Jurisprudence Definition Nature and value

Theory of Law – Legal Thoughts

Jurisprudence is theoretical aspect of the word law. In jurisprudence, we do not deal with the practically applicable pieces of statutory law; rather we try to understand the very essence of law and its various dimensions. Like in the other subjects, for example, geography, we have geographical thought as a subject of study; similarly, in law we have got “legal thought” which is called “jurisprudence”. The basic questions that we try to answer in jurisprudence are – What is law?, Why should it exist?, What should be the nature and purpose of the law?, What are rights and duties and what should be their nature?, What is ownership and possession and why does law have to protect them?, etc.

Jurisprudence refers to a certain type of enquiry or investigation into law, an enquiry of a general nature the purpose of which is to bring out the underlying and essential principles of law and legal system while a typical legal subject like contract involves the study of legal rules and principles derived from authoritative sources and its application to practical situation.

Thus while the law of contract deals with right of one party to a contract against the other contracting party, in jurisprudence the emphasis is on the study of nature and underlying meaning of term ‘right’ and different kinds of legal rights.

Value of jurisprudence

In general, jurisprudence cannot be applied to practical situations.

Uses of jurisprudence

1. The value of jurisprudence lies in its own intrinsic interest. While fascination of a subject however is no guarantee of its worth, researches into jurisprudence may well have an impact on the whole of legal, political and social thought.
2. Just as in science and Maths, progress has been largely due to increasing generalisation, in law too; generality can mean improvement. One of the tasks of jurisprudence is to construct and explain organizing concept serving to make law’s complexities more manageable and rational.
3. Jurisprudence has an educational value. Logical analysis of legal concepts and study of jurisprudence can assist in combing the vice of formalism. The excessive emphasis on legal form rather than social realities and making one more aware of social function of law. Jurisprudence can influence and teach a lawyer to look around him and to create an awareness that answers to new legal problems must be found by consideration of present social needs and realities than in wisdom of the past.
4. Jurisprudence gives shape to practical law. It helps in shaping the practical law in a form so that it can serve the society.

Definitions of jurisprudence

The study of jurisprudence started first among the Roman jurists. Jurisprudence has been derived from the latin word juris prudentia. Juris means legal and prudentia means knowledge or skill. Initially, jurisprudence was confused with morality. However, it was towards the 19^th century that the concept was secularised. In England, it was not until the time of

Bentham and his disciple Austin, in early 19^th century that the word began to acquire a technical significance. The various attempts at defining jurisprudence have been as follows:

Ulpian (Roman jurist): “Juris prudentia est divinarum, atque humanarum rerum notitia, justic atque injustic scientia” i.e. Jurisprudence is the knowledge of things divine and human, the science of right and wrong.

Paulus (Roman jurist): The law is not to be deduced from the rule but the rule from the law. Hobbes: In ‘Elementeae philosophiae’ deals with the nature of national law, political government and sovereignty.

Black Stone: ‘Jurisprudence is the study of science of law’.

Wurzel: “Jurisprudence was the first of social science to be born.”

Bentham Definition of Jurisprudence

“A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question.”

• John D Finch in “Introduction to Legal Theory” has criticised Bentham as –

“With Bentham came the advent of legal positivism and with it the establishment of legal theory as a science of investigation as distinct from the art of rational conjecture, Bentham laid the foundations of this new approach, but, far from containing the solution to problems involving the nature of positive law, his work was only the beginning of a very long and varied, series of debates, which are still going on today.”

Salmond: “Jurisprudence is the science of first principles of the civil law”. Jurisprudence, according to Salmond, deals with law of state consisting of rules applied by courts in

administration of justice. There are three kinds of law which govern the conduct of human beings i.e.

1. Law which emanate from theology
   1. Law which emanate from morality
   1. Law which emanate from a politically organised society

True law is the law that exists in politically organized society, and Salmond calls it civil law, the study of that law is the fit subject for study in jurisprudence.

Salmond broadly incorporates in his definition:

• Analytical    jurisprudence    (Salmond    says that     his                   book is             primarily concerning analytical jurisprudence)
  • Historical jurisprudence
  • Ethical jurisprudence

He uses jurisprudence in both generic and specific sense. The former includes the entire body of legal doctrines, whereas the latter means only a particular department of such doctrines. In the latter sense it may be called ‘theoretical’ or ‘general’ jurisprudence. Salmond says that his book is concerned only with this jurisprudence which he defines as “the science of the first principles of the civil law”.

Another classification that Salmond makes is –

• Expository or systematic, which deals with the contents of an actual legal system, as existing at any time, whether past or present.
• Legal history, which is concerned with a legal system in its process of historical development.
• 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 with the purposes for which it exists.

Dias & Hughes: “Jurisprudence may tentatively be described as any thought or writing about law, other than the technical exposition of a branch of law itself.”

Austin: “Jurisprudence is the philosophy of positive law. Positive law is akin to civil law. (However, the term ‘philosophy’ used by Austin may be said to be inaccurate as jurisprudence confines itself to civil or man made law).

Holland: “Jurisprudence is the formal science of positive law.” He further states that

“jurisprudence deals with the human relations governed by the rule of law rather than the material rules themselves.” A formal science means one which reflects on the nature of legal rules, the fundamental principles underlying them, the essential features of legal system as opposed to material science which deals with specific rules and concrete details. Thus in as much as jurisprudence connotes systematized knowledge of a subject it is a science. Further the term positive law refers to civil law i.e. law made by state for regulating human beings’ conduct and enforced by the courts. Finally, the term formal as mentioned above means that science deals with the fundamental principles underlying legal rules and systems.

Allen: “Jurisprudence is the scientific synthesis of essential principles of law.”

Paton: “Modern jurisprudence trenches on the fields of social sciences and of philosophy, it digs into the historical past and tends to create the symmetry of a garden out of luxuriant chaos of conflicting legal system.”

Julius Stone: “It is the lawyer’s examination of the percepts, ideal, and techniques of the law derived from present knowledge in disciplines other than law.”

Jenk: Can jurisprudence be truly said to be a purely “formal science”. Not, it is submitted, unless the word ‘formal’ be used in a strained and artificial sense. It is true that a jurist can only recognise a law-by its form; for it is form which, as had been said, causes the manifold matter of the phenomena to be perceived. But the jurist, having got the form as it were, on the operating table, has to dissect and ascertain its meaning   To say that jurisprudence is concerned only

with forms, is to degrade, it from the rank of a science to that of a craft.”

Patterson: Jurisprudence means a body of ordered knowledge, which deals with a particular species of law.

Keeton: ‘Jurisprudence is the study and systematic arrangement of the general principles of law’.

Wayne Morrison in “Jurisprudence: from the Greeks to Post Modernism” – “At its

simplest jurisprudence may be defined as the corpus of answers to the question what is law”.

Gray: ‘The relation of jurisprudence to law depends not upon what law is treated but how law is treated. A treatise on jurisprudence may go into minute particulars or be confined to the most general doctrines and 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.

Hart: Law is a system of rules – primary and secondary – the combination of which explains the nature of law and provides Key to jurisprudence. The primary rules are duty imposing rules and the secondary rules are to confer power which provide for the creation or variation of duties. The supplementing of primary rules by secondary rules is the step from pre legal to legal world.

.