What is Jurisprudence?

8/10/2019 What is Jurisprudence?

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What is Jurisprudence?

Definitions by:

Austin, Holland, Salmond

Jurisprudenceis the studyof theoryof law.

In Latin Jurisprudentia- Knowledge of Law.

Legal theorists speak of nature of law, of legal reasoning, legal systemsand of legalinstitutions.

Modern jurisprudence egan in the !"th centur# and was focused on the first principles of

the natural law, ci$il law, and the law of nations.

Three primary schoolsof thought ingeneral jurisprudence.

Natural lawis the idea that there are rational objective limitsto the power of legislative

rulers. %he foundations of law are accessile through human reason and it is from these laws of

naturethat human-created laws gain whate$er force the# ha$e.

egal positivism, it holds that there is no necessary connectionetween lawandmoralityand

that the force of law comes from social domination orheirarchy.

egal realism argues that the real world practiceof law is actual law&

what legislators! judges! ande"ecutivesdo is what is law.Jeremy #enthamis known as 'ather of (urisprudence.

)entham distinguished*

!. Law as it is

$"positorial %pproach

+ommand of So$ereign.

. Law as it oughtto e

&ensorial %pproach

Moralit# of Law.

Utalitarianism:

How much pleasure or pain does the law ring

Man is a pleasure seeker.Laisse-faire* Minimum interference of law in economic life of the citien.

%ustinsaid - law is command of sovereign.

Legal Positivism:' separates moral rulesfrom positive law.

law is command issued # the so$erign

commands are acked # threats of sanctions

a so$ereign is one who is haituall# oe#ed

&riticism of %ustin

!. State enforces law, an#thing enforced does not ecome law.

. Laws in primiti$e societies without clear so$erign.

(olland)s Definition-

Anal#tical - *ositive laws.!. /eneral rules for people enforced # a state.

. Stud#the form andnot the implementation. 0hat law intends to achieveis what is

law.

1. How positi$e law is applied is notthe concern of (urisprudence.

2. (urisprudence is not concerned with the actual material contents of law ut onl# with its

fundamental conceptions.%herefore, itis a+ormal ,cience.3. It isproduct ofintellectual en-uiry.
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4. 'ormal Science deals onl# with purposes! methods and ideasof the basisof the legal

system.

5. Holland is concernedonl# with the formand not the intricacies.

&riticiism*

'ocus is on form or essence, butpractice is affected # actual conditions!social life,and human relationsin a societ#.

,almond- He said that Jurisprudence is ,cience of aw of the land or civil law.

He di$ided (urisprudence into two parts*

!. /eneric- %his includes the entire od# of legal doctrines.

. ,pecific- %his deals with the particular department or an# portion of the doctrines.

6Specific7 is further di$ided into three parts*

!. %nalytical! $"pository or ,ystematic- It deals with the contents of an actual legal s#stem

e8isting at an# time, past or the present.

. (istorical- It is concerned with the legal histor# and its de$elopment

1. $thical- According to him, the purpose of an# legislation is to set forth laws as it ought to e.It deals with the 6ideal7 of the legal s#stem and the purpose for which it e8ists.

&riticism - /a$e the structure and failed to pro$ide an# clarit# of thought.

&onclusion'%hus, we can safel# sa# that Jurisprudence is the study of fundamental legal

principles.

,cope of Jurisprudence-

S#stematic study of lawsand their impact on society.

,pecificand generalstud# allows for de$elopment ofcivilied society.

,ignificance and0tility of the Stud# of (urisprudence

!. (urisprudence contriute to the de$elopment of legal, political and social school of

thoughts.

. 9stalish fundamental principles of law.

1. :efine legal objectives. Make laws simple and more effecti$e. ;ot long and

unimplementale. Also allow them to change o$er time with Societ#.

2. Stud# conte"tof laws in details and their actual implementation. %aking notes ofde$elopments in societ#. Like Internet.

3. /uides in amigous legal terminolog# and e8pression.4.


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. Jurisprudence and *sychology-


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(ohn Locke7s7natural rights? - human eings are free and e=ual.

9$er#one has right to welleing and propert# @natural rights.

0e ma# gi$e up rights onl# for common good.;atural laws protects from totalitarianismand estalished (uman 1ights.

Natural aw Theory

@:efinition

;atural law is the Bunwritten lawC, a od# of moral principles! common to all. :eri$ed thrureason. %he# act as reference for*ositive aws.We conform to Natural law for thegoodof society.

@+onceptual ;aturalism

Anal#e the concepts of law and legal s#stem. 9stalish if law and moralit# are related.

%he legal positivistsden# an# relation.@+lassical ;atural Law %heor#

njust laws are enforced.

2oral codehelps reformof law. @it is not law itself

3mplementationloopholes.

>ni$ersal laws notpossile.

;ature cannote asis. 9g. 'amil#


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InManeka andhi v. !nion of "ndia# the Supreme +ourt in$oked Article ! of

+onstituition directl# against legislati$e action which had sanction of law.

Article ! States*- 6;o person shall e depri$ed of his life or personal liert# e8cept according toprocedure estalished # law.7

%nalytical jurisprudence

H. L. A. Hart most influential, histor# goes ack (erem# )entham.

Anal#tical jurisprudence is not legal formalism@the idea that legal reasoning can e modelled.

Anal#tic jurisprudence is neutral towards legal s#stems.

It rejected natural law7s - of what law isand what it ought to be.David (ume- Separate the normati$e.

?0hat isthe lawCLegal positi$ism is the dominant theor#.

the essence or nature which is common to all laws.

distinguish law from non-law.

anal#e the concepts of law and legal s#stem.

!. to track linguistic usage&

. to stipulate meanings&1. to e8plain what is important or essential aout a class of ojects& and

2. to estalish an e$aluati$e test for the concept-word.)i8 takes conceptual anal#sis in law to e primaril# concerned with @1 and @2.

In an# e$ent, conceptual anal#sis of law remains an important, if contro$ersial, project in

contemporar# legal theor#. +onceptual theories of law can e di$ided into two main headings*@a those that affirm there is a conceptual relation etween law and moralit# and @ those that

den# that there is such a relation. ;e$ertheless, Eonald :workin7s $iew is often characteried as

a third theor# partl# ecause it is not clear where he stands on the =uestion of whether there is aconceptual relation etween law and moralit#.

All forms ofnatural law theorysuscrie to the $verlap %hesis, which is that there is anecessar# relation etween the concepts of law and moralit#. According to this $iew, then, the

concept of law cannot e full# articulated without some reference to moral notions. %hough the

F$erlap %hesis ma# seem unamiguous, there are a numer of different wa#s in which it can einterpreted.

%he strongest form of the F$erlap %hesis underlies the classical naturalism of ,t. Thomas%-uinasand 0illiam )lackstone. As )lackstone descries the thesis*
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%his law of nature, eing co-e$al with mankind and dictated # /od himself, is of course

superior in oligation to an# other. It is inding o$er all the gloe, in all countries, and at all

times* no human laws are of an# $alidit#, if contrar# to this& and such of them as are $alid deri$eall their force, and all their authorit#, mediatel# or immediatel#, from this original @!G5G, p. 2!.

In this passage, )lackstone articulates the two claims that constitute the theoretical core ofclassical naturalism* ! there can e no legall# $alid standards that conflict with the natural law&

and all $alid laws deri$e what force and authorit# the# ha$e from the natural law. Fn this

$iew, to paraphrase Augustine, an unjust law is no law at all.

Eelated to )lackstone7s classical naturalism is the neo-naturalism of (ohn 'innis @!G". 'innis

elie$es that the naturalism of A=uinas and )lackstone should not e construed as a conceptualaccount of the e8istence conditions for law. According to 'innis @see also )i8, !GG4, the

classical naturalists were not concerned with gi$ing a conceptual account of legal $alidit#& rather

the# were concerned with e8plaining the moral force of law* Bthe principles of natural law

e8plain the oligator# force @in the fullest sense of BoligationC of positi$e laws, e$en whenthose laws cannot e deduced from those principlesC @'innis !G", pp. 1-2. Fn 'innis7s $iew

of the F$erlap %hesis, the essential function of law is to pro$ide a justification for state coercion.Accordingl#, an unjust law can e legall# $alid, ut cannot pro$ide an ade=uate justification foruse of the state coerci$e power and is hence not oligator# in the fullest sense& thus, an unjust

law fails to realie the moral ideals implicit in the concept of law. An unjust law, on this $iew, is

legall# inding, ut is not full# law.

Lon 'uller @!G42 rejects the idea that there are necessar# moral constraints on the content of

law. Fn 'uller7s $iew, law is necessaril# suject to aproceduralmoralit# consisting of eightprinciples*


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facts. %he Conventionality %hesisemphasies law7s con$entional nature, claiming that the social

facts gi$ing rise to legal $alidit# are authoritati$e in $irtue of some kind of social con$ention.

%he &eparability %hesis, at the most general le$el, simpl# denies naturalism7s F$erlap %hesis&according to the Separailit# %hesis, there is no conceptual o$erlap etween the notions of law

and moralit#.

i. The &onventionality ThesisAccording to the +on$entionalit# %hesis, it is a conceptual truth aout law that legal $alidit# can

ultimatel# e e8plained in terms of criteria that are authoritati$e in $irtue of some kind of social

con$ention. %hus, for e8ample, H.L.A. Hart @!GG4 elie$es the criteria of legal $alidit# arecontained in a rule of recognition that sets forth rules for creating, changing, and adjudicating

law. Fn Hart7s $iew, the rule of recognition is authoritati$e in $irtue of a con$ention among

officials to regard its criteria as standards that go$ern their eha$ior as officials. 0hile (oseph

Ea does not appear to endorse Hart7s $iew aout a master rule of recognition containing thecriteria of $alidit#, he also elie$es the $alidit# criteria are authoritati$e onl# in $irtue of a

con$ention among officials.

ii. The ,ocial +act Thesis

%he Social 'act %hesis asserts that legal $alidit# is a function of certain social facts. )orrowing

hea$il# fromJeremy #entham, (ohn Austin @!GG3 argues that the principal distinguishingfeature of a legal s#stem is the presence of a so$ereign who is haituall# oe#ed # most people

in the societ#, ut not in the hait of oe#ing an# determinate human superior. Fn Austin7s $iew,

a rule E is legall# $alid @that is, is a law in a societ# S if and onl# if E is commanded # theso$ereign in S and is acked up with the threat of a sanction. %he rele$ant social fact that confers

$alidit#, on Austin7s $iew, is promulgation # a so$ereign willing to impose a sanction for

noncompliance.

Hart takes a different $iew of the Social 'act %hesis. Hart elie$es that Austin7s theor# accounts,at most, for one kind of rule* primar# rules that re=uire or prohiit certain kinds of eha$ior. Fn

Hart7s $iew, Austin o$erlooked the presence of other primar# rules that confer upon citiens the

power to create, modif#, and e8tinguish rights and oligations in other persons. As Hart pointsout, the rules go$erning the creation of contracts and wills cannot plausil# e characteried as

restrictions on freedom that are acked # the threat of a sanction.

Most importantl#, howe$er, Hart argues Austin o$erlooks the e8istence of secondar# meta-rules

that ha$e as their suject matter the primar# rules themsel$es and distinguish full-lown legal

s#stems from primiti$e s#stems of law*

Secondar# rulesJ ma# all e said to e on a different le$el from the primar# rules, for the# are

all aboutsuch rules& in the sense that while primar# rules are concerned with the actions thatindi$iduals must or must not do, these secondar# rules are all concerned with the primar# rules

themsel$es. %he# specif# the wa# in which the primar# rules ma# e conclusi$el# ascertained,introduced, eliminated, $aried, and the fact of their $iolation conclusi$el# determined @Hart

!GG2, p. G.

Hart distinguishes three t#pes of secondar# rules that mark the transition from primiti$e forms of

law to full-lown legal s#stems* @! the rule of recognition, which BspecifiesJ some feature orfeatures possession of which # a suggested rule is taken as a conclusi$e affirmati$e indication

that it is a rule of the group to e supported # the social pressure it e8ertsC @Hart !GG2, p. G&

@ the rule of change, which enales a societ# to add, remo$e, and modif# $alid rules& and @1
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the rule of adjudication, which pro$ides a mechanism for determining whether a $alid rule has

een $iolated. Fn Hart7s $iew, then, e$er# societ# with a full-lown legal s#stem necessaril# has

a rule of recognition that articulates criteria for legal $alidit# that include pro$isions for making,changing and adjudicating law. Law is, to use Hart7s famous phrase, Bthe union of primar# and

secondar# rulesC @Hart !GG2, p. !5.

According to Hart7s $iew of the Social 'act %hesis, then, a proposition < is legall# $alid in asociet# S if and onl# if it satisfies the criteria of $alidit# contained in a rule of recognition that is

inding in S. As we ha$e seen, the +on$entionalit# %hesis implies that a rule of recognition is

inding in S onl# if there is a social con$ention among officials to treat it as defining standardsof official eha$ior. %hus, on Hart7s $iew, BtheJ rules of recognition specif#ing the criteria of

legal $alidit# and its rules of change and adjudication must e effecti$el# accepted as common

pulic standards of official eha$iour # its officialsC @Hart !GG2, p. !!1.

iii. The ,eparability Thesis

%he final thesis comprising the foundation of legal positi$ism is the Separailit# %hesis. In its

most general form, the Separailit# %hesis asserts that law and moralit# are conceptuall# distinct.%his astract formulation can e interpreted in a numer of wa#s. 'or e8ample, Klaus 'er

@!GG4 interprets it as making a meta-le$el claim that the definition of law must e entirel# free

of moral notions. %his interpretation implies that an# reference to moral considerations indefining the related notions of law, legal $alidit#, and legal s#stem is inconsistent with the

Separailit# %hesis.

More commonl#, the Separailit# %hesis is interpreted as making onl# an oject-le$el claim

aout the e8istence conditions for legal $alidit#. As Hart descries it, the Separailit# %hesis is

no more than the Bsimple contention that it is in no sense a necessar# truth that laws reproduce orsatisf# certain demands of moralit#, though in fact the# ha$e often done soC @Hart !GG2, pp. !"!-

". Insofar as the oject-le$el interpretation of the Separailit# %hesis denies it is a necessar#

truth that there are moral constraints on legal $alidit#, it implies the e8istence of a possile legal

s#stem in which there are no moral constraints on legal $alidit#.

%hough all positi$ists agree there are possile legal s#stems without moral constraints on legal

$alidit#, there are conflicting $iews on whether there are possile legal s#stems withsuchconstraints. According to inclusi$e positi$ism @also known as incorporationism and soft

positi$ism, it is possile for a societ#7s rule of recognition to incorporate moral constraints on

the content of law. nited States +onstitution respecting the estalishment of religion or aridgements of theright to $oteC @Hart !GG2, p. 3.

In contrast, e8clusi$e positi$ism @also called hard positi$ism denies that a legal s#stem canincorporate moral constraints on legal $alidit#. 98clusi$e positi$ists like Ea @!G5G suscrie to

the Source %hesis, according to which the e8istence and content of law can alwa#s e determined# reference to its sources without recourse to moral argument. Fn this $iew, the sources of law

include oth the circumstances of its promulgation and rele$ant interpretati$e materials, such as

court cases in$ol$ing its application.


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Eonald :workin rejects positi$ism7s Social 'act %hesis on the ground that there are some legal

standards the authorit# of which cannot e e8plained in terms of social facts. In deciding hard

cases, for e8ample, judges often in$oke moral principles that :workin elie$es do not deri$etheir legalauthorit# from the social criteria of legalit# contained in a rule of recognition

@:workin !G55, p. 2. ;e$ertheless, since judges are ound to consider such principles when

rele$ant, the# must e characteried as law. %hus, :workin concludes, Bif we treat principles aslaw we must reject the positi$ists7 first tenet, that the law of a communit# is distinguished from

other social standards # some test in the form of a master ruleC @:workin !G55, p. 22.

:workin elie$es adjudication is and should e interpreti$e* Bjudges should decide hard cases #interpreting the political structure of their communit# in the following, perhaps special wa#* #

tr#ing to find the estjustificationthe# can find, in principles of political moralit#, for the

structure as a whole, from the most profound constitutional rules and arrangements to the details

of, for e8ample, the pri$ate law of tort or contractC @:workin !G", p. !43. %here are, then, twoelements of a successful interpretation. 'irst, since an interpretation is successful insofar as it

justifies the particular practices of a particular societ#, the interpretation mustfitwith those

practices in the sense that it coheres with e8isting legal materials defining the practices. Second,

since an interpretation pro$ides a moral justificationfor those practices, it must present them inthe est possile moral light. %hus, :workin argues, a judge should stri$e to interpret a case in

roughl# the following wa#*A thoughtful judge might estalish for himself, for e8ample, a rough BthresholdC of fit which an#

interpretation of data must meet in order to e BacceptaleC on the dimension of fit, and then

suppose that if more than one interpretation of some part of the law meets this threshold, thechoice among these should e made, not through further and more precise comparisons etween

the two along that dimension, ut # choosing the interpretation which is Bsustanti$el#C etter,

that is, which etter promotes the political ideals he thinks correct @:workin !G", p. !5!.

Accordingl#, on :workin7s $iew, the legal authorit# of a inding principle deri$es from the

contriution it makes to the est moral justification for a societ#7s legal practices considered as a

whole. %hus, a legal principle ma8imall# contriutes to such a justification if and onl# if itsatisfies two conditions*

!. the principle coheres with e8isting legal materials& and. the principle is the most morall# attracti$e standard that satisfies @!.

%he correct legal principle is the one that makes the law the moral est it can e.

In later writings, :workin e8pands the scope of his Bconstructi$istC $iew e#ond adjudication to

encompass the realm of legal theor#. :workin distinguishes con$ersational interpretation from

artisticNcreati$e interpretation and argues that the task of interpreting a social practice is morelike artistic interpretation*

%he most familiar occasion of interpretation is con$ersation. 0e interpret the sounds or marksanother person makes in order to decide what he has said. Artistic interpretation is #et another*

critics interpret poems and pla#s and paintings in order to defend some $iew of their meaning or

theme or point. %he form of interpretation we are stud#ing-the interpretation of a social practice-

is like artistic interpretation in this wa#* oth aim to interpret something created # people as anentit# distinct from them, rather than what people sa#, as in con$ersational interpretationC

@:workin !G"4, p. 3.


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%hese differences etween Hart and :workin ha$e led man# legal philosophers, most recentl#

)i8 @!GG4, to suspect that the# are not reall# taking inconsistent positions at all. Accordingl#,

there remains an issue as to whether :workin7s work should e construed as falling under theruric of anal#tic jurisprudence.


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Austin - father of Anal#tical School owes much to )entham.

- Laid down the foundation of tilitarianism*-

Law frees person from restraint on freedom. 'ree indi$iduals promote welfare. %hus)aisse*'aire.

Man seeks pleasure and shuns pain. Legislator must stud# this to write laws. )aws should bring

greatest happiness to ma+imum people. !tility is tendency of a thing to prevent evil or procure

good.)entham departed from 6justice7 and 6moralit#7.

departs from ;atural Law

legal positi$ism - in$estigati$e science.

+riticism*

pleasure and pain anal#sis poor sustitute for ethics. @justice

legislators can7t con$ert pleasure - pain to law.

man7s eha$ior and desires in societ# are comple8.

how to alance communit# interests $Ns person7s interest

'ounder of Anal#tical School or 6Anal#tical


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P Sanction * It is enforceale to sanction QQ penalt# for disoedience.

P :ut# * It is :ut# of suject @politicall# inferior to follow.

+ommand of the so$ereign is law.

Law is strictl# di$erged from justice.

aws strictly so calledare +ommands @/eneral set # a So$ereign @Supreme for sujects.

%hese commands are called proper laws or positive law.


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*ositive aws or aws properly so called @+ommand of So$ereign


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;F% AS%I;7S %H9FEO F' LA0

!. 9liminates all elements e8cept that of force.

. Missed the ethical element in law. eg. justice.

1. 6;ot Law7 are laws.

M9EI%S F' %H9FEO

!. +lear and simple definition of law.

. Separating law from moralit#. Moralit# then - used to criticie laws.

1. :efined source of law. Law is created and enforced # the state and is responsile for it.


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Eoman Law of !3th - !4th centur#.

- oldest in 9urope.

9ighteenth +entur# Eationalism

- indi$idualism* his rights.

- s#stem of go$ernment* Eule of Law @no king

- rule # code @law* # delieration

- Duest for >ni$ersal ;atural Law

;ew +lasses in Societ#

- free laour class* skill them to work

- rise of nationalism

- free class of citiens

+odification in /ermany

- 9nactment of Law # legislature

- La# Legal


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,avigny ' /eneral &onsciousness of a *eople as ,ource of aw

His work - i. Law of


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&ontribution of (istorical ,chool:

!. Stud# of legal histor#*


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Henr# 2aine)s: (istoric &omparative 2ethod*

+omparated historic laws and instituitions which led to his theory of $volution of aw.

His work*

i. Ancient Law ii. Rillage +ommunities iii. 9arl# Histor# of Institutions

i$. :issertation of earl# law and customs

Stages of :e$elopment of Law

i. Law # ruler* under di$ine inspiration.

ii. +ustomar# Law* +ommands of ruler ecome customs or customar# laws.

iii. Law under priests* 0eaker and more distriuted than di$ine ruler.

i$. +odification* Lastl# written legislation.

$. :e$elopment # - Legel fiction, e=uit# and legislation*


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Hans Kelsen - 8ienna ,chool of Jurisprudence

)ackground* 9urope - 0orld 0ar ! ending - eginning of th +entur#

- 0ritten +onstitutions adopted in 9urope.

-


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iii. Law as ;ormati$e Science

i$. 9ffecti$eness of norms - out of scope.

$. +reate formal heirarch# of legal norms.

$i.


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Eeformation of Anal#tical


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- comprehensi$e and constructi$e

:efinition*

Stud# of Law in Action, 98perience of it. And contriuting factors.

Law is decision of court. 'eeling of justice, e8perience of it.

+ontriuting factors* i. human ias ii. social ias iii. $alidit# of law

Scandina$ians focused on theoretical aspect. Americans focused on practical.

American School*

Frigin traced to (olmes and /ray:

-


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- decision of court as centre of law

not accepting, that most law ne$er reaches the courts

Scandina$ian Eealism*

- a philosophical criti=ue of metaph#sical foundations of law

- rejects down to earth approach of American Eealists

- astract discussion of first principles

&riticism:

- undermine importance legal principles

- court decisions predictale

- law in action is outside courts too

- local not uni$ersal approach

&ontribution:

- comprehensi$e* all factors leading to court decision.

- opportunit# for ground realitiesto pre$ail o$er rigid law

- scientific principles to make law* rational! articulate andobjective

Eealist school resemles Sociological School of jurisprudence.

9ffect of Societ# and Law on each other. Eelation etween indi$idual, state and societ#

Duguit)s &ocial &olidarity (rinciple*

- interdependence in societ# for fulfillment of needs.


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' law to enables this ,ocial ,olidarity

3mplications:

!. attack on so$ereignt#& minimiation of state*

- State is like an# other human organisation

- legislator gi$es e8pression to judicial norm formed # social group

- State howe$er e8pands* militaril#, pulic sectors, ta8ation, law enforcement

- State actuall# est institution for social welfare

. pulic law and pri$ate law, e8ist at same le$el for 6social solidarit# - e8change of ser$ices and

co-operation7

1. no pri$ate rights*

- essence of law for indi$iduals is dut# @not right.

- focus on societ# not indi$idual.

&riticism:

i. Social solidarit#, specific case of ;atural Law

ii. Rague e8pression* left for judges.

iii.


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+ather of ,ociological Jurisprudence:

Ihering7s Social >tilitarian @T!"3

Law for social utilit# @)entham.

Law is*

- guarantee of conditions of life assured # state7s power, otained thru constant struggle.

- for Social


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'unctional School - 'unctional aspect of Law. 'unctioning in societ# foran ojecti$e.

&ocial effects of law# its history# law in action# legal institutions# functional# wholistic approach.

0hat is that ojecti$e

satisf# ma8imum human wants for minimum friction

How do #ou achie$e that

Social 9ngineering. Making laws that engineer societ#. 9ngineering to perfection using laws.

Societ# - competing interests.


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;o Ideal scale of $alues gi$en.

:#namic feature of societ#7s influence on law ignored.

&ontribution:

$alues are relati$e

encourages practical field-researach

law in relation to societ#

What is Jurisprudence?

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