Jurisprudence: Nature And Sources Of Law

By Mohd Aqib Aslam | Views 125129

74 4 9 Blogger12 pocket9 Digg0

Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence hope to obtain a
deeper understanding of the nature of law, legal reasoning, legal systems and legal institutions.

Modern jurisprudence began in the 18th century and was focused on the first principles of the
law of nature, civil law, and the law of nations.

General Jurisprudence can be broken into categories both by the types of questions scholars seek
to address and by the theories of jurisprudence or schools of thought regarding how those
questions are best to be answered. Contemporary philosophy of law, which deals with general
jurisprudence, addresses problems in two rough groups.

1. Problems internal to law and legal systems.

2. Problems of law as a particular social institution as it relates to the larger political and
social situation in which it exist.

Answers to these questions come from four primary schools of thought in general
jurisprudence:
Natural law
Natural law is the idea that there are rational objective limits to the power of legislative rulers.
The foundations of law are accessible through human reason and it is from these laws of nature
that human created laws gain whatever force they have.

Legal positivism
Legal Positivism, by contrast to natural law, holds that there is no necessary connection between
law and morality and that the force of law comes from some basic social facts although
positivists differ on what those facts are.

Legal Realism
Legal Realism is a third theory of jurisprudence which argues that the real world practice of law
is what determines what law is. The law has the force that it does because of what legislators,
judges, and executives do with it.

Critical Legal Studies is a younger theory of jurisprudence that has developed since the 1970s
which is primarily a negative thesis that the law is largely contradictory and can be best analyzed
as an expression of the policy goals of the dominant social group. The English term is based on
the Latin word jurisprudentia: juris is the genitive form of jus meaning law, and prudentia means
knowledge. The word is first attested in English in 1628, at a time when the word prudence had
the now obsolete meaning of knowledge or skill in a matter.

Nature of Jurisprudence
Philosophers of law ask what is law? and what should it be? Nature and scope of Jurisprudence
depends upon the ideology and nature of the society and the jurist according to their own notion,
Growth of the Law is different and it differs according to social and political condition.

There are different meanings for the word Law for example in French, Jurisprudence means case
Law. Due to the evolution of the society it is difficult to accept definition by all. The study of
Jurisprudence started from Romans. Latin word Jurisprudence evolved knowledge of
Law or skill in law. Ulpian = The knowledge of things divine and human. The science of the
just and unjust.

Paulus = The law is not to be deducted from the rule, but the rule from the law.

But these definitions are vague and inadequate but they put forth the idea of a legal science.
England: During formative period of the common law the word Jurisprudence was in use.
Meaning is little more than the study of or skill in law. Early part of the 19th century the word
began to acquire a technical significance among English lawyers.

Bentham distinguished

1. Expositorial Jurisprudence.
2. Censorial Jurisprudence.

Austin occupied himself with expository Jurisprudence. (His work consisted mainly at a formal
analysis of the structure of English law).

Bentham analytical exposition or pioneered and Austin developed. Hence the word
Jurisprudence has come to mean in English almost exclusively an analysis of the formal structure
of law and its concepts.

Buckland: The analysis of legal concepts is what Jurisprudence meant.

Julius Stone: The lawyer's extraversion. It is the lawyer examination of the precepts, ideas and
techniques of the law in the light derived from present knowledge in discipline other than the
law.

Austin: He says the science of Jurisprudence is concerned with positive law. It is no matter
whether it is good or bad law. Austin divides the law as general jurisprudence and particular
jurisprudence. General Jurisprudence is common to all systems. Particular Jurisprudence
confined only to the study of any actual system of law or any portion of it.

General Jurisprudence is science which is concerned with the exposition of the principles notions
and distinctions which are common to all system of law.

Particular Jurisprudence is the science of any system of positive law actually obtaining in a
specifically determined political society.

General Jurisprudence is a province of pure abstract jurisprudence to analyze and systematize the
essential elements underlying the indefinite variety of legal rules without special reference to the
institution of any particular country.

Particular Jurisprudence is a science of particular law General and particular jurisprudence

differs from each other in this scope but not in its essence. Generally it takes data from the
system of more than one state while particular takes the data from a particular system of law.
Both are positive only. Example: Possession is one of the fundamental legal concepts recognised
by all system of law.

Criticism by Salmond Holland

1. Impracticability.
2. Error in Austin's idea of general jurisprudence.
3. Jurisprudence is the integral social science and the distinction between general and
particular jurisprudence is not proper.
4. There may be many schools of jurisprudence but there are not different kinds of
Jurisprudence.
5. He says it is not correct to use English Jurisprudence as Hindu jurisprudence.
6. We are dealing with different systems of law and not different kinds of jurisprudence.
7. He says jurisprudence is a social science which deals with social institutions governed by
law it studies them from the point of view of their legal significance.

Holland

1. Error on particular Jurisprudence.

2. We can classify a material into general and particular but we can't classify the science
hence the study of particular legal system is not a science.
3. Example Geology of England Geology of India etc.

Lord Bryce:
The law of every country is the outcome and result of the economic and social conditions of that
country as well as the expression of its intellectual capacity for dealing with these conditions.

Savigny:
Law grows with the growth and strengthens with the strength of people and its standard of
excellence will generally be found of any given period to be in complete harmony with the
prevailing ideas of the best class of citizens Progress in the formation of law keep pace with the
progress in the knowledge of the people.

Holland:
Jurisprudence is the formal science of positive law. It is a formal or analytical science rather than
material science. He terms the positive law as the general rule of external human action enforced
by a sovereign political authority. He follows the definition of auction but he adds the term
formal which means that which concerns only the form and not its essence. A formal science is
one, which describes only the form or the external side of the subject and not it internal contents.

Salmond:
Jurisprudence as the science of law means civil law or law of the land.

Jurisprudence is of 3 kinds
Expository or systematic jurisprudence deals with the contents of an actual legal system as
existing at any time whether past or present. Legal history says about the process of historical
development which helps us to set forth law as it ought to be. It deals with the ideas of the legal
system and the purpose for which it exists.

Salmond makes distinction as generic Jurisprudence and specific Jurisprudence.

Generic Jurisprudence includes the entire body of legal doctrines and specific jurisprudence
deals with a particular department of those doctrines. He defines Jurisprudence as the science of
the first principles of the civil law. Specific Jurisprudence has three branches:

1. Analytical Jurisprudence.
2. Historical Jurisprudence.
3. Ethical Jurisprudence.

Keeton:
Jurisprudence the study and systematic arrangement of general principles of law. Jurisprudence
deals with the distinction between public and private laws and considers the contents of the
principal departments of law.

Pound:
Jurisprudence the science of law using the term law in the juridical sense as denoting the body of
principles recognized or enforced by public and regular tribunals in the administration of justice.

Gray:
Jurisprudence is the science of law the statement and systematic arrangement of the rules
followed by the courts and principles involved in those rules. Jurisprudence is the study of
fundamental legal principles it is any thought or writing about law and its relation to other
disciplines such as philosophy, psychology, economics etc.

Scope of Jurisprudence
No unanimity of opinion regarding its scope. However it covers moral and religious precepts but
that has created confusion. Credit goes to Austin who distinguished law from morality and
theology. He also restricted the term to the body of rules set and enforced by the sovereign or
supreme law making authority within the realm. In the present view its scope includes all the
conduct of human order and human conduct in state and society.

Nature of Law
Natural law Aristotle is often said to be the father of natural law. Socrates Plato and Aristotle
posted the existence of natural justice or natural right. Natural law theory asserts that there are
laws that are imminent in nature, to which enacted laws should correspond as closely as possible.
This view is frequently summarized by the maxim an unjust law is not a true law, lex iniusta non
est lex, in which ‘unjust' is defined as contrary to natural law.

Natural law is closely associated with morality and in historically influential versions, with the
intentions of God. Natural law theory attempts to identify a moral compass to guide the
lawmaking power of the state and to promote ‘the good'. Notions of an objective moral order,
external to human legal systems, underlie natural law. What is right or wrong can vary according
to the interests one is focussed upon. Natural law is sometimes identified with the maxim that an
unjust law is no law at all.

Thomas Aquinas was the most important Western medieval legal scholar. He is the foremost
classical proponent of natural theology. Aquinas distinguished four kinds of law.

These are:

1. The eternal law

2. Natural law
3. Human law.
4. Divine law.

1. Eternal law is the decree of God which governs all creation.

2. Natural law is the human participation in the eternal law and is discovered by reason.
Natural law is based on first principles: this is the first precept of the law that good is to
be done and promoted, and evil is to be avoided. All other precepts of the natural law are
based on this. The desire to live and to procreate are counted by Aquinas among those
basic (natural) human values on which all human values are based.

3. Human law is positive law: The natural law applied by governments to societies.

4. Divine law is the law as specially revealed in the scriptures and teachings of the apostles.

Thomes Hobbes, He was an English enlightenment scholar. Hobbes expresses a view of natural
law as a precept, or general rule, found out by reason, by which a man is forbidden to do that
which is destructive of his life, or takes away the means of preserving the same; and to omit that
by which he thinks it may best be preserved. Hobbes was a social contrarian and believed that
the law gained peoples' tacit consent. He believed that society was formed from a state of nature
to protect people from the state of war between mankind that exists otherwise. Life is, without an
ordered society, solitary, poor, nasty and short.

Legal positivists
Positivism simply means that the law is something that is positive: laws are validly made in
accordance with socially accepted rules.

The positivist view are:

Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their
success or failure in doing so does not determine their validity. Provided a law is properly
formed, in accordance with the rules recognized in the society concerned, it is a valid law,
regardless of whether it is just by some other standard.

Secondly, that law is nothing more than a set of rules to provide order and governance of society.
No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no
matter what. This is seen as a separate question entirely. What the law is - is determined by
social facts What obedience the law is owed - is determined by moral considerations.

Hans Kelsen is considered one of the pre-eminent jurists of the 20th century. He is most
influential in Europe, where his notion of a Grundnorm or a presupposed ultimate and basic legal
norm, still retains some influence. It is a hypothetical norm on which all subsequent levels of a
legal system such as constitutional law and simple law are based.

Kelsen's pure theory of law described the law as being a set of social facts, which are
normatively binding too. Law's normativity, meaning that we must obey it, derives from a basic
rule which sits outside the law we can alter. It is a rule prescribing the validity of all others.

Hart
Hart, who argued that the law should be understood as a system of social rules. Hart rejected
Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like
law, cannot be grounded in non-normative social facts. Hart divided into primary rules (rules of
conduct) and secondary rules (rules addressed to officials to administer primary rules).
Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change
(allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid).
The rule of recognition, a customary practice of the officials (especially judges) that identifies
certain acts and decisions as sources of law. Legal realism Oliver Wendell Holmes was a self-
defined legal realist. The law should be understood and determined by the actual practices of
courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes
or learned treatises.

Sources Of Law

1. Legislative.
2. Precedents.
3. Customs.
4. Opinion juris (statutory interpretation and preparatory works).
5. Justice equity and good conscience.

Sources of law means the origin from which rules of human conduct come into existence and
derive legal force or binding characters. It also refers to the sovereign or the state from which the
law derives its force or validity. Several factors of law have contributed to the development of
law. These factors are regarded as the sources of law.

Legislation
Legislation is that source of law which consist in the declaration of legal rules by a competent
authority. Legislature is the direct source of law. Legislature frames new laws, amends the old
laws and cancels existing laws in all countries. In modern times this is the most important source
of law making. The term legislature means any form of law making. Its scope has now been
restricted so a particular form of law making. It not only creates new rules of law it also sweeps
away existing inconvenient rules.

Types Of Legislation
1. Supreme legislation. 2. Subordinate Legislation.

1. Supreme legislation: Supreme legislation is the expression of the legislative will of a

supreme authority in a state. It is supreme because no authority can annual, modify or
control it. It proceeds from the sovereign or supreme legislative power in the state, and
which is therefore, incapable of being abrogated by any other legislative authority.

2. Subordinate legislation: Subordinate legislation is that which proceeds from any

authority other than the sovereign legislation power, and is, therefore, dependent for its
existence or validity on some superior or supreme legislative authority. It comes from a
subordinate legislature or any authority and is subject to the repealing or sanctioning
control of a superior legislation.

In England all form of legislative activity recognized by law, other than the power of
parliament are subordinated and subject to parliamentary control.

Types of subordinate legislation

The chief forms or types of subordinate legislation are five in number. These are:

1. Colonial legislation: It means legislation by the legislature of the colonies or other

dependencies. The parliament can repeal, alter or supersede any colonial enactment.

2. Executive legislation: Though the main function of the executive is to enforce laws, but
in certain cases, the power of making rules is delegated to the various departments of the
government, which is called subordinate delegated legislation.

3. Judicial legislation: It means rules of procedure made by superior courts for their own
guidance under authority delegated to them for the purpose. In other words the superior
courts have the power of making rules for the regulation of their own procedures.

4. Municipal legislation: Sometimes municipal authorities are provided with the power of
establishing special laws for the districts under their control. They are allowed to make
bye-laws for limited purposes within their areas. These are legislation of local bodies
such as municipal or corporations.

5. Autonomous legislation: It is the process of law making by persons not by the state for
their own guidance. Legislation thus made by private persons and the law created may be
distinguished as autonomic view. These are autonomous bodies like municipal councils,
universities etc.

Precedent
Precedent is one of the sources of law. The judgements passed by some of the learned jurists
became another significant source of law. When there is no legislature on particular point which
arises in changing conditions, the judges depend on their own sense of right and wrong and
decide the disputes. Such decisions become authority or guide for subsequent cases of a similar
nature and they are called precedents.

The dictionary of English law defines a judicial precedent as a judgement or decision of a court
of law cited as an authority for deciding a similar state of fact in the same manner or on the same
principle or by analogy. Precedent is more flexible than legislation and custom. It is always
ready to be, used. Precedent is otherwise called case law judicial decision judge made law it is
the sources of law. It enjoyed a high authority precedent plays a vital role when law is unwritten
English common law is based on precedent.

Kinds of precedent

1. Authoritative precedents or absolute precedent: whether judge approve it or not this kind
of precedent must be followed.
2. Conditional precedent: The judge may disregard either by dissenting or by over ruling it
known as conditional precedent.
 3. Persuasive precedents: Judges have no obligation to follow can take into consideration.
Precedent of other court i.e. Foreign court.

Theories of precedent

1. Declaratory theory: Declaration of existing law by the judges is known as declaratory

theory. Judge only declare the existing law.
2. Original precedent theory: Law making by the judge known as original precedent theory
judge are the law makers the role of judge is creative particularly when the law is absent.

Principles of precedent

1. Ratio decidendi Reason for the decision - An authoritative principle of a judicial decision.
It contains the principle of law formulated by a judge, it is essential for the decision of a
case. It has force of law and binding on the courts.

Prof Keeton. Ration decidendi is a principle of law which forms the basis of decision in a
particular case. Bridges v. Hawkeshworth, Customer found money on the floor of a
shopping complex both customer and shopkeeper claim that money. Court treated shop as
a public place and applied rule finder keeper and it favoured the customer. Here the ratio
decidendi is the finder of goods is the keeper principle.

2. Obiter dictum Something said by the judge, does not have any binding authority. Judge
may declare some general principles relating to law but that may be unnecessary and
irrelevant to the issues before him. Those unnecessary statements of law which lay down
a rule is called Obiter dictum.

3. Stare decisis: Means let the decision stand in its rightful place. During 17th century a
progress made in the law reporting system. Reporting of the decisions of the court Act to
stare decisis a principle of the law which has become settled by a series of decisions is
generally binding on the courts and should be followed in similar cases. It is based on
expediency and public policy.

4. Prospective overruling: Reversing the lower court's decision by Supreme Court can
overrule their own earlier decisions by another bench of judges consisting of more
number of judges than previous one. It is a modern trend which enables the court to
correct its errors without affecting its past transactions.

Customs
A custom is a rule which in a particular family or in a particular district or in a particular section,
class or tribe, has from long usage obtained the force of law. The dictionary of English law
defines custom as a law not written, which being established by long use and consent of our
ancestors has been and daily is put into practice. Custom as a source of law got recognition since
the emergence of Savigny on the horizon of jurisprudence.

It is an exemption to the ordinary law of the land, and every custom is limited in its application.
A study of ancient shows that law-making was not the business of the kings. Law of the country
was to be found in the customs of the people which developed spontaneously according to
circumstances. It was felt that a particular way of doing things was more convenient than others
when the same things were done again and again in a particular way, it is of custom. According
to Salmond custom is the legal source of law.

According to Salmond:
Custom is the embodiment of those principles which have commended themselves to the
national and national conscience as the principles of justice and public utility.

According to Austin:
Custom is a rule of conduct which the governed observed spontaneously and not in pursuance of
law set by political superior.

According to Holland:
Custom is a generally observed course of conduct.

Kinds of Custom: Custom are of two kinds:

I. Legal Custom
II. Conventional Custom.

I. Legal Custom: According to Salmond, a legal custom is one whose legal authority is absolute,
one which in itself and possesses the force of law:
Kinds of legal Custom:

a. General Custom.
b. Local Custom.

(a) General Custom: General customs are those which have force of law throughout the territory.
The common law of England is based upon general customs of the realm.

(b) Local Custom: the local customs are those which operate have the force of law in a particular
locality. The authority of a local custom is higher than that of general custom.

II. Conventional Custom: A Conventional custom is one whose authority is conditional on its
acceptance in the agreement between the parties to be bound by it. There is a process by which
conventional usage comes to have the force of law.

Conditions for a valid custom:

Certain conditions must be satisfied before a court is entitled to incorporate the usages into
contracts.

i. The usage must be so well-established as to be notorious.

ii. The usage must be reasonable.
iii. Usage cannot alter general law of land.
iv. A usage should not nullify or very the express term of the contract.

Requisites of Valid Custom: Following are the requisites for a valid custom, treated as law

I. Immemorial: A Custom to be valid must be proved to be immemorial. According to

Blackstone: A custom in order that in may be legal and binding, must have been used so
long that the memory of man not to the contrary, so that if anyone can show the
beginning of it, it is good custom.
II. Reasonable: Another essential of a valid custom is that it must be reasonable. The
unreasonableness of custom must be so great that its enforcement results in greater harm
than if there were no custom at all. According to Prof. Allen: The unreasonableness of
custom must be proved and not its reasonableness.
III. Continuous: A custom must not continuously observed and if it has not been
continuously and uninterruptedly observed, the presumption is that it existed at all.
IV. Peaceable enjoyment: The enjoyment of a custom must be a peaceable one.
V. Certainty: A valid custom must be certain and definite, if there is any ambiguities in it or
it keeps change, it is not a valid custom.
VI. Compulsory Observance: A custom is valid if its observance is compulsory. An optical
observance is ineffective. According to Blackstone: A custom that all the inhabitants
shall be rated towards the maintenance of a bridge, will be good, but a custom that every
man is to contribute thereto at his own pleasure is idle and indeed no custom at all.
VII. General Or Universal: The custom must be general or universal. In the absence of
unanimity of opinion, custom becomes powerless or rather does not exist. A valid custom
must not be opposed to public policy or the principles of morality.

IX. Not Opposed With Statute Law:

A. valid custom must be conflict with the statute law of the country. According to Coke: No
custom or prescription can take away the force of an Act of parliament.
B. According to Blackstone customs must be consistent with each other, one custom cannot
be set up in opposition to another.
Theories of customs
There are two theories regarding the question as to when a question is transformed into
law:

i. Historical theory
ii. Analytical theory

(i) Historical theory: According to the historical theory, the growth of law does not depend
upon the arbitrary will of any individual. It does not depend upon any accident. It grows as a
result of the intelligence of the people. Custom is derived from the common consciousness of the
people. According to Puchta: Custom is not only self-sufficient and independent of state
imprimatur but is a condition to all sound legislation.

Criticism: According to Paton: The growth of most of the customs is not the result of any
conscious thought but of tentative practice. According to Allen: All customs cannot be attributed
to the common consciousness of the people. In many cases, customs have arisen on account of
the convenience of the ruling class.

(ii) Analytical theory: Austin, Holland, and Gray are the advocates of analytical theory.
According to Austin: Customs is a source of law and not law itself. Customs are not positive
laws until their existence is recognized by the decisions of the Courts. According to Holland:
Customs are not laws when they arise but they are largely adopted into laws by state recognition.
Criticism: By Allen: Custom grows by conduct and it is therefore a mistake to measure its
validity solely by the elements of express sanction, accorded by Courts of law of by other
determinate authority.

Reasons for Custom are given the force of law: Following are the reasons, why
custom is given the force of law:

i. Principles of National Conscience: Custom is the embodiment of those principles which

have commended themselves to the national conscience as principles of truth, justice and
public policy. According to Salmond: Custom is to society what laws are to the state.
Each is the expression and realization of the measure of man, insight and ability, of the
principles of right and justice.

ii. Expectation of continuance: Another reason for the binding force of custom is the
expectation of its continuance is the future. Justice demands that this expectation should
be fulfilled and not frustrated.

iii. Observance by a large number of people: Sometimes a custom is observed by a large

number of persons in society and in course of time the same come to have the force of
law.
 iv. Interests of Society: Custom rests on the popular conviction that it is in the interests of
society. This conviction is so strong that it does not found desirable to go against it.

v. Useful to the law giver: According to Paton: Custom is useful to the law-giver and
codifier is two ways. It provides that material out of which the law can be fashioned.
There is a tendency to adopt the maxim whatever has been authority in the past is a safe
guide for the future.

Law Article in India

Please Drop Your Comments