MODULE-I: Introduction
a) Meaning of Jurisprudence / Legal Theory, Nature, Need and Scope.
Jurisprudence meant "knowledge of or skill in law," a now archaic sense that reflects the literal meaning of the word. "Jurisprudence" goes back to Latin prudentia juris (literally "skill in law"), from which was derived the Late Latin formation jurisprudentia, and subsequently our word.
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.
Bentham is known as Father of Jurisprudence.
What is an example of jurisprudence?
Use jurisprudence in a sentence. noun. The definition of jurisprudence is the legal system, or the theory and practice of the law. The court and trial system used to administer law and justice is an example of jurisprudence.
What is a legal theory?
Legal theory refers to the principle under which a litigant proceeds, or on which a litigant bases its claims or defenses in a case. It can also be the law or body of rules of conduct which are of binding legal force and effect, prescribed, recognized, and enforced by a controlling authority.
Nature and Scope of Jurisprudence. There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject.
Need of Jurisprudence. The study of jurisprudence helps to put the law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines. ... Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and fundamental principles of law.
b) Linkages between Jurisprudence and other sciences-
Relation of Jurisprudence with other social sciences
Jurisprudence is studying law, law is regulating the conduct of individuals and individuals are living and forming societies. Therefore, law is an important social phenomenon which is making jurisprudence as a Social Science.
However, there are several other Social Science, like Ethics, Political Science, Sociology, Psychology etc. Now, it is logical that these social science should be interlinked with each other at some point.
Moreover, these social sciences could not studied in isolation. In other words, none of these sciences can be understand with having a fair knowledge of others. Jurisprudence, being a social science is, in fact, related with other social sciences.
Jurisprudence and Sociology
Jurisprudence is the study of law and sociology is the study of society and it is also discusses law but from a different stand-point. Therefore there is a link between jurisprudence and sociology.
Jurisprudence is concerned with legal rules that actually exists, however, sociology is studying the effectiveness of those legal rules and their impacts on society.
Jurisprudence and Politics
Politics studies the principles responsible for the governmental organization. Whereas, jurisprudence is analyzing those principles.
Moreover, in a political society there exist rules for the regulation of human being conduct which are the subject-matter of jurisprudence. Hence, there is a close connection between the two.
Jurisprudence and Ethics
Ethics is the science of human conduct. It projects an ideal human behavior, in the light of which it suggests a course of conduct for individuals living in societies. Whereas, jurisprudence is discussing the imperative rules, actually existing in the societies. However, those rules are also connected with the behavior of human beings in societies.
Therefore, both of the science are interrelated.
Due to the close relationship and interdependency of these sciences, there emerged a branch of jurisprudence known as Ethical Jurisprudence, discussing the ideal human behavior or which is the study of law as it ought to be.
Jurisprudence and Psychology
Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is discussing law.
Law is aimed to be followed by individuals, and individuals can only follow law if they intend to follow.
Therefore, intention is the very basic element behind every law, and particularly in criminal law the concept of mens rea is having immense importance. Therefore, jurisprudence and psychology both are closely inter-related human sciences.
Jurisprudence and Economics
Economics is the science of wealth and jurisprudence is the science of law.
Economics studies the production and distribution of wealth and law is responsible for establishing a fair distribution of wealth through rules.
Moreover, studies show that economic factors are responsible for the increasing rate of criminal activities, which again brings the two in close relation with each other.
Furthermore, economics aims at improvement of the standards of human lives whereas, this could not possible if a peaceful environment is not available which is possible through the application of laws.
Therefore, there is a close relationship between the two.
Jurisprudence and History
History is the scientific narration of the past events, whereas, jurisprudence is the science of law.
Law has not come into existence overnight, as a matter of fact, it has developed through ages.
History helps jurisprudence in digging out the origin and evolution of different legal rules.
Owing to its importance, there developed a separate branch of jurisprudence, known as Historical Jurisprudence.
Therefore, it may concluded that there is a close relation between jurisprudence and history.
i) Law and Justice.
Laws are actually rules and guidelines that are set up by the social institutions to govern behavior. These laws are made by government officials. Laws must be obeyed by all. Laws set out standards, procedures and principles that must be followed.
Justice is a concept that is based on equality, righteousness, ethics, morality, etc. This concept states that all individuals must be treated equal and the same. The term justice is a huge part of law and almost all aspects of law are based on this concept.
Law and justice are two words that often go hand-in-hand. These words are often confusing for many people who believe that these words are the same or refer to the same thing. However, this is not true. Law is basically a set of rules that define what is right and what is wrong, while justice also takes into consideration the circumstances that surround the right of wrong at that time. While law is a system, justice is a concept that is the basis of this particular system.
The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.
The controlling influence of such rules; the condition of society brought about by their observance.
A system or collection of such rules.
The term as a part of law suggests that law must be right and equal for everyone; irrespective of caste, religion, ethnicity, creed, etc. Everyone must have the same rights as another. In many countries, justice if often represented using a blindfolded lady with a set of scales in her hand. In some countries such as the US, there is also a sword in her hand. The blindfold is used to depict the irrelevance of the cast, gender, etc,, while the scales is used to represent the equality in weighing competing claims in each hand. The sword is used to symbolize the court's coercive power. Law and court are used to implement justice by providing punishment for law breakers.
ii)Law and Morality.
Laws are absolute rules prescribed by government representatives, while morality has to do with personal views on what is right or wrong. There is a close relationship between the two in that laws often represent the overriding societal view on moral issues.
Law is formal public policy that has consequences for those who violate it. Someone who murders or steals, for instance, goes to jail if found guilty in court. In contrast, someone who violates what others view as a moral standard may have no tangible consequence other than damaged relationships.
Laws are sometimes viewed as legislation on moral issues. Many people lean on religious beliefs to frame their moral viewpoints. Politicians and some citizens also point to faith-based principles in suggesting that laws should follow what God commands. Others believe that laws should protect individual rights and freedoms but should not extend to topics viewed as ethical gray areas.
Law
1.Concerned with external acts of man and not motives.
2.Is the concern of the state.
3.Is concerned with a part of man’s life.
4.Violation of law is punishable by the state.
5.Force is the sanction behind laws.
6.Law is definite and precise.
7.Law is objective.
8.Law acts within the territory of the state.
9.Law is based on expediency.
10.A legal wrong may be morally right.
11.There is a definite agency to enforce law.
Morality
1. Concerned with both the external acts and internal motives.
2. Is the concern of conscience.
3. Is concerned with the whole of man’s life.
4. Its violation is not punishable by the state.
5. Moral conscience is its sanction.
6. Morality is vague and indefinite.
7. Morality is subjective.
8. Morality is universal.
9. Morality has absolute standards.
10. A moral wrong may be legally right.
11. There is no definite agency to enforce morality.
c) Nature and definition of Law.
The law is a system of rules that a society or government develops in order to deal with crime, business agreements, and social relationships. You can also use the law to refer to the people who work in this system. Rules, usually made by a government, that is used to order the way in which a society behaves.
We know that Law cannot be static. In order to remain relevant, Law has to grow with the development of the society. In the same manner, the scope of law also cannot be kept static. The result is that the definition of law is ever changing with the change in society. The definition of law considered satisfactory today might be considered a narrow definition tomorrow. This view has been put forward by Professor Keeton. He said that an attempt to establish a satisfactory definition of law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually trying to escape.
a. Fixed principles of law
d) Definition of State
Salmond defines state a society of men established for the maintenance of order and justice within a determined territory, by way of force.
e) Elements of State
MODULE -II: Schools of Jurisprudence
a) Analytical Positivism, Pure Theory.
[Limits on legislative authority: there are no limits (Positivism)]
These theories comprise of
i) Command Theory of Law : Utilitarianism (John Austin)
ii) Normative Theory of Law: Pure Theory (Hans Kelsen).
iii) Rule theory of Law: Law as system of rules-combination of primary and secondary rules (H.L.A Hart).
b) Natural Law
i) Divine and prophestic theories of law ex. Hebrew Law, Law of Manu and the Islamic Law.
ii) Natural Law theories: An Overview
i) Natural Las as Virtue (dharma) - Hindu.
ii) Natural Law as Justice by Nature - Aristotle.
iii) Natural Law as Right reason - Cicero.
iv) Natural Law as Law of God - St. Thomas Aquinas.
v) Natural Law as inner morality of law - Fuller.
c) Historical Jurisprudances: Historical theories arose out of revolt against Rationallism and the power of human will and tradition.
d) Sociological Jurisprudence:
i) Sociological Theory: Functions of Law - Law as a means of social control. Jurisprudence of Interests - Roscoe Pound.
ii) Realist Movement.
e) Indian Jurisprudence:
i) Classical Approach.
ii) Medieval Approach.
iii) Modern Trends.
MODULE - III: Source of Law
a) Ancient Customs etc.
b) Modern: Precedents and Legislation.
MODULES - IV: Concepts of Law.
a) Rights and Duties: Theories and Classification
b) Legal Personality
c) Possession, Ownership and Property
MODULE-V: Principles of Liability
a) Liability and Negligence.
b) Absolute Liability.
c) Immunity.
a) Meaning of Jurisprudence / Legal Theory, Nature, Need and Scope.
Jurisprudence meant "knowledge of or skill in law," a now archaic sense that reflects the literal meaning of the word. "Jurisprudence" goes back to Latin prudentia juris (literally "skill in law"), from which was derived the Late Latin formation jurisprudentia, and subsequently our word.
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.
Bentham is known as Father of Jurisprudence.
What is an example of jurisprudence?
Use jurisprudence in a sentence. noun. The definition of jurisprudence is the legal system, or the theory and practice of the law. The court and trial system used to administer law and justice is an example of jurisprudence.
What is a legal theory?
Legal theory refers to the principle under which a litigant proceeds, or on which a litigant bases its claims or defenses in a case. It can also be the law or body of rules of conduct which are of binding legal force and effect, prescribed, recognized, and enforced by a controlling authority.
Nature and Scope of Jurisprudence. There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject.
Need of Jurisprudence. The study of jurisprudence helps to put the law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines. ... Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and fundamental principles of law.
b) Linkages between Jurisprudence and other sciences-
Relation of Jurisprudence with other social sciences
Jurisprudence is studying law, law is regulating the conduct of individuals and individuals are living and forming societies. Therefore, law is an important social phenomenon which is making jurisprudence as a Social Science.
However, there are several other Social Science, like Ethics, Political Science, Sociology, Psychology etc. Now, it is logical that these social science should be interlinked with each other at some point.
Moreover, these social sciences could not studied in isolation. In other words, none of these sciences can be understand with having a fair knowledge of others. Jurisprudence, being a social science is, in fact, related with other social sciences.
Jurisprudence and Sociology
Jurisprudence is the study of law and sociology is the study of society and it is also discusses law but from a different stand-point. Therefore there is a link between jurisprudence and sociology.
Jurisprudence is concerned with legal rules that actually exists, however, sociology is studying the effectiveness of those legal rules and their impacts on society.
Jurisprudence and Politics
Politics studies the principles responsible for the governmental organization. Whereas, jurisprudence is analyzing those principles.
Moreover, in a political society there exist rules for the regulation of human being conduct which are the subject-matter of jurisprudence. Hence, there is a close connection between the two.
Jurisprudence and Ethics
Ethics is the science of human conduct. It projects an ideal human behavior, in the light of which it suggests a course of conduct for individuals living in societies. Whereas, jurisprudence is discussing the imperative rules, actually existing in the societies. However, those rules are also connected with the behavior of human beings in societies.
Therefore, both of the science are interrelated.
Due to the close relationship and interdependency of these sciences, there emerged a branch of jurisprudence known as Ethical Jurisprudence, discussing the ideal human behavior or which is the study of law as it ought to be.
Jurisprudence and Psychology
Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is discussing law.
Law is aimed to be followed by individuals, and individuals can only follow law if they intend to follow.
Therefore, intention is the very basic element behind every law, and particularly in criminal law the concept of mens rea is having immense importance. Therefore, jurisprudence and psychology both are closely inter-related human sciences.
Jurisprudence and Economics
Economics is the science of wealth and jurisprudence is the science of law.
Economics studies the production and distribution of wealth and law is responsible for establishing a fair distribution of wealth through rules.
Moreover, studies show that economic factors are responsible for the increasing rate of criminal activities, which again brings the two in close relation with each other.
Furthermore, economics aims at improvement of the standards of human lives whereas, this could not possible if a peaceful environment is not available which is possible through the application of laws.
Therefore, there is a close relationship between the two.
Jurisprudence and History
History is the scientific narration of the past events, whereas, jurisprudence is the science of law.
Law has not come into existence overnight, as a matter of fact, it has developed through ages.
History helps jurisprudence in digging out the origin and evolution of different legal rules.
Owing to its importance, there developed a separate branch of jurisprudence, known as Historical Jurisprudence.
Therefore, it may concluded that there is a close relation between jurisprudence and history.
i) Law and Justice.
Laws are actually rules and guidelines that are set up by the social institutions to govern behavior. These laws are made by government officials. Laws must be obeyed by all. Laws set out standards, procedures and principles that must be followed.
Justice is a concept that is based on equality, righteousness, ethics, morality, etc. This concept states that all individuals must be treated equal and the same. The term justice is a huge part of law and almost all aspects of law are based on this concept.
Law and justice are two words that often go hand-in-hand. These words are often confusing for many people who believe that these words are the same or refer to the same thing. However, this is not true. Law is basically a set of rules that define what is right and what is wrong, while justice also takes into consideration the circumstances that surround the right of wrong at that time. While law is a system, justice is a concept that is the basis of this particular system.
The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.
Any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution.
A system or collection of such rules.
The term as a part of law suggests that law must be right and equal for everyone; irrespective of caste, religion, ethnicity, creed, etc. Everyone must have the same rights as another. In many countries, justice if often represented using a blindfolded lady with a set of scales in her hand. In some countries such as the US, there is also a sword in her hand. The blindfold is used to depict the irrelevance of the cast, gender, etc,, while the scales is used to represent the equality in weighing competing claims in each hand. The sword is used to symbolize the court's coercive power. Law and court are used to implement justice by providing punishment for law breakers.
ii)Law and Morality.
Laws are absolute rules prescribed by government representatives, while morality has to do with personal views on what is right or wrong. There is a close relationship between the two in that laws often represent the overriding societal view on moral issues.
Law is formal public policy that has consequences for those who violate it. Someone who murders or steals, for instance, goes to jail if found guilty in court. In contrast, someone who violates what others view as a moral standard may have no tangible consequence other than damaged relationships.
Laws are sometimes viewed as legislation on moral issues. Many people lean on religious beliefs to frame their moral viewpoints. Politicians and some citizens also point to faith-based principles in suggesting that laws should follow what God commands. Others believe that laws should protect individual rights and freedoms but should not extend to topics viewed as ethical gray areas.
Law
1.Concerned with external acts of man and not motives.
2.Is the concern of the state.
3.Is concerned with a part of man’s life.
4.Violation of law is punishable by the state.
5.Force is the sanction behind laws.
6.Law is definite and precise.
7.Law is objective.
8.Law acts within the territory of the state.
9.Law is based on expediency.
10.A legal wrong may be morally right.
11.There is a definite agency to enforce law.
Morality
1. Concerned with both the external acts and internal motives.
2. Is the concern of conscience.
3. Is concerned with the whole of man’s life.
4. Its violation is not punishable by the state.
5. Moral conscience is its sanction.
6. Morality is vague and indefinite.
7. Morality is subjective.
8. Morality is universal.
9. Morality has absolute standards.
10. A moral wrong may be legally right.
11. There is no definite agency to enforce morality.
c) Nature and definition of Law.
The law is a system of rules that a society or government develops in order to deal with crime, business agreements, and social relationships. You can also use the law to refer to the people who work in this system. Rules, usually made by a government, that is used to order the way in which a society behaves.
We know that Law cannot be static. In order to remain relevant, Law has to grow with the development of the society. In the same manner, the scope of law also cannot be kept static. The result is that the definition of law is ever changing with the change in society. The definition of law considered satisfactory today might be considered a narrow definition tomorrow. This view has been put forward by Professor Keeton. He said that an attempt to establish a satisfactory definition of law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually trying to escape.
Let us study the views of Austin and Salmon on the Nature of Law.
Austin said that law is the aggregate of the rules set by men as political superior or sovereign to men as politically subject. In short, Law is the command of sovereign. It imposes a duty and duty is backed by a sanction. He further said that there exists three elements in law:
a. Command
b. Duty
c. Sanction
However, Salmond defined law as the body of principles recognized and applied by the state in the administration of justice.
Let us comeback to Austin’s definition now.
Austin’s Theory of Law or Imperative Theory of Law
As we know, according to Austin, there are three elements in law:
a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction
He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of desire. Command is also an expression of desire which is given by a political superior to a political inferior. The relationship of superior and inferior consists in the power which the superior enjoys over the inferior because the superior has ability to punish the inferior for its disobedience.
He further said that there are certain commands that are laws and there are certain commands that are not laws. Commands that are laws are general in nature. Therefore, laws are general commands. Laws are like standing order in a military station which is to be obeyed by everybody.
He goes on to define who is a sovereign. According to him, Sovereign is a person or a body or persons whom a bulk of politically organized society habitually obeys and who does not himself habitually obey some other person or persons. Perfect obedience is not a requirement.
He further goes on to classify the types of laws:
1. Divine Law- Given by god to men
2. Human Law- Given by men to men
a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.
Criticism of Austin’s Theory of Law
1. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were societies prior to existence of sovereign and there were rules that were in prevalence. At that point of time, there was no political superior. Law had its origin in custom, religion and public opinion. All these so called ‘laws’ were later enforced by the political superior. Thus, the belief that sovereign is a requirement for law has received criticism by the Historical and Sociological School of Thought.
However, the above mentioned criticism is not supported by Salmond. Salmond said that the laws which were in existence prior to the existence of state were something like primitive substitutes of law and not law. They only resembled law. Salmond gave an example. He said that apes resemble human beings but it is not necessary to include apes if we define human beings.
2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is applicable only to a particular domain. There are laws which are not universally applicable. Thus, laws are not always general in nature.
3. Promulgation- It is not necessary for the existence of the law that the subjects need to be communicated. But, Austin thought otherwise.
4. Law as Command- According to Austin, law is the command of the sovereign. But, all laws cannot be expressed as commands. Greater part of law in the system is not in the nature of command. There are customs, traditions, and unspoken practices etc. that are equally effective.
5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for a Democratic state, laws exist not because of the force of the state but due to willing of the people. Hence, the phrase ‘sanction’ is not appropriate in such situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.
6. Not applicable to International Law- Austin’s definition is not applicable to International Law. International Law represents law between sovereigns. According to Austin, International Law is simply Positive Morality i.e. Soft Laws.
7. Not applicable to Constitutional Law- Constitutional Law defines powers of the various organs of the state. It comprises of various doctrines such as separation of power, division of power etc. Thus, no individual body of a state can act as sovereign or command itself. Therefore, it is not applicable to constitutional law.
8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal Laws have their origin in religion, customs and traditions. Austin’s definition strictly excludes religion. Therefore, it is not applicable to personal laws.
9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour and essence. Justice is considered an end of law or law is considered a means to achieve Justice. However, Austin’s theory is silent about this special relationship of Justice and Law. Salmond said that any definition of law which is without reference to justice is imperfect in nature. He further said ‘Law is not right alone, it is not might alone, it a perfect union of the two’ and Law is justice speaking to men by the voice of the State. According to Salmond, whatever Austin spoke about is ‘a law’ and not ‘the law’. By calling ‘the law’ we are referring to justice, social welfare and law in the abstract sense. Austin’s definition lacked this abstract sense. A perfect definition should include both ‘a law’ and ‘the law’.
10. Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by Austin.
Merit in Austin’s Definition
Not everything is faulty about Austin’s theory of law. He gave a clear and simple definition of law because he has excluded ethics and religion from the ambit law. Thus, he gave a paramount truth that law is created and enforced by the state.
Salmond’s Definition of Law
According to Salmond ‘Law may be defined as the body of principles recognized and applied by the state in the administration of justice’. In other words, law consists of rules recognized and acted upon by the Courts of Justice.
Salmond believed that law may arise out of popular practices and its legal character becomes patent when it is recognized and applied by a Court in the Administration of Justice. Courts may misconstrue a statute or reject a custom; it is only the Ruling of the Court that has the Binding Force of Law.
He further said that laws are laws because courts enforce them. He drew a lot of emphasis on Administration of Justice by the Courts. He was of firm belief that the true test of law is enforceability in the courts of law.
Thus, we see that Salmond has defined law in the abstract sense. His definition brings out the ethical purpose of law. In his definition, law is merely an instrument of Justice.
Criticism by Vinogradoff
Vinogradoff heavily criticized Salmond’s definition. He said that the definition of law with reference to Administration of Justice inverts the logical order of ideas. The formulation of law is necessary precedent to the administration of justice. Law has to be formulated before it can be applied by a court of justice.
He further said that the definition given by Salmond is defective because he thinks law is logically subsequent to administration of justice. Existence of a Rule of Law because Courts of Justice could apply it and enforce it while deciding cases, vitiates the definition of law.
Natural Law or Moral Law
Natural Law refers to the Principles of Natural right and wrong and the Principle of Natural Justice. Here, we must use the term ‘justice’ in the widest sense to include to all forms of rightful action. Natural Law is also called Divine Law or Law of Reason or The Universal Law and Eternal Law. This law is a Command of the God imposed on Men.
Natural Law is established by reason by which the world is governed, it is an unwritten law and it has existed since the beginning of the world and hence, is also called Eternal Law. This law is called Natural Law as its principles are supposed to be laid down by god for the guidance of man. It is called Rational Thought because it is based on reason. Natural Law is unwritten as we do not find it in any type of Code. Therefore, Natural law exists only in ideal state and differs from law of a State. Philosophy of Natural law has inspired legislation and the use of reason in formulating a System of law.
Purpose and function of law
Society is dynamic and not static in nature. Laws made for the people are also not static in nature. Thus, purpose and function of law also cannot remain static. There is no unanimity among theorists as to purpose and function of law. Thus, we will study purpose and function of law in the context of advantages and disadvantages.
1. Advantages of law-
a. Fixed principles of law
i. Laws provide uniformity and certainty of administration of justice.
ii. Law is no respecter of personality and it has certain amount of certainty attached to it.
iii. Law avoids the dangers of arbitrary, biased and dishonest decisions because law is certain and it is known. It is not enough that justice should be done but it is also important that it is seen to be done.
iv. Law protects the Administration of Justice from the errors of individual judgments. Individual whims and fancies are not reflected in the judgment of the court that follow the Rule of Law.
b. Legislature represents the wisdom of the people and therefore a law made by the legislature is much safer because collective decision making is better and more reliable than individual decision making.
2. Disadvantages of law-
a. Rigidity of Law- An ideal legal system keeps on changing according to the changing needs of the people. Therefore, law must adjust to the needs of the people and it cannot isolate itself from them. However, in practice, law is not usually changed to adjust itself to the needs of the people. Therefore, the lack of flexibility results into hardship in several cases.
b. Conservative nature of law- Both lawyers and judges favour in continuation of the existing laws. This creates a situation where very often laws become static and they do not respond to the progressive society because of the conservative nature of law.
c. Formalism of law- Most of the times, people are concerned with the technical operation of law and not the merits of every individual case. It creates delay in the Justice Delivery system. It also leads to injustice in certain cases.
d. Complexity of law- Sometimes, the laws are immensely intricate and complex. This causes difficulty in Interpretation of Statutes.
3. Therefore, advantages of law are many but disadvantages are too much- Salmond.
d) Definition of State
Salmond defines state a society of men established for the maintenance of order and justice within a determined territory, by way of force.
e) Elements of State
MODULE -II: Schools of Jurisprudence
a) Analytical Positivism, Pure Theory.
[Limits on legislative authority: there are no limits (Positivism)]
These theories comprise of
i) Command Theory of Law : Utilitarianism (John Austin)
ii) Normative Theory of Law: Pure Theory (Hans Kelsen).
iii) Rule theory of Law: Law as system of rules-combination of primary and secondary rules (H.L.A Hart).
b) Natural Law
i) Divine and prophestic theories of law ex. Hebrew Law, Law of Manu and the Islamic Law.
ii) Natural Law theories: An Overview
i) Natural Las as Virtue (dharma) - Hindu.
ii) Natural Law as Justice by Nature - Aristotle.
iii) Natural Law as Right reason - Cicero.
iv) Natural Law as Law of God - St. Thomas Aquinas.
v) Natural Law as inner morality of law - Fuller.
c) Historical Jurisprudances: Historical theories arose out of revolt against Rationallism and the power of human will and tradition.
d) Sociological Jurisprudence:
i) Sociological Theory: Functions of Law - Law as a means of social control. Jurisprudence of Interests - Roscoe Pound.
ii) Realist Movement.
e) Indian Jurisprudence:
i) Classical Approach.
ii) Medieval Approach.
iii) Modern Trends.
MODULE - III: Source of Law
a) Ancient Customs etc.
b) Modern: Precedents and Legislation.
MODULES - IV: Concepts of Law.
a) Rights and Duties: Theories and Classification
b) Legal Personality
c) Possession, Ownership and Property
MODULE-V: Principles of Liability
a) Liability and Negligence.
b) Absolute Liability.
c) Immunity.
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