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Philosophical School of Jurisprudence

Jurisprudence – Definitions and Meaning

The term ‘Jurisprudence’ is the English derivation of the Latin term ‘Jurisprudentia’. The Latin term means the study, knowledge or skill with respect to law. Over time, several definitions of the concept of Jurisprudence have developed. Multiple jurists such as Ulpian, Austin, Thomas Holland, John Gray, Salmond, H.L.A. Hart and Roscoe Pound.

Ulpian defines Jurisprudence as “The observation of things divine and human, the science of just and unjust.” Austin was the first jurist who defined it as a science. He defined Jurisprudence as the philosophy of law. In other words, he, along with other jurists such as Thomas Holland, believed that jurisprudence is a scientific and systematic study of existing, actual and positive law as opposing to moral philosophy.

Similarly, other jurists such as John Gray, Salmond and Roscoe Pound have defined Jurisprudence in almost the same manner with minor modifications. The common characteristic of their definition is that jurisprudence is the science of the first principles of civil law. It can also be defined as the science of law, using the term law in the juridical sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice.

Schools of Jurisprudence

The different definitions of Jurisprudence have led to the formation of different schools of legal jurisprudence. These schools follow different principles of law and therefore have been given the following names: Analytical, Historical, Sociological, Analytical and Philosophical school of jurisprudence.

Analytical School of Jurisprudence

Analytical School of Jurisprudence functions on the legal maxim, “Ubi civitas ibi lex”. This maxim implies that ‘where there is State, there will not be anarchy’. Thus, it can be said that this school of law essentially functions on the relationship between law and the State. It follows the positive law theory which means that the State functions on the basis of the laws that are already in existence in the respective land.

Historical School of Jurisprudence

Montesquieu was the 1st jurist to adapt the historical school of jurisprudence. He had propounded that in a society, it does not matter if a certain law is positive or negative. This is because the laws emerge as a result of the social, political and environmental conditions of the society. Thus, Montesquieu concluded that ‘law is the creation of the climate, local situation, accident or imposture.’ He believed that the laws of a State must change with the changes in the respective society.

Sociological School of Jurisprudence

The main objective of the sociological school of jurisprudence is to establish a relationship between the laws and the Society that these laws govern. This school focuses essentially on the legal consequences and perspectives of each issue faced by the concerned society. It also focuses on balancing the prosperity of both, the individuals and the State.

Comparative School of Jurisprudence

This is a relatively recent school of legal jurisprudence. It focuses on comparing the legal systems of the past and the present and arrive at generalised conclusions. For the purpose of such comparisons, they rely on the study and observation of the different legal systems of different time periods in addition to the other social factors that affect the legal environment of the societies such as the political, social, economic factors, etc.

Philosophical School of Jurisprudence

The jurists of this school of jurisprudence are also called the Natural Law or Divine Law of Jurisprudence. This is due to the prominence of its jurists propagating that the sources of law include God or divine power, Nature and Reason. The philosophical school of jurisprudence is opposed to the analytical school of jurisprudence in the sense that they differ in the sources of law that they follow.

While the analytical school considers the laws of the state, or man-made rules as the ultimate law; the followers of the philosophical school of law believe that laws are universal and eternal. They further believe that laws have existed from before the existence of humankind and will continue to persist after the decline of mankind. This follows the natural law theory which is fundamentally contradictory to the positive law theory that is followed by the analytical school of jurisprudence.

Considering the long-lasting characteristic of the laws as per this school of jurisprudence, it can be said that evolution has been witnessed in the nature of the laws that have been followed. As a result of such evolution, laws can be broadly classified into the following 4 periods of its existence:

Ancient Period

This period was dominated by the jurists who believed law to be closely associated with the concepts of morals and values. The philosophers who believed so included several Greek and Roman philosophers such as Socrates, Plato, Aristotle, Stoic and Cicero.

Socrates and Plato, famous Greek philosophers believed that an individual has the moral capability to determine the difference between right and wrong. He believed that humans have the insight that can guide them to judge different acts and thus defined law as a mere product of correct reasoning.

The aspect that differentiated Socrates from Plato was the latter’s belief that humans live in an orderly universe where everything happens for a reason thereby implying that justice can be discovered through mere reasoning and no or minimum intervention from the State. In addition to this, Socrates also supported the concept of positive or man-made laws but at the same time also claimed they must not be blindly followed, rather it must be critically analysed by humans with the help of their human insight and moral instincts.

Despite the fact that Socrates was the one who propounded the concept of the philosophical school of jurisprudence, Aristotle is considered to be the founding father of the concept of natural law. This is because Aristotle was the 1st ancient jurist to connect and define the concept of natural law with that of Socrates’ idea of human instinct and morals. Thus, Aristotle supported Plato’s theory but also added that law is particular and differs on the basis of the State. He further stated that laws are either codified or generally unwritten rules that are followed as a result of cultures, ethics and religious values of a certain society.

Medieval Period

This period includes the contribution of legal philosophers such as St. Augustine, St. Thomas Acquinas to the philosophical theory of law. St. Augustine was popularly known as the ‘Christianised Plato’ as his theories were inspired by those of Plato with an increased focus on the contribution of religion to laws. He believed that laws were derived with a direct influence of God on the human mind. He argued that God was the main source of law as he influences law by logic and order.

St. Thomas Acquinas was a follower of Aristotle. Thus his theories were highly inspired by the latter with an increased importance given to Christianity. He defined law as the obedience of reason for the common good. He further believed that ‘unjust’ laws were not required to be followed and that the only laws that one must follow are those set in nature by God. And these, an individual could find by merely applying reason and studying religious scriptures. St. Thomas Acquinas classified law into 4 forms, namely;

  • Eternal Law or Law of God – These were believed to be revealed through fate
  • Law of Nature – This is revealed through the natural surrounding of an individual
  • Human or Man-made Law – They are derived through Reason
  • Divine Law or Scriptures – These are believed to be revealed through religious literary texts.

Renaissance Period

This period refers to the time when the philosophy of the ancient and medieval jurists and philosophers were restudied by various philosophers such as Thomas Hobbes, John Locke, and Jean Jacques Rousseau. They collectively believed in the existence of natural rights of an individual. This refers to the rights that an individual enjoys merely because he has been born as a human.

Thomas Hobbes is famously known for his Social Contract Theory. As per this theory, it is stated that humans entered into a contract with one ruling authority, who would guarantee to protect their natural rights. However, this contract was said to be a unilateral one, in the sense that only the subjects were obligated to fulfil their duties towards the ruler. Thus, the subjects had an unlimited, unconditional obligation towards the State. He described the Ruler as the ultimate sovereign who had the power to dominate all the other members of the society thereby supporting absolutism.

John Locke had a similar perspective towards the role that the laws and the divine had to play in the society. However, he could be differentiated from Thomas Hobbes on the grounds of his description of the Social Contract. John Locke believed that the contract ought to be a bilateral one where the Ruler was equally accountable to the subjects as the subjects were to him. This, he believed, would build a relationship of trust between the citizens and the ruler thereby ensuring the smooth functioning of the legal system and the society in general.

Modern Period

With the commencement of the nineteenth century, the advocacy of natural law witnessed a fall since the focus shifted toward the other facets of law. The concept of Social Contracts were regarded as myths. Further, the absolute and unchangeable principles of natural law were dismissed as impractical. With the introduction of others schools of jurisprudence such as the Analytical, Historical schools, jurists moved towards them as a result of their practicality thereby further resulting in absence of advocacy of the philosophical school of jurisprudence.

Conclusion

Law has emerged as a conglomeration of multiple sources, varying from societal morals, values and traditions, the history of the land that it is meant to govern, etc. The most important of these sources of law are the moral values of the individuals that the laws govern. These values influence the manner in which laws are made, executed as well as interpreted in the society. This is because the culture and values of an individual or a community define their personality and the mindset.

However, with the passage of time, the weightage of moral values, beliefs and other factors have been changing thus resulting in the various schools of law. The philosophical school of jurisprudence is one of the oldest schools of law as it focuses more on the importance of moral values and traditions in the formation of laws for society. Nevertheless, this school too has witnessed multiple phases of evolution which have resulted in a gradual decline of the weightage of morals in law. As a result of this and the contributions of the other schools of jurisprudence, law today has become a mixture of traditions, moral values and other aspects.

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Ananya Konur


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