Jurisprudence: Concepts and Definitions PDF

The concept of jurisprudence has been a controversial issue since its inception. This has been debated on many occasions but no certain and definite definition of the term has been arrived at, which may be acceptable to all the jurists of the world. Many reasons are attributed for such a phenomenon...

The concept of jurisprudence has been a controversial issue since its inception. This has been debated on many occasions but no certain and definite definition of the term has been arrived at, which may be acceptable to all the jurists of the world. Many reasons are attributed for such a phenomenon in the field of legal philosophy. Jurisprudence is the story of movements of thoughts and ever-changing ideas. Rapid developments are taking place in physical sciences. They in turn, bring about a change in the people's social and moral notions and because law is influenced by current notions of morality and ethics, it becomes difficult to decide once for all the meaning of jurisprudence. Meaning and Definition of Jurisprudence The word jurisprudence is derived from its Latin equivalent "Jurisprudentia", , meaning knowledge of law. 'Juris' denotes law and 'prudentia' denotes knowledge. In the Oxford English dictionary, jurisprudence is defined as "knowledge or skill in law; the philosophy of law; a system or body of law. Various Definition of Jurisprudence According to the Encyclopaedia Britannica, "Jurisprudence is the name given to those studies, researches and speculations which aim primarily at answering the plain man's question: What is law"? Ulpian, the great Roman jurist, defined jurisprudence as, "the knowledge of things divine and human, the science of right and wrong". He believed that there was some absolute right to which law should conform and the jurist must know it. That is why another great Roman Jurist Paulus said that "law is not to be deduced from the rule, but the rule from the law". These definitions and conceptions of jurisprudence by Roman jurists however vague, inadequate or primitive they may be deserve special credit because they put the idea of a legal science which has an existence independent of the actual institutions of a particular society. According to Salmond, jurisprudence is the name given to 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 legal system. He defined jurisprudence as 'science of civil law. According to him, if we use the term science in its widest permissible sense, including the systematized knowledge of any subject of intellectual inquiry, jurisprudence may be defined as science of civil law. Jurisprudence thus confines itself to a systematic and scientific study of the existing rules of law. By 'civil law' is meant the law of land. The word 'civil law does not include International law and since jurisprudence is the science of civil law, International law goes out of the orbit of jurisprudence. Salmond does not favour the use of the term 'Positive' law. He says that the term civil law, as indicating the law of the land, has been partially superseded in recent times by improper substitute, 'positive law. According to him the word 'positive' law is derived from the expression 'jus positivum' which was a term invented by the medieval jurists to denote law made or established by human authority as opposed to 'jus naturals' which was uncreated and immutable. All law is positive that is not natural. According to Salmond, International law is a positive law because it is a kind of 'jus positivum'. In this respect Salmond differed from Austin who did not consider International law as positive law. Holland's Definition of Jurisprudence Holland has defined jurisprudence as "the formal science of positive law'?. According to Holland, jurisprudence is a formal, or analytical science, as opposed to material one and deals rather with the various relations which are regulated by legal rules than with the rules themselves which regulate those relations. He says that jurisprudence is a 'formal' science rather than material one. It means that jurisprudence deals more with the form and outer aspect, rather than with the matter and contents of law. It concerns itself with the basic ideas and fundamental principles of various systems of law law made by sovereign political authority. rather than with laws themselves. By 'positive law' Holland means Criticism of Holland's Definition of Jurisprudence Dr. Edwards Jenks objects to Holland's definition of jurisprudence as a purely formal science. He says that it is true that a jurist can only recognize a law by its form, for it is the form which causes the manifold matter of the phenomenon to be perceived. But the jurist, having got the form as it were on the operating table, has ence dge ned 0 a aw' the of ve' he er IW m ed e n f Roscoe Pound's Definition 3 to dissect it and ascertain its meaning. He concludes by observing that "to say that jurisprudence is concerned only with forms, is to degrade it from the rank of science to that of a craft. According to Professor Gray, jurisprudence stands for the scientific treatment of law and it is not desirable that its natural meaning should be limited and restricted in the manner it has been desirable that its natural meaning should be limited and restricted in the manner it has been done by Holland. He criticizes Holland's definition of jurisprudence as being too cryptic and narrow. He observes that, "An attempt to construct, quite apart from all the matter of law, even the most general conception of ownership or contract would be like trying to make bricks not merely without straw, but without clay as well". The criticisms of Holland's definition appear to be based on the view that Holland gave no place whatever to the matter of law. The subject-matter of law is certainly relevant and may be important in the first stage but the material aspect does not form the be-all and end-all of jurisprudence. Without its formal and analytical aspect, jurisprudence will be reduced to a number of facts heaped together. Therefore, the truth lies not in denying one or the other but in giving both the matter and the form their due. In order to give a wider meaning to the definition, it would be better to define jurisprudence as a science without putting any qualifying epithet before the word science. According to Allen, jurisprudence is the scientific synthesis of the essential principles of law. According to professor Keeton, jurisprudence is a study and systematic arrangement of the general principles of law. According to Gray, jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by courts and the principles involved in those rules. Roscoe Pound's Definition of Jurisprudence 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" Roscoe Pound emphasised that there is an inevitable co-relationship between jurisprudence and other social sciences. Thus, he opined that jurisprudence 'ethics' economics, politics and sociology are distinct enough as the core, but shade out into each other" Pound suggested a separate branch of sociological jurisprudence, which is concerned with the influence of law on society at large. He firmly believed that behind every issue, there is something social. Therefore in the study of jurisprudence the emphasis should be on the relationship between law and society. Definition Given by Dr. M.J. Sethna Dr. Sethna defined jurisprudence as the study of fundamental legal principles including their philosophical, historical and sociological bases and an analysis of legal concepts. Thus he adopts a synthetic approach to the study of jurisprudence for he believes any knowledge is a synthetic whole and cannot be divided into water-tight compartments. Dr. Sethna refers to the definition of civil law as "all that body of principles, decisions or agencies in a state for regulating rights, duties and liabilities and enforced through the mechanism of in a state for regulating rights, duties and liabilities and enforced through the mechanism of judicial process, securing obedience to the sovereign authority in the state. Dr. Sethna advocated a synthetic study of different branches of jurisprudence namely analytical, historical, philosophical, sociological etc to be taken together as a whole. Austin Defined Jurisprudence as "Jurisprudence is the science of positive law". At one place of his popular work 'province of jurisprudence determined', Austin described jurisprudence as philosophy of positive law. In order to understand the meaning of this definition, one is supposed to know the concepts of science and philosophy on the one hand and positive law on the other. During the 18 century it had become fashionable to study every branch of learning including physical sciences, from the point of view of its philosophy. Accordingly jurisprudence was regarded as philosophy of law. Even before the 18th century, jurisprudence was called philosophy of law, as the scope of jurisprudence was unlimited and not known to the legal world. But later on, during the 19th and 20th centuries it came to be known as science of law, because the scope of jurisprudence had become determined and make known to the legal thinkers. At present, the scope of jurisprudence as a subject is again becoming widened as it is invading upon the boundaries of other social sciences. It is therefore once again becoming and acquiring the outlooks of a philosophical subject. The second important aspect of the definition of jurisprudence as attempted by Austin is the concept of positive law. Positive law may be explained in a simple way. A law which is posited by human agency is called positive law. It is the study of what the law is at present and not what it ought to be. The existing legal system of a country may also comprise of positive law which must have been laid down by political superior for controlling the conduct of political inferior in a political and independent society. According to Austin, the positive law is the subject matter of jurisprudence. Thus to Austin, jurisprudence is the systematic study of the existing legal system which is based upon legislation. According to Kelsen, "Jurisprudence is a science of norms or normative science". It is concerned with the hierarchy of norms. It is knowledge of norms. He further said that the task of legal theory is to clarify the relation between the basic norm called the Grundnorm and all other inferior norms and not to enter into the question regarding the nature and source of Grundnorm. Today, jurisprudence is treated as thought about law, rather than the knowledge of law. jurisprudence provokes a jurist to think about law. Any kind of thinking relating to law is termed as jurisprudence. After discussing the definitions given by the various jurists and pointing out their shortcomings we can conclude by saying that, "Jurisprudence is a study relating to law"