Introduction

Topics

Nature and scope of Jurisprudence,

State, Sovereignty and Law
Sources of Law : Custom, Precedent, Legislation, Equity
Nature and Scope of Jurisprudence

• From Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.

Juris means law and prudentia means skill.
• Jeremy Bentham is known as Father of Jurisprudence. Austin took his
work further.
• According to Bentham, jurisprudence is a set of philosophical principles
and various interpreted theories. This eventually shows us the concept of
law.
• According to Austin, the appropriate subject for jurisprudence is the
existing laws or the positive law. He said that “Science of Jurisprudence is
concerned with Positive Laws that is laws strictly so called. It has nothing
to do with the goodness or badness of law.” He was the first philosopher
and jurist who considered jurisprudence as a science.
• Keeton has defined jurisprudence as the study and systematic
arrangements of the general principles of law.
Significance of Jurisprudence

It gives a multidimensional approach to the system of law.

It helps in cases when a huge gap is observed between the law and its
application in society.
It helps in bringing logic to the rules of law so that the application in
society can be beneficial for the people.
It also shows us the connection of law with subjects such as
philosophy, economics, psychology, politics, etc.
People, especially judges and lawyers, get a better understanding of the
concept of law through the study of jurisprudence.
It also helps the authorities to understand how and when any
reformation is required.
How to approach law

• Analyse the law as it is or what the law is- Analytical approach

• What the law was- Historical approach
• What the law ought to be- Philosophical/Ethical approach
• What’s the functions of law in society- Functional/Sociological approach
• Comparative approach (eg- Ombudsman in Scandinavia and Lok
Ayuktha/Lok Pal in India)
What is law?

No precise definition
Broadly, it can be defined to include the following components:
a) Body of principles
b) Recognised by state
c) For administration of justice
What is Justice

• Distributive justice (equitably to all or equals to be treated alike and

Restoratory justice (curative or corrective justice- when equilibrium
breaks)
• Public Justice and Private Justice
• Social justice (based on sex, gender, race religion), Political justice (right
to vote etc) and Economic Justice (right to property)
• Legal justice (eg: interpreting Art. 21 as laid down in AK Gopalan case
and Maneka Gandhi case) and Natural justice
• Criminal justice (punishment is the remedy) and Civil justice
(compensation and restoration)
State

Components:
• Population- irrespective of size; stable- not moving
• Territory- land locked, coastal, islands, archipelago
• Sovereignty- through terra nullis, conquest, annexation, cessation,
pledge, lease, plebiscite, natural accretion
• Government- Monarchy, oligarchy, democracy
• Capacity to enter into legal relations
What are the sources of Law
Legislation
Custom
Precedent
Equity
Legislation
• Derived from the words legis and latum, where legis means law
and latum means making
• Types of legislation
• Supreme Legislation- when it is enacted by a supreme or sovereign
law-making body
• Subordinate legislation- Executive legislation, Judicial legislation,
Delegated legislation, Autonomous legislation, Municipal legislation
 Custom
• Refers to the code of conduct that has the express approval of the
community that observes it
• Requisites of a valid custom
• Reasonability: The custom must be reasonable or practical and must conform with the basic morality
prevailing in the modern-day society.
• Antiquity: It must have been practised for time immemorial.
• Certainty: The custom must be clear and unambiguous on how it should be practised.
• Conformity with statutes: No custom must go against the law of the land.
• Continuity in practice: Not only the custom must be practised for time immemorial, but it should
also be practised without interruption.
• Must not be in opposition to public policy: The custom must adhere to the public policy of the
state.
• Must be general or universal: There must be unanimity in the opinion of the community or place in
which it is practised. Hence, it should be universal or general in its application.
Types of customs
• Customs without a binding obligation
• Customs with a binding obligation
• Legal customs- Legal customs are absolute in sanction. They are
obligatory in nature and attract legal consequences if not followed
• general customs and local customs (General customs are enforced
throughout the territory of a state. Local customs on the other hand operate only
in particular localities.)
• Conventional customs- enforceable only on their acceptance
through an agreement
Precedent
• Judicial precedents refer to the decisions given by courts in different
cases. A judicial decision has a legal principle that is binding on the
subordinate courts.
• Landmark Judicial precedents in India- Kesavananda Bharati v. the
State of Kerala (1973); Maneka Gandhi v. the Union of India (1978)
• The doctrine of Stare Decisis
• Doctrine of Res Judicata
• Ratio Decidendi
• Obiter Dicta
Types of precedents
• Authoritative and Persuasive-
• Authoritative precedent must be followed by subordinate courts whether they
approve of it or not. They create direct and definite rules of law. They fall into the
category of legal sources of law.
• Absolute authoritative- binding on subordinate courts in an absolute manner
• Conditional authoritative- binding on other judges but it can be disregarded in certain
special circumstances as long as the judge shows the reason for doing so
• Persuasive precedents on the other hand do not create a binding obligation on the
judges. Persuasive precedents can be applied as per the discretion of the judge.
• Original and Declaratory
• A declaratory precedent is a precedent that simply declares an already existing law in
a judgement. It is a mere application of law. An original precedent creates and
applies a new law.
Equity
The principle of Equity refers to a set of rules, which neither originated
from customs nor statutory law. Equity rules were formed on the basis of
dictates of conscience which had been decided in the Courts of Chancery.
Equity, is the means by which a system of law balances out the need for
certainty in rule making on the one hand, with the need for sufficient
judicial discretion to achieve fairness in individual factual circumstances
on the other
In cases, where Common Law was not applicable, the Chancellor
presided over such cases in special courts called ‘Equity Courts’. Equity
courts had a separate existence from the Common Law Courts in
England. These ‘Equity Courts’ acted on a number of customs like :
He who seeks equity must do equity.
He who comes to equity must come with clean hands.
What makes Law binding

• Legislation-
• includes both supreme legislation and delegated/subordinate
legislation
• Its binding force is sanction or the fear of punishment
• Custom
• Main elements- immemorial antiquities; uninterrupted/
consistent; certainty; peaceful observance/ no bloodshed in the
name of custom; no contradiction with statute
• Why obey
• frequent path is reliable path- via trita via tuta
• Psychological
• Precedent
• The authority of judicial precedents is based on the doctrine of
Doctrine of stare decisis
• Ratio decidendi
• Obiter dicta
• Exceptions- over ruling, prospective over ruling, ratio decidendi,
per incurium
• Sub-silentio decision