“Jurisprudence in the modern sense of term owes its origin to western legal thoughts”- Explain.

What is Jurisprudence?

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. [1]

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. [2]

  1. Information received from: http://en.wikipedia.org/wiki/Jurisprudence.
  2. 2.         Cotterrell, R. (2003). The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed. Oxford: Oxford University Press.

Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups:

  • Problems internal to law and 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.

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. [3]

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 or what does it do or what are the means for doing it.

Jurisprudence – its meaning”

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.

  1. 3.        Cotterrell, R. (2003). The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed. Oxford: Oxford University Press.

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. [4]

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. [5]

Origin of jurisprudence

  • Indian jurisprudence

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.

  1. John Witte, Jr: A Brief Biography of Dooyeweerd, Hendrik van Eikema Hommes, Inleiding tot de Wijsbegeerte van Herman Dooyeweerd (The Hague, 1982; pp 1–4,132). Redeemer University College.
  2. Information received from: http://en.wikipedia.org/wiki/Jurisprudence.
  • Romans jurisprudence

 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.

Roman civil law, and the Church’s canon law which drew upon it, was originally a mere amalgam of past decrees, arranged by topic. These decrees often contradicted each other, and it was the work of legal scholars to determine which aspects of each decree was still binding. In general, a more recent law nullified an old law only when it explicitly contradicted the old law or carried implications that would render the old law void.

In some civil law countries, such as Italy, there is an expectation that the lower courts will interpret the law in the same way as the Supreme Court, but there is no strict requirement that they will do so. Indeed, there would be no way to enforce this, as case law does not constitute a formal precedent; only the statutes passed by legislators are binding. [6]

  1. Information received from:  http://www.arcaneknowledge.org/histpoli/commoncivil.htm

&  Information received from: http://en.wikipedia.org/wiki/Jurisprudence.

  • European jurisprudence

In the European tradition there are two great systems of jurisprudence: common law and civil law. Common law jurisprudence, which prevails in England and most former members of the British Empire, derives its authority from common judicial practice and received traditions.

Common law is not necessarily codified or written, but like the English constitution, it is a pre-existing reality that magistrates must respect. Civil law, which derives from Roman law, holds sway over most of Europe and Latin America. In its modern form, it is always codified, but more essential to civil law is the notion that judges are bound by statutes, and they may only rule on particular cases without establishing general rules. Thus common law and civil law jurisprudence entail very different roles for the judiciary in shaping the content of law.

In the nineteenth century, most European nations sought to codify their laws, so there would be no ambiguity as to which laws were in force. From the Napoleonic Code of 1804 to the Pio-Benedictine Code of 1917, all civil and canon law in continental Europe was organized into written codes.

Although this system had the eminent advantage of making the law clear, uniform and rationally intelligible, it placed plenary jurisdiction in the hands of the state, whose statutes could supersede even the most immemorial custom. Thus ancient usage could no longer act as a check on the whims of those now living, as do the customs enshrined in common law. The state had free rein to mold society as it saw fit; even the constitutions of Europe were written as legal codes, to be amended by legislatures much like a statute.[7]

  1. Information received from:  http://www.arcaneknowledge.org/histpoli/commoncivil.htm

&  Information received from: http://en.wikipedia.org/wiki/Jurisprudence.

  • ·       French jurisprudence

In civil jurisprudence nations, by contrast, a judge’s decision only applies to the particular case at hand. In France, for example, a decision often consists of little more than a statement of the verdict, followed by citation of the relevant statutes, without any elaborate interpretation. Other courts in future cases are expected to appeal directly to the statutes, not a previous court’s interpretation of the statute.

DEFINITIONS OF JURISPRUDENCE:-

he 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:

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.

 

[9] Willis, John. “Common Law,” The Catholic Encylopedia, Vol. 9. New York: Robert Appleton Co., 1910.

 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 principles 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. [10]

 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.

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. [10]

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.

[10] Willis, John. “Common Law,” The Catholic Encylopedia, Vol. 9. New York: Robert Appleton Co., 1910.

  • ·        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.

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. 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. [11]

Historical Development of Civil Jurisprudence

The Romans developed a comprehensive body of civil law that would prove to be a more lasting legacy than their world empire. Virtually every nation of Europe has felt the influence of Roman law, either in judicial institutions or in the content of laws. [12]

 [11] Willis, John. “Common Law,” The Catholic Encylopedia, Vol. 9. New York: Robert Appleton Co., 1910.

[12]  Joseph Raz, The Authority of Law (1979) Oxford University Press

As with our discussion of common law, we are not concerned with the specific content of Roman law, but rather its principles of jurisprudence. [13]

Roman civil law, or ius civile, began as a sort of common law, being a body of traditional legal customs that were not committed to writing at first. At least since the early Republic, the civil law was recognized as the ius populi, or law of the people, since it was determined by the popular assemblies, especially the assembly of centurions (comita centuriata).

In contrast with the Athenian system (but similar to other Greek city-states), the Roman public assembly had real legislative power. Nonetheless, the early Roman concept of law (ius), like the Greek nomos, derived principally from the people’s sense of what is right or just. Since law embodied traditional moral ideas about justice, it was only natural that the preservation of the law was at first entrusted to the care of priests. [14]

Although civil law expressed the will of the people, the Romans recognized its authority only in the public sphere (ius publicum), and not in the private sphere. Private law (ius privatum) regulated disputes between families and individual citizens. In practice, this could involve vigilantism, as a wronged family might kidnap a son from a rival family, thereby forcing the latter to agree to arbitration. Within the household, there was no law, public or private, save the will of the pater familias, who ruled his wife, children, retainers, slaves and property with absolute authority for as long as he lived. [15] Thus the civil law was severely circumscribed in its scope, and Roman society was not nearly as legalistic as we might expect.

 [13] Willis, John. “Common Law,” The Catholic Encylopedia, Vol. 9. New York: Robert Appleton Co., 1910.

[14]  Joseph Raz, The Authority of Law (1979) Oxford University Press

[15] Information received from:  http://www.arcaneknowledge.org/histpoli/commoncivil.htm

Around 450 BC, the customary law was codified in the Twelve Tables, which included what we today would call criminal and civil law, as well as judicial procedures and religious law. The content of this codified Roman law appears to have been heavily influenced by Athenian law, yet the conduct of Roman jurisprudence would differ greatly. At first, the Twelve Tables were entrusted to the priests, the traditional caretakers of the law. In the early third century BC, the laws were made accessible to all citizens, so everyone could know which laws were currently in effect. The body of law consisted of formal legal pronouncements (lex) and other written legal materials (ius scriptum), as well as unwritten custom (ius non scriptum, or mores). [17]

In the Roman Republic, laws were proposed by magistrates (executive officials) and approved by the popular assembly. Further, the praetors had their own proper lawmaking authority (ius praetorianum, later called ius honorarium) in virtue of their office. A praetor’s legal edicts were included in his instructions to judges (iuris dictum) issued at the start of his term. The praetor’s edicts and other instructions bound the judges for the duration of his term.

In the modern era, civil jurisprudence was codified as statutory law, leaving no room for ambiguity regarding which laws were in effect, while the role of legals scholars diminished. Modern codes include the Prussian law code of 1794 and the highly influential Napoleonic code of 1804. Modern nation-states of continental Europe entrusted lawmaking entirely to a constitutional legislature, while jurists had reduced influence, being able only to interpret existing statutes, rather than determine which statutes are in effect. [18]

[17] Information received from:  http://www.arcaneknowledge.org/histpoli/commoncivil.htm

[18] Jurisprudence”. West’s Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005.

Even canon law followed this trend of codification, as the Corpus Iuris Canonici (supplemented by the edicts of more recent popes and councils) was replaced by the Pio-Benedictine Code of 1917, an unambiguous code of law. [19] The constitutions of modern European states tend to be lengthy documents, with a level of detail characteristic of statutes. Thus the European judiciary typically has little power other than to apply the written law to a particular case, without purporting to establish any general rule or precedent. All law-making power is in the hands of the legislature.

Common Law Jurisprudence in the United States

The introduction of modern legislatures has had a different effect on common law jurisprudence than it has on civil jurisprudence. The nations of continental Europe codified civil law in a way that reduced the influence of jurists and enhanced the power of the legislature. In England, however, the common law courts had already developed a relatively unambiguous body of law through the rule of precedent, creating a potential for conflict with modern legislatures. Indeed, when Parliament first acquired legislative powers, it was forbidden to change or limit the common law by statute. Since juridical common law antedated the legislative authority of Parliament, it was permitted to remain as a check on the power of Parliament, much as the nomoi of Athens were beyond the purview of the general assembly. The exact relationship between the legislative and judicial authorities would be further developed in the English colonies that would become the United States of America. [20]

 [19] Willis, John. “Common Law,” The Catholic Encylopedia, Vol. 9. New York: Robert Appleton Co., 1910.

[20] Information received from:  http://www.arcaneknowledge.org/histpoli/commoncivil.htm &

Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)

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.

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.

Reference

  • Cotterrell, R. (2003). The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed. Oxford: Oxford University Press.
  • Friedrich Carl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham A. Hayward trans., 1831)
  • GHOSH, J., 2000. The jurisprudence of the European Court on tax and the fundamental freedoms. The Corporate Tax Review, 3(1), pp.43-70.
  • H. L. A. Hart, The Concept of Law (1961) Oxford University Press, ISBN 0-19-876122-8.
  • Information received from:  http://www.arcaneknowledge.org/histpoli/commoncivil.htm
  • Information received from:

http://en.wikipedia.org/wiki/Jurisprudence.

  • John Witte, Jr: A Brief Biography of Dooyeweerd, Hendrik van Eikema Hommes, Inleiding tot de Wijsbegeerte van Herman Dooyeweerd (The Hague, 1982; pp 1–4,132). Redeemer University College
  • Joseph Raz, The Authority of Law (1979) Oxford University Press
  • “Jurisprudence”. West’s Encyclopedia of American Law. Ed. Jeffrey Lehman, Shirelle Phelps. Detroit: Thomson/Gale, 2005.
  • Putney, Albert H. Popular Law Library, 2nd ed., Vol. 1. Chicago: Cree Publishing Co., 1910.
  • Willis, John. “Common Law,” The Catholic Encylopedia, Vol. 9. New York: Robert Appleton Co., 1910.v

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