be defined as the study and philosophical theory of law , during the formative era of the common law in England, the term 'Jurisprudence' was being used in generic sense to include the study of various facet of law, As a branch of social science, various Scholars and philosophers have done research on the subject of Jurisprudence and time to time they have came out with various definitions on Jurisprudence under different concept or schools of law.
in the early decades of 19th century with the theories propounded by Bentham & his disciple Austin, the term 'Jurisprudence' acquired a definite meaning, Bentham differentiated between study of law as 'it is' and 'it ought to be' and called them 'expositorial' and 'censorial' jurisprudence respectively, Later Austin concerned himself mainly with the formal analysis of the English law and its related concepts, which still continues be the basic contents of English jurisprudence.
some of the famous definitions presented by various jurists on 'Jurisprudence': are given below:
The term 'jurisprudence' has meant different things at different times, the variation is due to different methods of inquiry and approach to the study of the subject. It is for this reason that Julius Stone has described 'jurisprudence' as the 'Lawyer's extraversion' meaning thereby that jurisprudence involves examination of precepts, ideals and techniques of the law by the lawyers in the light of disciplines other than law
The term 'jurisprudence' has meant different things at different times, the variation is due to different methods of inquiry and approach to the study of the subject. It is for this reason that Julius Stone has described 'jurisprudence' as the 'Lawyer's extraversion' meaning thereby that jurisprudence involves examination of precepts, ideals and techniques of the law by the lawyers in the light of disciplines other than law
Ulpian
The Roman Jurist, Ulpian, defined Jurisprudence as "The observation of things human and dive, the knowledge of just and unjust."
Salmond
Salmond defines Jurisprudence as the "Science of the first principles 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.
There are three kinds of laws that govern the conduct of human in a society.
- 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 (ultra-mundane sanctions)
- Moralist Laws - Man-made that exist in all societies, both primitive and most civilized. There is no definite authority to enforce the laws, but the public.
- Jurist Laws - Regulates external human conduct only and not inner beliefs. They can exist in politically organized societies, which has a Government. They are enforced by courts or judicial tribunals of the society which applies a variety of sanctions ranging from fines to capital punishments.
According to Salmond, Jurisprudence is the science of first principles of jurist law or in Salmond's words civil law.
Austin
Austin defines Jurisprudence as the "Philosophy of Positive Law".
Positive Law means the law laid down by political superior to regulate the conduct of those subject in his authority. The positive law is identical to civil law. However, the term Philosophy is misleading. Philosophy is the theory of things, man and divine, while Jurisprudence only deals with man-made law.
Holland
Holland defines Jurisprudence as "The Formal Science of Positive Law". He says "Jurisprudence deals with the human relations which are governed by rules of law rather than with the material rules themselves."
Formal science differs from material science in the way that formal science deals with fundamental principles underlying and not concrete details.
Jurisprudence includes all concept of Human Order & Human Conduct in State and society, In other words anything that concerns the order in the state and society will be with in the domain of jurisprudence, Justice PB Mukherjee observed, "jurisprudence is both an intellectual and idealistic abstraction as well as behavioral study of man in society. it includes political, social, economical and cultural ideas, It covers the study of man in relation to State and society "
SCHOOLS OF JURISPRUDENCE
There are basically four schools of jurisprudence:-
- Natural law school (Philosophical school)
- Analytical School (Imperative or Positive Theory of Law)
- Historical School (Anthropological Approaches to Law)
- Sociological School (Functional / Experimental Jurispudence)
