In this article, we will discuss the concept of law under the blanket cover of Jurisprudence. We’ll read how the various philosophers and their schools of thought defined law.
Introduction to the concept of law and Jurisprudence
Jurisprudence as a science of law (Read: What is Law?) is primarily concerned with regulations of human conduct in accordance with a set of values, needs, and goals of each society. As the goals, needs, and values are of changing characters, the nature of Jurisprudence also keeps on changing to cater to the needs of a particular society.
The term “jurisprudence” has at different times been used in different senses. Sometimes it has been used as a synonym for the term “law”, sometimes as a philosophy of law and sometimes as a science of law. The present tendency appears to prefer the term “legal theory” to the term “jurisprudence”.
The term “legal theory” has been for the first time, coined by W. Friedmann in 1945 when his book on ‘legal theory’ appeared and since then it has become popular. The term “legal theory” is generally used in the sense as an evaluative and normative study of the concept of law and its relationship with morality and justice which the law subserves. Fitzgerald says that legal theory is “an attempt to answer the question ‘What is law’ in order to clarify the most of all legal concepts, the concept of law itself”.
According to Professor Jolowicz, “Jurisprudence” is a general theoretical discussion about law and its principles, as opposed to the study of actual rules of law.
As per Julius Stone, “Jurisprudence” 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 law.
To Karl N. Llewllyn (1893-1962), “Jurisprudence means any careful and sustained thinking about any phase of things legal if the thinking seeks to reach beyond the practical solution of an immediate problem in hand. It includes all types of honest and thoughtful generalization in the field of law.”
Dr. Edward Jenks in “The New Jurisprudence” states that a treatise on jurisprudence may go into the minutest particulars or be confined to the most general doctrines and in either case deserves its name; what is essential to it is that it should be an orderly, scientific treatise in which the subjects are duly classified and subordinated.
The term ‘legal’, according to Chambers Twentieth Century Dictionary, means “pertaining to, or according to law”; and the term ‘theory’ means “an explanation or system of anything; and exposition of the abstract principles of a science or art”. Legal theory, may therefore, be defined as the exposition of the abstract principles of the science of law, or a systematic study and analysis of law in all its bearings.
Prof. W. Friedmann says, “But all legal theory ideology, as must contain elements of philosophy – man’s reflections on his position in the universe the ideas entertained on the best form of society. For all thinking about the end of law is based on conceptions of man both as a thinking individual and as a poligical being.”
According to John D. Finch: “Broadly speaking, legal theory involves a study of the characteristic features essential to law and common to legal systems an analysis of the basis elements of law which made it law and distinguish it from other forms of rules and standards, from systems which cannot be described as legal systems and from other social phenomena.”
We can consider the terms ‘jurisprudence’ and ‘legal theory’ as synonyms as jurisprudence is the science of law and legal theory is the theory of law and as both study and analyze the law in all its bearings though jurisprudence is a wider term than ‘the legal theory’.
The word “Jurisprudence” is derived from the Latin word “Jurisprudentia” which means “knowledge of the law”. In the Latin language, ‘jure’ or ‘juris’ means ‘law’ and ‘prudentia’ means ‘skill’ or ‘knowledge’.
The Greeks did not develop any systematic science of legal relations. For the Greeks, jurisprudence, generally speaking, was a branch of theology with natural law as its basis.
The Romans also gave a vague and wide meaning to the term jurisprudence. Ulpian termed jurisprudence as observation of things human and divine, the knowledge of the just and unjust.
Thus, jurisprudence at that time was mixed up with theology. For St. Thomas Aquinas jurisprudence became a branch of theology. It was as a result of the Reformation and Renaissance that the process of separation of jurisprudence from theology was initiated.
Kant formulated the idea of legal justice and undermined the eighteenth century Law of Natural School by showing that it was not possible to do by pure reason what that school sought to do.
Bentham strengthened the trend and freed jurisprudence from theology; he did speak of expositorial and censorial jurisprudence. He said that law is binding on a man so far as temporial sanction can make it effective, even if it is contrary to the law of God. It was in the nineteenth century that jurists viewed jurisprudence as a science of law. At this stage legal philosophy was separated from political philosophy and jurisprudence was developed as a separate science.
Definition of Jurisprudence
As stated earlier, the term jurisprudence has meant different things at different times. The variation is due to different methods of inquiry and approach to the concept of law and study of the subject. This is why Julius Stone has described jurisprudence as “the lawyer’s extraversion” meaning thereby that jurisprudence involves the examination of precepts, ideals, and techniques of the law by lawyers in the light of disciplines other than the law.
Ulpian: Jurisprudence, in its etymological sense means ‘knowledge of law’ Ulpian the Roman jurist defined jurisprudence as “the observation of things human and divine”.
Gray: Prof. Gray also defines jurisprudence more or less in the same way. He opines that “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”.
Salmond: Salmond defines jurisprudence as the “Science of the first principles of the civil law”. Thus he points out that jurisprudence deals with a particular species by courts in the administration of justice. He agrees with Gray in upholding that jurisprudence is concerned with only ’jurists’ law and is not concerned with the laws of theologian and moralist although they also govern the conduct of man in society.
Salmond supports Holland and Austin in holding that jurisprudence is a science, viz. a systematic study of basic principles of individual-specific legal systems. He classified jurisprudence in ‘generic’ and ‘specific’ sense. The former includes the entire body of legal doctrines whereas the latter means only a particular branch of such doctrines.
According to him, a specific sense alone is the proper jurisprudence because it deals with the general principles of a particular legal system. Salmond opined that as the ‘science of law’ there maybe three kinds of jurisprudence.
- Expository of systematic jurisprudence, which deals with the contents of an actual legal system, as existing at any time whether past or present.
- Legal theory, which is concerned with the legal system in its process of historical development.
- The science of legislation, the purpose of which is to set that law as it ought to be. It deals with the ideal future of the legal system and the purpose which it may serve.
Prof. Allen has objected to the Salmond’s definition on the grounds that he has limited the scope of jurisprudence to a particular legal system. It is rather too narrow a view.
Austin defines ‘jurisprudence’ as the science which concerns the analysis of the concept of law and its underlying principles. For Austin, the appropriate subject of jurisprudence is positive law, i.e. law as it is (existing law). To him, jurisprudence is not a moral philosophy but it is a systematic study of actual law as distinguished from moral, ideal, or natural law.
Austin further divides jurisprudence into two classes, viz. ‘general jurisprudence’ and ‘particular jurisprudence’. According to him, ‘general jurisprudence’ is the philosophy of positive law. It is concerned directly with principles and distinctions which are common to various systems of particular and positive law and which each of those various systems inevitably involves.
Let it be worthy of the praise of blame or let it accord or not with an assured measure or test. Thus, for Austin, ‘general jurisprudence’, means the science concerned common to the different systems of law. The concepts of rights and duties, ownership, possession, personality, property, etc. comes under the province of general jurisprudence.
‘Particular jurisprudence’, according to Austin, “is the science of any such system of positive law as now actually obtains or once actually obtained in a specifically determined nation or specifically determined nations”. ‘Particular jurisprudence’, says Austin, “is the science of any actual system or law or of any portion of it. The only special jurisprudence is ‘particular’.
Gray accepts Austin’s classification of jurisprudence into ‘general’ and particular, though he prefers the term comparative jurisprudence in place of general jurisprudence. Allen also agrees with Austin. He says, there are certain elements inherent in the conception of law as a phenomena of social life (e.g. preservation of order, dispensation of justice, delimitation of rights, ownership, possession etc.) therefore, existence of ‘general jurisprudence’ is possible ‘particular jurisprudence’ is only a method by which it works. The adjectives of ‘general’ and ‘particular’ demand an explanation of the substantive view of jurisprudence is according to Allen ‘the scientific synthesis of the essential principles of law’.
Holland: Sir Thomas Erskine Holland defines jurisprudence as “the formal science of positive law’. Stammler also defines jurisprudence in similar terms. He defines jurisprudence as a science of formal law. According to them jurisprudence should only concern itself with the basic principles or concepts underlying any natural system to law. Holland defines positive law as a general rule of external human action enforced by a sovereign political authority. He calls jurisprudence as a ‘formal’ science as it deals not with concrete details but only with the fundamental principles underlying them.
Prof. Gray and Dr. Jenks, however, objects to the Holland’s description of jurisprudence as a ‘formal science’. Gray pointed out that the real relation of jurisprudence to law depends not upon what law is treated, but how law is treated. Gray further stated that in fact jurisprudence is no more formal science that physiology. Just as bones, muscles and nerves are the subject matter of physiology, so are the acts and forbearances of men and the events which happen to them, the subject matter of jurisprudence and physiology could as well dispense with the former as jurisprudence with latter.
Dr. Edward Jenks remarked that jurisprudence cannot be said to be a purely formal science because it cannot afford to ignore the social force which give shape to law. According to him to say that jurisprudence is concerned with only forms, is to derogate it from the rank of science to that of a craft.
Dr. Allen: the English jurist Dr. Allen has defined jurisprudence as the scientific synthesis of the essential principles of law. Though the definition may seem to be abstract at a glance, it surely takes notice of the widening scope of law in its various facets.
Keeton: According to Keeton “jurisprudence is the study and systematic arrangement of the general principles of law”. The definition seeks to explain the distinction between public and private laws.
H.L.A. Hart: The twentieth-century analytical jurisprudence has emerged as a reaction against the rigid positivism of the 19th Century Austinian legal philosophy. While Austin considered command sanction and sovereign as the three essential constituents of the nature of law which formed the science of jurisprudence. H.L.A. Hart believed that the union of primary and secondary rules explains the nature of law and provides ‘Key to science of jurisprudence’. By primary rules, he means rules which impose duty while secondary rules confer powers which provide for creation or variation of duties by removing defects of the primary rules. He further opined that both these kinds of rules contain minimum elements of natural law, i.e. law and morals which every legal system not necessarily contain. Thus Hart viewed jurisprudence as a science of law from a broader perspective.
Roscoe Pound: According to Pound, jurisprudence is “the science of law using the term law in the juridical sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice”. He emphasized that there is an inevitable co-relationship between jurisprudence and other social sciences.
From the definitions discussed above we can say that Austin’s definition is relatively more correct. Austin has at least widened the scope of jurisprudence by classifying in into two categories. ‘General’ and ‘Particular’ and by pointing out that the jurisprudence include study of principles common to all States and also the analysis of these principles in a specific determined nation.
However, the concept of law and jurisprudence as it was conceived earlier has undergone considerable changes. As Lloyd puts it “The whole attitude towards jurisprudence has undergone a sweeping change during the last half-century. From the emphasis on the analysis of the legal concepts, there has been a growing tendency to stress sociological factors and forces.
Different Schools of Jurisprudence
Jurisprudence is the name given to a certain type of investigation into the concept of Law, an investigation of an abstract, general and theoretical nature that seeks to lay bare the essential principles of law and legal system.
In jurisprudence, we are concerned to reflect on the nature of legal rules, on the underlying meaning of the legal concepts, and on the essential features of legal systems.
Thus, in ‘Law’, we look for the rules relevant to the given situation whereas, in “Jurisprudence”, we ask what it is for a rule to other related phenomena.
In the modern age, jurisprudence has been treated as a science of social control of human conduct. This idea invariably widened the scope of this subject. Hence for an integrated understanding of jurisprudence, it is essential to understand jurisprudence from all angles.
There are mainly four views on this subject which are popularly known as schools of legal theory. These are –
Philosophical jurisprudence: Exponents of this school of jurisprudence were mainly concerned with the relations of law to some set of ideas or ideals outside the concept of law. Among such ideas are – “that the purpose of the society is to make men virtuous and such is the purpose of the law, that the end of the law is to maintain justice in society, the legal restrictions can be justified only in so far as they promote the freedom of individuals in society (Kant), that the end of law is to promote the greatest happiness of the greatest number (Bentham)”. In short, this school is primarily concerned with principles of ultimate right and wrong.
Analytical Jurisprudence: Those thinkers of jurisprudence who regard the concept of law as a command emanating from the government or from the State as the political organisation of society and who treat the relation of law to the State as its most important aspect, may be grouped in the analytical school of jurisprudence.
They are mainly concerned with the definition of law. In fact, the purpose of analytical jurisprudence is to analyse without reference either to their historical origin and development or to their ethical significance or validity of the first principles of the law. John Austin is the leading exponent of this school.
Historical Jurisprudence: Writers of Historical Jurisprudence take the social insitutions at a time sequence with primacy given to the primitive legal institution of the society. The German Historical School of Savigny and Puchta developed a conception of the origin and growth of law on the analogy of language. The historical school gave theoretical justification for those vast studies of legal history which in Europe, England and even America were done during the nineteenth century.
Sociological Jurisprudence: The sociological jurisprudence is chiefly concerned with the relations of law to contemporary social institutions. It is still in making. Jurist like, Pound, Ihering, Ehrlich have adopted this method for the study of legal philosophy. According to these jurists, the essential characteristic of law is that it shall prevail, that it shall actually represent the common interactions of man in their daily life.
This classification of jurisprudence provides a rough classification of ideas and it is not proper to limit the scope of jurisprudence on the basis of this classification. With the changes in the social, political, and economic outlook and with the changes in the conditions of individual and national life much may come under the province of this science of law, namely, jurisprudence.
If you have a better article that explains the concept of law and jurisprudence, feel free to write for Strictlylegal.in as a contributor
Users not registered with Strictlylegal can Email us their content and the same are posted through this account. In case of abuse, kindly let us know at Contact@strictlylegal.in