Jurisprudence – Notes

Jurisprudence

Introduction to Jurisprudence:

The word ‘Jurisprudence’ has been derived from the Latin word ‘jurisprudentia’ where ‘Juris’ means law and ‘prudentia’ means knowledge.

According to Gray, “Jurisprudence is the science of law, the statements and systematic arrangement of rules followed by courts and the principles involved in these rules.”

According to Salmond, “Jurisprudence is the science of the first principles of civil law. The civil law consists of rules applied by courts in the administration of justice.”

According to Salmond, jurisprudence is divided into three types. These are:-

  1. Systematic/Expository: This part deals with the contents of the actual legal system as existing in past and present.
  2. Legal History: It deals with the historical development of law.
  3. Science of Legislation: It deals with ideal principles of the legal system and its future.

Significance of Jurisprudence:

  1. Jurisprudence is essential for the practical applicability of law in society.
  2. Many Juris call jurisprudence as the eye of law because it gives a basic idea and fundamental concepts of law.
  3. Jurisprudence helps lawyers and judges in the interpretation of rules and regulations passed by the legislature.
  4. Study of jurisprudence helps law students to prepare them for good civil life by study of law to various aspects.




According to R.W.M. Dias, “Study of jurisprudence provides an opportunity to the lawyer to bring theory and life into focus, for it concerns human thoughts in relation to social existence.

Relation of Jurisprudence with other Social Sciences:

Jurisprudence and other social sciences are connected with human behavior, so we can say that they’re very closely related to each other.

According to Roscoe Pound, “Jurisprudence is closely related to ethics, economics, politics, and sociology. All the social sciences must co-ordinate with jurisprudence to make it a fundamental branch of knowledge.”

According to G.W. Paton, the interrelationship between law and sociology has been defined for three reasons:

  1. Jurisprudence enables a better understanding of rising and development of law.
  2. It provides a great platform for rising and development of the law with human needs and Social interest.
  3. Jurisprudence provides an object to the legal interpretation of laws according to their needs, so that we can say that without social interaction, the law would remain a mere theoretical perception without any practical utility.

Natural School of Law:

According to Blackstone, Natural law being consistent with mankind and which proceed from God himself, its superior to all other laws. It is binding over all countries at all times and no man-made law will be valid if it’s contrary to the law of nature.

In ancient times, natural law was believed to have a divine origin. During the medieval period, it had a religious and supernatural basis, but in modern time it has a strong political and legal meaning.

The term ‘Natural Law’ means those rules and principles which are considered to have originated from some supreme source (other than a political authority).

The natural law theories reflect a perpetual quest for absolute justice. Some jurist says that the natural law and its rules have come from god whereas some found their source in nature and others say they are the product of reason. Therefore, many titles have been given to the natural theory like divine law, moral law, the law of nature, the law of God, law of mankind and universal law & unwritten laws.

According to Friedman, “The greatest contribution of the natural law theory to the legal system is its ideology of a universal order governing all men and protect their rights of individuals.”

There’s no unanimity about an exact definition of natural law theory, but it has been defined in different meanings in different times on the basis of the needs of developing legal thoughts, but we can’t conclude its meaning without saying that it’s a law which is inherent in the nature of law and its independent of any legislation, convention, and institution. So, it is a theory which represents the ideals of morality, justice, equality, equity, reason, good conduct, a good conscience, values, liberty, and ethics. Law must be just and reasonable.

Dr. Friedman says the history of natural law is a tale of search of mankind for absolute justice and its failure.




Characteristics of Natural school of Law:-

  1. Natural law school is basically a pre or prior decided conclusions which do not need any empirical study which includes inquiry, observation or experiments to find out the causes and reasons in relation to the subject matter
  2. It symbolizes physical law of nature-based on moral ideals which are applicable at all places universally.
  3. Natural law school has been used for both to make the changes or to maintain the things as it is according to the needs and requirements of the time.
  4. The concept of rule of law in England and in India under article 14 and due process of law in the U.S.A. are based on the principles of Natural School of Laws.

Stages of Natural Law School:

  • Ancient Period
  • Medieval Period
  • Renaissance Period
  • Modern Period

Ancient Period:

A- Greek: Heraditus, Aristotle, Plato, Socrates.

The uncertainty of political institutions & frequent changes in law and government in the state of Greece made some jurists think that the purpose of the law was serving the interests of strong people and not people who are struggling for a better life.

So, in Greece, some jurists started thinking about this & application of universal principles of natural law, so that peace and harmony shall prevail.

Heraditus- laid down the basis of natural law and gives the three main features of law and they are destiny, order, and reason. And among them, he pointed out that the reason is one of the basic elements of natural law.

Socrates- was a great admirer of truth and moral values. He favors the “human insight” which makes a man to distinguish between good or bad and make him able to appreciate the moral values. According to him, justice is of two types: Natural Justice and Legal Justice.

Rules of natural justice are uniformly applicable to all the phases but the legal justice may differ from place to place depending upon social conditions. He said that only those rules are proper law which is supported by human reasoning and natural law is applicable everywhere because it favors human reasoning.

Plato: He carried further the natural law philosophy through his concept of an ideal state which he termed as ‘Republic’. He said that an intelligent and worthy person should be the king. Plato emphasizes the need for a perfect division of labor.

Aristotle: was known for the logical interpretation of natural law theory and he classified man in two parts of nature or we can say that man is a part of nature in two ways:     

  • As a creation of God.
  • He possesses active reason by which he can shape his will. So, the man’s reason being the part of nature or the law discovered by this reason is known as natural law which is based upon the basic principle of justice and morality.

Roman Period: Cicero

Cicero: ‘Philosophy aspect of knowledge of the law’. Cicero is the chief source of the roman theory of natural law. According to him, the law is the highest reason implanted in nature which commands what ought to be done and forbids the opposite. The very root and origin of laws are in nature and the cicero also puts the origin of law in god. The mind of god can’t exist without reasons and the divine reason is far to establish right and wrong. God, therefore, is the investor, interpreter, and sponsor of natural law. Justice doesn’t exist at all if it doesn’t cause from nature. Law is lasting and hence unchangeable so that neither senate nor people can relief from its obligation.

It’s the creation of reason of an intelligent man who stands highest in creation by virtue of his faculty of reasoning.




Medieval Era:

Period of the 12th century to the mind of the fourteenth century is known as medieval age in European history. The period was basically governed by the doctrine which the Christian father propounded for establishing the supremacy of the church over the state. The Christian saints like Ambrose, Saint Augustine, etc. propounded the theory was that divine law was superior to all other laws and they used natural law theory to propagate Christianity to establish a new legal system and political ideologies based on morals.

According to the Jurists of this era, the law was divided into two parts: Natural Law and Human Law.

Natural Law was based on nature and Human Law on customs. The divine nature of natural law makes this law binding over all the laws. So, the Christian theory over this period moves around two fundamental principles:

  • God is one and there is only one faith, one church, and one empire.
  • The supremacy of law both divine and man-made is the part of the unit of the universe.

Main features of Natural Law theory in Medieval Era:

  1. The institutions of slavery, state, property, etc. represent the evil desire because they’re not the creation of nature and the existence of the state is only essential for the development of moral and ethical values in a man.
  2. Law is the greatest binding force that’s why supremacy of law is there.
  3. The main conflict in this theory was the correct interpretation of the law and the conflict between the worldly and godly activities in which the state was the ruler is the supreme in the field of worldly activities whereas Pop held supreme authority in godly activities.
  4. The exact source of legal authority in a developed society was that state and law were the gifts of the people to themselves agreed to surrender before these authorities.

Period of Renaissance:

Period of Renaissance marks the general awakening of new ideas in all fields of knowledge. This period is marked by rationalism and the emergence of new ideas in various fields. On the other hand, development in the field of trade and commerce created new groups in society which required more protection from states and nationalism has developed. Due to this concept the state must have sovereign power or due to cumulative effect of this trade, social and commercial developments were created due to this sovereignty of states and supremacy of positive law overthrows the dominance of church and new theories were developed. These new theories were propounded by rationalist thinkers such as Machiavelli.

Modern classical Era:

In the 19th century, the popularity of natural law theories was suffered and declined & the natural law theories reflected more or less the great social, economic and political changes which have taken place in Europe. The doctrine propounded by Austin and Bentham separated the law from morality. The first jurist of the 19th century was David Hume. In the 19th century, he rejected the theory of natural law which was against of empirical approach and he destroyed the theories of natural law by his analytical study. One more jurist of the 19th century was Auguste Compte (French). He denounced the natural law theory and called it false, non-specific and based upon supernatural beliefs. So, the roots of the natural law like morality, justice reason are declared unreal by them.

In the 20th century (revival of natural law), the 19th century overemphasized positivism and totally refused morality as the element of the law, that’s why these theories were unable to satisfy people. The impact of materialism on society and the changes socio-political conditions compelled the 20th-century legal thinkers to look forward some value-oriented ideologies to prevent the moral degradation of people.

E.g.: The world war I shattered the western society.

Main supporters of this theory are Stammler, John Rawls, Fuller.

Stammler:

He said that “Law of nature means just law”, which harmonizes the purposes in society and the purpose of the law is not to protect the will of one but to unify the purposes of all. He believed that its impossible to frame universal legal principles, so the law is the law of nature with variable contents. Justice is a relative concept only.

John Rawls:

A well-ordered society is one which is effectively regulated by public perception of Justice and fairness. He gives two basic principles of justice:

  • Equality of right to serve basic liberty opportunities and power.
  • Social and economic inequalities should be in that sense that they ensure the man benefit to a community as a whole.

Justification for reservation policy in India funds supports in Rawlsian theory of law.

Fuller:

At least we conclude modern natural law that with the views of fuller that law and morality are correlated and he confirmed that any law which denies the internal morality of law would not merit to be termed as law. The purpose of the law is to subject human conduct to control/guidance of legal rules, laws and social contract.

Natural law has been defined by different people at different times as a basic ideal which guides legal development and administration of society with changing social and political conditions. The notions of natural law have changed but the basic concept behind definition remains same i.e. natural law is the law which is based on morality, goodness, and reason. Society means a complex network of social relationships.

Social Contract: The concept of the social contract was propounded by Italian jurist Marsilius. The social contract is an agreement in which people enter unitedly for achieving a common purpose/goal.

The concept of the social contract is that in the beginning, man lived in the state of nature and they had neither any government nor any law, so they entered into an agreement for the protection of their lives and property and thus society came into existence.

They entered into a second agreement by which people who had united earlier undertook to obey an authority and surrender the whole or a part of their freedom and rights to the authority, and their authority guarantees to everyone the protection of life and property.

Social contract theories:

Jurists: Grotius, Hobbes, John Locke, and Rousseau.

Grotius: According to him, each person has chosen the form of government which they considered most reasonable for themselves by the method of the social contract. The ruler was bound by natural law which was valid even with his promises and keeping of promise is the basic principle of natural law. The ruler was bound only by the concept of natural law. Grotius basically used the social contract for two purposes:

  • To justify the absolute duty of obedience of people towards the government in the national-international level.
  • Internationally to create a basis for legally binding and stable relations among the states.

Hobbes: He was highly influenced by the importance of state authority which he wanted to be the absolute ruler.

According to him, the chief principle of natural law was the right of self-preserve. During that time, wars and conflicts prevail everywhere, so men for the preservation of themselves and to escape from insecurities they transferred all their natural rights to rulers and their ruler promised them to fulfill the obligations but he was not bound to it. So, the theory of the social contract of Hobbes was based on the idea of force and compulsion by the ruler.

John Locke: He placed individuals in the center and invested him with all the natural rights among which the right to private property was not prominent. He used the social contract to justify the government to whom the majority has transferred his trust and then the duty to preserve the rights of individuals raised.

In place of the absolute theory of Hobbes, Locke gave the theory of rights of individuals in the aspect of the social contract. So, we can say that John Locke stands for the liberty of individuals than the absolute theory of Hobbes.

Rousseau: According to him, every individual owns unlimited liberty and there was no concept of private property, no competition, no jealousy, and people lived free life with innocence, but due to increase in population and decline of reason, the things were changed and simplicity and happiness disappeared.  A difference between rich and poor raised and inequality prevailed and this problem was solved by the concept of the social contract. By this concept of the social contract, every person surrenders to the community his rights and the community become sovereign. The community gives the power to political body or person i.e. called a ‘sovereign’ which is directed by a general will. So, social contract theories are basically reflecting the necessity of law in society.

The reaction against Positivism:

Meaning of Positivism: It is the concept which sharply separates law and morality and which contrasts the natural law theory. The positivists argue that the theories of morality, religion, justice, and equality differ from law and should play in no role in the interpretation or application of legislation. Thus, they concluded that as wrong as written law has been duly enacted by a branch of government it must be deemed valid and binding regardless of whether it offends anyone’s sense of right or wrong. Positivism theory was based on two values:

  • Law must be a command.
  • It cubes judicial discretion which means in some cases judges are not satisfied with the outcome of a case but they’ve to dictate the narrow reading of existing laws. So, positivism reflects the decisions which are given only on the basis of existing laws and in this concept of law ‘as it is’ was most important rather than the law ‘ought to be’.

On the basis of this separation of law and morality, this theory was criticized by various jurists and this total separation of law ‘as it is’ and ‘ought to be’ cannot be maintained. Through the chief defect in the above theory, so many other theories came into existence like histories law school which regards custom as a source of law and other like Neo-Austin theory which regards general will as the sources of law and others. So, at the conclusion, we can say that positivism flourished best only in the stable conditions of society, but for developing eras, the intellectual relations of existing law and morality is essential.

Like the post? Or have any suggestion? Feel free to contact us.

  •  
  •  
  •  
  •  
  •  
  •  
  •  

Leave a Reply

avatar
  Subscribe  
Notify of