Jurisprudence Class Notes04.01.2011 Module I- Introduction to Jurisprudence 1. Nature and Scope of Jurisprudence 2. The Nature of Law Nature and Scope of Jurisprudence hat is Jurisprudence! Thereisnouni"ersal orunifor#definitionofJurisprudencesincepeopleha"edifferentideolo$ies and notions throu$hout the world. It is a "er% "ast su&'ect. hen an author tal(s a&out political conditions of his societ%) it reflects that condition of lawpre"ailin$ at that ti#e. *o#ans were the first who started to stud% what is law.Jurisprudence- Latin word Jurisprudentia- +nowled$e of Law or S(ill in Law. Most of our law has &een ta(en fro# Co##on Law S%ste#. ,entha# is (nown as -ather of Jurisprudence. .ustin too( his wor( further. ,entha# was the first one to anal%se what is law. /e di"ided his stud% into two parts0 1. 12a#ination of Law as it is- 12positorial- Co##and of So"erei$n.2. 12a#ination of Law as it ou$ht to &e- Censorial- Moralit% of Law. .ustin stuc( to the idea that law is co##and of so"erei$n. The structure of 1n$lish Le$alS%ste# re#ained with the for#al anal%sis of law and ne"er thou$ht what it ou$ht to &e. J. Stone also tried to define Jurisprudence. /e sa%s that it is a law%er3s e2tra "ersion. It islaw%er3s e2a#ination of the percept) ideas and techni4ues of law in the li$ht deri"ed fro#present (nowled$e in disciplines other than the law. There can &e no $oodness or &adness in law.Law is #ade &% the state so there could &enothin$ $ood or &ad a&out it. Jurisprudence is the science of law. 5efinitions &%0 1. .ustin 2. /olland 6. Sal#ond 4. +eeton 7. 8ound 9. 5ias and /u$hes 07.01.2011 .ustin-ScienceofJurisprudenceisconcernedwith8ositi"eLawsthatislawsstrictl%socalled. It has nothin$ to do with the $oodness or &adness of law. Two 8arts0 1. :eneral Jurisprudence- It includes such su&'ects or ends of law as are co##on to alls%ste#. 2. 8articular Jurisprudence- It is the science of an% actual s%ste# of law or an% portionof it. In essence the% are sa#e &ut in scope the% are different. Sal#ond3s Criticis#/esaidthat foraconcept to&e:eneral Jurisprudence) it should&eco##onin"ariouss%ste#s of law. This is not alwa%s true. /olland3s Criticis# /e said that it is onl% the #aterial which is particular and not the science itself. /olland3s 5efinition- Jurisprudence #eans the for#al science of positi"e laws. It is anal%ticalscience rather than #aterial science. 1. /e defines the ter# positi"e law. /e sa%s that the positi"e law #eans the $eneral ruleof e2ternal hu#an action enforced &% a so"erei$n political authorit%. 2. /e si#pl% added the word ;for#al3 in .ustin3s definition.-or#al #eans we stud%onl% the for# and not the essence. e stud% onl% the e2ternal features and do not $ointo the intricacies. /ow it is applied and how it is particular that is not the concern ofJurisprudence. 6. The reason for usin$ the word -or#al Science is that it descri&es onl% the for# or thee2ternal si$ht of the su&'ect and not its internal contents.Jurisprudence is notconcerned with the actual #aterial contents of law&ut with its funda#entalconceptions. Therefore) Jurisprudence is a -or#al Science. 4. It has &eencriticinauthoritati"e for#. The% are not allowed &% thelaw courts as of ri$ht. The% operate #ediator% and indirectl%. i. >nauthoritati"e ritin$s &. Le$al Sources- The% are sources which are the instru#ents or or$ans of thestate &% which le$al rules are created for e.$. le$islation and custo#. The% areauthoritati"eandare followed &% thecourtsasofri$ht.The%are the$atesthrou$h which new principles find ad#ittance into the real# of law. i. Le$islations ii. 8recedent iii. Custo#ar% Law i". Con"entional Law- Treatise GC+ .llenH .llensa%s that Sal#ondhas attachedinsi$nificant attentiontohistorical sources whichde#ands #ore attention. +eeton sa%s that state is the or$aninion of India- .I* 1BB7 SC 1=2B- Nor#all%) e"en an @&iter 5icta is e2pected to &e o&e%ed and followed. It is &indin$ on the /i$h Court &ut has onl% persuasi"e "alue for the Supre#e Court. Three Tests- G*atio 5ecidendi TestH 1. a#&au$hJs Test- It is an i#perati"e proposition of law without which case would ha"e &een decided otherwise. In"ersion Test is in for# of a dialo$ue &etween hi# andhis student. /e sits with hi# and $a"e hi# so#e orders. a. -ra#e carefull% the supposed proposition of law and then insert in the proposition) a word re"ersin$ its #eanin$. &. Let hi# en4uire if the court had concei"ed this new proposition to &e $ood andhad in its #ind the decision would ha"e &een the sa#e. c. If the answer &e affir#ati"e) then) howe"er e2cellent the ori$inal proposition #a% &e) the case is not a precedent for that proposition. d. If the answer &e ne$ati"e) the case is an authorit% for the ori$inal proposition. e. In short) when a case turns onl% on one point) the proposition or the doctrine of the case) the reason of the case) the ratio decidendi #ust &e a $eneral rule without which the case #ust ha"e &een decided otherwise. f. San(ara Nara%anan ". 5irector of Le$al Studies) Madras Law Journal- Justice Is#ail was in a law teacher in his initial da%s. Lecturers were re#o"ed without$i"in$ an% opportunit% of hearin$. The ser"ice rules said that onl% per#anent e#plo%ees &e $i"en the opportunit% of hearin$. There was onl% one issue0i. hether re#o"al was le$al or not. 1. @ld teachers are #ore co#petent than the new teachers. 2. In case of re#o"al) opportunit% of hearin$ should &e $i"en. ii. Second proposition #ateriall% affects the decision) hence it is the ratio.$. *upert Cross- hen a#&au$h states that we #ust insert the proposition that has a re"erse #eanin$ fro# that of the supposed ratio) does he #ean contrar% or contradictor% proposition! *ules of law are co#ple2 proposition and contain contrar% principles. i. Is ratio decidendi a proposition without which a case could not lo$icall% ha"e &een decided as it was decided or is the one without which the case would not ha"e &een decided as it was decided. ii. /ow to appl% a#&au$h3s Test when the decision contains #ore than one ratio decidendi! iii. In so#e cases) the court #a% consider so#e facts as i##aterial for the decision which others #a% consider as #aterial. 2. /als&ur%3s Test- Duinn ". Liatha#- 1B01 .ppeal Cases 4B7- .fter stressin$ that e"er%'ud$#ent should &e read in the lines of the facts of the case. Lord /als&ur% sa%s that acase is onl% authorit% for what it actuall% decides. I entirel% den% that it can &e 4uoted for a proposition that #a% see# to flow lo$icall% fro# it. Ta#illarasan3s Case- Madras Law Journal- 1BB1 Case. 6. :oodheart3s Test-*atio 5ecindi is found out &% ascertainin$ the facts treated as #aterial &% the 'ud$e. The court is &ound &% the earlier decision #ust co#e to a si#ilar conclusion unless there is a further fact in the case that is considered &% the latter court as #aterial or unless so#e fact treated as #aterial is a&sent. /e uses the ter# Eprinciples of lawF in his essa% called E5eter#inin$ the *atio 5ecidendi CaseF. /e discusses si2 points on how to find out *atio0 a. The principle of a case is not found out in the reasonin$ $i"en in the opinion. The reason $i"en &% the 'ud$e for his decision ne"er constitutes as the &indin$ part of the 'ud$#ent. &. The principle is not found in the rule of law set forth in the opinion. -or it is not the rule of law set forth &% the court or the rule enunciated as /als&ur% puts it which necessar% constitutes as principles of the case. There #a% &e no rule of law set forth in the opinion or the rule of law stated #a% &e too wide ortoo narrow. In the appellate courts) the rules of law set forth &% the different 'ud$es #a% ha"e no relation to each other) ne"ertheless) each of these cases contain a principle which can &e disco"ered on proper anal%sis. c. Jud$es @pinion need not &e consulted in order to find the principle of law for which the case is an authorit%. The realist perception of the societ% held that it is not the 'ud$e3s opinion &ut the wa% the% decide cases which should &e do#inant su&'ect #atter of trul% scientific stud% of law. d. The principle of case is found &% ta(in$ into account0i. The facts treated of the case &% the 'ud$e as #aterial ii. /is decision &ased on the#. iii. It follows that our tas( in anal%sin$ a case is not to state the facts and the conclusion &ut to state the #aterial facts as seen &% the 'ud$e and his conclusion &ased on the#. It is &% his choice of the #aterial facts the 'ud$e creates the law. e. -irst is to find out all the necessar% facts as seen &% the 'ud$e. Secondl%) to disco"er which of those facts were treated &% the 'ud$e as #aterial! f. The 'ud$e ne"er e2presses his "iew a&out what facts are considered &% hi# as #aterial and what facts are i##aterial. e should appl% "arious tests to deter#ine which is #aterial and i##aterial. $. The conclusion &ased on h%pothetical facts is dictu#. . *atio 5ecidendi cannot &e &ased on assu#ed fact. *upert Cross sa%s that in cases e"en dictu# should &e considered in findin$ out the ratio. Custo# as a Source of Law Sal#ond sa%s that Custo# is the e#&odi#ent of those principles which ha"e co##ended the#sel"es to the national conscience as the principles of 'ustice and pu&lic utilit%. +eeton sa%s that Custo#ar% laws are those rules of hu#an action esta&lished &% usa$e and re$arded as le$all% &indin$ &% those to who# the rules are applica&le which are adopted &% the courts and applied as a source of law &ecause the% are $enerall% followed &% the political societ% as a whole or &% so#e part of it. .ustin- Custo# is not a source of law. *oscoe 8ound- Custo#ar% Law 1. Law for#ulated throu$h Custo# of popular action. 2. Law for#ulated throu$h 'udicial decision. 6. Law for#ulated &% doctrinal writin$s and scientific discussions of le$al principles. /istorical School of Jurisprudence- Con Sa"i$n% sa%s that Custo#ar% law which &ou$ht its content fro# ha&its of Judicial 5ecision or fro# traditional #odes of 'uristic thin(in$ e2pressin$ 'ural ideas of the people of con"iction of ri$hts) of its ideas or ri$hts and ri$htful social control. The ori$in of custo# of source of law- :ree( historical School is the inno"ator of custo# as source of law. :ier(e- /e held that e"er% true hu#an association &eco#es a real and li"in$ entit% ani#ated &% its own indi"idual soul. /enr% Maine- /e said custo# is the onl% source of law. ECusot# is a conception posterior to that of the#estes or 'ud$#ent.FIn$redients of a Custo#- 1. .nti4uit% 2. Continuous 6. 8eaceful 1n'o%#ent 4. @&li$ator% -orce 7. Certaint% 9. Consistenc% =. *easona&leness Module IC Le$al Concepts Legal #ighthat is le$al ri$ht as per the positi"ists! Sa"i$n% $i"es us so#e funda#ental conceptions and distinctions 1. Le$al *i$hts are essentiall% those interests which ha"e &een le$all% reco$ni