Lecture Notes on Jurisprudence-1 F-17 QAU ppt PDF

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The Islamabad Center for Legal Studies Islamabad – Pakistan B, LL, F-17, The School of Law, QAU Lecture Notes on Jurisprudence-I Shaukat Hayat Lecture Notes on Jurisprudence 2 Table of Contents Lesson Topic Page Lesson-1 Nature and Scope of Jurisprudence 4 Lesson-2 Definition and Nature of Law 11 Le...

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The Islamabad Center for Legal Studies Islamabad – Pakista

B.A, LL.B, F-17, The School of Law, QAU

Lecture Notes o

Jurisprudence-I Shaukat Hayat

Lecture Notes on Jurisprudence

2

Table of Contents Lesson

Topic

Page 4

Lesson-1

Nature and Scope of Jurisprudence

Lesson-2

Definition and Nature of Law

11

Lesson-3

Administration of Justice

17

Lesson-4

Legislation

24

Lesson-5

Judicial Hierarchy

37

Lesson-6

Sources of Law

46

Lesson-7

Introduction to Legalese

60

Lesson-8

Legal Rights

68

Lesson-9

Intellectual Property Rights

83

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Copy Rights Notice All rights reserved. No part of these lecture notes may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the author, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the author at the address below: Shaukat Hayat LL.B, LL.M (IIUI) Islamic Laws LL.M (London) Commercial & Corporate Law Islamabad Center for Legal Studies Islamabad – Pakistan

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Lesson-1

Nature and Scope of Jurisprudence Meaning and Definition of Jurisprudence: Different meanings have been assigned to the term ‘Jurisprudence’ by different writers. The word is derived from the Latin word “Jurisprudentia” which again is made of two words ‘Juris’ meaning legal and ‘Prudentia’ means knowledge. In simple words, it can be said that ‘Jurisprudence’ is the name given to a certain type of investigation into law, an investigation of an abstract, general and theoretical nature, which try to find essential principles of law and legal systems. So it deals with knowledge of ‘law’ and not ‘the law’. The task of jurisprudence’ consists of the examination of realm of law and the formulation of valid propositions. John Austin: John Austin (3 March 1790 – 1 December 1859) was a noted English legal theorist who strongly influenced British and American law with his analytical approach to jurisprudence and his theory of legal positivism. In opposing traditional "natural law" approaches, Austin argued against any necessary connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way. Austin was the first jurist to make jurisprudence as a science. He defines 'jurisprudence' as "the philosophy of positive law." He opines that the appropriate subject to jurisprudence is a positive law i.e. law as it is (existing law). In other words, jurisprudence is not a moral philosophy but it is a scientific and systematic study of the existing, actual and positive law has distinguished from natural, ideal or moral law. Austin divides jurisprudence into two classes. Viz 'general Jurisprudence and Particular Jurisprudence. According to him 'General Jurisprudence is the philosophy of positive law. On the other hand 'particular jurisprudence is Copy Right © Shaukat Hayat 2018

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the science of any such system of positive law as now actually obtains or once actually obtained in a specifically determined nation or specifically determined nations. Horace Gray: Horace Gray (March 24, 1828 – September 15, 1902) was an American jurist who ultimately served on the United States Supreme Court. He was active in public service and a great philanthropist to the City of Boston. Gray also defined ‘Jurisprudence’ more or less in the same manner. He opined that jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in these rules. Sir John William Salmond: Sir John William Salmond (3 December 1862 – 19 September 1924) was a legal scholar, public servant and judge in New Zealand. Salmond defines ‘Jurisprudence’ as the “Science of the first principles of the civil law” Jurisprudence thus deals with a particular species of law, viz., civil law or law of the state. This kind of law consists of rules applied by courts in the administration of justice. It has characteristic features that distinguish it from law of every other kind. Sir Thomas Erskine Holland: Sir Thomas Erskine Holland (17 July 1835 – 24 May 1926) was a British jurist. He has defined jurisprudence as the “formal science of positive law” A formal science, as distinguished from a material science, is one which deals not with concrete details but with the fundamental principles underlying them. Jurisprudence in this view should concern itself with the general portion of legal doctrine. It should deal with the general conceptions and pervading principles that constitute the basis of any mature system of law. Encyclopedia Britannica: According to Encyclopedia Britannica ‘Jurisprudence’ is the name given to those studies, researches and speculations which aim at answering the plain man’s question; what is Copy Right © Shaukat Hayat 2018

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law? It is proposed to define law for the jurists as the sum of the influences that determine decisions in courts of justice. Historical Background: In England, the expression had been in use throughout the early formative period of common law, but as meaning little more than the study of or skill in the law. It was not until the time of Bentham and his followers like Austin in the early part of 19th century that the term began to acquire a technical meaning and significant among English lawyers. By the end of the 19th century, changing human affairs had brought about an ever increasing preoccupation with conflicting ideologies and troubled social conditions which resulted in a decisive shift in outlook. As a result to this change, jurisprudence today is envisaged in an immeasurably broader and more sweeping sense than that in which Austin understood it. Sometimes terms like medical jurisprudence, architectural engineering jurisprudence and environment jurisprudence etc. are used. When used in this sense, the phrase refers to treatise dealing with that part of knowledge which is useful in applying legal doctrines or principles applicable to or useful for medico-legal cases or architectural or engineering or environment cases. The Romans were the first to study legal science in its true perspective as a distinct branch of learning. A juris consult, who contributed largely to the development of jurisprudence in Rome in the early days, was “skilled in the laws, and in the usages current among private citizens, and in giving opinions and bringing actions and guiding his clients alright.” The “Corpus Juris Civilis was the great work of compiled in the eastern Roman Empire under the emperor Justanian between the years 529-534 A.D. The work was pre-eminently of great importance, in as much as the rules and principles of law were than reduced to the form of a system, condensed, digested and complete, in which they were best fitted to influence the mind and mould the institutions of modern Europe. The Romans had attained by this time to the idea of science of these legal principles Copy Right © Shaukat Hayat 2018

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which exist independently of the institutions of any particular country. Even, the word jurisprudence is a Latin derivation of the words juris and prudential, the former meaning law and the later knowledge i.e. knowledge of law or skill in the law. Contents of Jurisprudence: There are divergent views regarding the exact contents of jurisprudence. But it has been generally accepted that sources, legal concepts and legal theory constitute the main premises of the study of jurisprudence. 1 Sources: It is well known that the basic feature of a legal system is mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. Therefore, they obviously form the content of jurisprudence. 2 Legal Concepts: Another area which concern jurisprudence is the analysis of legal concepts such as rights, property, ownership etc and the related uses. The study of these abstract legal concepts furnishes a background for better understanding of law in its various forms. 3 Legal Theory: Legal theory is concerned with law as it exists and functions in the society and manner in which law is created and enforced as also the influence of social opinion and law on each other. Thus, legal theory seeks to correlate law with other disciplines such as religion, philosophy, ethics, politics etc. and pursue its study in wider sociolegal perspective. Schools of Jurisprudence: There are many schools of jurisprudence which concentrate on the nature and function of law. For our practical purpose we shall confine ourselves to the treatment

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of the most important schools. Hence, in this material the following schools shall be discussed briefly. 1 Natural Law School: The oldest school of jurisprudence, it upholds that beyond, and superior to the law made by man are certain higher principles, the principles of natural law. These principles are immutable and eternal. With regard to the highest matter man-made law should be in accord with the principles of natural law. And to the extent that man-made law conflicts with natural law, it lacks validity: it is not a valid, binding law at all. 2 Legal Positivism: Legal Positivism also called Analytical School of jurisprudence, it holds that there is no higher law than that created by governments, legitimate or self-imposing, and that such law must be obeyed, even if it appears unjust or otherwise at odds with the “natural” law. Unlike the natural law theory, this one treats law and other values, such as, morality and religion separately. 3 Historical School: This school of jurisprudence views law as an evolutionary process and concentrates on the origin and history of the legal system. The law of a nation, like its language, originates in the popular spirit, the common conviction of right, and has already attained a fixed character, peculiar to that people, before the earliest time to which authentic history extends. In this prehistoric period the laws, language, manners and political constitution of a people are inseparably united and they are the particular faculties and tendencies of an individual people bound together by their kindred consciousness of inward necessity. 4 Sociological School: Unlike the Historical School that conceives a nation’s law as tied to the primitive consciousness of its people, sociological conception of law locate the law in the presentday institutions of its society. The proponents of Copy Right © Shaukat Hayat 2018

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sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control. The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behaviour, organization, environment, skills, and powers involved in the maintenance of a particular society. They are also concerned with the practical improvement of the legal system and feel that this can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences 5 Legal Realism: Legal Realism conceives law as judge made and by doing so it puts the court at the center. It contends that positive law cannot be applied in the abstract; rather, judges should take into account the specific circumstances of each case, as well as economic and sociological realities. In other words, the law should not be static, it must adapt to various social and economic realities. This theory emphasizes the role of the judge that is it emphasizes that law is made not found, and considers judges as the true law makers. Significance of Studying Jurisprudence: At the practical level, reading and participating in jurisprudential discussions develops the ability to analyze and to think critically and creatively about the law. Such skills are always useful in legal practice, particularly when facing novel questions within the law or when trying to formulate and advocate novel approaches to legal problems. So even those who need a “bottom line” justification for whatever they do should be able to find reason to read legal theory. At a professional level, jurisprudence is the way lawyers and judges reflect on what they do and what their role is within society. This truth is reflected by the way jurisprudence is taught as part of a universit education in Copy Right © Shaukat Hayat 2018

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the law, where law is considered not merely as a trade to be learned (like carpentry or fixing automobiles) but as an intellectual pursuit. For those who believe that only the reflective life is worth living, and who also spend most of their waking hours working within (or around) the legal system, there are strong reasons to want to think deeply about the nature and function of law, the legal system, and the legal profession. Finally, for some, jurisprudence is interesting and enjoyable on its own, whatever its other uses and benefits. There will always be some for whom learning is interesting and valuable in itself, even if it does not lead to greater wealth, greater self-awareness, or greater social progress.

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Lesson-2

Definition and Nature of Law Introduction: Law governs human behaviour by rules. It forbids certain ways of behaving, for instance stealing, killing or exceeding speed limits and prescribes others. The law does not stop at setting up rules. It also secures compliance with them by threatening persons who disregard a rule with some disadvantage, like being imprisoned or having to pay money. This consequence is called a sanction. The task of the state is to put the sanction into effect, for instance to send the offender behind the bars or to impose fine on him. We say: the sanction is enforced by the state. The term, “Law” has no universally agreed definition different jurist have defined it differently in accordance of their theory about law. Definition of Law by Austin: John Austin, the exponent of the Analytical School of Law, defines the law as: “A rule laid down for the guidance of an intelligent being by an intelligent being having power over him.” He has also defines the term law as: “A body of rules fixed and enforced by a sovereign political authority.” The viewpoint of Austin is based on the following two principles: a) Law is the command of the sovereign enforced upon the subjects of the state i.e. law is made only by the sovereign authority of the stale. The law made by any other source is not law. b Physical force of the state behind the law is the essence of law i.e. therefore, what cannot be enforced by the Copy Right © Shaukat Hayat 2018

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physical force of the state cannot be called law in the true sense of the term. Definition of Law by Salmond: Salmond has defined the term, “law” in the following words: “Law is the body of principles recognized and applied by the State in the administration of Justice. Definition of Law by Gray: The law of the state or any organized body of men is composed of the rules which the courts, that is, the judicial organs of that body, lay down for the determination of legal rights and duties. Classification of Law: 1 International Law and Municipal Law: International Law: Professor Oppenheim has defined international law in the following words, “Law of Nations or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other.” Municipal Law: The term, “Municipal Law” in the context of International Law means, “The national law of a state”. In the context of the national law of a state the terms refer to the law which govern the municipal bodies in the country.

2 Public International Law and Private International Law: Public International Law:

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Public International Law is the name for the body of customary law and conventional rules which are considered binding by civilized states in their intercourse with each other. Private International Law: Public International Law is that branch of International Law which determines that which law is to be applied to a specific case containing a foreign element is called Private International law. 3 Substantive Law and Procedural Law: Substantive Law: Substantive law is that branch of law which deals with the legal relationship between people or the people and the state. Therefore, substantive law defines the rights and duties of the people. It includes penal law, partnership law, contract law etc. Procedural Law: Procedural law is comprised of that set of rules which governs the proceedings of the court in criminal as well as civil and administrative proceedings. Procedural law lays down the rules with the help of which they are enforced. Such as the Code of Civil Procedure and the Code of Criminal Procedure. 4 Private Law and Public Law: Private Law: Private law concerns the smooth running of a society and covers areas in everyday life such as work, business dealings, employment, and education. Such as the Law of Tort, Contract Law, Law of Succession, Employment Law, Property Law, Family Law, Labour Law, Commercial Law, etc. Public Law: Public law involves the State or government and it govern the relations of individuals as well, such as

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Constitutional Law, Administrative Law and Criminal Law etc. 5 Constitutional Law and Administrative Law: Constitutional Law: Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary. Such as the Constitution of the Islamic Republic of Pakistan 1973. Administrative Law: Administrative law is the body of law that governs the activities of administrative agencies of the government. Such as “Esta Code” that regulates the matters concerning government servants. 6 Criminal Law and Civil Law: Criminal Law: A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare. This branch of law establishes punishment to be imposed for the commission of acts considered by the penal law as offences. Civil Law: The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. The remedies in civil cases is compensation, injunction and restitution.

7 Common Law and Civil Law: Most nations today follow one of two major legal systems, i.e. the Common Law System or the Civil Law System: Common Law System: Copy Right © Shaukat Hayat 2018

Lecture Notes on Jurisprudence