Derived from latin word: Jurisprudentia – made of two words – juris -> legal and prudentia -> knowledge
A science which gives us knowledge about law
There are 4 divisions of Jurisprudence. What is law is explained throw below different:
1. Analytical: john austin (Father/Founder of english jurisprudence) and jeremy bentham. Both are called founder of analytical. It states that law originates from state. Also called english school (London mein bna tha) /imperative/Teleological/Positive/ school (Backed by saction/ urgent/need to follow)/austanian school. It studies law in its present state. (as it exist and doesnt think about future). Favours codification of law.
Principle of utility (Pleasure and Pain) – Given by bentham (Legal positivism) – To test every law, check if that law gives Greatest happiness of greater number of people. Utilitarian Calculus is used to caLCULATE PLEASURE AND PAIN. bentham was supporter of Laissez Faire (Let the men free).Name of his book is “Limits of Jurisprudence Defined”. Defined law as “assemblage of sign”. He defined jurisprudence as expostiory jurisprudence (What the law is) and censorial jurisprudence (What the law ought to be). His legal philosophy is called Utilitarian Individualism. (Please and pain –> Good and evil)
John austin (Command theory) lecture was published by name of ‘province of jurisprudence determined’. he meant laws are rules/guidelines (by intelligent being having more power over him) Law is command by sovereign backed by sanction according to him. He divided law as “law properly so called” and “law improperly so called”. Law by politically superior to politically inferior is positive law. Law by superior to inferior but superiors are not political superiors is positive morality.
HLA Hart: Book is Concept of Law. Defined law as rules which are of broad applicationn and non optional in character. Union of primary and secondary rule.
Hans Kelsen: (Pure theory of law – talks about “what law is” not “what law ought to be”): A theory excluding everything which is not law which is free from social, historical and political infuences. Law as informative science. Seign and Sollen Norms. Also known for grundnorm (Starting point in legal system)
Holland
Salmond – law originate from court
2. Sociological – Sociology means Understanding human society and social behaviour. Consider law as scoial phenomena as law has impact on society.
Ehlrich: Law main source is society(Man in association). They have term called ‘Living Law’
Roscoe Pound: Father of sociological school. Gave term “Social Engineering”. Maximum Happiness minimum friction. 5 jural postulate. Criminal law, Law of patent, Law of contracts, Law of torts, Strict Liability
August Compte: Founder of sociological school. He gave ‘Organic Theory’.
Duguit: influenced by Comte and durkhiem. “Social Solidarity” – Ek doosre pe depend krna. State is also under duty to promote social solidarity
Rudolf Van Ihering: Father of modern sociological jurispendence. Laws objective is to protect social interest. If there is conflict b/w individual and social, state should protect social interest first.
3. Historical (Mainly developed in germany): law is found and not made. Reflection of spirit of people. Laws are not universal in nature just like language. Law has direct relation with society. Society. custom, people and past all together form a law. As society need changes, law changes.
Montesquieu : First jurist of historical school. In his book ‘spirit of laws’, he mentioned that law need to take care of changing needs of society.
Savigny(Founder/Father): Law is like language. ANother jurist. He coincised everything and made essay called ‘vom beruf’. He is called ‘roman law expert’ .his theory is ‘volkgeist theory'(General will of people). Law has national character.
Henry Maine: Gave concept of ‘Legal Fiction’. He gave theory of ‘Status to contract’. logo ke status wale law na bne instead contract based ho.
Puchta: When General will vs self interest, then only state intervene to regulate.
Prof Allen: revolt of fact against fancy
Burke: Law is product of gradual and organic process
4. Philosophical: (Natural law school): Law = Reason (Just, fair and reasonable). this school solves problem of slavery. law should be based on ethical values.
Hugo Grotius (Father of international law) is father of philosophical school of jurisprudence. Book is “on the law of war and peace”
Socrates is father of philosiphpy.
Saint thomas acquinas: Religion has major role in law
John Locke: His book : “Two treatise of government”. He gave “Social Contract” theory (Developed by hobs and elaborated by russo and john). In this, People have rights and they transfer this right to government. government will provide protection in response.If govt dont provide protection, then person can overthrow government
Immanuel Kant: “We the people” – united will of the people. Law harmonise Individual and general will. Maxim of your action can be made maxim of general action. His concept is “Categorical Imperative”. Book Name: “Critic of Pure reason”
Fichte: Freedom is a mutual term. Individual and state (Duties) mutual relation.
Hegel: Most prominent thinker. Human’s struggle is for freedom. It is evolutionary dynamic process. IDea of evolution since freedom is synamic and evolutionary process. So law is evolutionary and dynamic.
John Rawls: Book: Theory of justice, Justice as fairness
Jean Jacques rousseau
5. Realist: Lot of human factors go in which may affect judges and lawyers. Law in reality/action. it was developed in america and europe’s scandanavia. “Doctrine of precedent”: Whatever is decided by supreme court need to be followed by lower courts (Article 141)
American Realism
John Gray: Judges decision making gets influenced by political, economic and personal qualities.
Holmes: Gave term “Bad Men”. Law = Experience + Logic
Jerome Frank: Legal rules applied on case facts and give legal decision. Certainty of law is legal myth. Law is a constructive work at the hands of lawyers and judges.
LLewellyn: Law is institution. Means to social end. Law should be in flux/sync with society