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Written by - Debaditya Dutta
1 Introduction
To seek assistance is basic human nature, and nowadays not only do we seek assistance from fellow humans, but we also take assistance from artificial intelligence which includes the newly introduced ChatGPT. The fully expressed name is Chat Generative Pre-Trained Transformer. Now this “we” includes our judiciary as well. In a bail application plea to the Punjab and Haryana High Court Justice Chitkara used the views of ChatGPT to find a clearer picture of the jurisprudence of bail.[1]
Now in this essay, our focus will not be on the assistance taken, nor will it be on ChatGPT. It will be on the query that the honorable justice looked upon, that is jurisprudence of bail but we don’t want to look at specifically bail jurisprudence, we will look at the subject jurisprudence as a whole and get a bird's eye overview of the subject. 2.1 Definitions of Jurisprudence
The word jurisprudence comes from the Latin term jurisprudentia. Juris means law and prudentia means skill or knowledge so as a whole the word jurisprudence can be defined as the skill or knowledge of law. Now like in other disciplines like sociology, anthropology, etc we study society, and humans respectively, similarly, in this subject we study law and law is an utmost abstract concept. It is intangible. It is perspective based. That is why a single definition of law does not exist. Multiple jurists have attempted to define law. Let us look at some of them. Austin: "Law, properly so called, is a command which obliges a person or persons, and is enforced by the sanction of evil for disobedience, and which emanates from a determinate and sovereign authority.”[2]
Jeremy Bentham: "The principle of utility requires that the conduct of the legislature should tend to the greatest happiness of the greatest number of persons who may be affected by it." [3]
So to break them up, let us look at what each of them consider as law, what enforces it, what is the source of law, and how it affects people/ or how it should affect.
Jurist
Austin
Bentham
What
command
Principle of utility
Enforcer
Sanction of evil
Not applicable
Source
Sovereign authority
Conduct of legislature
Should Affect/affects people
Obliges a person/persons
Should tend to the greatest happiness of greatest number of people
So while looking at a law we should consider these 4 things. Or at least 3 things, source of law, the enforcement mechanism, what it is called, and how it affects people. Like, let us say consider fundamental rights in our constitution. The source would be our legislative assembly or parliament. The enforcement mechanism would be the courts. It will be through Articles 32 and 226 of the Indian Constitution. It affects people by giving them some basic human rights. And also some other rights you would expect in a democracy. A huge number of people have tried to define law. And while we walk through the garden of jurisprudence, we would see many schools of gardeners. They would be giving their own shape to the plant of law. At first, there was one school, but then a person doubted it and moved ahead to start another school of thought. That’s how we get different schools of jurisprudence.
2.2 Schools of Jurisprudence
There are different schools of thought in jurisprudence let us look at some of them in brief.
2.2.1 Analytic school
A matter-of-fact school. A narrow school, since it takes law as it is, and separates it from ideal law. It does not question the authority at all. Not concerned about the background, contexts, and history of the legislation. It considers legislation to be the source of law. This is school is trying to analyze the law and dive deeper and understand legal reasoning. Like in the classical schools, the source or creator of law was the almighty or books, here it is the sovereign. It does not care about good or bad law it says any command of the sovereign is law. Considered to be a “closed system of pure facts”[4]. Its chief exponents are Bentham, Austin, Hart, and Holland among others. The most prominent among them are Bentham and Austin. And their body of work is pretty similar. Though Bentham placed less emphasis on sanctions. The fallacy of calling all law to be sanction based is that certain modern-day laws empower citizens. They do not prohibit anything.
2.2.2 Historical School
As a reaction to the natural law thinkers, who considered law to be unchangeable and failed to see that the past customs and practices had grown into law. This school owes its inspiration to the study of Roman Law in Europe. Montesquieu was the first jurist of this school. Another jurist Hugo believes acceptance, regulation, and observance to be the essence of law.[1] Burke ridiculed the thought of law springing out of abstract principles and believed the law to be a product of gradual change. A jurist called Herder dismissed the concept of universal principles and said that law is a product of an individual nation’s history. It depicts their individual identity. Basically, the school believes that law comes from the customs and social practices of a land.
2.2.3 Sociological School
Like a lot of other schools, this school also arose as criticism. And gave an alternate perspective to another school, which in this case was the analytical school. It distrusted the theory of law arising from a single sovereign body. This school considers law to be a portrait of society. Emphasizing on how humans want to regulate their external relations with individual members. Individuals must not be the centerfold of the study. The social purposes and interests served by the law should be under the lens. Montesquieu wrote under this school of thought. Law is connected to the climate and soil of a country, saying that each society uniquely shapes the law of the land. Founder of Sociology, Auguste Comte felt that individuals are not the focal point of law.[2] Now that we know of different perspectives on law, let us ask ourselves the basic question, why do we need a law? Let me answer it for you. We need laws to protect our rights. Now let us learn about the concept of rights, and also the fact that with every right comes a duty. And some other relevant legal concepts will also be touched upon.
2.3 Legal Concepts
Let us next look at some legal concepts like rights and duties, personality, property, etc.
2.3.1 Rights and Duties
Salmond called a wrong act to be anything contrary to the rule of justice.[3] Pollock called the right act to be anything prescribed or commended by morality. Breaking a legal duty is wrong. He considers duty, right and wrong aspects of an event, and rules and not as separate entities. And wrongs diverge into two forks but they also intersect at times. Like a wrong is both legally wrong and morally wrong or could only be morally wrong. For the same reason, duties are also of the same two kinds. It would be a legal duty to not kill someone, but it’s a moral duty to be obedient to elders. Other classifications of duties divide it into positive or negative, primary or secondary. Positive duties are duties, where law is asking us to act. Primary duties are duties that are independent of other duties. Like law requires us to pay taxes, so it is a positive duty. It is our duty to conduct ourselves in a peaceful manner, and this duty is not connected to other duties. Duties often come with reciprocative rights. But according to John Austin some duties are absolute, like duties to the sovereign state. To conclude, rights and duties are two sides of the coin of justice, but sometimes could be absolute.
2.3.2 Personality
First, let us look at Person. Initially, it meant “mask”. Now it means a being that can hold on to rights and duties. It is not always a human being. The Indian Penal Code says “The word “person” includes any Company or Association or body of persons, whether incorporated or not.”[4] So a person is anybody having rights and duties. Generally, animals are thought to not have rights. But like cruelty against animals is a criminal offence. Also when a charitable trust cares for animals, they get some rights.[5] Dead persons are considered to have let go of most rights. But except for his body, reputation, and estate. Personality is often divided into natural personality and legal personality. Human beings own natural personality. Statutes and judiciary, impose legal personality. In the case of Salmon v Salmon [1897] AC 22 (HL) the court, held that companies have their own legal personality distinct from the owner.
2.3.3 Property
It is one of the rights possessed by persons. The one theory that explains jurisprudence of property is that the right to property is not a single right. It comes in the form of a bundle. The primary right is the right to own. It then allows you to transfer other rights like possession separately. But without the right of ownership, other rights cannot be transferred to other persons. The Black’s Law dictionary defines ownership as “The bundle of rights allowing one to use, manage, and enjoy property, including the right to convey it to others”. It is subject to various restrictions through different statutes across the world. The Transfer of Property Act, 1882 being one of the primary statutes in India in that regard.
3 Conclusion
So to conclude, in jurisprudence, we look at law from different views, and there is no one way of looking at the law. Some consider law to have derived from the principles of natural justice. Some believe it to be from historical customs. Some believe it to be the current practices of society, and some believe it to be all work of the sovereign. All these are valid and invalid in certain ways. Law is a collection of all the perspectives. And honestly not everything we consider as law, like International Law, is a law according to some viewpoints. Other parts of the study of jurisprudence, includes looking at basic legal concepts of personality, rights, duties, etc.
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