Jurisprudence and its practical value
- Nature and scope of jurisprudence
- Define jurisprudence. Discuss the nature and scope of jurisprudence
- Define jurisprudence and analyse the scope of its study
- What is the meaning of the word jurisprudence? Explain in detail?
Introduction
It is difficult to give a universal and uniform definition of jurisprudence. 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. Moreover, the growth and development of law in different countries has been under different social and political conditions.
Definition
The ordinary dictionary meaning of the word "jurisprudence" is the "science or knowledge of law". It is a derivative of the Latin word "jurisprudential". This word as is evident is composed of two words ``juris" and "prodentia". Juris means "Law" while prudence/ prudential means wisdom or knowledge. Thus it is the knowledge of law or "wisdom of law.
Definition by different jurists
(i) Salmond
According to Salmond, if we use the term science in its widest permissible sense, as including the systematised 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 connotes in its wide sense all those subjects which directly or indirectly treat the science of law. It is a study not of the law of one particular country but of the general notion of law itself. Every law is based on certain fundamental principles and those principles are common to all legal systems. Jurisprudence thus confines itself to a systematic and scientific study of the existing rules of law.
(ii) Holland
Holland elucidates the statement that jurisprudence is a formal or analytical science as opposed to a material one by observing that it deals rather with the various relations which are regulated by legal rules than with the rules themselves which regulate those relations. It is not the material science of those portions of the law that various nations have in common, but the formal science of those relations of mankind which are generally recognized as having legal consequences.
(iii) Keeton
Keeton considers jurisprudence as "the study and systematic arrangement of the general principles of law". Jurisprudence considers the elements necessary for the formation of a valid contract but it does not attempt to enter into a full exposition of the detailed rules of the law of contract, either in English law or in other systems.. It analyses the notion of status and considers the most important examples, but it does not consider exhaustively the points in which persons of abnormal status differ from ordinary persons. Jurisprudence deals with the distinction between public and private laws and considers the contents of the principal departments of law.
(iv) Ulpian
The celebrated Roman jurist Ulpian defined jurisprudence as the "knowledge of things human and divine, the science of the just and the unjust." This definition is vague and indefinite and characterises the notion of law that prevailed in the beginning of Roman civilization. It is more akin to the ancient Hindu concept of jurisprudence, which was permeated by the central idea of dharma that applied equally to the king and the subject without any distinction. According to Jaimini ``that which is signified by a command and leads to a benefit is called dharma."
(v) Cicero
Cicero defines jurisprudence as "the philosophical aspect of the knowledge of law".
(vi) Gray
According to 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.
(vii) Dean Roscoe
Dean Roscoe Pound defines jurisprudence as "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".
(viii) Lee
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".
(x) C.K. Allen
According to C.K. Allen, "Jurisprudence is the scientific synthesis of all the essential principles of law".
(xi) G. W, Paton
The view of G.W. Paton is that "jurisprudence is a particular method of study, not of the law of one country, but of the general notion of law itself. It is a study relating to law".
(xii) Clark
Clark writes that jurisprudence is the science of law in general. It does not confine itself to any particular system of law but applies to all the systems of law or to most of them, It gives the general ideas, conception and fundamental principles on which all or most of the systems of laws of the world are based.
(xiii) Julius Stone
The view of Julius Stone is that jurisprudence is the lawyer's extraversion. It is the lawyer's examination of the precepts, ideals and techniques of the law in the light derived from present knowledge in disciplines other than the law...
Nature and practical value of jurisprudence.
It envelops in its ambit a certain type of investigation into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and the legal system.
In jurisprudence, we are not concerned with deriving rules from authority and applying them to solve problems that may be confronting us in our day-to-day lives. We are rather involved in reflecting on the essential features of legal systems. In fact, jurisprudence comprises the philosophy of law the object of which is not to discover new rules but to reflect on the rules since in existence and known. It is just as the philosopher of Science concerns himself with the scientific laws already discovered rather than with the discovery of new laws. Take the case of Medical jurisprudence which reflects on the essential features of law relatable to medical science. It is not apt to discover new rules of law but merely discuss those that already exist. Precisely speaking jurisprudence is a subject without its applicability.
The writer on jurisprudence may well be impelled to his subject by nothing more than its intrinsic interest. Jurisprudence is not without its practical value although of a long character. It also has educational value since the logical analysis of legal concepts sharpens the reader's own logical techniques.
Scope of Jurisprudence
There is no unanimity of opinion regarding the scope of jurisprudence. Different authorities attribute different meanings and varying premises to law and that causes differences of opinion about the exact limits of the field covered by jurisprudence. Jurisprudence has been so defined as to cover moral and religious precepts also and that has created confusion. It goes to the credit of Austin that he 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 within the realm. Thus, the scope of jurisprudence was limited to the study of the concepts of positive law and ethics and theology falls outside the provision of jurisprudence.
There is a tendency to widen the scope of jurisprudence and at present, we include what was previously considered to be beyond the provision of jurisprudence. The present view is that the scope of jurisprudence cannot be circumscribed or regimented. It includes all concepts of human order and human conduct in the State and society. Anything that concerns order in the State and society falls under the domain of jurisprudence. P.B. Mukherji writes that new jurisprudence is "both an intellectual and idealistic abstraction as well as the behaviouristic study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man about State and society".
Thurman W. Arnold defines jurisprudence "as the shining but unfulfilled dream of a world governed by reason, For some, it lies buried in a system, the details of which they do not know. For some, familiar with the details of the system, it lies in the depth of unreal literature. For others, familiar with its literature, it lies in the hope of a future enlightenment. For all, it is just around the corner".
The view of Lord Radcliffe is that jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.
Study of Jurisprudence
The traditional classification of approaches into analytical, historical, ethical and sociological has been rejected. The new approaches are the empirical and a priori approaches. The former proceeds from facts to generalisations and the latter starts with a generalisation in the light of which facts are examined. A priori generalisation must have been constructed on an empirical basis and an empirical investigation is often greatly facilitated by a priori concept as a starting point. Thus, a constant use is made of both approaches. The particular basis of the approach derives its material exclusively from one system of law. The comparative basis of the approach derives its material from more than one system. The general basis presupposes certain notions common to all or a large number of systems. Jurisprudence is regarded primarily as a discipline in how to think for oneself and not something to know. Its value lies in the analysis from which conclusions may be drawn and not the formulation of any final conclusion.
Purpose of Jurisprudence
It provides knowledge of the general ideas and principles lying at the root of all rules of law. It is in fact the eye of the law. It trains the mind into legal ways of thought and affords a key to the solution of many provisions of singular and unaccountable law. It is in fact the grammar of law that teaches the proper use of legal terms and ensures homogeneity and accuracy in legal phraseology. Certain fundamental conceptions such as negligence, liability mens rea, and actus reus discussed therein have to be grasped before the relative provisions of law can be thoroughly understood. To fully appreciate the existing system of law it would be necessary to know the grammar of law and to understand the fundamentals of law. As viewed by Salmond jurisprudence in its narrow sense is limited to the consideration of the basic or fundamental principles of law i.e., all laws of the land whether these be civil, criminal or military laws. In this restricted sense jurisprudence is the science of the first principles of civil law or we may say the abstract principles of law as distinguished from its concrete provisions of law. Thus the present study of jurisprudence is confined to theoretical i.e., expositive minus practical jurisprudence.