BASICS OF JURISPRUDENCE & SOURCES OF LAW
The term jurisprudence has been derived from the Latin word ‘jurisprudentia’ which means ‘skill or knowledge of law’.
Bentham is known as Father of Jurisprudence was the first one to analyze what is law. He divided his study into two parts: Examination of Law ‘as it is’ i.e. Expositorial Approach– Command of Sovereign. Examination of Law ‘as it ought to be’ i.e. Censorial Approach– Morality of Law.
Ulpian – The Roman jurist defined jurisprudence as the observation of things, human and divine, the knowledge of the just and the unjust. Austin– He calls jurisprudence as the ‘philosophy of positive law’.He preferred to divide his concept into two parts: General Jurisprudence– It includes such subjects or ends of law as are common to all system. Particular Jurisprudence– It is the science of any actual system of law or any portion of it.
Holland’s Definition– Jurisprudence means the ‘formal science of positive laws’. He defined the term positive law. He said that Positive Law means the general rule of external human action enforced by a sovereign political authority.
Salmond– He said that Jurisprudence is Science of Law. By law, he meant law of the land or civil law. He divided Jurisprudence into two parts: Generic– This includes the entire body of legal doctrines. Specific– This deals with the particular department or any portion of the doctrines.
Sources of Law
A. Formal Sources - Formal sources are the sources from which the law derives its force and validity.
This source of law includes:- Will of the State - The State makes its own law for the benefit of its residents with due process of law enshrined in our esteemed constitution. Will of the people - Sometimes laws are even made by the will of the people. When people face a certain problem in their day to day life they have the option to address those delinquent and if the State is satisfied with those problems and solutions stated then State makes it in a form of law. For example, people are not allowed to use speakers or play loud music after 10 pm at night. Judicial decisions of the court -Even judicial decisions delivered in various judgment is a source of law and falls under a formal source of law.
B.Informal/Material Sources - Material source of law is the place where the law material is taken. Material source of law is a factor that helps the formation of the law.
Historical Sources - These sources basically help us to know the historical significance and the need for such development of law. They are of two types: –Religion and morality. Literary sources of law -A literary source being an original source, any commentary written on the original work cannot constitute a literary source of law. Legal Sources - legal sources are the sources by which legal rules are formed. These sources serve the basis for the formation of laws. They are:- a. Legislations b. Precedent c. Customs d. Treaties and Conventions
A Key principle of Judicial Precedent is - a. Consistency b. Hierarchy c. Bound by its own decision
Ingredients of Custom
1. Antiquity 2. Continuous in nature. 3. Peaceful Enjoyment 4. Obligatory Force 5. Certainty 6. Consistency 7. Reasonableness