Jurisprudence deals with why the questions, rather than what the questions are. For example, the law might state that the death penalty will be imposed on anyone who intentionally kills’s any person. The why question involves asking whether intent should be a requirement? Or whether the death penalty is ever appropriate? Or not….
Jurisprudence in its nature is entirely a different subject from other social science. Jurisprudence is the study of the philosophy of law or the knowledge of the law and its applications. The reason for this is that it is not a system but a growing and systematic subject having no limitation on itself. Jurisprudence can cover the law as a whole. As we know the law cannot be static it changes with the change in development in society. The definition of law is probably sufficient for today but it may be concise to a confined definition in the future.
This viewpoint has been put forward by Professor Robert Keeton. He says “…an attempt to establish a satisfactory definition of law is to seek, to confine jurisprudence within a Straight Jacket from which it is continually trying to escape…”
In the history of times, this subject allows us to a flexible approach to all sorts of legal questions provided with a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society though it has no limited scope being a growing subject. But there is a difference of opinion about the nature of jurisprudence. It is called both art and science. But to call it the science of law would be more accurate. The reason for this is that just as in science we draw conclusions after making a systematic study by inventing new methods.
Jurisprudence might ask “what are the rules for deciding if a person has caused harm to another”, legal philosophy might ask “what is causation” or “what does it mean to be a person”?
The word ‘Jurisprudence’ originates in the 1620s, in ‘systematic knowledge of the law’ from the legal thoughts of French Jurisprudence (17th 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 19th 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”.
Jurisprudence in a limited sense means the illustrations of general principles upon which the acted rules are based. It concerned with rules of external conduct. Its primary function is to impart us to the knowledge of “law”. The term Law is used in an abstract sense… it implies the discipline and profession concerned with the customs practice and rules of conduct of a community that recognized as binding by the community. Enforcement of the body of rules is through controlling human conduct. The law is treated in the number of articles in a number of different ways. Here it is not in the sense of legislation or statutes instead of in a sense of principles underlying such laws.
The term Jurisprudence has meant different things at different times. It is for this reason Julius Stone named jurisprudence as ‘lawyer’s extra-version’. Here are the some eminent jurists’ and their definitions:
John Austin (legal philosopher) [1790-1859]:
“Law is a command issued from a sovereign power to an inferior and enforced by coercion”
Austin was the first jurist to declare jurisprudence as a science. He defines ‘it as “the philosophy of positive law”(positive Law). He believes that the appropriate subject to jurisprudence is a positive law i.e law as it is (existing law). However, the term Philosophy is misleading. Philosophy is the theory of things, man and divine, while Jurisprudence only deals with human-made law. In other words, It is not moral philosophy, but it is a scientific and systematic study of the existing, actual, and positive law that has distinguished from the natural, ideal, or moral law.
Ulpian a Roman Jurist defines jurisprudence as “Jurisprudence is the knowledge of things divine and human, the science of just and unjust.”
Jamini has defined “Dharma” as “that which is signified by a command and leads to a man’s material and spiritual salvation.
Cicero defines jurisprudence as the philosophical aspects and the knowledge of law.
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 (1) in the ‘Generic Sense’: as Science of Civil Law’ and (2) in the ‘Specific sense’ : as the science of the First principle of Civil Law.
The Civil law consists of rules applied by Courts in the administration of Justice. Salmond agrees with both Austin and Holland only to the extent that jurisprudence is ‘a science, a systematic study of basic principles of legal systems.
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.”
Hobbes & Blackstone:
In England, the earliest treatment of this subject is to be found in Hobbes’s Book ‘Elementiae Philosophiae’ though his concept relating to Natural Law, sovereignty, and political government were basically aimed to support the monarchy. After this near 18th Century Blackstone, an eminent jurist tries to study of the science of law but fail to discuss about justice.
Dr. K.C. Allen:
Dr. K.C. Allen defines Jurisprudence is the scientific synthesis of all the essential principles of law.
According to Robert Keeton “Jurisprudence is the study and scientific synthesis of general principles of law”.
G.W. Paton says “Jurisprudence is a particular method of study, not the law of one country, but of the general notion of law itself.”
Julius Stones 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.”
English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, “Jurisprudence is the formal science of positive law”, According to him jurisprudence should only concern itself with the basic principles of concepts underlying in any natural system of law.
Dr. M.J. Sethna
Dr. Sethna has defined jurisprudence as the study of Fundamental Legal principles including philosophical, historical, and sociological basis, and analysis the legal concept. Thus he adopts a synthetic approach to the study jurisprudence for he believes any knowledge is a synthetic whole and cannot be divided into watertight compartments.
SCOPE of JURISPRUDENCE:
The scope of jurisprudence cannot be limited. It covers all the concepts of human order and human conduct. It extends to anything concerning the order in state and society. Justice P.B.Mukherjee says “Jurisprudence is both an intellectual and idealistic abstraction as well as the behavioral study of man in society. It includes political, social, economic, and cultural ideas. It covers that study of man in relation to state and society.”
According to Julius Stone the study of jurisprudence should be integrative and synthetic as also purposive keeping in view the need for humanistic justice through human and ‘just law’. He therefore firmly believes that “jurisprudence is lawyer’s extraversion”. It is the lawyer’s examination of precepts and techniques of the law in the light derived from Modern knowledge in disciplines other than law”. It involves certain types of investigations into law, and investigation of an abstract, general, and theoretical nature which seeks to lay the bare essential principles of law and legal systems. Salmond observed: “In jurisprudence, we are not concerned to derive rules from authority and apply them to the problem; we are concerned rather reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of the legal system.”
JURISPRUDENCE as Social Science:
Science and critical approach to the study of jurisprudence was a consequence of the rejection of metaphysical considerations, the rise of positivism, the decline of Natural Law in the 18th Century, and the emergence of Bentham principles of hedonism viz. The doctrine of “Pain & Pleasure”.
Auguste Compte (1798-1857) is called the father of modern Positivism. He has confined his analysis to the observation of facts and completely rejected the hypothetical considerations in the study of jurisprudence and legal theory. He emphasized the need to study jurisprudence on the observations and analysis of ascertainable facts. By which he meant examining man-made laws which have been actually laid down by men for men and distinct from the law as it ought to be. At the beginning of the 20th Century a new perspective was considered for the study of law in relation to the society which treats law as a ‘social engineering’ i.e. an instrument of social change. Thus jurisprudence can be called science like any other social science.
CONTENTS OF JURISPRUDENCE:
The following are the contents of jurisprudence:-
- Sources: It is true 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. Under this head matters such as custom, legislation, precedent as a source of law, pros, and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for study.
- Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights, title, property, ownership, possession, obligations, acts, negligence, legal personality, and related issues. Although all these concepts are equally studied in the ordinary branches of law, since each of the functions in several different branches of law, jurisprudence tries to build a more comprehensive picture of each concept as a whole.
- Legal Theory: Legal theory is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other. It is, therefore, necessary that while analyzing legal concepts and effort should be made to present them in the background of social developments and changing economic and political attitudes.
Jurisprudence explains the theoretical base and knowledge of the law. It provides practical application of laws.
It is necessary for legal education. It is used for lawyers and judge’s practical purposes. and It suggests what the law “ought to be” whereby legislature can make laws and It provides a comparative study by studying law with reference to economics, sociology, and other social science.