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Introduction to Jurisprudence and Legal Theory: Commentary and. Materials, James Penner, David Schiff and Richard Nobles, editors [London: Butterworths. [ LEGAL THEORY]. Textual and Reference Books: Salmond's Jurisprudence. Fitzerald. Elementary Jurisprudence. Keeton. Jurisprudence Vols. 1 to 5. Roscoe . Studying LA Jurisprudence and legal theory at University of London? 17/ Jurisprudence Sem 4 Second year Law (LLB) Lecture Notes, e Book PDF.
It is, therefore, axiomatic that one custom cannot be set in opposition to other customs. Reasonableness: A custom must be reasonable.
Custom gives a good deal of discretion to the court in the matter of recognition of customs.
The degree of reasonableness cannot be judged. The custom should not be immoral and further the custom should not be contrary to the justice. Conformity With Statute Law: A custom, to be valid must be in conformity with the statute law.
If a custom is having all the essentials given above then it is law otherwise it is not a valid custom. About 29, Indian Law students are members of this community and share FREE study material, cases, projects, exam papers etc. The reasons for the recognition are as followsCustom is frequently the embodiment of those principles, which have commended themselves to national conscience as principles of justice and public utility. The national conscience may be well accepted by the court as an authoritative guide.
The existence of an established usage is the basis of a rational expectation of its continuance in the future. When Does A Custom Become Law: To answer this question two views have been given by the jurists on this point, which are contrary to each other.
Austin says that custom is a source of law; it itself is not law. His definition of law that it is a command of the Sovereign does not allow the customs to be included in law. A custom is not a 'positive law' unless it is so declared by the court, or, in other words, it is not law until it has received judicial recognition or it has been embodied in some statute.
According to Savigny, who is the founder of this school, custom is per se law. A custom carries its justification on itself. They are based on the opinion of the people and national character. They embody those principles of justice which society recognises. He says custom is the badge and not a ground of origin of positive law.
According to historical school, custom is law independent of any declaration or recognition by the State. The State has no discretion or power over them except to accept them. They came into existence with the existence of the society. The customs are the basis of most of the laws, but at the same times, Judges, Jurists and Legislatures have played a very vital role in moulding them. S What is Precedent? Precedent is an earlier event, decision or action used to guide in parallel circumstances later.
Salmond : Precedents 'are' judicial decisions followed in subsequent cases. Gray: A precedent covers every thing said or done which furnishes a rule for sub sequent practice. Keeton: A Precedent is a judicial decision to which authority has in some measure been attached.
Civil Law System: Civil law system which is followed in U. The Civil law system does not follow the Precedent System. The Doctrine of Precedent was taken from the British System. Some jurists consider Precedent is not law. Some say that judges do not make law.
The role of judges is to explain and interpret the legislation and not to explain it. The whole law of Torts in India is judge-made law. John Austin condemned the practice of judges making law. Salmond and Gray maintained that law amounting to nothing but the decisions of the Courts.
However, all three agree that precedent is an important source of law. S U K What is basis of Precedent: The judges create the Precedent on the basis of the existing law applicable to the case, if any, and if there is none, then out of natural justice, equity and good-conscience.
What exactly is a Precedent 1. Is it the decision? Is it the reason given by Court in such a decision, or 3. It is the material set of facts which have forced such decision?
But one must find out from any judgement that portion which is actually binding. The weak natural law thesis holds that if a human law fails to be in response to compelling reasons, then it can still be called a "law", but it must be recognised as a defective law. Notions of an objective moral order, external to human legal systems, underlie natural law.
What is right or wrong can vary according to the interests one is focused on. John Finnis , one of the most important of modern natural lawyers,  has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position. Strongly related to theories of natural law are classical theories of justice , beginning in the West with Plato 's Republic. Aristotle , by Francesco Hayez Aristotle is often said to be the father of natural law.
His association with natural law is largely due to how he was interpreted by Thomas Aquinas. Aquinas's influence was such as to affect a number of early translations of these passages,  though more recent translations render them more literally.
Indeed, his treatment of what he calls "political justice" derives from his discussion of "the just" as a moral virtue derived as the mean between opposing vices, just like every other virtue he describes. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice.
Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention.
But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of the morality enacted as law, not the laws themselves.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric , where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The work for which he is best known is the Summa Theologica. One of the thirty-five Doctors of the Church , he is considered by many Catholics to be the Church's greatest theologian.
Consequently, many institutions of learning have been named after him. Aquinas distinguished four kinds of law: eternal, natural, divine, and human: 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.
All other precepts of the natural law are based on this School of Salamanca[ edit ] Main articles: School of Salamanca and ius gentium Francisco de Vitoria was perhaps the first to develop a theory of ius gentium the rights of peoples , and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of all and that the common good of the world should take precedence before the good of any single state.
This meant that relations between states ought to pass from being justified by force to being justified by law and justice.
Working with already well-formed categories, he carefully distinguished ius inter gentes from ius intra gentes. Ius inter gentes which corresponds to modern international law was something common to the majority of countries, although, being positive law, not natural law, it was not necessarily universal. On the other hand, ius intra gentes, or civil law, is specific to each nation.
Main article: Lon L. Fuller defended a secular and procedural form of natural law. He emphasised that the natural law must meet certain formal requirements such as being impartial and publicly knowable.
To the extent that an institutional system of social control falls short of these requirements, Fuller argued, we are less inclined to recognise it as a system of law, or to give it our respect. Thus, the law must have a morality that goes beyond the societal rules under which laws are made. Main article: John Finnis Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common.
Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on the theorist's work. The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists, such as John Finnis, who claim to be positivists, still argue that law is moral by nature.
This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question from normative and evaluative questions of what ought to be done. The most important questions of analytic jurisprudence are: "What are laws?
Historical school[ edit ] Historical jurisprudence came to prominence during the debate on the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence,  Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs, and beliefs of the German people did not include a belief in a code.
Historicists believe that law originates with society. Main article: Sociology of Law An effort to systematically to inform jurisprudence from sociological insights developed from the beginning of the twentieth century, as sociology began to establish itself as a distinct social science, especially in the United States and in continental Europe.
In Germany, the work of the "free law" theorists e. Ernst Fuchs, Hermann Kantorowicz , and Eugen Ehrlich encouraged the use of sociological insights in the development of legal and juristic theory. The most internationally influential advocacy for a "sociological jurisprudence" occurred in the United States, where, throughout the first half of the twentieth century, Roscoe Pound , for many years the Dean of Harvard Law School, used this term to characterise his legal philosophy.
In the United States, many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence.
In Australia, Julius Stone strongly defended and developed Pound's ideas. In the s, a significant split between the sociological jurists and the American legal realists emerged. In the second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest.
Main article: Legal positivism Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality.
Joseph Raz's legal positivism is an example of exclusive legal positivism.