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Study Material

JURISPRUDENCE

1. LEGAL SYSTEMS

Legal system refers to a procedure or process for interpreting and enforcing the law. It elaborates the rights and responsibilities in a variety of ways. Three major legal systems of the world consist of civil law, common law and religious law.

Jury system is a legal system for determining the facts at issue in a law suit. Tax system is a legal system for assessing and collecting taxes. Electoral system is a legal system for making democratic choices.

Legal systems vary from country to country, and sometimes within a single country. Although they develop in different ways, legal systems also have some similarities based on historically accepted justice ideals. Legal systems do fall into groups or patterns with some similar features within each group. Among the main groups that you might encounter are:

1) Common Law;

2) Civil Law;

3) Theocratic or Religious Law;

4) Customary Law; and

5) Mixed Law.

Many countries employ more than one of these systems at the same time to create a hybrid or mixed system. In some places, the current security situation can also impact the way that legal systems work.



1) Common Law Legal Systems

General principles:

• The laws governing a case are based on both legal precedents, created by judges, and statutory laws, created by legislatures;

• Usually an adversarial system, where the judge acts as an impartial referee between opposing parties to a case;

• A jury may determine the facts, and a judge will decide the law to be applied;

• There is an active role for prosecutors and defense attorneys;

• Victims have a role as witnesses and may have rights as a victim to receive information and limited participation – however, victims are not a party in criminal cases;

• The U.S. and the U.K. are examples of common law systems.

Common law was originally developed by judges through case-by-case court decisions, rather than through legislation enacted by a legislature. In this system, much of the law is made by judges’ decisions, called precedent. This means that if a similar case has been resolved by a court in the past, a court is bound to follow the reasoning used in the prior decision. While judges are very important in common law systems, legislatures still have a part to play. Common law systems also rely on statutes that are passed by the legislature or a parliament, and judges have the role of interpreting how the legislature’s laws are applied in individual cases. In common law legal systems, legal proceedings are mostly adversarial, rather than inquisitorial. This means that for the most part, two opposing parties (adversaries) appear before a judge who moderates. Defendants are entitled to be present and to be represented by a lawyer. The attorneys on both sides generally have an active role in representing their clients throughout the case and in presenting evidence and arguments in court. A jury of people without legal training can decide the facts of the case, and if there is a conviction, then a judge determines the appropriate sentence based on the jury’s verdict.

2) Civil Law Legal Systems

General principles:

· Most of the law is statutory law created by legislatures and not by judges following precedent;

· Usually an inquisitorial system, where an investigating judge is actively involved in investigating the facts of a case;

· Juries are rarely used; a judge or panel of judges will decide the facts and the law to be applied;

· Prosecutors and defense attorneys may play a more limited role;

· Victims may be parties and have rights regarding their involvement, which may include having their own attorneys and filing the initial charges;

· In many civil law systems, victims may bring civil claims, e.g., for monetary damages, in the context of a criminal prosecution.

· Many European countries, including France and Germany, and a number of North, Central and South American countries, like Mexico and Brazil, are examples of civil law systems.

Civil law systems place greater emphasis on legal codes crafted by the legislature. Civil law statutes tend to be more detailed than statutes under common law systems, and contain continuously updated legal codes that specify all matters capable of being brought before a court, the procedure to be followed, and the appropriate punishment. Civil law systems rely less on judges and more on academic legal experts to make legal interpretations. In a civil law system, the judge’s role is to establish the facts of the case and to analyze and apply the legislature’s written laws. Because of this, legislators and legal scholars who draft and interpret the codes are important in civil law legal systems. The role of judges is different in civil law systems compared to common law systems. There are two types of judges in a civil law system: an investigating judge (or magistrate) and trial or sitting judges. Civil law systems are based on the belief that justice is best served when a judge is an active participant in investigating the facts of the case, thus the investigating judge or magistrate will typically lead the investigation. Unlike common law systems, which focus on the trial to determine the facts, civil law legal systems mostly focus on pre-trial investigation and hearings to establish the facts. The actual trials can be relatively brief and informal because the trial judge will review the case file developed by an investigating judge. During trial, witnesses are generally allowed to give additional kinds of evidence and the defendant often gives a statement. Cross examination is rare.

3) Theocratic Law Legal System

This system is based on religious teachings, as they are enshrined in the religious scriptures. Islamic law, Shariat, is the most widely practiced religious legal system in today’s world. It is based on morality rather than commercial requirement of human behaviour in all aspects of a person’s self and social life. Islamic law is based on the Holy book of Islam, the Quran and on interpretation of the practices and sayings of Prophet Mohammad.

It also follows the writings of scholars and teachers of Islamic scholarship, who derived rules by analogy from the principles established in the holy Quran. The basic foundations of Islamic law remain unaltered even after many centuries because they have been derived from the holy book and are acceptable to all devout Muslims.

Even though Islamic jurists and scholars constantly debate the application of Islamic law to the modern world, their debates are only scholastic deliberations. However, to keep pace with the advancement of life, many Muslim countries have a blend of Common law and Civil law system along with the Shariat law.

4) Customary Law Legal

They are based on patterns of behavior (or customs) that have come to be accepted as legal requirements or rules of conduct within a particular country. The laws of customary legal systems are usually unwritten and are often dispensed by elders, passed down through generations. As such, customary law research depends greatly on the use of secondary sources. Of ten times, customary law practices can be found in mixed legal system jurisdictions, where they’ve combined with civil or common law.

Customary law is rooted in the customs of a community. Common attributes of customary legal systems are that customs may be unwritten, customs govern social relations, and customs are widely accepted by the community’s members. Customary law systems are found in Africa, the Pacific Islands, and elsewhere.

5) Mixed Law Legal Systems

A mixed legal system is one in which the law in force is derived from more than one legal tradition or legal family. For example, in the Quebec legal system, the basic private law is derived partly from the civil law tradition and partly from the common law tradition. Another example is the Egyptian legal system, in which the basic private law is derived partly from the civil law tradition and partly from Moslem or other religiously-based legal traditions.



2. JURISPRUDENCE DEFINED

The word jurisprudence derives from the Latin term “juris prudentia”, which means “the study, knowledge, philosophy or science of law.” Legal philosophy has many aspects, but four of them are the most common:

  1. The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law. Law school textbooks and legal encyclopedias represent this type of scholarship.
  2. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences.
  3. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept.
  4. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as “What is law?” and “How do judges (properly) decide cases?”

1) Definition By Famous Jurists

Bentham

He is known as Father of Jurisprudence and was the first one to analyze what is law. He divided his study into two parts:

  1. Examination of Law ‘as it is’ i.e. Expositorial Approach– Command of Sovereign.
  2. Examination of Law ‘as it ought to be’ i.e. Censorial Approach– Morality of Law.

Ulpian

The Roman Jurist, Ulpian, defined Jurisprudence as “The observation of things human and dive, the knowledge of just and unjust.”

Salmond

Salmond defines Jurisprudence as the “Science of the first principles of civil law”. In Salmond’s point of view, Jurisprudence thus deals with civil law or the law of the state.

Austin

Austin defines Jurisprudence as the Philosophy of Positive Law.

The term ‘positive law’ connotes ‘jus positivum’ which means law lay down by a political superior for commanding obedience from his subjects.

Roscoe Pound

He described Jurisprudence as “the science of law using the term ‘law’ in the juridical senseas denoting the body of principles recognized or enforced by public and regular tribunals in the Administration of Justice.”

Holland

Holland defines Jurisprudence as “The Formal Science of Positive Law”. He says “Jurisprudence deals with the human relations which are governed by rules of law rather than with the material rules themselves.”



3. BENEFITS OF JURISPRUDENCE

Jurisprudence is basically a theoretical subject but it also has a practical and educational value. The practical value or purposes of jurisprudence has been enumerated as under.

REMOVE THE COMPLEXITIES OF LAW:

One of the tasks of jurisprudence is to construct concepts and make law more manageable and rational.

ANSWER THE NEW PROBLEMS:

Jurisprudence can teach people to look around them and realize that answers to legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.

GRAMMER OF LAW:

Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g. negligence, liability etc.

TRAINING OF MIND:

Jurisprudence trains the mind to solve the difficult legal provisions in legal way.

GRASP ON THE SUBJECT:

It helps in knowing and grasping the language, grammar, the basics of treatment and assumption upon which subject rests.

USEFUL IN ART OF PLEADING AND LEGISLATION:

It helps legislators and the lawyers the proper use of legal terminology. It relieves them of the botheration, creation of defining again and again certain expressions e.g. right, duty etc.

TO INTERPRET LAW:

It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation.

TO STUDY FOREIGN LAW:

It enables a lawyer to study foreign law because the fundamental principles are generally common to all systems of law.



4. SCHOOLS OF JURISPRUDENCE

There has been a sharp cleavage between different schools of jurisprudence or the science of law. Each school looks at it from its own point of view and lays emphasis upon some sources of law and its enforcement.

The different schools of jurisprudence may be summarised as below:

1. Natural Law or Philosophical School;

2. Analytical School of Analytical Positivism;

3. Historical School:

(a) Anthropological Approach; and

(b) Economic Approach;

4. Sociological School;

5. Realist School:

(a) American Realists; and

(b) Scandinavian Realists; and

6. Comparative School

1) Natural Law or Philosophical School

The philosophical or natural or ethical school concerns itself chiefly with the relation of law to certain ideals which law is meant to achieve. It seeks to investigate the purpose for which a particular law has been enacted. It is not concerned with its historical or intellectual content.The notable jurists of this school are Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). These jurists regard law neither as the arbitrary command of a ruler nor as the creation of historical necessity. To them, the law is the product of human reason and its purpose is to elevate and ennoble human personality. Grotius used natural law as the foundation of a new international law to regulate the affairs and warfare of the rising national states.

2) Analytical School or Analytical Positivism

The chief exponents of the Analytical school of Jurisprudence were Bentham and Austin. It is also called the positivist school of jurisprudence because it considers law as it is and not as it ought to be. In fact, it was Sir Henry Maine who coined the word ‘analytical’. This school is also called imperative school because it treats law as a command of the sovereign. Bentham introduced legal positivism and treated legal theory as a science of investigation which should be approached through the scientific method of experimenting and reasoning.

John Austin is the father of Analytical School. Austin said that only positive law is the subject matter of jurisprudence. He separated both the morals and the religion from the definition of the law. Prior to Austin, the law was based upon customs and morals but Austin reduced all things from the definition of law.

This viewpoint is based on two principles.

  1. Law is the command of the sovereign.
  2. Force is the essence of law. (i.e. what cannot be enforced is not a law)

This theory was bitterly criticized in the 19th century by the Pluralists and the sociological jurists. Despite its shortcoming, this theory has explained a lot about the law. The analytical school of jurisprudence provides that law must be made by the state in the interest of general welfare. It favors codification of law and regards the law as a command with legal sanction behind it.

3) Historical School

Historical jurisprudence examines the manner or growth of legal system, and traces the growth of law from origin with a view to finding out the origin of our legal concepts and the general course of their evolution. It deals with the general princi­ples governing the origin and development of law as also the origin and development of legal conceptions and principles found in the philosophy If law.

According to this theory, the law is the product of the forces and influence of the past. Law is based on the general consciousness of people. The consciousness started from the very beginning of the society. There was no person like sovereign for the creation of law. Savigny, Sir Henry Maine and Edmund Burke are the renowned jurists of this school.

is regarded as the founder of the historical school. He has given the Volksgeist theory. According to this theory, the law is based upon the general will or free will of common people. He says that law grows with the growth of Nations increases with it and dies with the dissolution of the nations. In this way law is a national character. The consciousness of people.

This theory has some defects. Being conservative in its outlook it relies on past; however, its merit is that it shows that law must change with the changes in society. It clearly believes that if a law is not according to the will of the people, it will never be obeyed. In this way, it supplemented the analytical school of law.

4) Sociological School

According to sociological school, the common field of study of the jurist is the effect of law and society on each other. This approach takes law as an instrument of social prog­ress. August Comte pleaded for the scientific method to the science of sociology.

The sociological school of jurisprudence emerged as the synthesis of various juristic thoughts. The exponents of this school treat law as a social phenomenon. According to them, the law is a social function, an expression of human society concerning the external relations of its individual members. Montesquieu, Auguste Comte, Herbert Spencer, Duguit and Rosco Pound are the notable jurists of this school.

August Comte (1798-1881) first invented the term ‘sociology’ and his method is termed as ‘scientific positivism’. He pleaded for the application of scientific method to the science of sociology. Come subsequently digressed himself from his strict scientific approach and laid down that mankind inevitably passed through three stages, viz., the theological, the metaphysical and the scientific or positive. He formulated an authoritarian conception of the character of ‘positive society’.

Herbert Spencer (1820-1903) propounded a scientific exposition of the organic theory of society. According to him the slate existed only to further individual freedom, while Comte favored highly collectivist programme. The laissez faire, an economic theory and a philosophy of action in social affairs, derived strength from Spencer’s philosophy of applying the organic evolutionary idea in relation to it.

Inhering (1818-1892) observed, “Everybody exists for the world” and “the world exists for everybody.” Weber (1864-1920) by his sociological studies of legal institu­tions as produced by economic and social conditions-also influenced legal thought.

In their opinion, the general interest includes protection of the social order against individuals who are beyond the pale of society. This protection may be affected by means of a part of the criminal law, police law, and procedural law.

In reality all of this is a matter of the distribution of power. A decision rendered for the pro­tection of general interest may be said to be a decision based solely upon, consideration of experience. Whether there is no doubt as to where the power plays in a state or where the voice of popular con­sciousness speaks no uncertain tones the task of jurist is a merely technical one.

5) Realist School

The realist movement, which prefers not to be called a school, is a branch of sociological school. Its studies law as it is in its actual working and effects. It has been summed up by its exponent, Professor K. Llewellyn as ‘ferment’.

The prominent jurists of this thought are Holmes, Gray and Jerome Frank.

Allen observes that ‘fermentation is necessary in legal chemistry for without it the liquor of” the law becomes sour and stale. Grown out of its youthful exuber­ances and disabused of its hasty conclusion that law is to be found only in facts and deeds, this movement brings to modern jurisprudence a spirit of vigilance and exploration which is capable in the right hands of contributing substantially to the understanding of law not as a bloodless abstraction but as a living force in society.

(a) American Realism:

Allen observes that the main trend of the American realist movement has been to call in question legal certainty to attack what he called conceptualism, and to emphasize those many influences which produce accidents of litigation through the variable elements of forensic method and especially of judicial technique. Mr. Justice Holmes played an important role in bringing about a changed attitude to law. “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

The basic approach of the American Realist Movement in Law was more philosophical and abstract as compared to the basic tenets of realism.

(b) The Scandinavian Realism:

The Scandinavian jurists as­sociated with the realist movement have put forth a philosophical justification of their positivist outlook while eliminating all metaphys­ics. They are in line with the empirical traditions in English philosophy and jurisprudence and having affinities to the sociological approach which has gained influence in England.

Hager storm, the spiritual fa­ther of the movement, rejected the idea of objective value and placed for an examination of the actual use of the legal concepts and an analysis of the mental attitude involved in the conception of law in present times.

It is impossible to maintain that law in a realistic sense is guar­anteed or protected by force. The real situation is that law-the body of rules summed up as law-consists chiefly of rules about force, rules, which contain patterns of conduct for the exercise of force.

6) Comparative School

“Comparative Jurisprudence”, ob­serves Professor Kelton, considers the development of two or more systems of law. The term has more than one meaning, however. The science may have for its object the discovery of these legal rules which are common to the legal systems studied; or again, it may discuss those relations of individuals which have legal consequences, together with an inquiry how those relations and expression in the legal systems considered.

More frequently, Comparative Jurisprudence selects vari­ous legal topics, and explains fully their method of treatment in two or more systems of law, seeking thereby to draw conclusions respecting the merits of the two methods of treatment adopted in the legal sys­tems.”

According to Guttridge, the use of the phrase “Comparative Jurisprudence” is an expression of the belief that the main purpose of the comparative methods of study is to aid the historical or the analyt­ical jurist in tracing the origin and development of concepts common to all systems of law.

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