JURISPRUDENCE

Meaning and nature of ‘Jurisprudence’ - Purpose and value of

Jurisprudence
 MEANING & NATURE OF JURISPRUDENCE: DEFINITION
The English word "Jurisprudence" has been taken from a Latin word
"Jurisprudentia", which consists of two words, 'Juris' and 'prudentia'.

'Juris' means law and 'Prudentia' means knowledge. Jurisprudence, therefore,

literally means knowledge of law and its application.

It is difficult to give a singular definition of the term. Since the growth and
development of law in different countries has been under different social and
political conditions, the different jurists have given different definitions
according to their own notion of the subject-matter and so it is not possible to
give a universal and uniform definition of Jurisprudence.
Different jurists have defined this term in different ways:

Ulpian: According to Ulpian "Jurisprudence is the knowledge of things human

and divine, the science of the just and unjust". The definition given by Ulpian is
wide and broad enough because it includes the term 'Dharma' under Hindu
Jurisprudence. It also covers the province of religion, ethics and philosophy.

Criticism: The above definition is wide and broad enough because it includes the
term 'Dharma' under Hindu Jurisprudence. It also covers the province of
religion, ethics and philosophy. The modern jurisprudence does not study the
spiritual salvation. It is now-a-days confined only to what Hindu jurists
described as 'Vyavahara' which means those rules that determines the
judicial proceedings or controversies.
Prof. Gray: According to Prof. Gray "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."

Prof. Gray is of the opinion that jurisprudence deals with that kind of law which
consists of rules enforced by courts while administering justice. In other words,
the laws of the jurists deal with man and seek to regulate external human
conduct in the society. It does not concern itself with the inner beliefs of man
imposed in religious laws, which derive their authority from superhuman source
which we call 'God'. The sanction for their enforcement is spiritual reward or
curse according to man's deeds.
Holland: According to Holland "Jurisprudence is the formal science of positive
law." It is wrongly applied to actual systems of law, or to current views of laws,
or to suggestions for its amendment, but is the name of a science. The science is
a formal, or analytical, rather than a material one. It is the science of actual or
positive law. The essential ingredients of his definition of jurisprudence are as
under-
1. Formal
2. Science
3. Positive Law

Holland's definition of jurisprudence has been criticized by various jurists like

Gray Dr. Jenks and Prof. Platt.
According to Gray "Jurisprudence is, in truth, no more a formal science than
physiology, so the acts and forbearances of men and the events which happen to
them are the subject-matter of jurisprudence and physiology could as well
dispense with the former as jurisprudence with the latter."
Salmond: Salmond has defined jurisprudence in two different senses:

1.In Wider (Generic) Sense: According to Salmond, "Jurisprudence in wider

sense means the science of civil law." Salmond says that in a generic and
primary sense jurisprudence includes the entire body of legal doctrine. Since
jurisprudence is the knowledge of law, from this point of view it includes the
entire book of laws.

2.Narrow (Specific) Sense: Salmond distinguishes jurisprudence in its generic

sense, as including the entire body of legal doctrine, from jurisprudence in a
more specific sense, in which it means a particular department of such doctrine
exclusively. He says that in its limited significance it may be called theoretical or
general jurisprudence to distinguish it from the more practical and special
departments of legal study. In this sense "Jurisprudence is the science of the first
principles of civil law."
The words which are used by Salmond in his definitions may be explained as under-
1. Law: According to Salmond, "Law is the body of principles recognised and applied by
the state in the administration of justice."
2. Civil Law: The term 'civil law' is derived from the Latin word "Civitas" which means
State. Thus, civil law means law made by state. It means the law of the land as opposed
to other bodies of rules to which the name of law has been extended by analogy.
3. Science: According to Salmond, if we use the term science in its widest permissible
sense, as including the systematized knowledge of any subject of intellectual
inquiry, jurisprudence may be defined as the science of civil law. It is a science as
distinguished from arts and indicates in its widest sense all those subjects which
directly or indirectly treat of the science of law.
Salmond says that as the 'science of law' there may be three kinds of jurisprudence-
a. Expository or systematic jurisprudence, which deals with the contents of an actual
legal system, as existing at any time whether past or present.
b. Legal history, which is concerned with the legal system in its process of historical
development.
c. The science of legislation, the purpose of which is to set forth law as it ought to be. It
deals with the ideal future of the legal system and the purpose which it may serve.
Austin: According to Austin "Jurisprudence is the Philosophy of Positive Law." He
was the first jurist to make jurisprudence as a science. By the term "Positive Law"
he means 'jus positivum', that is law laid down by a political superior for
commanding obedience from his subjects. Austin divides jurisprudence into two
parts, namely-
General jurisprudence; and
Particular jurisprudence.
By "General jurisprudence", he meant 'the science concerned with exposition of
the principles of nations and distinctions which are common to all the systems of
law' whereas Particular Jurisprudence consisted of the science of any such
system of positive law as now obtains or once actually obtained in specifically
determined nation.
Allen: According to Dr. Allen "Jurisprudence is the scientific synthesis of the
essential principles of law".
Paton: According to Paton "Jurisprudence is a particular method of the study not
of the law of one particular country but of the general notions of law itself."
Paton is of the opinion that jurisprudence studies the basic or fundamental
principles or general notions of law itself.
 NATURE AND SCOPE OF JURISPRUDENCE

Nature: Jurisprudence in its nature is entirely a different subject

from other social sciences. The reason for this is that it is not
codified but a growing and dynamic subject having no limitation of
itself. Every jurist does not base his study on the rules made but tries
to understand their utility after due deliberation. So it can be said
that Jurisprudence has no limited scope being a growing subject.
There is a difference of opinion about the nature of jurisprudence. It
is called both Art and Science. But to call it science would be more
proper and useful. The reason for this is that just as in science we
draw conclusions after making a systematic study by inventing new
methods, Jurisprudence is concerned with the fundamental
principles of law and systematic and scientific study of their
methods.
Scope: Jurisprudence includes all concepts of human order and conduct in State
and Society.
“Jurisprudence is both an intellectual and idealistic abstraction as well as
behavioural study of man in society. It includes political, social, economic and
cultural ideas. It covers the study of man in relation to State and Society."
Salmond has also opined that "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 of 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 rules relevant to the given situation, in jurisprudence we ask what is for a
rule to be a legal rule, and what distinguishes law from morality, etiquette and
other related phenomenon. It, therefore, follows that jurisprudence comprises
philosophy of law and its object is not to discover new rules but to reflect on the
rules already known.
Contents of Jurisprudence:
1. Sources: It is true that the basic features of a legal system are mainly to be
found in its authoritative sources and the nature and working of the legal
authority behind these sources. Therefore, it obviously forms the contents of
jurisprudence. Subject such as custom, legislation, precedent as a source of law,
pros and cons of codification of laws, methods of judicial interpretation and
reasoning, an inquiry into the administration of justice etc. are included for study.
2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such
as rights, titles, property, ownership, possession, obligations, acts, negligence,
legal personality and the related issues. The study of these abstract legal
concepts furnishes a background for better understanding of law in its various
forms.
3. Legal Theory: Legal theory is concerned with law as it exists and functions in
the society, and the manner in which law is created and enforced as also the
influence of social opinion and law on each other.
Importance of Jurisprudence: Salmond opines that jurisprudence has its own
intrinsic interest like any other subject of serious scholarship. Just as a
mathematician investigates the number theory not with the aim of seeing his
findings put to practical use but by reason of the fascination which it holds for
him, likewise the writer on jurisprudence may be impelled to his subject by
its intrinsic interest. The legal researches on jurisprudence may well have their
effect on contemporary socio-political thought and at the same time may
themselves be influenced by these ideologies.

Practical Applicability: Jurisprudence also has its practical applicability. It seeks

to rationalize the concepts of law which enables us to solve the different
problems involving intricateness of law. In other words, it serves to render the
complexities of law more manageable and rational and in this way theory can
help to improve practice in the seats of law.
Educational Value: Jurisprudence has great educational value. The logical analysis
of legal concepts widens the outlook of lawyers and sharpens their logical
technique. It helps them in shading aside their rigidity and formalism and trains
them to concentrate or social realities and the functional aspects of law. It is not
the form of law but the social function of law which has relevance in modern
jurisprudence. Law has to take the needs of society and also of the advances in
related and relevant disciplines such as sociology, economics, philosophy etc.
The proper understanding of law of contract may perhaps require some
knowledge of economics and economic theory or a proper grasp of criminal law
may need some knowledge of criminology and perhaps also of sociology.

Holland: Commenting on the significance and utility of jurisprudence,

Holland observed, "The ever renewed complexity of human relations calls for
an increasing complexity of legal details, till a merely empirical knowledge of law
becomes impossible." Thus, jurisprudence throws light on the basic ideas and the
fundamental principles of law in a given society. This is why it has been
characterized as "the eye of law" by some jurists.
Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the
laws passed by the legislatures by providing the rules of interpretation. It also furnishes
them an opportunity to pinpoint the lacunae, short-comings and defects in the laws
framed by the legislature and remedy them through their judicial interpretation.
 
The study of jurisprudence helps in rationalizing the thinking of the students and
prepares them for an upright civil life. The knowledge of law and legal precepts also
helps them to face every exigency of human affairs boldly and courageously.

Jurisprudence may also be helpful to legislators who play crucial role in the process of
law-making. The study of jurisprudence may familiarize them with technicalities of law
and legal precepts thus making their job fairly easy as also interesting. The utility of
jurisprudence should be tested in the light of its functional role and in the context of
the prevailing socio-economic and political philosophies of the time, place and
circumstances. The law should serve the purpose of 'social engineering' by preserving
societal values and eliminating conflicting interests of individuals in the society.
Jurisprudence is the Eye of Law: On account of the importance of jurisprudence in the
field of law is called "the eye of law". The eyes are one of the most important parts of
human body. Almonds all human activities and the movements of body are possible
only through them. Unless man can see things properly, he cannot do any work. The
reason of calling jurisprudence the 'eye of law' is that jurisprudence functions for law in
the same manner as the eyes do in human body.

The main function of jurisprudence is to study the origin of law, its development and
its contribution towards society. Law is the only nearest and important aspect in the
absence of which the existence of a peaceful and organised society cannot be
imagined. Laws are the basis of all nation-activities. The proper existence of State is in
obedience of personal rights and liabilities of people and the conduct of national
activities depends on the existence of solid and perfect law.

The matters relating to birth, marriages, death, succession etc., are equally controlled
through laws. Hence it is essential to know the correct basic principles of law which are
contained only in the jurisprudence. It is necessary that the people should have a
sound knowledge of law which is possible only with the help of jurisprudence.
Therefore, jurisprudence, having so much importance for the society, has rightly been
called the eye of law.
Value of Jurisprudence:
Jurisprudence does not contain a sets of rules as in contracts or torts
and also has limited practical application. However, it has its own values,
unique and distinctive.
i) The subject has its own intrinsic interest.
ii) Its researches have influenced other subjects in the field of
political, medical, and social thinking.
iii) It is educative, as it sharpens the lawyers own techniques.
iv) Its method and explanations help resolve the complexities of
law. Thus, theory helps law to solve problems.