Introduction to Jurisprudence ( Concept, Definitions, Scope, Benefits of Jurisprudence, Difference between Jurisprudence and Legal Theory)
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Introduction to Jurisprudence
The study of Jurisprudence started with the Romans.
The word “Jurisprudence”
is derived from the Latin word “Jurisprudentia”
which means “knowledge of Law.”
In the Latin language “Jure”
or “Juris” means law and “prudentia” means “knowledge”.
Therefore when we combine both the words together then
Jurisprudence means knowledge of the law which is applied for practical
solutions to the problems of the society by making new laws.
The term “Jurisprudence” has, at different times, been used
in different senses. Sometimes it has been used for the term “law”, sometimes
it has been regarded as “philosophy of law” and sometimes it has been regarded
as “a science of law”.
The jurisprudence, both as a philosophy or science of law, is
concerned with the regulation of human conduct so that long term needs,
expectations and goals of a society can be realized.
Why it is difficult to define the Jurisprudence?
It is very difficult to define the jurisprudence.
Jurists of different times had given different definitions of
the term “Jurisprudence”.
The basic difficulty arises to define the jurisprudence is
that as the societies all over the world have different cultures, social needs
and morals, so it is very difficult to give a single definition of the term
jurisprudence which is acceptable universally.
Moreover, in the Eastern societies notion of law, duty,
property and justice is different from the western societies, therefore, no
general definition of the term jurisprudence can be made applicable to all
groups of societies.
However several attempts were made to define the term “Jurisprudence”.
Austin’s Definition of Jurisprudence
Austin was the first jurist who said jurisprudence a science.
He defines “Jurisprudence” as “Science of law which deals
with analysis of the concepts or its underlying principles”.
According to Austin in the study of jurisprudence we analysis
the various concepts and principles of positive law.
In the opinion of Austin the appropriate subject to
jurisprudence is a positive law i.e. law as it is (existing law).
According to Austin, Jurisprudence is not a moral philosophy
but it is a systematic study of actual law which is different from moral, ideal
or natural law.
In this way Austin brings a new era in the field of
Jurisprudence and many of his propositions still hold good.
He determined the “Province
of Jurisprudence”.
According to him, the science of jurisprudence is concerned
with the positive law i.e. the law made by the king/state.
According to Austin, Jurisprudence has nothing to do with the
goodness or badness of law.
Austin further divide the jurisprudence into two classes viz,
general jurisprudence and particular jurisprudence.
According to Austin “General Jurisprudence” is the philosophy of the positive law.
According to him, general jurisprudence means the science which is concerned
with the principles, motions and distinctions which are common to the different
systems of law. The concept of rights and duties, ownership, possession,
personality, property etc. comes within the study of general jurisprudence.
Particular Jurisprudence is confined only to the study of any
actual system of Law or any portion of it.
According to Austin the only practical jurisprudence is the
particular Jurisprudence.
Let us take an example to understand the difference between “General
Jurisprudence” and “Particular Jurisprudence”. ‘Ownership” is one of the
fundamental legal concept which is known to all systems of law. It is the
function of Jurisprudence to explain its character and determine the conditions
under which it may be acquired, transferred or extinguished. General
Jurisprudence discharges this function without special reference to any
particular system of law. Particular Jurisprudence would also do the same thing
but it would do the same but with reference to a particular system of law.
Gray and Allen agrees with Austin’s classification of jurisprudence
into general and particular jurisprudence. But Gray prefers the term “Comparative Jurisprudence” in place of
General Jurisprudence.
Criticism to the definition of Austin
Salmond and Jthro Brown, repudiate the concept of General
Jurisprudence as alleged by Austin. Salmond is opposed to the concept of
“General Jurisprudence” because according to Salmond jurisprudence is a science
of Civil Law and it cannot be general.
Jurists of the Historical School also denied the existence of
“General Jurisprudence”. According to them law is evolved like language,
cultural and social atmosphere of a particular society, which is according to
the local factors e.g. political, geographical, religious, historical etc. These
local factors differ from country to country and since such local factors
differ from country to country, consequently only particular jurisprudence is
possible and not general jurisprudence.
However contrary to the view of Salmond and jurists of
Historical School, Holland
objects to Austin’s Concept of “ Particular Jurisprudence”. He argues that if
Jurisprudence is a science then like all sciences it must be general and not
particular.
Conclusion of Austin’s Definition
The analytical approach of Austin was understandable and
practical.
It attracted the attention of the Jurists in other countries
as well.
Many English Jurists working on the lines of Austin developed
the study of Jurisprudence further and the subject came in its present shape.
Holland’s Definition of Jurisprudence
Holland defined Jurisprudence as “ the formal science of
positive law.”
Holland criticized the division of Jurisprudence into “General”
and “Particular” given by Austin.
According to Holland Jurisprudence is a formal science like
all sciences it must be general and cannot be particular.
He pointed out that the science of Jurisprudence deals with
regulations of mankind which are regarded as having legal consequences, but not
with the rules which creates those relations.
For Holland (Like Austin) Jurisprudence is concerned with the
positive law.
According to Holland the study of Jurisprudence is not
concerned with the law as “it ought to be” nor with the objects of law but with
law as “ it actually is”.
He further adds that “ Comparative Law collects and tabulates
the legal institutions of various countries and that jurisprudence set forth an
orderly view of the ideas and methods which have been variously realized in
actual systems.
Criticisms of Holland’s Definition
Holland’s “formal science” itself was criticized by the
latter writers.
Salmond also criticized Holland for his rejection of
particular jurisprudence. Salmond was in favour of Austin’s Particular
Jurisprudence.
Holland could not demarcate the boundary of the subject
properly.
Salmond’s Definition of Jurisprudence
Most popular among the Indian students is the definition of
Jurisprudence given by Salmond.
Salmond defines Jurisprudence as “ the science of law”. By law he means the law of the land or
civil law.
According to Salmond, Jurisprudence can be defined in two
senses
(1) In the “Generic Sense”
Jurisprudence can be defined as “Science of Civil Law.” AND
(2) In the “Specific Sense” Jurisprudence
can be defined as “the science of the first principle of Civil Law.”
Salmond agrees both with Austin and Holland only to the
extent that Jurisprudence is “a science, systemic study of basic principles of
legal systems.”
For Salmond, Civil Law means the law of the land or law of
the State which is different from the general law. Civil Law is the law which
is administered by the Court in the administration of justice.
According to Salmond, Jurisprudence in the specific sense
includes theoretical jurisprudence in which it deals with the fundamental
principles and conceptions of law without reference to any particular legal
system.
Generic Jurisprudence as visualized by Salmond do not deal
with the study of legal systems in general but with the general or fundamental
elements of a Particular legal systems.
According to Salmond in Generic
Sense Jurisprudence can be divided into three kinds which are:-
• Expository/Legal/Systamatic
Jurisprudence:- It
deals with the contents of an actual legal system as existing at any time which
may exist in present or in past.
• Legal
History:- It deals
with the historical process by which any legal system came into existence in
the present or in the past.
• The Science
of Legislation:- It
deals with the ideal future of the legal system and with the purposes for which
it exists.
Salmond in its “Specific Sense” divided the subject of
Jurisprudence again in 3 branches i.e. analytical, historical and ethical.
This division of Jurisprudence corresponds to the 3 division given in generic
sense. For a comprehensive treatment of the subject all the 3 branches must be
studied.
• Analytical Jurisprudence:- The purpose of analytical
jurisprudence is to analyse the first principles of law.
• Historical Jurisprudence:- The purpose of Historical
Jurisprudence is to see the origin and development of the first
principles of law.
• Ethical Jurisprudence:- The purpose of Ethical
Jurisprudence is to deal with the law from the point of view of its ethical
significance and adequacy.
According to Salmond, complete scientific treatment of any
body of law involves the study of these categories mentioned above.
Criticisms to the
Definition
The definition of Jurisprudence by Salmond had been
criticised on the ground that he has narrowed down the field of Jurisprudence
by saying that it is a science of Civil Law, and hence it covers only
particular legal system.
The scope of Jurisprudence is not limited to the law which is
administered by the Court but it also includes study of other social facts.
Gray’s Definition of Jurisprudence
Gray has defined Jurisprudence as Science of law, the
systematic arrangement of rules followed by the courts and principles involved
in these rules.
According to Gray,
Jurisprudence is of three kinds:-
• Particular Jurisprudence: It is the science of law of a
particular community;
• Comparative Jurisprudence : It is the comparison of the law of
two or more communities;
• General Jurisprudence: It is comparison of all legal
systems of the world.
Criticism to the definition of Gray
Stone has criticised Gray’s
definition of Jurisprudence and said that Gray has failed to determine
any province of Jurisprudence rather he has reduced jurisprudence to merely of
arrangement of rules.
Prof. Allen’s Definition of Jurisprudence
Prof. Allen was a famous English Jurist.
He defined Jurisprudence as “ the scientific synthesis of the
essential principles of law.”
According to Prof. Allen Jurisprudence is a study in which
all the essential principles of law are scientifically combined together.
Though this definition of Jurisprudence given by Allen may
seems to be theoretical one but it gives very true view of the nature of the
subject and takes into notice the widening scope of law in its various aspects.
The rules which are not considered as law may become the law
in the coming time because the tests which were laid down to determine whether
a given rule is law or not, are changing very fast and giving place to new ones
which may include many other rules which were not included in law.
Which is the best definition of Jurisprudence from
other Jurists?
From all the definitions discussed from lecture no.2 to the
present lecture the definition of Jurisprudence given by Austin is relatively
more correct.
Austin has 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.
Benefits of Jurisprudence
Jurisprudence is basically a theoretical subject but it has
also a practical and educational value. The practical value of Jurisprudence
can be made clear from the benefits of Jurisprudence which is as under:-
• Remove the complexities of Law: One of the most important task of
Jurisprudence is to understand the concept of law and to remove all types of
difficulties in understanding the concepts of law.
• Answer the new problem: Jurisprudence also help the people
to solve the various problems faced by the society by making new
legislations/laws keeping in view the present and future social needs of the
society.
• Grammar of Law: Jurisprudence is the grammar of
law. As it throws lights on the basic ideas and fundamental principles of law.
• Training of mind: Jurisprudence trains the mind of a
person with the help the person becomes able to solve the difficult legal
provisions of law in legal way.
• Useful in art of pleading and
legislation:
Jurisprudence helps the lawyers and legislators in the proper use of legal
terminology. It saves them from the botheration of defining again and again
certain expressions. For example: rights, duties, possession etc.
• To interpret the Law: Jurisprudence helps lawyers and
Judges to interpret the laws passed by the legislatures by providing the rules
of interpretation.
• To understand the Foreign Law: Jurisprudence enables a lawyer to
study and understand the foreign law because the fundamental principles of law
are common to all systems of law.
Scope of Jurisprudence
Jurisprudence in its nature is entirely a different subject
from other social science. The reason for this is that it is not a codified
subject but a growing and dynamic subject having no limitation in itself. Its
inquiry system is of different status from other subjects. Thus the jurisprudence has no limited scope
being a growing subject. The study of Jurisprudence includes political, social,
economic and cultural idea. There are some views of this subject which are
known as Schools of Legal theory.
There are 5 Schools of Jurisprudence which are mentioned
below :
• Philosophical School or The Natural
Law School: Natural Law or The Philosophical School focus entirely on the
laws of nature. This School of Jurisprudence believes that there are laws
inherent in nature which are common to all societies. This School believes that
law is rational and reasonable and it purposes that laws arise logically from
the morals present in the society. Therefore, immoral conduct will naturally be
regarded as against the law. Notable Jurists from this School are Grotius,
Immnauel Kant and Hegal.
• Analytical School: This School of Jurisprudence is
also known as the positivist School of Jurisprudence because it considers law
as it is and not as what it should be. According to the thought of this School
a link between law and morality is not necessary and the law is made by the
Government/Legislation. The analytical School of Jurisprudence does not
consider morality and customs as a part of the law. Notable Jurists from this
School are Bentham and Austin.
• Historical School: This School of Jurisprudence thinks
that law is the result of the continuous development of society. This theory
says that law is based on the general consciousness of the people. Leading
Jurists from this School are Savigny, Sir Henry Maine and Burke.
• Sociological Jurisprudence :
Sociological Jurisprudence arose as a reaction to positivism. According to this
School of Jurisprudence law is not an isolated phenomenon but is a part of the
social reality. This School has emerged as a result of combination of Various
Jurist thoughts. The supporter of this School linked law with other social
disciplines and treated it as combination of ‘ psychology, philosophy,
economics, political science, sociology etc.
According to this School, the State is not the
creator of rights but only formulates it. So Laws have come directly from the
society. Main exponents of this School include Montesquieu, Auguste Comte,
Herbert Spancer, Duguit and Rosco Pound.
• Realist School : According
to this School of Jurisprudence law consists of pronouncements of the Courts.
Oliver Wendell Holmes is regarded as the spiritual father of this School.
Salmond regarded law as the practice of the Courts and he
said that even though law is an expression of the will of the State but in
reality it is not the Parliament but the Court which expounded the law.
Prominent Jurists of
this School are Holmes, Gray, and Jerome Frank.
But it is important to note here that yet this School is not
a formal school of Jurisprudence.
Conclusion
This classification of Jurisprudence provide a rough
classification of ideas and it is not proper to limit the scope of
Jurisprudence on the basis of this classification.
In analyzing the legal
concepts, we must try to present them against a background of social
development and changing economic and political attitude.
Difference between Jurisprudence and Legal Theory
• ‘Jurisprudence’ is a wider term than
‘Legal Theory’.
• Both Jurisprudence and Legal Theory
are concerned with the general nature of the law.
• The distinction of Jurisprudence and
Legal Theory is illusive as the contents are inseparable.
• The word “Jurisprudence” is derived
from the Latin Word “Jurisprudentia” which denotes “ the knowledge of law”; in
which “ Juris” means “law” and “prudentia” means “knowledge/skill”.
• Many Jurist have their own definition
of Jurisprudence, however if we could consolidate their definitions then it may
be defined as “ the study of fundamental legal concepts and principles which
influence and change human conduct from time to time and analysis of legal
concepts.”
• The term ‘legal theory” has been, for
the first time, coined by W.Friedmann in 1945 in his work “ Legal Theory”.
Legal Theory has no definition per se.
• Legal Theory is concerned with Law as
it exists and functions in society and the way in which law is created and
enforced.
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