Common Questions of Jurisprudence

1 (a) Write down the conceptual framework of the term “Jurisprudence”. Discuss the
importance and necessity of Administration of Justice.

Answer:

The defining project of general or conceptual jurisprudence—i.e., the conceptual analysis of law
is to provide philosophically meaning of various concepts that figure prominently in discourse
about law. That is, conceptual jurisprudence is concerned with giving an explication of the nature
of law and other important legal practices.

The practices characterized as “legal” or involving “law” are of great moral and prudential
significance; persons are incarcerated, fined, required to pay compensation for injuries caused by
legally culpable behavior, and even executed for violating the law. It is a matter of clear practical
importance that we ensure our practices satisfy rigorous norms of political morality, and we
cannot understand what norms apply without an adequate understanding of the concept of law.

 Importance and necessity of Administration of Justice

War and administration of justice are two most essential functions of a state. If the state is not
incapable of performing these two functions. It cannot be called a state. Administration of justice
implies the maintenance of peace and order within a political community by means of physical
force of the state.

IN SIMPLE WORDS.

“Administration of justice is the protection of individual form the unjust unlawful deeds of
other”.

ACCORDING TO SALMOND

“Maintenance of right within the political community by means Of physical force of state”.

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ACCORDING TO LOARD BRYCE

“There is no better test of excellence of a Government than the Efficiency of its judicial system”.

 Administration of justice is important for the following reasons.

1. Necessary for uniformity.
2. Necessary for protection of rights.
3. Necessary for peace and stability.
4. Necessary for integration of society.
5. Necessary to check injustice.
6. Necessary to educate people.
7. To promote welfare.
8. To promote equity.

1. (b) Make a comparative study between Civil and Criminal Justice.

Civil Justice and Criminal follow from Public Justice and Private Justice. Looking from a
practical standpoint, important distinctions lie in the legal consequences of the two. Civil Justice
and Criminal Justice are administered by a different set of courts.

A Civil Proceeding usually results in a judgment for damages or injunction or restitution or

specific decree or other such civil reliefs. However, a Criminal Proceeding usually results in
punishment. There are myriad numbers of punishments ranging from hanging to fine to
probation. Therefore, Salmond said that „the basic objective of a criminal proceeding is
punishment and the usual goal of a civil proceeding is not punitive‟.

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 2. (a) Preventive Theory is the best form of Punishment. Do you agree with it? Trace
the distinction between Deterrent theory and Reformative Theory of Punishment

Preventive Theory- This theory believes that the object of punishment is to prevent or disable
the wrongdoer from committing the crime again. Deterrent theory aims at giving a warning to the
society at large whereas under Preventive Theory, the main aim is to disable the wrongdoer from
repeating the criminal activity by disabling his physical power to commit crime.

Yes, I do agree that Preventive theory is the best form of Punishment theory.

Distinctions are as follows:

1. Reformative Theory stands for the reformation of the convict but the Deterrent Theory aims at
giving exemplary punishment so that the others are deterred from following the same course of
action.

2. Deterrent Theory does not lead to a reformation of the criminal as it imposes harsh
punishments. Whereas, Reformative Theory believes that if harsh punishment is inflicted on the
criminals, there will be no scope for reform.

3. Deterrent Theory believes that the punishment should be determined by the character of the
crime. Thus, too much emphasis is given on the crime and too little on the criminal. However,
Reformative Theory takes into consideration the circumstances under which an offence was
committed. Reformative Theory further believes that every effort should be made to give a
chance to the criminal to improve his conduct in the future.

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2 (b) Briefly discuss the Primary Rights and Sanctioning Rights

Primary rights or rights may be explained as the bundle of rights which are the privileges
enjoyed by any person, e.g., a person‟s right to liberty, safety and reputation.

A violation of breach of the primary rights gives rise to a sanctioning right or remedial right.
Thus my right not to be libeled is primary, while my right to obtain compensation from one who
has libeled me is a sanctioning right. Primary rights, therefore, exist independently, while
sanctioning rights have no independent existence and arise only on the violation of primary
rights.

Sanctioning rights are divisible into two kinds: (1) rights to exact and receive from the
defendant a sum of money by way of pecuniary penalty for the wrong which he has committed;
and (2) rights to exact and receive damages to compensation for the injury that may have been
caused to the sufferer

Compensation falling under the second form of sanctioning right may either be restitution or
penal redress. In the former the defendant is required to restore lo the plaintiff the pecuniary
value of some benefit wrongfully obtained by him at the expense of the plaintiff.

3 (a). “Jurisprudence may be considered to study and systematic i.e- arrangements of

general principals of law” do you think this opinion is enough to explain the nature and
importance of Jurisprudence?

Yes, I do think that, Jurisprudence may be considered to study and systematic i.e- arrangements
of general principals of law.

The study of jurisprudence started with the Romans. The term Jurisprudence is derived from
Latin word 'Jurisprudentia' which means either "Knowledge of Law" or "Skill of law". The word
"juris" means law and prudentia mean knowledge, science or skill. Thus Jurisprudence signifies

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knowledge or science of law and its application. In this sense, Jurisprudence covers the whole
body of legal principles in the world.

In jurisprudence, we have to study the basic principles of each of these branches and we are not
concerned with the detailed rules of these laws. We definitely study these laws in detail when we
study those branches of law separately. Jurisprudence examines the general principles of law,
therefore, Jurisprudence may be considered to be the study and systematic arrangements of the
general principles of law.

3 (b). Illustrate the relation of Jurisprudence with Ethics and Sociology

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 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.