Jurisprudence is the principles of law and legal system. Illustrate and explain

 1. Introduction:

[1]The word Jurisprudence delivered from Latin word “Juriprudentia” means knowledge of law. The Latin word juris means law and prudential means skill or knowledge. Thus, jurisprudence signifies knowledge of law and its application. Jurisprudence can teach people to look around them and realize that answers to legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.

[2]Jurisprudence is the study and theory of law., Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. [3]Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations. General jurisprudence can be broken into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups?

1.) Problems internal to law and legal systems as such.

2.) Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

[4]Law and rules are very essential for the society to be in peace and development of the society, According to Anson’s observation that people are very much conscious about their future security. Men are like to reproduce something approaching to consistency.

This article will be discussed on natural law (theory of Jurisprudence), history of jurisprudence, investigation into law, society and law,  Lawful purpose, Kinds of Law, Difference classification of law, Source of law, Function of the law, Principles of law, Concept of law and Jurisdiction and venue etc.

2. Natural Law –Theory of Jurisprudence
[5]Natural Law is a moral theory of jurisprudence, which maintains that law should be based on morality and ethics. Natural Law holds that the law is based on what’s “correct.” Natural Law is “discovered” by humans through the use of reason and choosing between good and evil. Therefore, Natural Law finds its power in discovering certain universal standards in morality and ethics. Sovereignty is, however, only a part of state. So, in ultimate sense, law emanates from the state.  Thus the term law is used to denote rules of conduct emanated from and enforced by the state. People living in an organized society have to follow certain common rules, otherwise peaceful living is impossible. It is the function of the state to enforce these rules.

The Greeks — Socrates, Plato, and Aristotle emphasized the distinction between “nature” (physis, ?ú???) and “law,” “custom,” or “convention” (nomos, ?ó???). What the law commanded varied from place to place, but what was “by nature” should be the same everywhere. Aristotle (BC 384—322) is considered by many to be the father of “natural law.” In Rhetoric, he argues that aside from “particular” laws that each people has set up for itself, there is a “common law” or “higher law” that is according to nature (Rhetoric 1373b2–8).

[6]The Stoics — The development of natural law theory continued in the Hellenistic school of philosophy, particularly with the Stoics. The Stoics pointed to the existence of a rational and purposeful order to the universe. The means by which a rational being lived in accordance with this cosmic order was considered natural law. Unlike Aristotle’s “higher law,” Stoic natural law was indifferent to the divine or natural source of that law. Stoic philosophy was very influential with Roman jurists such as Cicero, thus playing a significant role in the development of Roman legal theory.

The Christians — Augustine (AD 354—430) equates natural law with man’s Pre-Fall state. Therefore, life according to nature is no longer possible and mankind must instead seek salvation through the divine law and Christ’s grace. Gratian (12^th century) reconnected the concept of natural law and divine law. “The Human Race is ruled by two things: namely, natural law and usages (mos, moris, and mores). Natural law is what is contained in the law and the Gospel. By it, each person is commanded to do to others what he wants done to himself and is prohibited from inflicting on others what he does not want done to himself.” (Decretum, D.1 d.a.c.1; ca. 1140 AD)

3. History of Jurisprudence:

Jurisprudence already had this meaning in Ancient Rome even if at its origins the discipline was a (periti) in the jus of mos maiorum (traditional law), a body of oral laws and customs verbally transmitted “by father to son”. Praetors established a workable body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex then would judge a remedy according to the facts of the case.

[7]Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitable interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.

Under the Roman Empire, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The scientific depth of the studies was unprecedented in ancient times.

[8]After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian‘s Corpus Juris Civilis was born.

In ancient Indian vedic society, the law or Dharma, as followed by Hindus was interpreted by use of “Manu Smrti” – a set of poems which defined sin and the remedies.^{[citation needed]} They were said to be written between 200 BC – 200 AD. In fact, these were not codes of law but norms related to social obligations and ritual requirements of the era.

4. Investigation

[9]Investigations involve a number of interrelated intellectual and manual processes

Investigation Steps

1. Planning b. Making a Prediction/Hypothesis, c. Collecting Evidence d. Recording and Presenting e. Interpreting and Evaluating.

5. Society and Law

[10]A ‘common bond’ is formed when some uniformity of factors like nearness, nature of people, habit, custom, inhibitions, beliefs, culture, tradition etc. The ‘common bond’ leads of forming social rules or rules of social behavior. The rules are made by member of the society. Disobedience of the rules is followed by punishment in the form of social disapproval. There is no positive penalty associated with the violation of social rules except excommunication or ostracism.

6. Lawful Purpose

[11]An agency can only be created to accomplish a lawful purpose. Agency contracts that are created for illegal purposes or are against public policy are void and unenforceable. For example, a principal cannot hire an agent to kill another person.

Duty of company and rights of interested party as regards registration

[12]Every company has to file with the registrar for registration the prescribed. Particulars of every mortgage or change created by the company and of the issue of debenture of a series, requiring registration under section 159 and requisition of any such mortgage or change may be also affected on the application of any person interested therein.

7. Kinds of Law

Every citizen ought to know the Law of the Land. There is no excuse for not knowing the law. [13] It will not help a person defend him or herself in a legal crisis. Ignorance can never be explained away. Even when you have not acted against the law, you might need to know the law in order to protect yourself from people who might violate the law. To know ones rights and privileges is not only beneficial, it is absolutely essential. You will never know when the information you have at your disposal might come in handy. Having it ready before any crisis strikes will help you take immensely wiser and more informed decisions which you will not regret later. Just as there are varied disciplines in the field of medicine, there is a wide range of divisions when it comes to law. For instance, everyone knows that you don’t visit a general physician for a severe heart ailment. You want to consult a heart specialist in this case. Likewise, for every particular type of law, there are specific attorneys who specialize in that particular field. It really helps to search and identify the suitable attorney for your particular case, instead of heading to the nearest or most familiar attorney for every case. Following are some types of law:

Admiralty Law

[14]The Admiralty Law is also known as Maritime Law and governs all U.S. All countries have maritime laws and they are responsible for their vessels regardless of which ocean they are sailing in. Admiralty Law Attorneys represent cases of all matters concerning cargo disputes, oil pollution, fishing regulations, international trade, cargo and injury that take place on docks and vessels. Admiralty Law Attorneys also offer advice on trade laws, legal matters concerning environmental groups and the protection of endangered species. Admiralty Law also covers freight and passenger liabilities.

Aviation Law

[15]Laws have been instituted by state and federal governments to enhance safety in air traffic. Aviation Laws in the United States govern aircraft operations and the maintenance of aircraft facilities.

Bankruptcy Law

[16] In bankruptcy the law provides protection to you, the borrower, when you are unable to repay your debts and a means to present a workable resolution to your creditors. If you cannot come to an informal or formal agreement to repay your debts with your creditor then you may want to proceed with bankruptcy.

Civil Rights

[17]A Civil Rights Attorney has the responsibility of defending the rights and privileges granted to all United States citizens. These include freedom from slavery, freedom to vote, freedom of assembly, freedom of the press, freedom of speech and the right to be treated fairly in public places.

Consumer Rights

[18]The Attorney General of a particular state houses the division of Consumer protection and its team of consumer fraud attorneys. Complaints about misleading advertising or business practices that are unlawful can be filed and that division investigates and mediates on behalf of the consumer.

Corporate Law

[19]A corporation is a legal entity created through the laws of its state of incorporation. Individual states have the power to disseminate laws relating to the creation, organization and dissolution of corporations. Many states follow the Model Business Corporation Act.

Criminal Law

[20]A “crime” is any act or omission (of an act) in violation of a public law forbidding or commanding it. Though there are some common law crimes, most crimes in the United States are established by local, state, and federal governments. Criminal laws vary significantly from state to state. There is, however, a Model Penal Code which serves as a good starting place to gain an understanding of the basic structure of criminal liability.

Employment Law

[21]Employment laws are put into place to protect employees from any mistreatment by their employers and are a vital part of a country’s efforts to protect its citizens.

Immigration Law

[22]Federal immigration law determines whether a person is an alien, and associated legal rights, duties, and obligations of aliens in the United States. It also provides means by which certain aliens can become naturalized citizens with full rights of citizenship.

8. Different classifications of law

• Public Law vs. Private Law: Public laws are those laws that are relevant to matters affecting your entire community (e.g. laws about criminal activity or the environment). Private laws are laws that are most relevant to individuals (e.g. laws dealing with property ownership or employment contracts).

• Civil Law vs. Criminal Law: This is almost the same as the public vs. private classification. Civil laws are those that deal with the enforcement of the rights of individuals (e.g. laws that deal with families or defamation). Criminal laws relate to matters affecting the stability and peacefulness of your wider community (e.g. the laws against theft and murder).

• Common Law vs. Statute Law: A law that is developed by parliament is known as a statute law. A law that is developed in response to the rulings of the court is known as a common law. To find out more about the Victorian Parliament, visit our ‘Parliament & the law‘ page.

• State vs. Federal Law: State laws operate within the boundaries of the state whose parliament or courts developed the law. Federal laws apply throughout Australia. Whether a law is state or federally based determines which court will consider the breaking or alleged breaking of that law. An example of a state-based law is the Equal Opportunity Act 2010 (PDF, 1198KB). An example of a Federal law is the Competition and Consumer Act 2010 (new window), which deals with consumer law throughout Australia.

9. Source of Law:

States regulate arbitration through a variety of laws. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England). In addition to this, a number of national procedural laws may also contain provisions relating to arbitration.

By far the most important international instrument on arbitration law is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Some other relevant international instruments are:

• The Geneva Protocol of 1923
• The Geneva Convention of 1927
• The European Convention of 1961[23]The Washington Convention of 1965 (governing settlement of international investment disputes)
• The UNCITRAL Model Law (providing a model for a national law of arbitration)
• The UNCITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration)

10. Function of the Law

[24]Functions of laws are as follows:

• Keeping the peace, which includes making certain activities crimes?
• Shaping moral standards (e.g., enacting laws that discourages drug and alcohol abuse).
• Promoting social justice (e.g., enacting statutes that prohibit discrimination in employment)
• Marinating the status quo (e.g., passing law preventing the forceful overthrow of the government).
• Facilitating orderly change (e.g., passing statues only after consideration study, debate, and public input).
• Facilitating planning (e.g., well-designed commercial laws allow business to plan their activities, allocating their productive resources, and assess the risks they take).
• Providing a basis of compromise (approximately 90% of all lawsuits are settled prior to trail).
•  Maximizing individual freedom (e.g., the rights of freedom of speech, religion, and association granted by the First Amendment to the U.S. Constitution)

11. Principles of law

Principle #1: SOVEREIGNTY OF INDIVIDUALS.[25]

1. Governments can only derive their just powers from the sovereign powers of their individual members.

B.  All persons are rightfully sovereign over those affairs, which do not infringe upon the rights of others.

C.  All persons reaching an age and ability to take care of themselves and be responsible for their actions can claim status as sovereign individuals.

Principle #2: SOVEREIGNTY OF THE FAMILY.[26]

1. Families, composed of a man and a woman and their natural or legally adopted children, act as a special sovereign unit over the health, welfare and education of their children until such children reach the age or capability of exercising individual sovereignty and self-responsibility.
2. Families, therefore, possess the ultimate authority over the health, welfare and education of their children unless the actions of the parents constitute an actual or imminent threat to the life of the child.
3. Once new life is conceived, in a consensual relationship, a family unit is formed and both parents must accept responsibility for the care and upbringing of the child until it reaches the age and ability of exercising individual sovereignty.

Principle #3: RECOGNITION OF FUNDAMENTAL RIGHTS.[27]

1. Fundamental rights are those rights that all persons can claim simultaneously without forcing others to serve them.
2. Fundamental rights are superior to all other earthly law and should never be made subject to majority rule. No law or claim of state sovereignty to enforce a law is valid if the law constitutes a violation of any fundamental right.
3. Fundamental rights are best secured by a citizen compact where all parties agree to recognize and defend those rights.

Principle #4: GOVERNMENT AS AN EXTENSION OF INDIVIDUAL SOVEREIGNTY.[28]

1. The formation of a government with enforcement powers is an extension of two specific fundamental rights–the right to contract with willing parties and the right to act in self-defense of fundamental rights.
2. In forming and authorizing a government to enhance the right of self-defense, the individual does not cede nor limit any fundamental rights except as specifically agreed upon.
3. Thus, a government that is granted enforcement powers and is governed by majority rule should only be formed by initial unanimous consent of those to be governed by such.
4.  A proper government is controlled by a constitution that limits majoritarian powers and establishes a sovereign nation composed of sovereign states that jointly and severally protects our rights through a republican form of government.

Principle #5: LIMITATIONS ON GOVERNMENT POWERS.[29]

1.  Government’s only proper role of enforcement power is to defend the fundamental rights of the persons joining together to form, authorize and support such government.

B. All levels of government must be strictly limited in their respective legislative and enforcement powers to those powers specifically granted to them by the citizens of each jurisdiction which do not violate the fundamental rights of individuals.

C. Governments may also act as a cooperative enterprise in behalf of any portion of its citizens, as long as such services are provided exclusively on a user-fee or voluntary donation basis.

Principle #6: GOVERNMENT SEPARATION OF POWERS.

A. within the proper limitations of government powers, an effective government will be structured so that representation will reflect both territoriality and population.

B. In addition, to avoid concentrations of power, at each level of government, there should be a separation of executive powers, legislative powers, judicial powers, and those oversight powers retained by the citizens.

C. Each separate jurisdiction of government, including citizens, should have investigative and enforcement powers to ensure access to truth, expose corruption, and enforce compliance within their proper and respective realms of authority.

Principle #7: JUDGMENT AND PUNISHMENT FOR CRIMES.[30]

A. in criminal proceedings, equal justice through due process of constitutional law should be provided all citizens and residents. Due process should always include the right of the accused to have ready access, in person, to a representative of his choice to prepare a defense, the right to a speedy and public hearing on the cause for detention, and timely trial not to exceed a certain time limit from the time of detention.

B. The accused should be considered as innocent as the current level of credible evidence permits.

C. Access to the courts to defend one’s fundamental rights, in criminal cases, should never be denied due to inability to pay, although the assessment of reasonable user fees and fines are appropriate once guilt and blame are established. Access to the courts for civil proceedings may be limited to those who sustain and support the legal system. It is inappropriate for the Courts, in either criminal or civil matters, to grant court-approved representatives the exclusive power to represent persons before the court.

D. Punishment for infractions of law should be uniformly applied to all offenses of similar threat to fundamental rights. Punishments should be fair, proportional to the offense, provide deterrence, provide restitution to victims by the perpetrators, and remove permanently from society chronic offenders who refuse to control their predation upon others.

E. All prosecution of criminal acts should be tried before a judge and citizen jury, trained in the applicable law, where the judge is responsible to ensure that rights of all parties are protected and the jury has the power to judge the facts of the case, the applicability of the law to the particular case, and the appropriate punishment. Access to a jury trial should be an absolute right for all criminal cases and an absolute option for civil cases, where the parties to the case are willing to accept their share of the appropriate user fees.

Principle #8: PROPER FUNDING OF GOVERNMENT[31]

A. Government should be financed by general taxes only for universal services that are directly related to the defense of fundamental rights of all and that render no specific benefit to an individual or group constituting less than the whole.

B. User fees must be employed to cover all costs, and only those costs, for any direct government services or benefits to individuals, groups, and such user fees should be applied to those same services, which produce the fee.

C. A mix of general tax revenues and user fees is appropriate to support a single government service which provides both a general protection of rights and a specific legal or other service to an individual or group.

D. The type of taxation employed should be directly levied upon the persons or properties protected by government services.

E. Taxation should never be allowed on commerce, income, inheritance or gifts, Neither should taxes be hidden within an economic price, interfere with or distort economic processes, or force any person to pay a higher proportion of taxes when no higher protection is required from government services.

F. There must be no taxation without representation and no form of taxation voted upon with majoritarian powers should be valid unless applied to all citizens and residents.

G. No state should be allowed to incur a budget deficit and no deficit should be allowed at the national level except in time of declared war. All government liabilities and expenditures should be included in the budget.

H. Total indebtedness should not exceed a certain percentage of total annual tax revenue of any government entity (perhaps, 10%) and every separate debt issue should be retired within 10 years so that those who vote for it pay for its retirement. No tax burden should be shifted to the next generation through debt or unfunded entitlement programs.

Principle #9: LIMITS ON POLICE POWER.[32]

A. Military and police power of government should only be used to prosecute and punish actual violations of fundamental rights of its citizens, or imminent threats to those rights, whether foreign or domestic.

B. Citizens should be secure in their privacy from government search, intrusion, surveillance, and seizure except when credible evidence exists of a crime against fundamental rights or an imminent threat to liberty.

C. Government power to enforce secrecy should not be applied to the specific knowledge any person may have concerning crimes committed by government officials.

D. Officers of government should not have immunity from acts committed by themselves or by others under their knowing supervision that violate the fundamental rights of others.

E. In Foreign affairs, any assistance in behalf of liberty given to other nations or peoples, where a significant threat to this nation’s rights cannot be demonstrated, should be encouraged and allowed by government, but carried out by voluntary measures.

F. No citizens or residents of this nation should be allowed to use the shield of government protection of fundamental rights herein to undermine the efforts of other foreign persons seeking to establish similar fundamental rights.

Principle #10: CITIZENSHIP BY COVENANT AND QUALIFICATION[33]

A. Citizenship should be by covenant and qualification rather than by birth alone, whereby the fundamental rights of citizens, voluntary limitations on those rights, and the duties and responsibilities of both citizens and government are clearly specified.

B. It is, therefore, proper to establish other classifications of residence for the protection and training of those not yet qualified for citizenship.

C. Children of citizens fall under the protection of their parents’ citizenship until reaching an age or ability to become self-responsible, or they become disqualified by criminal or rebellious behavior.

Principle #11: CITIZEN ACTIONS FOR SELF-DEFENSE.[34]

A. All citizens should be free to own and possess the means of effective personal protection and to use appropriate force to protect life and property from harm when police forces are not immediately available or willing to help.

B. Citizens acting in self-defense of fundamental rights should use only the force necessary to eliminate the perceived threat.

C. A privately armed citizenry also serves as a proper counter-force and deterrence to government tyranny. [This principle recognizes the legitimate role that an armed citizenry has in deterring government tyranny. This is essential since the threat of government tyranny is very real today, but carefully hidden.

Principle #12: FREELY COMPETING, NON-COERCIVE VALUES. [35]

A. All non-coercive values should be free to compete for adherents in both private and public domains, with government serving only in its role of maintaining public order.

B. Government should never use general revenues or its lawmaking power to establish or promote any system of belief except that which directly protects fundamental rights or which is agreed upon by all participants in a citizen compact covering “community standards” of public conduct.

C. Officials should not be restricted, however, from making statements of personal belief, including religious references to a duty to God or a belief in a Supreme Being, or praying publicly to God, as long as such pronouncements are stated as their own personal beliefs or feelings, represent part of his or her leadership role to constituents, and do not require mandatory acceptance by others.

D. Private Citizens should not be prohibited from using public property on a temporary basis, without cost to the government, for religious or other celebrations of belief as long as such activities are voluntary and coordinated with other normal public needs.

E. Officials should not, in an official capacity, publicly disparage the beliefs of others, unless those beliefs violate fundamental rights.

12. Concept of Rule

Law can be analyzed in terms of rules which are largely based on Hart’s theory of law. According to him, rules are concerned not with what happens but with what is to be done. Rules are imperative or prescriptive rather than indicative or descriptive. Rules have a certain independence or self-legitimating character. Rules are different from commands. Commands normally call for one unique performance whereas rules have a general application and demands repeated activity. In some cases rules are constitutive and define the activity in a question like rules of a game while in others they regulate activities which would take place in any case whether the rules existed or not like rules of grammar, of morals and of law.

Primary Rules

Primary rules regulate the behavior of man in the society. These rules either grant rights or impose obligations on the members of the society.
Example:- Rules of criminal law forbidding murder, robbery, rash driving are primary rules, tort rules, the individual right to freedom of speech ,the provisions of contracts that define the primary obligations of the parties, the environmental law rule that forbids discharge of toxic substances in rivers and streams etc.
Secondary Rules

Secondary rules are those that stipulate how and by whom the primary rules may be formed, recognized modified or extinguished.

Example: – Contract law rules that enable parties to form contracts, the rules that allow testators to create a will, the constitutional rules that confer legislative powers on Congress, the statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.

13. Jurisdiction and Venue

[36]Not every court has the authority to hear all types of cases. A court must have jurisdiction to hear and decide a case. There are two types of jurisdiction: (1) subject matter jurisdiction and (2) in personam, in rem, or quasi in rem jurisdiction. To hear and decide a case, a court must have subject matter jurisdiction over the subject matter of the case. Some court have only limited jurisdiction. For example, certain state courts, such as probate courts and small claim courts, can hear only designated types of cases. If a court does not have subject matter jurisdiction, it cannot hear the case.

[37]Jurisdiction over the person is called in personam jurisdiction or personal jurisdiction. A plaintiff, by filing a lawsuit with a court, gives the court in personam jurisdiction over himself. The court must also have in personam jurisdiction over the defendant, which is usually obtained by having that person served a summons within the territorial boundaries of the state (i.e., service process). Services of process are usually accomplished by personal services of the summons and complaint on the defendant.

14. Conclusion

[38]The view of Lord Lloyd is that Hart’s description of a developed legal system in terms of a union of primary and secondary rules is undoubtedly of value as a tool of analysis of much that has puzzled both the jurists and the political theorists. It  seems to recognize that a legal system is not necessarily as comprehensive as  appears to indicate since Hart’s suggests that there are other elements in a legal system, and in particular the “open texture” of legal rules as well as the relationship of law to morality and justice. This is an over-simplification of a point. It can be said that many of the so called rules of recognition do not so much confer power but specify criteria which are to be applied in particular cases, such as the rules of procedure and evidence. It is doubtful whether all the so-called secondary rules can properly be treated as a unified class.
The same rule can create a power plus a duty to exercise it, or a power plus a duty not to exercise it. Social and moral considerations may set limits on a rule of recognition at the time of acceptance. So that we could say Jurisprudence is the name given to a certain type of investigation into law, an investigation of an abstract, general and theoretical nature which seeks to laid bare the essential principles of law and legal system.

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