a summary of lecture notes unit 01.docx

1

A Summary of Lecture Handouts

Asmatullah Kakar

Email: [email protected] Mob: 0092 (0) 313 384 238 4

JURISPRUDENCE

PART I: INTRODUCTION TO JURISPRUDENCE

Unit 01 Jurisprudence as a Science

Outline:

1. Etymology of Jurisprudence

2. Subject-matter of Jurisprudence

3. Definition of Jurisprudence

4. Classification of Jurisprudence

5. Scope of Jurisprudence

6. Utility of Jurisprudence

7. Relationship of Jurisprudence with other Social Science

Reading List

MAHAJAN, V.D, JURISPRUDENCE AND LEGAL THEORY, 5TH ED., 1987, EASTERN BOOK

COMPANY, REPRINTED 2011, CHAPTER 1 (pp. 1-22)

FITZGERALD, P.J., SALMOND ON JURISPRUDENCE, 12TH ED., 1966, SWEET & MAXWELL LTD., REPRINTED BY NATIONAL BOOK FOUNDATION, PAKISTAN, CHAPTER 1 (pp. 1-5)

VISHWANADHAM, LELLALA, JURISPRUDENCE IN RELATIONS WITH OTHER SOCIAL

SCIENCES, VSRD-TNTJ, VOLUME 3, (5), 2012, 197-202

TUR, R.H.S., WHAT IS JURISPRUDENCE, THE PHILOSOPHICAL QUARTERLY, VOL. 28, NO. 111, (APR., 1978), PP. 149-161

2


Asmatullah Kakar


JURISPRUDENCE

ETYMOLOGY OF JURISPRUDENCE

Literal Meaning of Jurisprudence

Jurisprudence is derived from two Latin words: Juris means law, and Prudentia means

knowledge, study, philosophy, science or art. Hence, literally it means knowledge,

study, philosophy, science or art of law.

Counterpart Terminologies

The counterpart terminology of jurisprudence in France is la philosophie du droit which

means ‘the philosophy of rights, i.e. of law’.

Its counterpart terminology in German is Rechtsphilosophie, i.e. ‘the philosophy of

rights.

Usage of the Term Jurisprudence

Jurisprudence has been used to denote different things:

In the Institutes of Justinian it was defined as the knowledge of what is just and unjust.

In sixteenth century in Europe it was used to signify the knowledge of Roman Law

In France it has been used to for collection of the principles relating to a particular field

of law, e.g., equity jurisprudence, criminal jurisprudence etc.

It is also used to denote the whole corpus (body) of law of a particular country, e.g.

Pakistan Jurisprudence, English Jurisprudence, American Jurisprudence etc.

It has also been used express the collection of the decisions of a Courts, i.e. Case Laws,

e.g. ICC Jurisprudence, Jurisprudence of Supreme Court of Pakistan etc.

Current Meaning

However, the term Jurisprudence with which we are concerned in LL.B., shall mean

the knowledge of law. This is scientific or analytical knowledge of the law in abstract

sense or first principles of law.

3


Asmatullah Kakar


JURISPRUDENCE

SUBJECT-MATTER OF JURISPRUDENCE

Simply subject-matter of jurisprudence is law, as it is the study of law.

Law is basically comprised on rules that regulate the conduct of human beings with the

object to establish justice in societies.

But what type of law is its subject-matter? To find the answer to this question let us see

the different types of law.

Types of Law

This is the broad typology of law based on its nature. Therefore, it shall not be confused

with the classification of law to be discussed in Unit # 02, which is based on the

branches of law of a particular legal system.

The broad typology of law may be given as under:

I. God-made Law:

The rules that have been set by divine wisdom for the functioning of universe and

conduct of the universals.

God-made law is either Law of Nature or Divine Law

1. Law of Nature:

The law set by divine wisdom for the functioning of universe or universals and

which is discoverable through the observations and reasoning of human beings

Law of Nature is again of two types:

(a). Physical Law:

The Law set by divine wisdom for universe and universals other than human

beings and which may be discoverable through observations.

(b). Natural Law:

The law set by divine wisdom for the conduct of human beings in societies,

discoverable through the reasoning of human beings on the basis of Right

and Wrong judgmental standard.

4


Asmatullah Kakar


JURISPRUDENCE

2. Divine law:

The law that has been set by God to regulate the conduct of human beings, and

has been revealed through religious scriptures, e.g. Quran and Hadith, Bible etc.

Note: Both Natural Law and Divine Law are collectively known as Ethical, Moral or

philosophical Laws. As these laws are creating an ideal human behavior, therefore, they

are also called as LAW AS IT OUGHT TO BE

II. Man-made Law:

The law set by human being to regulate the conduct of other human being.

It is also known as Actual Law, analytical law, scientific law or LAW AS IT IS, as it

is the law which has actually posited in the society by a determinate person.

It is also called positive law as it is the law, actually posited in the society.

Moreover, Man-made Law or Positive Law is of two kinds:

1. ‘The Law’ Or ‘Law in Abstract Sense’:

‘Law in abstract sense’ or ‘the law’ means the most fundamental and general

principles derived from different legal systems of the world

According to Salmond, ‘the Law’ or ‘Law in Abstract Sense’ means, the first

principles of civil law.

Law in the abstract sense or the law is denoted in Latin by jus, in French by

droit and in Germen by recht.

2. ‘A Law’ or ‘Law in Concrete Sense’:

Law in Concrete Sense or ‘a law’ means a particular statute or enactment,

e.g. Pakistan Penal Code, Contract Act etc.

This is actual law applicable in the state and practical in courts.

Law in concrete sense or a law is denoted in Latin by lex, in French by loi

and in Germen by gesetz.

Discussion

Now there are centuries old debate on the subject-matter of jurisprudence.

5


Asmatullah Kakar


JURISPRUDENCE

Naturalist admit the status of positive law but they insist that positive laws are inferior

to natural law. Hence, they think that jurisprudence is the study of both natural law and

positive law.

Positivists deny the status of natural law at all and they are of the view that the only

subject-matter of jurisprudence is positive law.

Even among positivists majority think that jurisprudence is the study of positive law in

abstract sense or it is the study of ‘the law’.

While others think that jurisprudential study should not be limited to abstract law only.

Every study concerning the legal relations or law is the subject-matter of jurisprudence.

Therefore, they also include ‘a law’ or law in concrete sense in the study of

jurisprudence.

However, every intellectual inquiry demands the clear boundaries of its subject-matter.

Therefore, jurisprudential study must be limited to the essence of law or law in abstract

sense.

Furthermore, there is also a debate among the jurists that whether jurisprudence is

philosophical study or scientific/analytical study.

Obviously, naturalists think it as philosophical study and positivists think it as scientific

or analytical study.

There is also an intermediate school which think that this is both philosophical and

scientific study, which seems true, as jurisprudence is not only discussing the

fundamental principles of law, but it is also concerned with the question ‘what is law’.

Which sometimes may be answered philosophically.

DEFINITION OF JURISPRUDENCE

How Can Jurisprudence be defined?

There are three main sets of issues in defining jurisprudence as under:

Whether Jurisprudence is a philosophical study or analytical/scientific study?

6


Asmatullah Kakar


JURISPRUDENCE

Whether jurisprudence is the study of God-made Law or Man-made Law or is it the

study of both the laws?

Whether Jurisprudence is the study of law in abstract sense or law in concrete sense or

it is the study of law in both the senses?

Therefore, first of all you have to answer the aforesaid three queries at your own and

once you have formed your own understanding of the above issues, then you can define

jurisprudence with some ease.

Definition of Jurisprudence by Eminent Jurists

1. Ulpian: A celebrated Roman Jurist Ulpian says:

“Jurisprudence is the observation of things human and divine, the knowledge of the just and

the unjust.”

2. John Austin: In his book The Province of Jurisprudence Determined, he describes

jurisprudence as:

“The philosophy of positive law.”

3. Sir Thomas Erskine Holland: Holland had explored his idea of law and jurisprudence

in his book The Elements of Jurisprudence, published in 1880. According to him:

“Jurisprudence is the formal study of positive law.”

4. Salmond: Salmond defines jurisprudence as:

“The science of the first principles of civil Law.”

5. Keeton: According to Keeton jurisprudence is:

“The study and systematic arrangement of the general rules of law.”

6. C.K. Allen: He defines jurisprudence as:

“The scientific synthesis of all the essential principles of law.”

7. Roscoe Pound: According Roscoe Pound jurisprudence is:

“The science of social engineering.”

Therefore, it may be concluded that Jurisprudence is the scientific study of the essence or spirit of positive law.

7


Asmatullah Kakar


JURISPRUDENCE

CLASSIFICATION OF JURISPRUDENCE

Three leading jurists have tried to classify jurisprudence, namely, Bentham, John

Austin and Salmond

Bentham’s Classification

Bentham was the first who demarcated natural/ethical and positive law. He classified

Jurisprudence into two kinds:

1. Censorial Jurisprudence

The study of ethical, natural or philosophical law.

2. Expositorial Jurisprudence

The study of positive law

John Austin’s Classification

John Austin rejects the Censorial Jurisprudence of Bentham and only subscribes to his

Expositorial Jurisprudence and bifurcates it into two branches.

1. General Jurisprudence

The study of the law in abstract sense.

2. Particular Jurisprudence

The study of law of a particular legal system or of a particular kind of a legal system.

For example, English Jurisprudence, Pak-Jurisprudence, Medical Jurisprudence,

Environmental Jurisprudence, Commercial Jurisprudence etc.

8


Asmatullah Kakar


JURISPRUDENCE

Salmond’s Classification

Salmond classify jurisprudence in following kinds:

1. Systematic Jurisprudence

It is the exposition of the legal system as it is now (law as it is). In other words this

jurisprudence deals with the present legal system. It is also known as Legal

Exposition.

2. Historical Jurisprudence

It is the study of the origin and evolution of a legal system through ages, or in the

words of Salmond it is concerned with the legal system in the process of its

evolution. In other words it deals with past of the legal system. It is also known as

Legal History.

3. Critical Jurisprudence

It is the study of law as it ought to be. It visualizes the future ideal legal system. It

is commonly known as Science of Legislation.

SCOPE, LIMIT OR PROVINCE OF JURISPRUDENCE

In primitive ages there existed a confusion between law and morality, hence, the jurists

of that time like Ulpian, were considering the subject-matter of jurisprudence as

consisted of both morality and law.

But thanks to Bentham and Austin who laid down the foundation of the theory of

Analytical or Positive Law (or law as it is), which separated Law from morality and

9


Asmatullah Kakar


JURISPRUDENCE

Actual Law from Natural Law. Therefore, positivists started believing that

Jurisprudence is the study of positive law only.

Majority of the jurists also agreed that jurisprudence should not discuss a particular

legal system or branch of a legal system. It should, rather, discuss the essence of law,

or the most fundamental principles, or first principles of law, which is known as the

law.

Moreover, the modern thinkers like Roscoe Pound, once again seem like including

everything in jurisprudence. They are widening the scope of jurisprudence by

contending that every study if concerned with law, no matter under whatever subject

that might have been undertaken, shall be within the province of jurisprudence. They

are also of the view that jurisprudence can study both ‘the law’ or law in abstract sense

and ‘a law’ or law in concrete sense.

However, still majority of the jurists subscribe to the traditional view, that jurisprudence

is limited to the study of positive law in abstract sense.

UTILITY, USEFULNESS, ADVANTAGES, MERITS, VALUE OR

SIGNIFICANCE OF JURISPRUDENCE

Some people contend that jurisprudence is having no practical value. But this view is not correct. The significance of Jurisprudence may be given as under:

Intrinsic Values: Such fascination of the jurists by the theories and literature of

jurisprudence in the same way as mathematicians are overwhelmed by their technique

of numbers.

10


Asmatullah Kakar


JURISPRUDENCE

Generalization: It brings simplicity and generalization of legal rules, so that a mastery

of one field may helpful in understanding of other fields of law.

Eye of Law: It presents the whole structure of legal systems in a nutshell, therefore, it

is considered as an eye with which the legal world can be seen.

Grammar of Law: It is defining the general notions of law and discusses their

legitimate uses, e.g. legal right, mens rea, property, legal person etc., therefore, it may

also be regarded as grammar of law.

Educational Value: It is discussing the legal concepts in more comprehensive manner,

therefore, it provides an in-depth knowledge of law.

Legal Trainer: Jurisprudence is mostly concerned with arguments and logics,

therefore, it sharpens the argumentative skill of the lawyers which may help them in

contesting their cases in a court of law.

Legislative Value: It provides a depth of concise legal terminology and analyses,

therefore, it may help the legislators to understand a particular term.

RELATION OF JURISPRUDENCE AND OTHER SOCIAL SCIENCES

Jurisprudence is studying law, law is regulating the conduct of individuals and

individuals are living and forming societies. Therefore, law is an important social

phenomenon which is making jurisprudence as a Social Science.

However, there are several other Social Science, like Ethics, Political Science,

Sociology, Psychology etc. Now, it is logical that these social science should be

interlinked with each other at some point.

11


Asmatullah Kakar


JURISPRUDENCE

Moreover, these social sciences could not studied in isolation. In other words, none of

these sciences can be understand with having a fair knowledge of others.

Jurisprudence, being a social science is, in fact, related with other social sciences and

this relationship can be discussed as under:

1. Jurisprudence and Sociology

Jurisprudence is the study of law and sociology is the study of society and it is

also discusses law but from a different stand-point.

Therefore there is a link between jurisprudence and sociology.

Jurisprudence is concerned with legal rules that actually exists, however,

sociology is studying the effectiveness of those legal rules and their impacts on

society.

2. Jurisprudence and Politics

Politics studies the principles responsible for the governmental organization.

Whereas, jurisprudence is analyzing those principles.

Moreover, in a political society there exist rules for the regulation of human

being conduct which are the subject-matter of jurisprudence. Hence, there is a

close connection between the two.

3. Jurisprudence and Ethics

Ethics is the science of human conduct. It projects an ideal human behavior, in

the light of which it suggests a course of conduct for individuals living in

societies. Whereas, jurisprudence is discussing the imperative rules, actually

12


Asmatullah Kakar


JURISPRUDENCE

existing in the societies. However, those rules are also connected with the

behavior of human beings in societies.

Therefore, both of the science are interrelated.

Due to the close relationship and interdependency of these sciences, there

emerged a branch of jurisprudence known as Ethical Jurisprudence, discussing

the ideal human behavior or which is the study of law as it ought to be.

4. Jurisprudence and Psychology

Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is

discussing law.

Law is aimed to be followed by individuals, and individuals can only follow law

if they intend to follow.

Therefore, intention is the very basic element behind every law, and particularly

in criminal law the concept of mens rea is having immense importance.

Therefore, jurisprudence and psychology both are closely inter-related human

sciences.

5. Jurisprudence and Economics

Economics is the science of wealth and jurisprudence is the science of law.

Economics studies the production and distribution of wealth and law is

responsible for establishing a fair distribution of wealth through rules.

13


Asmatullah Kakar


JURISPRUDENCE

Moreover, studies show that economic factors are responsible for the increasing

rate of criminal activities, which again brings the two in close relation with each

other.

Furthermore, economics aims at improvement of the standards of human lives

whereas, this could not possible if a peaceful environment is not available which

is possible through the application of laws.

Therefore, there is a close relationship between the two.

6. Jurisprudence and History

History is the scientific narration of the past events, whereas, jurisprudence is

the science of law.

Law has not come into existence overnight, as a matter of fact, it has developed

through ages.

History helps jurisprudence in digging out the origin and evolution of different

legal rules.

Owing to its importance, there developed a separate branch of jurisprudence,

known as Historical Jurisprudence.

Therefore, it may concluded that there is a close relation between jurisprudence

and history.

14


Asmatullah Kakar


JURISPRUDENCE

EXERCISES

I. SUBJECTIVE QUESTIONS

A. Textual Questions

Question 1: What is the literal meaning of Jurisprudence? Discuss the definitions of jurisprudence given by eminent jurists.

Question 2: What is the legitimate subject-matter of Jurisprudence according to you? Discuss.

Question 3: Discuss in detail the classification of jurisprudence undertaken by different jurists.

Question 4: ‘Jurisprudence is the study of positive law’. Critically discuss the statement.

Question 5: Do you of the view that the province/scope of Jurisprudence should be circumscribed? Give your reasons.

Question 6: ‘Jurisprudence is devoid of any practical value’. Give a critical exposition of the statement.

Question 7: ‘Jurisprudence is an interdisciplinary science’. Explain the statement.

B. Conceptual Questions

Question 1: An advocate is arguing in a court of law about the invalidity of a particular section of PPC. He argues ‘My Lord, this very provision is inconsistent with the principles of the law set by God. Therefore, this Court should not base its decision on this provision as decree of God is final not that of man’.

To which School of Jurisprudence, the advocate is belonging? Please critically examine his argument in your own words.

Question 2: In the preface of a book on Contract Act of Pakistan, its writer contends that ‘this is a valuable addition in jurisprudential scholarship’.

Please give a full critique of his statement.

Question 3: An anchor person plans to record a TV talk show on the topic The Law of Crimes in Pakistan, to be discussed by the renowned advocates and academicians of the country. He wants you to prepare two separate questionnaires of both Abstract and Concrete Law.

15


Asmatullah Kakar


JURISPRUDENCE

Please draft the above questionnaires for him. Each questionnaire must contain at least ten questions.

Question 4: One of your friends, who is an advocate, is suggesting you not to give much time in studying jurisprudence as it cannot help you in pleading your cases in court.

Are you agree with him? If not, please give a detailed account of the reasons in refuting his claim.

II. OBJECTIVE QUESTIONS

A. Multiple Choice Questions: Choose the correct choice.

1. Jurisprudence is derived from two _______ words, juris and prudentia. (a). Greek (b). Latin (c). English (d). French (e). None of above

2. Juris means _______ while prudentia means ________. (a). justice/reason (b). law/power (c). knowledge/law (d). law/knowledge (e). None of above

3. In French, the equivalent expression for Jurisprudence is ________ (a). Rechphilosophie (b). Droit administratiff (c). La philosophie du droit (d). Jus fatiale (e). None of above

4. The law set by divine wisdom for the conduct of human beings is known as _______. (a). Positive Law (b). Negative Law (c). Analytical Law (d). Natural Law (e). None of above

5. Ulpian was a Jurist___________. (a). Greek (b). English (c). Roman (d). Italian (e). None of above

6. The book The Province of Jurisprudence Determined was written by ________. (a). Jeremy Bentham (b). Holland (c). Salmond (d). Roscoe Pound (e). None of above

7. Ethical law is also known as ___________. (a). law as it is (b). law as it ought to be (c). law as it was (d). law it was to be (e). None of above

8. Positive law means the law which is ________in the society. (a). actually posited (b). of divine nature (c). repealed (d). not existing (e). None of above

9. Law in abstract sense means ________ law.

16


Asmatullah Kakar


JURISPRUDENCE

(a). the law (b). a law (c). multiple law (d). common law (e). None of above

10. Law in concrete sense means __________. (a). statutory law (b). divine law (c). natural law (d). essence of law (e). None of above

B. True and False Statements: Which of the following statements are TRUE and which are FALSE.

1. Jurisprudence is derived from two Greek words juris and prudentia which respectively means, law and knowledge.

2. Rechtphilosophie means ‘the philosophy of right’.

3. Salmond defines Jurisprudence as ‘the philosophy of positive law’.

4. Law as it ought to be means ethical law or moral law.

5. Positive law means law as it is or analytical law.

[TRUE/FALSE]

[TRUE/FALSE]

[TRUE/FALSE]

[TRUE/FALSE]

[TRUE/FALSE]