School of law (make it short)
The word jurisprudence is derived from the latin terms “juris” which means legal and ‘prudentia’ which means knowledge. Etymologically, therefore, jurisprudence is that science which imparts to us knowledge about law. The study of Jurisprudence started from Roman’s age and the Definition given by Roman jurists is not quite clear, but they put forward the idea of legal science.
Austin defines jurisprudence as “the philosophy of positive law” positive law is such law which has been laid down by a political superior for controlling the administrative affairs
According To Keeton: “Jurisprudence is the study and systematic arrangement of the general principles of law.”
If we understand the theories and philosophies behind law, then we can better understand our laws but to define law is not so easy and there is always a conflict between theorists because they deal with different aspects of law.
School of jurisprudence (theories of law)
One of the most important theory say, “justice according to law”, it says justice is made only according to the law provided in state. Here in after we describe three theories out of many because of their influence on jurisprudential thought in the past and their continuing influence even today. These are the theory of natural law, which defines law according to its content and looks to the problem of what law ought to be; the imperative theory, which defines law according to formal criteria and the realistic theory, which defines law in terms of its actual functioning and operation.
Following are the theories of law in detail:
- Natural law school or philosophical school of jurisprudence, law as the dictate of reason: The central notion of this theory is that there exist objective moral principles which depend on the essential nature of the universe and which can be discovered by natural reason, and that ordinary human law is only truly law in so far as it conforms to these principles. Stoic philosophers thought that the distinctive feature of man’s nature in his faculty of reasoning and this meant that he should live according to the dictates of reason. Here true law was equated with right reasoning. In simple words natural law is based on the principles of justice and morality. Hence, Philosophical school jurisprudence oriented from theory of natural law was not dependent on human belief in any particular deity or divine being but on human reasoning.
Criticism:
Firstly moral proposition “ought” may not always be deducible from or conformable with the factual proposition “is”
Natural law argument that everything has its proper function and so to be good of its kind it must fulfil this function breaks down in the case of man.
- Positivist/imperative/anayltical school of jurisprudence:
Austin was arguably the first writer to approach the theory of law analytically. Analytical jurisprudence emphasizes the analysis of key concepts, including law, right, duty and validity. . He then introduced the view of law known as legal positivism, Austin specifically, and legal positivism generally, offered a quite different approach to law: as an object of “scientific” study dominated neither by prescription nor by moral evaluation he says To the positivist, law is something for the citizen to obey, not as he pleases but whether he likes it or not.. In his version of legal positivism he says “law as a command of sovereign”. According to this theory law is a type of command laid down by the political sovereign and enforceable by sanction. This theory, also known as Austanian theory, says that every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign in the character of political superior… to a person or persons in a state of subjection to its author. The idea of command, combined with the position of superiority and subjection, must necessarily indicate the existence of sanction behind the commands. He requires that the law emanates from a political superior or sovereign and that sovereign may be a person or body of person, whom the bulk of society habitually obeys and who does not himself obey some other person or persons.
Criticism:
There had been many attacks against this theory. Firstly there are laws which are not commands but simply power conferring rules. Election statues, Rent acts etc. the default in this theory is that law continue in existence even after the extinction of the actual law giver.
3. Legal realism; law as practice of the court:
The theory of legal realism, like positivism; looks on law as the expression of the will of the state but sees it as made through the medium of courts. Law no doubt is the command of the sovereign, but the sovereign to the realist is not the parliament but the court. Salmonds version- the law, said salmond, may be defined as the body of principles recognized by the state in the administration of justice. In other words, the law consists of rules recognized and acted on by the courts of justice. Though statute is law as soon as it is passed; it does not await a case to go to the court and then receive judicial recognition.
The reply of salmond is that so long as the legislature and courts function in harmony it does not matter whether we say a statute is law because the courts recognize it or the courts recognize and apply a statue because it is law. A practical issue will only arise when a statute passed by the legislature is declared void by the courts. In such circumstance, Holmes says that What the court will in fact do cannot be accurately predicted from words of the statute because those words themselves may be susceptible of different interpretation and it is for the court to supply the authoritative one. Therefore a statement of law is nothing more than a prediction of what the court will decide.
Criticism : to discover the rules which actually govern, we must not only look to the judicial practice, which the relaist exphasize, but also to statues, rules and notifications of the legislature and other bodies.
Other school of jurisprudence:
- Ethical jurisprudence/ legal realism; law as a sytem of rules: Rules are concerned not with what happens but with what ought to be done; they are imperative and prescriptive rather than indicative and descriptive.
Harts analysis is that when a man considers his own conduct to conform to a certain pattern he will require the same of others and will criticize deviations from the pattern because of their very non-confirmity. Applying a test to the society we must see the general re-action of the society to a particular rule or rules. There are two kinds of philosophy in accordance with it:
- American realist: they are tempted to identify rules with regularities in judicial behavior.
- Scandavian realists: They contended that there are no such things as rules,, but that conformity with a rule consists really in habitual behavior accompanied by a feeling of being bound to act in this habitual way
- Historical Jurisprudence: Historical Jurisprudence gives the answers of the questions, origin of law, the development of law, evolution of law and philosophy of law. It constitutes the general portion of legal history.
Conclusion: These are the three theories of law. None of them fully explains the nature of law, yet each of them contains some truth. In some ways if all the three theories are put together, we will have the correct view of law.
Sociological School of Jurisprudence: According to the supporters of sociological school of jurisprudence law has its source and sanction in social needs and necessity. They say men can fulfill all his wishes and desire only in a society which ails unity based on social rules. Every individual has to observe these rules because he understands that only by following these rules he can realize all his needs. The supporters of sociological school are of the view that the state does not create the laws but only formulates, so that social unity is preserved and social needs satisfy. So laws do not came from the state but from the society. According to them the sanction behind law is not the force of the state but the awareness on the part of the individual that his disobedience will meet with the disapproval of the society. In other words the members of the society obey laws because they serve their purposes. Some of the supporters say that law is sovereign and reject the sovereignty of the state.
