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“JURISPRUDENCE JURISPRUDENCE” ” •
•
The word jurisprudence is derived from latin word “ jurispru jurisprudenti denti means ‘knowledge of law’. The Latin word ‘ juris juris’ means law an ‘ prudentia prudentia’ means skill or knowledge. Thus, jurisprudence signifie knowledge of law and its application.
According to Oxford dictionary it is defined as jurisprudence is th systematic and formulated knowledge or science of human law.
In this sense it covers the whole body of legal principles in the world. The hist histor ory y of the the conc concep eptt of law law reve reveal alss that that juri jurisp spru rude denc ncee has has assu assume me different meanings at different times. It is therefore, difficult to attempt a singular definition of the term. It has a long history of evolution beginning from from clas classi sica call Gree Greek k peri period od to 21 st Century Century modern modern jurisprud jurisprudence ence wit numerous changes in its nature in various stages of its evolution.
Scholars of jurisprudence, or legal philosophers, hope to obtain a deepe understanding of the nature of law, of legal reasoning, legal systems and o legal institutions. Modern jurisprudence began in the 18 th century and wa focused on the first principles of the law of nature, civil law, and the law of nations. General Jurisprudence can be broken into categories both by the type typess of quest uestio ion ns sch scholars lars seek seek to addre ddress ss and by the theorie oriess jurisprudence or schools of thought regarding how those questions are bes to be answered. Contemporary philosophy of law, which deals with genera jurisprudence, addresses proble ms in two rough groups: your semester withproblems Scribd
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During the formative era of the common law in England, the te “jurisprudence” was being used in a generic sense to include the study o various facets of law. However, in the early decades of the 19 th century wit the theories propounded by Bentham and his disciple Austin, the ter ‘jurisprudence’ acquired a definite meaning. Bentham differentiated between study of law as “it is” and “as it ought to be” and called them ‘expositorial and ‘censorial’ jurisprudence respectively.
Later, Austin concerned himself mainly with the formal analysis of English and its related concepts, which still continues to be the ba contents of English jurisprudence.
Jurisprudence has been considered at various times and by different school of thought as philosophy, history or science. It is concerned essentially with the nature and function of law. It deals with such questions as what is law where does it come from. You're WhatReading does ita do? And what are the means fo Preview doing it. Unlock full access with a free trial.
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“Jurisprudence – Its Meaning”
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Jurisprudence in its limited sense means elucidation of the genera principles upon which actual rules of law are based. It is concerned with the rules of external conduct which persons are constrained to obey. Therefore, etymologically jurisprudence is that science which imparts to us knowledge about ‘law’.
•
The term ‘law’ of course is a term of various connotations; here w use it in its abstract sense, that is to say, not in the sense of concrete statutes but in the sense of general principles underlying law. Thus for example: there are various branches of law prevalent in modern State such as contract, tort, crime, property, trusts, companies labour relations, insolvency etc. and in jurisprudence we have to study the basic principles of each of these branches and we are concerned with the detailed rules of these laws. These have to be Reading a Preview studied in detail whenYou're we study those branches of law separately.
Unlockthe full access with aprinciples free trial. Jurisprudence examines general of penal liability but i does not attempt to detail out the essentials of each offence. In short Download With Free Trial jurisprudence may be considered to be the study and systemati arrangement of the general principles of law. In another sens jurisprudence may be regarded as the philosophy of law dealing with the nature and function of law. This approach to jurisprudence Master your semester with inScribd receiving primacy modern times keeping in view the rapid socia Read Free Foron 30this Days Sign up to vote title has changes taking place all around the world in recent decades. This & The New York Times Not useful Useful Cancel anytime. eventually given rise to what is now termed as the “functio Special offer for students: Only $4.99/month. jurisprudence”, the thrust being on inter-relationship between law and •
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India is now a Sovereign, Socialist, Secular, Democratic, Republic Democracy pre-supposes government of the people, by the people and of the people, and, therefore, citizens are expected to be self restrained and self – disciplined. They should also be conscious o their rights and duties. ‘Law’ plays a significant role in sustaining a stable social order. India being a welfare state, a new Indi jurisprudence needs to be developed so as to ensure that law become an effective instrument of social change in various facets of life.
Law has to play the functional role of harmonizing the conflicting interests of individuals in the society by maintaining equilibri between the freedom of individuals on one hand and social welfare the other.
The study of jurisprudence as a separate branch of knowledge stated with the Romans. ForYou're them,Reading jurisprudence a Previewmeant “knowledge of law” But in the Modern sense this meaning is too vague and gene full access with a free trial. Though the Romans Unlock in practice never confused law with morality o religion, in theory this distinction is hardly found to be in existence in Download With Free Trial earlier times. The definition and conception of jurisprudence Roman jurists may appear to be vague or inadequate in the modern sense of the term, but the credit of recognizing jurisprudence as an independent branch of legal science for the first time goes to Roman Master your semester with which Scribd legal philosophers, eventually paved way to development of the Read Free Foron 30this Days Sign up to vote title subject in the present form. & The New York Times Not useful Useful Cancel anytime. •
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DEFINITIONS OF JURISPRUDENCE :-
The term ‘jurisprudence’ has meant different things at different times. The variation is due to different methods of inquiry and approach to the study of the subject. It is for this reason that Julius Stone has described jurisprudence as “the lawyer’s extraversion” meaning thereby that jurisprudence involves examination of precepts, ideals and techniques of the law by lawyers in the light of disciplines other than law. The definition of jurisprudence as given by some of the eminent Jurists may be stated as follows:
•
Definition According to Ulpian:-
Ulpian defined jurisprudence as- “ the observation of things human and divine, the knowledge of the just and the unjust .”
It connotes more or less the same meaning as the term ‘Dharma’ under the You'rethe Reading a Preview Hindu jurisprudence and covers province of religion, ethics and philosophy. Thus, this definition isaccess too broad and Unlock full with a free trial.has wider connotation. Download With Free Trial •
Definition According to Gray:-
Professor Gray has also defined jurisprudence more or less in the same manner. He opined that “ jurisprudence is the science of law, the statemen Master your with Scribd and semester systematic arrangement of the rules followed by courts and the Read Free Forthe 30this Days Sign up to vote on title principles involved in those rules.” & The New York Times Useful Not useful Special offer for students: Only $4.99/month.
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Thus, jurisprudence deals with that kind of law which consists of rul enforced by courts while administering justice. In other words, the laws o
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Criticism:-
Stone has criticized Gray’s definition and said that Gray has failed determine any province of jurisprudence rather he has reduced jurisprudence to merely a matter of arrangement of rules.
•
Definition According to Salmond :-
Salmond defines jurisprudence as “ the science of the first principles of the civil law.” Thus, he points out that jurisprudence deals with a particula species of law namely, civil law or the law of the State.
The civil law consists of rules applied by courts in the administration o justice. He agrees with Gray in upholding that jurisprudence is concerned with only jurist’s law and it is not concerned with the laws of theologian and moralist although they also govern the conduct of man in society. Th juristic laws regulate external human conduct only and not the inner beliefs man in society. They are enforced by courts of judicial tribunals and carry You're Reading a Preview with them sanctions ranging from capital punishment to a fine or even a mere admonition. Unlock full access with a free trial.
Salmond supports Holland and Austin in holding that jurisprudence is Download With Free Trial science, that is, a systematic study of the basic principles of individu specific legal systems. He classified jurisprudence in ‘ generic’ ‘specific’ sense. The former includes the entire body of legal doctrine whereas the latter means only a particular branch of such doctrine Master your semester According to him, with specificScribd sense alone is the proper jurisprudence because i Read Free Foron 30this Days Sign up to vote title withTimes general principles of a particular legalUseful system. Not useful & The Newdeals York Cancel anytime. Special offer for students: Only $4.99/month. Salmond observed that as the ‘ science of law’ there may be three kinds o jurisprudence:
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Criticism :-
Dr. Allen has objected to the Salmond’s definition on the ground that he has limited the scope of jurisprudence to a particular legal system. It is rather too narrow a view.
•
Definition According to John Austin:-
Austin calls jurisprudence as the “ philosophy of positive law.”
He was the first jurist to make jurisprudence as a science. By the term “ positive law” he meant “ jus positivum”. That is law laid down by particular superior for commanding obedience from his subjects. Thus, it identical with “civil law” of Salmond. Austin pointed out that science of law is concerned with law ‘as it is’ and not ‘as it ought to be’, which considers as the science of legislation.
Austin distinguishes law from those of customs and ethical abstract ideas He preferred to divide jurisprudence into atwo parts, namely: You're Reading Preview (1) General jurisprudence Unlock full access with a free trial. (2) Particular jurisprudence Download With Free Trial
By “General jurisprudence”, he meant “the science concerned w exposition of the principles of nations which are common to all the system of law” whereas “ Particular jurisprudence”, consisted of the science of any suchsemester system of positive as now obtains or once actually obtained in Master your with law Scribd Read Free Foron 30this Days Sign up to vote title specifically determined nation. & The New York Times Not useful Useful Cancel anytime. :Criticism Special offer for students: Only $4.99/month.
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treatment by the science of law. Salmond points out that even if the doctrine of judicial precedent or case-law system prevails only in England, the rule o Stare decisis would be a fit subject for jurisprudence. He concludes tha “ Jurisprudentia generalis or general jurisprudence is not the study of lega systems in general but the study of the general or fundamental elements of a particular legal system.”
Professor Allen regards this statement as meaning that in Salmond’s opinion ‘ Particular Jurisprudence’ is the only kind of jurisprudence properly so called. No doubt, the sentence of Salmond above-quoted seems to warran this view, but what Salmond really repudiates is only the notion of ‘general’ jurisprudence, such as that of Austin, which carries the misleadin suggestion that principles germane to general jurisprudence are such only because they are common to the mature legal systems. That there can be theoretical jurisprudence embodying the principles that are basic to any lega systems is plainly affirmed by Salmond.
Buckland criticised Austin’s concept of ‘general jurisprudence’; he observed that even those who professed this view including Austin himself, did no You're Reading a Preview adhere to it in practice. Unlock full access with a free trial.
Dias and Hughes characterized Austin’s definition of general jurisprudenc as full of ambiguities as it Download lacked amplitude and maturity in the prevailing With Free Trial legal system. •
Definition According to Holland :-
Sir Thomas Erskine Holland defines jurisprudence as “ the formal scienc Master your semester with Scribd Read Free Foron 30this Days Sign up to vote title should only concernitsel of positive law.” According to him, jurisprudence & The Newwith York Times the basic principles or concepts underlying any natural system of law Useful Not useful Special offer for students: Only $4.99/month. Holland defines positive
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law as a general rule of external human action enforced by a sovereign political authority He calls jurisprudence as
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Holland therefore rightly observed, “Jurisprudence deals with the huma relations which are governed by rules of law rather than the material rules themselves.” Since jurisprudence deals only in a “formal or abstract way with those relations of mankind which are generally recognized as having legal consequences”, it is not a material science but rather a formal science of law. Criticism:-
Professor Gray and Dr. Jenks, however, object to the Holland’s description of jurisprudence as a ‘ formal science’. They pointed out that the real relation of jurisprudence to law depends not upon what law is treated, but how law i treated. Gray further stated that in fact jurisprudence is no more forma science than physiology.
Dr. Edward Jenks criticized Holland’s definition of jurisprudence as ‘ forma science of law’ and remarked that jurisprudence cannot be said to be purely formal science because it cannot afford to ignore the social forces which give shape to law. You're Reading a Preview
Dias and Hughes while criticizing Holland observation that the Holland’ Unlock full access with a free trial. analogy of jurisprudence with ‘ geology’ is erroneous. Now the substance and forces became the same everywhere. Law is a social institution and With Free Trial structures of societies differDownload in their objectives, traditions and environments Same is the view of Buckland who put a question, ‘how the principles o geology elaborated from the geology of England alone, hold good all over the globe.’ He further says, ‘law is not a mechanical structure like geologica your semester with Scribd deposits.’
Master Read Free Foron 30this Days Sign up to vote title & The New York also Times criticised Holland for his rejection of particular jurisprudence Useful Not useful Salmond Special offer for students: $4.99/month. He Only supported Austin’s
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particular jurisprudence. He protests agai attributing jurisprudence any quality whatever of generality or universality.
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Definition According to Dean Roscoe Pound :-
According to Pound, “ jurisprudence is 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 .”
He emphasized that there is an inevitable co - relationship betwee jurisprudence and other social sciences. Thus, he opined that “jurisprudence ethics, economics, politics and sociology are distinct enough as the core, bu shade out into each other.”
Pound suggested a separate branch of sociological jurisprudence, which i concerned with the influence of law on society at large. He firmly believed that behind every issue, there is something special; therefore, in the study of jurisprudence, the emphasis should be on the relationship between law and society.
•
Definition According to Dr. Allen:-
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Dr. Allen defined jurisprudence as “ the scientific synthesis of the essentia Unlock full access with a free trial. principles of law.” Though this definition may seem to be abstract at a glance, it surely takes notice of the widening scope of law in its various Download With Free Trial facets.
Definition According to Radcliffe:-
Master your semester with Scribd Read Free Foron 30this Days Sign up vote title atopart of economics He defined “ jurisprudence as a part of history, and & The Newsociology, York Times Useful Not useful life .” Thus, it is and amalgam a part of ethics and a philosophy of •
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of a number of other disciplines inter-woven together for the common good
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E. W. Patterson defined jurisprudence “ as a body of ordered knowledg which deals with a particular species of law.”
BENEFITS OF JURISPRUDENCE :-
Jurisprudence is basically a theoretical subject but it also has a practical and educational value. The practical value or purposes of jurisprudence has been enumerated as under.
REMOVE THE COMPLEXITIES OF LAW : One of the tasks of jurisprudence is to construct concepts and make law more manageable and rational.
ANSWER THE NEW PROBLEMS: Jurisprudence can teach people to look around them and realize tha answers to legal problems must be found by a consideration of the presen Reading a Preview social needs and not in theYou're wisdom of the past.
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Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g. negligence, liability etc.
TRAINING OF MIND: Jurisprudence trains the mind to solve th difficult legal provisions in legal way.
GRASP ON THE SUBJECT: It helps in knowing and grasping th language, grammar, the basics of treatment and assumption upon which subject rests.
USEFUL IN ART OF PLEADING AND LEGISLATION: It help legislators and the lawyers the proper use of legal terminology. It relieves them of the botheration, creation of defining again and again certa expressions e.g. right, duty etc.
TO INTERPRET LAW: It helps the judges and the lawyers ascertaining the true meanings of the law passed by the legislatures You're Reading a Preview providing the rules of interpretation.
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TO STUDY FOREIGN LAW: It enables a lawyer to study foreign Download With Free are Trial generally common to law because the fundamental principles systems of law.
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IMPORTANCE UNDER THE LIGHT OF DIFFERENT JURISTS
Master your semester with Scribd Read Free Foron 30this Days Sign up to vote title By Dr. M.J. Sethna: & The NewThe York Times Useful the Not useful of law and value of jurisprudence lies in examining consequences Special offer for students: Only $4.99/month. its administration
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on social welfare and suggesting changes for betterment of the superstructure of laws.
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SCOPE OF JURISPRUDENCE:-
There is no unanimity of opinion regarding the scope of jurisprudence. I may be discussed under the following three heads: o
EARLY PERIOD:
In the early period, Jurisprudence has been so defined as to cover moral and religious precepts and that has created confusion. o
AUSTINIAN PERIOD:
It was the Austin, who distinguished law from morality and theology and restricted the term to the body of rules set and enforced by the sovereign or supreme law-making authority with in the realm. Therefore, the scope o Jurisprudence was limited to the study of the concept of positive law only. o
MODERN PERIOD:
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Unlock full withthe a freescope trial. At present, there is a tendency to access widen of Jurisprudence canno be circumscribed or limited. It includes all concepts of human order and Download With Free Trial human conduct in human state and society.
“PURPOSE AND SCOPE OF JURISPRUDENCE”
The semester scope of jurisprudence has widened considerably over the years. It is Master your with Scribd Read Free Foron 30 Days Sign up to vote this title generally believed that the scope of jurisprudence cannot be circumscribed & The NewBroadly, York speaking, Times jurisprudence includes allconcepts Useful ofNot useful order and human Special offer for students: Onlyconduct $4.99/month. human in State
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and society. In other words, anything that concerns order in the State and society will be within the domain of jurisprudence.
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Jurisprudence involves certain types of investigations into law, investigation of an abstract, general and theoretical in nature which seeks to lay bare the essential principles of law and legal systems. Elaborating the point further, Salmond observed – “In jurisprudence we are not concerned to derive rules from authority and apply them to problem; we are concerned rather to reflect on the nature of legal rules, on the underlying meaning o legal concepts and on the essential features of legal system.” This makes the distinction between law and jurisprudence amply clear.
Thus, whereas in law we look for the rule relevant to the given situation, jurisprudence we ask, what is for a rule to be legal rule, and wha distinguishes law from morality; etiquette and other related phenomenon. I therefore, follows that jurisprudence comprises philosophy of law and it object is not to discover new rule but to reflect on the rules already known.
Jurisprudence discloses knowledge of general ideas and principles of You're Reading a Preview legal systems, so it is called “ eye of the law”. Certain fundamen Unlock full access with a free trial. conceptions such as negligence liability, mens rea etc. have to be learned before provision of law relating to them can be understood, and With Free Trial jurisprudence teaches theseDownload fundamentals conceptions. Jurisprudence train the mind into legal ways of thought. It teaches the proper use of legal terms and is called grammar of law. The study of jurisprudence helps law makers by providing them brief and clear terminology. It enlightens students and Master your withthemselves Scribdin society Read helpssemester them in adjusting without causing injuries to the Free Foron 30this Days Sign up to vote title other student. & The Newinterest YorkofTimes Not useful Useful Cancel anytime. Special offer for students: Only $4.99/month.
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CONCLUSION:-
Jurists thus have given different definitions of the term ‘jurisprudence However, no one single definition can be said to be universally acceptable Perhaps, the exact connotation of this term is not possible because as a method, jurisprudence deals with concepts which regulate human conduct in accordance with the values, needs and goals of every society. These values needs and goals etc. vary from time to time and from society to society as also within the same society at different times and hence the meaning and scope of jurisprudence also varies.
It is well known that ‘ law’ being a dynamic concept, it changes with th evolution of society under different socio-economic and political conditions The rapid changes in modern times have given rise to new problems and issues which are to be tackled by law through pragmatic approach interpreting law. While doing so, the modern jurisprudence has to take into consideration the social ethos and changing patterns of the society which You're Reading a Preview immensely widens its scope as a science of law. Unlock full access with a free trial.
In the ultimate analysis Holland’s definition of jurisprudence as the forma Download With Free Trial science of positive law seems to be more acceptable. The term ‘ positive law is concerned with an inquiry into the social relations regulated by the rule of law which are imposed by the State and enforced by the law – courts Jurisprudence is a ‘ formal science’ because it only deals with the purposes methods and ideas with of the legal system and not with its concrete details. your semester Scribd
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scope of jurisprudence by classifying it into tw ‘General ’ d ‘ Particular ’ d b i ti t th t
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REFERENCES:
Dr. N. V. Paranjape – “Studies in Jurisprudence & Legal Theory”
Prof. [Mrs.] Nomita Aggarwal – “Jurisprudence (Legal Theory)
V. D. Mahajan - “Jurisprudence and Legal Theory”
P.S.A. Pillai – “Jurisprudence and Legal Theory”
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