Jurisprudence Notes Unit I

What is Jurisprudence?

Jurisprudence has many aspects, with four types being the most common. The most prevalent
form of jurisprudence is that it seeks to analyze, explain, classify, and criticize entire bodies of
law, ranging from contract to tort to constitutional law. Legal encyclopedias, law reviews, and
law school textbooks frequently contain this type of jurisprudential scholarship.

The second type of jurisprudence compares and contrasts law with other fields of knowledge
such as literature, economics, religion, and the social sciences. The purpose of this
interdisciplinary study is to enlighten each field of knowledge by sharing insights that have
proved important to understanding essential features of the comparative disciplines.

The third type of jurisprudence raises fundamental questions about the law itself. These
questions seek to reveal the historical, moral, and cultural underpinnings of a particular legal
concept. The Common Law (1881), written by Oliver Wendell Holmes, Jr., is a well-known
example of this type of jurisprudence. It traces the evolution of civil and criminal responsibility
from undeveloped societies where liability for injuries was based on subjective notions of
revenge, to modern societies where liability is based on objective notions of reasonableness.

The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions,
including, what is law? What is its relation to justice and morality? What is the role of a judge?
Is a judge more like a legislator who simply decides a case in favor of the most politically
preferable outcome? What is justice? What is liberty and freedom?

Why do we need to study jurisprudence?

At the practical level, reading and participating in jurisprudential discussions develops the 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.

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.
Finally, for some, jurisprudence is 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.

Nature of Jurisprudence: Interdisciplinary

Jurisprudence is the most comprehensive course that is taught at the faculty of law: it explains
the various legal subjects, but also the other disciplines that are in relationship with the law. It is
the ambition of Jurisprudence to question the law. So not only what law is is highlighted, but
also what the law should be. It thus also maintains a close relationship with ethics.

Jurisprudence is closely related with subjects like sociology, economics, ethics/philosophy,

history, psychology, political theory, etc. As it is essentially a body of concepts and theories that
form a great part of philosophy, jurisprudence can also be understood as the ‘philosophy of law’.
The other perspective is that it encompasses a lot of debate about the right and wrong of a given
action or theory.

Definitions of Jurisprudence

Bentham distinguished between ‘expository’ and ‘censorial jurisprudence’. The former

ascertains what the law is, and the latter, what it ought to be. Bentham made a sub-division of
expository jurisprudence, distinguishing between its ‘authoritative’ and ‘unauthoritative’ modes-
the first given by the state and the second by any other authority.

Prof. Julius Stone defined ‘jurisprudence’ as the lawyer’s extraversion. According to him
jurisprudence is the lawyer’s examination of the precepts, ideals and techniques of the law in the
light derived from present knowledge in disciplines other than the law.

Salmond understood jurisprudence in its narrowest sense as including only a part of the science
of the civil law, which can also be called the science of the ‘first principles’ of civil law. These
first principles are fundamental concepts and principles which serve as the basis of concrete
details of the law.

Prof. Julius Stone defined ‘jurisprudence’ as the lawyer’s extraversion. According to him
jurisprudence is the lawyer’s examination of the precepts, ideals and techniques of the law in the
light derived from present knowledge in disciplines other than the law.

According to Prof. G.W. Paton, jurisprudence is founded on the attempt, not to find universal
principles of law, but to construct a science which will explain the relationship between law, its
concepts, and the life of society.
How should we Understand Law or its purpose?

Natural Law Theory of Law says Legal systems have a function—to secure justice. Grossly
unjust laws (e.g. “White people may own certain people as slaves,” “women may not own
property or vote”) are not really laws at all, but a perversion of law or mere violence. As St.
Augustine put it, lex injustia non est lex. Aquinas’s way of stating this point: positive law has as
its purpose the common good of the community. Any positive law which conflicts/is inconsistent
with either natural law or divine law is not really law at all. Hence, not only is there no moral
obligation to obey it, but there is no legal obligation to obey it, either.

- Augustine, Aquinas, and Martin Luther King are supporters of this view.

Legal Positivism says Whether a certain rule is a law, creating legal obligations to comply with
it, all depends on its source. Valid laws are simply rules that come from certain people (kings,
city councils, etc.), in accordance with certain procedures, that the society enforces. A rule can
be a genuine, valid law even though it is grossly unjust.

In order to know what your legal rights are, you need to look at what laws your society has. In
order to know what your moral rights are, you need to figure out what is the true morality. You
might have legal rights that the true morality says you shouldn’t have (e.g. the right to own
slaves), and your society might deny you legal rights that the true morality says you should have
(e.g. the right to be free, to own one’s own body and labor power).

- Some of the most influential defenders of legal positivism are the 19th century
philosophers John Austin and Jeremy Bentham, and the 20th century legal philosopher
H.L.A. Hart.

American realism says it is the ultimate criterion to judge whether a rule is a law or not when it
is interpreted or enforced by the Courts. "Courts put life into the dead words of the statute".
View of nature of law that legal rules are based on judicial decisions given in interest of the
larger society and public policy, and not on any dogma or supernatural authority. It defines 'legal
rights' and 'legal duties' as whatever the courts say they are. Basically, law is whatever the Court
says it is.

- Key proponents were Oliver Wendell Homes, John Gray, Karl Llewelyn, Jerome Frank
etc.

Sociological law school states that the role of law is to build a better society. Law is intended for
the welfare of the people.

- Its major defenders were Dean Roscoe Pound, Ehrlich, etc.

Historical Law School says that any law, in order to be successful must be placed at the right
time in history, and with the approval (either express or implied) of the people. Imposing laws on
a set of people that are not ready for it will lead to a failure of the legal system.

- Savigny, Puchta, Herder, Henry Maine were the major proponents.

The schools will be discussed in detail later.

*The following Concepts are to be understood as being applicable to the Indian

Experience. Kindly refer to the class discussion on POCSO (for Problem of Core and
Penumbra), Article 370/35A for the Concept of Law and Morality and the Indian
LGBTQI+ struggle (Hart-Devlin Debate)

The Concept of Law and its justness/unjustness in the Hart-Fuller Debate

The Hart–Fuller debate is an exchange between Lon Fuller and H. L. A. Hart published in the
Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the
positivist and natural law philosophy. Hart took the positivist view in arguing that morality and
law were separate. Fuller's reply argued for morality as the source of law's binding power.

The debate discusses the verdict rendered by German court on the following case:

"In 1944, defendant, desiring to get rid of her husband, reported to the authorities derogatory
remarks he has made about Hitler while home on leave from the German army. Defendant wife
having testified against him, the husband was sentenced to death by a military tribunal
apparently pursuant to statutes making it illegal to assert or repeat any statements inimical to the
welfare of the Third Reich. However, after serving some time in prison, the husband was sent to
the front. Following the defeat of the Nazi regime, the wife, as well as the judge who had
sentenced her husband, was indicted under 4 289 of the German Criminal Code of 1871, for the
unlawful deprivation of another’s liberty. On appeal to a German Court of last resort in criminal
cases, held, that the sentencing judge should be acquitted, but that the wife is guilty since she
utilised out of free choice a Nazi ‘law to the sound conscience and sense of justice of all decent
human beings to bring about the death or imprisonment of her husband’.

Hart uses the problem of "the core and the penumbra" to illustrate the idea that laws must be
related to the meaning of the words, not any natural or moral belief. A "core" case would be one
that the statute is intended to cover. In the classic example, a statute that bans vehicles from a
park is obviously intended to cover cars. A "penumbra" case would be one not considered by the
creators of the law, such as a skateboard in the example above. A judge interpreting such a law
from a positivist viewpoint would look to a definition of the words in the statute.
The natural law view (represented by Fuller) believes that the creation of law should be based on
natural laws or common morals. As the Nazi regime was lawless, their commands could not be
correctly labeled as law. Therefore the woman should be set free.

Law and Morality: Interlinkages in the Hart Devlin Debate

The 1957 Wolfenden Committee had to prepare a report on the issue of legalising homosexuality
and prostitution. The Report came in favour of legalisation as it stated that the law need not
concern itself with immorality. Jurist HLA Hart and Lord Patrick Devlin argued one side of the
issue respectively.

Devlin’s position

Law without morality destroys freedom of conscience and is the paved road to tyranny. He
talked about society’s ‘moral fabric’ which the society holds together and if the criminal law
does not respect and reinforce society’s morality it will destroy the ‘moral fabric’ leading to the
disintegration of society.

Any category of behaviour that is capable of posing a threat to social cohesion can be governed
by morals laws. They are justified as they protect society against the disintegrating effects of
actions that undermine the morality of a society. There is no limit of reach of la and thereby
immorality could also be governed by law. (Immorality is what every right-minded person
considered immoral) Devlin suggested that common morality could be determined from asking
‘what is acceptable to the ordinary man, the man in the jury box, who might also be called the
reasonable man or the right-minded man’.

Hart‘s position

It was based on Mills harm principle. (No act should be interfered with it unless it affects the
rights of another person) He warned against dangers of ‘populism’ and was against the view of
imposing majoritarian perception of morality over the remaining members of the society. Hart
also stated that a mere change in moral views does not lead to disintegration of society. Hart’s
approach is much more individualistic to that of Devlin.