The
Sociological Jurisprudence was a further development to positivism which was an
important trend in the 20th Century the Sociological Jurisprudence
studies the legal system as a part of the social reality. The law cannot be
studied without knowing its Historical and Social background. A law is an horn
meant for repeated application and not exhausted by its fulfilment once. A law
results certain social or economic relationship. And this relationship is
created by the productive forces that were prevailing in a given society. Law
thus consists of a set of rules reflecting these relationships. There are
important areas in the law in which Judicial discretion cannot be exercised
example, In Hindu Marriage Act (1955), a Hindu can only one wife and this no
Judge can hold that a Hindu can more than one wife. Law is what the courts do
in fact. If a Judge is given free discretion he can solve all problems of the
society.
The
Sociological Jurisprudence shifted the centre of gravity of the legal system
from a statute to a Judgement law, but the statutory law can be interpreted by
the Judges in a manner as to fulfil the needs of the society, a comparison and
analytical Historical Perspective.
Ancient Indian
Jurisprudence and Modern Jurisprudence Comparison :
Ancient Jurisprudence
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Modern Jurisprudence
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1. Ancient Indian
Jurisprudence related to semi-feudal and feudal society.
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1. Modern Jurisprudence is related to Industrial Society.
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2. Feudal Society is
basically on Agriculture Society. In which production techniques were
primitive.
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2. Since Science and
Technology progress are advancing. Industrial progress was changing fast
endlessly.
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3. The method of production
did not change for Centuries. Production was low. A process was repeatedly
some for production.
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3. Industrial Society was
fast changing by using scientific and technical devices. Production was fast
increasing.
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4. Changes in Society were
very slow and continued for centuries.
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4. Revolutionary changes
were brought in Society within a short time.
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5. The main form of feudal
law was customary law supplemented by written test. The society was
relatively stable.
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5. Industrial Revolution of
18th and 19th Century in Europe and America was fast
and it spread all over the world. It completely altered the situation.
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6. Methods of Production on
were not changed for Centuries. Production techniques could not be brought in
to force for fear of adverse results.
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6. Machine Production
ushered in totally new kinds of social relations. Modern Society is known for
its instability due to continuous changes in techniques of production.
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7. Social Relations were
very slow and almost remained some for Centuries.
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7. Modern Industry causing
major changes in social relations. Consequently, in the law also.
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8. The Ancient Jurisprudence
the method of production is conservative.
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8. It was revolutionary.
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9. The main source of law was
customary and traditional basis.
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9. Main source of law was
legislation. Legislation brings about at a particular moment abrupt change in
social relations.
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10. Legal relations and
legal norms remained constant.
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10. Legal norms continuously
changing. Legislation has become the most importance source of law in modern
society.
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11. It is depending upon law
of nature.
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11. Modern Jurisprudence is
a combination of Positivism Sociological Jurisprudence, and Natural Law.
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12. Large no. of legal
treatises was written in Sanskrit. But only a few works are available for our
study purpose. The Parliament or some legislature.
Jimutvahan and Vijnaneswar
provided commentaries on this Smritis.
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All
law was originally customary law. And there was no statutory law in Ancient
India since there was no Parliament or legislature in those times. The study of
Ancient India Jurisprudence really belongs to the school of Historical
Jurisprudence.
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