The word 'Jurisprudence' is derived from a Latin word 'Jurisprudentia, which in its widest sense, means 'knowledge of law' or skill in law. The Latin word 'Juris' means law and 'prudentia' means skill or knowledge. Thus jurisprudence signifies knowledge of law and it application. In this sense it covers the whole body of legal principles in the world. The history of the concept of law reveals that jurisprudence has assumed different meanings at different times. It is therefore, difficult to attempt a singular definition of the term. It has a long history of evolution beginning from classical Greek period to 21st Century modern jurisprudence with numerous changes in its nature in various stages of its evolution.
During the formative era of the common law in England, the term 'Jurisprudence' was being used in a generic sense to include the study of various facets of law. However, in the early decades of the 19th century with the theories propounded by Bentham and his disciple Austin, the term 'Jurisprudence' acquired a definite meaning. Bentham differentiated between study of law as 'it is' and 'as it ought to be' and called the 'expositorial' and 'censorial' jurisprudence respectively. Later, Austin concerned himself mainly with the formal analysis of the English law and its related concepts, which still continues to be the basic contents of English jurisprudence.
It is well known that 'law' being a dynamic concept; it changes with the evolution of society under different socio-economic and political conditions. The rapid changes in modern times have given rise to new problems and issues which are to be tackled by law through pragmatic approach in interpreting law. While doing so, the modern jurisprudence has to take into consideration the social ethos and changing patterns of the society which immensely widens its scope as a science of law.
Jurisprudence - Its meaning
Jurisprudence, in its limited sense, means elucidation of the general principles upon which actual rules of law are based. It is concerned with rules of external conduct which persons are constrained to obey. Therefore, etymologically jurisprudence is that science which imparts to use knowledge about "law". The 'law' of course is a term of various connotations; here we use the term 'law' in its abstract sense, that is to say, not in the sense of concrete statues but in the sense of principles underlying law. Thus, for example, there are various branches of law prevalent in a modern State such as contract, tort, crime, property, trusts, companies, labour relations, insolvency etc. and in jurisprudence we have to study the basic principles of each of these brances and we are not concerned with detailed rules of these laws. There have to be studied in detail when we study those branches of law separately. This may be illustrated further by the example of law of crimes. Jurisprudence examines the general principles of penal liability but it does not attempt to detail out the essentials of each offence. In short, jurisprudence may be considered to be the study and systematic arrangement of the general principles of law.
In yet another sense, jurisprudence may be regarded as the philosophy of law dealing with the nature and function of law. This approach to jurisprudence is receiving primacy in modern times keeping in view the rapid social changes taking place all around the world in recent decades. This has eventually given rise to what is now termed as the 'functional jurisprudence'. The thrust being on inter-relationship between law and justice.
The Indian jurisprudence owes its origin to the ancient concept of Dharma which was considered to be best way of discipline one's mind. The practice of Dharma enabled citizens to inculcate a sense of discipline in conductig themselves in the society. This eventually brought about peace and properity in the society. However, with the march of time and progress of Indian society, the concept of law and therefore, of jurisprudence has changed radically. India is now a Sovereign, Socialist, Secular, Democratic Republic. Democracy pre-supposes government of the peopl, by the people and for the people, and therefore, citizens are expected to be self-restrained and self-disciplined. They should also be conscious of their rights and duties. 'Law' plays a significant role in standing a stable social order. India being a welfare state, a new Indian jurisprudence needs to be developed so as to ensure that law becomes an effective instrument of social change in various facets of Indian life. It has to play the functional role of harmonizing the conflicting interests of individuals in the society by maintaining an equilibrium between the freedom of individuals on the one hand and social welfare on the other.
The study of jurisprudence as a separate brance of knowledge started with the Romans. For them, jurisprudence meant 'Knowledge of law'. But in the modern sense this meaning is too vague and general. Though the Romans in practice never confused law with morality or religion, in theory this distinction is hardly found to be in existence in earlier times. The definition and conception of jurisprudence by Roman jurists may appear to be vague or inadequate in the modern sense of the term, but the credit of recognizing jurisprudence as an independent branch of legal science for the first science goes to Roman legal philosophers, which eventually paved way to development of the subject in the present form.
As the time advanced, there was a radical change in social conditions and human behaviour which resulted in shift of trend and jurisprudence came to be envisaged in a broader perspective.
Defintion of jurisprudence
The term 'jurisprdence' has meant different things at different times. The variation is due to different methods of inquiry and approach to the study of the subject. It is for this reason that Julius Stone has described jurisprudence as 'the lawyer's extraversion' meaning thereby that jurisprudence involves examination of precepts, ideals and techniques of the law by lawyer's in the light of disciplines other than the law. The defintion of jurisprudence as given by some of the eminent Jurists may be stated as follows:-
Ulpian - Jurisprudence, in its etymological sense means 'knowledge of law'. Ulpian, the celebrated Roman jurist defined jurisprudence as 'the observation of things human and divine, the knowledge of the just and the unjust'. It connotes more or less the same meaning as the term "Dharma" under the Hindu Jurisprudence and covers the province of religion, ethics and philosophy. Thus this defintion is too broad and has wider connotation.
Jamini has defined Dharma as "that which is signified by a command, and leads to man's material and spiritual salvation. Considered from this standpoint, the modern jurisprudence has a much narrower coverage and is confined to what Hindu jurists described as Vyavahara. According to Yajnavalkya 'Vyavahara' means those rules which determine the judicial proceedings or controversies. Thus in this sense jurisprudence deals with the principle underlying the rules which applied in decinding the legal controversies judicially.
Cicero defines jurisprudence as the philogophical aspect of knowledge of law.
Gray - Professor Gray has also defined jurisprudence more or less in the same manner. He 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 deal with man and seek to regulate external human conduct in the society. It does not concern itself with the inner beliefs of man imbibed in religious laws, which derieve their authority from super human source which we call as "God". The sanction for their enforcement is spiritual reward or curse according to man's deeds.
Salmond - 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, namely, civil law or the law of the State. the vibil law consists of rules applied by courts in the administration 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 thrologian 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 distinguishes jurist's law from that of the moralist. Salmond supports Holland and Austin in holding that jurisprudence is a science, that is, systematic study of basic principles of individua specific legal systems. He classified jurisprudence in 'generic' and 'specific' sense. The former includes the entire body of legal doctrines whereas the latter means only a particular branch of such doctrines. According to him, specific sense alone is the proper jurisprudence because it deals with general principles of a particular legal system.
Salmond observed that as the 'Science of law' there may be three kinds of jurisprudence:
(1) Expository or systematic jurisprudence, which deals with the contents of an actual legal system as existing at any time whether past or present.
(2) Legal history, which is concerned with the legal system in its process of historical development.
(3) 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.
Dr. Allen has objected to the Salmond's definition on the ground that he has limited the scope of jurisprudence to a particular legal system. It is rather too narrow a view.
Hobbes and Blackstone - In England, the earliest treatment of the subject of jurisprudence is to be found in Hobbes' book Elementiae Philosophiae though his concepts relating to natural law, sovereignty and political government were basically aimed to support the monarchy. These propositions paved way to subsequent development of historical jurisprudence. Thereafter, Blackstone, an eminent jurist of 18th Century, made substantial contribution to the study of the science of law, but like his predecessors, he confused law with 'justice' or 'what the law ought to be'. Later on, Bentham and Austin gave jurisprudence a concrete shape through their pragmatic approach to law and its related concepts.
John Autin - Austin calls jurisprudence as 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. Thus it is identical with 'civil law' of Salmond. Austin pointed out that science of law is concerned with law as it is and not as it ought to be, which he considers as the science of legislation. In order to determine the meaning and scope of jurisprudence, Austin distinguishes law from those of customs and ethical abstract ideas. He preferred to divide jurisprudence into two parts, namely (1) General jurisprudence and (2) Particular jurisprudence.
By "General jurisprudence", he meant 'the science concerned with exposition of the principles of nations which are common to all the systems of law' whereas particular Jurisprudence, consisted of the science of any such positive law as now obtains or once actually obtained in specifically determined nation. He clarifies that particular jurisprudence is concerned with specific State or national law or particular area of such State law. For example, the study of the Indian Legal system itself or property law of India is the subject-matter of particular jurisprudence.
This classification by Austin has been criticised as being unscientific and impracticable. Professor Holland argues that it is vague to think of general jurisprudence. According to him, science is science and it cannot be classified as general or particular.
Criticising Austin's concept of 'general jurisprudence', Buckland observed that even those who professed this view including Austin himself, did not adhere to it in practice.
Dias and Hughes characterised Austin's definition of general jurisprudence as full of ambiguities as it lacked amplitude and maturity in the prevailing legal system.
Holland - . Sir Thomas Erskine Holland defines jurisprudence-asthe formal science of positive law'. Stammler also defines jurisprudence in similar terms. According to them jurisprudence should only concern itself with the basic principles or concepts underlying any natural system of law. Holland defines positive law as a general rule of external human action enforced by a sovereign political authority. He calls jurisprudence as a 'formal science as it deals -not-with concrete details but only with the fundamental principles underlying them. To illustrate, there are fundamental principles in concepts relating to property, possession, contract etc. in all the well-developed legal systems. Jurisprudence harmonises these separate ideas under a basic concept and frames out a scheme of their purposes and evolves methods and principles for their retention without interfering in anyway with the working of specific rules in any given legal system. He, therefore, rightly observed, "Jurisprudence deals with the human relations which are governed by rules of law rather than the material rules themselves". Since jurisprudence deals only in a "formal or abstract way with those relations of mankind which are generally recognised as having legal consequences", it is not a material science but rather a formal science of law.
Sir Holland further stated that jurisprudence is not a science of legal relations a priori, as they might have been, or should have been., it is obstructed a posteriorari from such relations as have been clothed with a legal character in actual systems of law which have been actually imposed as positive law. It is thus a progressive science keeping pace with the movements of development of society and contemporary law. Thus he concludes that jurisprudence is a science which is formal or analytical, rather than being a material one. It is the science of 'actual or positive law', and, therefore, it would be incorrect to divide jurisprudence into 'general' and 'particular' or 'philosophical' and 'historical'. In other words, it is not divisibel.
Professor Gray and Dr. Jenks, however, object to the Holland's description of jurisprudence as a 'formal science'. They pointed out that the real relation of jurisprudence to law depends not upon what law is treated, but how law is treated.Gray further stated that if fact jurisprudence is no more formal science that physiology. Just as bones, muscles and nerves are the subject-matter of physiology, so are the acts and forbearances of men and the events which happen to them, the subject-matter of jurisprudence and physiology could as well dispense with the former as jurisprudence with the latter.
Criticising Holland's definition of jurisprudence as 'formal science of law', Dr. Edward Jenks remarked that jurisprudence cannot be said to be purely formal science because it cannot afford to ignore the social forces which give shape to law. According to him, to say that jurisprudence is concerned with only forms, is to derogate it from the rank of science to that of a craft. It is, however, submitted that Dr. Jenk's criticism is not well founded as he seems to confuse a 'formal science' with the 'formalistic manner' which jurisprudence adopts in dealing with the subject. To say that jurisprudence deals only with forms is to take rather a very narrow view of the subject. A jurist is not content with a mere form of law, nor does he look upon positive law as the highest kind of law, but he goes deeper into its meaning and tries to discover the social forces moulding it. In other words, his approach to subject is not merely formalistic but it is sociological as well. Thus, jurisprudence is a science which concerns itself only with the form which conditions social life for maintaining human relationships in society and to which society attaches legal significance. It is in this sense that jurisprudence is necessarily a formal science as asserted by Holland,
Dr. Allen. - The noted English jurist Dr. Allen has defined jurisprudence as 'the scientific synthesis of the essential principles of law'. Though this definition may seem to be abstract at a glance, it surely takes notice of the widening scope of law in its various facets.
Keeton - According to Keeton "jurisprudence is the study and scientific synthesis of the general principles of law" The definition seeks to explain the distinction between public and private laws.
H.L.A. Hart - The twentieth century analytical jurisprudence has emerged as a reaction against the rigid positivism of the 19th century Austinian legal philosophy. Among its prominent propounders H.L.A. Hart's name deserves special mention in view of his significant contribution to the development of jurisprudence embracing all moral and social principles and value and other non-legal elements which hitherto remained excluded from the purview of the study of the subject. While Austin considered command, Anction, and sovereign as the three essential constituents of the nature of law which formed the science of jurisprudence. Hart believed that union of primary and secondary rules explain the nature of law and provides Key' to science of jurisprudence. By primary rules he meant rules which impose duty while secondary rules confer powers which provide for creation or variation of duties by removing defects of the primary rules. He further opined that both these kinds of rules contain a minimum element of natural law le. law and morals which every legal system must necessarily contain. Thus Hari viewed jurisprudence as a science of law in a broader perspective by co-relating law and morality whereas Austin had failed to do.
Roscoe Pound - According to Pound, jurisprudence is "the science of law using the term 'law' in the juridical sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice". He 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.
G. W. Paton holds that jurisprudence has two main aspects. It treats law as an abstract body of rules and secondly it's a social machinery for securing order in the community. It deals with study of law in action. The main function of law should be to create order in society so as to resolve disputes and ensure peaceful transformation of the society which is constantly heading towards progress of mankind. Thus, Paton strongly believed that jurisprudence is a functional study of the concepts which legal systems develop and it seeks to protect the social interests.
Julious Stone-Julious Stone represents the lawyers legal philosophy of 19th century which marked a new era in juristic thinking. He termed jurisprudence as lawyer's extra version. That is, the lawyers interpret law in the light of knowledge derived from other disciplines Law has to function and co-exist within the parameters of social dynamics in keeping with hur an development and contemporary societal norms. It cannot be studied in isolation, being an integral part of society. He considers knowledge of social, etonomic and political problems essential for lawyers and Judges without which they cannot handle the legal problems of the society.
Julious Stone preferred to divide jurisprudence in three broad categories, namely :-
(i) Analytical Jurisprudence (Law and Logic);
(ii) Ethical Jurisprudence (i.e theories of Justice)
(iii) Funcational Jurisprudence (i.e. Sociological approach to law dealing with law and society)
Stone's definition of jurisprudence has been supported by Justice Oliver W. Holmes and Justice Brandies.
Some Other Jurist's View
Arnold has defined 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 an unreal literature. For some, familiar with its literature, it lies in the hope of future enlightenment. For all, it is just around the corner".
According to Radcliffe, "Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life". Thus it is an amalgam of a number of other discriplines inter-woven together for the common good of the society.
E.W. Patterson defined jurisprudence as a body of ordered knowledge which deals with a particular species of law.
In the ultimate analysis Holland's definition of jurisprudence as the formal science of positive law seem to be more acceptable. The term 'positive law' is concerned with an inquiry into the social relations regulated by the rules of law which are imposed by the State and enforced by the law-Courts. Jurisprudence is a 'formal' science becasue it only deals with the purposes, methods and ideas of the legal system and not with its concrete details. The latter, which deals only with the concrete detail, constitues the subject-matter of a material science which jurisprudence is certainly not.
Dr. M.J. Sethna's definition of Jurisprudence
Dr. Sethna has 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 study of jurisprudence, for he believes any knowledge is a systematic 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 and enactments made, passed or approved by the legally constituted authorities or agencies in a State for regulating rights, duties and liabilities and enforced through the mechanism of judicial process, securing obedience to the obedience to the sovereign authority in the State. He advocated a synthetic study of different branches of Jurisprudence, namely, analytical, historical, philosophical, sociological etc. to be taken together as a whole.
The modern writers generally agree that the term jurisprudence does not merely connote a knowledge of law, but it covers a field much wider than this. As Paton rightly pointed out, jurisprudence is a particular method of study, not of the law of any one country but of the general notion of law itself.
Approach to the study of Jurisprudence:
Jurisprudence, in the modern sense of the term owes its origin to the western legal thoughts. It does not, however, mean that the concept of jurisprudence was altogether unknown to the ancient Indian legal philosophy. In fact the Hindu jurisprudence of ancient India which was based on 'Dharma', contained principles and moral precepts which aimed at ensuring the welfare of the society by regulating human conduct. Law was essentially an instrument of social order. It ought to act in conjunction and in harmony and not in conflict, isolation or contrary to reason. However, subsequent political upheavals and foreign intervention narrowed the smooth development of ancient Hindu jurisprudence because many of the concepts of Indian legal thought did not match favourably to the changed situation. With the Moghul rule in India followed by the subsequent British colonial rule, the ancient legal system completely lost its moorings and the British rulers named indigenous law as the personal laws of 'Gentoos. They came here with a well-developed system of law, which they gradually introduced in India.
In the present era of globalisation, and liberalisation, greater emphasis is on universalisation of laws since development of science and technology has annihilated time and space and there is gradual transformation of local values into the universal code of conduct. The proposal for a universal code of criminal law and prison laws is an step in this direction. Thus the study of jurisprudence in modern times needs to be pursued in a broader perspective so as to give it a global coverage.
The traditional approach to the study of jurisprudence through analytical, historical, ethical and sociological methods has now been substituted by empirical and a priori methods. The former proceeds from facts to generalisation while the latter starts with generalisation in the light of which facts are analysed and examined. Both these approaches have helped the development of law on scientific lines. The comparative method derives its material from other contemporary legal systems prevalent in different societies. The major thrust is on the critical analysis of various legal concepts from which conclusions may be drawn for the perfection of the legal system.
Jurisprudence Whether a Science?
The contexual meaning and contents of jurisprudence show that it involves an analysis and exposition of law in its various facets. Thus it is a systematic study of the law as expounded by Austin and his successors. Such a study of law totally excludes customary practices and social or moral vagaries and fantacies which may dilute the contents of law. This is the reason why positivists insisted that law is a command of the sovereign so as to make legal system formal, logical, and empirical, quite unaffected by moral values or societal ethos. This methodology and approach to the study of law has brought it nearer to be reckoned as science.
The rejection of metaphysical consideration and rise of positivism with the fading influence of natural law philosophy by the close of 18th century and emergence of Benthamite principle of hedonism, namely, the doctrine of "Pain and Pleasure', ushered an era of scientific and critical approach to the study of jurisprudence. Moreover, the rapid development of physical and biological science during 19th century and their method of study based on empirical, investigative and analytical approach also had its impact on approach to study of jurisprudence. August Compte, the father of moder, positivism, confined his analysis to the observation of facts rejecting completely the hypothetical considerations in the study of jurisprudence and legal theory. As a positivist, he emphasized on the need for the study of jurisprudence based on concrete observations and analysis of ascertainable facts which meant examining man-made law which has actually been laid down by men for men as distinct from law as it ought to be.
The begining of 20th Century brought in its wake, a new approach to the study of law in relation to society which treats law as a 'social engineering', that is, an instrument of social change. European jurists like Ihering, Ehrlich, Max Weber and American legal thinkers such as Roscoe Pound and O.W. Holmes and others gave new dimensions to law as an instrument of social change. They emphasised that law has to function within the parameters of social dynamics and needs of the society. Thus the function of law is to supplement social sciences. It is in this contenxt that G.W. Paton suggests that study of jurisprudence should be integrative and synthetic and purposive. This view finds further support from Julius Stone who calls jurisprudence as lawyers' extraversion, which means that lawyers' examination of the precepts, ideals, and techniques of law should proceed in the light of present knowledge in disciplines other than law. Thus Stone emphasises on inter-disciplinary approach to the study of law.
These propositions amply justify that jurisprudence can rightly be treated as a science like any other social science.
Scope of Jurisprudence:
As stated earlier, the scope of jurisprudence has widened considerably over the years. It is generally believed that the scope of jurisprudence cannot be circumscribed. Broadly speaking, jurisprudence includes all concepts of human order and human conduct in State and society. In other words, anything that concerns order in the State and society will be within the domain of jurisprudence. Commenting on the scope of jurisprudence, Justice P. B. Mukherjee observed, "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. Radcliffe also held a similar view and stated that jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.
Jurisprudence involves certain types of investigations into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. Elaborating the point further, Salmond observed "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 rule relevant to the given situation, in jurisprudence we ask, what is for a rule to be 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 rule but to reflect on the rules already known.
Contents of Jurisprudence:
There are divergent views regarding the exact contents of jurisprudence, But it has been generally accepted that sources, legal concepts and legal theory constitute the main premises of the study of jurisprudence.
(i) Sources - It is well known that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and workin); of the legal authority behind these sources. Therefore, they obviously form the content of jurisprudence, Under this head matters 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.
(ii) Legal concepts - Another area which concerns jurisprudence is the analysis of legal concepts such rights, property, ownership, possession, obligations, acts, negligence, legal personality and the related issues. Although all these concepts are equally studied in the ordinary branches of law, but since each of them functions in several different branches of law, jurisprudence tries to bring out a more comprehensive picture of each concept as a whole. The study of these abstract legal concepts furnishes a background for better understanding of law in its various forms.
(iii) Legal Theory -. Besides the sources and the forces operating behind them and various legal concepts, legal theory also constitutes one of the main components of jurisprudence. Legal theory is concerned with law as it exists and fonctions in the society, and manner in which law is created and enforced as also the inthence of social opinion and lay on each other. Thus, legal theory ethos, politics etc, and pursue its study in a wider socio-legal perspective, It is wels to co-relate law with other disciplines such as religion, philosophy, Bessary that while analysing legal concepts, an effort should also be made to present them in the background of social developments and changing economic and political attitudes.
As to the nature of legal theory, it must be stated that it relates to philosophy and political theory. As pointed out by Dr. Friedmann, "all systematic thinking about legal theory is linked at one end with philosophy and at the other end, with political theory. Sometimes the starting point is philosophy and political ideology plays a secondary part as in the theories the German, classical metaphysicians or the Neo-Kantians. Sometimes the starting point is political ideology, as in legal theories of socialism or fascism. Sometimes theory of knowledge and political ideology are welded into one coherent system, where the respective shares of the two are not easy to disentangle, as in the scholastic system or in Hegal's philosophy. But all legal theory must contain elements of philosophy-man's reflection on his position in the universe and gain its colour and specific content from political theory-the ideas entertained on the best form of society. The end of law is based on conceptions of man, both as a thinking individual and a political being."2
Interpretative Jurisprudence
Ronald Dworkin who was a critique of law and adjudication in terms of positivism propounded interpretative jurisprudence and held that the interpretation which suits best in the circumstances of the case should be taken into consideration in deciding a case. He explained that the law should be interpreted in its fullest form as against the positivism view of restricting it to what "law is discarding completely as to what the law was 'was' or what it ought to be. Thus positivism approach of the law with a narrow angle confining itself strictly to the language of the law used by the Sovereign. This assertion of Ronald Dworkin regarding the need for giving a wider interpretation to the law holds true particularly when the Courts are deciding the cases dealing with award of death penalty, juvenile justice or release of offenders on Probation etc. Perhaps, the interpretation of Art. 21 of the Constitution in its wider perspective provides the best illustration of importance and utility of interpretative jurisprudence in modern times. There have been a number of cases wherein the Supreme Court has given exhaustive interpretation to law and even included "right to sound sleep" as a part of right
the need for pragmatic approach to the interpretation of law rather than Ronald Dworkin's theory of interpretative jurisprudence is based more on the need for pragmatic approach to the interpretation of law rather tan criticism of Austin's positivism law should be interpreted keeping in the totality of facts and circumstances of the case rather than strict letters of the law.
Jurisprudence And Legal Theory Distinguished:
Legal theory comprises philosophy of law and, therefure, it seeks to examine and analyse the philosophical content of law. As rightly pointed out by Fitzgerald, "jurisprudence covers a wider field of study as compared to legal theory for the former involves an investigation of law which is of an abstract, general and theoritical nature while legal tumory on the other hand is an attempt to answer what is law in order to clarify the most of all legal concepts."!
Thus it would be seen that legal theory is only one aspect of jurisprudence which is evaluative and philosophical study of law in terms of ends, values and goods which law ought to sub-serve. It concerns with living law which is based on felt-needs or social forces and rejects purely technica, analytical or conceptual perception of law.
It must be stated that Dr. Friedmann was perhaps the first jurist who coined the term 'legal theory' in 1945, He refused to accept the traditional British concept of jurisprudence which was based on sheer logic of sovereign, command and coercion devoid of any moral or social values. Later, the theory gained popularity due to contribution of great modern jurists like H. L. A. Hart, Lon Fuller, Wolff, Dworkin, Radbrauch, Robert Paul and others. They suggested that legal theory is not concerned with the entire province of jurisprudence but relates only to the analysis of philosophical notion of law.
Jurisprudence is a lawyer's extra version
According to Julius Stone the study of jurisprudence should be integrative and synthetic as also purposive keeping in view the need for humanistic justice through humane and just law. He therefore firmly believed that "jurisprudence is lawyers extra version. It is the lawyers examination of precepts and techniques of the law in the light derived from present knowledge in disciplines other than law. 2
Oliver Wendell Holmes explained jurisprudence as having unlimited possibilities of developing law according to the changing needs of human society and contemporary knowledge explosion. The law, therefore, has to be studied as an integral part of entire field of social sciences. Blind adherence to the letter of law adopting a narrow approach would not serve the purpose of society as it requires readiness for adaptation to new problems that confront society. He observed:
The law embodies the story of a nation's development through many centuries and it cannot be dealt with as if containing only the axioms and corollaries of a book of mathematics. In order to know what law is, it is necessary necessary to know what it has been, and what it intends to become. We must alternatively consider history and other existing theories of legislation."
Like W. Holmes, Sir Federick Pollock, Brandies, Cardozo, Frank, also suggested the study of law in its social context. Since Judges and lawyers who are well acquainted with extra legal aspects of law and its relation with sociology, economics, psychology and political theory, they are in a better position to interpret law in a purposive manner distinguishing 'law in books' from law in action. A lawyer should not be a mere legal technician knowing legal texts and procedure but he should be a social activist so that law can give healing touches to society and ensure implementation of policies that underline a particular legislation
The extra-legal version' approach to as an instrument of social change and reforms has found favour with the Judges of the Supreme Court, notably. Justice S. N. Gajendragadkar, Justice Y. V. Chandrachud, Justice Chagla, Justice P.N. Bhagwati, Justice Krishna lyer, and others.
Adopting a pragmatic to the application of law, Justice Y. V. Chandrachud in Vishnu Agencies (P) Ltd. v. C.T.O. observed that "legal fraternity should not construe the provisiors of the Constitution in a narrow and pedantic sense, instead, a broad and liberal spirit should inspire those whose duty it is to interpret law. A constitution is a living and organic thing which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat-The lawyers and judges ought to extend the constitutional provisions fer elimination of poverty, social inequalities and economic injustices".
Disapproving rigid and mechanical approach to industrial law and legislation, Justice S. N. Gajendragadkar, in constitutional disputes; the fundamental rights are to be weighed against the public good whereas in industrial disputes the employer's statutory right of freedom of contract........ has to be weighed against the valid requirements of social justice, and in each case, reasonable adjustment has to be made".
Mr. Justice Krishna lyer, a former Judge of the Supreme Court of India, who has a unique distinction of sensitizing legal community on need for a pragmatic approach to law expounded the philosophy of jurisprudence as a lawyer's extra version in a number of cases. He firmly believed that "the problems of law are, at bottom, projections of life jurisprudence lie in the soil of society's urges and the bloom in the nourishment The roots of from the humanity it serves For him, law is a pragmatic instrument of social order.
He observed that judges and lawyers can discharge their respective roles only when they have acquired sufficient knowledge, methodology interpretative skill in social sciences from which law derives its source and validity.
Legal philosophers have been categorised into different schools on the basis of their approach to law. But such a division is by no means comprehensive and exact. There may be jurists who may fall within the strict bounds of one particular school. Again the ideology of one school may be overlapping with that of another school and some of the schools may be just a synthesis of the two ideological thoughts. Be that as it may, but one thing is certain that these schools reflect the socio-economic and political changes of a given time embodying the legal philosophy to suit the needs of the transforming society.
Legal theories, like theories of inethodologies, are generally categorized according to the element of their subjects they consider to be essential. Thus a legal theory that stresses the logical contents of judicial opinion is called the formalist theory; a theory which emphasizes their social consequences is called utilitarian theory, and a theory that regards them as reflections of the circumstances in which they were written is called historicist. The problem with all such theories is that they single out one particular aspect of the law as the essential aspect. However, it was Justice Holmes who as a regal philosopher denounced this conception and held that the law has no essential aspect.
Utility of Jurisprudence
There is a general confusion about practical utility of jurisprudence as a subject. It is often alleged that jurisprudence being an abstract and theoretical subject, is devoid of any practical utility. But this view is not supported ty Salmond who pointed out that jurisprudence has its own intrinsic interest like any other subject of serious scholorship. 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.
As rightly observed by Professor Jules L. Coleman,
"Jurisprudence aims at explaining the distinctive forms of life that governance by law makes available, It engages law in its aspirational mode. Without law, these forms of life would not be attainable or if attainable, only incompletely so. The aim of jurisprudence is to identify those forms of life and explain the way in which law helps to create and sustain them."
Jurisprudence also has its practical applicability. It seeks to rationalise the concepts of law which enable us to solve the different problems involving intricacies of lav, In other words, it serves to render the complexities of law more manageable and rationale and in this way this can help to improve practice in the field of law.
That apart, jurisprudence also has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in sheding aside their rigidity and formalism and trains them to concentrate on social realities and the functional aspects of law. t is not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to take note of the needs of society and also of the advances in the related and relevant disciplines such as sociology, economics, philosophy, psychiatry etc. For instance, a proper understanding of law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology.
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 characterised as "the eye of law" by some jurists.
Jurisprudence helps the judges and the lawyers in ascertaining the true treering of the laws passed by the Legislature by providing the rules of shortcomings and defects in the laws framed by the legislature and improvise them through their judicial interpretation.
The study of jurisprudence helps in rationalising 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 exigencies of human life boldly and courageously
a crucial role in Jurisprudence may also be helpful to legislators who play the process of law-making. The study of jurisprudence may famili rise them with technicalities of law and legal precepts thus making their job fairly easy as also interesting.
According to R.W.M. Dias, the study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence. 4 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.
Normative and Analytical Jurisprudence
wheever the Court is entering a new territory and is developing new legal norms and new concepts, discussion en normative jurisprudence assumes greater significance as the Court is called upon to decide as to what the new legal norm or law should be.
This normative approach to jurisprudence has to be necessarily preceded by analytical jurisprudence for the Court to underline existing nature of law. This would help in knowing the legal framework of what is the current or existing law, and in turn, help in shaping the future of that law taking cognizance of changes in social ideology and developments. Since law is a changing concept, it has to march in consonance with the developing social trends. Obviously, this is possible through the interpretative process of law. This social dynamism through normative and analytical jurisprudence should necessarily be within the constitutional framework.
Inter-relationship of Jurisprudence with other Social Sciences:
Jurisprudence is closely inter-related with other social sciences since all of them are concerned with human behaviour in society. Pointing out the relationship hip of jurisprudence with other branches of knowledge. G. M. Paton observed, "modern jurisprudence trenches on the fields of social sciences and of philosophy; it digs into the historical past and attempts to create the symmetry of a garden out of the luxu Julius Stone also explained the functioning of jurisprudence in terms of luxuriant chaos of conflicting legal systems" 2 knowledge of other social disciplines and stated, "jurisprudence is the lawyer's extraversion. It is lawyer's examination of the precepts, ideals and techniques of the law in the lights derived from present knowledge in disciplines other than law".
Wurzel candidly observed that jurisprudence as a living science of law, cannot be divorced from society of which individuals are an integral part. Every legal system reflects the social background which it operates. It is so, because of the inter-relationship of men within the society.4
Dean Roscoe Pound who propounded the theory of law as a 'social engineering', pointed out that jurisprudence is closely inter-related with ethics, economics, politics and sociology which though distinct enough as the core, are shade into each other. All the social sciences must co-ordinate with jurisprudence to make it a functional branch of knowledge.5 Justice Mc Cardie emphasised the indispensability of the study of other social sciences for the proper understanding of jurisprudence. He wrote, "there never was a time when the barrister had greater need of a wide culture and of a full acquaintance with history, with economics and with sociological science".
With the development of social sciences in modern times, the approach to jurisprudence has radically changed and more emphasis came to be placed on the study of factual legal behaviour.
Jurisprudence and Ethics:
Ethics as a branch of knowledge deals with human conduct and lays down the ideals of human behaviour. It is closely related to morality and public opinion which are dynamic concepts varying from place to place, from time to time and from people to people. What may be a rule of good morality at one time may not necessarily remain so all the time and it may even become a bad moral conduct in time to come. Thus the public opinion and moral precepts go on changing with social evolution, social culture and social development.
Jurisprudence is concerned with positive morality since law is considered as an instrument to regulate human conduct in society. Positive morality does not depend on ideal behaviour or good actions but it requires a coercive force for maintaining public conscience. There is a separate branch of jurisprudence called the ethical jurisprudence which seeks to lay down the standards of ideal for human conduct in terms of law for the maintenance of public conscience.
It must, however, be stated that there are many unethical acts which the law does not seek to punish. For example, the law does not take notice of trifles. So also, to tell a lie is unethical but it is not punishable as an offence. Conversely, all that is prohibited is not necessarily immoral e.g. possessing land beyond ceiling limit is punishable under the law but it is not an unethical act. Again, driving a vehicle or a car without a valid licence is not unethical although it is prohibited by law.
Generally speaking, laws must not be divorced from accepted human values since it is an instrument for regulating human conduct in a given society. As Dr. M. J. Sethna rightly pointed out, laws of a community are reflected in its culture, ideology and social norms. They are therefore, indicators of country's civilisation and the ethical standards of the society, hence ethical values cannot be excluded from jurisprudence.
Jurisprudence and Psychology :
Psychology as a branch of knowledge is concerned with the working of human brain or mental faculty. Since jurisprudence and law are necessarily concerned with human action and it is the human mind which controls human action, the inter-relation between psychology and jurisprudence need not be over-emphasised. Particularly in dealing with crimes the psychology of the offender is generally taken into consideration. Again, psychology plays a dominant role in the study of criminology and penology.
The psychology of the offender is also one of the crucial factors in deciding the nature of punishment of the convicted person. The modern reformative techniques of punishment such as probation, parole, indeterminate sentence, admonition, pardon etc. are essentially deviced for the treatment of offenders according to their psychological traits.
That apart, the legal concepts such as negligence, intention, motive, mens rea recklessness, rashness etc., pertain to the faculty of mind and, therefore, they form a part of study of psychology as also the jurisprudence.
3. Jurisprudence and History:
It is difficult to appreciate the present law and legal system without probing into its past historical evolution. Therefore, there is a close inter-connection between history and jurisprudence. History consists of the study of past events in their proper perspective. Thus in order to understand the constitutional jurisprudence of a country it is necessary to look into its past constitutional history. It may therefore, be concluded concluded that the study of different branches of law essentially requires their study in the historical perspective without which its knowledge would remain incomplete. The codification of personal laws of Hindus in 1955-56 is essentially an outcome of the historical evaluation of the uncodified Hindu law of ancient India and its transition through many phases.
The whole historical school of jurisprudence is devoted to the study of law in its historical perspective and has substantially contributed to trace the evolution of law and legal systems in different countries.
Jurisprudence and Sociology:
Sociology also includes the study of a part of law to some extent. For example, criminology is one of the inter-disciplinary studies related to both sociology and law. Again, Jurisprudence includes within its compass the sociology of law, that is the practical functioning of law in the society. Further, sociology as well as the study of jurisprudence are concerned with regulation of human conduct in society. Therefore, the two are intimately connected. It must, however, be noted in this context that lawyer's approach to law is different from that of a sociologist's attitude towards law. The former looks it from point of view enforceability and obedience by the people while the latter concentrates on studying how these rules actually govern the behaviour of individual in the society.
4. Jurisprudence and Sociology:
Sociology also includes the study of a part of law to some extent. For example, criminology is one of the inter-disciplinary studies related to both sociology and law. Again, Jurisprudence includes within its compass the sociology of law, that is the practical functioning of law in the society. Further, sociology as well as the study of jurisprudence are concerned with regulation of human conduct in society. Therefore, the two are intimately connected. It must, however, be noted in this context that lawyer's approach to law is different from that of a sociologist's attitude towards law. The former looks it from point of view enforceability and obedience by the people while the latter concentrates on studying how these rules actually govern the behaviour of individual in the society.
More recently, there is greater thrust on sociological approach to law and legal problems. The modern prison reforms and correctional services for the treatment of offenders have been devised keeping in view the sociological factors of the offenders. Even the judges have accepted the role of sociology and its relationship with law and it is often reflected in their decisions. The purpose of law as conceived today, is to ensure social justices.
The relationship between law and sociology has been supported by G.W. Paton for three obvious reasons, namely. (1) it enables better understanding of the evolution and development of law, (2) it provides greater substratum for identity of law commensurate with human needs and societal interests, and (3) it provides objectivity to legai interpretation which is the need of the hour. Without social interaction, law would remain a mere theoretical preception devoid of any practical utility.
Jurisprudence and Economics:
Economics being a science of money and wealth and jurisprudnece a science of law, but are intimately to co-related. Economics deals with production and distribution of wealth for satisfying the wants of the people. It is one of the major factors responsible for the incidence of crimes. There are many laws which seek to regulate economic activities of mankind. To name only a few, the laws relating to banking, companies, negotiable instruments, foreign exchange regulation, consumer protection, ceiling of land and wealth, payment of wages, bonus, insurance, debts etc. are intended to regulate one or the other economic activity of man in the society. Of late, law of poverty and law of population have developed as separate branches of law for the welfare of the people. The ultimate aim of economics as well as jurisprudence is to improve the standard of life of the people for the welfare of the community as a whole. Law acts as means to achieve this end.
Jurisprudence and Political Science
Friedmann has aptly remarked that jurisprudence is linked at one end with philosophy and at the other end with political theory. Political science deals with the principles governing the governmental organisation. State is politically organised society which makes law for good governance of the people. Politicians who are representatives of the people form the Legislature which is the law-making organ of the Government. This amply reflects on the relationship of jurisprudence i.e. science of law with politics.
From what has been stated above, it is evident that the subjectmatter of jurisprudence comprises a synthetic study of various disciplines and social sciences, each playing their role for the proper understanding of the fundamental principles of law. It is primarily for this reason that some jurists have advocated the necessity of synthetic jurisprudence in recent years. They have asserted that jurisprudence is an amalgam of history, philosophy, politics, sociology, economics etc., it is a science and is concerned with altruistic utilitarianism or the doctrine of hedonism as propounded by Bentham. Jerome Hall is one of the ardent supporters of synthetic jurisprudence in United States. Lord Dennis Llyod has also emphasised the need for synthetic jurisprudence for the growth and practical applicability of law.
Comparative Jurisprudence:
As the term itself suggests, comparative jurisprudence implies a comparative study of laws and legal institutions of two or more legal systems operating in different countries of the world. As rightly stated by Gutteridge, Comparative jurisprudence' is a term which suggests the use of comparative method as a tool to find out differences and similarities between the different legal systems. It includes a comparison of precepts, doctrines and legal institutions which are found in different systems of law. Austin himself adopted comparative method to propound his theory of general jurispruderce by srodying the legal systems of the Romans. Likewise, Savigny adopted torical approach for studying the law and legal institutions, of Greeks, France and Germany. Again, Sir Henry Maine made an intensive comparative study of ancient Indian law before formulating laws for British India. The importance of comparative jurisprudence lies in the fact that it enables a country to know about the shortcomings of its own legal system and suggests alternative for improving it through the method of comparison.
The foremost jurists to contribute to the developments of comparative jurisprudence were Kant and Story. According to them the chief function of comparative jurisprudence was to facilitate legislation and the practical improvement of law. The Jurists of 20th century started to appreciate the fact that foreign law may be studied for the lessons to be learned from it, and that comparison was not merely an artifice to enable foreign rules to be introduced into a national system of law. Salmond has characterised comparative jurisprudence as "the study of the resemblances and differences between clement legal systems." He refuses to accept comparative jurisprudence as a separate branch of jurisprudence but accepts it merely as a particular method of that science.
The study of jurisprudence may broadly be carried out under four heads as follows
(1) Analytical Jurisprudence,
(2) Historical Jurisprudence,
(3) Philosophical or Ethical Jurisprudence, and
(4) Sociological Jurisprudence.
The purpose of analytical jurisprudence is to analyse and dissect law of the land as it exists today whereas historical jurisprudence deals with general principles governing the origin and development of law and also the development of legal conceptions and institutions and principles found in the philosophy of law. The ethical jurisprudence mainly devotes itself to the law not as it has been but as it ought to be. The object of sociological school is to study jurisprudence with reference to the adjustment of relations and ordering of conduct which is involved in social life.
Summing up the contribution of each of these social sciences to the development of jurisprudence as a social science, Dean Roscoe Pound¹ observed:
"Jurisprudence, ethics, economics, politics and sociology are distinct enough at the core, but shade out into each other. When we look at the core, the analytical distinctions are sound enough. But we shall not understand even that core and much less the debatable ground beyond, unless we are prepared to make continual deep incursions from each into each other. All the social sciences must be co-workers and emphatically all must co-work with jurisprudence."
New Horizons of Jurisprudence
With the advance of knowledge and developments in jurisprudential thinking, the traditional positivistic approach to legal doctrines, principles of law and constitutional dictums have lost their credence and a new socio-legal philosophy based to social engineering and judicial activitism has emerged for the fulfilment of fell-desires and needs of the society. This dynamic approach focuses more on the rights of the citizenry, the poor or underprivileged, women, children, and the other vulnerable sections of the society who are unable to protect and preserve their constitutional and human rights. In the changed scenario, a duty is cast upon the judiciary and the Apex Court in particular, to ensure that the basic cardinal principles of good governance each as secularism, national integration, democracy, rule of law and socio-economic justice are assured to the people of India. These new dimensions call for judicial activitism and dynamic approach on the part of lawyers and judges to ensure social justice and be responsive to the social change which the country is witnessing in the new millenium.
Commenting on the function of law in the contemporacy society, Mr. Justice K. Ramaswamy in Delhi Transport Corp, v. DTC Mazdoor Congress, observed
"Law is a social engineering to remove the existing imbalance and to further the progress, serving the needs of the Social Democratic Bharat, under the rule of law. The prevailing social conditions and actualities of life are to be taken into account for adjuring whether the impugned legislation would subserve the purpose of society."
Broadly speaking, there are three kinds of laws that regulate human conduct in society, namely, the law of theologions, law of moralists and the law of the jurists. Jurisprudence is mainly concerned with law of jurists and analysis as to how law operates in a given society. It is concerned with different sources of law and various legal concepts. As rightly pointed out by Justice Markandeya Katju, study of law comprises its origin, nature, forms, concepts and its role in society.6
The supremacy of law must be upheld, no matter how powerful or man of status a man may be. Thus State of Haryana v. Bhajanlal, Justice Pandian of the Supreme Court reiterated the supremacy of law in the context of powerful political tycoons allegedly involved in corruption for private gain at public expense.
The Supreme Court in its recent decision in Sterlite Limited casel adopted a more pragmatic and proactive approach and ordered the company to pay a fine of one hundred crore rupees for causing environmental pollution due to its mineral exploitation activity which had cause huge damage to people living in the vicinity. The High Court of West Bengal had ordered closure of the company in 2010 but the Supreme Court considered that it is insufficient in view of social justice to the affected people.
It hardly needs to be stated that law as an instrument of social change, has to be flexible to be effectively responding to the changing values and expectations of the society. Commenting on this aspect of law, Bodenheimer observed that, "law must intelligently link the past with the present without ignoring the pressing claims of future.
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