Jurs
Q2. Define Jurisprudence and explain the various kinds of jurisprudence. (2003),(2002),
Introduction:
The word jurisprudence is derived form the latin word ” jurisprudential” which means knowledge of law or skill in the law. Jurisprudence is a study of the fundamental legal principles. It may described as any thought or writing about law. Jurisprudence is been classified into different branches according to their approaches.
Definition Of Jurisprudence:
According To Austin
” Jurisprudence is a philosophy of positive law
II.. According To Salmond:
” Jurisprudence is the science of civil law. By law he means the law of the land.”
III.According To Keeton:
law.”
” Jurisprudence is the study and systematic arrangement of the general principles of
Kinds Of Jurisprudence:
Salmond divides jurisprudence into three kinds:=
Analytical
Historical
Ethical
Analytical Jurisprudence:
Analytical jurisprudence deals with the analysis of basic principles of law. It is not concerned with the past stages of its evolution. It is also not concerned with its goodness or badness. The purpose is to analyse and dissect the law of the land as it exists today.
Jurists Related with Analytical School:
Jeremy bentham was the real founder of the English Analytical School. Later on Austin took over the analytical method. Other chief exponents are Sir William Markby. Amos, Holland, Salmond and prof. Hart.
Scope of Analyatical Jurisprudence:
According to salmond, scope of analytical Jurisprudence lies as follows:
Analysis of the concept of law.
An examination of the relation between civil law and other forms of law.
An analysis of the ideas of state, sovereignty and administration of justice.
Study of sources of law.
Investigation of the theory of legislation, judicial precedents and customary law.
An inquiry into the scientific arrangement of law into distinct departments along with an analysis of distinctions on which the division is based.
An analysis of the concept of legal right.
An investigation of the theory of legal liability in civil and criminal cases.
An examination of other relevant legal concepts.
Importance of Analytical Jurisprudence:
The analytical jurisprudence brought about precision in legal thinking. It provided us with clear, definite and scientific terminology. It delirberately excluded all external considerations which fall outside the scope of law.
Historical Jurisprudence:
Historical jurisprudence desls with the scientific study of evolution and development of principle of law. Historical jurisprudence is the history of the legal principles and conceptions of legal system.
Jurists related with Historical jurisprudence:
Historical school was headed by savigny, montesqieu, rousseau etc..
Scope of Historical Jurisprudence:
The scope of historical jurisprudence is as under:
It deals with law as it appears in its various form at its several stages of development.
It deals with the origin and development of those legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of law.
It seeks to show the conditions that gave rise to the legal conceptions, to trace their spread and development, and to point out those conditions and influences which modifying them in the varying course of their existence.
Importance of historical jurisprudence:
The contribution of historical school is that law cannot be understood without an appreciation of the Historical jurisprudence is a movement for fact against fancy, a call for a return form myth to reality.
Ethical jurisprudence:
Ethical jurisprudence deals with the law as it ought to be in an ideal state. It investigates the purpose of law and the measure and manner in which that purpose is fulfilled. It concerns itself with the relation of law to certain ideals which law is meant to achieve.
Jurists related with Ethical Jurisprudence:
The chief exponents of ethical jurisprudence are bentham, Hobbes Kant etc.
Scope of Ethical Jurisprudence:
According to salmond, a book of ethical jurisprudence may concern itself with all or any of the following matters:
The concept of law
The relation between law and justice
The manner in which law fulfills its purpose of maintaining justice.
The distinction between the sphere of justice as the subject-matter of law the other branches of right with which law is not concerned and which pertain to morals exclusively.
The ethical significance and validity of those legal concept and principles which are so fundamental in their nature as to be the proper subject-matter of analytical jurisprudence.
Qther Kinds Of Jurisprudence:
At present time, following are also regarded as different kinds of jurisprudence: At present time, following are also regarded as different kinds of jurisprudence:
Sociological jurisprudence
American Realism
Comparative realism
Comparative jurisprudence
Synthetic Jurisprudence
Sociological Jurisprudence:
The sociological school devotes its attention not to the ethical content and of law but to the actual circumstances which give rise to legal institutions and which condition their scope and operation.
Jurists related with sociological jurisprudence:
The chief exponents of sociological school are monstesqieu, comte, spencer , duguit etc.
Scope of sociological jurisprudence:
The scope of sociological jurisprudence lies as under:p
It was attempted to study to study law as seeking social origin of law and legal institutions.
Testing law as a given social phenomenon.
Judging law by its social utility.
American Realism:
The realist movement is a part of the sociological approach. It differs form the sociological school as it is a little concerned with the ends if law. It concentrates on a scientific observation of law in its making and working. The American realist movement is a combination of the analytical positivist and sociological approaches. The advocates of the realist movement concentrate on the decisions gives by law Courts. They not only study the judgments gives by the judges but the human factor in the judges and lawyers. They study the forces which influence judges in reaching their decision.
Scandinavian Realists:
The Scandinavian realists have played a vital but important part in the total rejection of natural law philosophy. They deny that rules of conduct can be compellingly deduced form immutable and inalienable principles of justice.
Comparative Jurisprudence:
The comparative method considers the development of two or systems of law. By comparing the notions and ideas prevailing in any one system with those in another, it discovers those rules which are common to the legal system studied.
Synthetic Jurisprudence:
Knowledge is a synthetic whole and cannot be divided into water tight compartments. The necessity for synthetic jurisprudence arises form the fact that it is necessary to determine the truth form all aspects and form different angles. According to Dr. Sethna jurisprudence is the study of fundamental legal principles including their philosophical, historical and sociological basis and an analysis of legal concept. Prof. hall, Julius stone and dennis Liyod are great advocates of synthetic jurisprudence.
5.Conclusion:
To conclude, I can say that there are many approaches of studying jurisprudence.
Jurisprudence is a part of history, economics, sociology ethics and a philosophy of life. It has been classified into different kinds by various jurists. Apart form traditional approaches the new approaches are empirical and priori. The former proceeds form facts to generalization and the letter starts with a generalization in the light of which facts are examined.