Meaning Nature and Scope of Jurisprudence
Meaning Nature and Scope of Jurisprudence
Meaning Nature and Scope of Jurisprudence
The word “jurisprudence” has been derived from a Latin word ‘Jurisprudentia’,
which in its widest sense, means ‘knowledge of law’. The Latin word `juris’
means law and “prudentia” means skill or knowledge. Thus, jurisprudence
signifies knowledge of law and its application. In this sense it covers the whole
body of legal principles in the world.
The Indian jurisprudence owes its origin to the ancient concept of Dharma which
was considered to be the best way to discipline one’s mind.
Jaimini has defined Dluuma as “that which is signified by a command, and leads
to man’s material and spiritual salvation.”
Professor Gray has opined that “jurisprudence is the science of law, the statement
and systematic arrangement of the rules followed by the courts and the principles
involved in those rules.” Thus, jurisprudence deals with that kind of law which
consists of rules enforced by courts while administering justice. In other words, the
law of the jurist deals with man and seeks to regulate external human conduct in
the society.”
Salmond defines jurisprudence as the “Science of the first principles of the civil
law.” Thus, he points out that jurisprudence deals with a particular species of law,
viz., civil law or the law of the State. The civil law consists of rules applied by
courts in the adminsitration of justice. He agrees with Gray in upholding that
jurisprudence is concerned with only jurist’s law and is not concerned with the
laws of theologian and moralist although they also govern the conduct of man in
society. The juristic laws regulate external human conduct only and not the inner
beliefs of man. They are enforced by courts of judicial tribunals and carry with
them sanctions ranging from capital punishment to a fine or even, a mere
admonition. The certainty of the sanctions and the existence of a determinate
authority for enforcement distinguish jurist’s law from that of the moralist.
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 was the first one to analyze what is law. He divided his study into two
parts:
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.
Definitions by:
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.
He said that it is only the material which is particular and not the science itself.
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-ordinate 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:
Scope of Jurisprudence:
After reading all the above mentioned definitions, we would find that Austin was
the only one who tried to limit the scope of jurisprudence. He tried to segregate
morals and theology from the study of jurisprudence.
1. This subject has its own intrinsic interest and value because this is a subject
of serious scholarship and research; researchers in Jurisprudence contribute
to the development of society by having repercussions in the whole legal,
political and social school of thoughts. One of the tasks of this subject is to
construct and elucidate concepts serving to render the complexities of law
more manageable and more rational. It is the belief of this subject that the
theory can help to improve practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis
of the legal concepts and it sharpens the logical techniques of the lawyer.
The study of jurisprudence helps to combat the lawyer’s occupational view
of formalism which leads to excessive concentration on legal rules for their
own sake and disregard of the social function of the law.
The study of jurisprudence helps to put law in its proper context by
considering the needs of the society and by taking note of the advances in
related and relevant disciplines.
4. Jurisprudence can teach the people to look if not forward, at least
sideways and around them and realize that answers to a new legal problem
must be found by a consideration of present social needs and not in the
wisdom of the past.
3. Jurisprudence is the eye of law and the grammar of law because it throws
light on basic ideas and fundamental principles of law. Therefore, by
understanding the nature of law, its concepts and distinctions, a lawyer can
find out the actual rule of law. It also helps in knowing the language,
grammar, the basis of treatment and assumptions upon which the subject
rests. Therefore, some logical training is necessary for a lawyer which he
can find from the study of Jurisprudence.
It trains the critical faculties of the mind of the students so that they can
dictate fallacies and use accurate legal terminology and expression.
4. It helps a lawyer in his practical work. A lawyer always has to tackle new
problems every day. This he can handle through his knowledge of
Jurisprudence which trains his mind to find alternative legal channels of
thought.
5. Jurisprudence helps the judges and lawyers in ascertaining the true meaning
of the laws passed by the legislators by providing the rules of interpretation.
Therefore, the study of jurisprudence should not be confined to the study of
positive laws but also must include normative study i.e. that study should
deal with the improvement of law in the context of prevailing socio-
economic and political philosophies of time, place and circumstances.
6. Professor Dias said that ‘the study of jurisprudence is an opportunity for the
lawyer to bring theory and life into focus, for it concerns human thought in
relation to social existence’.
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