An Overview of Modern Jurisprudence

            The first attempt to create a scientific theory in Jurisprudence was the Positivist theory of the English Jurist Bentham and Austin. Science studies objective phenomena as it is and not how we would like it to be this was prĂ©cised in the approach adopted by the positivist, Jurist in Law. There are Two Kinds of Sciences. (1) Natural Science. (2) Social Science. Natural Sciences study inanimate method or living organisms like Plants, Animals etc. and also the Physical Body of human-beings including Anatomy, Physiology. The Social Sciences on the other hand study the Social Behaviour of human-being, Economics, Politics, and Sociology etc. Jurisprudence is also one of the Social Sciences. The French thinker Augusty Comte is known as the Father of Positivism. He introduced the method of the Natural Science in to Social Science. This method was careful observation, logical analysis, experimentation, logical interferences etc. 

The British Jurists Bentham and Austin utilised the positivist approach of Augusty Centre to the subject of Jurisprudence. They insisted that we should study the law including the legal structure the legal concepts etc. this was the scientific approach because in Science also we study objective phenomena as it is and not how we like it to be. This was in sharp contrast to the preceding theory in Jurisprudence which was the positive man-made law there exists which emanates from God or Reason or Morality or some other source. 

According to the natural law Jurisprudence if there is a conflict between this higher law and the positive man-made law. The higher law will prevail thus natural law was of the view that law is what it ought to be? And a bed law was not a law at all. Thomas Aquinas in “Summatheologica” states a human law in so far as deviates from reason are called an unjust law. And has the nature, not of law but of violence in the words of Blackstone. 

The great British Jurist of 18th Century those laws must be obeyed which are accordant with nature the others of null in fact. And instead of obeying them they ought to be resisted. Human laws must not be permitted to contradict natural law. If a human law commands a thing forbidden by natural or Devine law we are bound to transgress. In modern times the natural law theory was most vehemently advanced during American and French Revolutions. It was proclaimed that Liberty, Equality, Fraternity are inherent and natural to man but these ideas would unacceptable to the Ancient Greeks and Romans, though they also believed Natural in Law. To a Greek or Roman slavery was a natural phenomenon and therefore Equality and Liberty would be unnatural. Thus, what is regarded as natural in one area and in one society may not be so regarded in another. 

The basic difficulty with natural law is it vague what is natural? The answer may differ not only from age to age but even from person to person. How can one frame a legal system on this basis? People wish to have clear cut known laws so that they may regulate their conduct accordingly. Natural law is such a hazy concept that it sought to be enforced it can only result in conclusion. As Kelsen said with Natural Law one can prove everything and nothing. Bentham regarded Natural Law as metaphysical nonsense. Similarly, the Danish Jurist Ross (1899-1977) in his book on law and Justic (1958) and logical positivist like Carnat (1891-1970) that the Metaphysical Speculation underlines natural law was totally beyond the reach of Speculation. They pointed out that natural law can be used to defend or fight for every conceivable demand. And it has been defend to slavery. 

Totalitarians have found support in the natural law writings of Dugguit and Detvecchio by Advocates of greater freedom have relied on the French Philosopher Maritain (1882-1974). Natural law theories arose during the Periods of Historical transition and turmoil that is during the American and French Revolution. There was also a temporary revival of natural law after the World War II. Particularly in Germany, where Jurists like redbrick were of the view that German Nagis racial laws were so bad that they could not be regarded laws at all. However, soon after revival the natural law theory collapsed because Natural Law was obviously two vague and uncertain a concept to be accepted in modern Industrial Society which requires char cut rules and ideas. Positivism, therefore replaced natural law as the Predominant Theory in Jurisprudence. Positivisms lay great emphasis of statutory law that is law made by the legislature or its delegates.


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