JURISPRUDENCE

UNIT ONE
GENERAL CONSIDERATIONS
What is Jurisprudence?
The term JURISPRUDENCE comes from the Latin term juris prudentia, which means "the study, knowledge, or science of law." This
signifies that like any other social study, law can also be studied scientifically or systematically. it seeks to analyze, explain, classify,
and criticize entire bodies of law.
It compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences.
It raises fundamental questions about the law itself & focuses on even more abstract questions, including, what is law?
Why we study Jurisprudence-?
At the practical level, reading and participating in jurisprudential discussions develops,

 Ability to analyze and to think critically and creatively about the law. Such skills are always useful in legal practice,
particularly when facing novel questions within the law or when trying to formulate and advocate novel approaches to legal
problems. So even those who need a “bottom line” justification for whatever they do should be able to find reason to read legal
theory.
 Skill expression; at a professional level, jurisprudence is the way lawyers and judges reflect on what they do and what their
role is within society. This truth is reflected by the way jurisprudence is taught as part of a university education in the law,
where law is considered not merely as a trade to be learned (like carpentry or fixing automobiles) but as an intellectual pursuit.
 For those who believe that only the reflective life is worth living, and who also spend most of their waking hours working
within (or around) the legal system, there are strong reasons to want to think deeply about the nature and function of law, the
legal system, and the legal profession.
 Jurisprudence is also interesting and enjoyable on its own, whatever its other uses and benefits. There will always be some for
whom learning is interesting and valuable in itself, even if it does not lead to greater wealth, greater self-awareness, or greater
social progress.

Schools of Jurisprudence
1) Natural Law School 2) Legal Positivism (Analytical School)
3) Historical School: views law as an evolutionary process and concentrates on the origin and history of the legal system.
4) Sociological School: Unlike the Historical School that conceives a nation’s law as tied to the primitive consciousness of its people,
sociological conception of law locate the law in the present-day institutions of its society.
5) Legal Realism- conceives law as judge made and by doing so it puts the court at the center.
 UNIT TWO

CLASSICAL NATURAL LAW THEORY

The Notion of Natural Law- its adherents believe that beyond, and superior to the law made by man are certain higher principles, the
principles of natural law.
It comprises a body of permanent, eternal truths, truths embodying precepts of universal applicability, part of immutable order of
things, unaffected by changing human beliefs or attitudes.

Ancient Greece: Natural Law as Source of Justice and Virtue

1) Socrates - his idea of law as recorded in Apology and Crito, two different writings written by his pupil Plato. Apology is all about
Socrates’ defense in court, while Crito is a discourse made between Socrates and his friend Crito in prison.
In his apology, he importantly said that it was good to obey the law and the order of a commander so long as they are just.
Socrates justified the coercive power of the state laws (positive law) and thereby upholding and respecting the decision of the courts
(not to escape from prison) on three grounds.
* On moral grounds, to do injustice in return for injustice or to return harm for harm is also bad.
* Citizens are not justified to back-harm their country whatever harm the country caused to them.
* There was a tacit agreement between Socrates (and other citizens for that matter) and the state of Athens
2) Plato- concerned to redefine the nature of justice by relating it to something far more permanent and absolute than the nomos
(man-made laws) of the city-state. Accordingly, he said everything we see on earth is simply a shadow to the perfect reality in the
transcdemtial world.
3) Aristotle-There are two sorts of political justice, one natural and the other legal. The natural is that which has the same validity
everywhere (as fire burns both in Greek and in Persia are the same) and does not depend upon acceptance; the legal is that which in
the first place can take one form or another indifferently.
The Stoics: Natural Law as a Reason- existed from the life time of its founder Zeno (during the 3rd century BC) down to about the
fourth century AD & represented by the writings of Cicero, Seneca, and the Emperor Marcus Aurelius.
 The conception of a universal law for all mankind under which all men are equal;
 The idea of a method of deriving universal principles of law from the observation of the laws of different people;
 And the conception of a law binding upon all states, which has got today the name “international law”.
Stoics added flesh to the bones of natural law. Tolerance, forgiveness, compassion, fortitude, uprightness, sincerity, honesty – these
were the qualities that the Stoics believed that natural law required of men.
Cicero-Law is the highest reason, implanted in nature, which commands what ought to be done and forbids the opposite. True law is
right reason in agreement with nature. To curtail this law is unholy, to amend it illicit, to repeal it impossible.
Seneca has also emphasized the need for rational approach, i.e. that man shall live in harmony with nature.
Christianity: Natural Law as Morality
St. Augustine of Hippo- De Civitate Dei (the City of God), the will of God is then seen as the highest law, eternal law, for all people.
Nothing which is just is to be found in positive law which has not been derived from eternal law.

St. Thomas Aquinas- Summa Theologica, (1) Eternal Law; (2) Divine Law; (3) Natural Law; and (4) Human Law
Nature of Man and Justification for Law- The medieval power of the church dissolved with the coming of Renaissance and political
writers such Hobbes, Locke and Rousseau.
Tomas Hobbes- Leviathan, postulates a natural condition of mankind in order to explain the origin and nature of the state and to show
the justifications behind a strong sovereign power. He imagined a natural condition of man, termed as State of Nature, in which there
was no law and government.
John Locke- The Second Treatise of Civil Government, Unlike the Hobbessian picture of man’s natural condition, which was a state of
perpetual warfare, Locke depicts the state of nature as one of peace in which most men respect the lives, liberties, and estates of
others. These are the natural rights of man, given to him by the law of nature which commands that “no one ought to harm in his life,
health, liberty, and possession”.
Kelsen’s Criticism on Natural Law Theory
-Natural law confuses value and reality- Value is not immanent in natural reality. Hence value cannot be deduced from reality.
-Good/Bad contradiction- Natural lawyers justify positive law (man-made or human law) on the ground that these are needed because
of man’s badness. At the same time their doctrine requires an assumption that man is good, because it is from human nature that the
principle of natural law are to be deducted.
-Insincerity- Where a law of the state conflicts with natural law do natural lawyers in fact say that a citizen should disobey it?
-Absolute values and Relative values- knowledge is relative to the person seeking it. Reality exists only in relation to our own feelings
and convictions.
So, there is one nature but we have different systems of law; different beliefs of goodness and badness.
 UNIT THREE

THE REVIVAL OF NATURAL LAW

Introduction- the massive human delinquencies by the Nazis during the Second World War and the emergence of totalitarian States
and dictators stimulate in the 20th c the rethinking of natural law theory. Jurists raised questions whether positive law is adequate
enough to protect mankind.
Procedural Natural Law: Lon L. Fuller- Morality of Law, published in 1963, His first step was to repeal all existing laws and to set
about replacing these with a new code.
In a legal system the laws must be: Generality (not made ad hoc or for temporary purpose only), Published, Prospective, not
retroactive, Intelligible (clear or understandable), Consistent, Capable of being complied with, Endure without undue changes,
Applied in the administration of the society
These qualities make up the ‘inner morality of law’.
Substantive Natural Law: John Finnis - Natural Law and Natural Rights, there is a strong affinity between Finnis’ view of natural
law and that of Aquinas.
the major difference is that, for Finnis, the existence of God is only possible explanation for the comparative order of that he seeks to
project on human values, not the necessary reason. Finnis instead states that his goods are self-evident.
Finnis’ seven basic goods r life, knowledge, play, Aesthetic experience, Sociability or friendship, Practical reasonableness & religion.
Finnis asserts is that these goods are not the result of speculative reason. They are not goods because of anything, they are just good.
UNIT FOUR
 POSITIVISM

Introduction
By requiring that all law be written or somehow communicated to society, it ensures that the government will explicitly apprise the
members of society of their rights and obligations.
Positivism reduces the power of the judge to the application of laws, it does not allow judges to make laws.
Influence of David Hume- it was Hume who first opened the eyes of positivists who challenged the close relationship of law and
morality; that law has nothing to do with morality or religion. Law should be investigated beyond any bias of morality.
Jeremy Bentham- had many specific complaints about common law theory and its practice.
The Command Theory: John Austin’s Positivism
Law is a command of the sovereign enforced by sanction.
Strongly influenced by Hume and Bentham, Austin wrote that the starting point for the science of law must be clear analytical
separation of law and morality.
Positive morality is distinguished from positive law; and it is positive because it is laid down by human beings for human beings.
He developed separation thesis, the existence of law is one thing, its merit or demerit is another.
He makes a clear separation between the question and what the law ought to be (it is possible one can make reference to higher laws)
and the determination of what the law is.
Ought can be identified (to simplify) with criteria for distinguishing between good and bad law. A law might be bad, but it is still law
and must be obeyed by the subjects so long as it is made by the sovereign.
If you are to obey the law it ought to be in conformity with the higher laws, such as morality or divine laws (the Bible or the Koran.)
As a positivist, however, what comes to your mind first is whether the law is (means actually exists).
Criticism on Austin by HLA Hart
- Laws as we know them are not like orders backed by threats
-Austin’s notion of the habit of obedience is deficient, law should not be based on one particular body
- Austin’s notion of sovereignty is deficient, In Austin’s theory of law, there is no legal limit on a sovereign’s power
Pure Theory of Law: Hans Kelsen - He declares that law must be studied as a pure science independent of other incidents, like
morality and justice.
The law, according to Kelsen, is a system of norms.
The basic norm, then, is the most general norm which is hypothesized as the norm behind the final authority to which all particular
valid norms can be traced back.
H L A Hart- The Concept of Law (1907- 1992)- He distinguishes first between social rules which constitute mere regularity from
social habits.
Primary rules of law are said to be those which are essential for any kind of social existence, those which prescribe, prevent or
regulate behavior in every area with which the law is concerned. These are all the rules constraining anti-social behavior; rules against
theft, cheating, violence and so on.
secondary rules are those that stipulate how, and by whom, such primary rules may be formed, recognized, modified or extinguished.
The rules that stipulate how parliament is composed, and how it enacts legislation. . .

Have an external
Social habits aspect only
Things that
Influence

Human
Have Conventions
Behavior internal
& external
Social rules aspect moral obligations

Obligations
Primary rules

Constituents

Laws Rules of recognition of a

Rules of change
Secondary rules Rules of adjudication legal
Sanction-imposing rules system
Dworkin’s criticism on Hart/Positivism
Legal positivism envisaged, Dworkin claimed, that the law consists of rules only. However, this
is a serious mistake, since in addition to rules, law is partly determined by legal principles.

UNIT FIVE
HISTORICAL AND SOCIOLOGICAL LEGAL THEORY

Historical School
1) The Spirit of the People: Savigny- the principles of law derive from the beliefs of the people.
2)The Changing process of Ancient Law: Henry Maine- Maine departed from Savigny in two
important respects: he believed in stages of legal evolution, in which the primitive ideas might be
discarded; and he sought to discover by comparative studies of different systems of law the ideas
which they had in common.
Sociological School
1) Living Law: Eugen Ehrlich- earlier legal theories that recognize law as a sum of statutes and
judgments gave an inadequate view of the legal reality of a community.
2) Law in Action: Roscoe Pound- saw a legal system as being a phenomenon which intimately
interacts with the prevalent political, economic, and social circumstances in a given society and
which constantly alters with them in a living process of development.

UNIT SIX

LEGAL REALISM

Introduction- it attempts to describe the law without idealizing it, to portray the law as it is – not
how it should be

American Realists

1)Pragmatist approach- Oliver Wondel Holmes and John Chipman Gray are the two mental
fathers of the American Legal Realism.

Its theme is how the rule of law works, not what they are on paper.
2) Law as prophesy of the court: Oliver W. Holmes- The actual life of the law has not been logic:
it has been experience.

But, This approach disregards the rules and laws that establish the judiciary itself.

3) Centrality of the judge: John Chipman Gray- it is not a law until it had been interpreted by the
courts, for “the courts put life into the dead words of the statutes.”

4) Rule Skepticism: Karl Llewellyn

UNIT SEVEN

RADICAL LEGAL THEORIES

1)Critical Legal Studies-The critical legal studies movement, was initially emerged in the
United States in the 1970s in part as a successor to the American realist movement,

The overall aim of critical theory is to destroy the notion that there is one single 'truth', and that
by disclosing the all-pervasive power structures and hierarchies in the law and legal system, a
multitude of other possibilities will be revealed, all equally valid.
The Critique of the Liberal Legal Tradition from critical legal scholars - The law is
portrayed as rational, coherent, necessary and just by liberal legal scholarship, when in fact,
according to the critical legal scholars, it is arbitrary, contingent, unnecessary and
profoundly unjust.

The constitutive theory of law- it is trend in the critical legal studies movement in w/c law
plays an important role in shaping society is part of the wider post-modernist perspective that
ideas, and not the economic base, constitute (form or make up) society.
2)Critical Legal Studies and Feminist Legal Theory- Feminist legal theories represent a
most important modern development in the analysis of law, concerned with the treatment of
women by the legal system and the perception, or lack of perception, of women's experience
and needs in legal provision.
Feminism and critical legal studies are, of course, two entirely different creatures. Feminism is
only partially and peripherally concerned with academic theorising. It is motivated by the
dissatisfactions of a wide spectrum of ... women and by the everyday experience of such women.

The value of critical methodologies in the display and analysis of such gender distortions in law
and legal administration should be evident.
The key endeavor of feminist legal theory may rather be to identify a fact of social, political and
legal history which in many important respects fails adequately to take account of the experience
of somewhat more than half of the human population.

3)Postmodern Legal Theory- the latest radical theory to challenge the liberal orthodoxies that
society has a natural structure and that history is simply a process of evolution towards that truth.

Liberalism and capitalism are not the end of the road but are simply the major components of
what the postmodernists call 'modernity'.
A Critique of the Enlightenment- The Enlightenment sought to free humanity from the chains
of unthinking tradition and religious bigotry. It sought to master the world through science and
remake the world according to the dictates of reason.

The emancipation we now require cannot be on the same terms as those proposed by the
Enlightenment. It must, at least in part, be a rejection of the terms by which we freed ourselves
from pre-Enlightenment thinking.

In essence, postmodernism is not anti-modernism, for as Lyotard's example illustrates 'a work
can only become modern if it is first postmodern', so that postmodernism is definitely 'a part of
the modern', not a historical period beyond modernity.

Identity and the 'Other'- the 'other' (eg women and racial minorities) appears to be the
individual who is outside the system, who is disadvantaged by it.

postmodernism is inclusive in that it purports to embrace the 'other'. Z postmodernist concern

with the 'other', the law should seek to accommodate their claims but to what extent and in what
manner cannot be determined.
Postmodernism and Fundamental Values- whether cultures and minorities will disappear
because of possible post-structuralist 'enlightenment'.

UNIT EIGHT

JUSTICE

Introduction- Justice concerns the proper ordering of things and persons within a society.

John Rawls: Justice as Fairness- “Theory of Justice” (1972), Rawls makes a distinction
between the concepts of justice and conception of justice. He claims that any theory of justice
must deal with both of these.

By a concept of justice, Rawls means the role of its principles in assigning rights and duties and
in defining the appropriate division of social advantage.
The conception of justice for Rawls can be stated in the form of two principles as follows: first,
each person participating in a practice, or affected by it, has an equal right to the most extensive
liberty compatible with a like liberty for all, providing everyone with basic human freedoms such
as freedom of thought, religion, belief, expression…etc. and

Second, inequalities are arbitrary unless it is reasonable to expect that they will work out for
everyone's advantage, equal distribution of primary social resources to everyone and inequalities
are arbitrary.

The first principle has absolute priority over the second

Will Kymlicka: Justice and Minority Rights- forms of group-specific rights: (1) self-
government rights; (2) polyethnic rights; and (3) special representation rights.

One mechanism for recognizing claims to self-government is federalism, which divides powers
between the central government and regional subunits.
‘polyethnic rights’ - are intended to help ethnic groups and religious minorities express their
cultural particularity and pride without it hampering their success in the economic and political
institutions of the dominant society.
unlike self-government rights, polyethnic rights are usually intended to promote integration into
the larger society, not self-government.
The Equality Argument- ethnic and national minorities are needed to ensure that all citizens are
treated with genuine equality.
equality-based argument will only endorse special rights for national minorities if there actually
is a disadvantage with respect to cultural membership, and if the rights actually serve to rectify
the disadvantage.
The Role of Historical Agreements- such as the treaty rights of indigenous peoples, or the
agreement by which two or more peoples agreed to federate.
Where historical agreements are absent or disputed, groups are likely to appeal to the equality
argument.
Rawls Revisited- Liberals can and should accept a wide range of group-differentiated rights for
national minorities and ethnic groups, without sacrificing their core commitments to individual
freedom and social equality.
Many polyethnic liberal states have adopted various forms of polyethnic policies and group-
specific rights.

CHAPTER NINE

LIBERTY
Introduction- Liberty is generally considered as a concept of political philosophy that identifies
the condition in which an individual has the ability to act according to his or her own will.
liberty and equality are principles of justice.

Isaiah Berlin: Two Concepts of Liberty

the 'negative' sense, is involved in the answer to the question 'What is the area within which the
subject - a person or group of persons - is or should be left to do or be what he is able to do or be,
without interference by other persons?'
The second, ‘positive’ sense, is involved in the answer to the question 'What, or who, is the
source of control or interference that can determine someone to do, or be, this rather than that?'
 CHAPTER TEN

EQUALITY

Equality: Defining the Concept- ‘Equality’ (or ‘equal’) signifies correspondence between a
group of different objects, persons, processes or circumstances that have the same qualities in at
least one respect, but not all respects, i.e., regarding one specific feature, with differences in
other features. Distinguished from ‘identity’

Principles of Equality and Justice

1) Formal Equality- When two persons have equal status in at least one normatively relevant
respect, they must be treated equally with regard to this respect.

2) Proportional Equality- proportional or relatively equal when it treats all relevant persons in
relation to their due. Just numerical equality is a special case of proportional equality. Numerical
equality is only just under special circumstances, viz. when persons are equal in the relevant
respects so that the relevant proportions are equal.
3) Moral Equality- This principle is too abstract and needs to be made concrete if we are to arrive
at a clear moral standard.

4)Presumption of Equality- requires that everyone, regardless of differences, should get an equal
share in the distribution unless certain types of differences are relevant and justify, through
universally acceptable reasons, unequal distribution.