“JURISPRUDENCE law semester notes 2.pptx

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1. “JURISPRUDENCE IS THE SYSTEMATIC ARRANGEMENT OF THE GENERAL PRINCIPL OF LAW”. Dt 22.09.2020

2. The Indian jurisprudence The Indian jurisprudence owes its origin to the ancient concept of “ Dharma ” which was considered to be the best way to discipline one’s mind. The practice of Dharma enabled citizens to inculcate a sense of discipline in conducting themselves in the society. However, with the march of time and progress of Indian society, the concept of law and therefore, of jurisprudence has changed radically.

3. Ulpian Juris prudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia " Jurisprudentia est divinarum atgue humanarum rerum notitia , justi atgue injusti scientia ." Jurisprudence is the knowledge of the things divine and human; the science of the just and unjust . The divine is that which right reason commends.- K.N. Saikia J., Gurbax Singh S/O Chanda Singh vs Financial Commissioner AIR 1991 SC 435 Criticism It connotes more or less the same meaning as the term ‘Dharma’ under the Hindu jurisprudence and covers the province of religion, ethics and philosophy. Thus, this definition is too broad and has wider connotation

4. John Austin Jurisprudence Jurisprudence as the Philosophy of Positive law ‘Jus positivum ’ he means the law laid down by a political superior for controlling the conduct of those subject to his authority General and particular Jurisprudence General Jurisprudence is the science concerned with the exposition of the principles notions and distinctions which are common to the system of Law understanding by systems of law the ampler and maturer systems which by reason of their amplitude and maturity are pre-eminently pregnant with instruction Particular Jurisprudence is the science of any one of such systems of law

5. John Austin Jurisprudence General and particular Jurisprudence General Jurisprudence is the science concerned with the exposition of the principles , notions and distinctions which are common to the system of Law understanding by systems of law the ampler and maturer systems which by reason of their amplitude and maturity are pre-eminently pregnant with instruction Particular Jurisprudence is the science of any one of such systems of law

6. John Austin Jurisprudence Criticism This classification has been criticized by his critics as being unscientific and impracticable. Professor Holland  argues that it is vague to think of general jurisprudence. According to him, science is science and it cannot be classified as general or particular . Salmond  repudiated the notion of ‘General jurisprudence’ as conceived by Austin. According to him, a principle to become a topic of jurisprudence need not be, to use Austin’s words, “common to the systems of law.”

7. Salmond : Jurisprudence Defines Jurisprudence as “In the widest of its application Jurisprudence means the science of Law using the word law in that vague and general sense in which it includes all species of obligatory rules of human actions . Of jurisprudence in this sense there are as many divisions as there are kinds of law ”

8. Salmond : Jurisprudence Civil Jurisprudence – this is the science of civil law i.e., to say the law of the land. Its purpose is to give a complete and systematic account of that complex body of principles which is received and administered in the tribunals of the state International Jurisprudence…. Natural Jurisprudence…

9. Thomas Erskine Holland Thomas Erskine Holland defines jurisprudence as " The formal science of positive law ". It is a formal science of law, material manifestations of whose fundamental principles are found in various systems of actual legal rules. It is manifest that ‘formal’ is used here as the synonym of ‘essential’. jurisprudence is not a material science . follows the Austin's and Salmond’s definition but adds the term "formal" which means "that which concerns only the form and not its essence". To illustrate: there are fundamental principles in concepts relating to property, possession, contract, etc. in all the well-developed legal systems . Jurisprudence harmonizes these separate ideas under a basic concept and frames out a scheme of their purposes and evolves methods and principles for their retention without interfering in anyway with the working of specific rules in any given legal system.

10. Sir Thomas Erskine Holland Holland says that jurisprudence is only a formal science i.e , a science which describes only the form or the external side of the subject and not its internal contents . Holland mentioned one thing more which is positive law . we include both positive and negative both in positive law . POSITIVE LAW Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee . https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8274&context=penn_law_review

11. Thomas Erskine Holland CRITICISM – Prof Gray The real relation of jurisprudence to law depends not what law is treated but how law is treated . Dr.Jenks observes that jurist can only recognize a law by its forms for it is the form which causes the manifold matter of the phenomena to be perceived but having got the form as it were , on the operating table , has to dissect it and ascertain its meaning.

12. George Williams Keeton “jurisprudence is the study and systematic arrangement of the general principles of law.” The definition seeks to explain the distinction between public and private laws.

13. Roscoe Pound jurisprudence is “ the science of law “ using the term law in the juridical sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice”.  He emphasized that there is an inevitable co-relationship between jurisprudence and other social sciences.

14. Julius Stone Julius Stone , “Jurisprudence” is the lawyer’s examination of the precepts, ideas, and techniques of the law in the light derived from present knowledge in disciplines other than law. Stone   has described jurisprudence involves examination of precepts, ideals and techniques of the law by lawyers in the light of disciplines other than law.

15. sociological jurisprudence Has the following elements: a) Studying the actual/real effects of the legal institutions and doctrines; b ) Sociological studies of the preparation of legislation particularly comparative legislation; c ) Study of means of making legal rules effective ; d) Sociological legal history considering effects of legal doctrines that existed in the past; e ) Advocacy of reasonable and just solutions of legal cases (a realist approach); f ) Making effort more effective in achieving the purpose of law.