JURISPRUDENCE

LLB-III

Academic year 2024/25

@Ntamti Charles
Meaning of Jurisprudence
• Jurisprudence means the study of law that takes place in a logical and
philosophical manner. Jurisprudence analyses the nature of law, legal
systems, legal rules, legal concepts, and legal institutions and creates
a way to understand the social, political as well and cultural arenas
where law operates. It is a vast field that consists of a range of
perspectives which includes natural law, legal realism, critical legal
studies, and so on. The study of jurisprudence helps scholars and
practitioners to develop a deeper understanding of law and its
importance in shaping society.
Meaning of jurisprudence
• Jurisprudence may be defined as the study of fundamental legal
principles, including their philosophical, historical, and social basis
and analysis of legal concepts.
• It is concerned with the normative and not merely the positive: it is
not merely with the actual but also with the intended
 Introduction
Nature and scope of Jurisprudence
Austin- He said that "Science of Jurisprudence is
concerned with positive Laws that is laws strictly so
called. it has nothing to do with the goodness or badness
of law.
This has two aspects attached to it:
1. General Jurisprudence- it includes such subjects or
ends of law as are common to all system.
Introduction(cont..)
2. Particular Jurisprudence- It is the science
of any actual system of law or any portion of
it Basically, in essence they are same but in
scope they are different.
Salmond's Criticism of Austin: He said that
for a concept to fall within the category of
'General Jurisprudence,it should be common
in various systems of law. He said that it is
only the material which is particular and not
the science itself.
Introduction(cont..)
 Holland's Definition- Jurisprudence means
the formal science of positive laws, it is an
analytical science rather than a material
science.
a) He defined the term positive law. He said
that Positive Law means the general rule of
external human action enforced by a
sovereign political authority.
b) We can see that, he simply added the word
'formal' in Austin's definition. Formal here
means that we study only the form and not
the essence. We study only the external
features and do not go into the intricacies of
the subject, According to him, how positive
law is applied and how it is particular is not
the concern of Jurisprudence.
c)The reason for using the word on the
basis of the legal system as distinct from
material science which deals only with
the concrete details of law.
d)This definition has been criticized on
the ground that this definition is
concerned only with the form and not
the intricacies.
Salmond- He said that Jurisprudence is Science of Law. By
law he meant law of the rand or civil law, He divided
Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or
any portion of the doctrines. 'Specific' is further divided
into three parts:
3. Analytical, Expository or Systematic- It deals with the
contents of legal system existing at any time, past or the
present. Historically it is concerned with the legal
history and its development
4. Ethical- According to him, the
purpose of any legislation is to set
forth laws as it ought to be. It deals
with the 'ideal' of the Legal system
and the purpose for which it exists.
Significance of study
jurisprudence
1. This subject has its own intrinsic interest and value
because this is a subject of serious scholarship and
research; researchers in Jurisprudence contribute to the
development of society by having repercussions in the
whole legal, political and social school of thoughts. One of
the tasks of this subject is to construct and elucidate
concepts serving to render the complexities of law more
manageable and more rational. It is the belief of this
subject that the theory can help to improve practice.
Significance(cont..)
2.Jurisprudence also has an educational value, It
helps in the logical analysis of the legal concepts
and it sharpens the logical techniques of the
Lawyer. The study of jurisprudence helps to
combat the lawyer's occupational view of
formalism which leads to excessive concentration
on legal rules for their own sake and disregard of
the social function of the law.
Significance of jurisprudence
3. The study of jurisprudence
helps to put law in its proper
context by considering the needs
of the society and by taking note
of the advances in related and
relevant disciplines.
History of jurisprudence
• Jurisprudence began in the Roman Times with the
Romans scrutinizing the importance of the law and
the nature of the law. Although it had a restrictive
approach as the ideas of law and ethics were blurred.
After the fall of the Roman Empire, their set of ideas
regarding jurisprudence vanished and the Christian
State emerged.
• With the rise of Christian Rule, the concept of
secularism arose. Several hypotheses and concepts
were proposed by renowned personalities.
History of jurisprudence(cont’d)
• Gradually, the possibility of positive law and positive
methodologies took over whereby the limits of the law
were divided. With the evolution of ideologies, several
jurists presented their own interpretations of
jurisprudence.
• In natural law, Jurisprudence was co-related with rights
based on morals and divine law. In the analytical
school, the law was considered as Command of
Sovereignty. Every jurist had their own take on
jurisprudence which we are about to discuss in the next
topic
Meaning, Nature and Functions of
Law
• The term “Law’ denotes different kinds of rules and
Principles. Law is an instrument which regulates
human conduct/behaviour. Law means Justice,
Morality, Reason, Order, and Righteous from the view
point of the society.
• Law means Statutes, Acts, Rules, Regulations, Orders,
and Ordinances from point of view of legislature. Law
means Rules of court, Decrees, Judgment, Orders of
courts, and Injunctions from the point of view of
Judges.
Meaning, nature and function of
law(con’d)
• Therefore, Law is a broader term which includes
Acts, Statutes, Rules, Regulations, Orders,
Ordinances, Justice, Morality, Reason, Righteous,
Rules of court, Decrees, Judgment, Orders of
courts, Injunctions, Tort, Jurisprudence, Legal
theory,
Meaning of law..
 In old English “Lagu” i.e. law, ordinance, rule, regulation from old norse
“lagu” law collective Plural of “Lag” is layer, measure, stroke ‘Literally’
something laid down of fixed.
 The term law has different meanings in different Places/societies at
different times (as it is subject to amendments). In Hindu religion law
implies “Dharma” in Muhammadean religion (Islam) it is “Hokum” in
Roman its “Jus”, in French, its “Droit” in Arabic, Alqanoon, in Persian and
Turkish, its Kunoon, in Latin its “Legam” in Philipino its “Batas” in
Albanian language its “Ligj” in Czech its “Zakon” in Danish its “Lor” in
Dutch its “Wet” in Italian its “Legge” and in Lithuanian its “Teise” and so
on.
Meaning(cont’d)
• It varies from place to place in the sense adultery is an
offence in India (under section 497 of the Indian penal
code, 1860) while it is no offence in America. Law
differs from religion to religion in the sense personal
laws viz. Hindu law, Muslim law etc. differ from one
another. For instance, A Muslim can have four wives
living at a time, but, a Hindu can have only one wife
living at a time (Monogamy)
Generally the term law is used to mean three things:
• First it is used to mean “legal order”. It represents the regime of
adjusting relations, and ordering conduct by the systematic
application of the force of organized political society.
• Secondly, law means the whole body of legal Percept's which
exists in a politically organized society.
• Thirdly, law is used to mean all official control in a politically
organized society. This lead to actual administration of Justice as
contrasted with the authoritative material for the Guidance of
Judicial action. Law in its narrowest or strict sense is the civil
law or the law of the land.
Definitions of law:-
It is very difficult to define the term law. Many
Jurists attempted to define the term law. For the
Purpose of clarity, some of the definitions given
by Jurists in different Periods are categorized as
follows:
Idealistic Definitions:-
Romans and other ancient Jurists defined law in
its idealistic nature. Roman Justinian’s defined law
in the light of its idealistic nature.
Salmond: - According to salmond “the law may be
defined as the body of principles recognized and
applied by the state in the administration of
Justice.
Criticism of Salmond’s definition of law:-
Salmond did not define the expression Justice.
Keeton says what has been considered to be just
at one time has frequently not been so
considered at another.
• Criticism by Dean Roscoe Pound: - Dean
Roscoe Pound has criticized the definition of
Salmond as reducing law to a mass of
isolated decisions and the law in that sense
to be an organic whole. Further, it is
criticized on the ground that Salmond’s
definition applies only to lax law not to
Statute
Despite criticism, Salmond’s definition is considered as the
workable definition.
(b) John chipman Gray’s Definition of Law:-
According to Gray, “the Law of the State or of any organized
body of men is composed of the rules which the courts, that is
the judicial organ of the body lays down for the determination
of legal rights and duties.
Criticism of Gray’s definition of law:-
Gray’s definition is criticized on the Ground that he is not
concerned with the nature of law rather than its Purposes and
Ends. Further it does not take into account the statute law.
(ii) Positivisties definition:-
• (a) Austin’s definition of law”
• John Austin (1790-1859) An English Jurists expounded
the concept of analytical positivism, making law as a
command of sovereign backed by sanction. He
developed logically, a structure of legal system in
which he gave no Place to values, morality, idealism
and Justice
According to Austin, a law, in the strict sense is a general
command of the sovereign individual or the sovereign body.
Issued to those in subjectivity and enforced by the physical
power of the state. According to Austin “law is aggregate of
rules set by men politically superior or sovereign to men as
politically subject.” Austin says, “A law is command which
obliges a person or persons to a course of conduct.
Criticism of Austin’s definition of law:-
• Austin’s definition of law is subjected to criticism on the
ground that it ignores completely the moral and ethical
aspects of law and unduly Emphasized the imperative
character of law.
Nature of law
• What is the nature of law? This question has occupied center stage
Jurisprudence and philosophy of law in the modern era, and has been
the central occupation of contemporary analytic Jurisprudence. This
entry in the legal theory Lexicon aims to give an overview of the
“what is law” debate.
• Historically, the answer to the question, “what is Law” is thought to
have two competing answers. The classical answer is provided by
natural law theory
• which is frequently characterized as asserting that there is an
essential relationship between law and morality and Justice.
• The modern answer is provided by legal positivism, which as
developed by John Austin, asserted that law is the command
of the sovereign backed by the threat of punishment
• Contemporary debates over the nature of law focus on a
revised set of positions legal positivism is represented by
Analytical legal positivists, like H.L.A Hart Joseph raza and
Jules Coleman.
• The natural law tradition is defined by John Punis and a new
position, interpretivism is represented by the work of the
late Ronald Dworkin.
Functions of law
• Ever since the down of Human civilization, mankind has had some
sort of rule or that they used to Govern itself in society laws set the
standard in which we should live in if we want to be part of society.
Law set up rules and regulations for society so that we can freedom,
gives Justice to those who were wronged, and it set up that it protects
us from our own Government.
• Most importantly the law also provides a mechanism to resolve
disputes arising from those duties and rights and allows parties to
enforce promises in a court of law (Corley and Reed 1986 P.A)
Function of law

• According to Corley and Reed (1986) law is a body of

rules of action or conduct Prescribed by controlling
authority, and having legal binding forces.
• Laws are created because it helps prevent chaos from
happening within the business environment and as
well as society. In business law sets guide lines
regarding employment regulatory, compliance, even
inter office regulations.
Role of law in Society:-
• Without law our society would be chaotic, uncivilized mess and
anarchy would reign supreme.
• The role that law has in society is that it creates a norm of conducts in
the society we live in laws are made to protect its citizen from harm.
It set in way that all citizens are given equal opportunity, protection
from harm no matter your race, Gender, religion and social standing.
• Under the law all its citizens are guarantee equal protections. In
society laws are made to promote the common good for everyone.
That is sets up Guideline
KINDS OF LAW
Law is used in different senses. The use of the term
“law” is made in various senses. It denotes different
kinds of rules and Principles.
Blackstone says “law in its most general and
comprehensive sense signifies a rule of action and is
applied indiscriminately to all kinds of action whether,
animate, rational, irrational. Thus we say the law of
motion of gravitation of optics or Mechanics, as well as
the law of nature and nations” it is helpful in
understanding the different senses in which “law” is
used in various fields of knowledge.
Kinds of law by Sir Jhon
Salmond
Sir John Salmond refers to eight kinds of law
1. Imperative law
2. Physical or scientific law
3. Natural or moral law
4. Conventional law
5. Customary law
6. Practical or technical law
7. International law, and
8. Civil law
1. Imperative law
Imperative law means a rule of action imposed upon by some authority
which enforces obedience to it. In other words it is a command
enforced by some superior power either physically or in any other form
of compulsion.
Kinds of Imperative law:-
There are two kinds of imperative law, Divine or human
1. Divine laws
2. Human laws
1. Divine laws are consists of the commands imposed by God upon men
either by threats of Punishment or by hope of his blessings.
2. Human laws are the laws by analogy
Sir Jhon Salmond classifies Human Laws into four sub classes
1. Imperative law imposed and enforced by State is called “Civil law”
2. Imperative law imposed and enforced by members of society is
“Moral law”
3. Those imposed and enforced by different institutions or autonomous
bodies like Universities, airline companies etc they are called
“Autonomic law”
4. Those imposed upon States by the society of States are called “
International law”
2.Physical or scientific law
Physical laws are the expressions of the
1. Uniformities of nature and General Principles Expressing the
2. Regularity, and
3. Harmony observable in the activities and operations of the
universe.
They are not the creation of men and cannot be changed by
them. Human laws change from time to time and from
country to country but physical laws are invariable forever. The
uniform actions of human beings, such as law of psychology,
also fall into this class they express not what man ought to do,
but what they do.
Practical or Technical law:-
It consists of Principles and rules for the attainment of certain ends e.g.
laws of health, laws of architecture. These rules guide us as to what we
ought to do in order to attain certain ends.
4. Natural or Moral law:-
It has various other names such as, “the Moral law” “Divine law” “God
Law” ‘universal or eternal law and “law of reason” etc. “by natural law
is meant the principles of natural right and wrong (the Principles of
natural Justice)”. Natural laws have been called
Divine law:- commands of God imposed upon men
Law of Reason i.e. being established by that reason by which the world
is Governed.
Unwritten law:- (as being written not an brazen tables or a pillar of
stone but by the finger of nature in the hearts of people. universal or
common law (being of universal validity)
Eternal law (being uncreated and invariable)
Moral law (being the expression of the Principles of morality)
5. Conventional law:-
It is the body of rules agreed upon and followed by the concerned
parties to regulate their mutual conduct. It is form of special law and
law for the parties which can be made valid or enforced through an
agreement.
A Good example of the conventional law is the International law, laws
of cricket or any other game, rules of club. It has been father divided
into two groups which are:-
1. Rules enforced by the parties themselves but not recognized by the
State e.g. the rules of hokey
2. Rules which are recognized and enforced by the State, e.g. contract
etc
Customary law:-
Customary laws are those rules of custom that are habitually
followed by the majority of the persons subject to them in the
belief of binding nature.
According to Salmond, customary law means “any rules of action
which is actually observed by men (any rule which is the
expression of some actual uniformity of voluntary action) “when
a custom is firmly established it is enforced by the authority of
the State. Custom is not law by itself but an important source of
law only those customs acquired the force of law, which are
recognized by the courts.
International law:-
According to “Hughes” international law is the body
of Principles and rules which civilized States
consider as binding upon them in their mutual
relations. “ it can be as the name for the body of
customary and conventional rules, which are
considered legally binding by civilized States in their
intercourse with each other”. According to Salmond
it is considered of these rules which the sovereign
States have agreed to observe in their dealings with
one another.
International agreements are of two types:
They are either expressed or implied.
Express agreements are contained in treaties and
conventions, while implied agreements are to be found in
the custom or practice of the States. International law is
of two kinds:
I. Public International law: It prevails universally all over
the world.
i. Private International Law: It is enforced only between
some of States.