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CONTENTS UNIT-I

GENERAL Definition of Jurisprudence Nature and Scope of Jurisprudence Kinds of Law Sources of Law Important Questions

UNIT- II

SCHOOLS OF JURISPRUDENCE - I Analytical Positivism School Historical School Natural Law School Social Contract Theory (Hegel, Kant) Important Questions

UNIT- III

SCHOOLS OF JURISPRUDENCE - II Sociological School Legal Realism Economic Interpretation of Laws Social and Economic Justice Important Questions

UNIT- IV

LEGAL CONCEPTS - I Administration of Justice Theories of Punishment Justice (Meaning and Kinds) Legal Rights and Duties Important Questions

UN IT-V

LEGAL CONCEPTS - II Possession Ownership Legal Personality Liability Important Questions Suggested Readings

UNIT - I GENERAL DEFINITION OF JURISPRUDENCE The English word "Jurisprudence" has been taken from a Latin word "Jurisprudentia", which consists of two words, 'Juris' and 'prudentia'. 'Juris' means law and 'Prudentia' means knowledge. Jurisprudence, therefore, literally means knowledge of law and its application.

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It is difficult to give a singular definition of the term. Since the growth and development of law in different countries has been under different social and political conditions, the different jurists have given different definitions according to their own notion of the subject-matter and so it is not possible to give a universal and uniform definition of Jurisprudence. So the different jurists have defined this term in different waysUlpian: According to Ulpian "Jurisprudence is the knowledge of things human and divine, the science of the just and unjust". The definition given by Ulpian is wide and broad enough because it includes the term 'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy. Criticism: The above definition is wide and broad enough because it includes the term 'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy. The modern jurisprudence does not study the spiritual salvation. It is now-a-days confined only to what Hindu jurists described as 'Vyavahara' which means those rules that determines the judicial proceedings or controversies.

Prof. Gray: According to Prof. Gray "Jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules." Prof. Gray is of the opinion that jurisprudence deals with that kind of law which consists of rules enforced by courts while administering justice. In other words, the laws of the jurists deal with man and seek to regulate external human conduct in the society. It does not concern itself with the inner beliefs of man imposed in religious laws, which derive their authority from superhuman source which we call 'God'. The sanction for their enforcement is spiritual reward or curse according to man's deeds.

Holland: According to Holland "Jurisprudence is the formal science of positive law." It is wrongly applied to actual systems of law, or to current views of laws, or to suggestions for its amendment, but is the name of a science. The science is a formal, or analytical, rather than a material one. It is the science of actual or positive law. The essential ingredients of his definition of jurisprudence are as under1. Formal 2. Science 3. Positive Law. Holland's definition of jurisprudence has been criticized by various jurists like Gray Dr. Jenks and Prof. Platt.

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According to Gray "Jurisprudence is, in truth, no more a formal science than physiology, so the acts and forbearances of men and the events which happen to them are the subject-matter of jurisprudence and physiology could as well dispense with the former as jurisprudence with the latter." Salmond: Salmond has defined jurisprudence in two different senses1.

In Wider (Generic) Sense: According to Salmond, "Jurisprudence in wider sense means the science of civil law." Salmond says that in a generic and primary sense jurisprudence includes the entire body of legal doctrine. Since jurisprudence is the knowledge of law, from this point of view it includes the entire book of laws.

Narrow (Specific) Sense: Salmond distinguishes jurisprudence in its generic sense, as including the entire body of legal doctrine, from jurisprudence in a more specific sense, in which it means a particular department of such doctrine exclusively. He says that in its limited significance it may be called theoretical or general jurisprudence to distinguish it from the more practical and special departments of legal study. In this sense "Jurisprudence is the science of the first principles of civil law." The words which are used by Salmond in his definitions may be explained as under-

2.

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1.

Law: According to Salmond, "Law is the body of principles recognised and applied by the state in the administration of justice."

2.

Civil Law: The term 'civil law' is derived from the Latin word "Civitas" which means State. Thus, civil law means law made by state. It means the law of the land as opposed to other bodies of rules to which the name of law has been extended by analogy.

3.

Science: According to Salmond, if we use the term science in its widest permissible sense, as including the systematized knowledge of any subject of intellectual inquiry, jurisprudence may be defined as the science of civil law. It is a science as distinguished from arts and indicates in its widest sense all those subjects which directly or indirectly treat of the science of law. Salmond says that as the 'science of law' there may be three kinds of jurisprudencea. Expository or systematic jurisprudence, which deals with the contents of an actual legal system, as existing at any time whether past or present.

b. Legal history, which is concerned with the legal system in its process of historical development. c. The science of legislation, the purpose of which is to set forth law as it ought to be. It deals with the ideal future of the legal system and the purpose which it may serve. Austin: According to 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 means 'jus positivum', that is law laid down by a political superior for commanding obedience from his subjects. Austin divides jurisprudence into two parts, namely(i)

General jurisprudence; and

(ii)

Particular jurisprudence.

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By "General jurisprudence", he meant 'the science concerned with exposition of the principles of nations and distinctions which are common to all the systems of law' whereas Particular Jurisprudence consisted of the science of any such system of positive law as now obtains or once actually obtained in specifically determined nation. Allen: According to Dr. Allen "Jurisprudence is the scientific synthesis of the essential principles of law". Paton: According to Paton "Jurisprudence is a particular method of the study not of the law of one particular country but of the general notions of law itself." Paton is of the opinion that jurisprudence studies the basic or fundamental principles or general notions of law itself. Conclusion: On the basis of the above description we can say that Salmond's statement that 'jurisprudence is the science of the first principles, of civil law', appears to be more sound than any other definitions because in fact we study the basic principles of law in jurisprudence and not the law of any particular country.

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NATURE AND SCOPE OF JURISPRUDENCE

Nature: Jurisprudence in its nature is entirely a different subject from other social sciences. The reason for this is that it is not codified but a growing and dynamic subject having no limitation of itself. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation. So it can be said that Jurisprudence has no limited scope being a growing subject. There is a difference of opinion about the nature of jurisprudence. It is called both Art and Science. But to call it science would be more proper and useful. The reason for this is that just as in science we draw conclusions after making a systematic study by inventing new methods, Jurisprudence is concerned with the fundamental principles of law and systematic and scientific study of their methods.

Scope: Jurisprudence includes all concepts of human order and conduct in State and Society. According to Justice P.B. Mukherjee, "Jurisprudence is both an intellectual and idealistic abstraction as well as behavioural 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." Salmond has also opined that "In jurisprudence we are not concerned to derive rules from authority and apply them to problem; we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system." This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law we look for the rules relevant to the given situation, in jurisprudence we ask what is for a rule to be a legal rule, and what distinguishes law from morality, etiquette and other related phenomenon. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known. Contents of Jurisprudence: The contents of jurisprudence are1.

Sources: It is true that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. Therefore, it obviously forms the contents of jurisprudence. Subject such as custom, legislation, precedent as a source of law, pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc. are included for study.

2.

Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights, titles,

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property, ownership, possession, obligations, acts, negligence, legal personality and the related issues. The study of these abstract legal concepts furnishes a background for better understanding of (aw in its various forms. 3.

Legal Theory: Legal theory is concerned with law as it exists and functions in the society, and the manner in which law is created and enforced as also the influence of social opinion and law on each other.

Utility I Importance of Jurisprudence: Salmond opines that jurisprudence has its own intrinsic interest like any other subject of serious scholarship. Just as a mathematician investigates the number theory not with the aim of seeing his findings put to practical use but by reason of the fascination which it holds for him, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies.

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Practical Applicability: Jurisprudence also has its practical applicability. It seeks to rationalize the concepts of law which enables us to solve the different problems involving intricateness of law. In other words, it serves to render the complexities of law more manageable and rational and in this way theory can help to improve practice in the seats of law.

Educational Value: Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to take the needs of society and also of the advances in related and relevant disciplines such as sociology, economics, philosophy etc. The proper understanding of law of contract may perhaps require some knowledge of economics and economic theory or a proper grasp of criminal law may need some knowledge of criminology and perhaps also of sociology.

Holland: Commenting on the significance and utility of jurisprudence, Holland observed, "The ever renewed complexity of human relations calls for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible." Thus, jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. This is why it has been characterized as "the eye of law" by some jurists.

Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the legislatures by providing the rules of interpretation. It also furnishes them an opportunity to pinpoint the lacunae, short-comings and defects in the laws framed by the legislature and remedy them through their judicial interpretation. The study of jurisprudence helps in rationalizing the thinking of the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of human affairs boldly and courageously.

Jurisprudence may also be helpful to legislators who playa crucial role in the process of law-making. The study of jurisprudence may familiarize them with technicalities of law and legal precepts thus making their job fairly easy as also interesting. The utility of jurisprudence should be tested in the light of its functional role and in the context of the prevailing socio-economic and political philosophies of the time, place and

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circumstances. The law should serve the purpose of 'social engineering' by preserving societal values and eliminating conflicting interests of individuals in the society. Jurisprudence is the Eye of Law: On account of the importance of jurisprudence in the field of law is called "the eye of law". The eyes are one of the most important parts of human body. Almonds all human activities and the movements of body are possible only through them. Unless man can see things properly, he cannot do any work. The reason of calling jurisprudence the 'eye of law' is that jurisprudence functions for law in the same manner as the eyes do in human body. The main function of jurisprudence is to study the origin of law, its development and its contribution towards society. Law is the only nearest and important aspect in the absence of which the existence of a peaceful and organised society cannot be imagined. Laws are the basis of all nation-activities. The proper existence of State is in obedience of personal rights and liabilities of people and the conduct of national activities depends on the existence of solid and perfect law.

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The matters relating to birth, marriages, death, succession etc., are equally controlled through laws. Hence it is essential to know the correct basic principles of law which are contained only in the jurisprudence. It is necessary that the people should have a sound knowledge of law which is possible only with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has rightly been called the eye of law. KINDS OF LAW

Definition of Law: In one sense the law is a large body of rules and regulations based mainly on general principles of justice, fair play and convenience, which have been worked out and promulgated by governmental bodies to regulate human activities and define what is and what is not permissible conduct in various situations.

The term law, however, is also used in a much broader sense. To denote the whole process by which the organized society, through governmental bodies and personnel (Legislatures, Courts, Administrative tribunals, Law enforcement agencies and officials, Penal and Corrective institutions etc.) attempt to apply these rules and regulations and thereby establish and maintain peaceful and orderly relations between the people in that society. Thus the study of law is necessarily not only a study of legal rules but also a study of the whole legal system through which society attempts to maintain law and order. Article 13(3)(a) of the constitution. The term law includes any ordinance, order, by-law, rule, regulation, notification, custom and usage having, in the territory of India, the force of law. The Kinds I Classification of Law: The use of the term law is made in various senses. It denotes different kinds of rules and principles. Now we are discussing various meanings given to law which shall be discussed and the meaning in which it is taken in jurisprudence shall be discussed. Thus according to Blackstone, "Law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kinds of action whether animate rational irrational." Thus, we say the laws of motion of gravitation of optics or mechanics as well as laws of nature and of nations.

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Classification of Law: For a proper and Logical understanding of Law, its classification becomes necessary. It helps in grasping the principles and the logical structure of the legal order. It makes clear the inter-relation of rules and their effect on each other. It helps in arranging the rules in a concise and systematic way. It presents an analysis for the architect of Law which greatly helps in codification. It is of great use for a lawyer. It helps him in understanding the law. Classification of law is generally on the following pattern 1. 2. 3. 4.

Substantive Law and Procedural Law or Formal Law. Civil Law and Criminal Law International Law and Municipal Law. Codified and Uncodified Law.

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1. Substantive Law and Procedural Law or Formal Law: Substantive law is the law dealing with the topic with which it has been connected. e.g., Contract Act, Hindu Law, I.P.C.

Procedural or formal law deals with evidence and procedure in court of law- C.P.C. for civil cases and Cr. P.C. for criminal cases. We have on the whole the same law of evidence in Civil cases.

Some laws are predominantly substantive and some mainly formal or procedural. But a substantive law also may have the formal in it., e.g., Company Law, Insolvency Law etc.

Where the rule of formal law differs from a rule of substantive law, the substantive law prevails over the formal law, because all the formal laws deal with the form not with the spirita) Substantive law is that which defines the right while procedural law determines the remedies. b) Substantive la...