Jurisprudence is a subject that deals with the philosophy of law and all the theoretical aspects of law through the hypothesis and investigation of the legal field and application. Since it mainly deals with legal philosophy, its interpretation varies from one person to another – a major reason why there have been seen various approach to the study of this subject.
Based on these different interpretations, four variety of approaches towards the study of Jurisprudence can be categorised, which are:
- Classical Approach
- Reformation Approach
- Rationalism Approach
- Modern Approach
These approaches not only differ in their way of studying Jurisprudence but also in the era and the interpretation of the law as gradually human needs changed along with the changing times. In this article, we’ll discuss each approach in detail.
This approach towards Jurisprudence is focused on interpreting the law through the legal philosophies and ideologies of the ancient States and their legal systems. It is further categorised into two thoughts:
Many of the Greek philosophers like Socrates, Plato and Aristotle played a vital role in the legal philosophy and formation of ancient laws. They were the first ones to include concepts like virtue, moral and reasoning into the study of Jurisprudence. Most of the focus of the Greek philosophers was more on the natural law and natural justice aspect of Jurisprudence, which the Philosophical School of Jurisprudence discusses in detail.
Greece had some prominent figures who explored the concept of State and law while also addressing the duties of the State and how a State might ensure the working of law and order in its premise. These theories were the very first base of Jurisprudence, which helped in the establishment of this whole subject and speculation about law and its provisions.
Romans were the first people to initiate the systematic study of law and the working of the State. However, most of their focus was more on ethics and human reasoning as a source of law – causing their theory to equate moral and justice with law; which is one of the main reasons their theories aren’t as popular as the Greek ones in the current times. However, it cannot be denied that they were the first ones to focus on the study of law and how it affects society and its members.
During the ancient era after the Roman Empire fell, the Church took over the narrative and focused on a more religious outlook on the ancient philosophies of laws – claiming God to be the source of law and restricting law’s interpretation to that set by the Church and religious manuscripts. In response (or rather, as a protest) to this growing authority of Church over State, the reformist approach of Jurisprudence emerged.
The main premise of this whole approach was its focus on the authority of State and the lack of any religious involvement – the legal philosophers supporting this approach of Jurisprudence highlighted the secularist aspect of this interpretation and with this, brought in the new concept of basic individual rights that are guaranteed to everyone; namely the Right to Life, the Right to Liberty and the Right to Property.
The legal philosophers ‘reformed’ the approach towards the study of Jurisprudence, bringing back the focus to natural law and simmering down the absolutism of the positive law made by either the State or the Church. Thus, not only reviving the concept of natural law but also restudying the Roman and Greek philosophers’ legal theories in the field of Jurisprudence. The prominent philosophers who helped in this reformation were Hugo Grotius, Thomas Hobbes, John Locke and Rousseau – some of the popular legal scholars who gave their theories on the emergence of State through the ‘Social Contract Theory.’
Even in the contemporary context, the Reformation Approach is considered relevant as it highlights the powers and duties of a democratic State and defines law and order as not just a tool of the State but also of the people.
As the nineteenth century arrived, the narrative regarding laws changed. The industrial revolution caused a huge shift in the socio-legal scenario, resulting in more than half the population unemployed and ragged in poverty. This shift caused the questioning of the ideology of the Reformation Approach, which resulted in people adapting to a different approach that focused more on the rights and duties of an individual.
This focus on individualism gave rise to the development of the concept of social welfare and collective or community work. This ideology gave the State the power to work for the welfare of the people, which was unlike the Reformation Approach where the focus was on the formation of the State and people deciding what is good for them rather than the State. The Rationalism Approach instead gave that power to State as a duty, which soon became quite a popular concept – especially in Democratic nations who seemed to adopt the term ‘Welfare State’ to even promote this notion.
As the Rationalism Approach presented a very socialistic view of law and State, the response to it came in the form of a more analytical view of the law that prioritised the positive law over the natural law. These legal philosophers of this approach of Jurisprudence advocated that law and social sciences should be separated – especially since most of the study of Jurisprudence till this point dealt with the law and its connection to other social sciences like sociology, history, political science, etc. Thus, the positivists argued that law needs its theory that is purely based on law with no influence of other unnecessary factors or subjects.
This resulted in the positivist restricting the view of law and the study of Jurisprudence in this approach to only the positive law. This, in turn, caused the whole approach to be rather scientific and methodological in nature, making many feel it as something mechanical – which was highlighted as one of its major criticism among the many others when it gained popularity among the masses. Some other criticisms also highlighted that the removal of all other factors may also cause it to be detached and rather backwards in the sense of keeping up to the needs of the society in contemporary times; thus, causing more harm than good to the people.
- D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book Company
- RWN Dias, ‘Jurisprudence’, Fifth Edition
Author: Debapriya Biswas,
Amity Law School, Noida (2nd year)