View
6.304
Download
0
Embed Size (px)
Citation preview
01
Introduction to Jurisprudence
PrudentiaPrudentia
1 - 3
Literal Meaning:
JurisJuris
JurisprudenceDerived from
Two Latin Words
• Law
• Wisdom,• Knowledge• Philosophy
, OR• Science
What is Jurisprudence?An Introduction
Jurisprudence
1 - 4
Literal Meaning:
means
What is Jurisprudence?An Introduction
Hence
Wisdom of Law
Knowledge of Law
Philosophy of Law
O R
O R
O R
Science of Law
5
What is Jurisprudence?An Introduction
Key Terms in Understanding Definition of Jurisprudence:
Science
Philosophy
Law
1 - 6
Science i Knowledge gained through a systematic study, is called science
i Systematic Study means, a Study consisted of;
Deduction
Experiment
Hypothesis
Observation
What is JurisprudenceAn Introduction
1 - 7
Philosophyi Derived from two Latin words
PHILOSOPHY
Philo
Means ‘love’
Sophy
Means Wisdom or knowledge
i Knowledge gained through the application of mind
i Examining the basic concepts such as ‘truth’, ‘existence’ ‘soul’, ‘hereinafter life’ etc.
What is Jurisprudence?An Introduction
1 - 8
Lawi A set of rules and regulations that
regulates human behaviour in societies
i It determines human conduct and regulates it.
i The subject-matter of Jurisprudence is Law
i There are different types of Law and the jurists are debating as to which type is the true subject-matter of Jurisprudence
What is Jurisprudence?An Introduction
1 - 9
What is Jurisprudence?An Introduction
i This Typology of Law is based on the fact that from where Law comes or what is the ultimate source of its recognition (nature).
i Hence, it is a broad typology of law
TYPOLOGY OF LAW
1 - 10
Natural Law. Norms. Reason based
God-made LawTypes of
LawMan-made Law
Physical Law. Chemistry. Physics etc
Divine Law. Religious Law. Scriptures
Positive Law
Moral/Ethical Law
Abstract Law. Fundamental Principles. General Notions
Law as it OUGHT to be
Philosophical Law
Law as it is
Analytical Law
Law of Nature
Concrete Law. Real Law/ Applicable Law. Statutes, Acts, Decisions
What is Jurisprudence?An Introduction
11
Definition of Jurisprudence
i There is no uniform definition of Jurisprudence
Reason:
h The subject-matter of Jurisprudence is Law
h But there is no uniform definition of law.
What is Jurisprudence?An Introduction
1 - 12
Definition By Eminent Jurists:
Ulpian:
i Classical Concept
“The observation of things human and divine, the knowledge of just and unjust.”
A celebrated Roman Jurist
h Criticism: Being meta-physical in nature its value cannot be evaluated.
h The first formal definition of jurisprudence.h In the contemporaneous socio-political setups he had given
the best definition.
What is Jurisprudence?An Introduction
(170 AD - 228 AD)
1 - 13
John Austin:
“Jurisprudence is the Philosophy of Positive Law.”
h Criticism: The terms ‘Philosophy’ and ‘Positive Law’ are misleading
h He lived in circumstances when Europe was witnessing changes especially in Politics.
h He separated the meta-physical controversy from legal enterprise
Definition By Eminent Jurists:i Classical Concept
What is Jurisprudence?An Introduction
(1790 AD - 1859 AD)
1 - 14
Thomas Erskine Holland:
“Jurisprudence is the formal science of Positive Law.”
h The criticism on the term ‘Philosophy’ of Austin definition led Holland to present this definition
h It substituted ‘Philosophy’ in Austin definition by ‘Formal Science’.
Definition By Eminent Jurists:i Classical Concept
What is Jurisprudence?An Introduction
h ‘Formal’ means fundamental legal principles
(1835 AD - 1926 AD)
1 - 15
Salmond:
“The science of the first principles of civil law.”
h Science: A systematic intellectual inquiry
h Civil law: The whole corpus of law applicable in a State
h By term ‘Law’ Salmond means ‘Positive Law’
h ‘First Principles’: Fundamental principles
Definition By Eminent Jurists:i Classical Concept
What is Jurisprudence?An Introduction
h Law: As Administered by Courts
(1862 AD - 1924 AD)
1 - 16
Keeton:
“Jurisprudence is the study of the systematic arrangement of the general principles of law.”
Definition By Eminent Jurists:i Classical Concept
What is Jurisprudence?An Introduction
1 - 17
Gray:
“The science of law, the statement and systematic arrangement of the rules followed by the Courts and the
principles involved in those rules.”
Definition By Eminent Jurists:i Classical Concept
What is Jurisprudence?An Introduction
1 - 18
Dean Roscoe pound
“The science of social engineering”
Definition By Eminent Jurists:i Modern Conception
What is Jurisprudence?An Introduction
h An idea of giving the most complete security and effect to the whole scheme of human demands and desire which are pressing for recognition, with the least sacrifice, least friction and least waste.
1 - 19
Classification of Jurisprudence
What is Jurisprudence?An Introduction
i Jurisprudence was classified by:
Jeremy Bentham
John Austin
Salmond
1 - 20
What is Jurisprudence?An Introduction
Classification of Jurisprudence
Bentham
Censorial Jurisprudence
Expositorial JurisprudencePhilosophical
1 - 21
What is Jurisprudence?An Introduction
Classification of Jurisprudence
Censorial Jurisprudence
ExpositorialJurisprudence
Study of Law ‘as it ought to be’
Study of Law ‘as it is’
Bentham’s Classification
1 - 22
What is Jurisprudence?An Introduction
Classification of Jurisprudence
General Jurisprudence
Particular Jurisprudence
Study of Ethical Law (Law ‘as it ought to be)
The study of Positive Law (Law ‘as it is)
Austin’s Classification
1 - 23
What is Jurisprudence?An Introduction
Classification of Jurisprudence
Analytical Jurisprudence
Study of Positive Law (Law ‘as it is)
The study of Ethical Law (Law ‘as it ought to be)
Salmond Classification
Historical Jurisprudence
Philosophical Jurisprudence
The study of Historical Development of Law
1 - 24
Scope of Jurisprudencei According to the most celebrated
view:
What is Jurisprudence?An Introduction
Jurisprudence studies Law
Study is analytical/scientific
Law is man-made/positive
It is not discussing the content but the essence of law
But recently again the jurists like Roscoe Pound and Julius Stone seem to enhance the scope of Jurisprudence
1 - 25
Significance or Utility of Jurisprudence
What is Jurisprudence?An Introduction
i Being an abstract and theoretical science, jurisprudence has a little practical value
Practical value: Master of a Legal System
The eye of Law
The key to legal understanding
Sharpens argumentative capacity
Educational value
1 - 26
What is Jurisprudence?An Introduction
Psychology
Economics
Politics
Social Science
History
EthicsSociology
Jurisprudence
Relation of Jurisprudence with other Social Science
1 - 27
What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science
Jurisprudence
– Studies Law
– Law is the set of rules regulating the conduct of human beings living in a society
Politics
– Study of the Government
– Government means the institution to administer the affairs of the society
Both are contemplating on the society
Relation
1 - 28
What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science
Jurisprudence
– Law is regulating the external conduct of human beings
Psychology
– Study of internal conduct of human beings
– In other words it analyses the mental state of a person at a given movement
Relation
Both are contemplating
the mental state of human
beings– But external conduct is depending on internal conduct (e.g. intention, malice etc.)
1 - 29
What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science
Jurisprudence– Studies Law
– Deals with framed rules
Economics
– Study of wealth
– Concentration of wealth in a society brings prosperity for its members
Relation
Both are contemplating on the social
and economic well-being of
people
– All legal concepts are social oriented
– Not possible without having sound legal system
1 - 30
What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science
Jurisprudence
– Studies Law
– Legal Concepts has arisen in a particular period and then developed through ages
History
– Study of the past events
– Provides historical background behind legal concepts
Relation
Both contemplates history from
different perspectives
Historical Jurisprudence
1 - 31
What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science
Jurisprudence
– Studies Law
– All legal concepts are social oriented
Sociology
– Study of society
– Looks into the social significance of law in society
Relation
Both contemplates
on social structure from
different angles Sociological
Jurisprudence
1 - 32
What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science
Jurisprudence
– Studies Law
– Law aims at upgrading the social conditions
Social Work
– The study as to welfare of the society
– Through counseling services, health clinics, recreation halls etc.
Relation
Both contemplates
on up gradation of social
conditions of the community
1 - 33
What is Jurisprudence?An IntroductionRelation of Jurisprudence with other Social Science
Jurisprudence
– Studies Law
– Law aims at the positive behaviour of human beings
Ethics
– Science of human conduct
– What should be human behaviour and an ideal human behaviour
Relation
Both contemplates
on human conduct from
different angles Ethical
Jurisprudence– ‘Is’ conduct
– ‘Ought’ conduct
End of chapter # 01