File Name: definition nature and scope of jurisprudence .zip
Origin of Writ In common law, Writ is a formal written order issued by a body with administrati The supreme court, and High courts have power to issue writs in the nature of habeas corpus , quo
- Nature And Schools Of Jurisprudence An Overview
- Meaning Nature And Scope Of Jurisprudence
- What is Law?
The history of the concept of the law reveals that jurisprudence had its evolutionary beginning from the classical Greek period to 21st-century modern jurisprudence with numerous changes in its nature in various stages of its evolution. Jurisprudence is a concept to bring theory and life into focus.
Nature And Schools Of Jurisprudence An Overview
Thus, jurisprudence signifies knowledge of law and its application. In this sense it covers the whole body of legal principles in the world. Jurisprudence, in its limited sense, means elucidation of the general principles upon which actual rules of law are based. Thus, for example, there are various branches of law prevalent in a modern State such as contract, torts, crime, property, trusts, companies, labour relations, insolvency etc.
In yet another sense, jurisprudence maybe regarded as the philosophy of law dealing with the nature and function of law. This approach to jurisprudence is receiving primacy in modern times keeping in view the rapid social changes taking place all around the world in recent years. The thrust being on inter-relationship between law and justice. The practice of Dharma enabled citizens to inculcate a sense of discipline in conducting themselves in the society.
This eventually brought about peace and prosperity 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. Democracy pre- supposes government of the people, by the people and for the people, and, therefore citizens are expected to be self-restrained and self-disciplined. Thus, in this sense jurisprudence deals with the principles underlying the rules which applied in deciding the legal controversies judicially.
In other words, the law of the jurist deals with man and seeks to regulate external human conduct in the society. The civil law consists of rules applied by courts in the adminsitration of justice. The juristic laws regulate external human conduct only and not the inner beliefs of man. They are enforced by courts of judicial tribunals and carry with them sanctions ranging from capital punishment to a fine or even, a mere admonition.
There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject. When an author talks about political conditions of his society, it reflects that condition of law prevailing at that time in that particular society. It is believed that Romans were the first who started to study what is law.
However, Austin stuck to the idea that law is command of sovereign. The structure of English Legal System remained with the formal analysis of law Expository and never became what it ought to be Censorial. Stone also tried to define Jurisprudence. Thus, we see that there can be no goodness or badness in law. Law is made by the State so there could be nothing good or bad about it. Jurisprudence is nothing but the science of law. It has nothing to do with the goodness or badness of law.
General Jurisprudence— It includes such subjects or ends of law as are common to all system. Particular Jurisprudence— It is the science of any actual system of law or any portion of it. Basically, in essence they are same but in scope they are different. This is not always true as there could be concepts that fall in neither of the two categories.
It is an analytical science rather than a material science. He defined the term positive law. He said that Positive Law means the general rule of external human action enforced by a sovereign political authority.
Formal here means that we study only the form and not the essence. We study only the external features and do not go into the intricacies of the subject. According to him, how positive law is applied and how it is particular is not the concern of Jurisprudence. According to Holland, Jurisprudence is not concerned with the actual material contents of law but only with its fundamental conceptions.
Therefore, Jurisprudence is a Formal Science. This definition has been criticized by Gray and Dr. According to them, Jurisprudence is a formal science because it is concerned with the form, conditions, social life, human relations that have grown up in the society and to which society attaches legal significance.
Holland said that Jurisprudence is a science because it is a systematized and properly co-ordinate knowledge of the subject of intellectual enquiry. The term positive law confines the enquiry to these social relations which are regulated by the rules imposed by the States and enforced by the Courts of law. Therefore, it is a formal science of positive law. Formal as a prefix indicates that the science deals only with the purposes, methods and ideas on the basis of the legal system as distinct from material science which deals only with the concrete details of law.
This definition has been criticized on the ground that this definition is concerned only with the form and not the intricacies. Salmond— He said that Jurisprudence is Science of Law. By law he meant law of the land or civil law. He divided Jurisprudence into two parts:. Generic— This includes the entire body of legal doctrines. Specific— This deals with the particular department or any portion of the doctrines. Analytical, Expository or Systematic— It deals with the contents of an actual legal system existing at any time, past or the present.
Historical— It is concerned with the legal history and its development 3. Ethical— According to him, the purpose of any legislation is to set forth laws as it ought to be. Criticism of Salmond— Critics say that it is not an accurate definition. Salmond only gave the structure and failed to provide any clarity of thought. Keeton— He considered Jurisprudence as the study and systematic arrangement of the general principles of law.
According to him, Jurisprudence deals with the distinction between Public and Private Laws and considers the contents of principle departments of law. Dias and Hughes— They believed Jurisprudence as any thought or writing about law rather than a technical exposition of a branch of law itself. After reading all the above mentioned definitions, we would find that Austin was the only one who tried to limit the scope of jurisprudence.
He tried to segregate morals and theology from the study of jurisprudence. However, the study of jurisprudence cannot be circumscribed because it includes all human conduct in the State and the Society.
Approaches to the study of Jurisprudence- There are two ways. Empirical— Facts to Generalization. A Priori— Start with Generalization in light of which the facts are examined. This subject has its own intrinsic interest and value because this is a subject of serious scholarship and research; researchers in Jurisprudence contribute to the development of society by having repercussions in the whole legal, political and social school of thoughts. One of the tasks of this subject is to construct and elucidate concepts serving to render the complexities of law more manageable and more rational.
It is the belief of this subject that the theory can help to improve practice. Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts and it sharpens the logical techniques of the lawyer. The study of jurisprudence helps to put law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past.
Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and fundamental principles of law. Therefore, by understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual rule of law.
It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some logical training is necessary for a lawyer which he can find from the study of Jurisprudence. It trains the critical faculties of the mind of the students so that they can dictate fallacies and use accurate legal terminology and expression. It helps a lawyer in his practical work.
A lawyer always has to tackle new problems every day. This he can handle through his knowledge of Jurisprudence which trains his mind to find alternative legal channels of thought. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should not be confined to the study of positive laws but also must include normative study i.
Sociology and Jurisprudence— There is a branch called as Sociological Jurisprudence. This branch is based on social theories. It is essentially concerned with the influence of law on the society at large particularly when we talk about social welfare.
The study of sociology has helped Jurisprudence in its approach. Behind all legal aspects, there is always something social. However, Sociology of Law is different from Sociological Jurisprudence. Jurisprudence and Psychology— No human science can be described properly without a thorough knowledge of Human Mind.
Hence, Psychology has a close connection with Jurisprudence. Relationship of Psychology and Law is established in the branch of Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving questions such as motive behind a crime, criminal personality, reasons for crime etc.
Jurisprudence and Ethics— Ethics has been defined as the science of Human Conduct. It strives for ideal Human Behavior. This is how Ethics and Jurisprudence are interconnected: a.
Ethics is concerned with good human conduct in the light of public opinion. Jurisprudence is related with Positive Morality in so far as law is the instrument to assert positive ethics.
Jurisprudence believes that Legislations must be based on ethical principles. It is not to be divorced from Human principles.
Meaning Nature And Scope Of Jurisprudence
Thus, jurisprudence signifies knowledge of law and its application. In this sense it covers the whole body of legal principles in the world. Jurisprudence, in its limited sense, means elucidation of the general principles upon which actual rules of law are based. Thus, for example, there are various branches of law prevalent in a modern State such as contract, torts, crime, property, trusts, companies, labour relations, insolvency etc. In yet another sense, jurisprudence maybe regarded as the philosophy of law dealing with the nature and function of law. This approach to jurisprudence is receiving primacy in modern times keeping in view the rapid social changes taking place all around the world in recent years. The thrust being on inter-relationship between law and justice.
Thus, jurisprudence signifies knowledge of law and its application. In this sense it covers the whole body of legal principles in the world. Jurisprudence, in its limited sense, means elucidation of the general principles upon which actual rules of law are based. Thus, for example, there are various branches of law prevalent in a modern State such as contract, torts, crime, property, trusts, companies, labour relations, insolvency etc. In yet another sense, jurisprudence maybe regarded as the philosophy of law dealing with the nature and function of law.
What is Law?
Thus the term jurisprudence signifies knowledge of law and its application. Jurisprudence means the interpretation of the general principles based on which actual rules of law are recognised. Jurisprudence is concerned with the rules of external conduct which people are forced to obey.