Lucknow College College of Architecture, Lucknow Final Year Year B. Arch .
AR – 1003 1003 Developm Developm ent Legislatio n UNIT–1 JURISPRUDENCE AND LAW
Lecture 1 -
Nature and Scope of Jurisprudence - Prof. Mukul Singh
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What is Jurisprudence?
The study of Jurisprudence started with the Romans. The Latin equivalent of ‘Jurisprudence’ is Jurisprudentia which means either “Knowledge of law” or “Skill in law”. Every jurist has his own notion of the subject-matter and, the proper limits of Jurisprudence depend upon his ideology and the nature of society. The growth and development of law in different countries has been under different social and political conditions. The word ‘Law’, therefore, conveyed different meaning in different countries. Jurisprudence’ is not generally used in other languages as in the English sense. In The word ‘ Jurisprudence’ French, it refers to something like ‘Case Law’. In England, the word Jurisprudence was in use throughout the early formative period of the common law, but it meant little more than the skill in or the study of law.
Paulus, a Roman jurist, maintained that “the law is not to be deduced from the rule, but the rule from the law”. Bentham distinguished - ‘expository’ and ‘censorial’ Jurisprudence’ as examination of the law as it is and as it ought to be.
The word Jurisprudence has, during the last one century, come to mean in England -an analysis of the formal structure of law and its concept, and, Jurisprudence today is the ‘analysis of legal concepts’. Julius stone describes Jurisprudence as ‘the lawyer’s extraversion’. -It is the Lawyer’s examination of the precepts, ideals and techniques of law in the light derived from the present knowledge in disciplines other than the law”. ‘Particular’ Jurisprudence. The field of ‘General Austin divided the subject into ‘ General’ and ‘Particular’ Jurisprudence’ is a wider one. It takes its data from the systems of more than one State, while ‘Particular Jurisprudence’ takes it’s data from a particular system of law. It’s principles are coloured and shaped by the concrete details of a particular system. However, in both cases, the subject of Jurisprudence is positive law.
The relation of ‘General’ and ‘Particular’ Jurisprudence may be shown by an examplePossession is one of the fundamental legal concepts recognized by all systems of law. The function of Jurisprudence is to explain it’s characteristics, it’s legal value, mode of it’s acquisition and extinction. General Jurisprudence will analyse it without reference to any particular legal system, but Particular Jurisprudence will do the same thing but with reference to some particular system of law. Sir Thomas Holland defines Jurisprudence as “the formal science of positive law’’. It is a formal or analytical science rather than a material science. The term positive law has been defined by Holland as “the general rule of external human action enforced by a sovereign political authority”. authority”.
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Principal at Lucknow Lucknow College of Architecture, Architecture, Lucknow
Salmond defines Jurisprudence as “the science of law ”. By law he means the law of the land or civil law. In that sense, Jurisprudence is of three kinds- Expository or systematic Jurisprudence, which deals with the contents of an actual legal system as existing at any time. - Legal history development. The purpose of the science of legislation is to. - The Science of Legislation, which deals with ideal of legal system and the purpose for which it exists.
He has, thus, made the division of subject in three branches, viz., analytical, historical and, ethical jurisprudence. He makes a distinction between the use of the term Jurisprudence in the ‘Generic’ and ‘Specific’ sense. Generic Jurisprudence includes the entire body of legal doctrines whereas Specific Jurisprudence deals with a particular department of those doctrines. Keeton considers Jurisprudence as “the study and systematic arrangement of the general principals of law”. Lee writes that Jurisprudence “is a science which endeavours to ascertain the fundamental principles of which law is the expression. It rests upon the law as established facts; but at the same time it is a power in bringing law into a coherent system and in rendering all parts thereof subservient to fixed principles of justice”. Significance and Utility of Jurisprudence
Just as a mathematician investigates the number theory not with the aim of seeing his findings put a practical use but by reason of the fascination which it holds for him, likewise the writer on Jurisprudence is impelled by its intrinsic interest. -Jurisprudence also has practical value. -Jurisprudence also has an educational value. -Jurisprudence is often said to be “the eye of law”. -It is the ‘grammar of law’. -It throws light on the basic ideas and the fundamental principles of law. By understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual rules of law. It also helps in knowing the language, grammar, the basis of treatment and assumptions upon which subject rests. A study of jurisprudence helps legislators by providing them a precise and unambiguous terminology. It relieves them of the botheration of defining again and again in each Act certain expression such as right, duty, possession, ownership, liability, negligence etc. The study of jurisprudence enlightens students and helps them in adjusting themselves in society without causing injuries to the interests of other citizens. Relation of Jurisprudence with other Social Sciences
Different branches of knowledge are so inter-related that none of them can be studied in isolation. Jurisprudence and Sociology Sociology has helped Jurisprudence in its approach to the problem of prison reforms and has suggested ways and means of preventing social wrongs. It enables us to understand better the evolution of law. Jurisprudence and Psychology Psychology has been defined as the science of mind and behaviour. It is the duty of a law-giver to understand man and not to pass judgments and say what man ought to do or ought not to do. Psychology can help the law maker considerable in the approach to the problem of not only making the law but also of executing it. Jurisprudence is
concerned with man’s external conduct and not his thoughts and mental processes, but penology has benefited from the knowledge made available by psychological researches. Jurisprudence and Ethics Ethics has been defined as ‘the science of human conduct’. It deals with how man behaves and what should be the ideal human behaviour. Ethics is concerned with good or proper human conduct in light of the public opinion. Public opinion varies from place to place, from time to time and, from people to people. Dr. Sethna writes- ‘It changes in the social evolution, social culture and social development. What may be a rule of good morality at one time may be a bad morality today.
Jurisprudence is related to positive morality as far as law is concerned. Jurisprudence and Economics Economics studies man’s efforts in satisfying his wants and producing and distributing wealth. Economics is a science of wealth and Jurisprudence is a science of Law. There is a relationship between two. Often economic factors are responsible for crime and these problems arise day to day, and it is the duty of the law giver to tackle those problems. Both, Jurisprudence and the Economics aim at the betterment of the lives of people.
