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CHAPTER 1 JURISPRUDENCE :
MEANING & VALUE
Ch. 1.1 Jurisprudence: Meaning & Value
Jurisprudence is derived from the Latin terms ‘Juris’ meaning legal and prudentia meaning “knowledge”. It is that science which deals with the “Knowledge of law“. It is defined as a study of the fundamental legal principles including their philosophical, historical and sociological bases, and, an analysis of legal concepts.
It is a type of investigation into the essential principles of law and the legal systems (Salmond). It is the science of the first principles of civil law. The legal concepts like contracts, torts or criminal law consist of a set of rules. It has no such legal authority and further it has no practical application. The jurists have a free approach in their investigations. Further, the method of enquiry in jurisprudence is different from other legal subjects.
The questions answered are: What is law ?
What it is ,for a rule , to be legal rule ? What distinguishes law from morality, etiquette etc.,
The main fields of investigation are the following:
- The nature of law, its sources: Administrative of Justice, statutory interpretation ,
- An analysis of:
- The legal concepts of right and of its kinds and
- Concepts like “intention”, “negligence” “ownership” “possession” “persons” “liability”, “obligations”, Substantive and procedural laws”
Ch. 1-2 Value of Jurisprudence:
Jurisprudence does not contain a sets of rules as in contracts or torts and also has no practical application. However, it has its own values, unique and distinctive.
- The subject has its own intrinsic
- Its researches have influenced other subjects in the field of political, medical, and social.
- It is educative, as it sharpens the lawyers own.
- Its method and explanations help resolve the complexities of Thus, theory helps law to solve problems and,
- Professional lawyers may get a glean into the sociology of law e., the realities of time, and, make them look-forward with a orientation.
Ch. 1-3 Schools:
There are three main schools of jurisprudence: They are 1. Analytical
- Historical 3. Ethical Schools.
- Analytical School:
Also called English School. It aims at a systematic legal exposition of the various principles. The approach, is dogmatic. The founder of this school is Austin. The school aims at analyzing the contents of the various legal notions past or present.
Main topics dealt with are:
- Analysis of the concept of civil
- Analysis of the relationship between systems of law.
- Analysis of sovereignty, administration of justice, theory of legislation, precedents, customs.
- An analysis of the concepts -of property, possession, ownership, contracts, trusts, obligations,
- Historical School:
The founder of this school is Savigny. It is also called continental school. It aims at examining the general or philosophical part of the legal theory. The approach is historical.
The purpose is to examine the historical evolution or the processes which ultimately lead to legal system. In other words, it examines ‘what it is, from what is was’. It deals with the origin and development of those fundamental principles and conceptions so essential in the philosophy of law. These are the same as those dealt with in the analytical school, but the approach is Historical.
The influence of social conditions on legal conceptions is emphsised. It examines now these concepts evolved through generations.
3. Ethical School:
It deals with the general or philosophical part of the science of legislation.
The purpose is to set forth the law, not as it is or has been, but as it ought to be. It does not deal with the present but deals with the ideals for the future.
The theory of Justice in relation to law is the concept of this ethical school. Emphasising the ethical or moral significance of various topics is its main concern.
Grotius is called the father of this school. Kant and Hegel followed him, and developed further the ethical concepts.
In order to understand jurisprudence, as Salmond says, “A study of all the schools is essential because the three schools are closely related and interwoven.”