What is Jurisprudence?
Category : Jurisprudence – I
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.
Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.
-Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.
Bentham was the first one to analyse what is law. He divided his study into two parts:
1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.
2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.
However, Austin stuck to the idea that law is command of sovereign. The structure of English Legal System remained with the formal analysis of law (Expositorial) and never became what it ought to be (Censorial).
J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s extraversion. He further said that it is a lawyer’s examination of the percept, ideas and techniques of law in the light derived from present knowledge in disciplines other than the law.
Thus, we see that there can be no goodness or badness in law. Law is made by the State so there could be nothing good or bad about it. Jurisprudence is nothing but the science of law.
6. Dias and Hughes
Austin- He said that “Science of Jurisprudence is concerned with Positive Laws that is laws strictly so called. It has nothing to do with the goodness or badness of law.
This has two aspects attached to it:
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 same but in scope they are different.
Salmond’s Criticism of Austin
He said that for a concept to fall within 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 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-ordinated knowledge of the subject of intellectual enquiry. The term positive law confines the enquiry 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.
6. Formal as a prefix indicates that the science deals only with the purposes, methods and ideas on the basis of the legal system as distinct from material science which deals only with the concrete details of law.
7. This definition has been criticized on the ground that this definition is concerned only with the form and not the intricacies.
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. Historical- It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought to be. It deals with the ‘ideal’ of the legal system and the purpose for which it exists.
Criticism of Salmond- Critics say that it is not an accurate definition. Salmond only gave the structure and failed to provide any clarity of thought.
Keeton- He considered Jurisprudence as the study and systematic arrangement of the general principles of law. According to him, Jurisprudence deals with the distinction between Public and Private Laws and considers the contents of principle departments of law.