PROGRAM: 3 Year Professional Law - 75-25

Second year LLB / Fourth Year B.L.S.LL. B

Semester: IV (4th ) / VIII (8th )
Course Title: JURISPRUDENCE / LEGAL THEORY

COURSE OBJECTIVES:

This course in Jurisprudence is designed primarily, to induct students into a

realm of questions concerning nature of law. Accordingly, the first part of the

course sheds vivid light on various schools of law explaining, what is law, what

are the purposes of law? What is the relationship between law and justice?

This course aims to educate students on various legal concepts, such as, Rights,

Persons, Property, Possession, Ownership, Title and Obligation and attempts to

shape up a general and more comprehensive picture of each concept as a

whole. This course is proposed predominantly on English model but native

Indian orientation is given wherever possible with help of case laws. The course

aims at developing an analytical approach to understand the nature of law and

development of legal system. The concerns of jurisprudence are an inescapable

feature of the law and legal system. Overall, the course aims to identify and

elucidate several major principles of legal theory.

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COURSE OUTCOMES:
After completing this course, the student will be able to:

 Know various theories of Law with their merits, demerits and their

application in legal system.

 Identify and acquaint themselves with the various formal and material

sources of law.

 Understand the function and purpose of law.

 Understand thoroughly the concept of right, its elements, its kinds

including rights in the wider sense Le., the Hofliedian analysis on rights.

 Know the concepts of Custody, Possession, Ownership, Title and the

distinction between and among them.

 Grasp and understand the different Legal Concepts: Legal Personality,

Property, Obligations.

 Fathom the jurisprudential aspect of legal concepts, legal statutes, legal

interpretations,

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Module 1:

1. Introduction :

The term “jurisprudence” comes from the Latin word “juris-prudentia,”

which translates to “knowledge of law” in its broadest sense. Specifically,

“juris” means law, and “prudentia” means skill or knowledge. It, as

defined by various jurists, reflects the multifaceted nature and scope of

the field.

Nature of Jurisprudence-

Jurisprudence, as a field of study, delves into the theory and

understanding of law, playing a pivotal role in shaping our

comprehension of legal systems. By exploring fundamental legal

principles like rights, duties, possessions, property, and remedies,

jurisprudence offers valuable insights into the role and function of law

within society.

A primary focus of jurisprudence lies in scrutinizing the sources of law,

which encompass statutory law, common law, and constitutional law.

Through this examination, scholars and practitioners aim to develop a

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deeper understanding of how these sources interact and influence the

evolution of legal systems over time.

Another significant aspect of jurisprudence is its role in elucidating the

complex concept of law itself. While law is often perceived merely as a

set of rules and regulations, jurisprudence reveals its dynamic and

multifaceted nature, shaped by a myriad of social, cultural, and political

factors.

It’s essential to recognize that jurisprudence isn’t confined to a

single viewpoint; rather, it encompasses diverse perspectives. Some

scholars, view it as a science, while others regard it as a social science

influenced by historical, cultural, and political contexts. Despite these

varied interpretations, jurisprudence undeniably serves as a cornerstone

for understanding legal systems and guiding the development of legal

theory and practice.

Scope of Jurisprudence-

The scope of jurisprudence extends across various disciplines, including

psychology, politics, economics, sociology, and ethics. This

interdisciplinary approach reflects the interconnectedness between law

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and society, as the law is intricately intertwined with the social, cultural,

and political fabric of its environment.

Moreover, jurisprudence doesn’t solely focus on legal logic; it also delves

into broader questions concerning the nature and origins of law. By

studying the various legal systems and traditions and their evolution over

time, jurisprudence provides invaluable insights into the complexities of

law and its practical applications.

It’s important to distinguish between jurisprudence and legal theory.

While jurisprudence encompasses a wide array of topics related to the

study of law, legal theory specifically examines the philosophical content

of the law. Legal theory aims to clarify fundamental legal concepts and

discern the essence of law, whereas jurisprudence encompasses a

broader spectrum of legal studies.

Conclusion

Jurisprudence is indispensable for comprehending legal systems and

their societal implications. It offers a theoretical framework for

understanding the law and its underlying principles, guiding legal

practitioners, policymakers, and scholars in their pursuit of justice and

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equity within society. Overall, these definitions underscore the diverse

perspectives and approaches within jurisprudence, ranging from

analytical and positivist views to more interpretive and critical

approaches. Jurisprudence serves as a foundational discipline for

understanding the nature, principles, and functions of law, and it

provides insights into the complex interplay between law and society.

importance of jurisprudence

Jurisprudence serves several important purposes within the field of law and

legal philosophy. These purposes help to guide the study, analysis, and

understanding of the nature of law.

Understanding the nature of law : Jurisprudence seeks to explore and

understand the fundamental nature of law. This involves examining the origins,

characteristics, and essential features of legal systems and rules.

Analysis of legal concepts: Jurisprudence involves the critical analysis of legal

concepts and terms. It aims to clarify and define legal terms, such as justice,

rights, and obligations, and to understand their implications within the legal

system.

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Interpretation of legal texts: Jurisprudence provides tools and methodologies

for interpreting legal texts, including statutes, constitutions, and judicial

opinions. It explores different approaches to understanding the meaning and

intent behind legal language.

Examining legal systems: Jurisprudence allows for the examination and

comparison of different legal systems. It helps scholars and practitioners

understand the similarities, differences, and underlying principles that govern

legal orders across various jurisdictions.

Development of legal theories: Jurisprudence contributes to the development

of legal theories. Legal theorists use jurisprudential concepts to construct

frameworks for understanding and evaluating legal phenomena, ranging from

legal positivism to natural law theories.

Evaluation of legal systems: Jurisprudence provides a basis for evaluating the

legitimacy, fairness, and effectiveness of legal systems. This involves assessing

whether legal rules align with ethical principles, societal values, and notions of

justice.

Ethical and moral considerations: Jurisprudence explores the ethical and moral

dimensions of law. It delves into questions of justice, equity, and the moral

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foundations of legal systems, contributing to discussions about the role of law

in promoting a just and orderly society.

Legal reform and policy analysis: Jurisprudence informs discussions about legal

reform and policy analysis. By critically examining legal principles and

doctrines, scholars can contribute to discussions on improving existing laws or

proposing new legal frameworks.

Education and legal pedagogy: Jurisprudence plays a role in legal education,

helping law students develop a deep understanding of the theoretical

underpinnings of the law. It encourages critical thinking and reflection on the

nature and purpose of legal rules.

Legal problem-solving: Jurisprudence provides a foundation for legal problem-

solving. Lawyers and judges can draw on jurisprudential insights to analyse

complex legal issues and make informed decisions.

Social and political implications: Jurisprudence explores the social and political

implications of legal rules. It considers how laws affect individuals and society,

as well as the role of law in shaping political structures and relationships.

In summary, jurisprudence serves as a reflective and analytical discipline that

contributes to a deeper understanding of law, its principles, and its impact on

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individuals and society. The various purposes of jurisprudence provide a

framework for exploring the complexities and nuances of legal systems.

1.2 Law:
Nature and Definition of Law:
Nature of Law:
Social Phenomenon (Miracle): Law emerges from social interactions, norms,
and values within a society. It reflects the collective will and serves as a
mechanism for social order.
Dynamic and Evolving (विकसित होत आहे): Law is not static (स्थिर); it
evolves over time to accommodate changes in societal values, technology, and
circumstances.
Binding Authority: Law possesses binding authority over individuals and
institutions within a given jurisdiction. It establishes rights, duties, and duties
enforceable by the state.
Instrument of Social Control: Law regulates human behaviour, providing a
framework for resolving disputes, maintaining order, and ensuring justice.
Reflects Power Relations: Legal systems often reflect power dynamics within a
society, influencing the distribution of rights, privileges, and resources.
Definition by Blackstone : "Law in the most general and comprehensive sense,
signifies a Rule of Action and is applied indiscriminately to all kinds of Actions,
whether animate or inanimate, rational or irrational". In this most general and
comprehensive sense, Law includes - Law of Motion, Law of Gravitation, Law of
Optics or the Law of Mechanics, the Law of Nature and the Law of Nations.

Definition of Law

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 Definition by Salmond: "Law is the body of principles recognised and
applied in the administration of justice". The courts or tribunals in the
administration of justice apply these principles. These principles are,
therefore, recognized and applied by the State. These principles
constitute law.
 Definition by Austin: "Law is the command of sovereign सोवरिन
(सार्वभौम). It is a circuitous सर्किटस command from a superior
authority or from a political superior to the inferior who are subject to
such authority".
 Definition by Dean Roscoe Pound: "Law is the body of principles
recognised or enforced by public and regular tribunals in the
administration of justice".

 Definition by Green: "Law is the system of rights and obligations

जबाबदाऱ्या; which the State enforces".
 According to the Hindu Philosophy: Law as it is understood by the
Hindus: "Law is a branch of Dharma"; and Dharma is the aggregate of all
duties and obligations; And of several obligations, Law is one of the
obligation or duty which every Hindu must to fulfil". Thus, Dharma
included the legal duty which has the sanction of law. Dharma applied to
everyone irrespective of the status in the same manner, on the same
footing. Thus, Law is Dharma and Dharma is law.
 Vedas define Law as, "Law is the king of kings, because, law is more
powerful and strict than the kings. Law is the largest of all and with the
help of law, even the weak may prevail (विजयी) over the strong".

Functions and purposes (उद्दिष्टे) of law:

Certainly, let’s probe into a more detailed explanation of the function and
purpose of law in jurisprudence:
1) Order and stability (व्यवस्था आणि स्थिरता): one of the
fundamental functions of law is to establish and maintain order within
a society. It provides a framework for resolving disputes and conflicts
peacefully. By defining acceptable behaviour and setting consequences
for violations, law helps prevent disorder and maintain stability.
2) Justice and fairness न्याय आणि निष्पक्षता: law plays a critical role
in promoting justice and fairness. It provides a set of rules and
procedures that ensure individuals are treated fairly. This includes
protections against judgement, safeguarding civil rights, and offering
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access to legal remedies for those who have been wronged (अन्याय
झाला).
3) Protection of rights and freedoms (हक्क आणि स्वातंत्र्याचे
रक्षण): Law is instrumental in protecting the right and freedoms of
individuals and groups. It defines these rights and establishes
mechanisms for their enforcement. Common examples include freedom
of speech, religion and the right to a fair trial. Law help ensure that
these rights are respected and upheld.
4) Social regulation (सामाजिक नियमन): Law regulates social interactions
relationships. It governs contracts, property and family matters, among
others. These regulations provide certainty निश्चितता and security,
allowing individuals and businesses to operate with confidence, knowing
that their rights and obligations are defined by law.
5) Conflict resolution (संघर्ष निवारण): when disputes and conflicts
arise, the legal system offers a means of resolving them through due
process. Courts and legal procedures are designed to fairly arbitrate
disagreements, providing a structured and fair way to settle differences.
6) Deterrence and punishment (प्रतिकार आणि शिक्षा): Law
establishes consequences परिणाम, such as penalties and punishments,
for those who violate its provisions. This serves as a preventive
प्रतिबंधात्मक, discouraging individuals from engaging in illegal
activities. Criminal laws, for instance, prescribe punishments for actions
deemed harmful to society.
7) Social change सामाजिक बदल: Law can be a tool for social change.
Legislatures can pass laws that reflect evolving societal values and needs.
For example, civil rights legislation has been essential in advancing
equality and fighting discrimination.
8) Promotion of public welfare लोककल्याणाला चालना देणे: many
laws are designed to promote the public welfare and protect the
common good. Environmental regulations, public health laws, and safety
standards are examples of legal measures that safeguard the well-being
of society as a whole.
9) Legal certainty कायदेशीर खात्री: law provides a sense of legal
certainty, ensuring that individuals know what is expected of them and
the potential consequences of their actions. This certainty is essential for
a functioning society and fair legal system.
10) Limitation of government power सरकारी अधिकारांची
मर्यादा: law can also serve to limit the power of government and
prevent abuses of authority. Constitution and legal frameworks often

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include checks and balances to ensure that government actions are
lawful and within defined limits.

In jurisprudence, these functions collectively work to maintain an

ordered, just, and fair society.

Classification /Kinds Of Law:

Introduction:
General law सामान्य कायदा
General Law has been described as that part of the law which applies to all
persons as equal without any judgment and is not limited to a particular
locality, relatively is applicable to the whole of the territory in the country. It is
the ordinary law of land. It has been categorized as:-
A) Statute law कायदेविषयक कायदा
B) Equity law
C) Common law
D) Special law
In the words of Salmond special laws are so special and exceptional in their
nature, sources or application that it is convenient to treat them as standing
outside the general and ordinary law. The court of justice normally takes notice
of the general law of the land unless some special law is pleaded विनवणी
केली. Salmond has mentioned 6 forms of special law-
Local law स्थानिक कायदा - it is that body of law which has its applicability
on certain parts of the state and throughout its territory. Such law may either
be a local customary law or locally passed law.
Foreign law परकीय कायदा - also known as private international law or
foreign law which consists of the body of rules for determining निश्चित
करणे questions of jurisdictions and questions as to the selection of suitable
law, under civil cases having a foreign component.
Martial (लष्करी) law- the law which is declared at the time of turmoil
टर्मोइल (अशांतता) as supplementing the ordinary law of the land which is
insufficient to meet the extra strain and requirements created by reason of
internal conflicts (संघर्ष)

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Conventional (पारंपारिक) law- it originates in agreement and is the law for
those who have agreed to be bound by it.
Autonomic (स्वायत्त) law- the law being enforced by the state and is set by
the sovereign (सार्वभौम) himself. Whereas, the law established by private
persons or organizations to which the sovereign power lends its sanction or
authority is autonomic law.
Prize law पारितोषिक कायदा - it relates to that portion of the international
law which relates to the determination of the legality of the captures of ships
and cargoes at sea in the time of war. This law is enforceable by the municipal
courts of the country.
Salmond’s classification of kinds of law-
1. Imperative law अनिवार्य कायदा – it means any positive law or rules of
conduct or behaviour imposed by any ruler, legislature, state, institutions or
body of persons. It is a principle or rule of action imposed upon men by some
authority which enforces compliance अनुपालन to it. The rules of positive
morality, public opinion, rules of organizations and associations form a part of
it. If a person commits a breach of imperative law he will have to undergo some
sufferings which are known as the sanction. For e.g. the state applies physical
force as the sanction, but a club or any other organization options to fine or
exclusion when a member makes a breach of a rule.
2. Physical or Scientific law भौतिक किंवा वैज्ञानिक कायदा – in the
words of Salmond the law under it are expressions of the uniformities of
nature and general principles expressing the regularity and harmony
observable in the activities and operations of the universe. It governs the
growth of bodies, the law of gravitation गुरुत्वाकर्षण, and the law
governing the planetary motion ग्रहांची गती. It signifies those uniformities
and regularities which are observable in nature as the law of heat and light.
3.Natural law नैसर्गिक कायदा - the law which is based on religious and
moral principles and presents the picture of law as ideal or what the law ought
to be. The natural law has been true for all times and at all places and whose
origin could be traced out from ancient प्राचीन times. It originates उगम
पावतो from virtue सदाचार:. Its supreme sanction is the perfect ethics or the
good moral sense of the man. No physical force, punishment or limit is
necessary. His own self is the sanction of the jus naturae.
4. Conventional law पारंपारिक कायदा– a law which is based on
conventions i.e., something arising out of an agreement between parties or the
rules made by any institutions. The rules under it are for regulating the conduct

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of members of a particular body, institutions or business. The law derives its
validity from the agreement between the parties concerned.
5. Customary law रूढ कायदा – the laws under it includes of reasonable
customs and usages observed as a right from immemorial antiquity by a
particular family or a society as a whole. Salmond stated that by customary law
here we mean any rule of action which is actually observed by men and any
rule which is the expression of some actual uniformity of voluntary action. The
laws under it are the well-recognized customs which has stood the test of time
and which are reasonable.
6. Practical or Technical law व्यावहारिक किंवा तांत्रिक कायदा – it
imports the rule of technique or art to be followed in a particular occupation to
procure the successful or desired result. Thus, we have the rules of art,
photography, engraving कोरीव काम, music etc. it basically covers those rules
which are necessary for the attainment of certain ends. यात मुळात त्या
नियमांचा समावेश आहे जे विशिष्ट उद्दिष्टांच्या
प्राप्तीसाठी आवश्यक आहेत.
7. International law आंतरराष्ट्रीय कायदा – it is an aggregate of rules
and regulations recognized and accepted by civilized states in their relations
with each other. It has been considered as one of the most important branches
of law. It has been divided into two parts where one part consists of those rules
which are uniform and universal in their application. While the other part
consists of those rules which are operative only between parties agreed to
them.
8. Civil law नागरी कायदा – the term civil itself means the law of land.
Salmond stated civil law as “the law of land or the law of the state, the law of
the lawyers and law courts.” देशाचा कायदा किंवा राज्याचा कायदा,
वकिलांचा कायदा आणि विधी न्यायालये . It is the law of the realm and
has variously been named as municipal law, positive law or natural law.
The civil law has been classified into two sub-heads:-
A.Private law खाजगी कायदा
The law which is more concerned with that of an individual than the public as a
whole. It regulates and governs the relation of citizens to each other. The
private civil law deals with matters such as contracts, insurance, carriage,
freight, damages for personal injuries, civil wrongs, agency, bailment, sales of
goods, partnership, regulations of companies, insolvency, arbitration,
negotiable instruments, transfer of property etc.
B. Public law सार्वजनिक कायदा
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It is such part of the civil law which deals with the constitution and working
of the state, the functioning of its various departments, the relation between
the state and its citizens.
It has been divided into 3 classes:-
1.Constitutional law घटनात्मक कायदा-
Dicey says constitutional law includes all rules which directly or indirectly affect
the distribution or exercise of the sovereign power of the state. It elaborates
the concept of how the executive, the legislature and the judiciary are to
function. The law which determines the structure of the state, the allocation of
powers, the law that determines the rights and liberties of the subject
2.Administrative law प्रशासकीय कायदा-
It contains the laws and rules concerning the administration of the executive
departments of the state. It deals with the structure, powers, and functions of
the organs of the administration, the limits of their powers, the methods and
procedures followed by them in exercising their powers and functions.
3.Criminal law फौजदारी कायदा-
It has been defined as a body of specific and definite rules regarding human
conduct and behaviour which has been spread by political authority, which
applies uniformly to all members of all classes of people which the rules refer
and are enforced by punishment administered by the state.

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