Jurisprudence and various kinds of jurisprudence
1) Introduction
The study of Jurisprudence started in the Roman age and the Definition given by Roman jurists is not quite clear. Even every jurist has his own opinion about the definition of jurisprudence and limits of jurisprudence because the Limits of jurisprudence rely upon the nature of the society of the current age. In French jurisprudence refers to “Case Law” but today jurisprudence has a broader sense than it had understood in the Austanian age. Jurisprudence is the legal study of nature, the study of law, the legal analysis of law and the explanation of existing laws as well as the analysis of moral, historical and cultural values that prevailed all over the world
2) Meaning of Jurisprudence
The word jurisprudence has been derived from the Latin Word “Jurisprudential” which means
“knowledge of law” or “skills in Law”
Meaning in Black’s Law dictionary
The meaning of jurisprudence under the black law dictionary is “Philosophy of Law”
3) Definition of Jurisprudence
Jurisprudence is a study of law and legal questions in which different laws are being analyzed and explained
Austin’s Definition:
Austin defines jurisprudence as “the philosophy of positive law” Positive law is such law which has been laid down by a political superior for controlling administrative affairs.
A. Criticism of Austin’s Definition
Salmond’s criticism
The error in Austin’s definition is that he believes that a legal principle of a specific time is only common in a single system of law and it cannot be dealt with in general jurisprudence
B. Definition of jurisprudence at Present
Modern jurisprudence began in the 18th century and it focuses on the study of law and legal questions of the present age furthermore, jurisprudence analyses other disciplines such as philosophy, psychology, economics etc. It believes that laws are a product of the values of society
4) Kinds of Jurisprudence
Following are the three kinds of jurisprudence
1.Analytical Jurisprudence
Analytical jurisprudence deals with the analysis of principles of law It is not concerned with the past gradual development of jurisprudence and it is also not concerned with the goodness or badness of the law But its main purpose is to analyze the law of the land which exists today
a) Analytical Jurists
Following are the jurists who have an analytical approach regarding jurisprudence. Jeremy Bentham, Austin, Sir William, Holland and Salmond are those jurists who were founders of the analytical school of thought
b) Scope of analytical jurisprudence
Following is the scope of analytical jurisprudence. Analytical jurisprudence does:
- Analysis of Law
- An analysis of legal rights
- An analysis of other relevant legal concepts
- Study of the Source of Law
- An analysis of civil law and other forms of law
- An analysis of the ideas of state, sovereignty and administration of justice
- An analysis of the theory of legislation and judicial precedents
- An investigation of the theory of legal liability in civil and criminal cases
c) Importance of analytical jurisprudence
Analytical jurisprudence plays an important role in law because it brings accuracy to legal thinking legal terminology has also been provided by analytical jurisprudence and all irrelevant terminology has also been excluded from the law by an analytical approach
2.Historical Jurisprudence
Historical jurisprudence deals with the gradual development of law and it is the history of legal principles and the beginning of the legal system. Historical jurists
Following are the jurists who have a historical approach regarding jurisprudence.
Sevigne, Montesquieu and Rousseau are those jurists who were the founders of the historical school of thought
b. Scope of Historical Jurisprudence
Following is the scope of historical jurisprudence. Historical jurisprudence
deals with:
- Law’s different forms from the beginning of time
- Origin of law and development of legal principles which were necessary for the legal system
- The reasons by which legal principles have been established
c. Importance of Historical Jurisprudence
Historical jurisprudence plays an important role in the study of law as It tells us that, the law can’t be understood without knowing the circumstances in which it had established
3.Ethical Jurisprudence
Ethical jurisprudence deals with the law as it ought (Chahiye) to be in an ideal state. It investigates the purpose of the law Ethical jurisprudence defines the relationship between law and ethical manners to maintain the administration of justice
a) Ethical Jurists
Following are the jurists who have a historical approach regarding jurisprudence.
Bentham, Hobbes and Kant were the founders of the ethical school of thought
b) Scope of ethical jurisprudence
Following is the scope of ethical jurisprudence. Ethical jurisprudence deals with:
- The Concept of Law
- The relation between Law and ethical manner
- Study of ethical manners to maintain the administration of justice
5) Other kinds of Jurisprudence
At present, the following are also other kinds of Jurisprudence:
1. Sociological Jurisprudence
Sociological jurisprudence deals with social norms of the society which give rise to legal institutions. Sociological jurisprudence does not focus on the study of law as well as the aim of law
2. Comparative jurisprudence
Comparative jurisprudence is comparing common rules between two or more systems of law which prevail in different systems of law. Meanwhile, comparative jurisprudence discovers common ideas and common terminology between two systems or more
3. Synthetic jurisprudence
Synthetic jurisprudence deals with the facts as it is necessary to determine the truth from all aspects. As Dr Sethna says, Jurisprudence is a study of legal principles including their historical, sociological and ethical analysis of legal concepts.
4. American realists
American realists are the supporters of sociological jurisprudence and they focus on the decisions made by courts of law. They study those factors due to the judges make their decisions
5. Scandinavian realists
Scandinavian realists do not support formal law because they say when the court makes their decision for a case they don’t keep in mind the logical grounds. Realists are opposed to the value of legal terminology because they prefer to evaluate the law in terms of its behaviour
6) Conclusion
There are many approaches to studying jurisprudence. Jurisprudence is a part of history, sociology, ethics and philosophy of life. It has been classified by different jurists in various kinds. Apart from traditional approaches, new approaches are the practical and the main concern. Former were started their analysis from facts and new ones started their analysis after facts examined