Monday, 6 March 2017

Rajat Malhotra

Jurisprudence- HOLLAND'S DEFINITION OF LAW


Synopsis:
1) Introduction
2) Political Sovereign Authority
3) Jurisprudence as the formal science of positive law.

1) INTRODUCTION
Holland is also, supporter of analytical school of positivism. Benthom made actual law as a subject matter of his study, Austin open a new era, of jurisprudence and determined the province of jurisprudence. According to Austin, the science of jurisprudence is concerned with positive law or any law strictly so-called. Jurisprudence has nothing to do with the goodness or badness of law.
Austin further divided the subject into `general’ and ‘particular’ jurisprudence. According to him," general jurisprudence" includes such subjects or ends of law as are common to all systems while,’ particular jurisprudence’ is confined only to the study of any actual system of law or of any portion of it.

2) POLITICAL SOVEREIGN AUTHORITY
Holland says, "law is general rule of external human action enforced by sovereign political authority”. All other rules for the guidance of human action arc laws merely by analogy:
propositions which are not rules for human action are laws by metaphor only.

If we take law as rule Of action, we have following kinds of laws.
i. Imperative,
ii. Physical of scientific.
iii. Natural or moral
iv. Conventional.
v. Customary.
vi. Practical or technical.
vii. International-or law of nations.
viii. Civil law or law of states

Holland defined jurisprudence as " the formal science of positive law."

3) JURISPRUDENCE AS THE FORMAL SCIENCE OF POSITIVE LAW
He criticized the division of the subject matters into 'general' and 'particular' given by Austin. He pointed out that the science deals with relations of mankind, which are regarded as having legal consequences, but not with the rules, which create those relations. Though it may be possible to speak of a branch of that science which studies how those human relations are regulated in the laws of many individual country, to call it as "particular jurisprudence ". In the sense in which Austin has used it is not right, Holland's formal science of positive law itself was criticized by later writers. He could not demarcate the boundary of subject properly.