Introduction to Jurisprudence5 min read

BY-AMAN GUPTA

Meaning & Definition:-

‘Jurisprudence’ is derived from the Latin term Jurisprudentia which consists of two words; Juris which means Law and Prudentia which means Knowledge that is, Knowledge of Law. Basically, it is a branch of study where all the Laws of the world have been studied.

Oxford Dictionary defines the Jurisprudence as the systematic and formulated knowledge or the science of human law.

Encyclopedia Britannica:- According to this dictionary, every study, research, speculations aim to answer the simple question of what is law, is jurisprudence.

Bentham is known as the father of Jurisprudence. He was the first who made a sense as to what constitutes a law. His research is divided into two sections:

1.The Expositorial law, examines the law “as it is” — command of the sovereign

2.Censorial approach, examines the law “as it should be” — Legal Morality

On the other hand, Bentham pupil Austin occupied himself with Expositorial law. Austin analyzed the English law as it is rather than as it ought to be. He works for systematic English law and definition.

Jurist’s view:-

Many jurists like Austin, Salmond, Holland etc, have given their own definitions based on their own notions of the subject matter and the proper limit of jurisprudence depends upon their ideology and the nature of society.

Austin view:- In the view of Austin the science of Jurisprudence is concerned with positive law with law strictly so-called. It has nothing to do with the goodness or badness of law.

Austin divided Jurisprudence in two parts;

  1. General Jurisprudence
  2. Particular Jurisprudence

In General Jurisprudence, Austin opined that it includes all slaw systems that are common throughout the world .On the other hand, Particular Jurisprudence is confined only to study of any actual system of law.

Criticism of Austin view:- Many jurists like Salmond, Holland, etc, criticized the Austin classification in general and particular. Its impracticability is the main reason for rejection. Salmond points out that the error in Austin’s idea of General Jurisprudence lies in the fact that he assumes that unless a legal principle is common to many legal systems, it can not be dealt with in General Jurisprudence.

Holland also criticized the classification of Austin, referring to the particular jurisprudence of Austin, pointed out that it is only the material which I particular and not the science itself. The criticism of Holland based on the assumption that law has the same character all over the world but that is opposed to human experience. Dias and Hughes point out serious ambiguities in Austin’s definition of General Jurisprudence. Austin gives no criterion for amplitude and maturity.

Holland’s view:- Sir Holland defines Jurisprudence as “the formal science of positive Law”. It is a formal or analytical science rather than material science. The positive law has been defined by Holland as the general rule of external human action enforced by a sovereign political authority.

Criticism of Holland view:- Many eminent jurists criticized  Holland’s view.

Dr. Grey criticized in this way, “jurisprudence is in truth, no more a formal science than physiology. As bones and muscles are the subject matter of physiology, so the act and forbearances of men and the event which happen to them are the subject matter of it and physiology could as well dispense with the former as jurisprudence with the latter.”

Prof. Platt also criticizes the definition of Holland in these words: “without resorting to acting and forbearances and to the state of facts under which they are commanded law cannot be differentiated at all; not so much as the bare framework of its chief department can be erected 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 a straw but without clay as well.”

Salmond’s view:- Salmond defines jurisprudence as ‘the science of law”. By law, he means the law of land or civil law. He makes a distinction between the use of the term in two senses;

  1. Generic Sense
  2. Specific Sense

Generic Jurisprudence includes the entire body of legal doctrines whereas Specific Jurisprudence deals with a particular department of those doctrines.

Salmond further divided the specific sense in three branches;

  1. Expository or Systematic or Analytical Jurisprudence
  2. Legal History
  3. Science of legislation

Expository or Systematic or Analytical Jurisprudence deals with the contents of an actual legal system as exiting at any time, whether in the past or in the present.

Legal history is concerned with a legal system in its process of historical development.

The purpose of the science of legislation is to set forth the law it ought to be. It deals with the idea of the legal system and the purpose for which it exists.

Keeton’s View:- He considers jurisprudence as “the study of Systematic arrangement of the general principle of law”. According to him, it deals with the distinction between public and private laws and considers the contents of the principal department of law.

Ulpian’s View:- He defines Jurisprudence as that “the knowledge of things divine and human, the science of just and unjust”. This definition was criticized by many jurists because of its too vague and inadequate character.

Pound’s View:- He defines Jurisprudence as  “ the science of law, using the term law in the juridical sense, as denoting the body of principle recognized or enforced by the public and the regular tribunals in the administration of justice”.

Dr. Allen’s View:- He defines it as the scientific synthesis of the essential principle of law.

Paton’s View:-According to him, it is a proper way to study the law of one country and the general concepts and rules of whole-word law.

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