The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning “law”, and prudentia means “knowledge”. The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of “knowledge of or skill in a matter”. The word may have come via the French jurisprudence, which is attested earlier. The word jurisprudence is derived from the Latin word “JURISPRUDENTIA” which means knowledge of law or skill in the law. Jurisprudence is a study of the fundamental and legal principles. It may be described as any thought or writing about law. It is a procedure or a concept to understand the essential principles of law and legal system. Philosophers of law ask “what is law?” and “what should it be?”Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, 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 18thcentury and was focused on the first principles of the law of nature, civil law, and the law of nations. 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:
1) Problems internal to law and
2) Legal systems as such,
Problems of law as a particular social institution as it relates to the larger political and social situation in which it exist.
MEANING of JURISPRUDENCE:-
In English jurisprudence we are concerned rather to reflect on the nature of legal system, on the underlying meaning of legal concepts and on the essential features of legal system. We need English jurisprudence to analysis the basic concept of law. Jurisprudence is a certain type of investigation into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. It is a subject which differs in kind from other subjects on the legal syllabus. For the typical legal subject, e.g. Contract or Tort, consist of a set of rules and principles to be derived from authoritative source and applied to factual situations in order to solve practical problems. Jurisprudence, by contrast, does not constitute a set of rules, is not derived from authority and is without practical application. In jurisprudence we are not concerned to derive rules from authority and apply them to problems; 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. Thus, where as in law we look for the rule relevant to the given situations, in jurisprudence we ask what it is for a rule to be a legal rule, and what distinguishes law from morality, etiquette and other related
The word “Jurisprudence” has meant many different things at different times. Jurisprudence is not practical value, albeit of a long-term character. One of the tasks of jurisprudence is to construct and elucidate organizing concepts serving to render the complexities of law more manageable and more rational and in tie his way theory can help to improve practice. Legal system is understandable by jurisprudence. The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, psychology, economics, anthropology and many others. Jurisprudence is a science of law and there are different methods of approach to it.
HISTORY OF JURISPRUDENCE:
Jurisprudence already had this meaning in Ancient Rome even if at its origins the discipline was a (periti) in the jus of mos maiorum (traditional law), a body of oral laws and customs verbally transmitted “by father to son”. Praetors established a workable body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex then would judge a remedy according to the facts of the case.
Their sentences were supposed to be simple interpretations of the traditional customs, but effectively it was an activity that, apart from formally reconsidering for each case what precisely was traditionally in the legal habits, soon turned also to a more equitable interpretation, coherently adapting the law to the newer social instances. The law was then implemented with new evolutive Institutiones (legal concepts), while remaining in the traditional scheme. Praetors were replaced in 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience.
Under the Roman Empire, schools of law were created, and the activity constantly became more academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was produced by some notable groups including the Proculians and Sabinians. The scientific depth of the studies was unprecedented in ancient times.
After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian‘s Corpus Juris Civilis was born.
In ancient Indian vedic society, the law or Dharma, as followed by Hindus was interpreted by use of “Manu Smrti” – a set of poems which defined sin and the remedies. They were said to be written between 200 BC – 200 AD. In fact, these were not codes of law but norms related to social obligations and ritual requirements of the era.
DEFINITION’S of SEVERAL EXPERTS: –
“The science of civil law” Salmond defines jurisprudence as “The science of law” or “Civil law”. According to Salmond it is systematic study of civilization. In this definition Salmond says that law is a science and it concern with right and duties belonging to every citizen. Salmond uses the term jurisprudence in two senses.
- Generic sense.
- Specific sense.
Generic Jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence is of three kinds.
- Expiatory or Systematic jurisprudence:-It deals with the contents of an actual legal system as existing law at any time, whether in part or in present.
- Legal History:-It deals with the history of development of law.
- Science of Legislation:-The purpose of the science of legislation is to set forth law as it ought is being. It deals with the ideal of the legal system and the purpose for which it exists.
Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is also defined as “The Science of the first principles of the civil law”. In this sense, he divides the subject into three branches.
Ü ANALYTIC JURISPRUDENCE:-
Analytical jurisprudence deals with the analysis of basic principles of law. It is not concerned with the past stages of its evolution. It is not concerned with its goodness or badness. The purpose is to analyze and discuss the law of the land as it’s exists today.
Ü HISTORICAL JURISPRUDENCE
Historical jurisprudence deals with the scientific study of evolution and development of principles of law. Historical jurisprudence is the history of the legal principles and conceptions of legal system. It is a movement for fact against fancy, a call for a return from myth to reality.
Ü ETHICAL JURISPRUDENCE:-
Ethical jurisprudence deals with the law as it ought to be an ideal state. It investigates the purpose of law and the measure and manner in which that purpose is fulfilled. It concerns itself chiefly with the relation of law to certain ideas which law is meant to achieve.
CRITICISM ON SALMOND’s DEFINITION:-
It is submitted that salmond had failed to give an accurate and specific definition and also the division made by him of jurisprudence into general and particular raises a great deal of criticism as the Hollan observes that these expressions should be discarded, as the science should be treated as incapable of being divided in to these two branches.
Sir Thomas Erskine Holland defines jurisprudence as “The formal science of positive law”. According to Holland, jurisprudence is not a material science. Holland follows the Austin’s and salmond definition but he adds the term “formal” which means “that which concerns only the form and not its essence”. He says that jurisprudence is only a formal science i.e., a science which describes only the form or the external side of the subject and not its internal contents. Holland motioned one thing more which is positive law. We include both positive and negative both in positive law. POSITIVE LAW means when you have to do something in the consequences of law. NEGATIVE LAW means when u doesn’t have to do something in the consequences of law.
CRITICISM ON HOLLAND’s DEFINITION:-
By Gray: The real relation of jurisprudence to law depends not what law is treated but how law is treated. By Dr. Jenks: He observes that jurist can only recognize a law by its forms for it is the form which causes the manifold matter of the phenomena to be perceived but having got the form as it were, on the operating table, has to dissect it and ascertain its meaning.
Jurisprudence is concerned with means rather than with ends, through some of its mean are ends in themselves.
Allen says:”It is a scientific synthesis of essential principles of law”. According to Allen law is a proper and separate subject. It is an analytic or systematic process to study the essential principles of law.
Paton says:”A particular method of study not of laws of one country but of general Notions of law itself”. According to Paton it is a proper way to study not only the law of one country but general concepts and rules of every country or whole world. Paton says law is an independent study.
Austin defines jurisprudence as “The philosophy of positive law means the laid down by a political superior for controlling the conduct of those subjects to his authority. Austin divided the jurisprudence into following.
i) General jurisprudence.
ii) Particular jurisprudence.
Ü GENERAL JURISPRUDENCE:-
General jurisprudence includes such subjects or ends of law as are common to all system.
Ü PARTICULAR JURISPRUDENCE:-
Particular jurisprudence is the science of any actual system of law or any portion of it.
CRITICISM ON AUSTIN’s DEFINITION:-
SALMOND CRITICISM: The error in Austin’s idea of general jurisprudence lies in the fact that he assumes that unless a legal principal is common to many legal systems; it cannot be dealt within general jurisprudence. There may be many schools of jurisprudence but not different kinds of it.
HOLLAND‘S CRITICISM: Holland points out that it is only the material which is particular and not the science itself.
“Jurisprudence is the study and systemic arrangement of the general principles of law”.
BENEFITS OF JURISPRUDENCE:-
Jurisprudence is basically a theoretical subject but it also has a practical and educational value. The practical value or purposes of jurisprudence has been enumerated as under.
REMOVE THE COMPLEXITIES OF LAW:
One of the tasks of jurisprudence is to construct concepts and make law more manageable and rational.
ANSWER THE NEW PROBLEMS:
Jurisprudence can teach people to look around them and realize that answers to legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.
GRAMMER OF LAW:
Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g. negligence, liability etc.
TRAINING OF MIND:
Jurisprudence trains the mind to solve the difficult legal provisions in legal way.
GRASP ON THE SUBJECT:
It helps in knowing and grasping the language, grammar, the basics of treatment and assumption upon which subject rests.
USEFUL IN ART OF PLEADING AND LEGISLATION:
It helps legislators and the lawyers the proper use of legal terminology. It relieves them of the botheration, creation of defining again and again certain expressions e.g. right, duty etc.
TO INTERPRET LAW:
It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation.
TO STUDY FOREIGN LAW:
It enables a lawyer to study foreign law because the fundamental principles are generally common to all systems of law.
IMPORTANCE UNDER THE LIGHT OF DIFFERENT JURISTS:
By Dr. M.J. Sethna:
The value of jurisprudence lies in examining the consequences of law and its administration on social welfare and suggesting changes for the betterment of the superstructure of laws.
By M. Dias:
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. 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 deals with the improvement of law in the context of prevailing philosophies of time, place and circumstances.
SCOPE OF JURISPRUDENCE:-
There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads:
In the early period, Jurisprudence has been so defined as to cover moral and religious precepts and that has created confusion.
It was the Austin, who 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. Therefore, the scope of Jurisprudence was limited to the study of the concept of positive law only.
At present, there is a tendency to widen the scope of Jurisprudence cannot be circumscribed or limited. It includes all concepts of human order and human conduct inhuman state and society.
View of P.B. Mukherji:
Jurisprudence includes political, social, economic and cultural ideas. It covers the study of man in relation to state and society.
View of Lord Redcliff:
Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.
PURPOSE OF JURISPRUDENCE:-
Jurisprudence discloses the knowledge of general ideas and principles of legal systems, so it is called the eye of the law. Certain fundamental conceptions such as negligence liability, menstrual etc. have to be learned before provision of law relating to them can be understood, and jurisprudence teaches these fundamental conceptions. Jurisprudence trains the mind into legal ways of thought. It teaches the proper uses of legal terms and is called the grammar of law. The study of jurisprudence helps law maker by providing them brief and clear terminology. It enlightens students and helps them adjusting themselves in society without causing injuries to the interest of other students. To find out the true meaning of law jurisprudence helps the judges and lawyer.
JURISPRUDENCE AND LEAGEL VIEW:
It has generally been seen that the “good” person will do what is lawful. But not long before people will recognize the difference between what is actually legal, or legally right according to the political authorities and what should be legal. What should be legal rarely corresponds with what is really right or just, that is, what we would call morally right, for example, the distinction between what is legally or conventionally right and what is naturally right is Sometimes expressed as a conflict between what the gods command (morally right) and what the political authorities command (legally right). In recent times a major problem has arisen where the leaders in politics, society, media, and even in religious organizations, have turned their backs on the traditional conceptions of right and wrong and the laws passed by Parliament have undermined morality.
The existence of laws serve to defend basic values, such as laws against murder, rape, fraud, bribery and others, prove that law and morality can work hand in hand. Laws can state what obvious offenses count as wrong and therefore punishable and although the courts do not always ignore a person’s intention or state of mind, the law cannot generally govern, in a direct way a person’s desires.
There exists a relationship between law and morality whereby Laws govern conduct to a certain extent through fear of punishment. Morality, when internalized, it has become habit or second nature and governs conduct without compulsion. The righteous person does the appropriate thing because it is the right or noble thing to do and morality can influence the law in the sense that it can provide the reason for making entire groups of immoral actions illegal.
Analytic, or ‘clarificatory’, jurisprudence means the use of a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be. David Hume famously argued in A Treatise of Human Nature that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analyzing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: “What are laws?”; “What is the law?”; “What is the relationship between law and power/sociology?”; and “What is the relationship between law and morality?” Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations.
Positivism simply means that law is something that is “posited”: laws are validly made in accordance with socially accepted rules. The positivist view on law can be seen to cover two broad principles: Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.
- What the law is – is determined by historical social practice (resulting in rules)
- What the law ought to be” – is determined by moral considerations.
To conclude, we can say, that jurisprudence is the science of law and there are different methods of approach to it. 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 deal with the improvement of law in the context of prevailing, socio-economic and political philosophies of time, place and circumstances.
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