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Discuss the nature and scope of Jurisprudence. What is the importance of this subject in the study of law? OR “Jurisprudence is the eye of law ”.
INTRODUCTION :- Jurisprudence in its nature is entirely a different subject from other social science. The reason for this is that it is not codified but a growing and dynamic subject having no limitation on itself. Its inquiry system is of different status from other subjects. Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation Thus the jurisprudence has no limited scope being a growing subject. There is a difference of opinion about the nature of jurisprudence. It is called both art and science. But to call it science would be more proper and useful. The reasons for this is that just as in science we draw conclusions after Making a systematic study by inventing new methods. In the same way, jurisprudence is concerned with the fundamental principles of law systematic and scientific study their methods.
The scope of Jurisprudence:- According to justice P.B.Mukherjee:” Jurisprudence is both an intellectual and idealistic abstraction as well as behavioral study of man in society. It includes political, social, economic and cultural ideas. It covers that study of man in relation to state and society.”
Jurisprudence involves certain types of investigations into law, and investigation an abstract, general and theoretical nature which seeks to lay the bare essential principles of law and legal systems.
Salmond observed: “In jurisprudence, we are not concerned to derive rules from authority and apply them to the problem, we are concerned rather reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of the legal system.” It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already known.
CONTENTS OF JURISPRUDENCE:- The following are the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. Under this head matters such as custom, legislation, precedent as sources of law, pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal concepts such as rights, title, property, ownership, possession, obligations, acts, negligence, legal personality and related issues. Although all these concepts are equally studied in the ordinary branches of law, but since each of the functions in several different branches of law, jurisprudence tries to build a more comprehensive picture of each concept as a whole.
iii) LEGAL THEORY :- the Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other. It is, therefore, necessary that while analyzing legal concepts, and effort should be made to present them in the background of social developments and changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical use. But it is not correct to say so. Its utility is as under :-
- Salmond pointed out that jurisprudence has its own intrinsic interest like any other subject of serious scholarship, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic
interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies.
- Jurisprudence also has its practical applicability. In other words, it serves to render the complexities of law more manageable and rational and in this way, theory can help to improve practice in the seats of law.
- Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate or social realities and the functional aspects of the law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. For instance, a proper understanding of the law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology.
- Commenting on the significance and utility of jurisprudence : Holland observed, “ the ever renewed complexity of human relations call for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible.” Thus jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. This way it has been characterized as “The eye of law.”
- Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws passed by the legislature by providing the of interpretation.
- The study of jurisprudence helps in rationalizing the thinking the students and prepares them for an upright civil life. The knowledge of the law and legal precepts also helps them to face every exigency of human affairs boldly and courageously.
- Jurisprudence may also be helpful o legislators who play a crucial role in the process of law- making. The study of jurisprudence may familiarise them with technicalities of law and legal precepts thus making their job fairly easy as also interesting.
According to Dias, the study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus for it concerns human thought in relation to social existence. The law should serve the purpose of social-engineering by preserving societal values and eliminating conflicting interests of individuals in the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of the importance of jurisprudence in the field of law it is called, “The eye of Law”. The eyes are one of the most important parts of human body. Almost all human activities and the movements of the body are possible only through them. Unless man can see anything properly, he cannot do any work. The reason for calling jurisprudence the ‘ the eye of law’ is that jurisprudence functions for law in the same manner as the eyes do in the human body. For example- the interpretation of the law is a very difficult task, It cannot be done without the help of jurisprudence. ‘PATON’ in this connection says that,” Jurisprudence is a particular method of study, not the law of one particular county but of the general notions of law itself.’
Whenever any complicated problem regarding law like:-
- How and when the law developed.
- What is its object?
- Whether the law was made by people or it was due to the inspiration of some Divine force.
coming of the existence of the State, the legislation has also been come into existence and become a most important source of law. The scope of legislation has become very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the legislation :-
- Supreme Legislation:- It has the powers of making law and is known as supreme legislation in each country. This power is vested in the sovereign body in India i.e. Parliament at the center and legislation in the State.
- Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation. It takes power to make law indirectly through Parliament, who gave him the power to make a law that is why is called subordinate legislation authority. It is further divided into the following parts :-
i) Autonomous Laws : A group of persons for making law is known as autonomous law and body i.e University or Boards.
ii) Judicial Rule :- means the rules made by judicial body under power owed from supreme authority i.e. High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC i.e Zila Parishad, Municipal Corporation.
iv) Colonial Law: It is for those countries who are under the control of any other country can make laws with the permission that country.
Executive Law: The law and the rule can be made by the executive body in the State under the power conferred by the Sovereign/ Parliament which is also known as delegated legislation. It includes the following origins:
I) Legislation: The legislation is the superpower to make law for a country.
II) Executive: The executive body of the nation is to impose law in the country.
III) Judiciary: The Judiciary is to explain and implies the law so passed.
Parliament in India delegates its laws making power to the executive body and this power is called legislated or delegated legislation.
Many reform acts were handing power of making reforms, controlling of employment, development of education. In 20th century some important matters were given to delegated legislation to restrict the State to interfere in the daily life of the citizens.
CRITICISM:- Many of the writers has criticized this power because it gives much power to the executive body and administration body. The legislation has passed by facing the complicated problems in the constitution. There were some supporters also who were in the favor of this delegation of power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time: The parliament has the shortage of time because of a Public welfare state. It has to pay much time towards national problems.
ii) Technicality of Matters:- With the progress of society the things have become more complicated and technical. Therefore the policy is made by the Parliament and the imposing matter is left on the masters of it.
iii) Flexibility: Law should be flexible and according to the need & conditions of the Public along-with the local matters which are different from area to area, So keeping in view of this reason the power is handed over to the executive.
There are some dangers in delegations of this power:-
(i) The executive body may uses the more powers than the powers delegated by the Parliament. (ii) The Parliament has no time to examine the rules passed by the executive under delegated legislation.
In India there is a Parliament form of legislation and it is a welfare state and the Parliament cannot go aside from the constitution. Any cut against the constitution is void. The Main power of delegated legislation
CONCLUSION:
Power of facing an act into operation. Power to apply the Act. Power to increase or to decrease the scope of the Act. There is a parliamentary as well as judiciary control over delegated legislation. This power in India has also on constitutional basis.
Explain the phrase, “Law is social Engineering” as propounded by Roscoe Pound.
INTRODUCTION:- Roscoe Pound is considered to be the,” American Leader” in the field of Sociological jurisprudence. He comes from Harvard Law School and had a great academic favour. According to him,” the end of law should be to satisfy a maximum of wants with minimum of friction.” He defined law as containing the rules, principles, conceptions and standards of conduct and decision as also the precepts and doctrines of professional rules of art. He considers law as a means of a developed technique and treats jurisprudence as ‘social engineering’.
The main propositions of Roscoe Pound theory of Social Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:- Pound concentrates more on the functional aspect of law, that is why some writers name has approach as “ functional school” the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste.
ii) THE TASK OF LAW IS “SOCIAL ENGINEERING”:- He says, “for the purpose of understanding of law of today. I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy, social wants, the claims and demands involved in the existence of civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE COMPETING INTEREST IN SOCIETY :- He lays down a method which a jurist should follow for ‘social engineering’. He should study the actual social effects of legal institution and legal doctrines, study the means of making legal rules effective sociological study in preparation of law-making, study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individual cases.” He himself enumerates the various interests which are to be protected by the law. He classifies them under three heads:
i. Private Interests (ii) Public Interests (iii) Social Interests.
PRIVATE INTERESTS:- Such as interest of physical integrity, reputation, Freedom of volition and freedom of conscience. They Are safe-guarded by law of crimes, contracts.
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.
Legal personality is an artificial creation of law. Entities recognized by law are capable of being parties to a legal relationship. A natural person is a human being whereas legal persons are artificial persons, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated more or less as a human being. All legal persons can sue or be sued.
Theories of Juristic Personality
- Fiction Theory – This theory was put forward by Von Savigny, Salmond, Coke, Blackstone, and Holland etc. According to this theory, the personality of a corporation is different from that of its members. Savigny regarded corporation as an exclusive creation of law having no existence apart from its individual members who form the corporate group and whose acts are attributed to the corporate entity. As a result of this, any change in the membership does not affect the existence of the corporation.
It is essential to recognize clearly the element of legal fiction involved in this process. A company is in law something different from its shareholders or members. The property of the company is not in law the property of the shareholders. The company may become insolvent, while its members remain rich.
Gray supported this theory by saying that it is only human beings that are capable of thinking, therefore it is by way of fiction that we attribute ‘will’ to non-human beings through human beings who are capable of thinking and assign them legal personality.
Wolf said that there are three advantages of this theory. It is analytical, more elastic and it makes easier to disregard juristic personality where it is desirable.
- Concession Theory – This theory is concerned with the Sovereignty of a State. It pre-supposes that corporation as a legal person has great importance because it is recognized by the State or the law. According to this theory, a juristic person is merely a concession or creation of the state.
Concession Theory is often regarded an offspring of the Fiction Theory as both the theories assert that the corporation within the state have no legal personality except as is conceded by the State. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are found to support this theory.
Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory that a corporation is merely a name and a thing of the intellect, the concession theory is indifferent to the question of the reality of a corporation in as much as it focuses only on the source (State) from which the legal power of the corporation is derived.
- Group Personality Theory or Realist Sociological Theory – This theory was propounded by Johannes Althusius and carried forward by Otto Van Gierke. This group of theorists believed that every collective group has a real mind, a real will and a real power of action. A corporation therefore, has a real existence, irrespective of the fact whether it is recognized by the State or not.
Gierke believed that the existence of a corporation is real and not based on any fiction. It is a psychological reality and not a physical reality. He further said that law has no power to create an entity but merely has the right to recognize or not to recognize an entity.
A corporation from the realist perspective is a social organism while a human is regarded as a physical organism. This theory was favoured more by the sociologists rather than by the lawyers. While discussing the realism of the corporate personality, most of the realist jurists claimed that the fiction theory failed to identify the relationship of law with the society in general. The main defect of the fiction theory according to the realist jurists was the ignorance of sociological facts that evolved around the lawmaking process.
Horace Gray, however, denied the existence of collective will. He called it a figment. He said that to get rid of the fiction of an attributed by saying that corporation has a real general will, is to derive out one fiction by another.
- The Bracket Theory or the Symbolist Theory – This theory was propounded by Rudolph Ritter von Jhering (also Ihering). According to Ihering, the conception of corporate personality is essential and is merely an economic device by which we can simplify the task of coordinating legal relations. Hence, when necessary, it is emphasized that the law should look behind the entity to discover the real state of affairs. This is also similar to the concept of lifting of the corporate veil.
This group believed that the juristic personality is only a symbol to facilitate the working of the corporate bodies. Only the members of the corporation are ‘persons’ in real sense of the term and a bracket is put around them to indicate that they are to be treated as one single unit when they form themselves into a corporation.
- Purpose Theory or the theory of Zweck Vermogen - The advocates of this theory are Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the fiction theory. It declared that only human beings can be a person and have rights. This theory also said that a juristic person is no person at all but merely a “subjectless” property destined for a particular purpose. There is ownership but no owner. Thus a juristic person is not constructed round a group of persons but based on an object and purpose.The assumption that only living persons can be the subject-matter of rights and duties would have deprived imposition of rights and duties on corporations which are non-living entities. It therefore, became necessary to attribute ‘personality’ to corporations for the purpose of being capable of having rights and duties.
- Hohfeld’s Theory- He said that juristic persons are creations of arbitrary rules of procedure. According to him, human beings alone are capable of having rights and duties and any group to which the law ascribes juristic personality is merely a procedure for working out the legal rights and jural relations and making them as human beings.
- Kelsen’s Theory of Legal Personality – He said that there is no difference between legal personality of a company and that of an individual. Personality in the legal sense is only a technical personification of a complex of norms and assigning complexes of rights and duties.
There are the following two types of persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All human beings are natural persons but in ancient society the slaves were not recognised as natural persons. Similarly outlaid persons, unsound persons were not natural persons. In Hindu Law, Manu has mentioned some persons who were not recognised as natural persons i.e. Born child, deaf persons, sanyasi and those who are living dead.
- Unborn person: Unborn person is not a natural person because he is not in existence, but a child in the womb is natural person because he bears the rights and duties under law. Person in the womb can represent the position after birth. In IPC the child in the womb is considered as a natural person as soon as any of his organ will come out from the womb.
DEFINITION :- Before to define the ownership we have to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first law in the world. It is considered the ancient law. All concepts of law begin from the period of Roman society. Under the Roman Law the concept of ownership is defined in the form of dominion that means to have the right control of a thing. The concept of ownership developed in the form of a right over the thing. Dominion is distinguished from possession. Possession means to have possession over a thing but dominos means to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most ancient law in the world. In Hindu law the concept of ownership also has been discussed. In Hindu Law ownership is said a , “According to Hindu Law ownership means a relationship between person and a thing. Person is called owner and a thing is called property. Means a property which is in the control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland, and Salmond defined the concept of ownership.
Austin :- According to him ownership is the relationship which exists in between the person and the thing.” This definition resembles with the definition under Hindu Law. Austin says that in ownership a person has the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for industry, residence but there is a restriction that one cannot use one’s property in such a way which destructive in the living of others.
2.Un-restricted power of dispose:- Means to transfer that thing or property according to his choice. He can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2) of the Constitution reasonable restrictions can be imposed by the Govt., in the interest of public policies.
3.Unlimited duration of time :- means the right of transfer of his property will remain always in the name of owner. After his death it will go to his heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For this purpose both elements of possession corpus and animus should be there. If the conditions are there between person and the thing and then the person is owner of that thing.
According to Holland: He defined the ownership as a plenary control of a person over a thing. The definition also contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a relationship between person and the right. Right means to have a thing under possession. Thing always represents physical objects. But right always represents a thing which is not in physical existence like copyright and allowances are always thing which are called property. And which are not in physical existence.
Salmond has included all those right which are property in the concept of ownership. In view of the above it is learnt that Austin and Holland definitions are not complete. But Salmond is completely perfect in his definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as under :-
- Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called material and immaterial ownership. Corporeal ownership is the ownership of a material object and incorporeal ownership is the ownership of a right. Ownership of a house, a table or a machine is corporeal ownership. Ownership of copyright a patent or a trade mark is incorporeal ownership.
- Sole and co-ownership:- The general principal of ownership is that vested in one person only. But some times it vested in many persons in other words two or more person have the right of ownership. If only one person have right of ownership that known as sole ownership and where two or more persons have the right of ownership then know as co-ownership.
- Vested and contingent ownership:- Ownership is either vested or contingent it is vested ownership when the title of the owner is already perfect. It is contingent ownership when the title of the ownership is yet imperfect.
- Absolute and Limited ownership:- means owner is one in whom are vested all the rights over a thing to the exclusion of all or when a person has an absolute right over his property known as absolute ownership.
When there are limitations on the user duration or disposal of rights of ownership the ownership is limited ownership.
- Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of common law. Equitable ownership is that which proceeds from the rules of equity. Legal right may be enforced in rem but equitable rights are enforced in personam.
CONCLUSION
The ownership is a relationship between person and the right. These rights include the right of possession enjoyment and disposal of the property. If all conditions are there then it is called Ownership.
DIFFERENCE BETWEEN POSSESSION & OWNERSHIP
- Possession is a primary stage of ownership which is in fact. Ownership is in right.
- Possession does not give title in the property defacto exercise of a claims. While in ownership it gives title in the property dejure recognisation.
- Possession is a fact. Ownership is a right and superior to possession.
- Possession tends to become ownership. Ownership tends to realize itself in to possession.
- Possession dominion corpus and animus are necessary. Ownership they are not necessary because law gives full rights.
- Transfer of possession is comparatively easier. Ownership most of the cases involves a technical process i.e. conveyance deed etc.
- Possession is nine points of law.Ownership always tries to realize itself in possession i.e. complete thing.
- Law is based upon the national conditions, situations, circumstances, custom etc.
- Law is prehistoric: means law is found and is not made, the jurists and the lawyers make it into set form.
- Law develops like language and manner of the society. In ancient society law was not in a natural stage or no in a set form. Later on with the development of the society the requirements and the necessities of the society increased. Due to this it was necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Savigny customs are more important than legislation because customs come before legislation. In other words the customs are the base of legislation.
CRITICISM OF SOVEGING’s THEORY
Savigny’s theory has been criticised on the following grounds:-
- Inconsistency in the Theory :- Savigny asserted that the origin of law is in the popular consciousness, and on the other hand, argued that some of the principles of Roman law were of universal application. Thus, it is a clear-cut inconsistency in his ideas.
- ‘Volksgeist’ not the Exclusive Sources of law :- There are many technical rules which never existed in nor has any connection with popular consciousness.
- Customs not Always Based on Popular Consciousness:- Many customs are adopted due to imitation and not on the ground of their righteousness. Sometimes customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community.
- Savigny Ignored Other Factors That Influence Law:- The law relating to trade unions is an outcome of a long and violent struggle between conflicting interests within a society.
- Many Things Unexplained :- Legal developments in various countries show some uniformity to which he paid no heed. i.e.
- What is national and what is universal.
- Juristic Pessimism:- Soveging encouraged juristic pessimism. Legislation must accord with popular consciousness. Such a view will not find favour in modern times. No legal system would like to make compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see the history of the society to check that what was the position of law in the ancient time. How and in what form law was prevailing in the society? To find the solution of the questions the supporter of Historical school found that law is the general consciousness of the common people or it is the free will of common people on which law developed and converted into a set of form of law.
