KINDS OF JURISPRUDENCE
Jurisprudence has several types; the most discussed ones are enumerated below:
a. Historical jurisprudence
This school is committed to working out the general principles of law governing the origin, sources, development and interpretation of changes within a legal system. For instance, going through the constitutional history of Pakistan, it is soon realized that after the independence in 1947, our country did not have a constitution for eight long years. For this period, we looked up to the Government of India Act of 1935. However, with the coming of the first constitution in 1956, it became clear that there would be a unicameral legislature and its new nomenclature would be the Islamic Republic of Pakistan. The follow-up was the Constitution of 1962. It introduced the presidential system as the country’s preferred form of governance. Then came the Constitution of Pakistan 1973, which is still extant, that unanimously provided for citizens the first bucket list of fundamental rights, i.e. from articles 6 to 28. This history of the 280 articles, and later 26 amendments, is the historical jurisprudence of our legal system. This historical method is instructive and was recently employed by the judiciary in Constitution Petition No. 39 of 2019 (In the Matter of the Tenure and Extension of the Chief of the Army Staff). At para 15, Mr Justice Mansoor Ali Shah made a table of the comparative history of Art. 243 of the 1973 Constitution, in reaching the conclusion that extension could persist for six months. Its early proponents were Savigny and Sir Henry Maine. For the former, the nature of any particular system of law was a reflection of the spirit of the people whereas the law was piecemeal progression for the latter
b. Analytical jurisprudence
According to William Twining, this school of thought has two dimensions. Narrowly speaking, it means linguistic analysis or elucidation of abstract concepts. Its champions were Austin, Holmes, Hohfeld, Kocourek and Salmond. Broadly speaking, it means the study of form and structure of legal systems, problems of legal reasoning, and problems of definition of law, analysis of assumptions and presuppositions of legal discourse. Its proponents were Hart, Raz and McCormick. As a conceptual branch, it clarifies the difference between legal and moral rights. It sees a difference between our duty to pay taxes and to respect elders. While the former is a general legal duty in all countries, the latter is a general moral duty across the board, with different levels of convergence depending on the culture. It helps distinguish sovereignty from supremacy. As such it helps to distinguish legal from non-legal concepts. Its commitment to understanding nature of law evokes questions including, e.g. is law coercive? Is law interpretive? Is law authoritative? Is law normative?, and so forth. Above all, it helps to work out the essential conditions for a legal system.
c. Ethical jurisprudence
This school asserts that the job of law is to achieve bare minimum moral guarantees and aspire towards high-order, objective moral standards. Law should strive to foster a common moral ground for its participants who should stand by in the long run. Its primary focus is officials of state machinery. For example, it obligates legislatures to mostly make clear, predictable, constant, stable and proportionate laws. It mandates the judiciary to guard fidelity to law by settling cases in the knowledge of past decisions and growing home and foreign jurisprudence. It commits executive to formulate policies that are a balance between conflicting interests. It deters overemphasis on majority or minority protection. It sets the agenda for regulatory bodies such as Pakistan Bar Council (PBC). It requires it to give guidance to lawyers on professional ethics, at least in the form of a lawyer’s manual or through conducting targeted regional workshops on the same. For example, under section 13(d) of the Legal Practitioners and Bar Councils Act, 1973, it is the responsibility of PBC to ‘lay down standards of professional conduct and etiquette for advocates.’ This is writ large of ethical jurisprudence in our country. Without its prompt enforcement, however, the current hostility among lawyers is going to take centre stage. This has the obvious domino effect of bringing the nobility and credibility of the legal profession down. The hooliganism surrounding the Punjab Institute of Cardiology is one example amongst such regrettable occurrences. Thus, to nib the evil, the PBC has to promptly implement the disciplinary and disqualifying powers it wields under sections 11(b) and 46 of the 1973 Act.
d. Sociological jurisprudence
This school is focussed on ironing out conflict of interest. It takes society as a group of heterogeneous individuals with varied interests. It urges lawmakers to keep in view this truism by taking a functional approach to law. Its leading proponent was late Dean of Harvard law school, Roscoe Pound. He emphasised the significance of social engineering in his lifetime. In his view, the balancing of individual, public and social interests was the key to a functioning legal system. This was hard, he believed, but feasible through pragmatic growth of society. Essentially, there were five requisites to harmonizing clashing interests. In its primitive stage, a system should focus on maintaining peace. In its second stage, it should focus on certainty and uniformity. In its third stage, it should assure application of equity and natural law. In its fourth stage, it should allow individual self-assertion. Lastly, it should focus on socialization of law that is furthering of civilization through the protection of the interests which are best designed to accomplish this purpose.
e. Environmental jurisprudence
This school is concerned with taking nature as worthy of protection from human exploitation. Its use is notable in the judgement of Lahore High Court in Asghar Leghari v Federation of Pakistan (2018). Here, the Court opined: ‘Environment and its protection has taken a central stage in the scheme of our constitutional rights. It appears that we have to move on. The existing environmental jurisprudence has to be fashioned to meet the needs of something more urgent and overpowering, i.e. climate change’.
f. Therapeutic jurisprudence
This school concentrates on law’s impact on emotional life and psychological well-being of citizens. It is a perspective that regards social force as something that often produces therapeutic or anti-therapeutic consequences. It suggests that law’s role as a therapeutic agent should be recognized and systematically studied. Its proponent in Pakistan is Additional Sessions Judge M. Amir Munir. Its application is evident in his decision in Fakhar Imam v BISE.
g. Legal realism
This school asserts that statutes are given life by the judiciary. The judicial organ plays a vital role in determining the meaning, scope and limitation of a right set out in statute. Its main proponent is Oliver Wendell Holmes who famously quoted ‘the prophecy of what the courts will do is what I mean by law.’ In other words, ‘the life of law has not been logic, it’s been experience.
The author teaches jurisprudence and legal theory at Pakistan College of law, Lahore. She can be contacted at: firstname.lastname@example.org