Paper: Jurisprudence

Submitted by: Shakeel Ahmad

Submitted to: Mr. Hassan Khalil
Class No: 0275
Department: Law
Semester: 5th

Q1.Explain that how analytical jurisprudence deals with the study

of law without dealing with ethical aspect. Also explain that how
moral standards of the society play a role in shaping the law in a
given society.
Definition:
Analytical jurisprudence is the general name for the approach to Jurisprudence which
concern itself mainly with classification of legal principles and rules and with analysis of
the concepts, relationships words and ideas used in legal system such as Person, Obligation,
Right, Duty, Act, etc.
Analytical jurisprudence is a philosophical approach to law that draws on the resources of
modern analytical philosophy to try to understand its nature. Since the boundaries of
analytical philosophy are somewhat vague, it is difficult to say how far it extends. H. L. A.
Hart was probably the most influential writer in the modern school of analytical
jurisprudence,[1] though its history goes back at least to Jeremy Bentham.

Analytical jurisprudence is not to be mistaken for legal formalism (the idea that legal
reasoning is or can be modelled as a mechanical, algorithmic process). Indeed, it was the
analytical jurists who first pointed out that legal formalism is fundamentally mistaken as a
theory of law.

Analytic, or 'clarificatory' jurisprudence uses a neutral point of view and descriptive

language when referring to the aspects of legal systems. This was a philosophical
development that rejected natural law's fusing of what law is and what it ought to be. David
Hume famously argued in A Treatise of Human Nature that people invariably slip between
describing that the world is a certain way to saying therefore we ought to conclude on a
particular course of action. But as a matter of pure logic, one cannot conclude that we ought
to do something merely because something is the case. So analysing and clarifying the way
the world is, must be treated as a strictly separate question to normative and evaluative
ought questions.
Surely a critic might say that once we have put aside those parts of a legal system which,
because of the vagueness of legal rules, pre-sent us with penumbral problems, for the
solution of which we must have recourse to other disciplines, we are left merely with the
elements which have fixed and stable meaning. These may be learned (perhaps best in the
introductory parts of legal textbooks dealing with different branches of the law) and once
learned they present no difficulty; both for the student and the practical lawyer their use
proceeds smoothly and raises no questions. I think this attitude is at the root of Professor
Bodenheimer's objections when, after insisting that all legal concepts have a penumbra of
vagueness, he proceeds to say:"[An] explanation of concepts, unaccompanied by a thorough
consideration of the social factors which may justify an expansion, contraction or re-
formation of the concept, cannot be regarded as a great step forward. This objection
neglects two things. First, vagueness is not the only feature of legal concepts which renders
them puzzling; their departure from normal or more familiar uses of language in various
ways require attention quite apart from any fringe of vagueness by which they may also be
characterized. Secondly, there is the much more important fact that it is characteristic not
only of the use of legal concepts, but also of many concepts in other disciplines and in
ordinary life, that we may have adequate mastery of them for the purpose of their day-to-
day use; and yet they may still require elucidation; for we are puzzled when we try to
understand our own conceptual apparatus. We may know how to use these concepts, but we
cannot say how or describe how we do this in ways which are intelligible to others and
indeed to ourselves. We know, and yet do not fully understand,even quite familiar features
of legal thinking-much in the way perhaps that a man may know his way about a familiar
town by rote without being able to draw a map of it or explain to others how he finds his
way about the town. This surely is the predicament which makes the philosophical
elucidation of concepts necessary and philosophy has always found its chief stimulus in this
predicament. The crudest and simplest example of the predicament is that of a man who
says that he can recognize an elephant when he sees one but he could not define it if asked;
the most complex example perhaps of the same predicament is the capacity to use
mathematical notions in various complex ways which may co-exist with great fundamental
unclarity asto many features of mathematical concepts and their relations to other types of
concepts. This, of course, the philosophy of mathematics has done something to resolve.
Perhaps the best and most succinct expression of this need for elucidation of a concept
whose use in daily life presents no difficulty is St. Augustine's answer to the question:
In the law, similarly, we need clarification of fundamental notions or concepts which we
can master adequately for the purposes of ordinary use in addition to the definitions offered
in a textbook dealing with a substantive branch of the law. These, generally speaking,
cannot constitute an adequate substitute for a separate though connected disciplineof
analytical jurisprudence; the textbook by its form of definition is concerned to teach the use
of certain concepts to students who have no acquaintance with that use. By contrast, a
philosophical definition orexplanatory elucidation is designed not to teach the use to those
who are ignorant of it, but to explain features which are still puzzling to those who have
mastered this use.If again I may use a very simple example to bring home my
point,consider how little success has attended even the explanations of anotion very
fundamental in law, that of an obligation. Austin defined this as the "chance or likelihood"
that one who had been commanded to do or to abstain from doing something would suffer
some evil in the event of disobedience.' Of course this definition is linked to the Austinian
definition of law in terms of a command, and is unsatisfactory on this score alone. Yet I
know of no satisfactory re-definition of this notion in terms more consistent with later
insights that the notion of a rule or "norm" is more suited to the analysis of law than the
notion of a command.
Austin's analysis is essentially in terms of prediction: the chance or likelihood of suffering a
sanction. This really was not queried by jurists of the "realist" school, who of course make
great use of the notion of prediction and, no doubt because of their inherent "rule
scepticism," scarcely attended to the distinctive features of a rule (in compliance being
exacted and no fear of it. Hence, "He was obliged to" and "He had an obligation to" may
diverge in a particular case where there is nothing to fear from non-compliance. It is of
course true that in a normal legal system, where sanctions are normally exacted and likely,
such cases of divergence will be exceptional, but the distinction remains and is important
for the understanding of the notion of an obligation and of one important type of rule.
b) Is analytical jurisprudence concerned merely with words?
Perhaps it be evident from what I have already written that my answer to this question is
"No." Rather, we have in the new analytical weapons, and in the new awareness which
recent philosophy has brought of the radically different types of function which language
performs, a vehicle for better understanding the world in which andabout which we use
language of various sorts. The question "Is analysis concerned with words or with things ?"
incorporates a most misleading dichotomy. Perhaps its misleading character comes out in
the following analogy. Suppose a man to be occupied in focusing through a telescope on a
battleship lying in the harbor some distance away. A friend comes up to him and says, "Are
you concerned with the image in your glass or with the ship?" Plainly (if well advised) the
other would answer "Both. I am endeavoring to align the image in the glass with the
battleship in order to see it better." It seems to me that similarly in pursuing analytical
inquiries we seek to sharpenour awareness of what we talk about when we use our
language. There is no clarification of concepts which can fail to increase our understand-ing
of the world to which we apply them. The successful analysis ordefinition of complex or
perplexing terms or forms of expression have certainly some of the essential elements of the
discovery of fact, forin elucidating any concept we inevitably draw attention to differences
and similarities between the type of phenomenon to which we apply the concept and other
phenomena. In so doing we gain a wider and a more detailed conspectus of both words and
of things we are in effect making for ourselves a map of a wider area than that we are used
to considering apart from such analytical inquiries. I would say that the example used in the
preceding section serves at once to discriminate the concept of "being obliged to" and
"having an obligation" to do something and, on the other hand, to demarcate radically
different social situations or social behavior which need to be distinguished with precision
if we are to understand the conceptual framework of the law in which the concept of
obligation plays a prominent part.

Moral standards of the society play a role in shaping the law in a given
society:
The most important questions of analytic jurisprudence are: "What are laws?"; "What is the
law?"; "What is the relationship between law and power?"; and, "What is the relationship
between law and morality?" Legal positivism is the dominant theory, although there are a
growing number of critics, who offer their own interpretations.

Play an important role in the development of law. In the ancient society there was no
difference between law and morals. The Vedas and suteras which are the main ancient
sources of law are based upon morals. In the western society also the position was the same.
The legal system of Greek was also based upon the doctrine of natural rights, which was in
fact founded upon morals. So the Roman law also recognised the doctrine of natural law,
which was founded upon morals. In the middle period also morals were the basis of law.
In the 17th and 18th centuries natural law theories become very popular which were also
based upon morals. However in modern times it was only Austin who discarded morals
from law. He said that law is a command of sovereign. But after him there came the
Historical School that recognised morals as the part of law.

There are some who assert that even if law and morals are distinguishable it remains true
that morality is in some way an integral part of law or of legal development, that morality is
"secreted in the interstices" of the legal system, and to that extent is inseparable from it.

Thus it has been said that law in action is not a mere system of rules, but involves the use of
certain principles, such as that of the equitable and the good (aequum et bonum). By the
skilled application of these principles to legal rules the judicial process distills a moral
content out of the legal order, though it is admitted that this does not permit the rules
themselves to be rejected on the general found of their immorality.

Another approach would go much further and confer upon the legal process an inherent
power to reject immoral rules as essentially non-legal; this seems to resemble the classical
natural law mode of thought, but it is urged, the difference is that according to the present
doctrine it is a matter of the internal structure of the legal system, which treats immoral
rules as inadmissible rather than as being annulled by an external law of nature.

If value judgments such as moral factors, form an inevitable feature of the climate of legal
development, as in generally admitted, it is difficult to see the justification for this exclusive
attitude.

Value judgment which enter into law will require consideration of what would be a just rule
or decision, even though not objective in the sense of being based on absolute truth, may,
nevertheless, be relatively true, in the sense of corresponding to the existing moral
standards of the community.

Whether it is convenient or not to define law without reference to subjective factors, when
we come to observe the phenomena with which law is concerned and to analyze the
meaning and use of legal rules in relation to such phenomena, it will be found impossible to
disregard the role of value judgments in legal activity, and we cannot exercise this
functional role by stigmatizing such judgments as merely subjective or unscientific.

Ethics is also important for those citizens who do not aspire to work in law enforcement.
Successful business leaders often say that treating people morally is a very important aspect
in obtaining success. A person’s reputation is of key importance for a business leader, and if
a person’s reputation is damaged by poor ethical conduct, the business will also suffer. The
same is true in all walks of life. Where ethics are taken seriously, and people strive to make
ethical decisions and actions, personal and professional success follows.

Critics may argue that this attitude is self-serving and that some individuals act ethically
only for their own self-interest to be successful or happy. Critics would add that this is not
the right reason to be ethical, and therefore is not being truly ethical. A counter argument
may be that the action itself can be regarded as ethical, regardless of the reason for taking
the action. This perspective focuses more on the end result rather than the means to the end.

Q2. Explain that how the study of sociology can be helpful in

making change in the law for a given society. Also explain how
helpful the study of psychology, economics and politics can be for
making better laws for a society?
Introduction:
On the basis of the development of social values and common rules of behavior we may
distinguish three types in the sociological approach to law: 1) the classical sociological
approach, which is characteristic of traditional society; 2) the modern sociological
approach, which is characteristic of industrial society; 3) the post-modern sociological
approach, which is based on maximizing individual welfare. The sociological approach is
essentially practical and expresses the relationship between society a well as its individuals
and groups with law. The classical sociological approach to law emerges as the legal order
of the state is gradually replaced by the legal order based on customs.  The development of
the modern sociological approach to law can be divided into two stages: 1)    The stage of
developing a democracy, where order is established by means of laws and successive
legislation. Members of society are expected to voluntarily obey the legal order of the state.
Thus legislation is based on increasing knowledge about the reality of law. Knowledge of
“legal realism” is a stimulus for the sociology of jurisprudence and the development of the
sociology of law. 2)    The stage of using modern law as an instrument of creating the
modern state. In the process of symbiosis between democracy and modern political thought
jurisprudence has created the notion of law as an instrument of social change. This notion
has put together two variables – the growing power of the modern state and social change.
Modern law is considered only an instrument of the state’s political power and its efficiency
is determined by the concentration of political forces, independently from the support of
other systems of social regulation. Analyzing the sociological approach to law has lost its
relevance. This explains the negative consequences of society’s legal culture: 1) the
unconditional endorsing of the instrumental approach to law; 2) the weakening of the link
between society and law. The weakening of the link between society and law is particularly
hazardous because individuals’ voluntary obedience to the rule of law gives basis for the
existence of society as such.
A sociological approach to law is the attitude of society, its social groups and individuals
towards the legal status of social relations. Regulation, the social role of law, the legislature
and the judiciary. Based on the results of the study of the value orientations of the world's
population conducted by the Ingle hart group may three types of sociological approach to
law can be distinguished: 1) classical sociological approach to law, typical of traditional
society; 2) the modern approach inherent in industrial civilization to the public; 3) a
modern, or consumerist, approach, which is based on the pursuit of maximum subjective
well-being. The types of sociological approaches to law are linked by the same
the goal is to create a social order. The social order without which the emergence and
development of individuals cannot come together into a community is an attribute of every
society. In the classic in terms of it, it functions in three ways (forms) - moral, religious and
legal. In the most general sense, we understand the social order as an inevitable and
uninterrupted human creation and existing only as a work of human activity. But with does
this human creation always have a precedent, or is social order created consciously? Mr. de
Mandeville was the first to discuss the paradox in his book The Tale of Bees, that “personal
flaws” such as selfishness could bring to the whole community "Public good". He noted that
individuals who act having different motives, the amount creates a commercial society,
although none of them had such an intention. This idea that the development of human
institutions creates opportunities for individuals to provide services to each other, even if
their motives seem selfish, were later developed by the Scottish Enlightenment
philosophers. It was one of them, who emphasized that “nations accidentally
discover(stumble upon) institutions that are indeed the result of human activity but not the
result of human thought ”.Two categories of phenomena are “the result of human action that
is not human the "consequence of the idea" and the "result of the human idea" is the
difference Hayek gave him a basis for reflecting on self-creating systems and distinguishing
between two varieties of social order: a) a spontaneously formed social order (as if it were
internally without the previous purpose) and (b) man-made, established social order (as if it
were deliberately created from the outside).

JURISPRUDENCE AND PSYCHOLOGY

Jurisprudence is concerned with mans external conduct and not his thoughts and mental
processes, but penology has benefitted from the knowledge made available by
psychological researches. Psychology as a branch of knowledge is concerned with the
working of brain or mental facility. Since jurisprudence and law are necessarily concerned
with human action and it is the human mind which control human action, the inter-relation
between psychology and jurisprudence need not be over-emphasized. The psychology of
the offender is also one of the crucial factors in deciding the nature of punishment of the
convicted person. The modern reformative techniques of punishment such as probation,
parole, indeterminate sentence, admonition, pardon etc. are essentially devised for the
treatment of offenders according to their psychological traits.

JURISPRUDENCE AND ECONOMICS

The intimate relation between economics and jurisprudence was first noticed by Karl Marx
(1818-1883) and the interpretation of jural relations in the light of economic factors is
receiving the serious attention of jurists. Economics studies man’s efforts in satisfying his
wants and producing and distributing wealth. Economics is the science of wealth and
jurisprudence is the science of law. There is a close relationship between the two. Economic
problems arise from day-to-day and it is the duty of the law given to tackle those problems.
The aim of economist is to improve the standard of life and the people and also to develop
their personality. Jurisprudence teaches legislators how to make laws which will promote
social and economic welfare. Both jurisprudence and economics aims at the betterment of
the lives of the people. Economics being a science of money and wealth and jurisprudence a
science of law both are intimately correlated. Economics deals with production and
distribution of wealth for satisfying the want of the people. There are many laws which seek
to regulate economic activities of mankind. The laws relating to banking companies,
negotiable instruments, consumer protection, payments of wages, bonus, insurance, debts
etc. ceiling of land and wealth are intended to regulate one or the other economic activity of
man in society.

JURISPRUDENCE AND POLITICS

Politics is the science of government. Good government depends upon good laws; so here
we have the tracing of the close relation between politics and jurisprudence. As Edmund
Burke has well expressed, a good government is not a partnership in a tea-house or a coffee-
house, but a partnership in every art, a sharing in all sciences, a participation in all virtue.
Jurisprudence, certainly, deals with virtues and values. Just as in ethics we have values, so
also, in jurisprudence we have values. Ethical and sociological jurisprudence play a
prominent part.Friedmann rightly points out that jurisprudence is linked at one end with
philosophy and at the other end with political theory. Politics deals with the principles
governing governmental organisation. In a politically organized society, there exist
regulation which may be called laws and they lay down authoritatively what men may do
and what they may not do.It is evident that the subject matter of jurisprudence comprises a
synthetic study of various disciplines and social sciences, each playing their role for the
proper understanding of the fundamental principles of law. It is primarily for this reason
that some jurists have advocated the necessity of synthetic jurisprudence in recent years.