Introduction:
The theory of jurisprudence has been a controversial issue since its inception. It has been debated over many occasions, but no certain and definite definitions have been arrived at, which might be acceptable to all jurists round the world. Jurisprudence is the story of the movement of thoughts and ever-changing ideas. Rapid developments are taking place in physical sciences. They turn in, bring about a change in the people’s social and moral notions and as law are influenced by current notions of morality and ethics, so the boundaries of law are widening by leaps and bounds hence making it difficult for one definition to get an all-head recognition.
The term ‘jurisprudence’ has been extracted from a Latin word, “jurisprudentia” meaning knowledge of law or the understanding of the law. ‘Juris’ denotes law and ‘prudentia’ denotes knowledge. The Oxford English Dictionary puts the meaning of Jurisprudence as the “knowledge or skill in law; the philosophy of law; or body of law”.
Encyclopedia Britannica defines ‘Jurisprudence’ as – “the name given to those studies, researches and speculations, which aim primarily at answering the plain man’s question of- What is Law?”
According to Dias, there is not any proper rendering of the term. Jurisprudence accords with the structure, uses, and functioning of the law and legal concepts[i].
Austin refers to Jurisprudence as the science of positive law. In his popular work – “Province of Jurisprudence Determined”, Austin described Jurisprudence as the principles of positive law. A law that is posited by human agency is called the positive law. It is the scrutinizing of what the law is as of now and not what it should be. Thus according to Austin, Jurisprudence is the systematic examination of the existing judicature that is based upon legislation.
Holland puts Jurisprudence as the ‘formal science of positive law’. According to him, Jurisprudence is a formal or analytical science, as conflicting to the material one and deals with the different relations which are regulated by legal rules and not with the rules themselves that regulate those relations. By ‘positive law’, Holland refers to the law made by the sovereign political authority.
According to Salmond, “Jurisprudence is the name given to a certain type of investigation into a law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and the legal systems”. He defined Jurisprudence as a “science of civil law”. By ‘civil law’ is meant the law of the land. Since Jurisprudence is the ‘science of civil law’, so International Law goes out of the orbit of Jurisprudence. Salmond does not favour the concept of positive law like Austin and Holland.
According to Gray, ‘Jurisprudence as the science of law, the statement and systematic arrangement of the rules followed by courts and the principles involved in those rules’.
As with the various definitions given by various jurists, there is a difference in the scope and the methods of jurisprudence. The different schools of Jurisprudence have put up different theories. The dogmatic insistence of certain writers that there is one, and only one road to truth, has tended to obscure this fact. In fact, these views might seem to oppose each other, but they are really not so. They stand in an order of historical progression and they complement each other. All those views together give a veritable and full portrayal of the subject.
Schools of Jurisprudence
1. Analytical School
Jeremy Bentham and John Austin are the propounders of Analytical School.
2. Historical School
Montesquieu, Edmund Burke, Savigny, Puchta and Sir Henry Maine are the jurists under this school.
3. Realist School
Most prominent exponents of this school include: Holmes, Gray and Jerome Frank
4. Sociological School
The main exponents of the sociological school are Duguit, Spencer, Roscoe Pound, August Comte among others.
5. Natural Law School
Jurists of this school include Grotius, Immanuel Kant, Hegel, and Thomas Hobbes.
Nature of Jurisprudence
The nature of Jurisprudence is similar to science, it is not an art. In fact, it is a progressive science. Jurisprudence merely does not connote the understanding or grasp over the law. It covers a field much wider than this.
Jurisprudence does not contain any set ideals and postulations, nor does it have any practical application. It is just the bare tenets of the law. It has not been acquired from any authentic and factual source. Salmond puts that Jurisprudence is the subject different from all other subjects of law. Subjects like Law of Contract, Tort and Evidence consist of a set of rules derived from authoritative sources and are applied to factual situations in order to solve practical problems. However, Jurisprudence does not consist of a set ordinances and precepts; it is not derived from any authoritative sources and is without any practical application. In other legal subjects, we look for a rule relevant to a given situation whereas, in Jurisprudence, we ask what it is for a rule to be a legal rule and what distinguishes law from morality, etiquette and other phenomena. In this sense, jurisprudence comprises the philosophy of law.
Paton has rightly said regarding the nature and scope of jurisprudence, that, modern Jurisprudence treads on the fields of social science, and philosophy; it gets deep into the history in order to create the symmetry of a garden out of luxuriant chaos of the clashing judicature. He has also said that Jurisprudence is the specific procedure of study of the prevalent notions of law; it is not the law of any specific country.
Julius Stone has very beautifully put forward the nature of Jurisprudence by saying, “It is a chaos of approaches to the chaos of topics chaotically delimited”.
Scope of Jurisprudence and its Comparison with the Legal Theory
The scope of Jurisprudence is ever-increasing. Regarding the scope, Justice P. B. Mukherjee observed that Jurisprudence deals with the “intellectual and idealistic abstraction as well as the behavioural study of man in the society”. It encompasses the social, economic, cultural, and political and the philosophical aspects of the law. Overall, it is the study of man in relation to the society he lives in and the laws of the land. Thus it can be said that the object of jurisprudence is not to discover new rules, rather it is to reflect on the concepts that are already known.
The terms ‘Jurisprudence and ‘Legal Theory’ have often been used interchangeably, but they do not have an identical meaning. The term ‘jurisprudence’ is of ancient origin and the phrase ‘legal theory’ has been coined in the last century. Legal Theory indicates a new subject area. It makes a philosophical approach to understand the law. Stating the sort of this approach, Friedmann states that all systematical thinking about legal theory is linked by philosophical theory in one end and political theory on the other end.
Political ideologies play a secondary role as in the legal theories like Socialism and Fascism. Sometimes, theories of knowledge and political ideology are wedded together to form one coherent system. But legal theories must essentially contain the element of philosophy as ‘all thinking about the end of law is based on conceptions of man both as thinking individual and as a political being’[ii].
Legal theory is associated with religion, philosophy, politics, ideology, ethics among many others. Its essential task is to examine and analyze the philosophical content of the law, it being evaluative, normative and idealistic. It does not entirely cover the fields which are covered by the jurisprudence.
Thus in order to differentiate between the ‘legal theory and jurisprudence’, it can be put that jurisprudence is a certain kind of investigation into a law, an investigation of the abstract, general and conceptual nature which seeks to lay bare the necessary propositions of law and the legal systems. Thus it can be rightly contended that jurisprudence covers a wide domain of legal knowledge as compared to legal theory.
However, with changing times, the fields of study of both these terms have widened, and now they cover almost a common field of study with a fluctuating degree of emphasis on the analysis or theoretical or philosophizing.
Utilities and Significance of Jurisprudence
In Jurisprudence, we mainly study the nature and purpose of the law (which includes its definition, classification and other things), its source, and the nature of rights and duties and other questions related to it. Following are the certain uses of the study of Jurisprudence:
- It gives us a critical perception of the nature of law. It helps to study the actual rules of law, and in order to trace out the principles underlying therein.
- It helps in making a scientific development of law.
- It develops the critical facilities of the mind and gives the proper understanding of legal terminologies and expressions.
- It throws light on the basic ideas and the fundamental principles of law in a given society.
- It helps lawyers in their daily practical work. A lawyer has to tackle new problems daily. A proper grasp over Jurisprudence helps train his mind to find every possible legal channel of thinking.
- It helps lawyers and the magistrates in working out on the meanings of words and the expressions in the statutes.
- Jurisprudence supplies an epistemology of law, a theory for genuine knowledge in the legal sphere.
Conclusion
We can conclude by the phrases of Lord Tennyson who says that Jurisprudence is a lawless course of law. It treads over the social, political, economic and psychological aspects of it. Different jurists have put their unique views over the methodology of jurisprudence which is being applied to study the legal discipline as a whole. Those jurists have been categorized under separate schools based on their expositions and views. All these schools are complementary to one another as no single school can help understand the entire domain of law.
These schools provide various procedures to study the law exposing one another which gives birth to better propositions of law that can be put to different circumstances. The domain of Jurisprudence is ever-changing. It is impracticable for anyone to provide a uniform and universal definition of Jurisprudence. Jurisprudence provides various techniques of studying the law, but their purpose is all the same, which is to recognize the fundamental postulations of law and the legal systems at large.
References:
- Jurisprudence- The Legal Theory (B. N. Mani Tripathi)
- Jurisprudence- Legal Theory and Elements of Law (Dr. S. K. Tiwari)
- https://www.legalbites.in/meaning-nature-scope-jurisprudence/
[i] R. M. W. Dias; Jurisprudence (Fourth Edition)
[ii] Friedmann; Legal Theory, p. 3
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