Understanding Jurisprudence and Legal Perspectives

• Jurisprudence is the knowledge of law, derived from the combination of "Juris" (law) and "Prudentia" (knowledge) in Latin Terminology
• Jurisprudence, as defined by Salmond, is the science of civil law.
• Civil law includes both international and domestic law, with the latter being a part of it.
• According to Austin, jurisprudence is the science of positive law, which is law made by the sovereign.

Jurisprudence: Perspectives

• Holland views jurisprudence as a formal science of positive law.
• Kelsen defines jurisprudence as a science of norms or normative science, based on a "gr und noum".

Salmond's Three Purposes of Jurisprudence:

• Exposition of law (analysis of law)
• Legal history (source of law)
• Science of law (what the law ought to be)
• Bentham is recognized as the founder of positive law, while Austin is considered the father of positive law.
• Bentham identified only two purposes of law: exposition and censor.
• Censor of law refers to moral principles applied so that it could be applicable for every person- He directly tried to incorporate the concept of morality, but did not use the term "morality" as he belonged to the positive school.
• Maximum good to the maximum of people.
• Austin criticized Bentham's ideology, stating there is only one purpose of law: exposition, but jurists need to analyze and not look into the moral or historical background of law.

Branches of Jurisprudence:

• Analytical Jurisprudence: Focuses on analyzing the law as it is, separate from historical or future considerations, with legislation taken as the supreme source of law.

• Historical Jurisprudence: Traces the historical evolution of law, suggesting law existed even before political consciousness, neither can it be created by any political or human agency

• It is believed society should aim to resolve rather than alter existing laws, valuing custom and usage.

• Custom is defined as a practice with unknown origins, while usage has a known origin and how it started.

• Ethical Jurisprudence: Connects law and morality, suggesting law should not be segregated from morality's source, also known as the Natural School of Law

• Sociological Jurisprudence: Connects law and society. Laws should be made to better society, and law acts as a tool. Focus is on societal interests rather than the source of law.

• Realist Jurisprudence: States that law is ultimately what the judges make it. Judge-made law and precedents are seen as the source of law

• Comparative Jurisprudence: A comparative study is made between other branches of jurisprudence, without a unique method of study.

Different Types of Jurisprudence:

• General Jurisprudence: Study subjects that include rights, possession, and duties.

• Particular Jurisprudence: Study of the actual legal system, focusing on the legal system of a particular country, also known as legal theory in jurisprudence.

• Concept of Law

• Sources of Law

• Elements of Law

Concept of Law:

• Study of legal theory from a country's viewpoint

Sources of Law / Origin of Law:

• Includes legislation first, then customs and usages.

Elements of Law:

• Basic principles common in every legal system.

Natural Law School:

• The central idea is natural law theory, based on principles from the universe's nature and human reason. Man-made law must align with these moral principles.
• Moral principles should be incorporated in making law, already existing in the universe's nature.
• Zamindari System, Sati, Child Marriage are abolished
• Ancient Theory
• Medieval Theory
• Renaissance Theory
• Modern Theory

Ancient Theory:

• The king, empowered with the church's support, had laws interpreted from the Bible.

Greek Theory:

• Socrates: States every human has insight that guides goodness/badness. Man-made law must align with human insight; disobey if not.
• Plato: Explained natural law as an ideal state of republic government. Only an intelligent person can be king, with the duty to give justice using reason, wisdom, and control over passion.
• Aristotle: Human beings are part of nature created by God with reason. Their will can shape internal principles of justice. Natural law from nature must be in conformity.
• Staics: a group of people in Greek society. They said that lille acc to the nature. They take nature as a living organism. This ewould is the body of the native and the reason of the pourrichuar activity is the soul of the nativee iso the Human Law must be guided by reason.

Roman Theory:

• Romans were scientifically more developed than the Greeks. Legal scientists took the Greek natural law to develop their own legal system. -Jus Civile: law of land -Jus Gentium: law of nation -Jus Naturale: Universal Law
• Initially they had the first two laws: Jus Civile adopted by and for the civilians of the society for daily activities, differed for each
• Jus Gentium was common throughout Rome, expected to run parallel with Jus Civile but those were found to be found unalike
• Jus Natural, developed from nature and the universe.

Indian Theory:

• Principle of Dharma, varies in India. Common principles in Literature were destroyed

Medieval Theory:

• Power went from the king to the Church. The king used the force of power and the church got support.
• People could accept rather than remove kings.
• St Thomas Acquinas, where Laws of God, Natural Law(human reason), Law of the Scripture and Divine Law (lip Bible) and Human Laws.(made by King)

Laws

• Natural Law intertwined with the Law of scriptures. Religion helps find reason but isn't the scripture.
• Human Beings find divine law or Church to be its final interpretation.

Renaissance Theory:

• Shattered established moral principles due to trade development and wanted more protection with kings.
• Kings can't protect everyone, the natural law comes where Kings had more power then Churches.
• It becomes a Social contract, use power less but have rules in state of nature
• jurists make Pacta Uninois agreement where people should not be put to harm but respect all forms of life and freedom. This is followed by Pactum submissionis for more authority, property and sovereignty

Grotius:

• A sovereign duty is to protect the powerless because the power of Kings, who are bonded by the natural and reasonable law. People are subjected as they reject the sovereignity of the law set.

Hobbes:

• The philosophy is based around people that become selfish by nature but must keep one another from bringing disaster or war. The aim of the protection and society, and a king is bounded by law.

Locke:

• State of nature where everyone is happy without obligations is a golden age. In order to protect its property they need social contracts, and kings must protect it. If they fail, they shouldn't be followed.

Rousseau:

• A power to the community, with a general life where equality and freedom are. With help from some communities, the aim is the respect property.

GENERAL WILL:

• PEOPLE and STATE are regulated by laws or communities to people. Doing so, law must be respected. The State agency must be bounded by principles and validated. A general theory
• The earliest phases of history show that theorists lost themselves because problems should have a practical but changeable nature.
• Law and nature can't work, hence law must be separated by theorists to resolve current wars

Stammler:

• Law can not achieve just law, but just law must harbor harmony as needed to the community. A comman dof sovveign. One must maintain harmony as needed. 2 main points
• Act must be not be against a will
• Demand must not be unreasonable

2 principles of Participation

• Law must include all sides
• Law must respect freedom

HLA HART:

• he is against the naturalists and sovereign, but includes it during the morality
• morality is a must

HLAHART's 2 angles of morality:

• basic needs which are the aim of survival by nature
• Limited duty

4 Principles

• Limit to the amount of law, which should not be forced
• It is ok to be different, everyone must act differently
• Resources in nature must be distributed
• one must study each of the cases

Fuller:

• Regulation and stability comes from both behaviour and enterprise through conduct to build. 8 important points
• A lot is expected and is possible when needed to resolve issues
• must to objective when writing

Procedural vs Prospective

• Be objective to all, and equal to future
• Promulgation Law
• intelligibility between people
• It cant be constradictive, but should have harmony at the same time

Theory of justice :

• Absolute and determined which is what fairness, correctness and righeous. One must read through to determine it's value, as each test can be inequitable.