Modern jurisprudence began in the technetium and was focused on the first principles of the law of nature, civil law, and the law of nations. General Jurisprudence can be broken into categories both by the types of questions scholars seek to address and by the theories of jurisprudence or schools of thought regarding how those question are best to be answered. Jurisprudence and Law In English jurisprudence we are concerned rather to reflect on the nature Of lee system, on the underlying meaning of legal concepts and on the essential feat urges of legal system. We need English jurisprudence to analysis the basic concept o law.
Jurisprudence is a certain type of investigation into law, an investigation o f an abstract, general and theoretical nature which seeks to lay bare the essential. HTML principles of law and legal systems. It is a subject which differs in kind from tot ere subjects on the legal syllabus. Jurisprudence, by contrast, does not constitute a set of rules, is not derived from authority and is without practical application.
In jurisprudence we are not concerned to derive rules from authority and apply them to problems, we are concerned rather to reflect on the nature of legal r ales, on the underlying meaning of legal concepts and on the essential features of gal. Thus, where as in law we look for the rule relevant to the given situations, in jurisprudence we ask what it is for a our lee to be a legal rule, and what distinguishes law from morality, etiquette. Salmon’s Definition of Jurisprudence Salmons defines jurisprudence as “The science of law” or “Civil law”.
According to Salmons it is systematic study of civilization. In this definition Salmons says that law is a science and it concern with right and duties belonging to citizen. Salmons uses the term jurisprudence in two senses. Generic Jurisprudent once includes the entire body of legal doctrines. Specific jurisprudence deals with a particular department Of legal doctrines. In this sense, it is also defined as ‘The Science of the first principles of the civil law”.
To discuss law in easier terms it is very necessary to study the ideas f different legal scholars of different time and to understand the different schools from which these scholars belong. The scholars having same kind of ideology regarding the concept of awe, its Origin, its Scope and each and every single aspect of Law. There are various schools of law. The Positive school or Imperative school or Analytical school of Law, led by John A Austin views “law as the command of the sovereign who is a determinate human superior noncompliance Of whose authority is visited with physical punishment”.
The Natural school of Law legal philosophers using methods of inception clarification to make normative claims about law have become known as “legal positivists. ” Legal Positivists often claim to be rigorously secular and scientific and often describe their natural law opponents as wholly religious. Before we can begin to understand the relation of legal positivism to natural law theory, we must first see the relation of “legal positivism” to simple “positivism” and “positive” law.
The Positive or Imperative or Analytical school of Law led by John Austin views law as he command of the sovereign who is a determinate human superior noncom appliance Of whose authority is visited with physical punishment. Austin ignored the concept of g mineral will and emphasizes on rule by a Monarch. Positive Law means the law laid down by political superior to regulate the conduct of those subject in his authority. The positive law is identical to civil law. However, the term Philosophy is misleading.
Philosophy is the the ROR of things, man and divine, while Jurisprudence only deals with manmade law. The Pure Science of Law school of Hans Kelsey treats law as the command not of the sovereign or superior but the command of a higher type of law. This school speaks about some legal norms to which all laws should conform. Scholars of this school tall KS about law in terms of a superior rule which have to be followed by all. The Sociological school led by Lacks, Dugout and Crabber views law from the SST endpoint of social requirements.
All laws depend on popular acceptability and are directed for social good and social solidarity. The Historical School led by Sir Henry Maine describes law as a gradual growth and reflection of the general feeling of right and wrong. It is not the command of t he sovereign but keeps pace with the historical movement. It examines the manner, circumstance, and factors responsible for the growth of law. The Functional school of Law led by Pound examines the functions of law alone g with the result of its application.
This school tries to balance the conflicting and competing social interests and examines as to what the law does and what it prevents . It can be concluded that Salmons observed, ‘Jurisprudence, in its specific sense e as the theory or philosophy of law, is divisible into three branches’. This division of the schools of Jurisprudence is based upon the fact that certain basic assume scions about law characterize the Jurists of each school and distinguish them from the SSE of other schools of juristic thought.
A comprehensive basis of classification is provided by the attitude of the jurists towards certain basic relations of law, e. Its relation to the State, its relation to the society and its relation to certain did such as justice, freedom of will or the pursuit of happiness. “The observation of things human and dive, the knowledge of just and unjust.” Salmons defines Jurisprudence as the “Science of the first principles of civil la In Salmon’s point of view, Jurisprudence thus deals with civil law or the law the state.
This kind of law consists of rules applied by courts in the administer Zion of justice. There are three kinds of laws that govern the conduct of human in a society. Theologian Laws derive their authority from a divine or superhuman source intended to regulate human conduct as well as beliefs and are enforced by spiritual rewards or penalties in the other world (ultramontane sanctions) Moralist Laws Manmade that exist in all societies, both primitive and most civilized.
There is no definite authority to enforce the laws, but the public. Jurist Laws Regulates external human conduct only and not inner beliefs. They can exist in politically organized societies, which has a Government. They are enforced by courts or judicial tribunals of the society which applies variety of sanctions ranging from fines to capital punishments. According to Salmons, Jurisprudence is the science of first principles of jurist awe or in Salmon’s words civil law.
Salmons explains that the subject of jurisprudence is the compilation of all the laws governing human society. Thus for understanding this subject one needs to know what Law actually is. For this, Salmons introduces the persona of the jurists, that is the capability of the jurists to provide the logical and rhetorical techniques for the naming of what law is and delimiting the requirements of t he administration of civil justice. So, the exercise of prudence and judgment on t he part of the jurist rather than simple compliance is mandatory requirement.
This aspect of the persona of the jurist can be understood in terms of character and ethos. Jurisprudence involves certain types of investigation into law; an investigation Of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. Salmons observed, “in jurisprudence we a not concerned to derive rules from authority and apply them to the problem, we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential feature of the legal system.
The whereas in law we look for the rule relevant to a given situation, in jurisprudence once we ask, what is it for a rule to be a legal rule, and what didst anguishes law from morality, etiquette other related phenomenon. Therefore, it can be concluded that jurisprudence comprises of philosophy of law and its object is not to discover new rules but to reflect on the rules already known. Chapter 2 Study of First Principle of Law Analysis The word “Jurisprudence” has meant many different things at different times.
Jurisprudence is not practical value, albeit of a longtime character. One of the tasks of jurisprudence is to construct and elucidate organizing concepts serve Eng to render the complexities of law more manageable and more rational, and in tee II his way theory can help to improve practice. Legal system is understandable by jurisprudence. The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, psychology, economics, anthropology and many others.
Jurisprudence is a science of law and there are different methods of approach to it. Salmons defines jurisprudence as “the science of the first principles of the civic I law ‘ Thus he points out that jurisprudence deals with a particular species of law namely, civil law or the law of the State. The civil law consists of rules applied by courts in the administration of justice. According to Salmons Jurisprudence is systematic study of the first or basic or essential of a national legal system lea ping aside the other remaining or secondary or subsidiary legal rules or doctrines.
Of course, he says it is not possible to draw any hard line or watertight distinction between the two is one of degree rather than of kind. Thus he says Jurisprudence is the study of those legal relations which do not extend beyond one legal system and on which such legal system is based.
Salmon’s definition of Jurisprudence breaks the Justinian -Holland theory by detailing I from political sovereign and correlating with courts of law and trying to make t purposive which is the Justinian Jurisprudence was relegated as Science of According to Salmons, law is the body of principles recognized and applied b state in the administration Of Justice. ‘ In other words, the law consists Of the r ole recognized and acted on by the courts of justice.
The second thing he emphases sized is that law must be recognized and applied by the state I. E. Courts in the administration of justice. Consequently, there is no objection to the definition that does not cover international law, for it is not meant to do so. He observes that he definition has the advantage of clearly separating conventions of the constitute ion which are not regarded as law, from the law of the constitution. According to Salmons, law is primarily a mean towards the attainment of justice and should, therefore be defined with reference to its ends.