JURISPRUDENCE

LLB PROGRAMME

DR. KF MUNDIA
FACULTY OF COMMERCE, MANAGEMENT & LAW
SCHOOL OF LAW
The Nature of Jurisprudence

 Jurisprudence consists of the study of the nature of

law and related ideas;
 Itis the wisdom of law, or the understanding of the
nature and context of the legal enterprise;
 Jurisprudence is a ragbag into which all kinds of
general speculations about the law are cast (JW
Harris).
Nature of jurisprudence(cont.)

 Jurisprudence addresses questions about law;

 What is law? Where does it come from? Is law an
autonomous discipline? What is the purpose of
law? Is law a science, a humanity, or neither? (R
Posner The Problems of Jurisprudence)
 Many of the difficult problems are philosophical in
nature;
 In addition to the above questions, there are also
questions of political morality;
 Examples are: should law enforce conventional
morality? Is there a relationship between freedom
and equality?
 How should hard cases be decided? Should judges
be concerned with economic questions? What
follows from a person’s ‘having a right’ to
something? What is the justification for punishing
people?
 Should judges base their decisions only on written
rules and regulations?
 Or may judges be influenced by unwritten
principles derived from theology, moral
philosophy, and historical practice?
Origins of Jurisprudence

 The concern of legal theorists or scholars of

jurisprudence is to obtain a deeper understanding
of the nature of law, of legal reasoning, legal
systems and legal institutions.
 Modern jurisprudence began in the 18th century.
 It focused on the first principles of natural law,
civil law, and the law of the nations.
 In general, jurisprudence can be divided into
categories both by the type of question scholars
seek to answer and by the theories of
jurisprudence, or schools of thought, regarding
how those questions are best answered.
Schools of Jurisprudence

 Natural law:- is the idea that there are rational

objective limits to the power of legislative rulers.
That the foundations of law are accessible through
human reason and it is from these laws of nature
that man-made laws gain whatever force they have.
 Legal Positivism:- contrary to natural law,
positivism holds that there is no necessary
connection between law and morality and that the
force of law comes from some basic social facts
(although there is no consensus among positivists
on what those facts are).
 Legal Realism:- holds that law is not a scientific
enterprise in which deductive reasoning can be
applied to reach a determinate outcome in every
case.
 Realists believe that judges decide cases on the
basis of their political affiliation, hence law tends
to lag behind social change.
 Critical Legal Studies:- this school of thought
developed in the 1970s and it is primarily a
negative thesis that the law is largely contradictory
and can be best analyzed as an expression of policy
goals of dominant groups in society.
Natural Law Theory

 Natural law, or the law of nature (latin: lex

naturalis), asserts that there are laws that are
immanent in nature, to which man-made laws
should correspond.
 It is a system of law which is purportedly
determined by nature, and accordingly universal.
 Natural law is closely associated with morality
and, in historically influential versions, with the
intentions of God.
 Itattempts to identify a moral compass to guide the
law making power of the state and to promote “the
good”.
 Natural law is contrasted with positive law of a
given political community or society, and thus
serves as a standard by which to critique positive
law.
 In terms of natural law, the content of positive law
cannot be known without some reference to natural
law.
 Notionsof objective moral order, external to
human legal systems, underlie natural law theory;
 Naturallaw is sometimes identified with the
maxim that “an unjust law is no law at all”.
Natural Law & its Development

 The use of natural law, in its diverse incarnations,

has varied widely through history.
 There are different theories of natural law, differing
from each other with respect to the role that
morality plays in the determination of the authority
of legal norms.
 Early Greek Conceptions of Natural law
 Beforethe fifth century BC, the greeks attributed
everything to the power of fate or the gods;
 Natural things were believed to react to human
beings and thus able to intervene at will in the
affairs of mankind, either to inflict pain or to grace
with good fortune
 Thus,nature dictated events in both the physical and
human realm;
 Accordingly, what was natural was identified with
what was right and good.
 Justice simply meant apportioning to everything its
rightful lot in terms of the cosmic power;
 Thus, nature directs the essence and purpose of
everything.
 The fifth-century Greek triumphs and disasters were
instrumental in the decline of the Greek city-states.
 The decline led to a wavering of the old traditional
beliefs;
 This intellectual disillusion produced a group of
scholars known as the Sophists;
 Sophistsbrought a radical change from the animistic
thinking of divine intervention
 Itwas at this time that it became apparent that a
conflict between the law of nature and the law of
man might be possible;
 Sophists argued that there was no external standard
of justice, truth or virtue against which man-made
laws could be assessed;
 Everything was relative- “man is the measure of all
things”- Protagoras
 Law was simply and solely the creation of man;
 It is for this reason why Protagoras is often
regarded as an early forerunner of positivism;
 Younger sophists turned Protagoras’theory upside
down;
 Human laws were not only transitory, but were the
embodiment of the arbitrary powers of the rulers
 Governments make laws to serve their interests and
the justice which is said to inhere in them is simply
a mask for the rule of force;
 For
this reason, according to Thrasymachus, man-
made laws often violate those of nature and force
man to do much that is contrary to nature;
 Itfollows therefore that if personal interest is the
main reason for human laws, then personal interest
should be the only reason for obeying it.
 Antiphone, in his book On Truth, advices
obedience to human laws when witnesses are
present, otherwise, rather follow the commands of
nature, since man’s laws are artificial whereas
those of nature are inexorable and necessary.
 According to Callicles, man-made laws is the
unnatural contrivance of the “great mass of the
weak” to shield itself against those strong enough
to take what is naturally theirs”;
Two Kinds of Natural Law

The term “natural law” is ambiguous. It can refer to

a moral theory or to a type of legal theory.
In terms of the natural law moral theory, moral
propositions can be objectively true or false;
Standards of morality are derived from the nature
of the world and the nature of human beings.
 The rational nature of human beings is what defines
moral law- Aquinas;
 “therule and measure of human acts is the reason,
which is the first principle of human acts”- Aquinas;
 Since human beings are rational by nature, it is
morally appropriate that they should behave in a way
that conforms to their rational nature. Thus Aquinas
derived moral law from the nature of human beings.
 Another kind of natural law theory has to do with the
relationship of morality to law.
 In terms of natural law theory, there is no clear division
between the notion of law and the notion of morality.
 Though there are different versions of natural law, they
all subscribe to the thesis that there are at least some
laws that depend for their authority on moral standards.
 Some norms are authoritative by virtue of their
moral content, though there is no convention that
makes moral merit a criterion of legal validity.
 The idea that the concepts of law and morality
intersect is sometimes called the Overlap thesis.
 Many natural law moral theorists are also natural
law legal theorists, but these theories are logically
independent.
 One can deny the natural law theory of law but
hold a natural law theory of morality.
 John Austin, for example, denied the overlap thesis
but held something that resembles a natural law
ethical theory.