Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 2, Issue 1, April 2013
Articles

The Cabbage We Know as Jurisprudence: A Composition of One Layer upon Another

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  • Kamal Raj Thapa
Kamal Raj Thapa
Adjunct, Assistant Professor, Kathmandu School of Law
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Published 2013-04-30

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How to Cite

Thapa, K. R. . (2013). The Cabbage We Know as Jurisprudence: A Composition of One Layer upon Another. Kathmandu School of Law Review, 2(1), 38–59. Retrieved from https://kslreview.org/index.php/kslr/article/view/1026

Abstract

This article is a narrative on the scope of jurisprudence, its scope and limitations that have to be analyzed in the light of the divisions and classifications that have penetrated the discipline. It relates the genesis of the confusions and complexities observable in jurisprudence, mostly pertaining to its definition and basic elements in which the former, seemingly, has no consensus. Various intellectuals and schools of thoughts have sought to explain the province of jurisprudence from their own confined approaches, including the popular positivists and naturalists whose idea of law is altogether divergent. Moreover, the historical, sociological, realist and economic schools have both solved and added to the complexities. However, the essence of the article is that jurisprudence, both in its scope and understanding, is extremely broad. Scholars and students in particular, need not confine their understanding to what is postulated earlier as to what jurisprudence means, rather are encouraged to comprehend the layers thoroughly and apply the fundamental tool of science, i.e. logic, and urged not to negate the significance of associating legal theory with social phenomena.

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References

  1. H. L. A. Hart, The Concept of Law (2nd edn, Oxford University Press New 2002) 1.
  2. Wayne Morrison, Jurisprudence: from the Greeks to post-modernism (First Indian Reprint, Lawman Private Limited) 2.
  3. Lon L. Fuller, Anatomy of Law (Penguin Books Ltd 1968) 11.
  4. Which reflects in writing of Dhyani that reads’...of legal scholars are rotting and rotating around such juristic theories knowing not that the law of a society and law of life can neither be logical devoid of moral values not can it be shaped as a mechanical process merely be balancing of interest. At the same time a study of jurisprudence cannot be an ivory-tower exercise’. See S N Dhyani, Fundamentals of Jurisprudence, the Indian Approach (2nd edn, Central Law Agency 1997) 2.
  5. G W Paton, A Textbook of Jurisprudence (4th edn, Oxford University Press 1972) 1.
  6. R M W Dias, Jurisprudence (5th edn Aditya Books Private Limited 1994) 15.
  7. At the present as well as at any other time, the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision but in society itself.
  8. Fuller claims that he law is like the weather. It is there, you adjust to it, but there is nothing you can do about it except to get under cover when its special kind of lightning strikes. See Fuller (n 1) 12.
  9. Richard A, Cosgrove, Scholars of the Law (Universal Law Publishing 1996) 2.
  10. Julius Stone, Legal System and Lawyer’s Reasonings (Universal Law Publishing 2004) 16.
  11. Ronald Dworkin, Law’s Empire (Universal Law Publications 2008) 90.
  12. Ibid 110.
  13. Dias (n 7) 5.
  14. Ibid 6.
  15. Ibid 8.
  16. Dhyani (n 5) 1.
  17. Holland, Jurisprudence (13th edn, Universal Law Publishing 2004) 3.
  18. Jeffrie G. Murphy & Jules L. Coleman, Philosophy of Law, An Introduction to Jurisprudence (Oxford India Paperbacks Oxford University Press 2004) 3.
  19. W. Friedmann, Legal Theory (5th edn , Universal Law Publishing) 3.
  20. Austin opined that …the various principles common to mature systems are the subject of an extensive science: which science has been named General Jurisprudence, or the philosophy of positive law… by general jurisprudence, the science concerned with the exposition of the principles, notions, and distinctions which are common to systems of law: … See J. Austin, The Province of Jurisprudence Determined (Indian Economic Reprint, Universal Law Publishing 2010) 372.
  21. Holland (n 18) 9.
  22. Ibid 12 - 13.
  23. Paton (n 6) 2.
  24. See Hilaire McCoubrey & Nigel D. White, Textbook on Jurisprudence (3rd edn, Blackstone Press Limited 1999) 26 Lord Radcliff, The Law and Its Compass (1961) in M D A. Freeman (ed), Lloyd’s Introduction To Jurisprudence (7th edn, Sweet and Maxwell) 1.
  25. Simpson has said, ‘The subject which features in law course as ‘Jurisprudence’, or sometimes ‘Legal Philosophy’ or Legal Theory’, mainly consists in either defenses of the ideal as both desirable and in principle attainable, or in claims that it is both pernicious, and impossible.’ See A. W. B. Simpson, Invitation to Law (Blackwell Publishers Ltd 1988) 51.
  26. See generally L. B. Curzon, Jurisprudence (Cavendish Publishing Limited 1993).
  27. Hart (n 2) 14.
  28. W. L. Twining, Some Jobs for Jurisprudence (1974) in Lloyd (n 26) 23.
  29. Julius Stone attempts to frame such a vast differentiate in seven steps. See Stone (n 12) 179-182.
  30. P J Fitzgerland, Salmond on Jurisprudence (12th edn, Tripathi) 1.
  31. Wayne Morrison (n 3) 523- 524.
  32. Neil Duxbury, Patterns of American Jurisprudence (Oxford University Press 1995) 2.
  33. See Ruti Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’ (2009) 106 Yale Law Journal.
  34. Richard Susskind, The Future of Law, Facing the Challenges of Information Technology (Oxford University Press 1996).
  35. B A Wortley, Legal Research and Methodology (Indian Law Institute 2006) 1.
  36. Lloyd (n 26) 19.
  37. Ibid 22.
  38. Austin (n 21).
  39. To that, J. Raz confirms ‘the law on a question is settled when legally binding sources provide its solution. In such cases judges are typically said to apply the law and since it is source-based, its application involves technical, legal skills in reasoning from those sources and does not call for moral acumen’. See Joseph Raz, The Authority of Law Essays on Law and Morality (Oxford University Press 2008) 49-50.
  40. R M Unger, Law in Modern Society in Lloyd (n 26) 732-733.
  41. Richard A. Posner, Overcoming Law (Universal Law Publishing 2005) 17.
  42. See Nicos Stavoropoulos, Objectivity in Law (By Oxford University Press 1996) 186.
  43. Hart (n 2) 239 -240.
  44. Raymond Wacks, Understanding Jurisprudence (Oxford University Press 2009) 1.
  45. Surendra Bhandari, ‘Jurisprudence in 21st Century: Whether the Province of Jurisprudence Determined or Identified?’ (2001) 14 Nepal Law Review, 164.
  46. Lloyd (n 26) 21-22.
  47. Salmond (n 30) 1 – 3.
  48. Cosgrove (n 17) .
  49. Morrison (n 3) 2.
  50. Dhyani (n 7) 66.
  51. Salmond (n 30) 3.
  52. Lloyd (n 26) 22, 24.
  53. Cosgrove (n 17) 3.
  54. Noam Chomsky, American Power and the New Mandarins in Wacks (n 46) 11.
  55. Wacks (n 46) 11.
  56. Lloyd (n 26) 5.
  57. Roger Cotterrell, The Politics of Jurisprudence, A Critical Introduction to Legal Philosophy (2nd edn, Oxford University Press) 1.
  58. McCoubrey & White (n 20) 2.
  59. Bertrand Rullell, The Problems of Philosophy (1912) in Posner (n 43).
  60. Salmond (n 30) 4.
  61. McCoubrey & White (n 20) 10.
  62. Duxbury (n 34) 6 -7.
  63. Lloyd (n 26) 3.
  64. Lloyd (n 26) 8.