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Jurisprudence ch.01 introduction

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Jurisprudence ch.01 introduction

  1. 1. 01 Introduction to Jurisprudence
  2. 2. Prudentia 1 - 3 Literal Meaning: Juris Jurisprudence Derived from Two Latin Words • Law • Wisdom, • Knowledge • Philosophy , OR • Science What is Jurisprudence? An Introduction
  3. 3. Jurisprudence 1 - 4 Literal Meaning: means What is Jurisprudence? An Introduction Hence Wisdom of Law Knowledge of Law Philosophy of Law O R O R O R Science of Law
  4. 4. 5 What is Jurisprudence? An Introduction Key Terms in Understanding Definition of Jurisprudence:
  5. 5. 1 - 6 Science Knowledge gained through a systematic study, is called science Systematic Study means, a Study consisted of; Deduction Experiment Hypothesis Observation What is Jurisprudence An Introduction
  6. 6. 1 - 7 Philosophy  Derived from two Latin words P H I L O S O P H Y Philo Means „love‟ Sophy Means Wisdom or knowledge Knowledge gained through the application of mind Examining the basic concepts such as „truth‟, „existence‟ „soul‟, „hereinafter life‟ etc. What is Jurisprudence? An Introduction
  7. 7. 1 - 8 Law  A set of rules and regulations that regulates human behaviour in societies  It determines human conduct and regulates it.  The subject-matter of Jurisprudence is Law  There are different types of Law and the jurists are debating as to which type is the true subject-matter of Jurisprudence What is Jurisprudence? An Introduction
  8. 8. 1 - 9 What is Jurisprudence? An Introduction  This Typology of Law is based on the fact that from where Law comes or what is the ultimate source of its recognition (nature).  Hence, it is a broad typology of law TYPOLOGY OF LAW
  9. 9. 1 - 10 Natural Law . Norms . Reason based God-made Law Types of Law Man-made Law Physical Law . Chemistry . Physics etc Divine Law . Religious Law . Scriptures Positive Law Moral/Ethical Law Abstract Law . Fundamental Principles . General Notions Law as it OUGHT to be Philosophical Law Law as it is Analytical Law Law of Nature Concrete Law . Real Law/ Applicable Law . Statutes, Acts, Decisions What is Jurisprudence? An Introduction
  10. 10. 11 Definition of Jurisprudence  There is no uniform definition of Jurisprudence Reason: The subject-matter of Jurisprudence is Law But there is no uniform definition of law. What is Jurisprudence? An Introduction
  11. 11. 1 - 12 Definition By Eminent Jurists: Ulpian: Classical Concept “The observation of things human and divine, the knowledge of just and unjust.” A celebrated Roman Jurist Criticism: Being meta-physical in nature its value cannot be evaluated. The first formal definition of jurisprudence. In the contemporaneous socio-political setups he had given the best definition. What is Jurisprudence? An Introduction (170 AD - 228 AD)
  12. 12. 1 - 13 John Austin: “Jurisprudence is the Philosophy of Positive Law.” Criticism: The terms „Philosophy‟ and „Positive Law‟ are misleading He lived in circumstances when Europe was witnessing changes especially in Politics. He separated the meta-physical controversy from legal enterprise Definition By Eminent Jurists: Classical Concept What is Jurisprudence? An Introduction (1790 AD - 1859 AD)
  13. 13. 1 - 14 Thomas Erskine Holland: “Jurisprudence is the formal science of Positive Law.” The criticism on the term „Philosophy‟ of Austin definition led Holland to present this definition It substituted „Philosophy‟ in Austin definition by „Formal Science‟. Definition By Eminent Jurists: Classical Concept What is Jurisprudence? An Introduction „Formal‟ means fundamental legal principles (1835 AD - 1926 AD)
  14. 14. 1 - 15 Salmond: “The science of the first principles of civil law.” Science: A systematic intellectual inquiry Civil law: The whole corpus of law applicable in a State By term „Law‟ Salmond means „Positive Law‟ „First Principles‟: Fundamental principles Definition By Eminent Jurists: Classical Concept What is Jurisprudence? An Introduction Law: As Administered by Courts (1862 AD - 1924 AD)
  15. 15. 1 - 16 Keeton: “Jurisprudence is the study of the systematic arrangement of the general principles of law.” Definition By Eminent Jurists: Classical Concept What is Jurisprudence? An Introduction
  16. 16. 1 - 17 Gray: “The science of law, the statement and systematic arrangement of the rules followed by the Courts and the principles involved in those rules.” Definition By Eminent Jurists: Classical Concept What is Jurisprudence? An Introduction
  17. 17. 1 - 18 Dean Roscoe pound “The science of social engineering” Definition By Eminent Jurists: Modern Conception What is Jurisprudence? An Introduction An idea of giving the most complete security and effect to the whole scheme of human demands and desire which are pressing for recognition, with the least sacrifice, least friction and least waste.
  18. 18. 1 - 19 Classification of Jurisprudence What is Jurisprudence? An Introduction  Jurisprudence was classified by: Jeremy Bentham John Austin Salmond
  19. 19. 1 - 20 What is Jurisprudence? An Introduction Classification of Jurisprudence Bentham Censorial Jurisprudence Expositorial Jurisprudence Austin General Jurisprudence Particular Jurisprudence Salmond Analytical Jurisprudence Historical Jurisprudence Ethical JurisprudencePhilosophical
  20. 20. 1 - 21 What is Jurisprudence? An Introduction Classification of Jurisprudence Censorial Jurisprudence Expositorial Jurisprudence Study of Law „as it ought to be‟ Study of Law „as it is‟ Bentham’s Classification
  21. 21. 1 - 22 What is Jurisprudence? An Introduction Classification of Jurisprudence General Jurisprudence Particular Jurisprudence Study of Ethical Law (Law „as it ought to be) The study of Positive Law (Law „as it is) Austin’s Classification
  22. 22. 1 - 23 What is Jurisprudence? An Introduction Classification of Jurisprudence Analytical Jurisprudence Study of Positive Law (Law „as it is) The study of Ethical Law (Law „as it ought to be) Salmond Classification Historical Jurisprudence Philosophical Jurisprudence The study of Historical Development of Law
  23. 23. 1 - 24 Scope of Jurisprudence  According to the most celebrated view: What is Jurisprudence? An Introduction Jurisprudence studies Law Study is analytical/scientific Law is man-made/positive It is not discussing the content but the essence of law But recently again the jurists like Roscoe Pound and Julius Stone seem to enhance the scope of Jurisprudence
  24. 24. 1 - 25 Significance or Utility of Jurisprudence What is Jurisprudence? An Introduction  Being an abstract and theoretical science, jurisprudence has a little practical value Practical value: Master of a Legal System The eye of Law The key to legal understanding Sharpens argumentative capacity Educational value
  25. 25. 1 - 26 What is Jurisprudence? An Introduction Psychology Economics Politics Social Science History EthicsSociology Jurisprudence Relation of Jurisprudence with other Social Science
  26. 26. 1 - 27 What is Jurisprudence? An Introduction Relation of Jurisprudence with other Social Science Jurisprudence – Studies Law – Law is the set of rules regulating the conduct of human beings living in a society Politics – Study of the Government – Government means the institution to administer the affairs of the society Both are contemplating on the society Relation
  27. 27. 1 - 28 What is Jurisprudence? An Introduction Relation of Jurisprudence with other Social Science Jurisprudence – Law is regulating the external conduct of human beings Psychology – Study of internal conduct of human beings – In other words it analyses the mental state of a person at a given movement Relation Both are contemplating the mental state of human beings– But external conduct is depending on internal conduct (e.g. intention, malice etc.)
  28. 28. 1 - 29 What is Jurisprudence? An Introduction Relation of Jurisprudence with other Social Science Jurisprudence – Studies Law – Deals with framed rules Economics – Study of wealth – Concentration of wealth in a society brings prosperity for its members Relation Both are contemplating on the social and economic well-being of people – All legal concepts are social oriented – Not possible without having sound legal system
  29. 29. 1 - 30 What is Jurisprudence? An Introduction Relation of Jurisprudence with other Social Science Jurisprudence – Studies Law – Legal Concepts has arisen in a particular period and then developed through ages History – Study of the past events – Provides historical background behind legal concepts Relation Both contemplates history from different perspectives Historical Jurisprudence
  30. 30. 1 - 31 What is Jurisprudence? An Introduction Relation of Jurisprudence with other Social Science Jurisprudence – Studies Law – All legal concepts are social oriented Sociology – Study of society – Looks into the social significance of law in society Relation Both contemplates on social structure from different angles Sociological Jurisprudence
  31. 31. 1 - 32 What is Jurisprudence? An Introduction Relation of Jurisprudence with other Social Science Jurisprudence – Studies Law – Law aims at upgrading the social conditions Social Work – The study as to welfare of the society – Through counseling services, health clinics, recreation halls etc. Relation Both contemplates on up gradation of social conditions of the community
  32. 32. 1 - 33 What is Jurisprudence? An Introduction Relation of Jurisprudence with other Social Science Jurisprudence – Studies Law – Law aims at the positive behaviour of human beings Ethics – Science of human conduct – What should be human behaviour and an ideal human behaviour Relation Both contemplates on human conduct from different angles Ethical Jurisprudence– „Is‟ conduct – „Ought‟ conduct
  33. 33. End of chapter # 01

Notas

  • Notes: Life:Birth: 170 A.D. ; Death: 228 A.D.Nationality: Roman JuristComplete Name: GnaeusDomitiusAnniusUlpianus, anglicized as Ulpian Biography:His date of birth and death are not confirmed.Period of Literary works: Between 211 A.D. 222 A.D.He became a member of the Council of Septimius Severus.Elagabalus banished him But when Alexander succeeded to the thrown (222 A.D.) he was reinstated in his postSubsequently he became the Chief Advisor of the EmperorHe curtailed the privileges granted to Praetorian Guard, which provoked them against him and they became his enemiesHe was murdered in the palace during a riot between the soldiers and mob.Works:Ad Sabinum: A commentary on Jus Civile (in over 50 books)Ad Edictum: A commentary on Edict (Statute, act etc) (in 83 books)Opinions, responses and other issuesHis Quotes: Princepslegibussolutusest: "The sovereing is not bound by the laws.“Quod principiplacuitlegishabetvigorem: "What pleases the prince has the force of law.“Iustitiaestconstans et perpetuavoluntasiussuumcuiquetribuendi:"Justice is the constant and perpetual will to render to every man his due."Honestevivere, alterum non laedere, suumcuiquetribuere: "To live honorably, to harm no one, to give to each his own.""The strong will resist and the weak will say anything to end the pain." [In reference to torture]
  • Notes:John Austin:Birth: 3 March 1790; Death: 1 December, 1859British JuristInfluenced by Jeremy Bentham; Influenced: Joseph Raz, H.L.A. HartMarried Sara Taylor – who became an authorBrief Biography: Served the British Army in Sicily and Malta but left the army and start studying law. He joined Bar in 1818 but soon after became professor in jurisprudence (1826-1832) in University of London (now University College of London). Then he served on several Royal Commissions. 6. Important Works:“Province of Jurisprudence Determined”“Lectures on Jurisprudence”Analysis:Influenced by Jeremy Bentham’s Utilitarian Theory and Positivist Theory.Hence was naturally a positivistHe practically witnessed the harmful effects of WarAs he was an armed commissioned officer, hence his theory of Command. According to him “law is the command of uncommanded commander – the sovereign – backed by a threat – the sanction.”
  • Notes: Life: Birth: July 17, 1835 (Brighton); Death: May 24, 1926 (Oxford)Nationality: British JuristBiography: Schooling: Brighton CollegeHigher Studies in Law: OxfordJoined Bar in 18631874 – succeeded William Blackstone as Vinerian ReaderHe also became fellow of the British AcademyWorks:Elements of Jurisprudence
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