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JURISPRUDENCE
UNIT- 1
1. Meaning, definition, kinds and classification of Law
Meaning of law-
Law is a system of rules created and enforced through social or governmental institutions to regulate behaviour in society. It has been variously described as a science and the art of justice. State-enforced laws can be made by a group or by a single legislator, resulting in statutes; by the executive through decree and regulations; or established by judges through precedent, usually in common law jurisdictions.Austin: “Law is the command of the sovereign.” “It is the command of the superior to an inferior and force is the sanction behind Law.” Holland: “A Law is a general rule of external behaviour enforced by a sovereign political authority.” Salmond: -According to salmond “the law may be defined as the body of principles recognized and applied by the state in the administration of Justice.According to Gray, “the Law of the State or of any organized body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties. The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties
The Vedas: “Law is the king of Kings”
- Classification of law-
Law/s can be classified in two categories:
1. Functional category
2. Intellectual category
Dealing with the functional category, laws can be divided as under:
Criminal laws: designed to protect society as a whole from wrongful actions (police can take action)
1. Traffic/road laws - drink driving
- speeding
- illegal use of an aeroplane
- driving in an unregistered vehicle
- wilful damage of vehicles
- not wearing a helmet
- stopping for pedestrians
- correct indicating
2. Public order (peaceful and safe community)
- drug use
- public decency (sleeping on the streets)
- carrying of weapons in public
- dry areas
- rioting
- protest marches (staying non-violent)
- assault
- defamation (writing things about people that are not true which harm their character)
3. Property
- arson
- trespass
- larceny (theft)
- littering
- vandalism
- intentional damage
4. People
- passive smoking
- rape
- murder
- harassment
- suicide
- sexual abuse
Civil laws: help to solve problems which occur between individuals or groups (trained legal personnel and courts help solve)
1. Contract law (agreements, responsibilities)
- not allowed to break a contract - marriage
- fishing licences
- misleading advertisements
2. Employment law
- reason for firing someone
- fair duties as an employer
- equal opportunities
- not to work over 40 hours in any one week (appropriate overtime penalties)
- wrongful dismissal
- age discrimination
3. Family law
- abuse of children
- catering for kids until they are 18 years old
- domestic violence
- custody of children
- registration of birth
- maintenance issues
4. Law of Torts
- compensation (dog biting)
- accidents involving other animals
- others injuring themselves on your property
On the other hand, dealing with the intellectual category, law/s can be classified as under:
Intellectual sense of law/s, denotes uniformity and regularity of action/s. That is to say the relation derived from the nature of the things. Sir John Salmond has given an historical contribution to the classification of such laws, which are stated as under: Salmond has classified law in its widest sense in eight different kinds, which are as under:
1. Imperative Law: It is a rule, which prescribes a general course of action imposed by some authority which enforces it by superior power cither by physical force or any other form of compulsion. The chief exponent of this kind of law is Austin. According to him positive law is a command, which obliges a person or persons to a course of conduct. A sovereign individual or sovereign body of individuals sets it to a person or persons in a state of subjection to its author. Being a command it must issue from a determinate person or group of persons with the threat of displeasure, if the rule were disobeyed.
2. Physical or Scientific Law: According to Salmond physical laws or the laws of science are expressions of the uniformities of nature general principles expressing the regularity and harmony observable in the activities and operations of the universe. It governs the growth of bodies, the law of gravitation, the laws governing the planetary motion, etc.
3. Natural or Moral Law: It is that portion of morality, which supplies the more important and universal rules for governance of outward acts of the mankind. In short, the law of nature is written by the lingers of nature in the hearts of mankind. It consists of the principles of natural right or wrong or the principles of justice in its widest sense. It is also known as ‘Divine Law’ being the command of God imposed upon men, ‘Unwritten Law’ (not written on brazen tablets or on pillars), ‘Universal or Common Law’ (being of universal validity), Law of Reason (being established by that Reason which governs the world) and Eternal Law (being uncreated and immutable).
4. Conventional Law: It consists of rules or regulations of voluntary organizations, e.g., clubs, associations, etc. Such law acquires its force or validity from the agreement between the parties concerned. It may be noted here that conventional law when enforced by the State assumes the form of positive law.
5. Customary Law: It comprises the reasonable customs and usages observed as a right from immemorial antiquity by a particular family or by society as a whole. According to Salmond by customary law here we mean any rule of action, which is actually observed by men any rule, which is the expression of some actual uniformity of voluntary action.
6. Practical or Technical Law: It consists of rules for the attainment of a practical end, e.g., the laws of health, the laws of architecture, the rules for efficient conduct of any art or business, etc.
7. International Law: It is an aggregate of rules and regulations recognised and accepted by civilised Suites in their relations with each other. According to Oppenheim it is the name for the body of customary and conventional rules, which are considered legally binding by the civilised states in their intercourse with each other.
8. Civil Law: Salmond defines civil law as the “law of the State, the law of the land, the law of the lawyers and law courts”. It is the law of the realm and has variously been named as municipal law, positive law or national law. It is the law in the strictest sense of the term. It is the main orbit round which Jurisprudence, the science of law, rotates and forms its subject matter.
2. Definition, nature and scope of Jurisprudence and Legal theory
Introduction- Understanding Jurisprudence amounts to laying a strong foundation on which a towering building can stand that have the capability of withstanding the pressures of all forces working in any society. Since law is a means to do justice, studying jurisprudence contributes to a deeper understanding of law by providing the tools to engage in rational criticism of the law
Definitions of Jurisprudence-
Defining any term is just a way to outline the best possible ways to explore the meaning of term in focus. Definitions, even on a singular term, can be given by many scholars in their own varied ways, but their ultimate reflection comes to end on a common objective. Out of ocean of definitions available, some of the vital definitions to be kept in mind are outsourced as under mentioned:
Ulpian
The Roman Jurist, Ulpian, defined Jurisprudence as "The observation of things human and dive, the knowledge of just and unjust."
Salmond
Salmond defines Jurisprudence as the "Science of the first principles of civil law". In Salmond's point of view, Jurisprudence thus deals with civil law or the law of the state. This kind of law consists of rules applied by courts in the administration 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 (ultra-mundane sanctions)
- Moralist Laws - Man-made 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 a variety of sanctions ranging from fines to capital punishments.
According to Salmond, Jurisprudence is the science of first principles of jurist law or in Salmond's words civil law.
Austin
Austin defines Jurisprudence as the "Philosophy of Positive Law". 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 theory of things, man and divine, while Jurisprudence only deals with man-made law.
Holland
Holland defines Jurisprudence as "The Formal Science of Positive Law". He says "Jurisprudence deals with the human relations which are governed by rules of law rather than with the material rules themselves." Formal science differs from material science in the way that formal science deals with fundamental principles underlying and not concrete details. Thus, the selective definitions of the term Jurisprudence.
Nature of Jurisprudence
Jurisprudence is the study and theory of law and it plays a critical role in shaping our understanding of the legal system. This field provides insights into the fundamental principles and concepts of law, including the meaning of rights, duties, possessions, property and remedies. By examining these concepts, jurisprudence helps us to better understand the role and function of law in society.
One of the key aspects of jurisprudence is its focus on the sources of law. This field provides insights into the various sources of law, including statutory law, common law and constitutional law. Through the study of jurisprudence, scholars and practitioners seek to develop a deeper understanding of how these sources of law interact with each other and how they influence the development of legal systems over time.
Another important aspect of jurisprudence is its role in clarifying the concept of law itself. While the law is often thought of as a set of rules and regulations, jurisprudence helps us to understand that law is a complex and multifaceted concept that cannot be reduced to a simple definition. Instead, the law is a dynamic and evolving concept that is shaped by a range of social, cultural and political factors.
It is important to note that jurisprudence is not a substantive or procedural law. Rather, it is an uncodified law that provides a framework for understanding the legal system as a whole. Jurisprudence serves as the “eye of law,” providing insights into how the law operates and how it can be used to achieve justice and fairness in society.
While some scholars view jurisprudence as a science, others view it as a social science. Scholars of the historical school of jurisprudence, for example, view jurisprudence as a social science that is shaped by historical, cultural and political factors. Regardless of how one views jurisprudence, however, it is clear that this field plays a critical role in shaping our understanding of the legal system and in guiding the development of legal theory and practice over time.
Scope of JurisprudenceJurisprudence is a field of study that encompasses a wide range of topics and disciplines. It explores the relationship between law, culture and society and it seeks to understand the fundamental principles and concepts that underpin the legal system. One of the key aspects of jurisprudence is its focus on legal logic, which involves the study of legal frameworks, bodies of law and the reasoning behind legal decisions.
However, the scope of jurisprudence goes beyond just the study of legal logic. It also encompasses other fields, such as psychology, politics, economics, sociology and ethics. This is because the law is not created in a vacuum, but rather is shaped by the social, cultural and political context in which it operates. Therefore, jurisprudence seeks to understand how these various fields intersect with the law and how they influence the development and application of legal principles.
The study of jurisprudence is also important for understanding the nature of law itself. It explores questions such as the origin of law, the need for law and the utility of law and seeks to develop a deeper understanding of how the law operates in practice. This includes studying various legal systems and traditions and how they have evolved over time.
Justice P.B. Mukherjee noted that jurisprudence is both an intellectual and idealistic abstraction, as well as a study of human behaviour in society. It encompasses political, social, economic and cultural ideas and covers the study of individuals in relation to the state and society.
Overall, the scope of jurisprudence is vast and wide-ranging and includes a variety of disciplines and topics. It is an essential field of study for understanding the legal system and the role of law in society and it continues to play a critical role in shaping legal theory and practice today.
Difference Between Jurisprudence and Legal Theory
Jurisprudence and legal theory are two related but distinct fields of study. Jurisprudence is a broader field that encompasses the study of the nature of law and its principles, while legal theory is a subset of jurisprudence that specifically examines the philosophical content of the law.
As Fitzgerald has pointed out, jurisprudence covers a wider field of study compared to legal theory. It involves an investigation of abstract, general and theoretical aspects of the law. In contrast, legal theory seeks to clarify the most fundamental legal concepts and answer the question, “what is law?”.
Legal theory is just one aspect of jurisprudence, which is concerned with the evaluative and philosophical study of law in terms of its ends, values and goods. It is focused on living law, which is based on social forces and felt needs and it rejects purely technical, analytical or conceptual perceptions of the law.
In summary, jurisprudence is a broader field that encompasses legal theory as well as other aspects of the study of law. Legal theory, on the other hand, is a subset of jurisprudence that specifically focuses on the philosophical content of the law.
Conclusion
Jurisprudence plays a crucial role in the development of legal systems and societies, as it provides a theoretical framework for understanding the law and its underlying principles. Through jurisprudence, we gain knowledge about the basic principles of law and the sources from which they are derived. It helps us to understand the legal systems of different countries and the cultural, social and economic factors that shape them.
Furthermore, jurisprudence is not just a theoretical abstraction; it has practical implications as well. It provides guidance to lawyers, judges and policymakers in making legal decisions that are just and equitable. Therefore, the study of jurisprudence is essential for anyone who wishes to understand the law and its role in society.Overall, jurisprudence is a fascinating and multifaceted field of study that holds much importance in the vast field of law. It is a subject that requires deep critical thinking and analytical skills, as well as a broad understanding of the social, political and economic contexts in which the law operates.
3. Relationship between law and morals. Introduction- The world around us is a smorgasbord of different beliefs, values, rules, and norms, all of which lay down how one should behave in society. It is imperative to create distinctions between all of these to avoid confusion and ambiguity. Two such conflicts which are often talked about together are law and morality. Laws are formal rules that govern how we behave as members of a society that specify what we must do and what we must not do. These are implemented by the state and judiciary to create a basic and enforceable standard of behaviour for the welfare of society. Morality on the other hand refers to an informal framework of values, principles, beliefs, customs, and ways of living. Morals are not legally enforceable but there is societal pressure to abide by the same.
Relationship between law and morality-Law and Morality are two systems that govern the way humans behave. Law is a body of rules and regulations that all people are mandatorily obligated to adhere to. Morals, on the other hand, refer to general principles or standards of behavior that define human conduct within society but are not compulsory to be followed. The relationship between law and morality is a complicated one and has evolved over the years. Initially, the two were considered equivalent but with time and progressiveness, it is highlighted that the two are different concepts, but with certain inter-dependency between them.Morality as the basis of lawThroughout history, no clear distinction has been made between law and morality. By virtue of a lack of distinction, all laws found their origin from what was considered morally correct by the people in a society. Eventually, the state picked up what was morally correct and gave it the form of laws or rules and regulations. Therefore, the law finds its origin and is based on the values that float amongst the people, creating a similarity between the two concepts, i.e. law and morality. For example, it is morally wrong to kill someone or to rape someone. This value has taken the form of a law. Morality may with time have been distinguished with laws, but it remains an integral part of legal development. Law essentially involves certain basic principles such as the principle of fairness and equality, and these principles are derived from ethics and morals.
Morality test of law
The entire purpose of the existence of laws is to ensure justice in society and do what is best for the welfare of all the people. Since the principle of justice is well under the ambit of morality, many jurists are of the opinion that there must not be any contradiction between law and morality. Any law which does not abide by moral standards should be removed and whether a law is right or wrong can be evaluated based on whether it is in consonance with moral values. Morality as ends of lawAs stated before, the end goal of enacting laws is to maintain a society that is based on principles of justice, fairness, and equality. The entire purpose of having certain moral standards is also to maintain some sort of order in the society which would lead to fewer conflicts. This shows that more or less, the purpose of both these phenomena is the same. It is believed by jurists that if the law is to stay involved in the lives of people, then it cannot ignore morals. If there is a law that is against moral standards, people may be hesitant to obey it which will create further conflicts within the society. Difference between law and morality Law and morality may be interdependent to an extent and have certain similarities such as the same goals, but there are certain factors based on which the two concepts can be differentiated:
1. Law is derived from an external source which means that it is obtained through rules and regulations. Morality emerges from internal sources, i.e. it comes from the individual mind of a person.
2. Law treats all people in the same manner and doesn’t change from person to person but morality is a subjective concept.
3. Morality has influenced the creation of laws but morality existed in society since even before legal implications were discussed.
4. Disobedience of the law leads to punishment but there are no repercussions of doing anything morally wrong.
5. Laws lay down mandatory behaviour that is expected out of the people who are governed under the said law. However, morality does not lay down strict guidelines of how one should behave but is a more personal concept.
Hart-Fuller debate on law and morality The Hart-Fuller debate is one of the most interesting exchanges of ideas and opinions between Lon Fuller and H. L. A Hart on the intriguing interdependency between law and morality. This was published in the Harvard Law Review in 1958 and essentially highlighted the difference in opinions in the positivist and natural law philosophy. To understand the points put forth by both these ideologists, it is important to analyze their beliefs and the reasoning behind them separately.
H. L. A Hart
Hart is a positivist and is thereby of the opinion that while there may be a close relationship between law and morality, the two are most definitely not interdependent. That being said, Hart does believe that law has been heavily influenced by the morals that prevail within the society. According to him, a clear distinction needs to be made between what law should be and what it ought to be. This is where Hart brought in the problem of penumbra which refers to determining meaning where the law is ambiguous. Fuller in opposition to this stated that in situations where the law is uncertain, the judges make decisions based on morality, basically from what ought to be. To this Hart responded by saying that determining what ought to be must be understood from a legal sense, and not from a moral one. Essentially, interpretation of the law cannot come from outside of the legal world. The law has primary rules and secondary rules. Primary rules impose certain regulations on the citizens and secondary rules provide power to the state to make and implement these rules. This means that the law doesn’t have to align with moral standards. Despite making a clear demarcation between law and morality, he also believes that the two are bound to intersect at some point.
Dudley and Stephen case
One of the most famous cases that deals with the age-old debate between law and morality are R v Dudley and Stephens (1884). Whether cannibalism, which was considered a highly immoral act could be committed when there is a question of necessity and helplessness was discussed in the case. The facts of the case involved four men who were stranded in a boat, in the middle of the sea, far away from land. The men had no way of contacting any person and were stuck in the boat without any food and water. After torturing themselves for seven days without food and water, the captain of the ship, Thomas Dudley, found an immoral solution. He suggested that one of the four men would have to make a sacrifice so that the other three could survive by eating his flesh. Edward Stephens agreed while Ned Brooks refused to go ahead with this plan, and Richard Parker, the cabin boy was not consulted. Eventually, the boy was killed by Dudley and Stephen following which the three men fed on the boy’s flesh. When the men were rescued, the two men were tried for committing the grave offence of murder. While prima facie it appeared that a crime was committed, the case discussed whether, at that moment, the man being morally right for saving his own life could be excused from the shackles of law. However, a clear distinction was made between law and morality and it was observed that personal inconvenience or an attempt to save your life by killing another cannot be used as a justification.
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