Introduction:
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. 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.[1] 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:[2]
- 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.
- Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have.
- Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are.
- Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in sociology of law.
- Critical legal studies is a younger theory of jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an expression of the policy goals of the dominant social group.
Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.
Natural Law – Theory of Jurisprudence
Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have.
Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts although positivists differ on what those facts are.[3]
Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in sociology of law.
Critical legal studies is a younger theory of jurisprudence that has developed since the 1970s which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as an expression of the policy goals of the dominant social group.
Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated a constructivist theory of jurisprudence that can be characterized as a middle path between natural law theories and positivist theories of general jurisprudence.
History of Jurisprudence:
The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning “law”, and prudentia means “prudence” (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters). The word is first attested in English in 1628,[4] at a time when the word prudence had the now obsolete meaning of “knowledge of or skill in a matter”. The word may have come via the French jurisprudence, which is attested earlier.
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.
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.
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.[3]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.
Analytic, or ‘clarificatory’, jurisprudence means the use of a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be.[5] David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: “What are laws?”; “What is the law?”; “What is the relationship between law and power/sociology?”; and “What is the relationship between law and morality?” Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
Positivism simply means that law is something that is “posited”: laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.
- What the law is – is determined by historical social practice (resulting in rules)
- What the law ought to be” – is determined by moral considerations.
Society and Law
“Society and Law” is working on the issue of the legal information and legal education among the Tajikistan citizens, as well as of the development of the NGO legislation in Tajikistan. They currently support the creation of two drafts of law, “On non-commercial organizations” and “On charity and charitable organizations”, which will support NGO activity in (6)
Their other current project is the creation of the Tajik Information and Legal Aid center for Refugees, Asylum Seekers and IDPs (internally displaced persons). “Society and Law” devotes particular focus to providing legal protection and support for refugees from Afghanistan.
Lawful purpose
Lawful purpose shall mean charitable or community betterment purposes, including, but not limited to, one or more of the following:
Benefiting persons by enhancing their opportunity for religious or educational advancement, by relieving or protecting them from disease, suffering, or distress, by contributing to their physical well-being, by assisting them in establishing themselves in life as worthy and useful citizens, or by increasing their comprehension of and devotion to the principles upon which this nation was founded;
Initiating, performing, or fostering worthy public works or enabling or furthering the erection or maintenance of public structures; and Lessening the burdens borne by government or voluntarily supporting, augmenting, or supplementing services which government would normally render to the people.
Sources of law
Sources of law means the origin from which rules of human conduct come into existence and derive legal force or binding characters. It also refers to the sovereign or the state from which the law derives its force or validity. (7)
Several factors of law have contributed to the development of law. These factors are regarded as the sources of law.
1 Precedents
2 Customs
3 Legislation
4 Statutory interpretation
5 Preparatory works
Precedents : Precedent is one of the sources of law. The judgements passed by some of the learned jurists became another significant source of law. when there is no legislature on particular point which arises in changing conditions, The judges depend on their own sense of right and wrong and decide the disputes. such decisions become authority or guide for subsequent cases of a similar nature and they are called precedents.
Customs: A custom is a rule which in a particular family or in a particular district or in a particular section, class or tribe, has from long usage obtained the force of law.
Legislation: Legislation is that source of law which consist in the declaration of legal rules by a competent authority. Legislature is the direct source of law. Legislature frames new laws, amends the old laws and cancels existing laws in all countries. In modern times this is the most important source of law making.
Functions of Law
The purpose of law as well as what exactly deems something lawful does have its contrasting reasoning’s since each may vary depending on the region you reside within. In general law serves five main functions: it cultivates and ensures the existence of adequate order, provides resolutions to conflicts, provides a safe haven for individuals and their assets, maintains the structured operation of the civilization, and protects civil liberties as set forth in each nation’s constitution.
In reference to its maintenance of order, law must decide exactly what is lawful and what is not. In this same way, the purpose of law remains to provide a basis for which one may lead a lawful life, with the well being of others as a consequence of such a function.
Law is, therefore, existent to maintain the safety of lawful citizens from those who are unlawful. In order to proceed as doing justice for all, it must then be employed equally amongst all, and not just a select few. Law exists as a rigid yet stable force by which people are to follow. It serves as a means to prevent the arbitrary rule of lackluster leaders who may decide to take over whole nations. The purpose of law is to maintain the order of the country despite changes in leadership.
It helps to remind all those who may have assumed new power that what is and isn’t lawful remains the same despite their advent into the head of the ruling party. Regulation of power is also what law takes into account as no one, not even the president, possesses full reign over the country due to the existence and practice of law. The purpose of law is to maintain individual freedoms, while still keeping in mind what is moral and right.
In terms of the judicial system, the purpose of law is attached to the way in which judges may rule over cases brought forward for their specific attention. Without the presence of law, there could never be judgment over what is or is not lawful. Therefore, judges would be left to decide based on frivolous beliefs that may have no basis whatsoever.
Principles of Law
Laws are made for man (read: men, women, society); and by man, to reflect the dreams and aspirations, the hopes, fears and insecurity, and the times of man, singly or as a collectivity.(8) Hence, the primary principles are:
1) All laws are made by man (read: men, women, society), and for man.
2) Man was not made for the law.
3) No law shall be caused to be attributed to Divinity, Deity, Principality, Royalty, or Celebrity, in an effort, hope or desire to solemnize such law or make it more respectable, urgent, permanent or more supreme.
The laws of a Nation and her society are a reflection of that Nation and her society.
Crime and Punishment
Societies have a right to define, by their laws, what is CRIME and what the appropriate PUNISHMENT should be. Individuals in the society, hopefully summing up to the majority of society herself, have a right, responsibility and duty to continuously evaluate the laws of the society, the definition of crime, the application of justice and the meting out of punishment, and insist on real changes whenever necessary, in order to reflect change, reason and reality. Justice must be just, to be applied with blind equity but also with human compassion.
Crime must be defined in terms of actual deed or act, and when applicable and to the extent predefined by law, provable intent.
Crime shall not be imputed merely by reason of inheritance—genetic or otherwise—or by reason of association, unless there is legal proof of commission or active complicity.
Punishment for crime must not be out of proportion to the crime.
Above all, punishment for crime must not be inhumane.
The Concept of Law
The Concept of Law (ISBN 0-19-876122-8) is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart’s theory of legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality) within the framework of analytic philosophy. In this work, Hart sets out to write an essay of descriptive sociology and analytical jurisprudence. The Concept of Law provides an explanation to a number of traditional jurisprudential questions such as “what is law?”, “must laws be rules?”, and “what is the relation between law and morality?”. Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms. As a result Hart’s view has remained one of the most influential in jurisprudence. (9)
The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. The Concept of Law developed a sophisticated view of legal positivism.
Among the many ideas developed in this book are:
A critique of John Austin’s theory that law is the command of the sovereign backed by the threat of punishment.
A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules.
A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber’s distinction between the sociological and the legal perspectives of law.
The idea of the Rule of Recognition, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the concept of rule of recognition as an evolution from Hans Kelsen’s “Grundnorm”, or “basic norm.”
A late reply (1994 Edition) to Ronald Dworkin, who criticized legal positivism in general and especially Hart’s account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law’s Empire (1986).
Conclusion:
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. (10)
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.
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.
Bibliography:
1^ a b c Shiner, “Philosophy of Law”, Cambridge Dictionary of Philosophy
2^ Soper, “Legal Positivism”, Cambridge Dictionary of Philosophy
3^ Moore, “Critical Legal Studies”, Cambridge Dictionary of Philosophy
4 Shellens, “Aristotle on Natural Law.”
5^ Jaffa, Thomism and Aristotelianism.
6^ H. Rackham, trans., Nicomachean Ethics, Loeb Classical Library; J. A. K. Thomson, trans. (revised by Hugh Tedennick), Nicomachean Ethics, Penguin Classics.
7^ Joe Sachs, trans., Nicomachean Ethics, Focus Publishing
8^ “Nicomachean Ethics” Bk. II ch. 6
10^ Terrence Irwin, trans. Nicomachean Ethics, 2nd Ed., Hackett Publishing
11^ a b Nicomachean Ethics, Bk. V, ch. 3
12^ “Nicomachean Ethics”, Bk. V, ch. 1
13^ Nicomachean Ethics, Bk. V, ch. 7.
14^ Rhetoric 1373b2–8.
15^ Shellens, “Aristotle on Natural Law,” 75–81
16^ “Natural Law,” International Encyclopedia of the Social Sciences.
17^ Louis Pojman, Ethics (Belmont, CA: Wadsworth Publishing Company, 1995).
18^ Basically meaning: the people of a society are prepared give up some rights to a government in order to receive social order.
19^ On the Sources of Islamic Law and Practices, The Journal of law and religion [0748-0814] Souaiaia yr: 2005 vol: 20 iss: 1 pg: 123
20^ Wael B. Hallaq (1993), Ibn Taymiyya Against the Greek Logicians, p. 48. Oxford University Press, ISBN 0-19-824043-0.
21^ See H L A Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harv. L. R
[1] Jurisprudence is the study and theory of law. Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law)
2 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.
3 Natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human-created laws gain whatever force they have.
4 The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning “law”, and prudentia means “prudence” (also: discretion, foresight, forethought, circumspection; refers to the exercise of good judgment, common sense, and even caution, especially in the conduct of practical matters).
5 Analytic, or ‘clarificatory’, jurisprudence means the use of a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be
6 Society and Law is working on the issue of the legal information and legal education among the Tajikistan citizens, as well as of the development of the NGO legislation in Tajikistan.
7 Sources of law means the origin from which rules of human conduct come into existence and derive legal force or binding characters. It also refers to the sovereign or the state from which the law derives its force or validity.
8 Laws are made for man (read: men, women, society); and by man, to reflect the dreams and aspirations, the hopes, fears and insecurity, and the times of man, singly or as a collectivity.
9 The Concept of Law (ISBN 0-19-876122-8) is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart’s theory of legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality) within the framework of analytic philosophy.
10 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.