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Jurisprudence is the study of the theory and philosophy of Law. It is is concerned with the law and the principles that lead courts to make the decisions they do. It deals with ethical questions concerning the administration of justice within a society.
The term Jurisprudence is a derived from the Latin word Jurisprudentia which translates to "Knowledge of Law or Skill in Law".
Fitzgerald: 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 lay bare the essential principles of law and legal systems.
Jurisprudence is closely related to Legal Theory which aims at answering the question - 'What is Law?'
Broadly speaking, Jurisprudence involves views of various
- Schools of Jurisprudence
- Theory of State (and Sovereignty)
- Theory of Law (Austinian Theory of Law, Salmond's definition of law, Kelsen's Pure Theory of Law etc., Concept of Constitutional and Administrative Law, International Law, Personal Laws and Territorial Laws)
- Sources of Law
- Jural Analysis (Legal Rights and Duties, Contract and Quasi-Contract, Ownership and Possession etc.)
- Theory of Justice (Law and Justice, Civil and Criminal Justice, Standards of Justice)
People who study Jurisprudence are regarded as legal philosophers. Students new to this subject often find this subject hard because this subjects requires a deeper understanding and a philosophical view on the concepts of law and justice.
- 1 Definition of Jurisprudence
- 2 Aspects of Jurisprudence: General and Particular
- 3 Approaches to Jurisprudence
- 4 Topics on Jurisprudence
- 5 Law as an obligation
- 6 Contractarian Theories
- 7 Directive Principles of State policy
- 8 Theories of Authority
- 9 Other Jurisprudence topics
- 10 Related Topics
Definition of Jurisprudence
Several legal jurists have attempted to give definitions of Jurisprudence. Etymologically speaking, Jurisprudence is the "Knowledge of Law".
The Roman Jurist, Ulpian, defined Jurisprudence as "The observation of things human and dive, the knowledge of just and unjust."
Aspects of Jurisprudence: General and Particular
There are two aspects in Jurisprudence:
- General Jurisprudence
- Particular Jurisprudence
Austin defined General Jurisprudence as "The science concerned with the exposition of principles, notions and distinction of the common systems of law, understanding by the systems of law, the ampler and maturer systems, which by the reason of their amplitude and maturity, are pre-eminently pregnant with instruction".
Particular Jurisprudence is the study of any one such systems of law.
Salmond criticized that the Austin's definition saying that a principle to become a topic of jurisprudence need not be common to the systems of law. In his words, "General Jurisprudence is not the study of legal systems in general but the study of the general or fundamental elements of a particular legal system".
In essence, the aspects are the same but in scope, they are different.
Approaches to Jurisprudence
Two popular approaches to study Jurisprudence are:
- Empirical: Facts to Generalization.
- Apriori: Start with Generalization in light of which the facts are examined.
Topics on Jurisprudence
Theory of the State
- Definition and Concept of State
- Unitary and Federal State
- Theory of Sovereignty
- Austin's Theory of Sovereignty
- Salmond's Theory of Sovereignty
Sources of Law and Jural Analysis
- Concept of Law
- Law of Natural Sciences
- Laws on obligations
- HART Concept of Law
- Law as system of Rules
Theory of Justice
Law as an obligation
- General-will theories
- Free-will theories
- Autonomous theories
- Positivist theories
- Transcendental Theories
- Law as a means of social control
- Law as Volksgeist
Directive Principles of State policy
Theories of Authority
- Types of authority - legislative, judicial and customary
- Interpretation of Statutes
Other Jurisprudence topics
- Principles of morality or natural justice
- Basic Structure Doctrine
- Functions of Law
- Law the upholder of the moral order in the society
- Concept of dharma - connection between law and morality
- Law for bringing efficiency and social stability
- Utilitarian views
- Feminist Jurisprudence