Jurisprudence Lecture 2

Mohammad Ata-ur Rahman

Natural Law
Natural law = Divine / Moral law

Limits set by God or Reason to misuse of Law by Rulers

Rational Objective limits to Repression

Rational = Reasonable

In Natural Order

Kill all Hindus/ Muslims

3 Primary Schools
Natural Law

Legal Positivism

Legal Realism
Introduction to Legal Theory
History and the Unity of Legal Things

Definitions of Jurisprudence by

Bentham

Austin

Holland

Salmond
Bentham’s Utilitarianism
Began in 18th century with Jeremy Bentham

Jeremy Bentham: 15 February 1748 to 6 June 1832

Utilitarianism is an ethical theory that states that the best
action is the one that maximizes utility.

Bentham saw Man as pleasure-seeker

Influenced the American Revolution in 1776 & French
Revolution in 1789
Utilitarianism
If Law has no use/ pleasure then it is not
needed
If law is only causing pain then repeal the law
Laissez Faire: Minimum Interference,
Small Government,
No Regulation
Legal Positivism
John Austin 1790 to 1859, student of Jeremy Bentham

Law is social construct

In society where Might is Right,
Sovereign must be obeyed
What is rather than what ought to be

No necessary connection between law & morality

Instead social domination / heirarchy is important
Force of Law comes from Command of Sovereign
Austin's Positivism School
Separation of Moral rules from Positive law
Sovereign can enact any law he /she wants
Law is Command Issued by Sovereign
Commands are backed by threat of Sanctions
Or People will not obey the Law
Sovereign is habitually obeyed
Criticism of Austin

But
a. State machinery can use force without law

Arbitrary use of force by state does not make it law

e.g. abuse by police, agencies etc

b. Law/ Customs in primitive societies without clear

sovereign
Holland

Sir Thomas Erskine Holland

17 July 1835 – 24 May 1926
Fellow of All Souls College (Oxford)
Fellow of the British Academy
(Elements of Jurisprudence, 1880)
Holland's Analytic Positivism
Analyzed Positive Theory: Analytic Positivist
General Rules Enforced by State
Study the form of Law but not implementation. What law
intends to achieve is law
How positive law is applied is not concern of jurists
Law is Product of Intellectual Inquiry
Holland’s work
Admiralty Manual of Naval Prize Law (1888)
and the Prize Courts Act (1894).
Holland's Jurisprudence (2)

Deals with the analysis of basic principles of

law. It is not concerned with the past stages
of its evolution.
Implementation of law was not Holland's
problem.
He was only interested in the form of law
Criticism of Holland

Holland focused on the form instead of substance.

But practice is affected by:

Actual conditions
Social life &
Human Relations
Salmond

Sir John William Salmond

3 December 1862 – 19 September 1924
New Zealand
Jurisprudence or the Theory of the Law (1902)
The Law of Torts (1907)
Principles of the Law of Contracts (1927) with P.
H. Winfield
Salmond on Jurisprudence

Systematic jurisprudence. Existing actual legal

system in past or in present.

Legal History. Process of, historical

development.

Legislation. To set forth law, as it ought to be.

Salmond's study of Jurisprudence

(i) Analysis of the concept of law.

(ii) An examination of the relation between civil
law and other forms of law.
(iii) An analysis of the ideas of state,
sovereignty and administration of justice.
(iv) Study of sources of law.
(v) Investigation of the theory of legislation,
judicial precedents and customary law.
Historical School
Headed By Savigny, Montesqieu, Rousseau”
(a) It deals with law as it appears in its various
form at its several stages of development.
(b) It deals with the origin and development of
those legal conceptions and principles which
are so essential in their nature as to deserve a
place in the philosophy of law.
(c) It seeks to show the conditions that gave
rise to the legal conceptions, to trace their
spread and development,
Ethical Jurisprudence

To set forth law as it ought to be:

Law should be developed for the ideal legal
system
Development of law will continue until the
ideal legal system is achieved @ absolute
standard
 School of Legal realism
Laws rely on empirical evidence & have to be
tested against observations of the world

American and Scandinavian schools

 American Realism
Law is practice of the court

They not only study the judgments gives by

the judges but the human factor in the judges
and lawyers. They study the forces which
influence judges in reaching their decision.
 Scandinavian Realism
They are not bothered about the functioning of
the Courts.
Reality can be discovered and analyzed by
investigating of the fundamental facts of the
legal system.
Law is determined by social welfare which
includes minimum requirements of material
life, security of person, property and freedom
of action.
 Socialist school of Karl Marx
Divided society into:

1. The capitalists                    
2. The Wage Labourers
3. The land owners
Law in the socialist society
Production, distribution, and exchange is
primarily owned or regulated collectively by
the community as a whole

No private property

Equal distribution of wealth

Sociological school of jurisprudence
Sociological jurisprudence a part of sociology
(the science of social order and progress)
predicts and prescribes social behaviour, led to
the distinction between a legal sociologist and
sociological jurist.
 Sociology of law
"the systematic, theoretically grounded,
empirical study of law as a set of social
practices or as an aspect or field of social
experience”
Normative Jurisprudence
Normative = Closer to Normal / objective
standard
Normative, or "Evaluative" theories of law.
What is the goal or purpose of law?
What moral or political theories provide a
foundation for the law?

What sorts of acts should be subject to

punishment, and what sorts of punishment
should be permitted?
Comparative Jurisprudence

Jurisprudence is therefore study of

fundamental legal principles
Historical ideas: Naturalism vs Positivism vs
Realism
Applied to Both Civil & Criminal law.
Modern Approaches: Analytic vs Practical vs
Ethical
Scope of Jurisprudence

Study of Laws & their Impact on Society

Can be studied in Specific or General
perspective to allow for
Development of civilized society
Society will only develop when new laws are
made
Significance & Utility of Jurisprudence

Jurisprudence contributes to
Legal (Educates lawyers)
Political (Educates politicians )&
Social (Educates businessmen, professionals
e.g. about taxes)
Schools of thought
Jurisprudence & Legal Objectives

Establishes fundamental principles of law e.g.

Freedom of Speech, Equality for All
Jurisprudence defines legal objectives
Business-friendly tax-laws?
Legal Objectives Defined

Make laws simple, strong & effective

(i.e. in Legal Realism)
Not long & un-implementable

Also allow laws to change with time

Context of Laws in Jurisprudence
a. Studies laws & Implementation in detail
E.g. Domestic violence is different from Assault
b. takes note of new technology in society
Internet & Smart-phones & smart-watches
c. Changes with changing attitudes to women,
minors, minorities etc
Changing dowry laws in India with prosperity
Jurisprudence & Legal Terminology
Clarifies ambiguity & confusion

Provides Rules of Interpretation

Role is Normative
Deals with the improvement of law in
prevailing socio-economic & political
philosophies
Assignment
Write a note on Sociological School of Roscoe
Pound

Email 381asrc@gmail.com