Asmatuallah Kakar
The subject, with which
jurisprudence deals, is law. In other words law is the subject-matter of
jurisprudence. The definition of law is really complicated one. Different
jurists provide different definitions. But generally, Law means ‘a set of rules
which regulates the conduct of human being living in societies’.
Broadly speaking, law
is of following two kinds;
(a). God made law; and
(b). Man made law.
Those rules which have been set forth by the nature, and
which shows the action of the nature is known as God made law or natural law.
God made law is universal in application and cannot be subjected to any change.
It is unaffected by time and space settings. These are the rules which the
nature has formulated for the conduct of individuals living in societies.
Those rules which have been established by men for the
purpose to conduct human behviour in the society are known as Man-made Law.
This law is the creation of man’s wisdom. As Aristotle said that human beings
are social by nature, hence, they want to live in society. On the other hand,
Hobbes maintains that human beings are selfish and brutal by nature. Now to
have equilibrium between the two contrasting aspects of human nature as
aforesaid, it is necessary to have a set of rules and regulations so that the
society may prosper. Therefore, human beings in civilized societies make rules
and regulations for their conduct. Therefore, the law which is so the result of
human creation is known as Man-made law. Man-made law is also known as positive
law.
Jurisprudence
is not concerned with God-made Law. It is studying Man-made Law (i.e. positive
law).
Law as it is and Law as it ought to be:
The statement ‘Law
as it is’ means those rules which are actually exist and
enforceable in the society irrespective of their merits and demerits. It is
also known as positive law. On the other hand, the statement ‘law as it ought to be’ refer to those
ideal principles which are reflecting the essence of the nature. These are also
known as ethical, moral or natural principles. Hence, being higher and ideal
principles, these standards provide a ground for criticizing positive law.
The
most celebrated view of the present day, is restricting the scope of
jurisprudence only to ‘Law as it is’. In other words, most contemporary
jurists are of the view that jurisprudence is the study of ‘Law as it is’, i.e.
positive law. They are keeping the ethical and moral principles out of the
preview of jurisprudence.
Two
senses of Law:
Similarly,
law connotes following two senses, namely;
(a). Law in Concrete Sense; and
(b). Law in Abstract Sense.
(a). Law in Concrete Sense: The
law in concrete sense means the law which has been solidified in a legal
document. In other words, it means the law which has been enunciated in
particular statutes or enactments. For instance, Pakistan Penal Code 1860,
Contract Act 1872, Arbitration Act 1940 etc. These are all the laws in concrete
sense, because here the principles of law have been solidified in shape of
specific provisions, intended to be functional in practical situations which
may arise in future.
(b). Law in Abstract Sense: The
law in abstract sense means the abstract form of law. It is the law not given
in particular act or statute rather it is composed of the fundamental and
general principles or concepts of law common to different legal systems of the
world, and in different branches of the legal system of one country, e.g. “mens
rea” (guilty intention), concept of rights and duties, ownership and possession
etc. It is the aggregate of the fundamental principles and the general notions
common in almost all the legal systems of the world.
Now, therefore, again the majority of the
jurists of the present day subscribe to the view that jurisprudence is the
study of law in abstract sense but not of law in concrete sense.
