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A Brief Outline About The Basic Concepts Of Jurisprudence

Every legal system contains power conferring laws and duty imposing laws. As Society progress and become more populous, diversified and complex it requires social and legal control. Legal institutions established and regulated by numerous laws characteristically perform the social functions. Legal system acts as a mediator between social ideals and social reality.

Likewise the emergence of the concept Jurisprudence has given way for the numerous laws, rules, legislations through which justice and dharma can be followed by the civilized Society. This article deals with the nature, sources and value of Jurisprudence etc. Further it enumerates the differences between law and morals, nature of law, sources of law and Kinds of law etc.

The term Jurisprudence is derived from a latin word called Jurisprudentia. Juris means law, Prudentia means Knowledge or skill. Jurisprudence means Knowledge of law or skill in law. It is said that Jurisprudence is the eye of law. It is the knowledge of fundamental principles. It is very difficult to formulate a uniform definition of Jurisprudence. Each Jurist has his own notion about jurisprudence and defined the term jurisprudence based upon his ideology and nature of the society.
  • Salmond- The science of law
  • Austin- The Science of Positive law
  • Holland- The formal Science of Positive law

The object of study of Jurisprudence is to study the theory of law and its fundamental principles and concepts. It provides Clear understanding about the nature of law and basic functions of law, the relationship between law and Justice, and law and morals etc.

Importance of Jurisprudence:

Jurisprudence is a science of civil law. It is a systematic and scientific study of the existing rules. It is also called as the philosophy of law. Jurisprudence provides theoretical foundation on the principles of law. It provides clear conception about the legal philosophy and enables us to discover legal fallacies. It teaches the lawyers, law students ,Judges ,Jurists and legislators to think legally and make them efficient in their activities. According to Salmond, Jurisprudence is the Science of law. It is a study not of the law of a particular country but of the general notion of law itself.

Nature of Jurisprudence:

Jurisprudence is the eye of law. It is the grammar of law. Jurisprudence is regarded as philosophy of law dealing with the nature and functions of law. It contains the general principles upon which actual rules of law are based. As per Austin’s view, the matter of Jurisprudence is positive law set by Political superiors to political inferiors.

Value of Jurisprudence:

The value of Jurisprudence can be summarized as follows:

  • The Philosophy of law is the basis for legal rules
  • It has great advantage in the study of legal system
  • The Knowledge of law is essential while making law
  • Jurisprudence is concerned with what and how the law should be
  • Jurisprudence has educational value
  • It provides the rules of interpretation
  • It helps in ascertaining the true meanings of laws
  • The legal concepts sharpens lawyer’s logical technique
  • It makes the lawyer to bring theory and life into focus
  • It analyses ,clarifies, clears overlapping of legal rules
  • It provides interdisciplinary approach in the social context.

Nature of Law:

Law means rule or command. It is a body of principles recognized and applied in the Courts of Justice. It is a Code of Conduct. Hindus calls it as Dharma, Muslims calls it as Hukum, Roman calls it as Jus, Germans calls it as Richt and in France it is known as Droit.

Austin – Law is a command of Sovereign. The aggregate of rules set by men as Politically superior, or sovereign , to men as politically subject.
Salmond – The body of principles recognized and applied by the State in administration Justice.
Holland – Law is general rule of eternal human action enforced by a Sovereign political authority.

Schools of Jurisprudence:

Jurisprudence means Knowledge of law or skill in law. School means idea. Various Jurists expressed their various thoughts about Jurisprudence. Each set of legal thought is known as school. Each School of thought is based on certain basic assumptions about law. The schools of jurisprudence explain about law ,its nature ,functions, basis, adaptation ,improvement and reform. The schools of Jurisprudence have been classified into the following categories.
They are:
  • Analytical School
  • Historical School
  • Natural law School
  • Sociological School
  • Philosophical School
  • Realist School
  • Comparative School

Theories of Punishment:

The purpose of Criminal Justice and the object of punishment are to reduce crimes in the society. There are five theories of Punishment of punishment in the administration of criminal justice.
They are:
  • Deterrent theory
  • Retributive theory
  • Reformative theory
  • Preventive theory
  • Expiatory theory

Kinds of Punishment:

The object of Punishment is to prevent and reduce crimes and protect the society from Criminals. There are six kinds of Punishments under Section 53 of Indian Penal Code, 1860.
  • Death Punishment
  • Life Imprisonment
  • Penal Servitude
  • Imprisonment
  • Deportation
  • Solitary Confinement
  • Forfeiture of Property
  • Fine

Sources of Law:

Law is derived from different sources. Various writers have expressed different view about the origin of law. They may be historical or legal sources. They may be recognized or unrecognized. Legal and recognized sources are authoritative and historical and unrecognized sources are not authoritative. These sources are the basis for legal principles. They may be formal or non- formal sources. The sources which are recognized by law are called legal sources. They are authoritative ; eg ; the decisions of English Courts. Legal sources are five kinds . They are:
  • Legislation
  • Precedent
  • Custom
  • Agreement
  • Opinions of Jurists

Delegated Legislation:

Delegation means allotment or transfer. Delegated legislation means transfer of law making power. It is a kind of subordinate legislation or executive legislation. The main function of executive is to enforce the laws made by the legislature, but sometimes the legislature may transfer its lawmaking power to the various departments of Government to make law. This is known as delegated legislation.

According to Prof. Grifith delegated legislation during 19th and 20th Centuries has grown in accordance with the growth of Executive and administrative functions.

The reasons for the growth of delegated legislation are as follows:

  • Pressure of work on the Government
  • Lack of time to the Parliament
  • Lack of technical knowledge to the members of legislature
  • Flexibility and Expediency
  • Experimentation
  • Emergency Situation
The authority to which delegation is made has no independent power to make law. Hence, delegated legislation is controlled in the following ways:
  • Parliamentary control
  • Judicial Control
  • Procedural Control

Codification of Law:

Codification means the systematic arrangement of law. According to Oxford dictionary Code is a systematic collection of Statutes, body of laws , so arranged as to avoid inconsistency and overlapping. According to Salmond Codification making the rules in the form of enacted law. Codification implies collection, compilation ,methodical arrangement and systematization of whole body of laws. It Provides systematic principles and rules. It brings simplicity, symmetry ,intelligibility and logical coherence.

Kinds of Law:

Salmond classified law into eight different kinds. They are as follows:

Imperative law:

Authoritative rule is called as imperative law. The first Characteristic of imperative law is that it must be in the form of a general rule. The second Characteristics of imperative law is that some authority should enforce it. According to Austin law is a command of Sovereign.

Physical or Scientific Law:

Natural law is called as Physical or Scientific law. Physical law is also known as natural law or law of nature. e.g : law of gravitation, law of Planetary motion, law of tides, law of chemical combination etc.

Natural or Moral law:

Command of God is called as natural or moral law. Natural law is unwritten. The world is governed by the natural law. An ideal state follows the principles of natural law. Natural la can never be compared with the positive law of the State.

Conventional law:

A law based on agreement is called conventional law. It binds only the parties to the agreement. Generally parties enforce Conventional law and in some cases it is enforced by State. The State enforced Conventional law becomes a part of civil law. eg: laws of Cricket, rules of a club, international law etc.

Customary law:

A law based on reasonable customs and usages is called Customary law. It is a kind of law supported by conservative people. The State recognized Customary law becomes a part of civil law. Eg: Hindu law of marriage, Succession etc.

Practical or technical law:

A law, which has certain ends, is called Practical or technical law. These rules guide us as to what we ought to do in order to attain certain ends. Eg: laws of music, law of architecture, laws of style, laws of any art or business etc.

International law:

The law of nations is called international law. According to Oppenheim International law is the name for the body of Customary and treaty rules, which are considered legally binding by, civilized states in their intercourse with each other.

Civil law:

The term Civil law is derived from jus Civile or civil law of the Romans. According to Salmond, civil law is the law of the state or of the land, the law of lawyers and the law courts. It is a kind of positive law of the land. It is also known as municipal law or national law.

Common law and Equity law of England:

The general law of England is called common law. The common law of England was produced during the regimes of William I and Edward I. The general laws in England is classified into three kinds such as:
  1. Statute law
  2. Common law and
  3. Equity law.
Almost every kind of law has reference to the common law and equity law of England.

Constitutional law:

According to Salmond Constitutional law is the body of those legal principles, which determine the Constitution of the State. According to A.V. Dicey , Constitutional law includes all rules, which directly or indirectly affect the distribution or exercise of the Sovereign power of the State. According to Austin, Constitutional law is not positive law or law in the strict sense, but is merely positive morality. It derives its force only from Public Opinion regarding its expediency and morality.

Administrative law:

According to Prof. Wade Administrative law is primarily concerned with administration. It is neither concerned with judicial control nor legislation. Dr. Jennings defines it as the law relating to the administration. It determines the Organization ,powers and duties o administrative authorities.

General and Special law:

The general or the Ordinary law of the land is called general law. It consists of those legal rules, which are taken judicial notice of by the Courts. The law, which are specially proved and brought to the notice of the Courts is called Special law.

Private and Public law:

Law, which govern the relation between person and person, is called Private law eg: law of property ,law of contracts , law of torts etc. Law, which govern the relation between person and State,  is called Public law.

Substantive and Procedural law:

Generally law may be either Substantive or Procedural .The law, which deals with rights and remedies is called Substantive law. Substantive law refers to ends. Eg: IPC. The law which deals with means, mode or manner of obtaining the remedy prescribed for the violation of right is called Procedural law. It is also known as adjective law.

Foreign and local law:

The law of a foreign country is called foreign law. The law of a particular locality is called local law. Ignorance of local law is no excuse, but ignorance of foreign law is excusable just like the ignorance of fact.

Martial law:

The law administered in the courts maintained by military authorities is called martial law.

These are the importance of Jurisprudence and Law in the governance of the Civilized society that has created numerous new fields in the legal system, has improved the rule of law, high moral values as described by the great scholars and Jurists in this new era.

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