Law and You > Criminal Laws > Criminal Jurisprudence > Austin’s Concept of Jurisprudence
e last article, we have seen some definitions of jurisprudence given by different jurists. Defining jurisprudence is not easy, because the definition varies with the subject matter. Different meanings have been assigned to the term ‘Jurisprudence’ by different writers. To understand the concept of jurisprudence, let us study some definitions of jurisprudence in detail
The first jurist to make jurisprudence as science was John Austin (1790-1859) who is often described as the father of English Jurisprudence. In 1832 John Austin published his very important work entitled “province of Jurisprudence determined” which treated jurisprudence as a science of law concerned with analysis of the concepts or its underlying principles.
Austin’s Imperative Theory of Law / Concept of Positive Law:
Imperative theory of law was proposed by Austin. According to Austin, positive law has three main features:
- it is a type of command,
- It is laid down by a political sovereign, and
- It is enforceable to sanction. Thus every law is a species of command and prescribes a course of conduct.
Austin’s Concept of Jurisprudence
According to Austin the relationship of superior to inferior is due to the power which the superior enjoy over the inferior i.e. the ability of the superior to punish the inferior for disobedience. A command is a wish/desire to another so that he/she shall do a particular thing or refrain from doing a particular thing. In case of non-compliance with command, he/she has to for evil consequences .the sanction behind the law is the evil which is to be influenced in the case of disobedience. All positive laws are commands of the sovereign either directly or indirectly. They are set by political superiors. Some laws are not set up political superiors and covers laws of voluntary association and clubs. According to Austin, every law should have a sanction of the physical force of the State.
Austin defines ‘Jurisprudence’ as ‘science of law’ which deals with analysis of the concepts or its underlying principles. For Austin the appropriate subject of jurisprudence is positive law i.e. law as it is. To him jurisprudence is not a moral philosophy but it is a systematic study of actual law as distinguished from moral, ideal or natural law. Austin refers to jurisprudence as the “philosophy of positive law”. The term “Philosophy” used by Austin in describing jurisprudence is somewhat misleading. Generally, philosophy deals with the most general theories about things, human and divine, while as per Austin jurisprudence restricts itself to the general theory of man-made law. He confined the term ‘jurisprudence’ to study of law as it is and not what it ‘ought to be’.
Austin divided jurisprudence into two kinds (a) General jurisprudence and (b) Particular jurisprudence. The two jurisprudences differ from each other not in essence but in their scope.
Distinction Between General Jurisprudence and Particular Jurisprudence:
| General Jurisprudence | Particular Jurisprudence |
| According to Austin, General Jurisprudence is a science of law concerned with exposition of the principles, notions, and distinctions which are common to the systems of law, understanding by systems of law, the ampler and mature systems which by reason of their amplitude and maturity are pre-eminently pregnant with instruction | According to Austin, Particular Jurisprudence is the science of any one of such systems of law or any portion of it. |
| It is not limited to a particular place. It is science of positive law obtained in different societies. | It is related to a particular country and hence sometimes referred as national jurisprudence. |
| It is universal in nature | It is local in nature. |
| It procures data from two or more countries. | It procures data from one system of law only. |
| General jurisprudence has a wider scope than particular jurisprudence | Particular jurisprudence has a narrower scope than general jurisprudence |
| It tries to bring together two or more jurisprudences under one umbrella. | It is a practical jurisprudence of one system of law. |
| Examples: The concept of rights and duties, ownership, possession, personality, property etc. | Examples: English jurisprudence, Roman jurisprudence, Hindu jurisprudence |
Criticism to Austin’s Concept of Jurisprudence:
Austin’s definition was criticised by Salmond and Holland and other Jurists on the ground that it is not proper and not applicable.
- 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 cannot be dealt with in general jurisprudence. There may be many schools of jurisprudence but there are not different kinds of jurisprudence. Jurisprudence is one integral social science. The distinction between general and particular jurisprudence is not proper. It is not correct to use such terms as Hindu jurisprudence, Roman jurisprudence or English jurisprudence. Jurisprudence is a social science which deals with social institutions governed by law. It studies them for the point of view of their legal significance.
- The criticism of Holland is based on the assumption that law has the same characteristic all over the world. According to Holland if jurisprudence is rightly called a science, like all sciences, it must be general and it is meaningless to call it particular. He further emphasizes and illustrates his view with the examples of geology. Geology is the science of earth’s composition and structure; it would be strange use of language to call the study of the composition and structure of England as the science of geology.
Supporters of Austin’s Concept of Jurisprudence:
- Maitland points out that “race and nations do not travel by the same roads and at the same time”.
- Lord Bryce writes, “The law of every country is the outcome and result of the economic and social conditions of the country as well as the expressions of its intellectual capacity for dealing with these conditions.
- Buckland observes “law is not a mechanical structure like geological deposits; it is a growth and its true analogy is that of biology”.
- Savigny says,” law grows with the growth and strengthens with the strength of people and its standard of excellence will generally be found at any given period to be in complete harmony with the prevailing ideas of the best class of citizens”.
- Puchta writes, “The progress in the formation of law accordingly keeps pace with the progress in the knowledge of the people of the facts which they observe and hence it is that law has its provincialisms no less marked than language.”
- Gray accepts Austin’s classification of jurisprudence into general and particular jurisprudence, though he prefers the term ‘comparative jurisprudence’ in place of general jurisprudence
Conclusion:
Austin divided jurisprudence into two kinds (a) General jurisprudence and (b) Particular jurisprudence. The two jurisprudences differ from each other not in essence but in their scope. General jurisprudence is an attempt to expound the fundamental principles and broadcast generalization of two or more systems. Particular jurisprudence says Austin, is the science of any actual system of law or of any portion of it. The only practical jurisprudence is particular. General and particular jurisprudence differ from each other not in essence but in their scope. However, in both cases, the subject of jurisprudence is positive law.