Jurisprudence is the study and systematic arrangement of the general principle of law. Explain
1. Introduction:
The study of jurisprudence started with the Romans. The Latin equivalent of jurisprudence is “jurisprudence“, which means either “knowledge of law” or “skill in law”.
Ulpian, a Roman jurist, defines jurisprudence as “the knowledge of things divine and human, the science of the just and unjust”. Another Roman jurist, Paulus, maintains that “the law is not to be deduced from the rule, but the rule from the law”.
The Roman jurists, thus, put forth the idea of a legal science independent of the actual institutions of a particular society. In a more modern term, it is claimed that through jurisprudence “law is getting conscious of its reality” in the same way that people become aware of building structures and designs through architecture. “The primitive people started constructing hut and houses without any study of architecture. It was only after thousands of years that people thought of having some science of building houses. And with the study of architecture, human beings could go ahead and think of new designs and structures of buildings.” (Hari C., 1973, p. 13)
In England, the word jurisprudence was used throughout the early formative period of the common law, but as meaning little more than the study of or skill in law. It was not until the early part of the 18th century that the word began to acquire a technical significance among the English lawyers. Thus Bentham distinguished between examinations of the law as it is and as it ought to be. (‘Expository’ and ‘sensorial’ jurisprudence). And John Austin placed a focus on formal analysis of the structure of the English law.
There has been a shift during the last one century and jurisprudence is viewed in a broader and a more sweeping sense than that which Austin understood it. Karl Llewellyn, an American legal realist, describes jurisprudence in this term: “Jurisprudence is as big as law – and bigger.These words have been interpreted to mean that jurisprudence has something more to it than the law itself, although what makes it bigger than law remains unspecified.
Similarly, the scope of inquiry of jurisprudence now ranges over many different subjects and touches on many other disciplines – economic, politics, sociology and psychology – normally regarded as having little to do with law and legal study. Hence, Julius Stone described jurisprudence as the lawyer’s “extroversion”. It is the lawyer’s examination of the precepts, ideals and techniques in of the law in the light derived from present knowledge in disciplines other than the law.” Lord Radcliffe(1967) writes: “[W]e cannot learn law by learning law. If it is to be anything more than just a technique, it is to be much more than itself: a part of history, a part of economics and sociology, a part of ethics and philosophy of life.”(p.878)
2. Meaning:
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 tale 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.
SALMOND’s DEFINITION
“The science of civil law defines jurisprudence as “The science of law” or “Civil law” According to almond 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..
3. Generic sense
Generic Jurisprudence includes the entire body of legal doctrines. In that sense jurisprudence is of three kinds.
a. Expository 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.
b. Legal History:-It deals with the history of development of law.
c. 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.
4. Specific sense:-
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.
· Analytic Jurisprudence.
· Historical Jurisprudence.
· Ethical Jurisprudence.
a. 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 its exists today.
b. 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.
c. 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.
5. Criticism on Salmond’s definition:-
It is submitted that almond 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 Holland observes that these expressions should be discarded, as the science should be treated as incapable of being divided in to these two branches.
6. Holland’s definition:-
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 former the external side of the subject and not its internal contents. Holland mentioned 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.
7. 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.
8. General jurisprudence:-
General jurisprudence includes such subjects or ends of law as are common to all system.
A. PARTICULAR JURISPRUDENCE:-
Particular jurisprudence is the science of any actual system of law or any portion of it.
B. 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 with in 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.
C. KEETON DEFINITION:-
“Jurisprudence is the study and systemic arrangement of the general principles of law”.
9. 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.
A. REMOVE THE COMPLEXITIES OF LAW:
One of the tasks of jurisprudence is to construct concepts and make law more manageable and rational.
B. 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.
10. Grammar 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.
a. TRAINING OF MIND: Jurisprudence trains the mind to solve the difficult legal provisions in legal way.
b. GRASP ON THE SUBJECT: It helps in knowing and grasping the language, grammar, the basics of treatment and assumption upon which subject rests.
c. 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
d. 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.
e. TO STUDY FOREIGN LAW: It enable a lawyer to study foreign law because the fundamental principles are generally common to all systems of law.
11. 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.
12. Scope of jurisprudence:-
There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads:
a. EARLY PERIOD: In the early period, Jurisprudence has been so defined as to cover moral and religious precepts and that has created confusion.
b. AUSTINIAN PERIOD: 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.
c. MODERN PERIOD: 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.
13. Similarity with general principle of law:
The word Jurisprudence unlike its literal meaning signifies investigation to various aspects of law. Many jurists came up with various definitions. While Salmond called it as “the science of law”, Ulpian defined it as “Knowledge of things divine and human, the science of right and wrong”, Keeton defined it as “Jurisprudence is the study and systematic arrangement of the general principles of law. Till date no absolute definition of the subject has been coined. The controversy not only lies in its definition but also lies in determination of its scope and applicability. Very firm Guidelines were taken by many jurists to keep an apparent distinction among morality, ethics, justice, society, history and even firm guidelines were adopted so that these terms are not intermixed with Jurisprudence. Very soon it was realized that Jurisprudence cannot survive solely, completely ignoring the above mentioned terms. It was then realized that the subject of jurisprudence has a very wide scope and its study cannot be confined to mere regular routine, but to get a better concept of the subject it has to be studied in the domain of Sociology, history, philosophy, ethics etc Also it was broadly accepted that jurisprudence is the spine of any legal system and cannot be treated alien to everything else. Jurisprudence though a separate entity depends on ‘n’ number of factors for its existence. Different jurists tried their hands on this subject with various approaches. There approach, analysis, and inferences were very different from one another. Few moved towards history for their enlightenment, others took the subject beyond philosophical boundaries; few remained reliant on their analytical proficiency and rationalism while others approached the subject with the back drop of sociology. Each approach led to the formation of different school of jurisprudence. In order to make the study of jurisprudence more effective and understandable the jurists were divided under the name of different schools. This not only facilitated readers in comprehending their ideas better, but also to scrutinize their (jurists) way of dealing with the subject in a more convincing way. Birds of feather flock together; the basic principle of dividing the jurists in different schools was popular term. People with same or almost same thoughts, ideas and visions were placed in the same school. Thus providing perfect analogy within them is important.
Ancient jurists were followed by modern jurists; there was a change in idea, change in scope. Proposal of thesis, replacement by antithesis, re proposal of some other theory, contention in the theory etc were present. Very soon the whole phase of jurisprudence experienced,-7D` an up heal, a revolution. What we see today is the purest form of jurisprudence which has undergone various changes before becoming this.
14. Jurisprudence as academic subject
As an academic subject offered in a university law curricula, jurisprudence is occupied with different issues and generally takes a different approach from other, mainly substantive or black-letter, law subjects (such s contract, tort, land law, trust, evidence, etc.), in the manner in which it deals with the subject matter of its inquiry.
The difference involves the devices – terminological and methodological – which it employs.
As Michael Doherty puts the matter, jurisprudence is a different sort of subject to study from most of the law which largely deal with case law and statutory materials. The reason is that in jurisprudence, it is ideas, and not facts, that are at a premium. There is, relatively, a greater proportion of abstract, theoretical material in jurisprudence, and students often fail to come to terms with it.
Further, according to John E Finnis, “Jurisprudence is not a course on law, but rather an exploration into the philosophy and nature of law.
There are many terms used in Jurisprudence which many students are relatively unfamiliar with. These terms belong more to the realm of philosophy than to that of law.
Ian McLeod has also pointed out that for students of legal theory the primary sources are frequently not cases or legislative enactments, but the works of legal theorists. Furthermore, legal theorists are not necessarily lawyers, because the subject matter is inextricably linked with both philosophy and political theory.
A W Friedman puts it:
‘All legal theory must contain elements of philosophy – man’s reflections on his position in the universe – and gain its color and specific content from political theory – the ideas entertained on the best form of society.’ (p. 208)
15. Conclusion:
‘Before the nineteenth century … the great legal theorists were primarily philosophers, churchmen and politicians.’
And
‘The new era of legal philosophy arises mainly from the confrontation of the professional lawyers, in his legal work, with problems of social justice.
It is, therefore, inevitable that an analysis of earlier legal theories must lean more heavily on general philosophical and political theory, while modern legal theories can be more adequately discussed in the lawyer’s own idiom and system of thought. The difference is, however, one of methods and emphasis. The modern jurist’s legal theory, no less than the scholastic philosopher’s, is based on ultimate beliefs whose inspiration comes from outside the law itsel
16. Bibliography
1. Keeton, C. J., Elements of Jurisprudence in New York: New York Press, 46 Fordham L. Rev. 1205 (1978), retrieved on 8th July from http://ir.lawnet.keeton.edu/flr/vol99/iss6/6
2. Aston v. Holland, 348. (1954), p. 237-558
3. Bellicose, Supplementary Practice of jurisprudence, N.Y. Crim. Proc. Law 1977-1978), pp. 123-136
4. S. Mehta (1945). People v. controversies of jurisprudence, retrieved on 8th July from http://ir.lawnet.mehta.edu/flr/vol34/iss6/6/arbitrary
5. Doherty, M. (1898), Old laws of jurisprudence, Houston press. Pp.122-134
6. Ernie, F. (1999), Controversy of Jurisprudence, p.101, retrieved on 9th July from http://ir.jurispudence.ernis.edu/flr/vol99/iss6/6
7.TSRP. (2006). “The Sam Rainsy Party-A History in Brief.” Retrieved 18 July 2012.
8. UNTAC. (2003). “Jurisprudence Background Summary.” Retrieved 8 July 2012.
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Llewellyn, K.(1889), Scope of US Jurisprudence, p. 198
P. Holland(1988), Disconcert with Jurisprudence, NY: New York press, p.876
J. Spicer (1981), long lasting Jurisprudence, pp. 599-605
P. Holland(1988), Disconcert with Jurisprudence, NY: New York press, p.890-908
Salmond, Jurisprudence
Keeton C.G, elements of Jurisprudence (3rd edition L.12).
Ernis, F.(1999), Controversy of Jurisprudence, p.101
Keeton C.G, elements of Jurisprudence (3rd edition L.12),p. 679