MEANING OF JURISPRUDENCE
The term ‘Jurisprudence’ was derived from the Latin word ‘Jurisprdentia’ which means “the knowledge of the law” or “the study of law”. The origin of the practice of studying law in the form of Jurisprudence started in Rome at the beginning.
The term Jurisprudence has at different times been used in different senses; sometimes as synonyms of law; sometimes as a philosophy of law; and sometimes as the science of law. Presently, Jurisprudence is aptly termed as the “Legal Theory”.
Ulpian termed jurisprudence as Observation of things or divine & the knowledge of the just and unjust.
Austin’s definition was vague and inadequate. Thus, jurisprudence at that time was mixed up with theology.
Bentham, who was the Father of Jurisprudence, divided his study into two part:-
- Expository Jurisprudence means the Law is to be followed “as it is”. It means that the Law is the command of the sovereign. The state is the sovereign, so what the state says is the Law and thus all of it is to be followed in that exact sense.
- Censorial Jurisprudence means the law is to be followed “as it is ought to be”. It bends towards the theory of Morality of Law stating that Morality of Law is to be followed and not the law in its exact literal sense.
NATURE OF JURISPRUDENCE
According to him, Jurisprudence is considered with Positive Law i.e., Law as it is (Existing Law). The term ‘positive law’ connotes ‘Jus positivum’ which means law laid down by a political superior for commanding obedience from his subjects. Thus, the Law is the command of the sovereign.
Austin divided his concepts into two:-
- General Jurisprudence which includes such subjects or ends of law as are common to all systems; and
- Particular Jurisprudence which is the science of any actual system of law or any portion of it.
Criticism of Austin’s Theory–
- Salmond said that a concept to fall into the category of ‘General Jurisprudence’, it should be common in various systems of law.
- Holland said that it is only the material that is particular and not the science itself.
- This is not always true as there could be a concept that falls in neither of the two categories.
- Dias said that there is no scope of maturity in this theory.
Bentham’s legal philosophy is known as “Utilitarian Individualism”. According to him, the purpose of law is to – bring pleasure, and – avoid pain. For Bentham, the right relationship between positive law and morality was expressed in the maxim –
“Obey punctually, Censure Freely”
Criticism of Bentham’s Theory–
- According to Friedman, Bentham’s theory suffers from only two weaknesses-
- Firstly, It is an effort to blend materialism with idealism.
- Secondly, the theory fails to balance the interest of the individual with that of the community.
- It was affirmed by many Jurists that pleasure and pain cannot be the final test of the adequacy of law.
- Law should be made exclusively by the legislature which was supposed to remove any barrier to individual freedom but in later times, legislation was used to restrict an individual’s freedom in economic matters.
He considered Jurisprudence as ‘the formal science of positive law”. By ‘Formal Science’, he means that which deals with the various relations which are regulated by legal rules.
Criticism of Holland’s Theory–
- According to Gray, The relation of Jurisprudence to law depends not upon what law is treated but how the law is treated.
- Jenk is of the opinion that Jurisprudence cannot be truly said to be ‘formal science’. Jurist having got the form as it had to dissect and ascertain its meaning. He also said that Holland could not demarcate the boundary of the subject properly.
He understood Jurisprudence as the ‘science of law’. By law, he also meant including the law of the land or civil law. Under his theory, he laid down Three kinds of jurisprudence:-
- Expository or Systematic Jurisprudence
According to him, it is the kind of Jurisprudence which deals with the contents of an actual legal system, as existing at any time, whether past or present.
- Legal History
It is the type of Jurisprudence which is concerned with a legal system in its process of historical development.
- Science of Legislation
It implies that Jurisprudence, the purpose of which is to set forth law as it is ought to be. It deals with the ideal legal system and the purpose for which it exists.
Criticism of Salmond’s Theory–
In general, this theory was criticized on the observation that he was failed to give an accurate or scientific definition of the subject.
Many Jurists also criticized on the basis that he narrowed down the field of Jurisprudence by saying it is a science of Civil law. Hence, it covers only a particular legal system.
As per the study done by Keeton, he came to the conclusion that Jurisprudence is nothing but the study and systematic arrangement of the general principles of law.
According to him, Jurisprudence should be considered as the science of law. He emphasized on the correctness of using the term ‘law’ in the judicial sense, which tends to denote the body of principles recognized or enforced by public and regular tribunals in the administration of justice.
According to him, Law is Social engineering which means a balance between compelling interests in society.
“A desire for an ideal relation among men which we call justice leads to thinking in terms of an achieved ideal relation rather than of means of achieving it.”
SCOPE OF JURISPRUDENCE
- It has both, the theoretical value as well as practical value at the same time.
- It gives, to general prudent person, the understanding of the nature of law.
- It helps in and makes easy the study of the actual meaning of the law.
- It has educational value.
- It is often denoted as the ‘eye of law’.
- It throws light on the basic ideas and the Fundamental Principles of law in a given society.
- It helps judges and lawyers in ascertaining the meaning of words and expressions in statutes.
Author: Shivam Srivastava,
School of Law, IIMT - 4th year