1.

Explain nature , value , significance and utility of jurisprudence

The term Jurisprudence is a Latin term having meaning ‘Knowledge of Law or

Skill of Law’ (Juris=Law). (Prudence=Knowledge of Law).

It is defined as a study of the fundamental legal principles including their

philosophical, historical, and sociological bases, and, an analysis of legal concepts.

Jurisprudence study about the law and includes the study of the term law, sources of
law and legal terminologies.
It has been defined by various authors as follows:-
1. Salmond:-Jurisprudence is defined as the Science of Law. In science, there is
a systematic study of Nature and in Jurisprudence there
is a systematic study of Law.
2. Austin:- According to this author Jurisprudence is the philosophy of Positive
Law. And it governesses all actions of human being
which are illegal and unjustified.
3. Gray:- According to this author Jurisprudence is the study of legal systems of all
the countries.
4. Duguit :- According to this author Jurisprudence is knowledge of just and unjust.
And Human law and Divine Law or Natural law.

Nature of Jurisprudence

1. It is Uncodified Law
2. It is common law in all countries
3. This law has been developed and not enacted by the Legislative.
4. It is also called legal theory, there is an actual study of the term law in
Jurisprudence.
5. There is no scope for amendment and it is developing out of legal knowledge of
the people.

Scope Or Values of Jurisprudence

There is a wide scope of Jurisprudence and it is related to so many other subjects

that can be explained as follows:

1. Jurisprudence and economics:-

Economics is the science of wealth. People commit many illegal activities for the sake
of wealth and law tries to control illegal activities and to punish the criminal’s same
law is studied in Jurisprudence and therefore Jurisprudence and economics are
correlated.

2. Jurisprudence and Politics:-

Laws are enacted by political parties. Who are elected by people called as
Legislatures. Jurisprudence study law enacted by political parties who are in power
and therefore Jurisprudence is also related with Political Science.

3. Jurisprudence and Sociology :-

 Sociology is also called as Science of Society. It studies about the development of
Society. Law is the requirement of Society. Which is studied in Jurisprudence and it
is related with Sociology.

4. Jurisprudence and Ethics:- (Ethics means Morality)

Ethics or morality is base of Law. Many Laws have been enacted by considering
morality. But it is not in all the laws. Therefore law and morality are ethics are also
correlated.

Importance of Jurisprudence or significance

1. It is compared with science which shows the importance of Jurisprudence.

2. It studies the legal systems of all the countries.
3. It is called as foundation or base of the law and the study of jurisprudence is much
important.
4. It is related to many other subjects which shows the importance
of jurisprudence.
5. It makes a study of term law and sources of law which is necessary.
6. It is like a tool in hands of legal expertise which is helpful in the interpretation of
the law.

Utility Of Jurisprudence:

Jurisprudence in basically a theoretical subject but it also has a

practical and educational value. The enumerated as under.
(a) Remove the complexities of law:
One of the task of jurisprudence is to construct concepts and make law more
manageable and rational.

(b) Answers the new problems:

Jurisprudence can teach people to look around them and realize that answers to new
legal problems must be found by a consideration of the present social needs and not
in the wisdom of the past.

(c) Grammar of Law:

Jurisprudence is the grammar of law. It throws light on the basic ideas and the
fundamental principles of law e.g., negligence, liability etc.

(d) Great educational value:

Jurisprudence has great educational value. The logical analysis of legal concepts
widens the outlook of lawyers and sharpens their logical technique. It helps in
 knowing and grasping the language, grammar, the basis of treatment and
assumption upon which subject rests.

(e) Useful in Art of pleading and legislation:

It helps legislators and the lawyer the proper use of legal terminology. It relieves
them of the botheration creation of defining again and again certain expressions e.g.,
right, duty etc.

(f) To Interpret law:

It helps the judges and the lawyers in ascertaining the true meanings of the law
passed by the legislatures by providing the rules of interpretation.

(g) To study foreign law.

It enable a lawyer to study foreign law because the fundamental principal are
generally common to all systems of law.

9. Conclusion:
To conclude, I can say, that jurisprudence is the science of law and there are different
methods of approach to it. The true purpose of the study of jurisprudence should not
be confined to the study of positive law alone but must include normative study, that
deal with the improvement of law in the context of prevailing, socio-economic and
political philosophies of time, place and circumstances.

2. Explain natural law theory and state its relevance

Natural law is known as a higher law or the law of nature which has been continually
dominating the entire basis of politics, Law, Religion and social philosophy. Natural
law is said to be these sets of unwritten law which contains the principles of ought as
revealed by the nature of man or reason or derived from god.

Natural law is universal and common to all humanity. It goes beyond the difference
in culture, religion and various formulation of the moral law. The Articles like Article
14, 19 and 21 has been widely interpreted in the India scenario especially by the
Indian judiciary due to largely impact of natural law theory.
Natural law (School of Jurisprudence)

1. Natural law is a philosophy of law that forces on the law of nature. This school
of jurisprudence represents the belief that they are inherent laws that is
common to all societies.
2. Natural law is also known as the moral law Divine law, the law of God, law of
Reason, law of nature, Universal law and unwritten law.
3. The school of thought tells us that the law is rational and reasonable. Natural
law proposes that laws are a logical progression from morals. Therefore,
actions that are considered to be morally wrong will be against the law.
4. The sources of Natural law was that-

 God
 Nature
 Reasons

5. The classification of Natural law school in to four parts are:-

(A) Ancient period/classical period

(B) Medieval period/middle ages

(C) Renaissance period

(D) Modern period

(A) Ancient period/classical period

The story of natural law behind the philosophers of ancient Greece. The Greeks
traditionally regarded law as being closely related to justice and ethics. Greek who
were the first distinguished law from blind faith?

The ancient period is further divided into two periods that are:

1. Greek period

The main authors of Greek period are as follows;

Heraclites ( 530-470 B.C)

The foundation of Natural law philosophy was by the Heraclites and it also gives
three aspects_ unlimited goals, stages and reason are important for the natural law.

Socrates (470-399)

According to Socrates “Law is a product of correct reasoning”1. ‘Human insight’ that

a man has capacity to distinguish between good and bad and is able to appreciate the
moral values. This human ‘insight’ is the basis to judge the law.

Plato (427-347 B.C )

It is a supporter _ minimum governance policy means “ultimate” justice is

discoverable through reason. Plato also supports the Socrates theory of Natural law.
According to Plato, we live in an orderly universe.

Aristotle (385_322 B.C)

It believes that Natural law has elements of reason, justice and ethics mean that
“Universal and immutable standards discoverable through reason and man-made
law should conform to these standards. According to him, man is a part of nature in
two ways: Firstly he is the part of the creatures of the god and secondly, he possesses
insight and reason by which he can shape his will.”2

2. Roman period

The Natural law philosophy found on expression in the Roman legal system through
the division of Roman law into three distinct divisions _ jus civil, jus gentiam and
jus natural. It also gives natural law is equal to universal law and the code of gaudier
also.

The main author Roman periods as follows:-

Cicero

He said the law is the highest reason, implanted in nature which commands what
ought to be done and forbids the opposite. This reason when firmly fixed and fully
developed in the human mind is law.
(B) Medieval period/Middle ages

It is a time of catholic philosophers or logicians of the Middle Ages gave a new theory
of ‘Natural law’3. Though they too gave it the logical basis. They departed from the
orthodoxy of the early Christian father. Their views are more logical and systematic.

The main authors of the medieval period are as follows;-

Augustine (354-430 A.D)

It believes that what are states without justice but robber hands enlarged (De civitas
Dei) (The city of god). It also believes that natural law as a part of natural foundation
of Christianity due to its origins in the old Testament early church father.

Thomas Aquinas (1226-1274)

It believes that ‘unjust’ law deserve no obedience’ means that man finds out natural
law by applying ‘reason’ and studying scriptures of the revelation of God. St. Thomas
Aquinas gave four-fold classification of law’s namely;-

 Law of God or external law

 Law of nature (which revealed through nature)
 Human law (which we now called positive law
 Law of divine or the law of scripture
(C) Renaissance Period

It is revival of learning as scholar re-studying Greeks and Roman instead of relying

on scriptures, they looked at the purpose of human life itself to extract Natural law
principles

The main authors of Renaissance period are as follows:-

Hugo Grotius (1583-1645)

It is known as father of international law. Grotius built his legal theory on ‘Social
Contract’.4 His view in brief is that political society rest on a ‘social contract’ It is the
duty of the sovereign to safeguard the citizens because the form was given power only
for that purpose.

Thomas Hobbes (1558-1679)

It was a supporter of absolute power of the ruler and subjects had no right against
the sovereign.

John Locke ( 1632- 1704)

John Locke too recognized the existence of certain inalienable natural rights. He
categorized them as ‘’life, liberty and estate (property) Locke’s social contract is
based upon liberalism.

Rousseau (1712- 1778)

According to Rousseau, “man by nature never thinks and he who thinks is a corrupt
creature.” He believed that the state of nature was an idyllic state where in man did
not reason things out and lived in absolute liberty with the free mind.

Immanuel Kant (1724-1804)

He emphasized that the basis of social contract was ‘reason’ but Kant gave a sharp
distinction between natural law rights and acquired rights and recognized only one
natural right that is the right to freedom.

Hegel (1770-1831)

Hegel also plays a vital important role in natural la w school. School of Hegelianism
Aristotle of modern times. It is the most prominent philosophy of the philosophical
school jurist and it also give their theory in which they said that state and law is a
reason of growth of the human logic.

(D) Modern period

The modern period is further divided into two that is:-

1. 19th century unfavorable to natural law.

The decline of natural law theories took place in the 18th- 19th Century with the
advancement of empirical methods of study and scientific behavior. Natural law
theories were denounced primarily because its source was said to be a divine entity.
The profounder Austin rejected Natural law on the ground that it was ambiguous and
misleading and mercilessly criticized the natural law school as “simple nonsense,
natural and imprescriptible right rhetorical nonsense upon stilts.”
2. 20th century the Revival of Natural

Towards the end of the 19th century, a revival of the natural law theories took place.
It was due to many reasons:-

 The reaction against 19th-century legal theories which had exaggerated the
importance of ‘positive law’ was due and theories which over emphasized
positivism failed to satisfy the aspiration of the people because of their refused
to accept morality and reason as an element of law.
 Secondly, it was realized that abstract thinking or a priors assumption were
not completely futile.
 Thirdly, the impact of materialism on society and the changed socio-political
condition compelled the 20th-century legal thinker to look for some value-
oriented ideology which could prevent general moral degradation of the
people.
The main authors of the 19th century the Revival of natural law are as follows:-

Rudolf Stammler (1856 – 1938)

Stammler defined law as “species of will others regarding self-authoritative and

inviolable for him a just law was the highest expression of man.”

Kohler (1849 – 1919)

Kohler defines law as “the standard of conduct which in consequence of the inner
impulse that urges upon men towards a reasonable from of life, emanates from the
whole and is force up on the individual”

HLA Hart ( 1907 – 1992 )

Hart, attempted to restate a national law position from a semi- sociological point of
view. Hart points out that there are certain substantive rules which are essential if
human beings are live continuously together in close proximity. “These simple fact
constitute a case of indisputable truth in the doctrines of natural law”.

Natural law Theory and Fundamental Rights

Articles – 14, 19 and 21

In Indian law especially in the Indian constitution, there has been a large impact of
19 and 21 has been widening widely interpreted in the Indian scenario especially by
the Indian judiciary. Moreover, the Fundamental Rights conferred under the Indian
Constitution have a large base in natural law theory. Since the age of Greeks all the
thinker of those theorists under natural law theory have influenced Indian law to a
large extent, not only Fundamental Rights but even many more provision under the
Indian Constitution are influenced by the natural law theory. This could be found
through the case laws:-

Case 1:- Maneka Gandhi v. Union of India

In this case, the meaning and content of life and personal liberty under Article
21 came up for consideration and the Supreme Court held that the law established by
the state should be just fair and reasonable.

Application of Natural Law theory

If one analysis the Judgment, one would find a reference to Locke’s theory whereby
the natural right of men such as the right to life, liberty and property remained with
him, so in the Maneka Gandhi case also the Natural law theory principle could be
evolved.

Case 2:- Indian express newspaper v. Union of India

In this case, the theory of Rousseau has been applied, the Rousseau’s theory of
freedom and liberty was said to be the natural right of every citizen by the Supreme
Court which also been conferred upon under Article 19.

What are the main criticism against natural law theory?

Critics of natural law theory say that it is doubtful, however, that the inherent nature
of Homo sapiens establishes laws of behavior for human beings in the same way as
it may establish laws of behavior for cats, lions, and polar bears.
 Discuss legal realism
Realist school, or Realism, is that school of jurisprudence which is
more concerned with the scientific observation of lawmaking and its
functioning, rather than the ends of law. The Realist School of
Jurisprudence combines Analytical Positivism and sociological
ideologies.
According to the Realist school of jurisprudence:
 Law is defined in terms of judicial decisions, not as a set of rules.

 Law originates from judges, so the law is determined by what the courts
do, not what they say.

Axel Hagerstrom is regarded as the founder of the Realist school.

This school is also known as the Uppsala School of Jurisprudence, a
branch of the Sociological School, and the left-wing of the
Functional School.

Sub-schools of the Realist School of Jurisprudence include:

 American Realism, with major jurists such as Karl Llewellyn, Jerome N.
Frank, John Chipman Gray, and Oliver Holmes.

 Scandinavian Realism, with major jurists like Axel Hagerstrom, Karl

Olivecrona, Alf Ross, and Lundstedt.
 Features of the Realist school include:
 Denouncing traditional legal rules and concepts, focusing on what the
courts actually do to reach final decisions.

 Law’s predictability depends on the specific facts before the court in a

particular case, making it uncertain.

 Supporting an emotive approach rather than a formal, logical, or

conceptual approach.

 Placing greater emphasis on the psychological aspect, as law deals with

human behavior and the convictions of lawyers and judges.

 Opposing the value of legal terminology (jargon) as a means of

suppressing the uncertainty of law.

 Evaluating law based on its effects, rather than its ends.

American Realism
American Realism combines the influences of both the Analytical
School and the Sociological School. It focuses on the decisions made
by judges in court and the impact of judge-made laws on society.
The main jurists of American Realism are:
Justice Oliver Holmes
 He was a renowned Realist and former judge of the American Supreme
Court.

 He proposed the “Bad Man Theory,” which suggests that only the “bad
man” can predict the actual law accurately.
 According to Holmes, a judge’s concern is to deliver justice in the case
before them, and if that requires a creative interpretation of existing rules,
they should resort to it.

 Justice Holmes believed that judges and lawyers are well acquainted with
the historical, social, and economic aspects of law.

 He favored a pragmatic approach to law, where judges and lawyers

interpret the law as it is, without considering “what it ought to be.”

John Chipman Gray

 According to Gray, “law is what the judges declare and it includes the
rules that the judges of the court lay down for determination of legal rights
and duties of man.”

 Laws made by legislators are ‘dead words’ of the statute, and courts put
life into them through judicial interpretation.

Karl Llewellyn
 He was a professor of law at Columbia University.

 He gave the “Law Jobs Theory.”

 He described the basic functions of law as ‘law-jobs.’

 Law is an institution that is necessary in society, which is not comprised

only of rules but also contains ideologies.

 Law has jobs to do within a society, which are: (a)The disposition of the
trouble case, a wrong, grievance, a dispute. (b)The preventive channeling
of conduct and avoidance of troubles. (c)The allocation of authorities and
arrangement of procedures. (d)The organization of society as a whole so as
 to provide integration, direction, and incentive. (e)Juristic method for task
handling.

Jerome N. Frank
 He was a Judge in the United States Circuit Court and also worked as a
professor of law at Yale Law School. His main work includes “Law & the
modern mind.”

 He gave the “Father’s Symbol Theory.”

 As a child puts his trust in the power and wisdom of his father to provide
an atmosphere of security, similarly, people put their trust in human
institutions like the judiciary for a sense of security. Father symbol ~ to
provide an aura of security.

 According to him, the certainty or uncertainty of law is a legal myth.

Judges do not make the law; instead, they discover it.

 Law being continuous, uniform, certain, and invariable is a legal myth.

 Decisions of judges are the outcomes of their personal convictions, likes,

dislikes, emotion, etc.