JURISPRUDENCE: MEANING

The word Jurisprudence originated from the Latin word ‘Jurisprudentia’, which means either:
• knowledge of the law, or
• legal theory, or
• study of the law, or
• skill of law.
The word ‘juris’ means law and ‘prudentia’ mean knowledge, science or skill. The word is first attested in English in 1628, at a time when the word prudence had the now obsolete meaning of “knowledge or skill in a matter”.
Jurisprudence = law + science, knowledge or skill
Thus Jurisprudence signifies knowledge or science of law and its application. In this sense, Jurisprudence covers the whole body of legal principles in the world.
Lord Tennyson calls it the ‘TOPIC OF LAWLESS LAW’ since it is not derived from any legislative statute or state assembly. Moreover, jurisprudence discusses related principles such as rule of law, need, and importance of law, etc.
FATHER OF JURISPRUDENCE: JEREMY BENTHAM
Bentham was the first one to study law. He divided his study into two parts,
• Expository Approach: This approach stated that law is to be followed ‘as it is’. Law is the command of the sovereign, hence this command should be followed without any discourse.
Examination of Law as it is- Expositorial Approach- Command of Sovereign.
• Censorial Approach: This approach stated that law is ‘as it ought to be’. It focused on the morality of law and its latent objectives. Instead of law being merely an instrument of power and enforcement, it should also reflect what is right in terms of ethics.
Examination of Law as it ought to be- Censorial Approach- Morality of Law.

DEFINITION OF JURISPRUDENCE

It is very difficult to define term ‘jurisprudence’, However, several attempts were made in this context to define the term. Some of the definitions of the term “jurisprudence” given by various eminent jurists as under –

Ulpian (Roman Jurists)

“ Jurisprudence is the knowledge of things divine and human, the science of just and unjust.”

The definition given by Ulpian is wide and broad enough because it includes the term Dharma under Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy.

Austin

Austin was the first jurist to make jurisprudence as a science. Austin occupied himself with “expository” Jurisprudence. (His work consisted mainly at a formal analysis of the structure of English law).

He defines ‘jurisprudence’ as

“the philosophy of positive law.”

Explanation: He opines that the appropriate subject to jurisprudence is a positive law i.e. Law as it is (existing law). In other words, jurisprudence is not a moral philosophy but it is a scientific and systematic study of the existing, actual and positive law has distinguished from natural, ideal or moral law.

Classification: Austin divides jurisprudence into two classes:

Particular Jurisprudence = confined only to the study of any actual system of law or any portion of it. Particular Jurisprudence is the science of any system of positive law actually obtaining in a specifically determined political society.
General Jurisprudence = science which is concerned with the exposition of the principles notions and distinctions which are common to all system of law. General Jurisprudence is a province of pure abstract jurisprudence to analyze and systematize the essential elements underlying the indefinite variety of legal rules without special reference to the institution of any particular country.

Particular Jurisprudence is a science of particular law. General and particular jurisprudence differs from each other in this scope but not in its essence. Generally it takes data from the system of more than one state while particular takes the data from a particular system of law.

Both are positive only.

Example: Possession is one of the fundamental legal concepts recognised by all system of law.

Criticism:

Austin’s definition criticised by Salmond and Holland and other Jurists on the ground that it is not proper and appropriate to classify as the general Jurisprudence and Particular Jurisprudence.
Jurisprudence is the integral social science and the distinction between general and particular jurisprudence is not proper.
We are dealing with different systems of law and not different kinds of jurisprudence.

Holland

An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as,

“ Jurisprudence is the formal science of positive law”

Explanation: According to him jurisprudence should only concern itself with the basic principles of concepts underlying in any natural system of law.

According to Holland, formal science is that which deals with the various relations which are regulated by legal rules than with the rules themselves which regulate those relations. For Holland, jurisprudence is a formal science as opposed to material science. Material science supplies the facts, while the formal science of jurisprudence elucidates the meaning of the relations or prescriptions regulated by law.

Further, for Holland, jurisprudence is concerned with positive law- it is not concerned with law as it ‘ought to be’ nor with the objects of law but with law ‘as it actually is.’

Criticism:

Many eminent jurists have criticized the definition of Holland that jurisprudence is the formal science of positive law. It is not free from defects. The question arises what is a formal science? Holland himself explains that by the term ‘formal’ he means that

jurisprudence concerns itself with human relations which are governed by the rules of law rather than the material rules themselves, for the latter are the subject of legal exposition, criticism or compilation rather than jurisprudence.

Salmond also criticized Holland for rejecting particular jurisprudence.
Gray has criticized Holland and says that material rules of law are like clay and relation governed by these rules are like bricks. As bricks cannot be made without clay, therefore, there can be no relationship if there is no material rule

Salmond

Salmond defines Jurisprudence as,

“ Jurisprudence is the science of the first principle of the civil law.”

According to Salmond Jurisprudence can be defined in two senses

‘Generic Sense’= Science of Civil Law.

‘Specific sense’ = The science of the first principle of civil law.

The words which are used by Salmond in his definitions may be explained as under:

Law: Law is the body of principles recognized and applied by the state in the administration of justice.
Civil law: The term ‘civil law’ is derived from the Latin word “Civitas” which means state. Thus, civil law means law made by the state. It means the law of the land as opposed to other bodies of rules to which the name of law has been extended by analogy.
Science: According to Salmond, jurisprudence may be defined as the science of civil law.

Classification: He divides jurisprudence in the generic sense into:

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.

He divides jurisprudence in the specific sense:

Analytical jurisprudence: The purpose of which is to analyse, without reference either to their historical origin or development or to their ethical significance or validity the first principles of civil law.
Historical jurisprudence: The purpose of which is to deal with the general principles governing the origin and development of law. It is the history of the first principles and conceptions of the legal system.
Ethical jurisprudence: The purpose of which is to deal with the law from the point of view of its ethical significance and adequacy. It is concerned not with the intellectual content of the legal system or with its historical development but with the purpose for which it exists and the measure and manner in which the purpose is fulfilled.

Criticism :

Salmond’s Definition has been criticized on the ground that he has narrowed down the field of jurisprudence by saying that it is a science of civil law and hence covers only particular legal system.
Dr. Allen has criticized 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.

Keeton

Keeton Defines jurisprudence as

“ the study and systematic arrangement of the general principles of law.”

Roscoe Pound

Dean Roscoe Pound defines jurisprudence as

“ 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”.

Dr K. C. Allen

Jurisprudence is the scientific synthesis of all the essential principles of law.

G.W. Paton

Jurisprudence is a particular method of study, not the law of one country, but of the general notion of law itself.

Julius Stone

“Jurisprudence is the lawyer’s extraversion. It is the lawyer’s examination of the precepts, ideals and techniques of the law in the light derived from present knowledge in disciplines other than the law”.

Explanation: lawyer’s extraversion not only includes practicing lawyer’s but also judges, Jurists, professor, students who study the law, etc.

Classification:

Analytical = study the principles of law in analytical manner
Sociological = also includes historical jurisprudence, deals with relation of society with law
Theories of Justice = includes ideals (economic, social and political justice) and techniques (codification of law by legislature)

Criticism: Both sociological and historical jurisprudence are different from each other.

Mixing of law with other disciplines: Austin, Salmond and Kelson separated the law from other subjects but Julius Stone mixed the law with other disciplines.

Gray

According to John Chipman Gray

“ jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the Court and the principles involved in those rules.”

Criticism: Stone has Criticised 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.

Dr M.J. Sethna

Jurisprudence is a study of fundamental legal principles including their philosophical, Historical and sociological bases and analysis of legal concepts.

H.L.A Hart

A legal system consists of primary and secondary rules. These rules explain the nature of law and provides key to the science of jurisprudence. He viewed

Jurisprudence as a science of law in a border perspective by co-relating law and morality.

Laski

Jurisprudence is an eye of law.

Prof Dias & Hughes

“ Any thoughts and writing about law other than technical exposition of breach of law itself.”

Example: Philosophical jurisprudence and Economic Jurisprudence

Criticism: The one has neither time and nor capacity to study other subjects.

ORIGIN

The word ‘Jurisprudence’ originates in the 1620s, in ‘systematic knowledge of the law’ from the legal thoughts of French Jurisprudence (17^th Century). Directly came from a Late Latin word ‘jurisprudentia’, which means ‘science of law’ or ‘knowledge of the law’ or ‘skills of law’, where ‘Juris’ means law and ‘prudentia’ means ‘knowledge or skills’ and was first attested in 1756. It has a long history of evolution from the beginning from the classical Greek period to Modern times; it covers all sorts of legal principles of the world.

However, this concept was known to the ancient Indian legal philosopher as ‘Dharma’ which contained principles and moral precepts aiming at ensuring the welfare of the society especially by the regulation of human conduct. With the confining of Mughals rule, followed by British Rule for almost two centuries, the ancient India legal system of India lost its moorings and the indigenous laws were called the personal laws of the ‘Gentoos’. The British gradually introduced their well-developed system of law in India.

During the formation of the Modern era the word “jurisprudence” in common law in England this term is being used in common sense to include the aspects of the law. However, in the early decades of the 19^th Century with the theories propounded by Jeremy Bentham (father of the natural school of jurisprudence and as well as jurisprudence also) was an English philosopher, jurist, and social reformer and his disciple Sir John Austin the term “jurisprudence” acquired a definite meaning. Bentham differentiated between the study of law ‘as it’ (Existing Law) is an ‘as is ought to be’ and called them ‘Expositorial’ and ‘Censorial’ jurisprudence respectively. Later, Sir John Austin, a legal Philosopher concerned himself mainly with the formal analysis of English law and its related concepts, which still continue the basic content of English Jurisprudence. Austin defines It as the “philosophy of positive law”.

IMPORTANCE OF JURISPRUDENCE

Fundamental significance is of utmost importance under the field of the study of jurisprudence.

Jurisprudence consists primarily of analysis and the process for building and clarifying the fundamental principles of law. Jurisprudence is not about making the new rules; rather, it focuses on current rules in the structure and jurisprudence, and its ideas will help lawyers develop a different, much better procedure and rules while practicing.
Jurisprudence can support students too. In students life it has its own scholastic value. Jurisprudence not only focuses on primary laws but also addresses the social impact of those laws. Jurisprudence incorporates both theoretical and logical study of legal principles.
Jurisprudence frequently reflects on the law and its importance for society. There is discussion of justice and the articulation of law. It deals with the fundamental principles of the in the eye of law. It helps a person understand the thoughts of law and its divisions.
Jurisprudence is the grammar of law, too. It helps a person understand the language and the legal grammar. Compared with ordinary language, legal language and grammar are somewhat different, so Jurisprudence teaches a lawyer’s mind so that he can use proper legal terminology and phrases.
Jurisprudence provides interpretation rules and, as a result, helps judges and lawyers understand the importance of laws passed by lawmakers.
Jurisprudence and its relationship with other social sciences provide students with a broad spectrum of understanding how law can be related and linked to other disciplines.
Jurisprudence teaches people that the answer to a legal problem is not hidden in the past or awaiting in the future, rather than hidden around them in the fundamentals of legal studies in the answer to a legal issue.
Jurisprudence also discusses political and legal rights, and how the system can strive to balance them.

NATURE OF JURISPRUDENCE

Jurisprudence analyses conceptions of law. It also seeks to figure out what the basic concepts of law are. It not only analyses the already defined laws but also analyses and sets the foundation for new rules. It is the product of Jurists ‘and Philosophers’ thought. They have the right to view, analyze and comment about the legal system. As such, it can be viewed as an analytical exercise that does not have immediate practical application. It sets the tone for legislative change.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale constantly shifts. It is not derived from any legislative act or state assembly. It gives us knowledge about the basic principles of law like – meaning of right, duty, possession, property, remedies etc.It gives us knowledge about sources of law. It clears concept of law. It is not a substantive or procedure law. Lord Tennyson calls it, Lawless subject of law. Various concepts like Origin of law, need of the law, the utility of the law are studied by various Jurists. This study of concepts of law is called Jurisprudence.

Jurisprudence offers answers to multidimensional legal questions. It helps in overall growth of society. It enhances the capacity of the lawyer to justify rational reasoning. It blesses or hastens a lawyer’s skill with a sense of philosophy, ethics and morality which helps them move forward in their discipline. There are also occasions when there are loopholes in the rules; Judges choose the path of Jurisprudence at those periods. Jurisprudence is the theoretical foundation of the law, and without it; it is not possible to enforce the law in effect.

SCOPE OF JURISPRUDENCE

It speaks of the relationship between the law, culture, man, nature and other social sciences. Jurisprudence denotes a logical and analytical study of the law. It deals with legal logic, bodies of law and legal frameworks. The subject matter of Jurisprudence holds much importance in the vast field of Law.

Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale constantly shifts. It is not derived from any legislative act or state assembly. Lord Tennyson calls it, Lawless subject of law. Various concepts like Origin of law, need of the law, the utility of the law are studied by various Jurists. This study of concepts of law is called Jurisprudence.

Like this jurisprudence includes all concepts of human orders, human conduct in state and society. Connecting on the scope of jurisprudence, Justice P.B. Mukherjee observed, “Jurisprudence is both an intellectual and idealistic abstraction as well as behaviour study of a man in society. It includes political, social, economic and cultural idea. It covers the study of man in relation to state and society.”

Jurisprudence is a part of history, a part of economics, a part of sociology, a part of ethics and a philosophy of life.

We can say that scope of jurisprudence is wide & broad.

It likewise manages the ideal component and motivation behind the law inside its extension. It amalgamates all the methodologies and schools of the statute. It is an integrative law. Current law channels on the fields of the sociologies and of theory; it delves into the chronicled past and endeavors to make evenness of a nursery out of the rich bedlam of clashing overall sets of laws.
The jurisprudence is explicitly identified with Common Law nations and Anglo-American overall sets of laws. Legal Theory is related to the mainland’s overall set of laws. Over the period, the statute has broadened its degree to cover additionally the zone shrouded in Legal Hypothesis.
The extent of jurisprudence isn’t restricted to the investigation of one or a few overall sets of laws. It identifies with the relative investigation of various general sets of laws proposing codification and lawful changes through the enactment.
Directive principles of state policy are always considered unenforceable but then too they are obeyed by every individual and should be obeyed by the state too so they are made obligatory in this way too as they are fundamental in governing a country. In this way, the scope of jurisprudence is not restricted and enforcement of a concept is also necessary.
Jurisprudence is the eye and grammar of law since it illuminates the essential thought and key standards of law. Its study helps the legal professional in developing a logical outlook.
It trains critical thinking of the mind of the student and helps to find out fault and better use of legal terminology and expressions.
It helps lawyers in practical work and also tells them how to tackle new problems through the knowledge and implementation of Jurisprudence as well as develops their alternative channel of legal thoughts.
It also helps Lawyers and Judges in ascertaining the true meaning of law and develops their rational thinking by which they can analyze rules of interpretation.

JURISPRUDENCE AND ITS RELATIONSHIP WITH OTHER SCIENCES

Sociology and Jurisprudence

The sociological approach to Jurisprudence is easily the most important relation between Jurisprudence and other sciences. The reason why it is so important is that the sociological approach is much more concerned in the working of law rather than its fundamentals and basics.

Sociological jurists want to know the effect of law in our society and how law and society work together. Sociological Jurisprudence sees the law as an institution.

Sociological Jurisprudence thinks that laws can be made, transformed and changed according to the needs of society. Basically, it means the law can be adjusted as per societal needs.

2. Economics and Jurisprudence

Economic studies focus on wealth and its distribution in society with the aim to regulate the lives of people of a State. Similarly, the law also focuses on regulating the lives of the people through rules and regulations. Initially, the relationship between Jurisprudence and Economics was ignored for a long time until jurists realised the importance of economics in law.

Normative Jurisprudence talks about the stable economic allocation of resources in a society and how it shall reflect consumer preference.

3. History and Jurisprudence

Historical Jurisprudence mainly forms a significant part of legal history as a subject. Law has been around for centuries, and as we know Jurisprudence is the study of law so if we don’t trace back the origin and development of laws, then we are missing out on a theoretical aspect of Jurisprudence.

Development of law through the years gives us an insight, and it helps us to research more about it. Historical Jurisprudence sheds light on the influences that led to the development of a particular law.

4. Ethics and Jurisprudence

Ethics talks about the fact that how the law should be in an ideal state. Ethical Jurisprudence is focused on the fact of how law can be used as an instrument to affirm positive ethics.

Ethics and Jurisprudence state that laws should be based on ethical principles and it should not be treated otherwise. Ethics helps to criticise laws which are unethical in nature.

5. Politics and Jurisprudence

Political Jurisprudence states that the laws made for people shall be unbiased. There should be no hidden political agendas in law. If a law is politically motivated, then it is clear that such laws shall have no place in our society.

Laws must be influenced by the political environment of a country and that is why countries develop their own constitution which showcases the current social and political needs of a country.

6. Jurisprudence and Psychology

Psychology is the science of human minds and their behaviour. The rationale of this subject is to understand the logic and reasons of extreme ends and ranges of behaviour in an individual. The causes of certain behaviour and the impact of it on the body is the subject matter of this area of study. Jurisprudence also in a way studies human action. It studies law and law is formulated and comes into picture keeping in mind the implications of that law on a community.