THE HANDBOOK OF JURISPRUDENCE
Henrietta Newton Martin
(B.com, LLB (Gold Medallist), LLM (Gold Medallist), MMS, etc)
Copyright: ©Henrietta Newton Martin, 2022
Copyright: ©Henrietta Newton Martin, 2022
All rights reserved
No part of this book may be used or reproduced by any means, graphic, electronic, or mechanical, including photocopying, recording, taping, or by any information storage retrieval system without the written permission of the publisher except in the case of brief quotations embodied in critical articles and reviews.
First Published 2022, BR Publishers Germany
Second Print Edition to hit shortly by July 2022
PREFACE
Welcome to the Handbook of Jurisprudence, which is perspicuously crafted to the understanding of the students of law.
Jurisprudence is an interesting ‘Theo-philosophical’ subject which is essential and cathartic to every student of jurisprudence and practitioner of law. This book explains the hows and whys of law and professionally it would answer the question of why do lawyers and judges think in the way that they usually do? The study of jurisprudence explains the legal theories of law, enables one to learn the reasoning behind laws and gain better understanding of the framework principles of law.
It is endeavoured to keep the content as simple as possible; Brevity in expression does not in any way mean dearth of available material or that the allied topics are insignificant. The purpose of brevity is solely to encapsulate the principles adumbrated in this book in a perspicuous manner.
This easy-to-understand edition is a recommended must-have for every student of law and jurisprudence.
CONTENTS
Chapter 1
Law and Legal Systems
Chapter 2
Legal Realism and Doctrine of Precedent
Chapter 3
Legislature and Making of Laws
Chapter 4
Individual Obligation
Chapter 5
The Concept of Private Law
Chapter 6
Criminal Jurisprudence – Bird’s Eye view
Chapter 7
Statutes and Constitution
Chapter 8
International Law
I
Bibliography
II
About the Author
CHAPTER 1 -LAW AND LEGAL SYSTEMS
What is Jurisprudence?
Juris means ‘law’ and ‘prudence’ comes from the Latin word ‘prudentia’ which means prudence, discretion - in skill or knowledge.
‘Jurisprudence’ is derived from the Latin word ‘jurisprudentia’ which means knowledge of law. Jurisprudence deals with learning the philosophy of law, thereby jurisprudence is also defined as the theory of the philosophy of law.
Roscoe Pond defines 'Jurisprudence' as the ' science of law, testing the. terms law in the juridical sense as denoting the body of tribunals recognized or enforced. by public and regular principles in the administration of justice.'
John Austin, who is referred to as the father of ‘Jurisprudence’ defined jurisprudence as “philosophy of positive law,” which means that jurisprudence is more of a scientific study rather than moral philosophy.
Now that means, Jurisprudence is the science, study and theory of law.
John Austin (1790–1859) is referred to as the Father of English Jurisprudence and he is also founder of the Analytical School of the study of law.
Keeton defined ‘jurisprudence 'as "the study and the systematic arrangement of the general principles of law.
The definition given by Austin was criticized by philosophers like John Salmond and Holland.
Holland was an English Jurist, and he defined jurisprudence as “the formal science of positive law”, wherein he restricted jurisprudence to the basic principle behind the natural system of law.
Salmond, in his book “Jurisprudence defined the term jurisprudence as “the science of law” in its widest sense. He further categorized it inti three –(a) Civil jurisprudence – by this he meant, law of the land, which gives the wholesome principles in the tribunals of the state; (b)International Jurisprudence – this is the science of international law which deals with the rules prevails between the states; and (c) Natural Jurisprudence which is the science of natural law (Jus Naturale).
Thus, we can conclude that ‘Jurisprudence’ is also called as ‘Legal Theory’ which deals with the theoretical study of the propriety of law.
Historically it was in the Roman Empire that the theoretical schools of law were created.
Thomas Aquinas was the classical proponent of natural theology, and the father of the Thomistic school of philosophy. His prominent work was called Summa Theologiae.
Aquinas distinguished four kinds of law: Eternal, Natural, Divine, and Human Law:
“Eternal law refers to divine reason, known only to God. It is God's plan for the universe. Man needs this plan, for without it he would totally lack direction.
Natural law is the "participation" in the eternal law by rational human creatures and is discovered by reason.
Divine law is revealed in the scriptures and is God's positive law for mankind.
Human law is supported by reason and enacted for the common good.
Natural law is based on "first principles"
Why Jurisprudence?
The purpose of the study of jurisprudence is to learn the existence of the various theories of law, how laws were shaped and has evolved into a legal system we live in today.
There are different types of Legal system – We have:
- Civil Legal System – e.g., Russia, Spain
- Religious or Customary Legal System – e.g. UAE, Saudi Arabia etc,
- Common Law countries – India, UK, Australia etc
4 Mixed/Hybrid Legal system –example Ghana, Bhutan, Nepal, South Africa (interweaving of civil law from the Dutch and common law from UK)
The study of jurisprudence enables one to learn the reasoning behind laws and gain better understanding of the framework principles of law.
The Command Theory of Law
The Command Theory considers ‘Law’ as a ‘command’ that flows from a
Impressum
Verlag: BookRix GmbH & Co. KG
Texte: HENRIETTA NEWTON MARTIN
Tag der Veröffentlichung: 03.05.2022
ISBN: 978-3-7554-1299-1
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Widmung:
Dedicated to my God - the Lord God El Elohim Adonai Yah from whom alone all good things come; and to my dear family.