Scribd
Upload
193 views26 pages

Jurisprudence: A Sst. P R Of. S Neha A Nil K Umar

Jurisprudence is both a positive and normative science. It is positive in that it describes law as it exists and analyzes legal systems and principles. However, it also involves normative judgments in determining what the law should be as well as ethical evaluations of existing laws.

Uploaded by

Keya Shah
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
193 views26 pages

Jurisprudence: A Sst. P R Of. S Neha A Nil K Umar

Jurisprudence is both a positive and normative science. It is positive in that it describes law as it exists and analyzes legal systems and principles. However, it also involves normative judgments in determining what the law should be as well as ethical evaluations of existing laws.

Uploaded by

Keya Shah
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 26

JURISPRUDENCE

A SST. P R OF. S NEHA A NIL K UMAR


SYLLABUS

Part -I PART II - LEGAL CONCETPS


 LEGAL RIGHTS
 INTRODUCTION
 OWNERSHIP
1. SCIENCE OF JURISPRUDENCE
 POSSESSION
i. KIDNS OF LAW
 TITLES
ii. LEGAL THEORY
 PRINCIPLES OF LIABILITY
iii. CIVIL LAW
 INTENTION AND NEGLIGENCE
iv. THE ADMINISTRATION OF JUSTICE
v. THE SOURCES OF LAW  THE LAW OF OBLIGATIONS

vi. LEGISLATION AND INTERPRETATION  THE LAW OF PERSONS

vii. PRECEDENT  THE LAW OF PROPERTY

viii. CUSTOM  THE LAW OF PROCEDURES


ix. THE STATE
INTRODUCTION
The term Jurisprudence is derived from the Latin
word “jurisprudencia”

Juris - law
Prudentia - skill or knowledge

Jurisprudence - knowledge of law


Definition
 Ulpian – “the observation of things human and divine – the knowledge of
just and unjust

 Cicero – philosophical aspect of the knowledge of law

 Bentham – law as it is (Expository) and as it ought to be (Censitorial)

 Austin – was the first jurist to define it to be a science.


science of law – concerned with law as it is.
General and Particular

 Salmond – science of the first principles of civil law (civil law – law of state)
Analytical
Historical
Ethical / philosophical/ morality
 Pound – jurisprudence is the science of law using
the term law in the juridical sense as denoting a
body of principles recognized or enforced by public
and regular tribunals in the administration of justice.

J – has inevitable co-relationship with other


social science
Nature of Jurisprudence
1. J helps us find out the philosophical aspect behind
laws
2. It is not created by statute – evolves from various
works of jurist
and philosophers
3. Links law with other disciplines
4. Reflects rules already known
5. Academic applications
6. No immediate practical application – but not without
practical application.

NO UNANIMITY AS TO APPLICATION – varies with time


NEED

1. Removes complexities of law


2. Provides solutions to legal problems
3. Interprets Law
4. Helps in legislation
5. Study of different legal systems
6. Legal and social development.
Sociology

History

JURISPRUDENCE Politics

Economics

Ethics
THE LAW & A LAW

 The term law is used in two senses – abstract


- Concrete

 Abstract – System of Law


 Concrete – Statute

 JUS - law, the law


 LEX – a law
LAW

 Almost every jurist has attempted to define law.

 Law is defined variedly by the scholars.

 Corresponding term for law:

 Hindu system – Dharma


 Islamic system – Hukum
 Roman – Jus
 French – Droit
 German - Richt
DEFINITION OF LAW
Idealistic Definitions:

Romans and other ancient Jurists defined law in its idealistic


nature.

Justinian - the standard of what is just and unjust.


Ulpain - the art or science of what is equitable and good.

Hindu view – law command of god – king bound to obey it


and has duty to enforce it. Law is part of dharma.

Salmond: - According to salmond “the law may be defined


as the body of principles recognized and applied by the state
in the administration of Justice.
Criticism of Salmond’s definition of law:-

Salmond did not define the expression Justice.

Vinogradoff criticizes salmond on the ground that his


definition of law consists proceeds from the action of judges.

Dean Roscoe Pound has criticized the definition of Salmond


as reducing law to a mass of isolated decisions….. Further,
it is criticized on the ground that it does not apply to Statute.

Keeton says what has been considered to be just at one


time has frequently not been so considered at another.

Applicable to common law in england


John chipman Gray’s Definition of Law:-

According to Gray,

“the Law of the State or of any organized body of men is


composed of the rules which the courts, that is the judicial
organ of the body lays down for the determination of legal
rights and duties.

Criticism of Gray’s definition of law:- Gray’s definition is


criticized on the Ground that he is not concerned with the
nature of law rather than its Purposes and Ends. Further
it does not take into account the statute law.
Positivists definition:-

Austin’s definition of law” - John Austin (1790-1859)

He developed logically, a structure of legal system in which he gave no


Place to values, morality, idealism and Justice.

According to Austin, a law, “law is aggregate of rules set by men politically


superior or sovereign to men as politically subject.”

Austin says, “A law is command which obliges a person or persons to a


course of conduct.”

“law is the command of the sovereign backed by sanction

Criticism of Austin’s definition of law:- Austin’s definition of law is subjected


to criticism on the ground that it ignores completely the moral and ethical
aspects of law and unduly emphasized the imperative character of law.
Hans Kelsen’s definition of Law According to Kelsen legal
order is the hierarchy of the norms, every norm derive its
validity from the superior norm and finally there is highest
norm known as grundnorm.

H.L.A.Hart According to Hart Law is the combination of


primary rules of obligations and secondary rules of
recognition.
Sociological definition

Dean Roscoe Pound defines law as a social institution to


satisfy social wants.

He says law is a social engineering, which means that law


is a instrument to balance between the competing or
conflicting interests.

According to Duguit, laws are “the rules of conduct normal


men know they must observe in order to preserve and
promote the benefits derived from life in society.”

Social solidarity – interdependence of men.


LEGITIMACY OF LAW
LEGITIMACY – must satisfy the constitutional mandate

The constitution provides the basic design - the structure and


power of the state & rights and duties of the citizens.

It is designed not only to meet the needs of the day it is enacted
- but also the needs of the altering conditions of the future.

 Intention - to outline principles rather than engrave details.

Law should sub-serve social purpose.


PURPOSE

Maintenance of public order and safety Law is seen


as the ‘glue’ that holds the fabric of society together.
The law protects us from complete social disorder and
anarchy (i.e. lawlessness).
Protection of individual rights and liberties This is to
ensure that everybody is equal before the law and that
nobody is above the law.

Therefore powerful persons are all controlled by the laws


in place and this would mean that all individual rights are
protected equally.
The organization and control of the political sphere:

The law sets out the boundaries of politics by preserving the


political structure and process under which governance is
possible.

The best example of the relationship between law and state is a


written constitution.
The regulation of economic activity

Facilitates and encourages national and


international trade in goods and services by setting
out legal frameworks by which parties can be
bound.
The regulation of human relationships

It serves to legitimize and control various aspects of


interpersonal relationships such as entering into
marriages, distribution of family wealth, regulation of the
parent-child relationship etc.
The preservation of a moral order

Sometimes law and morals overlap. Some morals are


given the force of law.

The regulation of international relations

The regulation of international relations is also done by a


branch of law called public international law. The creation
of states, definition of state boundaries, diplomacy,
international humanitarian law etc.
Nature of Law
1. LAW Presupposes State

2. For rules to be effective – sanctions

3. Serves some purpose

4. Provides uniformity certainty and reliability

5. Fixed principles of justice – avoids arbitrary and


biased decisions
From the various definitions of law, its nature can be deduced as follows:
Law is a Social and a Normative Science- The primary aim of the law is to
regulate human conduct. It has been introduced to maintain order in the
society. Thus, law is essentially a social science and is normative in nature
since it lays down rules for human conduct.

Law is Dynamic in nature- An essential element of law is its dynamic


nature. According to the Supreme Court of India, “Greatest virtue of Law is its
Adaptability.”

Law is Territorial in nature- The enforcement of a law is limited to the


territory of a State. Different states around the world have their own legal
system and laws. An act which is a crime in State A might be considered to be
righteous in State B. Modern legal systems have introduced the concept of
extra-territorial law whereby certain laws may be enforced even outside the
territory of the Sate. The concept of extra-territorial laws has been
recognized by the Indian Legal System as well.
Positive or a Normative Science

Positive Science
Describes what it is
Provides results of economic analysis of a problem
Based on facts which can be verified by scientific
measurement

Normative Science
Describes what ought to be
Makes distinction between good and bad; what should be
done to promote human welfare
Involves ethical values

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy