- 1. Introduction
The word jurisprudence is derived from Latin word “jurisprudentia”, means ‘knowledge of law’. The Latin word ‘juris’ means law and ‘prudentia’ means skill or knowledge. Thus, jurisprudence signifies knowledge of law and its application.
According to Oxford dictionary
“It is defined as jurisprudence is the systematic and formulated knowledge or science of human law.”
In this sense it covers the whole body of legal principles in the world. The history of the concept of law reveals that jurisprudence has assumed different meanings at different times. It is therefore, difficult to attempt a singular definition of the term. It has a long history of evolution beginning from classical Greek period to 21st Century modern jurisprudence with numerous changes in its nature in various stages of its evolution.
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 18th century 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:
v Problems internal to law and legal systems as such
v Problems of law as a particular social institution as it relates to the larger political and social situation in which it exist.
During the formative era of the common law in England, the term “jurisprudence” was being used in a generic sense to include the study of various facets of law. However, in the early decades of the 19th century with the theories propounded by Bentham and his disciple Austin, the term ‘jurisprudence’ acquired a definite meaning. Bentham differentiated between studies of law as “it is” and “as it ought to be” and called them ‘expositorial’ and ‘censorial’ jurisprudence respectively.
Later, Austin concerned himself mainly with the formal analysis of the English and its related concepts, which still continues to be the basic contents of English jurisprudence.
Jurisprudence has been considered at various times and by different schools of thought as philosophy, history or science. It is concerned essentially with the nature and function of law. It deals with such questions as what is law, where does it come from. What does it do? And what are the means for doing it.
- 2. Jurisprudence – it’s meaning
v Jurisprudence in its limited sense means elucidation of the general principles upon which actual rules of law are based. It is concerned with the rules of external conduct which persons are constrained to obey. Therefore, etymologically jurisprudence is that science which imparts to us knowledge about ‘law’.
v The term ‘law’ of course is a term of various connotations; here we use it in its abstract sense, that is to say, not in the sense of concrete statutes but in the sense of general principles underlying law. Thus, for example: there are various branches of law prevalent in the modern State such as contract, tort, crime, property, trusts, companies, labor relations, insolvency etc. and in jurisprudence we have to study the basic principles of each of these branches and we are not concerned with the detailed rules of these laws. These have to be studied in detail when we study those branches of law separately.
v Jurisprudence examines the general principles of penal liability but it does not attempt to detail out the essentials of each offence. In short, jurisprudence may be considered to be the study and systematic arrangement of the general principles of law. In another sense, jurisprudence may be regarded as the philosophy of law dealing with the nature and function of law. This approach to jurisprudence is receiving primacy in modern times keeping in view the rapid social changes taking place all around the world in recent decades. This has eventually given rise to what is now termed as the “functional jurisprudence”, the thrust being on inter-relationship between law and justice.
v The Indian jurisprudence owes its origin to the ancient concept of “Dharma” which was considered to be the best way to discipline one’s mind. The practice of Dharma enabled citizens to inculcate a sense of discipline in conducting themselves in the society. However, with the march of time and progress of Indian society, the concept of law and therefore, of jurisprudence has changed radically.
v India is now a Sovereign, Socialist, Secular, Democratic, Republic. Democracy pre-supposes government of the people, by the people and of the people, and, therefore, citizens are expected to be self – restrained and self – disciplined. They should also be conscious of their rights and duties. ‘Law’ plays a significant role in sustaining as table social order. India being a welfare state, a new Indian jurisprudence needs to be developed so as to ensure that law becomes an effective instrument of social change in various facets of life.
v Law has to play the functional role of harmonizing the conflicting interests of individuals in the society by maintaining equilibrium between the freedom of individuals on one hand and social welfare on the other.
v The study of jurisprudence as a separate branch of knowledge stated with the Romans. For them, jurisprudence meant “knowledge of law”. But in the Modern sense this meaning is too vague and general. Though the Romans in practice never confused law with morality or religion, in theory this distinction is hardly found to be in existence in earlier times. The definition and conception of jurisprudence by Roman jurists may appear to be vague or inadequate in the modern sense of the term, but the credit of recognizing jurisprudence as an independent branch of legal science for the first time goes to Roman legal philosophers, which eventually paved way to development of the subject in the present form.
- 3. Definitions of Jurisprudence
The term ‘jurisprudence’ has meant different things at different times. The variation is due to different methods of inquiry and approach to the study of the subject. It is for this reason that Julius Stone has described jurisprudence as “the lawyer’s extraversion” meaning thereby that jurisprudence involves examination of precepts, ideals and techniques of the law by lawyers in the light of disciplines other than law. The definition of jurisprudence as given by some of the eminent Jurists may be stated as follows:
3.1. Definition According to Ulpian
Ulpian defined jurisprudence as- “the observation of things human and divine, the knowledge of the just and the unjust.”
It connotes more or less the same meaning as the term ‘Dharma’ under the Hindu jurisprudence and covers the province of religion, ethics and philosophy. Thus, this definition is too broad and has wider connotation.
3.2. Definition According to Gray
Professor Gray has also defined jurisprudence more or less in the same manner. He opined that “jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principals involved in those rules.”
Thus, jurisprudence deals with that kind of law which consists of rules enforced by courts while administering justice. In other words, the laws of the jurist deal with man and seek to regulate external human conduct in the society. It does not concern itself with the inner beliefs of man imbibed in religious laws, which derive their authority from super human source which we can call as “God’. The sanction for their enforcement is spiritual reward or curse according to man’s deeds.
Stone has criticized Gray’s definition and said that Gray has failed to determine any province of jurisprudence rather he has reduced jurisprudence to merely a matter of arrangement of rules.
3.3. Definition According to Salmond
Salmond defines jurisprudence as “the science of the first principles of the civil law.” Thus, he points out that jurisprudence deals with a particular species of law namely; civil law or the law of the State.
The civil law consists of rules applied by courts in the administration of justice. He agrees with Gray in upholding that jurisprudence is concerned with only jurist’s law and it is not concerned with the laws of theologian and moralist although they also govern the conduct of man in society. The juristic laws regulate external human conduct only and not the inner beliefs f man in society. They are enforced by courts of judicial tribunals and carry with them sanctions ranging from capital punishment to a fine or even a mere admonition.
Salmond supports Holland and Austin in holding that jurisprudence is a science, that is, a systematic study of the basic principles of individual specific legal systems. He classified jurisprudence in ‘generic’ and ‘specific’ sense. The former includes the entire body of legal doctrines whereas the latter means only a particular branch of such doctrines. According to him, specific sense alone is the proper jurisprudence because it deals with general principles of a particular legal system.
Salmond observed that as the ‘science of law’ there may be three kinds of jurisprudence:
- Expository or systematic jurisprudence, which deals with the contents of an actual legal system as existing at any time whether past or present.
- Legal history, which is concerned with the legal system in its process of historical development.
- The science of legislation, the purpose of which is to set forth law as it ought to be. It deals with the ideal future of the legal system and the purpose which it may serve
Dr. Allen has objected to the Salmond’s definition on the ground that he has limited the scope of jurisprudence to a particular legal system. It is rather too narrow a view.
3.4. Definition According to John Austin
Austin calls jurisprudence as the “philosophy of positive law.”
He was the first jurist to make jurisprudence as a science. By the term “positive law” he meant “jus positivum”. That is law laid down by a particular superior for commanding obedience from his subjects. Thus, it is identical with “civil law” of Salmond. Austin pointed out that science of law is concerned with law ‘as it is’ and not ‘as it ought to be’, which he considers as the science of legislation.
Austin distinguishes law from those of customs and ethical abstract ideas. He preferred to divide jurisprudence into two parts, namely:
(1) General jurisprudence
(2) Particular jurisprudence
By “General jurisprudence”, he meant “the science concerned with exposition of the principles of nations which are common to all the systems of law” whereas “Particular jurisprudence”, consisted of the science of any such system of positive law as now obtains or once actually obtained in specifically determined nation.
This classification has been criticized by his critics as being unscientific and impracticable.
Professor Holland argues that it is vague to think of general jurisprudence. According to him, science is science and it cannot be classified as general or particular.
Salmond repudiated the notion of ‘General jurisprudence’ as conceived by Austin. According to him, a principle to become a topic of jurisprudence need not be, to use Austin’s words, “common to the systems of law.” Universal reception is not the sine qua non for a principle to qualify itself for treatment by the science of law. Salmond points out that even if the doctrine of judicial precedent or case-law system prevails only in England, the rule of Stare would be a fit subject for jurisprudence. He concludes that “Jurisprudentia generalis or general jurisprudence is not the study of legal systems in general but the study of the general or fundamental elements of a particular legal system.”
Professor Allen regards this statement as meaning that in Salmond’s opinion ‘Particular Jurisprudence’ is the only kind of jurisprudence properly so-called. No doubt, the sentence of Salmond above-quoted seems to warrant this view, but what Salmond really repudiates is only the notion of ‘general’ jurisprudence, such as that of Austin, which carries the misleading suggestion that principles germane to general jurisprudence are such only because they are common to the mature legal systems. That there can be a theoretical jurisprudence embodying the principles that are basic to any legal systems is plainly affirmed by Salmond.
Buckland criticized Austin’s concept of ‘general jurisprudence’; he observed that even those who professed this view including Austin himself, did not adhere to it in practice.
Dias and Hughes characterized Austin’s definition of general jurisprudence as full of ambiguities as it lacked amplitude and maturity in the prevailing legal system.
3.5. Definition According to Holland
Sir Thomas Erskine Holland defines jurisprudence as “the formal science of positive law.”
According to him, jurisprudence should only concern itself with the basic principles or concepts underlying any natural system of law. Holland defines positive law as a general rule of external human action enforced by a sovereign political authority. He calls jurisprudence as a ‘formal’ science as it deals not with concrete details but only with the fundamental principles underlying them.
To illustrate: there are fundamental principles in concepts relating to property, possession, contract, etc. in all the well-developed legal systems. Jurisprudence harmonizes these separate ideas under a basic concept and frames out a scheme of their purposes and evolves methods and principles for their retention without interfering in anyway with the working of specific rules in any given legal system.
Holland therefore rightly observed, “Jurisprudence deals with the human relations who are governed by rules of law rather than the material rules themselves.” Since jurisprudence deals only in a “formal or abstract way with those relations of mankind which are generally recognized as having legal consequences”, it is not a material science but rather a formal science of law
Professor Gray and Dr. Jenks, however, object to the Holland’s description of jurisprudence as a ‘formal science’. They pointed out that the real relation of jurisprudence to law depends not upon what law is treated, but how law is treated. Gray further stated that in fact jurisprudence is no more formal science than physiology.
Dr. Edward Jenks criticized Holland’s definition of jurisprudence as ‘formal science of law’ and remarked that jurisprudence cannot be said to be purely formal science because it cannot afford to ignore the social forces which give shape to law.
Dias and Hughes while criticizing Holland observation that the Holland’s analogy of jurisprudence with ‘geology’ is erroneous. Now the substances and forces became the same everywhere. Law is a social institution and structures of societies differ in their objectives, traditions and environments. Same is the view of Buckland who put a question, ‘how the principles of geology elaborated from the geology of England alone, hold good all over the globe.’ He further says, ‘law is not a mechanical structure like geological deposits.’
Salmond also criticized Holland for his rejection of particular jurisprudence. He supported Austin’s particular jurisprudence. He protests against attributing jurisprudence any quality whatever of generality or universality.
3.6. Definition According to Keeton
According to Keeton, “jurisprudence is the study and systematic arrangement of the general principles of law.” The definition seeks to explain the distinction between public and private laws.
3.7. Definition According to Dean Roscoe Pound
According to Pound, “jurisprudence is the science of law using the term ‘law’ in the juridical sense, as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice.”
He emphasized that there is an inevitable co – relationship between jurisprudence and other social sciences. Thus, he opined that “jurisprudence, ethics, economics, politics and sociology are distinct enough as the core, but shade out into each other.
”Pound suggested a separate branch of sociological jurisprudence, which is concerned with the influence of law on society at large. He firmly believed that behind every issue, there is something special; therefore, in the study of jurisprudence, the emphasis should be on the relationship between law and society.
3.8. Definition According to Dr. Allen
Dr. Allen defined jurisprudence as “the scientific synthesis of the essential principles of law.” Though this definition may seem to be abstract at a glance, it surely takes notice of the widening scope of law in its various facets.
3.9. Definition According to Radcliffe
He defined “jurisprudence as a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.” Thus, it is and amalgam of a number of other disciplines inter-woven together for the common good of the society.
3.10. Definition According to Paton
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.
3.11. Definition According to E. W. Patterson
E. W. Patterson defined jurisprudence “as a body of ordered knowledge which deals with a particular species of law.”
- 4. 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.
4.1. Remove the complexities of LAW
One of the tasks of jurisprudence is to construct concepts and make law more manageable and rational.
4.2. 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.
4.3. 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.
4.4. Training of mind
Jurisprudence trains the mind to solve the difficult legal provisions in legal way.
4.5. Grasp on the subject
It helps in knowing and grasping the language, grammar, the basics of treatment and assumption upon which subject rests.
4.6. Useful in art of pleading and legislation
It helps legislators and the lawyers the proper use of legal terminology. It relieves them of botheration, creation of defining again and again certain expressions e.g. right, duty etc.
4.7. To interpret LAW
It helps the judges and the lawyer’s in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation.
4.8. To study foreign LAW
It enables a lawyer to study foreign law because the fundamental principles are generally common to all systems of law.
4.9. Importance under the light of different jurists
4.9.1. 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.
4.9.2. By R.W.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.
- 5. Scope of Jurisprucence
There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads:
5.1. Early period
In the early period, Jurisprudence has been so defined as to cover moral and religious precepts and that has created confusion.
5.2. 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.
5.3. 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 in human state and society.
6. Purpose of Jurisprudence
The scope of jurisprudence has widened considerably over the years. It is generally believed that the scope of jurisprudence cannot be circumscribed. Broadly, speaking, jurisprudence includes all concepts of human order and human conduct in State and society. In other words, anything that concerns order in the State and society will be within the domain of jurisprudence.
Justice P.B. Mukherjee observed: – “Jurisprudence is both an intellectual and idealistic abstraction as well as behavioral study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to State and society.”
Radcliffe also held a similar view and stated that “jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.”
Jurisprudence involves certain types of investigations into law, an investigation of an abstract, general and theoretical in nature which seeks to lay bare the essential principles of law and legal systems. Elaborating the point further, Salmond observed – “In jurisprudence we are not concerned to derive rules from authority and apply them to problem; 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.” This makes the distinction between law and jurisprudence amply clear.
Thus, whereas in law we look for the rule relevant to the given situation, in jurisprudence we ask, what is for a rule to be legal rule, and what distinguishes law from morality; etiquette and other related phenomenon. It therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rule but to reflect on the rules already known.
Jurisprudence discloses knowledge of general ideas and principles of all legal systems, so it is called “eye of the law”. Certain fundamental conceptions such as negligence liability etc. have to be learned before provision of law relating to them can be understood, and jurisprudence teaches these fundamentals conceptions. Jurisprudence trains the mind into legal ways of thought. It teaches the proper use of legal terms, and is called grammar of law. The study of jurisprudence helps law makers by providing them brief and clear terminology. It enlightens students and helps them in adjusting themselves in society without causing injuries to the interest of other student.
- 7. Conclusion
Jurists thus have given different definitions of the term ‘jurisprudence’. However, no one single definition can be said to be universally acceptable. Perhaps, the exact connotation of this term is not possible because as a method, jurisprudence deals with concepts which regulate human conduct in accordance with the values, needs and goals of every society. These values, needs and goals etc. vary from time to time and from society to society as also within the same society at different times and hence the meaning and scope of jurisprudence also varies.
It is well known that ‘law’ being a dynamic concept, it changes with the evolution of society under different socio-economic and political conditions. The rapid changes in modern times have given rise to new problems and issues which are to be tackled by law through pragmatic approach in interpreting law. While doing so, the modern jurisprudence has to take into consideration the social ethos and changing patterns of the society which immensely widens its scope as a science of law.
In the ultimate analysis Holland’s definition of jurisprudence as the formal science of positive law seems to be more acceptable. The term ‘positive law’ is concerned with an inquiry into the social relations regulated by the rules of law which are imposed by the State and enforced by the law – courts. Jurisprudence is a ‘formal science’ because it only deals with the purposes, methods and ideas of the legal system and not with its concrete details.
Austin’s definition discussed above is also relatively correct. Austin has at least widened the scope of jurisprudence by classifying it into two categories, ‘General’ and ‘Particular’ and by pointing out that the jurisprudence includes the study of principles common to all States and also the analysis of these principles in a specific determined nation.
To sum up jurisprudence is a study, knowledge understanding, philosophy or research of the fundamental legal principles. It is any thought or writing about law and its relation to other social sciences such as economics, psychology, philosophy, sociology, politics and ethics etc. It digs into the historical past and attempts to create the symmetry of a garden out of the confusion of different conflicting legal system. It consists in whatever law thinks, says and does in any field of human society.
- Dr. N. V. Paranjape – “Studies in Jurisprudence & Legal Theory”
- Prof. [Mrs.] Nomita Aggarwal – “Jurisprudence (Legal Theory)
- V. D. Mahajan – “Jurisprudence and Legal Theory”
- P.S.A. Pillai – “Jurisprudence and Legal Theory