This article is written by Saswata Tewari from University of Petroleum and Energy Studies, Dehradun. This article analyzes how jurisprudence has evolved over the years by the people of England.
To understand what is the law, one must come face to face with the word ‘jurisprudence.’ Jurisprudence is the science behind the law and it explains the fundamentals concepts of law. Jurisprudence is an overall analysis and a logical understanding of the law. Jurisprudence helps a person to get the basic idea and reasoning behind any law. Jurisprudence helps a person get the basic idea and reasoning behind any law. Jurisprudence can be used as a guide to the world of law.
Meaning, nature and scope of jurisprudence
The word ‘jurisprudence’ has come from the Latin word jurisprudentia. The translation of the term means the knowledge, experience, or skill concerning law.
Jurisprudence does not have a proper definition since people have different opinions about the meaning of jurisprudence. Jurisprudence is the study of concepts of law. Jurisprudence explains the principles of laws and it tries to evaluate not only existing laws but also analyzes the new laws concerning different subjects of human life. Jurisprudence examines the concepts of law and tries to analyze every part of it. With the help of jurisprudence, one can critically analyze the principles of law and with the help of their knowledge concerning jurisprudence, get a better understanding of the law.
The scope of jurisprudence is vast and dynamic. It not only connects with the forces of society but also economics, politics, psychology, etc. Anything that concerns law and order in the State and society falls under the purview of jurisprudence.
Ancient British jurisprudence
Ancient British jurisprudence can be divided into three parts:
Anglo-Saxons law system
Before the invasion of the Normans, the island of England had been following the law system of the Anglo-Saxons. Anglo-Saxons were a traditional group of people that populated England from the 5th century. Anglo-Saxons used to follow the local customs as law and it played an important part in deciding the inheritance, family rights, ownership, etc. The laws of custom varied according to region. Every region had its local court giving its justice following the local customs that varied from region to region and was enforced arbitrarily. Anglo-Saxon law was untouched by the Roman impact that was found in the continental laws. The Roman influence on the Anglo-Saxon law was roundabout and was applied principally through the church. But at last with the conquest of Normans, Roman law made its influence permanently on the laws of England.
Law system after the Norman conquest
The Norman conquest of England which was driven by William the conqueror was accomplished over five years from 1066 CE to 1071 CE. A lot of restructuring was made in England after William became the king. The conquest saw that the Anglo-Saxons squad were replaced by the Norman elite and that new changes were made in the administrative, financial, community, and legal setup of England.
William got rid of all the Anglo-Saxons nobles and imposed the feudal system of law on the island of England. Lands were designated to the feudal vassals of the king, a large number of whom had supported the conquest with this gift in mind. Regis Curia was also established after the Norman conquest in England which was the general counsel for the king of England. It was a feudal assembly that assisted the king in his judicial work. The Normans had already created laws regarding customs back in Normandy. The lawyers in their courts were called clergy administrators who had knowledge in Roman law and the Canon law of the Christian church which was made in the colleges of the twelfth century and henceforth, Canon law was applied in the courts of England. Roman law which had been saved in the Canon law by way of social impact, in this way, made its effect on the advancement of the English Common law framework.
Establishment of a central common law system
In 1200, Henry II established a central system of common law by incorporating and uplifting local customs to the national level. This decision put an end to the local control and arbitrary remedies and restored a jury system consisting of citizens that were sworn by oath to inspect and examine criminal and civil crimes. The idea of Henry II behind this institutionalizing of common law through this unified court system was that there should be a common arrangement of law prevailing throughout the land. Hence, the laws came to be known as common laws as it was common to the whole of England. In the unified common law system, local customs became the main source of law as they were used in cases to give a decision.
The common law system had traveling judges who used to come from the Central Court established at Westminster, to local courts for deciding cases. These local cases were solved using the local customs and habits of the people in the region. Furthermore, these cases were recorded and documented at the Central Court at Westminster, and soon these recorded cases began to be referred to in other cases having the same facts. As the decision of these cases came to be recorded and documented, the practice developed where past decisions would be cited in an argument before the courts and would be considered as persuasive authority. This came to be known as precedents.
Evolution of jurisprudence
It is commonly acknowledged that the system of jurisprudence that designated the common law of England was evolved from ancient usages and old customs. The laws promulgated by the English kings were mainly of the nature of amendments and customs. The judges who presided over the primitive courts were close to the common people and were very envious in their devotion to these laws, which had not only the royal sanction but were representations of the honored customs of the people themselves.
With the Norman conquest came the foundation of the Central Court at Westminster, by whose agency a new system of law developed which had its source in the king and which was brought in to treat the flaws made by the customary law system prevailing in the local courts of the people. As soon as this new judicial system became operative, decisions made by the local courts came to constitute a new source of law. These cases were recorded by the judicial authorities in the Central Court at Westminster and were cited in cases where the facts were similar. This judge slowly displaced the old customary law.
The English system of jurisprudence owes its development to fiction in law. This fiction is developed by the English courts and is the assumption that there exists an appropriate law for every possible situation. For instance way before time, a principle was developed that a man may acquire the right to walk over one’s neighbor property and when this right was implemented when horse carriages were invented. But these fictions were soon superseded by the newly recognized branch of jurisprudence which is called the court of equity.
A court of equity was recognized as a court of conscience. This court was authorized to apply principles of equality and it opposed the principles of law. The whole theory of equity is established on the moral rules that in any given situation it would be unreasonable to follow the rigid rule of law or if the strict rule of law was applied, it will not be adequate to provide proper relief to the complaining party.
The English Common law establishes the foundation of the legal arrangement of countries like England, Wales, Northern Ireland, and the United States of America.
Key changes that were brought in the judicial system during the British period
Some of the changes that were brought by the British were in sync with the principles of common law and it took over the law system prevailing in India.
- The British government did not engage in the criminal laws which were dealt with by the local customary laws and had restricted their legal impact only on the personal laws of the Hindu and Muslims.
- The local customary laws had many flaws and the people started losing faith in them. To counter the defected law, the lord became the governor-general and abolished the power of the local leaders to preside over the criminal cases.
- The concept of the court of equity was also applied to the Indian jurisprudence. Under the court of equity, if there was no particular law relating to a present case and that the personal laws of Hindu and Muslim law had no impact on it then at that point the judgement should be given by applying the principle of equity, justice, and good conscience.
- The laws of England were adopted and by the Regulating Act, the Supreme Court was established at Calcutta in the 19th century. Proper courts were also established and many branches of the laws were also codified. All this was done keeping in mind the common law of England.
- The Government of India Act, 1935, clearly stated that the decision of Federal Courts and Privy Council will be binding on all the other courts’ decisions in British India. Hence, as a result, the doctrine of precedent became a characteristic feature of the Indian legal framework.
- On 1st October 1937, the Federal Court was constituted and applied the common laws of England, which was the main source of law.
The common laws of England still have an impact on the Indian legal framework. Most of the laws that were codified by the British government continue to exist even after independence like the Indian Contract Act, 1872, Indian Partnership Act, 1932, Sales of Goods Act, 1930, Indian Penal Code, 1862, etc.
Impact of modernization of common law in Britain
Common law matured through changes brought by different customs, traditions, and precedents. Customs were introduced in the islands of England by the Anglo-Saxons which varied from community to community and were enforced arbitrarily. The punishments included mostly giving compensations to the aggrieved party. The customary laws got a stand when Henry II established and institutionalized the common law by creating a unified system of law through uplifting local customs to the national level, terminating the local control and eliminating any random remedies of law, and restoring a jury system of people under oath to inspect and examine the criminal charges and civil claims. Stare decisis or the doctrine of precedents was also established by Henry II and is considered one of the major developments in the common law.
The judges of the local court would record the judgments and keep it in the archives of the Central Court at Westminster. The doctrine of precedents has developed over the years and has been applied in several cases. For instance, in the case of Donoghue vs Stevenson, a judicial precedent was set by the House of Lords that the manufacturer of a product will be held responsible and will owe a duty of care to the final customer of the product. This precedent was applied in Grant vs Australian Knitting Mills, among several other cases. The case of Donoghue vs Stevenson subsequently brought major changes to the law of negligence. A judicial precedent was set in the case of Shaw vs Director of Public Prosecutions and the House of Lords held that public officials can be corrupted through criminal conspiracy and this was cited in the case of Knuller vs Director of Public Prosecutions. The law of equity has a major impact on developments in the common law. In the fifteenth century, the lawyers argued that the compensation given by the common law judgments was not a sufficient remedy for trespassing or damaging properties and requested the king that the person involved should be evicted. This argument developed the law of equity which was administered by the Chancellor in the courts of England. The principles of common law and equity were frequently in conflict and the litigation on this conflict would continue for years until it was established in the seventeenth century that the law of equity will prevail over common laws. In the nineteenth century, under Judicature Acts of 1857 and 1875, the common laws and the law of equity were merged, with equity prevailing over common laws in case of a conflict.
The common laws have evolved and new changes have been made and are present in every country which has been colonized by Britain. For instance, India’s legal structure is made up of English laws and local laws.
Education of the British jurisprudence in India
The subject of jurisprudence got recognition as a sub-genre of legal literature in the 19th century and leading authors like Bentham, Austin, and Maine along with writers like Salmond, Holland, and Markby began to get visibility. The state of legal education was much better in the U.S when compared to the legal education provided in British lands including India.The number of legal practitioners in India were very less in number and there was no regulation of lawyers appearing before the British courts operating in Presidency towns of the East India Company. But with time regulations were made along with a nascent legal profession which was divided into sub-categories of lawyers which include both British and Indian lawyers. In the 19th century, British established courts in territories outside the Presidency towns, and the lawyers who practiced were Indians. These lawyers have to have the knowledge of Persian as well as training in Hindu or Muslim law.
In 1858, a unified system of courts was established and at the apex of which stood the three High Courts of Calcutta, Bombay, and Madras. The lawyers practicing in these courts now had to acquire the knowledge of English, study at a law college or university, and pass the examination of the High Court.
The legal education in India was mainly comprised of collections of regulations, rule and case-law, and translations of Hindu and Muslim law books. In addition to this, digests and descriptive works attempting to summarize the rules given on a legal topic were also published. British took a step to make a formal system of legal education in India by establishing the College of Fort St. George in 1812 which provided training to law students. In 1857 universities were founded in all the three presidencies and legal education was declared a part of their functions. The actual role of these universities varied from place to place. By the end of 1887, there were 18 law colleges and 1716 law students in India. This grew up to 6750 law students by the year 1940. Indians also traveled to England to become Barristers at the Inns of Court.
However, the nature of legal education did not change in India. There was no standard structure of legal education and the period of studying in law colleges varied from place to place. Part-time professors of law provided education to part-time law students. Courses were delivered in the evening and attendance was not mandatory and legal libraries were limited. Legal teaching was mostly technical and non-academic. All this was based on imparting rules of law rather than on theoretical discussions of law.
The Tagore Law Lectures was an exception to the general state of legal education. These lectures were made by Prosunno Kumar Tagore, coming from a family of intellectuals and national activists in Bengal. These annual lectures were given by leading non-jurists like Holdsworth, Pollock, Pound, etc as well as practicing judges and lawyers of Indian origin. These lectures give a detailed idea of the law of British India regarding matters relating to mortgages, minors, marriage, inheritance, etc. These lectures were comprehensive, non-contextual, and non-theoretical as compared to the ordinary lectures given the Indian law colleges at that time.
The origins of historical jurisprudence
Historical jurisprudence was introduced in the seventeenth century by leading English jurists into Western legal traditions. They called it a new philosophy of law which competed with the two major law schools of jurisprudence, namely natural law theory and legal positivism. The basic theory of the historical school of jurisprudence is that the primary source of law is the developing habits and ongoing customs of the people whose law it is. Historical knowledge has normative importance. This theory was represented by Edward Coke, advanced by John Selden, and expressed by Matthew Hale. Historical jurisprudence plays a significant part in the minds of American judges and lawyers, especially in constitutional law and in branches of law in which common customary law still prevails. The main expression of the historical school of jurisprudence began in the English Revolution of 1640-1689, for whose principles of legal independence and parliamentary supremacy, Edward Coke had fought both on the bench and in the House of Commons, and in which John Selden and Matthew Hale played important parts.
Historical jurisprudence had links with Puritan theology and with developments in the natural sciences. In the context of legal sciences, the historical school of jurisprudence was reflected principally in the development of the doctrine of precedents. William Blackstone and Edmund Burke had also mentioned the historical school of jurisprudence in their writings. Finally, in the nineteenth century, the historical school of jurisprudence was recognized as a separate school of jurisprudence by the German jurist named Carl Friedrich von Savigny.
Reforms in the 19th century through political thinkers
The most important person in the reform movement was the English utilitarian philosopher Jeremey Bentham, who was set up to change the entire fundamentality of law. Bentham did not like the picture of the law that he had heard presented in Blackstone’s lectures. Bentham worked and attempted to make the law more accessible and open to the people. However, Bentham was slow in his work, and his writing titled An Introduction to the Principles of Morals and Legislation did not appear until 1789. Bentham disapproved of legal fictions and other historical anomalies.
Bentham advocated two basic things in a legal system:
- Legislators should make the law instead of the courts to achieve harmony in society.
- The aims of law should change with changing time and place.
Although he sought most of all to be allowed to draw up a legal code for his own or some foreign country, his real-world influence was far more unplanned and derived largely from the flow of utilitarian ideas during the 19th century. The fame of his writings spread widely and quickly. Bentham was made a French citizen in 1792 and his teachings were respectfully received in most of the countries of Europe and the United States.
Changes in the procedure and criminal law
In 1852, the old legal structure of the separate forms of actions that were followed in civil cases was replaced by a new arrangement of uniform writs of summons and liberal amendments of pleadings. Fixed dates were built up for trials. In 1933, the jury trial was abolished in civil cases aside from in slander and a few other actions. Changes were made in civil-procedure which were introduced in 2000 by a judge named Lord Woolf, who was then appointed as lord chief justice to implement the changes. These changes simplified the civil procedure and also changed the language used so that plaintiffs became claimants and the usage of old Latin words was abolished and instead plain English expressions were used.
The criminal procedure went over a lot of changes over the years.
- In 1836, the accused persons were granted the right to counsel, and since 1898 they have been allowed to testify on their behalf.
- In 1903, the provision was made for the state to pay for the defense and in 1907, the right of the appeal against criminal convictions was made.
- In 1967, restrictions were forced on preliminary hearings.
- Capital punishments were ended for most crimes and were finally removed for murder by the Homicide Acts of 1957-65.
- The rules of legal lunacy were put down in the 19th century and broadened in 1957 by the restricted defense of diminished responsibility.
Reorganization of the courts
The jurisdiction of the English church courts came to an end in 1857, when secular and probate courts were put up. As a result of the Judicature Acts of 1873-75, the secular and probate courts were merged into the High court of Justice in 1875. The Judicature Acts aimed to combine law and equity by making available legal and equitable treatments in all sections of the High Court and by allowing the fact that the equitable rule should reign when conflicts arose. In the 19th century, the three central courts of common law were combined as the Queen’s Bench Division, which to this day persists to try suits for damages.
An appellate court for civil cases in the High Court was put up in 1830 but was removed in 1875 by a Court of Appeal comprising special appellate judges. In 1907 a Court of Criminal Appeal was founded, but it was combined into the Court of Appeal in 1966. A divisional court listens to appeals from magistrates on points of law. A final appeal, concerning conditions, can be made to the Supreme Court, which took over the House of Lords as a court of final recourse by the Constitutional Reform Act 2005.
The jurisprudence framework was deeply affected by the principles of the common law. The common law of England has evolved over the centuries. Customs and traditions of the people have a major impact on the laws of England.
Customary law was introduced in the islands of England by the Anglo-Saxons, which had power over deciding their family rights, inheritance, ownership, etc. To add to customary law, Normans brought their Normandy traditions and practices to England, after William the Conqueror became the king. This amalgamation of the customs gave a new framework to the laws of England.
The major change was brought by Henry II when he established the unified common law system all over England. It was because of this unified common law structure that the doctrine of precedent was introduced in the legal framework. Precedents made it easier for the judiciary to decide cases because if a present case has similar facts as that of a recorded case, it would be solved in the same manner as solved in the past.
The thing about common law is that it is made by the judges and it should be that way. Judges are lawyers who have the legal knowledge and experience to decide which law shall be applied in which cases. Moreover, judgements given by the courts of common law are marked efficient because these judgements are given on the support of previously solved cases.
However, if a previous judgement has flaws in it, it will set a misleading precedent in the books of law for the judges to solve cases in the future. Also, it is not always necessary that a present case will have a precedent with similar facts and in that case, it will be difficult to give a judgment.
The historical school of jurisprudence has its basis on the basic concepts of the common laws that laws are made by the evolving customs and changing habits of the people. Carl Friedrich von Savigny who is regarded as the father of historical school, argued that law comes from the consciousness of people, and the law is not found in nature, it is made by man. However, his theory was criticized because customs are the results of the interests of the ruling class of society, not the common people.
The common laws of England have contributed to the development of jurisprudence since the beginning of time. The Norman conquest and the establishment of the central system of common law in England played the most important part in the evolution of the legal structure. New concepts of the law were made and implemented on the legal structure of England. With time, the legal framework of common law advanced and new rules were introduced every century. The presence of common law can be seen in the legal system of the United States, the United Kingdom, and all other commonwealth countries which have been colonized by Britain.
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