“Jurisprudence is the observation of things, human and divine and the knowledge of just and unjust.”-illustrate
Introduction:
The term jurisprudence has a broader meaning and perspective. The Roman jurist Ulpian defined Jurisprudence as “The observation of things human and dive, the knowledge of just and unjust.” He mainly emphasized on observing the surrounding circumstances and then to come to a conclusion of how nature works to prevail just and unjust. Jurisprudence is treated as the theoretical or more abstract part of law as a discipline.
Jurisprudence:
Salmond defined Jurisprudence as the “Science of the first principles of civil law”. In Salmond’s point of view, Jurisprudence thus deals with civil law or the law of the state. This kind of law consists of rules applied by courts in the administration of justice.
There are three kinds of laws that govern the conduct of human in a society.
- Theologian Laws – which derive their authority from a divine or superhuman source intended to regulate human conduct as well as beliefs and is enforced by spiritual rewards or penalties in the other world.
- Moralist Laws – these are man-made laws that exist in all societies, both primitive and most civilized. There is no definite authority to enforce the laws, but the public.
- Jurist Laws – it regulates external human conduct only and not inner beliefs. They can exist in politically organized societies which has a Government. They are enforced by courts or judicial tribunals of the society which applies a variety of sanctions ranging from fines to capital punishments.
In the Anglo-American tradition the heritage and the activity are classified into broadly defined, but overlapping, fields. Julius Stone categorized them as analytical jurisprudence, sociological (or functional) jurisprudence, and theories of human law and justice (censorial, critical, or ethical).
Austin defined Jurisprudence as the “Philosophy of Positive Law”. Positive Law means the law laid down by political superior to regulate the conduct of those subjects in his authority. The positive law is identical to civil law. However, the term Philosophy is misleading. Philosophy is the theory of things, man and divine, while Jurisprudence only deals with man-made law.
Holland defined Jurisprudence as “The Formal Science of Positive Law”. He said “Jurisprudence deals with the human relations which are governed by rules of law rather than with the material rules themselves.” Formal science differs from material science in the way that formal science deals with fundamental principles underlying and not concrete details.
According to Gray, jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the Courts and the principals involved in those rules.
It will appear from the above definitions that although Salmond, Holland and Gray define jurisprudence as the science of law, Prof. Gray adopts a different meaning with regard to the term law. He links the term ‘Jurisprudence’ with a scientific declaration and procedure of the rules trailed by the Courts and of the principals elaborated in those rules.
Salmond deals with the theoretical or general jurisprudence and calls it as the science of the first principles of the civil law. Holland, who are calls jurisprudence as a science which is prescribed or logical rather than a material one. According to him, it is the science of actual, or positive law and is erroneously divided into ‘general’ and ‘particular’ or into ‘philosophical’ and ‘historical’.
Modern writers reach on an agreement that the term jurisprudence does not merely fetch knowledge of law; it covers a field much wider than this. According to Allen, it is the scientific mixture of the essential principles of law, To Paton it is a particular method of study, not of the law of one country but of the general notion of law itself. It is, according to him, a study relating to law, And, according to Professor Keeton, it is a study and systematic arrangement of the general, principles of law, understanding the phrase “the general principles of law” in its widest sense.
History of Jurisprudence:
It can be summarized like; Jurisprudence is the study and theory of law. Scholars of jurisprudence or legal theorists, legal philosophers and social theorists of law, they all hope to obtain a deeper understanding of the nature of law, of legal reasoning, of legal systems and of legal institutions. 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.
Jurisprudence already had this meaning in Ancient Rome even if at its origins the discipline was a (periti) in the just of mos maiorum (traditional law), a body of oral laws and customs verbally transmitted “by father to son”.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2] 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.
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 legal concepts, while remaining in the traditional scheme. 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.
After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire 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. 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.
Aristotle is often said to be the father of natural law. He posited the existence of natural justice. His association with natural law is due largely to the interpretation given to him by Thomas Aquinas. Aquinas’s influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.
Aristotle’s theory of justice:
Aristotle’s theory of justice is bound up in his idea of the golden mean. Indeed his treatment of what he calls “political justice” derives from his discussion of “the just” as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics.and begins by asking what sort of mean a just act is. He argues that the term “justice” actually refers to two different but related ideas: general justice and particular justice. When a person’s actions are completely virtuous in all matters in relation to others, Aristotle calls her “just” in the sense of “general justice;” as such this idea of justice is more or less coextensive with virtue. “Particular” or “Partial justice”, by contrast, is the part of “general justice” or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to the subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature here are about the grounding of the morality enacted as law not the laws themselves. The passage here is silent as to that question.
The best evidence of Aristotle’s having thought there was a natural law comes from the Rhetoric, where Aristotle notes that, where there is a “particular” laws that each people sets up for himself, there is a “common” law that is according to the nature. It proposes only that Aristotle directed that it could be rhetorically beneficial to appeal to such a law, especially when the “particular” law of one’s’ own city was opposing to the case being made, not that there actually was such a law; Aristotle, moreover, deliberated two of the three candidates for a universally valid, natural law recommended in this passage to be wrong. Aristotle’s theoretical paternity of the natural law tradition is accordingly uncertain.
Justice:
Justice is the continuous and everlasting wish to render everyone his due.
The maxims of law are these: to live honestly, to hurt no one, to give everyone his due.
Having explained these general terms, we think we shall inaugurate our explanation of the law of the Roman people most favorably, if we pursue at first a plain and easy path, and then proceed to explain specific details with the greatest care and exact ness. For, if at the outset we overload the mind of the student, while yet new to the subject and unable to bear much, with a multitude and variety of topics, one of two things will happen—we shall either cause him wholly to abandon his studies, or, after great slog, and often after great distrust of himself (the most frequent stumbling-block in the way of youth), we shall at last conduct him to the point, to which, if he had been led by an easier road, he might, without great labor, and without any distrust of his own powers, have been sooner conducted.
Law:
The study of law is divided into two branches; that of public and that of private law. Public law regards the government of the Roman Empire; private law, the interest of individuals. We are now to treat of the latter, which is composed of three elements, and consists of precepts belonging to natural law, to the law of nations, and to the civil law.
Demonstration of individual work:
What seem to be just and what seem to be unjust totally depend on circumstances and perceptions. People usually label a certain act as just or unjust regarding their own knowledge of coming to an opinion. For example, to a farmer, keeping possession of his land will seem just instead of letting it to be used for the purpose of creation of a road for the betterment of the mass people. At the same time, taking that land for the purpose of creation of road might seem just to those people who will be the beneficiaries. Argument can go on and on and on to maintain a balance between what is just and what is unjust, and here comes the scope for the introduction of legal provisions.
Conclusion:
Laws give us a set of standards so that what seems just to one person will not seem unjust to another. Laws maintain a level of standard so that everybody who seeks justice shall not be abandoned. And Jurisprudence is the term that defines law in a way that it will deliver and differentiate between the just and unjust through the observation of surroundings. Even if the judgment goes against anyone’s own benefit, the standard shall not be questioned as for the betterment of the whole, though it depends largely as I have mentioned earlier. With these observations came the urge for Human Rights laws which cannot be violated now-a-days without being accounted for. Such as right to life, right to freedom of expression, right to peaceful assembly, right to religion, formation of family etc. have been enumerated in the European Convention of Human Rights (ECHR). The current Human Rights Act 1998 acts for the protection of these rights in the country’s own legislation. Whichever country being part of the European Convention of Human Right cannot make any legislation which is non-compliant with any of the provisions of the European Convention of Human Right.
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