Notes

SCHOOLS OF JURISPRUDENCE

Schools of Jurisprudence There are basically five schools of jurisprudence. We will discuss these schools along with their leading jurists.

RENAISSANCE PERIOD OF NATURAL LAW

Renaissance Period OF Natural Law The period of renaissance in the history of the development of natural law may also be called the modern classical era which is marked by rationalism and the emergence of new ideas in different fields of knowledge.

ANALYTICAL SCHOOL OF JURISPRUDENCE

Analytical School of Jurisprudence Introduction Analytical school is also known as the Austinian school since this approach is established by John Austin. It is also called as an imperative school because it treats law as command of the sovereign. Dias terms this approach as “Positivism” as the subject-matter of the school is positive law.

HISTORICAL SCHOOL OF JURISPRUDENCE

Historical School of Jurisprudence Introduction Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it originates from the social custom, conventions religious principles, economic needs and relations of the people.

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

Sociological School of Jurisprudence INTRODUCTION Comte was the first writer to use the term sociology which he described as a positive science of social facts. Subsequently, writers and jurists tried to find a link between sociology and law. Gurvitch, for example, said that the meeting point of sociology and law is the sociology of law. Sociology of law should, however, be distinguished from sociological jurisprudence. The latter primarily studies law but in doing so it studies its relation with an impact on society; whereas sociology of law primarily studies society and studies law only peripherally.

NATURE, PURPOSE AND FUNCTION OF LAW

Nature, Purpose and Function of Law MEANING AND NATURE OF LAW Law is the subject-matter of jurisprudence since the latter deals with the study of law. In its most general and comprehensive sense, it means any rule of action and includes any standards or pattern to which actions are or ought to be confirmed.

KINDS OF LAW

Kinds of Law Introduction The phrase law has been derived from the Teutonic phrase Lag which means that specific. The law may be described as a specific rule of demeanour and human relations. It additionally approaches a uniform rule of conduct that’s applicable equally to all the human beings of the state. The law prescribes and regulates well-known situations of human pastime inside the kingdom. In simple phrases, the law is a specific energy of the country. Under the header law, there has been covered kinds of law which get applied according to the different cases being prevalent.

THEORIES OF JURISTIC PERSONALITY

Theories of Juristic Personality Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical theorists of 19th century postulated the concept of will as an essential requirement for exercising legal right. They also believed that personality is the subjective possibility of a rightful will.

CONCEPT OF STATE AND SOVEREIGNTY

Concept of State And Sovereignty The origin of State has been a favourite subject of speculation. The Greeks organised city-states which according to them had a divine origin. And sovereignty is one of the chief attributes of statehood. This term was for the first time introduced by the French political thinker Jean Bodin…

CONCEPT OF LEGAL RIGHTS

Concept of Legal Rights Meaning, Definition and Concept of Right In English law, right means that which is straight and not crooked. It is an opposition from the wrong which is twisted from the straight. Right has been derived from the Latin word, rectus which means to rectify or correct or from jus, which means just or justice.

RIGHTS AND DUTIES IN JURISPRUDENCE

Rights and Duties in Jurisprudence INTRODUCTION The development of society is credited to the constant evolution of law. When people come into contact with each other, everyone has certain rights and duties obligated towards one another. A right and duty are the pillars of law, and are hence consequently protected by it. Both these concepts are intertwined. The concepts of legal rights and duties in Jurisprudence are elucidated below.

CONCEPT OF JUSTICE

Concept of Justice Introduction The concept of justice is as old as the origin and growth of human society. A man living in society desires peace and, while living in he tends to experience a conflict of interests and expects a rightful conduct on the others part. And this is why jurists like Salmond and Roscoe Pound have emphasized the importance of justice.

PRECEDENT

Precedent Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. The doctrine of precedent which is also known as stare decisis, i.e. stand by the decision, is based on the principle that like cases should be decided alike. Once a case is decided by judge by applying the principle, a case on similar facts which may arise in future must also be decided by applying the same principle. This is not always saves the time and labour of judges, but also secures certainty, predictability and uniformity in the applications of law.

OBITER DICTA

Obiter Dicta The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum. The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

RATIO DECIDENDI

RATIO DECIDENDI When we say that a is the abstract ratio dicidendi which alone has the force of law as regard the world at large. It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta,the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate rationes.

LEGISLATION AND ITS TYPES

LEGISLATION AND ITS TYPES Introduction “Legis” means law and “latum” means making. Legislation means lawmaking. It also refers to the law made by the legislature. It may also be defined as the promulgation of legal rules by an authority that has the power to do so. It is the formal declaration of the legal rules by the legislative organ of the body politic.

LAWS OF PROPERTY UNDER JURISPRUDENCE

Laws of Property Under Jurisprudence Introduction The term property is commonly used to define the objects which are owned. In other words, property denotes those things in which the right of ownership can be expanded. The term property includes both living and non-living things. Lands, chattels, shares, and debts are included in the property.

POSSESSION

Possession Possession means physical control or acquisition of property by a person. Ownership of a property is based on the possession of the property. Possession is the prima facie evidence of ownership. For any proprietary matter, the law gives first priority to a person who is in possession of the property.

OWNERSHIP DEFINITION, CONCEPT AND KINDS

Ownership: Definition, Concept, and Kinds Meaning & Definition Ownership refers to the relation that a person has with an object that he owns. It is an aggregate of all the rights that he has with regard to the said object. These rights are in rem, that is, they can be enforced against the whole world and not just any specific person. The concept of ownership flows from that of possession. In primitive societies, there was no idea of ownership. The only concept that they identified with was that of possession. It was only after they started settling down by building homes and cultivating land that they developed the idea of ownership.