This article is written by Aamina Rafeek of 10th Semester of B.Com LLB (Hons.) of Government Law College, Ernakulam, an intern under Legal Vidhiya
Jurisprudence is a logical and philosophical study of law. It aims at understanding the objectives and functions of law in a society by studying its evolution through various time periods. It is well known fact that law is a dynamic constant that undergoes constant changes with the changes in societal notions under different socio-economic-cultural-political conditions. The rapid changes in modern times have given rise to new issues which have to be tackled through pragmatic approach in interpreting the law. While doing so, modern jurisprudence has to take into account the social ethos and changing patterns of society which immensely widens its scope as a science of law. This paper imparts a basic idea on the meaning, origin, importance, content and nature of jurisprudence in simple and understandable language.
Jurisprudence, society, law, human conduct, reasoning, philosophy, science, positive law, reasoning, legal theory, legal concepts.
INTRODUCTION- WHAT IS JURISPRUDENCE?
Laws ensure the stability of a society. It refers to the agreed set of rules that regulate the conduct of institutions and individuals of a society in order to establish and maintain a harmonious environment. In most simple terms, jurisprudence is said to be the “study of law”. It does not mean the study of statutes or branches of law like torts, contract, crime, property etc., but the study of basic principles behind development of these statutes and branches of law. The word Jurisprudence has been derived from the Latin term ‘Jurisprudentia’ which means “knowledge of law”. It is a vast area of study and consists of several ideologies and theories about how laws have been made and recognized in a community. It is that branch of knowledge that focuses on understanding the roots of what has today evolved to be laws and its various applications. Jurisprudence deals with legal reasoning, legal institutions and legal systems.
In a nutshell, following are some of the uses of Jurisprudence,
- It helps to understand the nature of law.
- It helps to understand the different sources of law
- It helps to understand the elements of law
- It helps to understand the general principles on which the actual rules of law are based.
DEFINITION OF JURISPRUDENCE
Various legal jurists have defined jurisprudence in diverse ways. 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.
Ulpian, the Roman jurist, defined jurisprudence as the observation of things human and divine, the knowledge of just and unjust.
Professor Gray has defined “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”.
John Austin calls jurisprudence as “the philosophy of positive law”. According to him laws are commands laid down by a sovereign political authority to govern the members of a society and is backed by sanctions in the event of non-compliance.
According to Radcliffe, “Jurisprudence is a part of history, a part of economics and sociology and philosophy of life”. Thus it is an amalgam of a number of other disciplines inter-woven together for common good of the society.
The modern writers generally agree that the term ‘jurisprudence’ does not merely connote a knowledge of law, but it covers a field much wider than this. As Paton rightly pointed out, “jurisprudence is a particular method of study, not of the law of any one country but of the general notion of law itself”.
ORIGIN OF JURISPRUDENCE
Jeremy Bentham is known as the father of jjurisprudence.
The origin of jurisprudence is primarily attributed to Rome and India. Ancient Indian jurisprudence is mentioned in various Dharmaśāstra texts, starting with the Dharmasutra of Bhodhayana. The practice of Dharma enabled citizens to inculcate a sense of discipline in their actions in a society. It was regarded as commands that lead a man to material and spiritual salvation. But the modern jurisprudence does not have such a wide connotation and is limited to ‘vyavahara’, which according to Yajnavalkya means those rules which determine the judicial proceeding or controversies.
Under the Roman Empire, schools of law were created, and practice of the law became more academic. 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. The definition and conception of jurisprudence by Roman jurists may appear to vague or inadequate in the modern context, but the credit of recognizing jurisprudence as a separate field to be studied in depth goes to Roman philosophers and jurists.
FEATURES OF JURISPRUDENCE
- Jurisprudence is the study of fundamental legal principles which may be philosophical, historical or scientific.
- Jurisprudence is called both art and science.
- It analyses, clarifies, clears overlapping of legal rules
- It provides interdisciplinary approach in the social context.
- It lays down rules of interpretation of law.
- It helps in amendments in existing legal systems by comparing and studying other prevalent systems of law.
IMPORTANCE OF JURISPRUDENCE
It is to be noted that jurisprudence is not concerned with making of new laws; rather it focuses on existing laws in the system. Theories of jurisprudence prove to be fruitful to lawyers as it facilitates in forming a better and much more improved practice of law.
For students, jjurisprudence not only focuses on primary legal rules, but it also talks about the social impact of those laws. Jurisprudence combines logical and theoretical analysis of various legal concepts which widens the understanding of the interpretations of law for students. Jurisprudence and its relationship with other social sciences provide a wide horizon to students in understanding how law can be related and connected with other disciplines. Jurisprudence also talks about political rights and legal rights and how the system can strive to balance them out.
Jurisprudence also emphasizes on the social value of laws in our society. It talks about fairness and the articulation of law. Regarded as the “eye of law”, it helps a person to understand the reasoning of law and its various branches and classifications.
CONTENTS OF JURISPRUDENCE
There are varying opinions among jurists and philosophers regarding the exact contents of jurisprudence. The generally accepted contents of jurisprudence are follows:
- Legal Concepts
- Legal Theory
Sources – Source always gives us an understanding of the objective behind the formation of something. In case of law, it imparts authenticity. It is well known that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources. Therefore they obviously form the content of jurisprudence. The recognized sources of law are customs, precedents,
Legal Concepts- Jurisprudence analyses legal concepts such as rights, property, ownership, possession, obligations, acts, negligence, legal personality and the related issues. Although all these concepts are equally studied in ordinary branches of law, jurisprudence gives a comprehensive picture of each concept as a whole. It helps in understanding law with more clarity and depth.
Legal Theory- Legal theory seeks to co relate law with other disciplines such as economics, sociology, psychology, ethics, religion, politics etc. and pursue its study in a wider socio-legal perspectives. It is concerned with law as it exists and functions in the society, and manner in which law is created and enforced and also the influence of social opinion on law and each other.
It is therefore necessary that while analyzing legal concepts, an effort should also be made to present them in the background of social developments and changing economic and political attitudes.
NATURE OF JURISPRUDENCE
Jurisprudence may be regarded as a philosophy of law dealing with the nature and function of law. This analyses of jurisprudence is gaining much acceptance in the modern era due to the fast paced evolution of society in terms of its values and ideals.
Jurisprudence binds law with other fields of study such as economics, politics, sociology, psychology history, ethic etc. It is closely inter related with other social sciences since all of them are concerned with human conduct in a society. Julius Stone explained the functioning of jurisprudence in terms of functioning of other social sciences and stated “Jurisprudence is the lawyer’s extra-version. It is the lawyer’s examination of the precepts, ideals and techniques of law in the lights derived from present knowledge in disciplines other than law”.
Jurisprudence and ethics
Ethics is the field which lays down the ideals of human conduct in a society. It is closely related with morality which is a varying concept in different communities. Since law is considered as an effective tool to regulate the human conduct in a society, jurisprudence is concerned with positive morality. “positive morality” does not mean good behaviour but ensuring good conscience in a population through coercive methods such as sanctions.
It is to be noted that not all unethical practices in the eyes of society are punishable. For e.g- lying is unethical but is not punishable by law as such, except under statutorily prescribed circumstances. Also, not all punishable acts are unethical. For e.g- Riding motorcycle without helmet is not unethical but calls for penalty under law.
Generally speaking, laws are not exclusive from accepted human values as it is an instrument that regulates human actions in a society.
Jurisprudence and Economics
Economics is the science which focuses on effective utilisation of resources for production and distribution of wealth in a society. Disparity in wealth is one of the major factors leading to crimes. There are many laws which aims to regulate financial activities in a society. Jurisprudence and economics therefore hold a common ground as their goals are aligned to improve the standard of life and ensure the welfare of mankind. Law acts as a means to achieve this end.
Jurisprudence and Psychology
Human mind drives human actions. Psychology is the study of mind and behaviour. It plays an important role in law as it helps to decipher the reasons of a crime, motivating factors, criminal behaviour etc. Since jurisprudence and law are concerned with human conduct which is controlled by the human brain to a large extent, the relation between psychology and jurisprudence is crucial. ‘’Mens rea” is an indispensable element to constitute a crime and determine the guilt of an alleged offender. Understanding the psychology of offender is essential to decide the punishment. Modern reformative techniques of punishment such as parole, probation, admonition, pardon are all based upon psychological traits of an offender.
Jurisprudence and History
Knowledge of past is essential to appreciate the present legal system and resolve the flaws therein to devise better laws for a changing society. Jurisprudence and history are interlinked. Study of jurisprudence includes study of history in order to better understand the culture and customs of a society, background of a statute and its objectives, context of precedents etc.
History helps jurisprudence to go deep into origin and evolution of different legal terms. The whole historical school of jurisprudence is dedicated to analyse law in its historical perspective and has immensely contributed to trace the evolution of law and legal systems in different countries.
For e.g – The codification of Hindu personal laws in India was a result of historical analyses of the uncodified Hindu customs and practiced norms of ancient India and its transition throughout.
Jurisprudence and Sociology
It is a wide area of study which highlights all aspects of interaction between law and society. The purpose of law as conceived today is to ensure social justice as upheld by Article 39 of The Constitution of India. Sociology helps to prevent social wrongs and bring in social reforms. The modern prison reforms and correctional services for the treatment of offenders have been devised keeping in mind the sociological factors of offenders.
Jurisprudence and Politics
In his book ‘Legal Theory’, Friedman has remarked that on one end jurisprudence is linked to philosophy as legal systems are built on fundamental principles and values. On the other end jurisprudence is linked to political theory as laws and legal systems are shaped by political institutions and government policies.
State is a well-defined territory with a settled population, governed by a sovereign authority accepted by the population. Governance is through the medium of law. Political science deals with principles governing the governmental organization. Politicians elected by citizens constitute the legislature which is the law making body. This shows the relation between political science and jurisprudence. They often overlap as they both study the organization and functioning of society and the state.
CASE LAWS RELATED TO JURISPRUDENCE
- T.K. Gopal v. State of Karnataka– the supreme court studied the theories of punishment and observed that in the matter of punishment for an offence committed by a person there are many approaches to the problem. On the commission of offence three types of reactions are generated- the first being ‘punitive approach’ which regards the criminal as a dangerous person who must be inflicted severe punishment to protect society. Second is the ‘therapeutic approach’ which regards criminal as a sick person with diseased psychology who requires treatment. Third is ‘preventive approach’ which seeks to eliminate conditions from society which were responsible for crime causation.
The court asserts on therapeutic approach to reform the offender considering all factors that lead him to crime.
2. Shiromani Gurudwara Parbandhak Committee Amritsar Vs, Somnath Das & Others– The Supreme Court held that Sri Guru Granth Sahib, the central body of worship in Gurudwara is a legal person. The Court rejected the plea to compare Guru Granth Sahib with the Hindu Idol because Idol-worship is contrary to Sikh religious tenets but at the same time asserted that the Sikhs have the same regard and respect for Guru Granth Sahib as the Hindu have for an Idol. And further the Court pointed out that Gurudwara and the Guru Granth Sahib are not separate legal entities, because the existence of the Gurudwara is because of the installation of the Guru Granth Sahib which is its nucleus.
3. R. Hanumaiah v. State of Karnataka– it was held that for establishing adverse possession three elements are necessary; continuity, adequate publicity and peaceful and undisturbed possession for the prescribed period.
4. Montreal Tramways Co. V. Leveille– the Canadian Court granted damages to a female infant for the deformity caused to her while in mother’s womb.
5. Yogendra Nath Naskar v. Commissioner of Income Tax– It was held that an idol is a juristic person capable of holding property and of being taxed through its shebaits whom is entrusted with the possession and management of its property.
6. Merry v. Green – the plaintiff purchased a bureau at an auction. In a secret drawer there was some money belonging to vendor. He took the money and misappropriated it. He was convicted for larceny because when he took possession from vendor he had no animus with regard to the money. So, in the eyes of law money still is the possession of vendor and not plaintiff.
7. Kochukunju Nair v. Koshy Alexander– Supreme Court observed that right to ownership imports three essential rights- right to possess, enjoy and dispose. If an owner is wrongly deprived of possession, he has right to be put in possession. All the three essentials are satisfied in the case of a co-owner also.
Jurisprudence is the deep analysis of a legal concept or a law from different perspectives which help lawyers and judges to make a real sense of its essence and purpose. The law can mean more than one thing, and this exploration is a direct effect of the study of jurisprudence.
Holland observed “the ever-renewed complexity of human relations call for the increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible.” from which inference can be drawn that jurisprudence throw light on the basic ideas and the fundamental principles of law in a given society. Therefore some of the jurists call it “eye of law”.
- Jurisprudence, WIKIPEDIA- THE FREE ENCYCLOPEDIA, https://en.wikipedia.org/wiki/Jurisprudence
- Arkodeep Gorai, Introduction to Jurisprudence, https://blog.ipleaders.in/introduction-jurisprudence/ , IPLEADERS
- DR. N.V. PARANJAPE, STUDIES IN JURISPRUDENCE AND LEGAL THEORY, 11-12 (8th ed. 2016)
- PATON G.W, A TEXTBOOK OF JURISPRUDENCE (3rd ed. 1964)
- RADCLIFFE, THE LAW AND ITS COMPASS 92 (Northwestern University Press 1960)
- Markandey Katju, Ancient Indian Jurisprudence, BANARAS HINDU UNIVERSITY (2010)
- W. FRIEDMAN, LEGAL THEORY (London Steven & Sons Ltd. 1949)
- JULIUS STONE, PROVINCE & FUNCTION OF LAW, 25, (1947)
 RADCLIFFE, THE LAW AND ITS COMPASS 92 (Northwestern University Press 1960)
 PATON G.W, A TEXTBOOK OF JURISPRUDENCE (3rd ed. 1964)
 Markandey Katju, Ancient Indian Jurisprudence, BANARAS HINDU UNIVERSITY (2010)
 Yajnavalkya Smriti, Chapter IV, 55
 Arkodeep Gorai, Introduction to Jurisprudence, https://blog.ipleaders.in/introduction-jurisprudence/ , IPLEADERS , (last visited October 3, 2023)
 Id. at 6
 DR. N.V. PARANJAPE, STUDIES IN JURISPRUDENCE AND LEGAL THEORY, 11-12 (8th ed. 2016)
 Id. at 9
 JULIUS STONE, PROVINCE & FUNCTION OF LAW, 25, (1947)
 Id. at 9
 Id at 9
 W. FRIEDMAN, LEGAL THEORY (London Steven & Sons Ltd. 1949)
 T.K. Gopal v. State of Karnataka, (2000) 6 SCC 168
 Shiromani Gurudwara Parbandhak Committee Amritsar Vs, Somnath Das & Others 1984(2) SCC 600
 R. Hanumaiah v. State of Karnataka (2010) 5 SCC 203
Montreal Tramways Co. V. Leveille (1933) 4 DLR 337 (Canada)
 Yogendra Nath Naskar v. Commissioner of Income Tax, AIR 1969 SC 1089
 Merry v. Green (1841) 7 M&W 623
 Kochukunju Nair v. Koshy Alexander (1999)3 SCC 482