Schools of Western Jurisprudence

Texte Universitaire , 2017 , 13 Pages , Note: B+

Droit - Autres

Jurisprudence is thus the study and theory of law. Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law), try to assign a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions.

In this paper, we are concentrating on the major and most important schools of jurisprudence. These schools are

1. analytical,
2. sociological,
3. historical,
4. philosophical and
5. realist schools.

Introduction

Jurisprudence is the study of law. It is a type of science that explores the creation, application, and enforcement of laws. Jurisprudence is the study of theories and philosophies regarding law.

If we understand the theories and philosophies behind law, then we can better understand our laws. The word 'jurisprudence' is derived from the Latin phrase jurisprudentia¹. This means 'knowledge of the law.'

Schools of thoughts/Schools of Jurisprudence

School of thought is a principle or body of principles accepted as authoritative and advocated by one or more scholars belonging to a specific discipline. Schools are groups of thoughts that are based on broadly the same fundamental premise.

General jurisprudence can be broken down into several different categories that represent theories, or schools of jurisprudence, regarding how those questions are best answered. This paper will discuss some of the well-known schools of jurisprudence like;

I. Analytical School
II. Philosophical School
III. Historical School
IV. Sociological School
V. Realist School

Analytical School of Jurisprudence

Analytical School, though foreshadowed by Thomas Hobbes, it is chiefly associated with Jeremy Bentham and John Austin. It has been extensively developed in the coutenant by Hans Kelsen and in U.S.A. by John Chipman, gray oliver Wendell, Houses etc. This school is against the natural law.

i. Jeremy Bentham:-

As to the definition of law, he observed that a law may be defined as an assemblage of signs, declarative of volition, conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons who in the case in question are supported to be his power. He made a sharp distinction between the law as it is and the law that ought to be. He established the principles of utility, the hedonistic calculus of pleasure and pain to measure every law like other measurable things².

Friedman ³ criticised the legal philosophy of Bentham on two grounds:

firstly, he overestimated the power of legislatures and underestimated, the need of individual discretion and flexibility in the application of law

secondly, he failed to develop a balance between the individual and community interest. As to it his contribution, it may be said that he was the founder of analytical school of Jurisprudence upon which the latter thinkers built their theories: He was the originator of command theory of sovereign.

ii. John Austin:-

John Austin stood his English School of jurisprudence on the foundation leg by Bentham in the way of positivism. His main work is “The province of jurisprudence determined”. Austin defined law as a rule laid down for the guidance of an intelligent being by an intelligent being having the power over him. He determines and characterises the notion of law, i.e. law properly so called which is distinct from morals and other law that are described as laws improperly so called. His model of law is positive law which he distinguishes from positive morality or other kinds of law the latter lacking force, sanction and coercion of the state. Positive law rather other hands he describes as the aggregate of rules set by men as political superior to men as political interior. Austin said that “ A Law is a rule of conduct imposed and enforced by the sovereign ” ⁴ .

iii. H.L.A Hart:-

Hart describes Austin's definition of law as trilogy of command, sanction and sovereign. His theory has been criticized that his command theory produces a gunman situation: law is obeyed due to motive, indolence, fear and reason also. The term sovereign has not been defined. Is and ought i.e. law & morality can not be separated to tally: There must exist minimum content of natural law in the enacted law.[5] As to contribution he is the founder of analytical school. His theory of command could not be Ignored He is the pioneer of the modem positivist approach to law.

[...]

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¹ juris is the genitive form of jus meaning "law", and prudentia means "prudence" Schools of Jurisprudence

² Hedonism is a school of thought that argues that pleasure and happiness are the primary or most important intrinsic goods and the aim of human life W. Friedmann: Legal Theory, 5"' Edn P.275-2n, Quoted by Tandon M.P. in Jurisprudence P-52, Schools of Jurisprudence

³ Mahajan, V.D., Jurisprudence and legal theory Edn. P.514-515

⁴ Hart: Separation of Law & Morals H.L.R P. 593 Quoted by Dr. Shyamalan Fundamental of Jurisprudence at P. 112 End 1992

• Cours: Jurisprudence
• Note: B+
• Auteur: Fatima Tariq (Auteur)
• Année de publication: 2017
• Pages: 13
• N° de catalogue: V1193177
• ISBN (PDF): 9783346649096
• Langue: anglais
• mots-clé: jurisprudence