Legal Theory: 1urisprudence
Legal Theory: 1urisprudence
Legal Theory: 1urisprudence
INTRODUCTION
LEGAL THEORY OR' JURISPRUDENCE is the study of fundamen
tal legal principles.
4. Part-D
dealing with concepts io know the relevance of understand-
ing some concepts in understanding the law in a proper
y perspective.
The question what is iaw? Leads to
variety of questions like "is mo
rality or ethics law?" What is the relevance of morality in the study of
law? What is the purpose of law? What is the end of law?
In process of
knowing the answer the different jurists in different times and places
approached the problem in different ways. They are Natural (1) Law; (2)
Positive Law; (3) Historical Law; (4) Sociological School out.
the Lawyer to bring thery and life into focus, for it concerns human thought in
relation to social exs1epke.
PART A
NATURE, SCOPE AND DEFINITION
QUESTION NO. 1 DEFINE JURISPRUDENCE AND EXPLAIN ITS IMPORTANCE?
OR
JURISPRUDENCE IS TO LAW WHAT GRAMMAR IS TO LANGUAGE.
Answer:
. NATURE-Jurisprudence is the study of fundamental legal prin-
and ideals, social philosophy
Ciples.It is an experimental study of legal ideas
it is a master science
and political ideology make it a living dynamic discipline.
the development of law and
of legal thought. It is both theoreticai concerning
content of legal system. It
deals with
functional concerning the quality and
teacher,
the ieça community (student,
justice, equality and moraity. helps
It
It
the legal system ofparticular country.
lawyer, judge) much in understanding the concerned too
an opportunity to
broadens the thought arnd gives
direction.
choose a right
"lawyer's extra
words of JULUS STONE is,
Jurisprudence in the
unlimited possibilities to
Jurisprudence telps the lawyer to open
version'". knowl
with human develop:nent and contemporary
develop iaw in keeping who are well
arnd lawyers for that matter the people
edge explosiori. Judges of law wili be in a
better position to inter
extra legal aspects
acquainted with books and the
between the law in
that discrepancy
pret law purposefully so
removec
law in actiun is aitogeiher
LIKE GRAMMAR TO
A
JURISPRUDENCE
IS TO LAW
Thats why SERIOUS IN UN-
PEOPLE WHO ARE
VERY USEFU. TO THE INDI-
LANGUAGE IS INDIVIDUAL,AND
BETWEEN
REGULATOR
DERSTANDING LAW ASA INDIVIDUAL AND STATE.
SOCIETY AND
IND!VIDUAL AND
VIDUAL,
L:GAL t i l : i Y UH iiUDENCE
3
OR
JURISPRUDENCE WHICH HAS BEEN DERIVED FROM THE LATIN WORD
"JURISPRUDENTIA"I. E. . JURIS (LAW) AND PRUDENTIA (KNOWLEDGE)
MEANS THE KNOWLEDGE OF LAW. THEREFORE, IN THIS SENSE AL
THE LAW BOOKS ARE BOOKS OF JURISPRUDENCE COMMENT.
Answer:
the Latin word
Jurisprudence which has been derived trorn
the knowl-
"Jurisprudentia" i. e.. Juris (Law) and prudentia (Knowiedge) means
as ihe science ot
ULPAIN, the Roman Jurist defines Jurisprudence
well apply to religion,
just and unjust. This definition is too broad and might
ethics and philosophy
"
Positive;
(1) Analytical er
(2) Histcricai and
(3) Ethical
JURISPRUDENCE
LEGAL THEOAY OR -4-
He further says about his book that it is primarily and essentially a
book on analytical jurisprudence. In the sense all the law books strictly speak-
of UPLAIN's
ing are not books of jurisprudence. But if we view in the light
definition all law books are books of Jurisprudence
SCOPE
SCHOOLS OF JURISPRUDENCE
QUESTION NO. 3 EXPLAIN AND COMPARE DIFFERENT SCHOOLS?
OR
EXAMINE THE CHIANGES IN THE PURPOSE OF LAW FROM 19TH CEN-
TURY TO THE 20TH CENTURY.
Answer:
ir the later part o 9h centurr and ih: eil 20h century, the stuoy
of jurisprudence as a prore* nt
social develo,prnent, social change and soial
progress was developed by sociologis. ne STUDY
We can well understand all these schools through the foliowing table
Answer:
Natural Law known as Higher law or the Law of nature is the oldest
as well as the most modern. It is aiso known as philosophical school.t
provides base in politice, lew, raligion and cocial phiosophy. Natural law in
common sense means the iaw ihat is iargely unwritten and full of prin
ciples of ought (icieal prir.cipie). Ought is revealed by the nature of man or
reason or derived from God. Herce it is a METAPHYSICAL THINKING i. e. .
LEGAL Ti 1EORY OA JURISPRUDENCE
6-
beyond physical thinking and can not be proved scientificaly. It is a prior
concept i. e. , indep endent of experience. According to this theory, there are
certain objective and absolule principlas of morality and justice which are the
basis of law. ths principies can be found by human reason and
commonsennse
THE DEVELOPMENT AND EVOLUTION OF NATURAL 1LAW:
'To live honourably, to injure no one, to give every man his due re-
spect are his precepts of human law.
POSITIVE LAW
QUESTION NO. 5 STATE AND CFTICISE AUSTIN!AN DEFINITION CF LAW.
OR
EXPLAIN THE MERITS AND DEMERITS OF IMPERATIVE THEORY OF
LAW.
Answer:
ANALYTICAL POSITIVISM:
He understands law, AS
A RULE LAID DOWN FOR THE GUIDANCE
OF AN INTELLIGENT BEING BY AN
OTHER INTELLIGENT BEING ANOTHER
HAVING POWER OVER HIM. i.e. POSITIVE LAW ACCORDING TO HIM IS
THE LAW SET BY POLITICAL SUPERIORS TO
POLITICAL INFERIORS. PO0
LITICAL SUPERIOR IS SOVEREIGN
POLITICAL INFERIOR
IS SUBJECT.
1. Customs ignored.
HISTORICAL SCHOOL
LAW AS HISTORY OF SOCIETY
(AS IT WAS)
QUESTION NO. 6 WHAT IS THE
CONTRIBUTION OF HISTORICAL sCHOOL OF JURISPRU-
DENCE IN THE DEVELOPMENT OF LEGAL THEORY?
OR
EXAMINE THE CONTRIBUTION OF SIR HENRY MAINE TO THE
CAL JURISPRUDENCE? HISTORI
Answer:
Historical School of
Jurisprudence is a reaction against a prior meth-
ods of reasoning of 18th century natural law. It also opposed
propagation of a soulless barren sovereign made, coercive law in positive
law
morals and culture. Against these two which were exclusion of
unhistorical and not having
historical nature, historical school was
LAW IS A LEGACY OF THE PAST, A
developed. According to this school
PRODUCT OF EACH AND EVERY INDl
VIDUAL COMMUNITY OR NATION. SAVIGNY
HENRY JURISTS IN THIS SCH0OL.
(GERMAN JURIST) ARE MAIN
law)
II Stage:Customarylaw (commands Crystaliseintocustomary
III Stage: Knowledge of law in the hands of priests.
I V Stage: Codification.
ENVISAGED BY MAINE:
STATIC AND PROGRESSIVE SOCIETIES ASs
SCHOOL OF JURISPRU-
AND CONTRAST THE HISTORICAL
QUESTION NO. 7 COMPARE
SCHOOL OF JURISPRUDENCE?
DENCE WITH THE ANALYTICAL
Answer:
Difference between ANALYTICAL SCHOOL AND HISTORICAL
SCHOOL
SOCIOLOGICAL SCHOOL
QUESTION NO. 8 EVALUATE THE MAIN CONTRIBUTIONS OF SOCIOL0GICAL SCHOOL
OF JURISPRUDENCE.
OR
SOCiOLOGICAL SCHOOL IS THE UNIFICATION OF ALL SCHOOLS
COMMENT?
Answe
Court
InMINERWA MILLS VS UNIONOF INDIA1980the Supreme the
(majority) opined the harmonious construction must be made between
two parts. in the same judgement Justice BHAGAVATHI held in his minority
judgement that the individual interest must be sacrificed to social interests.
REALIST SCHOOL
LAW AS PRACTICE OF THE COURT (AS IT DOES
QUESTION NO. 9 ELABORATE THE CONTRIBUTIONS OF REALIST sCHOOL AND ITS THEORY
THAT LAW AS PRACTICE OF THE COURT
Answer:
Theories of legal realism too, like pos itivism look on law as the ex
pression of the will of the state. But see this as thade through the medium of
Courts. According to Realist School Law is understood as practice of the
Court.
-13- LEGAL THEOY OR JURISPRUDENCE
Holmes in the United States, viewed the same bad man
conclusion.
Wnen such a person, wants to secure his own selfish
interest he not
does
care for what is in the statute book or text book. He wants result in favour of
him, i.e. What he wants to find out what the court is likely to do if he is found
Out. Holmes arrived at the conclusion that
prediction of what the court will do
in fact (and nothing more) are what is meant by law. The courts have to de-
cide the laws on
arriving proper Interpretation out of variety of possible inter
pretation to the statute.
AWser
KELSEN'cONCEPT OF LAW
The
hierarehy uitimately relates back to an initial norm of Initial Hy-
pothesis called grurd norm and from this norm that all interior norms derive
their force. î'his gruna norm can be recognised by The minimum
effective
ness in any society. Britain the ground norm is Crown & Parliament & in U.
In
S. A. it is the constitution. in india
eventhough regarding parliamentary su-
premacy & constitutional supremacy, some doubts were there about the
LEGAL THEORY OA JURISPRUDENCE
-14
Groundnorm of the
Country, the Supreme Court in KESAVANANDA BHARATI
Case in 1973, indirectly decided the
constitution is the
problem of understanding whether the original constitutionGrundnorm. Again the
or the constitution with the was the Groundnorm
subsequent
solved by the Supreme Court in the sameamendment is Groundnorm was re
case and also in
by understanding the original constitution is subsequent cases,
the Grundnorm. For that
pose, the Supreme Court created Basic structure theory. From the above pur
one
can understand the /Original /Norm. The
grundnorm determines
and gives of validity to other ncrms der ived
the content
from it. However, basic norm
(grundnorm) is neither valid nor invalid, its validity
supposed. Thus the legal system was understood by kelsenassumed
must be
as hierarchypre
or
or
pyramid or norms.
Answer:
In 20th Century, Harts concept of law is one of the most important
contributions to analytical jurisprudence as a revolt against the barren charac-
ter of Austinian legal philosophy. His works initiated a renaissance of analyti-
cai jurisprudence in England. In Hart concept of iaw, a system of rules (Pri-
mary & Secondary) and their combination or union explain the nature of law.
The primary rulesare duty imposing rujes and the secondary rules are power
positivists.