Nature And Value Of Jurisprudence 5f3b5g

A PROJECT REPORT ON NATURE & SCOPE OF JURISPRUDENCE

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Table of contents ACKNOWLEDGEMENT...................................................................................................3 RESEARCH METHODOLOGY........................................................................................4 INTRODUCTION...............................................................................................................5 MEANING OF JURISPRUDENCE....................................................................................6 JURISPRUDENCE IN RELATION TO OTHER SOCIAL SCIENCE............................10 SCOPE OF JURISPRUDENCE........................................................................................12 UTILITY OF JURISPRUDENCE.....................................................................................14 SCHOOLS OF JURISPRUDENCE..................................................................................16 CONCLUSION..................................................................................................................19 BIBLIOGRAPHY..............................................................................................................20

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RESEARCH METHODOLOGY The project is basically based on the doctrinal method of research as no field work is done on this topic. The whole project is made with the use of secondary source like Articles, Books, and Internet etc. AIMS & OBJECTIVES: The aim of the project is to present a detailed study of ‘Nature and value of Jurisprudence’ through decisions and suggestions and different writings, articles & reports. METHOD OF WRITING: The method of writing followed in the course of this research paper is primarily analytical. MODE OF CITATION: The researcher has followed a uniform mode of citation throughout the course of this research paper.

Gap Area My project work covers almost all needed aspects related to the topic. However it fails to cover some least important points like relation of Jurisprudence with crime and punishment, theoretical aspect of istration of justice, effect of Jurisprudence on caste and class system in India etc.

INTRODUCTION

4 Jurisprudence is the theory and philosophy of law. It has been derived from a Latin word ‘jurisprudencia, which in its widest sense means ‘knowledge of law’. Jurisprudence signifies knowledge of law and its application. Scholars of Jurisprudence, or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the natural law, civil law, and the law of nations.1 General jurisprudence can be broken into categories both by the types of questions scholars seek to address and by the theories of jurisprudence, or schools of thought, regarding how those questions are best to be answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:2 

1.) Problems internal to law and legal systems as such.

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2.) Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

During the formative era of the common law in England, the term jurisprudence was being used in a generic sense to include the study of various facets of law. However, in the early decades of the 19th century with the theories propounded by Bentham and Austin, the term jurisprudence acquired a definite meaning. Bentham distinguished the study of law as ‘it is’ and ‘as it ought to be’ Law being a dynamic concept , changes with time and changes with evolution of society under different socio-economic and political conditions. The rapid changes in modern times have given rise to new problems and issues which are to be tackled by law through pragmatic approach in interpreting law. While doing so , the modern jurisprudence , has to take into consideration the social ethos and changing patterns of the society, which immensely widens its scope as a science of law.

1

"Jurisprudence", Black's Law Dictionary

2

Shiner, "Philosophy of Law", Cambridge Dictionary of Philosophy

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MEANING OF JURISPRUDENCE It is difficult to give a uniform and universal definition of

Jurisprudence. Every jurist

has his own notion of the subject matter and the proper limits of jurisprudence which depends upon his ideology and the nature of society. The words used for law in different countries have different meanings. The words of one language do not have synonyms in other languages conveying same meaning. The evolution of society is of dynamic nature and hence the difficulty in accepting a definition by all.3 Jurisprudence is ubiquitous. Its concerns are an inescapable feature of the law and legal system. It is both informed by and has significant implications for economic, political and social theory.4 Jurisprudence has generous frontier. It accommodates abundant subjects of intellectual enquiry. No society can properly be understood or explained without a coherent conception of its law and legal doctrine. The social, moral and cultural foundations of the law and the theories which both inform and for them are no less important than the law’s ‘black letter.’5 Jurisprudence is sometimes used merely as an imposing synonym for law, as when we speak of medical jurisprudence. This is not the use to which the term is put in this work. Jurisprudence is a particular method of study, not of the law of one country but of the general notion of the law itself. It may be defined as a study relating to law, and although the term law may seem to the uninitiated a simple one analysis reveals that there are many uses of this word. Hence one of the first task of jurisprudence is to throw light on the nature of law. Each school of jurisprudence tends to set up its own definition.6 Modern jurisprudence trenches on the fields of the social sciences and of philosophy, it digs into the historical pasts and attempts to create the symmetry of a garden out of the luxuriant chaos of the conflicting legal systems. The breath of its scope, covering a voluminous literature written in many tongues, makes it a difficult subject to master. 7 DEFINITIONS 3

Jurisprudence and Legal Theory, V.D Mahajan, 5th edtn, Eastern Book Company, pg.1 Understanding Jurisprudence- An Introduction to Legal Theory, Raymon Wacks, Oxford University Press.pg 2 5 Ibid pg 5 6 A Textbook of Jurisprudence, G.W Paton, 4th edtn., Oxford University Press. Pg.2 7 Ibid 4

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The study of jurisprudence started with the Romans. The Latin equivalent of jurisprudence is jurisprudencia which means knowledge of law or skill of law. Ulpian defines jurisprudence as “the knowledge of things divine and human, the science of just and unjust”. Paulus, another Roman jurist, maintained that “the law is not to be deduced from the rule but the rule from the law.” The definitions given by the Roman jurists are vague and inadequate but they put forward the idea of a legal science independent of the actual institutions of a particular society.8 In England the word Jurisprudence was in use throughout the early formative period of the common law, but as meaning little more than the study of or skill in law. It was not untill the time of Bentham and Austin(early part of 19th century) that the word began to acquire a technical significance among the English lawyers. Bentham distinguished between examination of law as it is and as it ought to be (expositorial and censorial jurisprudence). Austin occupied himself with expositorial jurisprudence and his work consisted mainly of formal analysis of the structure of the English Law. Analytical exposition of the type which Bentham pioneered, has dominated English legal thought up to the modern times. The word Jurisprudence has come to mean in England almost exclusively an analysis of the formal structure of law and its concepts.9 There has been a shift during the last one century and jurisprudence today is envisaged in an immeasurably broader and more sweeping sense than that in which Austin understood it.10 Salmond defines Jurisprudence as the “Science of the first principles of the civil law.”11 Jurisprudence thus deals with a particular species of law, civil law or law of the state. This kind of law consists of the rules applied by the courts in the istration of Justice. It is only with the jurist’s law that the jurisprudence is concerned. They regulate the external human conduct only not the inner beliefs, therein differing form the law of the theologian. They are enforced by the courts or judicial tribunals of the society which apply a variety of sanctions ranging from capital punishment to fine. The certainity of the

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Supra 3 Ibid 10 Ibid 11 Salmond: Jurisprudence, 10th edtn, pg 2 9

7 sanctions and the existence of a determinate authority for the enforcement distinguish the jurist’s law from that of the moralist.12 Austin’s Definition Austin refers to jurisprudence as the “Philosophy of Positive Law”. Austin’s broad approach of law was to regard it as the command of the sovereign. Positive law is a general rule of conduct laid down by a political superior to a political inferior. The notion of command requires that there must be a determinate person to issue the command, and there is a implied threat of a sanction if the command is not obeyed. 13Austin’s aim was to separate positive law sharply from such social rule as those of custom and morality. Jurisprudence was the general science of positive law in the rigid sense in which Austin defined it.14 Holland’s Definition Sir Thomas Erskine Holland has defined Jurisprudence as the “Formal Science of Positive Law”. A formal science, as distinguished form a material science is one which deals not with concrete details but with the fundamental principles underlying them. Jurisprudence in this view should concern itself with the general portion of legal doctrine. It should deal with the general conceptions and pervading principles that constitute the basis of any mature system of law. Holland says: “Jurisprudence deals with the human relations which are governed by rules of law rather than the material rules themselves.” Since Jurisprudence deals only in “Formal or abstract way with those relations of mankind which are generally recognized as having legal consequence.” It is called a formal science. Keeton considers Jurisprudence as “the study and systematic arrangement of the general principles of law.” Jurisprudence considers the elements necessary for the formation of a valid but it does not attempt to enter into a full exposition of the detailed rules of the law of contract, either in English Law or in other systems. It analyses the notion of status and considers the most important examples, but it does not consider exhaustively the points in which persons of abnormal status differ from ordinary persons.

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Jurisprudence & Legal Theory, Prof. G.C Venkata Subbarao, Eastern Book Company, pg 5-6 H.L.A Hart’s introduction to the Province of Jurisprudence determined,(1954) 14 Supra 6 pg 6. 13

8 Jurisprudence deals with the distinction between public and private laws and considers the contents of the principal departments of law.15 Roscoe Pound defines jurisprudence as “the science of law, using the term law in the juridical sense, as denoting the body of principles recognized or enforced by public and regular tribunals in the istration of justice.” According to Gray, Jurisprudence is “the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules.” Lee writes that Jurisprudence “is a science which endeavors to ascertain the fundamental principles of which law is the expression. It rests upon the law as established facts, but at the same time it is a power in bringing law into a coherent system and in rendering all parts thereof subservient to fixed principles of justice.” G.W Paton says that “jurisprudence is a particular method of study, not of law of one country, but of the general notion of the law itself. It is a study relating to law.” The view of Julius Stone is that jurisprudence is the lawyer’s extraversion. It is the lawyer’s examination of the precepts ideals and techniques of the law in the light derived from present knowledge in disciplines other than the law.

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Elementary principles of Jurisprudence, pg 1-2

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JURISPRUDENCE IN RELATION TO OTHER SOCIAL SCIENCE Different branches of knowledge are so inter-related that none of them can be studied in isolation. Modern jurisprudence trenches on the fields of social science and of philosophy, it digs into the historical pasts and attempts to create the symmetry of a garden out of the luxuriant chaos of conflicting legal systems. 16 Jurisprudence , ethics, economics, politics and sociology are distinct enough at the core, the analytical distinction are sound enough. But we shall not understand even that core, and much leass the debatable ground beyond, unless we are prepared to make continual deep incursions from each into each other. All the social science must be co-workers and emphatically all must be co-workers with jurisprudence.17 Jurisprudence and Sociology Sociology has helped jurisprudence in its approach to the problem of prison reforms and has suggested ways and measures and means of preventing social wrongs. Behind all legal aspect, there is something social . Among the phenomena studied by sociologists is law also and that makes sociology intimately connected with jurisprudence. The cause of crimes are partly sociological and an understanding of sociology helps the legislatures in their task of prison reforms and prevention of crime. Topics like motive, aims and theories of punishments are considerably helped by sociology. The birth and growth of sociology has given a new orientation to the study of jurisprudence. Jurisprudence and Psychology Psychology is defined as the science of mind and behavior. In study of criminal jurisprudence there is great scope for the study of psychological principles in order to understand the criminal mind behind the crime. Both psychology and jurisprudence are interested in solving such questions as the motive of crime, a criminal personality, 16 17

A Text Book of Jurisprudence, Paton, pg. 1 Law and Morals, Dean Roscoe Pound, pg. 115

10 punishments to be given, why crimes are increasing more in one society than the other, study of Negligence, Intention, Motive and Cognate mental conditions form part of both the Jurisprudence and Psychology. Jurisprudence and Ethics Ethics has been defined as the science of human conduct. It deals with how man behaves and what should be the ideal human behaviour. Ethics lays down the rules for human conduct based upon higher and nobler values of life. Laws are meant for regulating human conduct in the present and subordinating the requirements of the individual to that of

the society at large. A jurist must be adept at science of ethics because he cannot

criticize a law unless he examines that law through the instrumentality of ethics. Although Austin separated law from ethics, jurisprudence must not be divorced from ethics altogether. If ethical values are excluded from jurisprudence it shall be in “the formalistic vacuum of the sanctuary of the State barring the road to all with life and society.” Jurisprudence and Economics Economics studies man’s efforts in staisfying his want and producing and distributing wealth. Economics is the science of wealth and jurisprudence is the science of law. There is a close relation between the two. Economic problems arise from day to day and it is duty of the law giver to tackle those problems. The aim of the economist is to improve the standard of life of people and also to develop their personality. Jurisprudence teaches legislators how to make laws which will promote social and economic welfare. The intimate relation between economics and jurisprudence was first emphasized by Karl Marx and the interpretation of jurial relations in the light of economic factor is receiving serious attention.

Jurisprudence and History

11 History studies past events in their different perspective. History furnishes the background in which a correct idea of jurisprudence can be realized. The relationship between the two is so close that there is a separate historical school of jurisprudence.

SCOPE OF JURISPRUDENCE Jurisprudence involves certain types of investigations into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. Elaborating the point further, Salmond observed. “in jurisprudence we are not concerned to derive rules from authority and apply them to problem; we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system.”18 This makes the distinction between law and jurisprudence amply clear. Thus, whereas in law we look for the relevant to the given situation, in jurisprudence we ask, what is for a rule to be legal rule, and what distinguishes law from morality; etiquette and other related phenomenon. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rule but to reflect on the rules already known. 19 There is a tendency to widen the scope of jurisprudence and at present now it is included what was previously considered to be beyond the province of jurisprudence. The present view is that the scope of jurisprudence cannot be circumscribed or regimented. It includes all concepts of human order and human conduct in State and society. Anything that concerns order in the State and society falls under the domain of jurisprudence. There is no unanimity of opinion regarding the scope of jurisprudence. Different authorities attribute different meanings and varying premises to law and that causes difference of opinions with regard to the exact limits of the field covered by jurisprudence. Jurisprudence has been so defined as to cover moral and religious precepts also and that has created confusion. It goes to the credit of Austin that he distinguished law from morality and theology and restricted the term to the body of rules set and enforced by the sovereign or supreme law-making authority within the realm. Thus, the 18 19

Fitzgerald P.J: Salmond on Jurisprudence (12th Edition. 1966) p.1 Ibid

12 scope of jurisprudence was limited to the study of the concepts of positive law and ethics and theology fall outside within the province of jurisprudence. . Jurisprudence attempts to discover as much as possible concerning legal method, to study the concepts of the law and trace the influence of the social forces upon their development. Jurisprudence is not primarily interested in discovering uniformities, for diversity may even be more important.20 Jurisprudence is a functional study of the concepts which legal system dvelop, and of the social interest which law protects. But the element of interest brings in the question of value. Functional Jurisprudence cannot be satisfactorily developed without a complementary study of the purposes for which the society exists21

UTILITY OF JURISPRUDENCE There is general confusion regarding practical utility of jurisprudence as a subject . It is often alleged that jurisprudence being an abstract and theoritical subject is devoid of any practical use. 20 21

Supra 6 p 44-45 ibid

13 Jurisprudence has its practical applicability. It seeks to rationalize the concepts of law which enable us to solve different problems involving intricacies of law. In other words it serves to render the complexities of law more manageable and rationale and in this way it can help to improve practice in the field of law.22 Progress in science and mathematics has been largely due to increasing generalization which has unified branches of study previously distinct, simplified the tasks of both scientist and mathematician and enable them to solve by one technique a whole variety of different problems. Generality can also mean improvement of law. English law relating to negligence has progressed from a host of individual rules about particular types of situations to a general principle. One of the tasks of jurisprudence basis of treatment s to construct and elucidate concepts serving to render the complexities of law more manageable and more rational. In this way, theory can help to improve practice. Jurisprudence is often said to be” the eye of law”. It is the grammar of law. It throws light on the basic idea and the fundamental principles of law. By understanding the nature of law, its concept and distinction, a lawyer can find out the actual rules of law. It also helps in knowing the language, grammar, the assumption upon which subject rests. Some logical training is necessary for a lawyer which he can find from a study of jurisprudence. Jurisprudence trains the critical faculties of it students so that they can detect fallacies and use accurate legal terminology and expression. Jurisprudence also has an educational value. The logical analysis of legal concepts sharpens the logical techniques of lawyer. The study of jurisprudence can also help to combat the lawyer’s occupational view of formalism which leads to excessive concentration on legal rules for their own sake and disregard of the social function of law. Jurisprudence can teach people to look, if not forward , at least sideways and around them and realize that answers to new legal problems must be found by consideration of the social needs and not in the wisdom of the past. Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the law ed by the legislatures by providing the rules of interpretation. It also furnishes them opportunity to pinpoint the lacunae , shortcomings and defects in the laws framed by the legislature and improvise them through their judicial interpretation. 22

Sawer: Law in Society p. 153

14 The study of jurisprudence helps in rationalizing the thinking of the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face exigencies of human life boldly and courageously.23 Such is the exalted science of jurisprudence, the knowledge of which sends the students into civil life, full of luminous precepts and notions, applicable to every exigency of human affair.24 Value of jurisprudence lies in examining the consequence of law and its istration on social welfare and suggesting hinges for the betterment of the superstructure of laws25. Study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence. Teachers of law hope to encourage their pupils to learn how to think rather than what to know and jurisprudence is peculiarly suited to this end.26

SCHOOLS OF JURISPRUDENCE It is common to separate jurists into various schools. Such a classification is useful in so far as it confined to an attempt to label in a broad way some of the most significant approaches to the problem.27 There is no unanimity regarding desirability of the grouping of essential themes concerning nature of law into different schools. Some jurists have 23

Phillinore J.G : Principles and Maxims of Jurisprudence p.30 Ibid 25 Dr. M.J Sethna 26 Prof R.W.M Dias, Jurisprudence, preface , piii 27 Supra 6 pg 3 24

15 justified this division or grouping in the interest of uniformity and indentifying law into definite categories or branches which are called ‘schools of jurisprudence’ while others have denounced such disintegration of jurisprudence into different schools which would perpetuate ‘ over-lapping and atomization.’28 Analytical Schools The major premise of analytical schools of jurisprudence is to deal with law as it exists in the present form. It seeks to analysis the first principles of law as they actually exists in a given legal system. The exponents of analytical school of jurisprudence consider that the most important aspect of law is its relation to the state. They treat law as a command emanating from the sovereign. This school is also called imperative school. The advocates of this school are neither concerned with the past of the law nor with the future of it, but they confine themselves to the study of law as it actually exists i.e. positus. Bentham and Austin are considered to be fore runners of this school in England. The other exponents of analytical schools are Holland, Salmond, Amos, Markby. Historical School The exponents of the historical school of jurisprudence take social institutions in their sequence, with primacy to primitive legal institutions of the society. Thus the school does not attach importance to relation of law to the State but gives primacy to the social institutions in which the law develops itself. The historical school concentrates on evolution of a well- developed legal system, the historical school concentrates on evolution of law from the primitive legal institutions of the ancient communities. The task of historical school is to deal with the general principles governing the origin and development of law and with the influence that affect the law. Historical school emerged as a reaction to the legal theories propounded by analytical positivists and the natural law thinkers. The exponents of this schools are Savigny, Burke, Henry Maine, Pollock. Philosophical school According to the exponents of this school, legal philosophy must be based on ethical values so as to motivate people for an up-right living. According to this school, the purpose of law is to maintain justice and order in society. The ethical school of jurisprudence expound the first principle of law as it ought to be. It is neither concerned 28

Stone Julius: Province and Function of Law p 26

16 with the historical past nor with the analytical present but with the future of law as it ought to be. This schools considers law as the means by which individual’s will is harmonized with the general will of the community. The proximate of jurisprudence is to secure liberty to the individual for the attainment of human perfection. Hugo Grotius, Kant, Hegel are considered to be main exponents of the ethical school of Jurisprudence. Sociological School Sociological school of jurisprudence has emerged as a result of synthesis of various juristic thoughts. The exponents of this school considered law as a social phenomena. They are chiefly concerned with the relationship of law to other contemporary social institutions. They emphasis that the jurists should focus their attention on social purpose and interest served by law rather than on individuals and their abstract rights. According to this school, the essential characteristic of law should be to represent common interaction of men in social groups, whether past or present, ancient or modern. They treat law as social process. The exponents of this school are Montesquieu, Roscoe Pound, Von Ihring, Spencer. Auguste Compte. Realist School The realist movement in United States represents a latest branch of sociological jurisprudence which concentrates on decisions of the courts. The realists contend that law has emanated from judges, therefore law is what courts do and what they say. For them judges are the law makers. This school is not much concerned about the ends of law but their main concentration is on a scientific observation of law and its actual functioning. The contentions of realists is that judicial decisions are not based on abstract formal law but the human aspect of the judge and the Lawyers also has an effect on court’s decision. According to Friedmann, Oliver Windell Holms, Gray, Cardozo and Jerome Frank were the mental founders29 of the realist movement in America who emphasized on functional and realistic study of law not as contained in the statute or enactment but as interpreted and laid down by the courts in their judicial pronouncements. They do not formal , logical and conceptual approach to law because the court while deciding a case reaches his decision on emotive rather than logical ground. Realists

29

Friedmann: Legal theory, 5th edtn p. 293

17 are opposed to the value of legal terminology for they consider it as a tacit method of suppressing uncertainty of law.

CONCLUSION Jurisprudence in its limited sense means elucidation of the general principles upon which actual rules of law are based. It is concerned with rues of external conduct which persons are constrained to obey. Therefore, etymologically jurisprudence is that science which imparts to us knowledge about law. Jurisprudence may be considered to be the study and

18 systematic arrangement of the general principles of law. Yet in another sense it may be regarded as the philosophy of law dealing with the nature and function of law. This approach to jurisprudence is receiving macy in modern times keeping in view the rapid social change taking place all around the world in recent years. This has given rise to what is called ‘functional jurisprudence’. The Indian jurisprudence owes its origin to the ancient concept of Dharma. The study of jurisprudence as a separate branch of knowledge started with the Romans. The definition and conception of jurisprudence by Romans jurists may appear to be vague or inadequate in the modern sense of the term but the credit of recognizing jurisprudence as an independent branch of legal system for the first time goes to Roman legal philosophers which eventually paved way for the development of the subject in its present form. Jurisprudence is regarded primarily s a discipline in how to think for oneself and not something to know. Its value lies in the analysis from which conclusion may be drawn and not the formulation of any final decision. The true purpose of the study of jurisprudence should not be confined to the study of positive law alone but must include normative study. That study should deal with the improvement of law in the context of prevailing socio-economic and political philosophies of time, place and circumstances. The study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence. Teachers of law hope to encourage their pupils to learn how to think rather than what to know and jurisprudence us peculiarly suited to this end.30

Scope and Limitations: Though this is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail.

BIBLIOGRAPHY

30

Jurisprudence, R.W.M Dias, Preface , pg vii

19 1) Myneni Dr. S.R.; “Jurisprudence (Legal Theory)”; Second Edition 2004; Asia Law House 2) Mahajan V.D.; “Jurisprudence & Legal Theory”; 5 th Edition 1987; Eastern Book Company 3) Paton G.W.; “A Textbook of Jurisprudence”; 4th Edition 1972; Oxford Universal Press 4) Sinha Surya Prakash; “Jurisprudence Legal Philosophy”; 4th Edition 2003; West Group 5) Subbarao G. C. Venkata; “Jurisprudence and Legal Theory”; 9 th Edition 2006; Eastern Book Company 6) Fitzgerald P J; “Salmond on Jurisprudence”; 12th Edition 1966; Universal L aw Publishing house 7) Wacks Raymond, “Understanding Jurisprudence”. Oxford University Press.