Schools of Jurisprudence and Theory of Law

Schools of jurisprudence and
theory of Law
Lecture 1
1.Meaning and concept of Jurisprudence
1.Jurisprudence in the shape and the sense in which we understand it in modern times, is essentially a
contribution of the west.
2.Every jurist has his own notion of defining and limiting the subject matter of jurisprudence and that why
giving a universal and uniform definition of Jurisprudence is difficult.
3.The growth of law under various countries is impacted considerably by their social and political consideration
wherein Law in different countries convey different meanings.
4. However scientific Inventions have brought the people of the world close to each other which helps the
universalisation of ideas and thoughts and the development of common terminology.
5.The credit of study of Jurisprudence goes back to Romans wherein Equivalent of Jurisprudence was
“Jurisprudentia” which means either “Knowledge of Law” or “skill in Law”.
a. Ulpian Defined Jurisprudence as “the Knowledge of things divine and Human, the science of the Just and
Unjust.
b.Paulus, another Roman Jurist,” The law is not to be deduced from the rule, but the rule from the Law.
6.In England it was used as something more than study of or skill of the Law.
7.The word “Jurisprudence” began to acquire a technical meaning in 19th century under the influence of Jeremy
Bentham and his disciple Austin, among the English Lawyers.
8.There is tremendous shift during the last 1st century with respect to understanding
Jurispudence which is immeasurably Broader and having more sweeping sense that existed
at the time of Austin.
9.Jurisprudence is an Experimental study of Legal ideas and Ideals and of social Philosophy
and political ideology in form and content, nature and function which makes it a living and
dynamic discipline.
10. It’s a conceptual analysis of theory of Law correlated to Socio-political goals of a society
which provide Explanation, justification and meaning to the totality of legal system.
11.Functionally speaking, it is a technique or methodology to devise, design and identify
such pressing demands or problems which requires solution with the parameters of Law
and other social norms.
12. It is a Normative Evaluation of Basic legal Values and ideals which impart validity and
recognition to a legal system thus its object is not to discover new rules but to reflect on
rules already Known.
13.It is not merely a study of abstract ideas which governed Human conduct during
different periods or a set of concentrate rules based on determinism and Induction ,it is
also a value oriented method to resolve varying social interests which call for legal
recognition and enforcement.
14.Though it does not constitute a set of rules and it also without practical application but
equally it deals with the essential principles of Law and Legal system.
15.Thus Jurisprudence can be seen as
a) A science so far as it deals with the knowledge of the Law and Legal principles.
b) As history in so far as it studies the origin of law, the history of primitive
institutions, customs ,usages etc and trace the evaluation of the Legal system of the
world.
c) As philosophy in so far as it deals with ethics and also normative sociology of
Law.
d) It can be seen as a social study and the best jurists are those who make good
laws and good laws are those which are capable of doing the greatest good to the
largest number in the society.
e)Finally we can say that it is intellectual inquiry and Investigation of an abstract
and theoretical nature of Law and basic functions of Law, the relationship between
Law and justice , Law and Morals etc,
2.Nature of Jurisprudence
I. A. Jurisprudence as Philosophy of Law:-
1. As a philosophy Jurisprudence examines whether the law as it ought to be.
2.It was inseparable part of beliefs ,myths and religion until 19th century from times immemorial.
3.It was understood and interpreted as a product of customs, intuition, morality, ethics etc.
4.Philosophy of Law can be seen from three aspects:-
I.Ancient period of Legal philosophy:-
a. The philosophers believed that laws are devised by some supernatural power for establishing righteousness,
justice and order in society.
b. The Jurisprudence is intended initially to regulate and control human conduct with the help of idel Laws.
Eg:- For ancient Greeks Delphins oracle was considered as divine will, they believed that king was supreme
Judge and Law was an instrument of eternal peace and the king required no guidelines on he was free from
passion and desire.
c.Then the Roman philosophers took the legacy of the of the Greeks forward and their basis of Philosophy was
that human reason was the foundation of Law and Justice.
Eg:- Cicero declared that “true Law” is right reason in argument with nature.
II.Medieval period of Legal philosophy:-
a) This period was dominated overwhelmingly by orthodox religious
characters.
b) The earlier Jesuist fathers of Church postulated a legal theory
wherein the Emperor was the temporal head in world affairs and
pope was the supreme Authority over spiritual matters.
c) They reiterated their presence by Declaring that “we ought to obey
God rather than men and thus cannon Law acquired universality by
being Theological ,ethical and Legal .
III.Modern period of Legal philosophy:-
a) From 16th century onwards rationalist Philosophical approach substituted for
Theological Natural Law.
b) Jurisprudence was separating from the religion.
c) Eminent Jurist like Grotius finally set free Jurisprudence from Theology and
placed natural law entirely on a rationalistic basis which was taken forward by
Pufendorf who propogated rational Natural law.
d) Next line of Philosphers like Hobbes Indirectly made Law of reason on Basis of
Natural law and sovereign shall protect their Natural rights, social Peace,safety
of Life and property.
e) Other Philosophers like Locke and Montesque regarded Natural Law as a check
on Absolutism and Despotism.
f) Another greater philosopher Kant says “Act in such a waythat maxim of your
action could be maxim of general Action.
Thus Kant’s emphasis on Law as a function of the state paved the way for the rise
of Positivism in the 19th century.

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