Jurisprudence
Contents
1. Definition of Jurisprudence
2. Classification of Jurisprudence
4. Significance of the Study of Jurisprudence
5. Relationship of Jurisprudence with other social sciences
Answer the following questions
Introduction to Jurisprudence
1. Definition of Jurisprudence
The term jurisprudence has been derived from two Latin words: Juris and prudentia. Juris means :Law and prudentia means wisdom, knowledge, philosophy, science. Science means systematic study. Philosophy means knowledge gained through application of mind.
It is It is defined as a study of the fundamental legal principles including their philosophical , historical and sociological bases, and, an analysis of legal concepts.
According to Ulpian jurisprudence is the knowledge of things divine and human, the knowledge of the just and unjust’. Jurisprudence according to Ulpian is essentially concerned with justice as it is the science of just and unjust. Just means fair, impartial and equal. Unjust means the opposite. However, this definition is abstract and vague.
According to Jeremy Bentham jurisprudence refers to a set of philosophical principles, or interpretive theories, for making sense of laws. He classified jurisprudence into “expository” and “censorial jurisprudence”. The former ascertains “what the law is”, and the latter, “what it ought to be. He says that expository jurisprudenc is jurisprudence in true sense.
According to Austin jurisprudence is the “philosophy of positive law.” By “positive law” he meant “jus positivum” that is law laid down by a particular superior for commanding obedience from his subjects.
Austin pointed out that science of law is concerned with law ‘as it is’ and not ‘as it ought to be’. He preferred to divide jurisprudence into two parts, namely:
(1) General jurisprudence (“the science concerned with exposition of the principles of nations which are common to all the systems of law” )
(2) Particular jurisprudence “Particular jurisprudence”, consisted of the science of any such system of positive law as now obtains or once actually obtained in specifically determined nation.
According to Holland jurisprudence is “the formal science of positive law.” He writes that jurisprudence should only concern itself with the basic principles or concepts underlying any natural system of law. It is formal science because it deals with formal or abstract principles not with concrete or material science. He defines positive law as a general rule of external human action enforced by a sovereign political authority.
According to Keeton, “jurisprudence is the study and systematic arrangement of the general principles of law.” It is the study of the general principles of law common to all legal systems. It does not study the rules but principles.
Dean Rosco Pound defines “jurisprudence as the science of law. He uses 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.
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.”
Salmond defines jurisprudence as “the science of the first principles of the civil (law of the state) law.” The civil law consists of rules applied by courts in the administration of justice. Salmond 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.
Fitzgerald has given wider definition of jurisprudence. He writes "The name given to 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."
Jolowicz: ‘A general theoretical discussion about law and its principles, as opposed to the study of actual rules of law.’ It means:
• Jurisprudence studies the principles and concept of law.
• It is the study, knowledge and science law.
• It is the study of general concept of law,
• It studies the basic concept of law
• It is also called the philosophy of law,
2. Classification of Jurisprudence
Salmond classifies jurisprudence based on the nature of the study. He observed that as the ‘science of law’ there may be three kinds of jurisprudence:
a) Expository or systematic jurisprudence, which deals with the contents of an actual legal system as existing at any time whether past or present.
b) Legal history, which is concerned with the legal system in its process of historical development.
c) 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.
Austin classifies jurisprudence into: a) General jurisprudence (b) 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.” It explains the principles applicable to all legal systems. “Particular jurisprudence”, consisted of the science of any such system of positive law as now obtains or once actually obtained in specifically determined nation. However, the concept of particular jurisprudence has been criticized by other jurisprudence on the ground that jurisprudence cannot be confined to the study of a particular system.
3. Scope of Jurisprudence
There is, somehow, a consensus on the meaning of jurisprudence. However, there is no unanimity about the scope of jurisprudence. Jurisprudence is the study or knowledge of law. It does not study the contents of law but the basic principles and concept of law. It is a general theoretical discussion about law and its principles.
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.
Naturalists, or proponents of natural law, insist that the rules enacted by government are not the only sources of law. They argue that moral philosophy, religion, human reason and individual conscience are also integrate parts of the law. Naturalists recognise the existence (and the need for) man-made law, but regard this as inferior to natural law.
However, positivists argue that there is no connection between law and morality and the only sources of law are rules that have been enacted by a governmental entity or by a court of law.
According to Bentham jurisprudence can be classified into censorial (study of ought) and expositorial (study of is). He says that expositorial jurisprudence is jurisprudence in real sense.
According to Salmond jurisprudence can be analytical (study of positive law), historical (study of historical development of law) and philosophical (study of ethical law or law as it ought to be)
Salmond's explanation is wider than the explanation given by other jurists.
The definition given by Julius Stones clarifies the scope of jurisprudence. He says “Jurisprudence is the lawyer’s extraversion. It is the lawyer’s examination of the precepts, ideas, and techniques of the law in the light derived from present knowledge in disciplines other than the law.”
The term 'lawyers extraversion' means the application of the idea and knowledge of law by a lawyer when he starts practicing in the field. A lawyer who is better in understanding the impact of law on society is supposedly a great extrovert and better framer of arguments.
Dean Roscoe Pound who propounded the theory of law as a ‘social engineering’ pointed out that jurisprudence is closely interlinked with ethics, economics, politics, and sociology which though distinct enough as the core, are shade into each other. Dias believed Jurisprudence as any thought or writing about law rather than a technical exposition of a branch of law itself.
Thus, in conclusion it can be said that presently, the scope of jurisprudence is expanding. Jurisprudence has been interdisciplinary subject. It has relationship with social sciences like political science, economics and the medical science. It is also related with psychology and philosophy. Equally important is the historical study of law.
4. Significance of the Study of Jurisprudence
The value of jurisprudence lies in examining the consequences of law and its administration on social welfare and suggesting changes for the betterment of laws. Dias writes that 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. It means that practical application of law is not possible without having basic understanding on jurisprudenc.
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.
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. Study of jurisprudence helps in the interpretation of law.
Therefore, it is frequently said that jurisprudence is the eye of law and the grammar of law. This statement is sufficient to explain the importance of the study of jurisprudence. Jurisprudence functions in law as the eye do in human body. It is said so because interpretation of law is very difficult it is very difficult. It throws light on the basic ideas and the fundamental principles of law like property, ownership, rights and duties. These fundamental or general principles of law are common to all systems of law. Therefore, the person who has basic knowledge on jurisprudence can easily understand foreign law.
Jurisprudence offers an overall view of the law, a unified and systematic picture, in which the nature of legal institutions and theories becomes morecomprehensible. Austin viewed jurisprudence as providing a ‘map’ of the law which presents it as ‘a system or organic whole’.
5. Relationship of Jurisprudence with other social sciences
Jurisprudence is the study of law and law is one of the sub-systems of the whole social sytem. Law regulates the conduct of individuals living and forming societies. Law is an important social phenomenon and jurisprudence is a branch of social science. Therefore, jurisprudence is tha social science and related with other social sciences. The relationship of jurisprudence with other social sciences can be studied under the following headings:
Jurisprudence and Sociology
This branch is based on social theories. It is essentially concerned with the influence of law on the society at large particularly when we talk about social welfare. G.W. Paton gave 3 obvious reasons as a relation between law and sociology:
• It enables a better understanding of the evolution and development of law;
• It provides great substream for an identity of law commensurate with human needs and social interests;and
• Provides objectivity to legal interpretation which is need of the hour.
Jurisprudence and Psychology
Psychology is the study of human mind. No human science can be described properly without a thorough knowledge of Human Mind. Psychology has a close connection with Jurisprudence and study of human minds of people of a society, necessary for legislation. Tort crime and breach of contract are factor affirming the commission of a crime or wrongs. To declare something bad or good remains in conflict, between Individual and society. Relationship of Psychology and Law is established in the branch of Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving questions such as the motive behind a crime, criminal personality, reasons for crime etc.
Jurisprudence and ethics
Ethics is that branch of knowledge which deals with human conduct and lays down the ideals of human behaviour. It is closely related with morality and public opinions. Jurisprudence is the science of law and law is concerened with the regulation of external human conduct. Both ethics and law aim at creating peaceful, moral and harmonious society. Effective implementation of law depends on moral principles. The relationship of ethics with law can be viewed from three perspectives. First ethics is the basis of law. Important ethical principles are incorporated in law and therefore, it can be taken as the source of law. Secondly, it can be test of law. Law cannot go against ethical principles. Ethics is the end of law since law aims at creating an ethical society.
Law cannot go against public morality and the aim of legislation is to create Ideal Moral Code. Natural law school strives for inclusion of moral component in law. Jurisprudence believes that Legislations must be based on ethical principles. It is not to be divorced from Human principles.Ethics believes that No law is good unless it is based on sound principles of human value. A Jurist should be adept in this science because unless he studies ethics, he won’t be able to crit
Jurisprudence and Economics
Economics refers to the science of wealth. Both, jurisprudence and economics aim for the betterment of the lives of the people. In recent days it has been realized that law and economics are closely related. Law is regarded as the facilitator of economic development as law creates environment of investment. Recently developed economic jurisprudence emphasizes that a nation's economy and its legal system are intimately related.
Economics aims for such betterment through the satisfaction of the needs and wants of the people, while jurisprudence aims for the betterment of the lives of the people through the enactment of welfare legislations. There are various factors of crimes and criminal behaviours. Among them, economic factors have been considered as one of the major factors in the increase of crime in developed as well as poor society. Likewise, law plays very important role in protecting people from economic exploitation. Labour jurisprudence has been developed for protecting labours by providing social justice.
Jurisprudence and History
History is the systematice narration of the past events, whereas, jurisprudence is the science of law.Law has not come into existence overnight, as a matter of fact, it has developed through ages. Historical jurists like Savigny say that law like language gradually evolves and is shaped by religion, custom, habits, traditions etc. of the people and thus bears a national character. Historical jurist Savigny writes that law grows with the growth, and strengthens with the strength of the people. Formulation of law taking into account of the spirit of people is not possible without the deep knowledge of the history of the country.
History helps jurisprudence in digging out the origin and evolution of different legal rules. Historical events shape the law. Development of Law for the administration of justice becomes sound if we know the history and background of legislation and the way law has evolved. Therefore, there is a close relationship between jurisprudence and history.
Jurisprudence and politics
Law regulates the relationship of citizens and human conduct in a politically organized society. The rules recognized and applied by the state declare authoritatively what a man may and may not do. Thus, there is a deep connection between politics and Jurisprudence. Positivist jurist Austin defines jurisprudence as the philosophy of positive law. By “positive law” he meant the law that is laid down by a particular superior for commanding obedience from his subjects.
According to Friedmann, jurisprudence is linked to philosophy at one end and to political theory on the other. The concept of law, as we know it today, originated with the concept of state. Political Science is the science of the state. The analytical school of jurisprudence considers law as the command of the sovereign. This ‘sovereign’ is what is known as the state. The various political theories regarding the origin of the state have been used by jurists to formulate theories regarding the origin, nature and functions of law.
Group Discussion
Discuss following subjects based on the learning of the session
Group A Explain the concept of jurisprudence and define it
Group B Discuss the classification of jurisprudence from different perspectives
Group C Discuss the the significance of the study of jurisprudence for investigating officer
Group D Explain the scope of jurisprudence and the causes of expansion of its scope
Gropu E Explain the and Relationship with other social sciences
Review of the Session
Answer the following questions
1. What do you mean by 'jurisprudence'? Explain
2. Classify jurisprudence and discuss whether it is proper to classify jurisprudence into general and particular?
3. Explain the significance of the study of jurisprudence for investigating officer.
4. Explain the scope of jurisprudence.
5. Discuss the relationship of jurisprudence with other social science.
6. How is jurisprudence related with psychology?
7. Discuss the relationship of jurisprudence with economics.
8. What is the relationship of jurisprudence with ethics?
9. Discuss the relationship of jurisprudence and politics.
Reference Materials
Prof. Nomita Agrawal (2019, Jurisprudence (Legal Theory), 11th ed. Central Law Publication
RWM Dias(2017), Jurisprudence, 5th ed. LexisNexis
LB Curzon(1993), Lecture Note on Jurisprudence, Cavendish Publishing House
W. Friedmann(1916) Legal Theory, 5th ed. (South Indian Edition)Sweet and Maxwell