Jurisprudence dec 2018 sem 3 PDF

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StuDocu is not sponsored or endorsed by any college or universityJurisprudence- Dec 2018 SEM 3Llb 3 years (Karnataka State Law University)StuDocu is not sponsored or endorsed by any college or universityJurisprudence- Dec 2018 SEM 3Llb 3 years (Karnataka State Law University)AL-AMEEN COLLEGE OF LAWI...

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Jurisprudence- Dec 2018 SEM 3 Llb 3 years (Karnataka State Law University)

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AL-AMEEN COLLEGE OF LAW IMPORTANT QUESTION WITH ANSWERS DECEMBER -2018 III SEM 3 YEARS LL.B. / VII SEM 5 YEARS B.A. LL.B.

SUBJECT: JURISPRUDENCE

PREPARED BY: Ms. Sahana Florence, Asst. Prof. Al-Ameen College of Law

Q.No.1. Define Jurisprudence. Explain the nature and scope of Jurisprudence? Introduction to Jurisprudence: 1|Page

Law is not a new concept for the human society. Since from the time immemorial we find its existence in one form or the other. Law has now become a necessary evil, even though it curtail my freedom, limits my move but still I want law to be there so that I may enjoy my right in a society. We cannot assume human society in absence of law. Law introduces balance in society and help in maintenance of public order and security. Concept of law changes as per the society in which it is operating and develops along with society. Jurisprudence is the science, study and theory of law. It includes principles behind the law that makes the law. Scholars of jurisprudence are called as “Jurists” or legal theorists. Modern jurisprudence began in the 18th century and was focused on the first principle of natural law, civil law and the law of nations. Jurisprudence- Its Nature, Meaning, Definition & Scope  Nature of Jurisprudence: The word “Jurisprudence” is derived from a Latin word jurisprudential, which in its widest sense, means ‘knowledge of law’ or skill in law. The Latin word “Juris” means ‘Law’ and “Prudentia” means skill or knowledge. Thus jurisprudence signifies knowledge of law and its application. In this sense it covers the whole body of legal principles in the world. The history of the concept of law reveals that jurisprudence has assumed different meanings at different times. It is therefore, difficult to attempt a singular definition of the term. It has a long history of evolution beginning from classical Greek period to 21st Century modern jurisprudence with numerous changes in its nature in various stages of its evolution. During the formative era of the common law in England, the term ‘jurisprudence’ was being used in a comprehensive sense to include the study of various series of law. However, in the early decades of the 19th Century with the theories propounded by Bentham and his disciple Austin, the term ‘jurisprudence’ acquired a definite meaning. Later, Austin concerned himself mainly with the formal analysis of the English law and its related concepts, which still continues to be the basic contents of English jurisprudence.  Meaning and Definitions of Jurisprudence: Jurisprudence, in its limited sense, means the general principles upon which actual rules of law are based. It is concerned with rules of external conduct which persons are constrained to obey. Therefore, jurisprudence is that science which imparts to us knowledge about “law”. In short, jurisprudence may be considered to be the study and systematic arrangement of general principles of law. In other sense, jurisprudence may be regarded as the philosophy of law dealing with the nature and function of law. The study of jurisprudence as a separate branch of knowledge started with the Romans. For them, jurisprudence meant ‘knowledge of law’. 2|Page

The term ‘jurisprudence’ has meant different things at different times. The definitions of jurisprudence as given by some of the eminent jurists may be stated as follows:1. According to Ulpian, the celebrated Roman jurist defined jurisprudence as “the observation of things human and divine, the knowledge of the just and the unjust”. 2. According to Gray “jurisprudence is the science of law, the statement ans systematic arrangement of the rules followed by the courts and the principles involved in those rules”. 3. According to Salmond “jurisprudence is the science of the first principles of the civil law”. 4. According to John Austin “jurisprudence is the philosophy of positive law”. He was the first jurist to make jurisprudence as a science. By the term “positive law” he meant ‘jus positivum’, that is law laid down by a political superior for commanding obedience from his subjects. 5. According to Holland “jurisprudence is the formal science of positive law”. 6. According to Dr. Allen “jurisprudence is the scientific synthesis of the essential principles of law’. 7. According to Roscoe Pound “jurisprudence is the science of law using the term law in the judicial sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice”.  Scope of Jurisprudence: The exact scope of jurisprudence has been a subject of the keenest controversy. Jurisprudence is an investigation of an abstract and theoretical nature of law. It deals with the essential principles of law and legal system. It does not constitute a set of rules. It is not derived from authority and it is without practical application. It comprises philosophy of law. Its object is not to discover new rules but to reflect on the rules already known. As stated earlier, the scope of jurisprudence has widened considerably over the years. It is generally believed that the scope of jurisprudence cannot be circumscribed. Broadly speaking, jurisprudence includes all concepts of human order and human conduct in State and Society. In other words, anything that concerns order in the state and society will be within the domain of jurisprudence. Commenting on the scope of jurisprudence, Justice. P.B.Mukarjee observed, “Jurisprudence is both an intellectual and idealistic abstraction as well as behavioral study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to state and society. Jurisprudence is a science in so far as it deals with the knowledge of the law and legal principles. Jurisprudence is an experimental study of legal ideas and ideals and social 3|Page

philosophy and political ideology in form and content, nature and function which make it a living and dynamic discipline. Functionally speaking, it is a technique of methodology to devise, design and identify such pressing demands or problems which require solution with the parameters of law and other social norms. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rule but to reflect on the rules already known.

Q. NO.2. Discuss legal realism. How is it different from Austin’s Theory of Law?

Law is a means to social ends; and every part of it has constantly to be examined for its purpose and effects, and to be judged in the light of both and their relation to each other. Society changes faster than law and so there is a constant need to examine how law meets contemporary social problems. Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing uncertainty of law. The realists introduced studies of case law from the point of view which distinguished between rationalization by a judge in conventional legal terminology of a decision already reached and the motivations behind the decisions itself. An alternative theory to both positivism and naturalism is legal realism. Legal realists Focus on “law in action” rather than with “law in books. They say law is what lawyers and judges do when “practicing law” instead the sayings, quotations and interpretation of legal theorist and jurists. If studied in detail, we come to know that realists say the decision of a judge is the law. Because he is the sovereign to interpret the law. The doctrine of precedent has a very significant place in realist theory. Legal Realism states that an understanding of the law is not attained by a method of deduction instead best understood as a matter of prediction. One of the leading supporter of Realism is Oliver Wendell Holmes. Realists believe that there can be no certainty about law and its predictability depends upon the set of facts which are before the court for decision. They do not support formal, logical and conceptual approach to law because the Court while deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’ ground. Realism was a movement without a clearly articulated theoretical foundation of its own. Some jurists refuse to accept realism as a separate school of jurisprudence. According to Llewellyn, “there is no realist school as such, it is only a movement in thought and work about law.” Realism is the anti-thesis of idealism. American realism is a combination of the analytical positivism and sociological approaches. Julius Stone calls the realist movement a ‘gloss’ on the sociological approach. The main contribution of realists to jurisprudence lies in the fact that they have approached law in a positive spirit and demonstrated the futility of theoretical concepts of justice and natural law. Opposing positivist’s view, the realists hold that law is uncertain and indeterminable in nature therefore, certainty of law is a myth. According to Friedman, realist 4|Page

movement is an attempt to rationalize and modernize the law- both administration of law and the material for legislative change, by utilizing scientific method and taking into account the factual realities of social life. According to Julius Stone, “realist movement is a gloss on the sociological approach to jurisprudence. He considers realism as a combination of the positivist and the sociological approach. It is positivist in the sense that it undertakes the study of law as it is and sociological, because it expects that law should function to meet the ends of society. Thus in his view, realist school is merely a branch of sociological jurisprudence and a method of scientific and rational approach to law. Legal Realism and Legal Positivism: Despite their serious differences, Legal realism and legal positivism share one important belief. It is that their views are similar on the point of difference between ‘the law as it is’ and ‘the law as it ought to be’. The positivist, according to Hart, look to the established primary rules and to secondary rules of recognition that designate law making bodies. American realists are skeptical about the degree to which rules represent the law. They seek to investigate how courts actually reach their decisions. Karl Llewellyn observed that the realists’ separation of ‘is’ and ‘ought’, is a temporary divorce. The divorce lasts while the scholars are discovering what courts actually do. Q.No.3. Discuss the Natural Law Theory OR Explain Law as a Dictate of Reason

Introduction: The natural law philosophy occupies an important place in the realm of politics, law, religion, and ethics from the earliest times. It has plated the role of harmonizing, synthesizing and promoting peace and justice in different periods and protected public against injustice, tyranny and misrule. Meaning and Definition of Natural Law: Natural Law known as “Higher Law” or the “Law of Nature” is the oldest as well as the most modern as it has been continually dominating the entire basis of politics, law, religion and social philosophy. It is written by the fingers of nature in the hearts of mankind. The entire history of natural law reveals an attempt by jurists to provide the concept and content of natural law in order to meet the subjective conditions of human existence and to solve the contemporary social problems of their times. Natural law in common sense means the law that is largely unwritten and consists of principles of ‘ought’ as revealed by the nature of man or reason or derived from God. It is emanated from some supreme source other than any political authority.

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Blackstone observed: “The natural law being co-existent with mankind and emanating from God Himself, is superior to all other laws. It is binding over all the globe in all countries and at all the times and no man-made law will be valid if it is contrary to the law of nature”. The natural law philosophy dominated in Greece during 5th B.C. when it was believed that it is something external to man. Socrates, Plato and Aristotle also accepted that postulates of reason have a universal force and men are endowed with reason irrespective of race or nationality. The concept of natural law has been differently interpreted by writers at different times. Some of them contend that natural law consists of ideals which guide legal development and administration while others characterize it as quest for perfect law deducible by reason. The supporters of natural law theory believe that there is a basic element in law which prevents a total separation of ‘law as it is’ from the ‘law as it ought to be’. It would thus be seen that there is no unanimity about the definition and exact meaning of natural law and the term natural law theory’ has been interpreted differently at different times depending on the needs of the developing legal thought. But the greatest attribute of the natural law theory is its adaptability to meet new challenges of the transient society. The exponents of natural law philosophy conceive that it is a law which is inherent in the nature of man and is independent of convention, legislation or any other institutional devices. Natural law theory is the earliest of all theories. Its origins are found in Greece Philosophy. Leading philosophers who support theory are Heraclitus, Socrates, Plato, and Aristotle. With every passing century natural law theory got more and more followers which include Gairus, Cicero, Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume. Natural Law has different names. Some of these names are law of reason, eternal law, rational law, and principles of natural justice. Natural law is defined by Salmond as “the principles of natural justice if we use the term justice in its widest sense to include all forms of rightful actions.” According to Dias and Hughes “natural law as a law which derives its validity from its own inherent values, differentiated by its living and organic properties, from the law promulgated in advance by the state or its agencies. According to Cohen, natural law is not a body of actual enacted or interpreted law enforced by courts; it is in fact a way of looking at things and a humanistic approach of judges and jurists. It embodies within it a host of ideals such as morality, justice, reason, good conduct, freedom, equality, liberty, ethics and so on.”. According to Stoics, it is Divine Law (jus divinum), the command of God imposed upon man. Their philosophy was that man should live according to nature and that since the distinctive feature of man’s nature was his endowment with reason. According to Cicero, natural law is the Law of Reason, by which the world is governed and which is addressed to and perceived by the rational nature of man. 6|Page

According to Aristotle, natural law is the “unwritten law”. (jus no scriptum) Natural law theory has tried to meet the paramount needs of successive ages throughout history, and an account has been given of the ways in which it supported power or freedom from power according to the social need of the time. Natural law shows us the need to study law in the context of other disciplines in particular, it makes us aware of the way in which moral goals enter the law and play a part in its administration and adjudication of cases. The Importance of Natural Law: Natural law is the result of the desire of wise and just men to seek ideal justice. Out of natural law have evolved principles of law and legal systems which are common throughout the world from a practical stand point, natural law might seem to offer advantages. First, as an antidote to legal rigidity, it could provide flexibility, allowing rules of law to be changed from what they are to what they ought to be, on the ground that the law always is what it ought to be. Secondly, the natural lawyers’ terminology, natural law is claimed, would weaken the authority of unjust and immoral laws. Natural law has influenced the church; natural law has imbibed its principles of positive law, rooting off from positive law what may not be consonant with natural justice; natural law has been and is a very potent source on international law and contributes to its development. In conclusion we may assert that natural law occupies an important and essential part in values. Main Characteristics of Natural Law: The phrase ‘natural law’ has a flexible meaning. It has been interpreted to mean different things in course of its evolutionary history. However, it has generally been considered as an ideal source of law with invariant contents. The chief characteristics features of natural law may be briefly stated as follows:1. It is basically a priori method different from empirical method, the former accepts things or conclusions in relation to a subject as they are without any need or enquiry or observation while empirical or a posteriori approach tries to find out the cause and reasons in relation to the subject-matter. 2. It symbolizes physical law of nature based on moral ideals which has universal applicability at all places and times. 3. It has been often used either to defend a change or to maintain status quo according to needs and requirement of the time. 4. The concept of ‘rule of law’ in England and India and ‘due processes’ in USA are essentially based on natural law philosophy.

Q.No.4.. Critically examines the statement “Law as a command of the sovereign? 7|Page

OR Discuss the essential characteristics of the ‘Analytical School’? Synopsis: Introduction Austin is considered to be the ‘father of English Jurisprudence’. He confined his study only to the positive law and applied analytical method for this purpose. By Positive Law, Austin meant ‘Laws Properly So Called” as distinguished from morals and other laws which he described as ‘Laws Improperly So Called’ which lack force or sanction of the State. Austin described positive law as ‘the aggregate of rules set by man as politically superior to men as politically inferior subjects. He attributes (1) Command, (2) Sanction, (3) Duty, and (4) Sovereignty as the four essential attributes of positive law. It was Austin who for the first time treated jurisprudence as a science of law concerned with analysis of legal concepts- their exposition, examination and comparison in a scientific manner in order to determine their scope and extent in a given politically organised society. the major thrust in Austinian positive law was therefore, on separation of law from morals. “Law as a Command of Sovereign Imperative Law” Austin’s positive law has three characteristic features: (1) It is a type of Command (2) it is laid down by a Political Sovereign and, (3) Enforceable by a Sanction. A typical example is ‘the Road Traffic Law, which could be described as a command laid down by the sovereign under the Indian legal system i.e. the parliament, and enforceable by penalties for violation.  Commands: Requests and wishes are expressions of desire, while commands are expressions of desire given by superiors to inferiors. Officers command their subordinates but not otherwise. The relationship of superior to inferior consists in the power, his ability to punish for disobedience. The power and purpose to inflict penalty for disobedience are the very essence of a command. The person liable to the penalty is under a duty to obey it. The penalties for disobedience are the essence of a command. Command Duty and Sanction are inseparably connected. So every law is a command, imposing a duty, enforce3d by a sanction. However all the commands are not law, it is 8|Page

only general command, which obliges to a course of conduct, is law. Austin however, accepted that there are three kinds of laws which are not commands. They arei.

Declaratory or Explanatory Laws:- These are not commands because they are already in existence and are passed only to explain the law which is already in force.

ii.

Laws of Repeal:- Austin does not treat such laws as commands bec...