Chapter 1 - Meaning Nature And Scope Of Jurisprudence

Introduction to Jurisprudence

The history of the concept of law reveals that jurisprudence had its evolutionary beginning from the classical Greek period to 21st-century modern jurisprudence with numerous changes in its nature in various stages of its evolution. Jurisprudence is a concept to bring theory and life into focus. It deals with the fundamental principles on which rests the superstructure of law. The concept of jurisprudence basically helps in cultivating one’s own ideas in relation to a particular theory. In abstract jurisprudence is a subject whose knowledge is the basis and the foundation of the whole legal studies. Jurisprudence is a name given to a certain type of investigation into law, where we are concerned to reflect on the nature of legal rules and on the underlying meaning of legal concepts and on the essential features of the legal system.

Jurisprudence is both an intellectual and idealistic abstraction as well as a behavioural study of man in society. In jurisprudence, we ask what it is for a rule to be a legal rule and what distinguishes law from morality, etiquette and other related phenomena.

What is Jurisprudence?

There is no universal or uniform definition of Jurisprudence since people have different ideologies and notions throughout the world. It is a very vast subject.

When an author talks about political conditions of his society, it reflects that condition of law prevailing at that time in that particular society. It is believed that Romans were the first who started to study what is law.

Meaning

The term jurisprudence has been derived from the Latin word ‘jurisprudentia’ which means ‘skill or knowledge of law’.

In the early decades of the 19^th century with the theories propounded by Bentham and Austin, the term ‘jurisprudence’ acquired a definite meaning. 

Bentham is known as Father of Jurisprudence was the first one to analyze what is law. He divided his study into two parts:

1. Examination of Law ‘as it is’ i.e. Expositorial Approach– Command of Sovereign.
2. Examination of Law ‘as it ought to be’ i.e. Censorial Approach– Morality of Law.

However, Austin concerned himself mainly with the formal analysis of the English law and its related concept, which still continues to be the basic concept. Austin’s ideology that ‘law is the command of the sovereign’ became the structure of English Legal System, which remained with the formal analysis of law as ‘it is’ (Expositorial) and never became ‘as it ought to be’ (Censorial).

Definitions by:

1. Austin

2. Holland

3. Salmond

4. Keeton

5. Pound

6. Dias and Hughes

7. Ulpain

Juristic approach

Ulpian – The Roman jurist defined jurisprudence as the observation of things, human and divine, the knowledge of the just and the unjust.

Austin– He calls jurisprudence as the ‘philosophy of positive law’. The term ‘positive law’ connotes ‘jus positivum’ which means law lay down by a political superior for commanding obedience from his subjects. He preferred to divide his concept into two parts:

1. General Jurisprudence– It includes such subjects or ends of law as are common to all system.
2. Particular Jurisprudence– It is the science of any actual system of law or any portion of it.

Basically, in essence, they are the same but in scope they are different.

Salmond’s Criticism of Austin

He said that for a concept to fall into the category of ‘General Jurisprudence’, it should be common in various systems of law. This is not always true as there could be concepts that fall in neither of the two categories.

Holland’s Criticism of Austin

He said that it is only the material which is particular and not the science itself.

Holland’s Definition– Jurisprudence means the ‘formal science of positive laws’. It is an analytical science rather than a material science.

1. He defined the term positive law. He said that Positive Law means the general rule of external human action enforced by a sovereign political authority.
2. We can see that, he simply added the word ‘formal’ in Austin’s definition. Formal here means that we study only the form and not the essence. We study only the external features and do not go into the intricacies of the subject. According to him, how a positive law is applied and how it is particular is not the concern of Jurisprudence.
3. The reason for using the word ‘Formal Science’ is that it describes only the form or the external sight of the subject and not its internal contents. According to Holland, Jurisprudence is not concerned with the actual material contents of law but only with its fundamental conceptions. Therefore, Jurisprudence is a Formal Science.
4. This definition has been criticized by Gray and Dr Jenks. According to them, Jurisprudence is a formal science because it is concerned with the form, conditions, social life, human relations that have grown up in the society and to which society attaches legal significance.
5. Holland said that Jurisprudence is a science because it is a systematized and properly co-ordinate knowledge of the subject of intellectual inquiry. The term positive law confines the inquiry to these social relations which are regulated by the rules imposed by the States and enforced by the Courts of law. Therefore, it is a formal science of positive law.

Salmond– He said that Jurisprudence is Science of Law. By law, he meant law of the land or civil law. He divided Jurisprudence into two parts:

1. Generic– This includes the entire body of legal doctrines.
2. Specific– This deals with the particular department or any portion of the doctrines.

‘Specific’ is further divided into three parts:

1. Analytical, Expository or Systematic– it deals with the contents of an actual legal system existing at any time, past or the present.
2. Legal History– it is concerned with the legal system in its process of historical development.
3. The science of Legislation- the purpose of it 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.

Criticism of Salmond– Critics says that it is not an accurate definition. Salmond only gave the structure and failed to provide any clarity of thought.

Keeton- according to him “jurisprudence is the study and scientific synthesis of the essential principle of law.” The definition seeks to explain the distinction between public and private law.

Roscoe Pound– He described Jurisprudence as “the science of law using 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.”

Dias and Hughes– They believed Jurisprudence as any thought or writing about law rather than a technical exposition of a branch of law itself.

Scope of Jurisprudence

The scope of jurisprudence has widened considerably over the years. Commenting on the scope of jurisprudence Justice P.B.Mukherjee observed, “Jurisprudence is both an intellectual and idealistic abstraction as well as the behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to society.” This makes the distinction between law and jurisprudence amply clear. It, therefore, follows that jurisprudence comprises the philosophy of law and its object is not to discover new rules but to reflect on the rules already known.

Whereas, Austin was the only one who tried to limit the scope of jurisprudence. He tried to segregate morals and theology from the study of jurisprudence.

Approaches to the study of Jurisprudence

There are two ways to study it-

1. Empirical– Facts to Generalization.
2. A Priori– Start with Generalization in light of which the facts are examined.

Significance and Utility of the Study of Jurisprudence

1. This subject has its own intrinsic interest and value because this is a subject of serious scholarship and research; researchers in Jurisprudence contribute to the development of society by having repercussions in the whole legal, political and social school of thoughts. One of the tasks of this subject is to construct and elucidate concepts serving to render the complexities of law more manageable and more rational. It is the belief of this subject that the theory can help to improve practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts and it sharpens the logical techniques of the lawyer. The study of jurisprudence helps to combat the lawyer’s occupational view of formalism which leads to excessive concentration on legal rules for their own sake and disregard of the social function of the law.
3. The study of jurisprudence helps to put the law in its proper context by considering the needs of the society and by taking note of the advances in related and relevant disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways and around them and realize that answers to a new legal problem must be found by a consideration of present social needs and not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas and fundamental principles of law. Therefore, by understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which the subject rests. Therefore, some logical training is necessary for a lawyer which he can find from the study of Jurisprudence.
   It trains the critical faculties of the mind of the students so that they can dictate fallacies and use accurate legal terminology and expression.
6. It helps a lawyer in his practical work. A lawyer always has to tackle new problems every day. This he can handle through his knowledge of Jurisprudence which trains his mind to find alternative legal channels of thought.
7. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence should not be confined to the study of positive laws but also must include normative study i.e. that study should deal with the improvement of law in the context of prevailing socio-economic and political philosophies of time, place and circumstances.
8. Professor Dias said 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.”

Jurisprudence is Lawyer’s extraversion

In the words of Julius Stone, the study of jurisprudence should be integrative, synthetic and purposive while concentrating towards the need of humanistic justice. He firmly believed that jurisprudence is lawyer’s extraversion as it is the lawyer’s examination of precepts and techniques of the law in the light derived from present knowledge in disciplines other than law.

A lawyer should not be a mere legal technician knowing legal texts and procedure but, he should be a social activist. The ‘extra-legal version’ approach to as an instrument of social change and reforms has found favour with the judges of the Supreme Court, notably Justice S.N.Gajendragadkar, Justice Y.V.Chandrachud, Justice Chagla, Justice P.N.Bhagwati, and others.

Adopting a pragmatic to the application of law, Justice Y.V.Chandrachud in Vishnu Agencies (P) Ltd. v. C.T.O.[AIR 1978 SC 449] observed that “legal fraternity should not construe the provisions of the constitution in a narrow and pedantic sense, instead a broad and liberal spirit should inspire those whose duty is to interpret the law. A constitution is a living and organic thing which of all instruments has the greatest claim to be construed ‘ut res magis valeat quam pereat’ (it is better for a thing to have effect than to be made void)- the lawyers and judges ought to extend the constitutional provisions for elimination of poverty, social inequalities, and economic injustices.”

Mr Justice Krishna Iyer, a former judge of the Supreme Court, expounded the philosophy of jurisprudence as a lawyer’s extraversion. [(Rohtas Industries v. Its Staff Union, AIR 1976 SC 425); (Indian Express Newspapers (P) Ltd. v. Its Workers Union, AIR 1979 SC 137); (Som Prakash Rakhe v. UOI AIR 1981 SC 212), and other cases] He firmly believed that “the problem of law is, at bottom, projections of life…. The root of jurisprudence lies in the soil of society’s urges and the bloom in the nourishment from the humanity services.”

Relationship of Jurisprudence with other Social Sciences

Jurisprudence is closely inter-related with other social sciences since all of them are concerned with human behaviour in society.

G.M.Paton “observed modern jurisprudence trenches on the field of social science and of philosophy; it digs into the historical past and attempts to create symmetry of a garden out of the luxuriant chaos of conflicting legal system.”

Dean Roscoe Pound who propounded the theory of law as a ‘social engineering’ pointed out that jurisprudence is closely inter-linked with ethics, economics, politics, and sociology which though distinct enough as the core, are shade into each other. All other social sciences must co-ordinate with jurisprudence to make it a functional branch of knowledge.

Sociology and Jurisprudence

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

No human science can be described properly without a thorough knowledge of Human Mind. Hence, Psychology has a close connection with Jurisprudence. Relationship of Psychology and Law is established in the branch of Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving questions such as motive behind a crime, criminal personality, reasons for crime etc.

Jurisprudence and Ethics

Ethics has been defined as the science of Human Conduct. It strives for ideal Human Behavior. This is how Ethics and Jurisprudence are interconnected:

1. Ideal Moral Code– This could be found in relation to Natural Law.
2. Positive Moral Code– This could be found in relation to Law as the Command of the Sovereign.
3. Ethics is concerned with good human conduct in the light of public opinion.
4. Jurisprudence is related with Positive Morality in so far as the law is the instrument to assert positive ethics.
5. Jurisprudence believes that Legislations must be based on ethical principles. It is not to be divorced from Human principles.
6. 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 criticize the law. However, Austin disagreed with this relationship.

Jurisprudence and Economics

Economics studies man’s efforts in satisfying his wants and producing and distributing wealth. Both Jurisprudence and Economics are sciences and both aim to regulate the lives of the people. Both of them try to develop the society and improve the life of an individual. Karl Marx was a pioneer in this regard.

Jurisprudence and History

History studies past events. 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. The branch is known as Historical Jurisprudence.

Jurisprudence and Politics

In a politically organized society, there are regulations and laws which lay down authoritatively what a man may and may not do. Thus, there is a deep connection between politics and Jurisprudence.