Sir John William Salmond and His Contribution to Law

Sir J. W. Salmond was an eminent Supreme Court jurist and renowned legal scholar of New Zealand who is known for delivering some landmark judgments in the legal history of the country. Salmond was also a philosopher of jurisprudence and professor of law who developed some of the widely acclaimed definitions and thesis on the principles of jurisprudence.

Life and Career (1862 − 1924)

Salmond was born in a political and intellectual English family who emigrated to New Zealand in 1879 for some unknown reasons. Salmond received his early education in New Zealand and afterwards he secured his law degree from the University College of London.

On his return to New Zealand, he was appointed to numerous honorary positions including the Director and Solicitor of the Supreme Court, Professor of Law in the Victoria University, Counsel to the Law Drafting Officer, and Solicitor General of New Zealand. Further, he was appointed as the Judge of the Supreme Court of New Zealand in 1920 and till his death in 1924, he delivered some of the most remarkable judgments of the country in the short span of four years.

Though Salmond authored a number of books, his three major books which includes Jurisprudence & Legal Theory; Law of Torts; and Principles of Law of Contract, are considered as his classic works and unique contribution to the field of law and jurisprudence.

Jurisprudence

Salmond used a specific example of a good legal system to define jurisprudence. He defined jurisprudence as the study of the fundamental rule of civil law. Thus, he emphasises that jurisprudence deals with a certain type of law, namely civil law or the law of the state. The term civil law denotes the law of a state as administered by Courts and includes statutes, customs and judicial precedents.

He believed that jurisprudence is a science which involves systematic study of essential principles of the natural legal system instead and not the study of legal systems in general.

Salmond’s definition is widely criticized for its limitations; however, it is one of the most well−established definitions of jurisprudence in the entire legal phenomenon.

Theory of Sovereignty

According to Salmond, there exists a sovereign power in every political society which is determinate, although, it is not necessary that it should be found within the limits of that entity, thus, a semi−sovereign state can also co−exist.

Although Salmond remarked that sovereignty is not unlimited, rather has legally determined boundaries, though it is not subordinate to any other power as it is essential to a state.

In other words, he basically held that sovereign power is supreme but divisible and can be divided into three organs of the state, namely, legislative, executive and judiciary, each being free and uncontrolled in its own sphere. Further, though the organs are independent of each other but also necessarily complementary to each other, for instance, the judiciary can declare a law made by the legislature void in case of conflict with the Constitutional provisions and can also nullify the arbitrary acts of the executive.

Sources of Law

Salmond divided the sources of law into two categories based on their authoritative, historical and legal value. He named the categories as Material Source and Formal Source of Law.

• Material Sources of Law – The law derives its subject matter from material sources, which are further divided into Legal and Historical Sources.

• Legal sources: The Legal sources are the authoritative sources and consist of legislations, precedents, customary laws and conventional laws (based on agreements and local laws).

• Historical sources: Historical sources are non−authoritative sources and include writings of eminent jurists and judgments of foreign courts.

• Formal Sources of Law: It is those sources of law from which the rule of law derives its validity and legal force. The will of the state as manifested in the statute book or decisions of courts are the formal sources of law as it sanctions the law with legal power.

Though the classification of Salmond has been criticized by Jurists like Allen and Keeton for its ambiguity, despite the fact, the classifications hold a great amount of relevance and constitute the foundation of modern legal systems across the world.

Salmond’s Thesis

The following are major thesis of Salmond:

• Jurisprudence (The Theory of Law)

• The Law of Torts

• Principles of the Law of Contracts

• Essays in Jurisprudence and Legal History

Conclusion

Salmond was a legendary jurist whose judgments as the Judge Supreme Court of New Zealand and suggestions as Counsel to the Law Drafting Officer created some phenomenal changes in the national legal system of New Zealand. Moreover, his contributions as a philosopher in the field of jurisprudence are unmatchable to the date and would always be substantive to the whole study of Jurisprudence for the times to come.

Frequently Asked Questions

Q: Who was Sir John William Salmond?

Ans: Sir John William Salmond was a New Zealand legal scholar, jurist, and legal philosopher, known for his significant contributions to legal education and jurisprudence.

Q: What is Sir J. W. Salmond known for?

Ans: Salmond is known for his influential works on jurisprudence, including "Jurisprudence or the Theory of the Law" (1902) and "The First Principles of Jurisprudence" (1907), which played a crucial role in shaping legal education and thought.

Q: Why does Salmond’s understanding of Jurisprudence mark the beginning of the whole study?

Ans: Salmond was one of the rare scholars who not only developed his own definition of Jurisprudence, but also defined the sources of law and principles of Analytical Theory of Jurisprudence while being a staunch critic of his contemporaries and also accepting their numerous ideas at the same time.

Q: How Salmond was counted as a critic of Austin?

Ans: Salmond did not agree with Austin’s belief that sovereign is the only law giver or maker as he argued that law is also developed by courts and customs as well. Also, Salmond found that for Austin, law is only as it exists and lacks the abstract, which is essential because law holds a certain amount of idealism in itself, and unless that, law would be devoid of justice which is an essential purpose of all laws.

Q: What is the significance of Salmond's works on jurisprudence?

Ans: Salmond's works provided a comprehensive and systematic approach to understanding legal concepts, principles, and the nature of law. They have been widely used in legal education to introduce students to the fundamental ideas of jurisprudence.

Q: How did Salmond define jurisprudence?

Ans: Salmond defined jurisprudence as "the science of law," emphasizing its analytical and systematic approach to understanding legal principles and concepts.

Q: What were Salmond's views on legal positivism?

Ans: Salmond was associated with legal positivism, a theory that asserts the separation of law and morality. He believed that law is a creation of the state, defined by its formal characteristics, and that its validity does not depend on moral considerations.

Q: What is Salmond's concept of "law"?

Ans: Salmond defined law as "the body of principles recognized and applied by the state in the administration of justice." He emphasized the role of the state in creating and enforcing legal rules.

Q: Was Salmond only focused on jurisprudence?

Ans: While Salmond is most famous for his contributions to jurisprudence, he also made contributions to other areas of law, including contract law, tort law, and criminal law, both in his scholarly work and in his role as a legal practitioner and judge.

Q: How did Salmond's ideas impact legal systems beyond New Zealand?

Ans: Salmond's works on jurisprudence gained international recognition and influence. His systematic approach to legal concepts and principles has been studied and adapted by legal scholars and educators in various countries.