Law and You > Criminal Laws > Criminal Jurisprudence > Defining Jurisprudence
Law may be defined as a large body of rules and regulations based mainly on general principles of justice, fair play and convenience, which have been worked out, promulgated and enforced by governmental bodies to regulate human activities and define what is, and what is not permissible conduct in various situations. It is a pattern of conduct to which actions do, or ought to conform. Jurisprudence deals with the knowledge of the law. Romans were credited for initiating the study of Jurisprudence. In this article, we shall try defining jurisprudence.
The task of jurisprudence’ consists of the examination of realm of law and the formulation of valid propositions. In France, jurisprudence is called ‘La Philosophie De Droit’ that is the philosophy of rights, that is of law-in the abstract sense of the term ‘law’. In Germany we have the term ‘Rechtsphilosphie’ that is the philosophy of rights that is of law in the abstract sense. In India we may well have the term ‘Vidhi Shastra’ that is the knowledge of law in the abstract sense of the term law.
Defining Jurisprudence:
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. The word “Jurisprudence” is derived from the Latin word “Jurisprudentia” which again is made of two words ‘Juris’ meaning legal and ‘Prudentia’ means knowledge.
Thus, it can be said that ‘Jurisprudence’ is the name given to a certain type of investigation into law, an investigation of an abstract, general and theoretical nature, which try to find essential principles of law and legal systems. So it deals with knowledge of ‘law’ and not ‘the law’. Jurisprudence is an integral part of the law which is based on theories and various analysis. Jurisprudence talks about the relationship of law with other social sciences, society, man and nature. Jurisprudence gives us an overview and a much more in-depth understanding of the law and the role of law in society. Jurisprudence deals with legal reasoning, legal institutions and legal systems. The study of the origin of words and the way in which their meanings have changed throughout history is called etymology. Etymologically ‘Jurisprudence’ means “knowledge of law”.
The definition of the term “Jurisprudence” is illusive and many authors (e.g. finch) are of the opinion that the word ‘jurisprudence’ cannot be defined with precision, while authors like Vinogradoff and Olivecrona opined that any definition of jurisprudence can only be attempted by a thinker after he understands and digest the vast plethora of the basis of law. Olivecrona opined that before a definition can be reached, the facts must be analyzed. According to Vinogradoff definitions ought to emerge towards end of a course of a study as a natural reaction to the conflict of ideas which characterizes jurisprudence. As per their opinion we can conclude that the concept of jurisprudence changes with time and the concept of 17th century philosopher and modern day jurist will be totally different in perspective. In spite of difficulty in defining the term ‘jurisprudence’, we have to understand some important definitions of the term.
Some of the definitions of the term “jurisprudence” given by various eminent jurists as under
Austin’s Definition:
Austin defines ‘jurisprudence’ as “the philosophy of positive law.” He opines that the appropriate subject to jurisprudence is a positive law (jus positivum) i.e., law as it is (existing law, written). In other words, jurisprudence is not a moral philosophy but it is a scientific and systematic study of the existing, actual and positive law has distinguished from natural, ideal or moral law.
Austin divides jurisprudence into two classes. Viz ‘general Jurisprudence and Particular Jurisprudence. According to him ‘General Jurisprudence is the philosophy of positive law. On the other hand, ‘particular jurisprudence is the science of any such system of positive law as now actually obtains or once actually obtained in a specifically determined nation or specifically determined nations.
Austin’s definition criticised by Salmond and Holland and other Jurists on the ground that it is not proper and appropriate to classify as the general Jurisprudence and Particular Jurisprudence.
Holland’s Definition:
Sir Thomas Erskine Holland has defined jurisprudence as the “formal science of positive law” A formal science, as distinguished from a material science, is one which deals not with concrete details but with the fundamental principles underlying them. Jurisprudence in this view should concern itself with the general portion of legal doctrine. It should deal with the general conceptions and pervading principles that constitute the basis of any mature system of law.
Many eminent jurists have criticised the definition of Holland that jurisprudence is the formal science of positive law. It is not free from defects. The question arises what is a formal science? Holland himself explains that by the term ‘formal’ he means that jurisprudence concerns itself with human relations which are governed by the rules of law rather than the material rules themselves, for the latter are the subject of legal exposition, criticism or compilation rather than jurisprudence.
Gray’s Definition:
According to Professor John Chipman Gray, jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in these rules.
Stone has Criticised Gray’s Definition and said that Gray has failed to determine any province of jurisprudence rather he has reduced jurisprudence to merely a matter of arrangement of rules.
Salmond’s Definition:
Salmond defines jurisprudence as the science of the first principles of the civil law. He points out that jurisprudence deals with a particular species of law e.g., civil law or law of the state. The civil law consists of rules applied by courts in the administration of justice. The Civil law consists of rules applied by Courts in the administration of Justice. Salmond agrees with both Austin and Holland only to the extent that jurisprudence is ‘a science, a systematic study of basic principles of legal systems and with Gray upholding that Jurisprudence only deals with jurist’s law.
Salmond’s Definition has been criticised on the ground that he has narrowed down the field of jurisprudence by saying that it is a science of civil law and hence covers only particular legal system.
Other definitions are as follows:
- Oxford dictionary defines ‘Jurisprudence’ as the systematic and formulated knowledge or the science of human law.
- Wharton’s law lexicon defines ‘Jurisprudence’ as the science of law, especially of Roman law.
- Kant treats ‘Jurisprudence’ as the science of right. He says the science of right thus designates the philosophical and systematic knowledge of the principles of natural right.
- According to Dr. M.J. Sethna, jurisprudence is the study off fundamental legal principles, including their philosophical, histological, and sociological bases and analysis of legal concepts.
- According to Patterson ‘Jurisprudence’ means a body of ordered knowledge which deals with a particular species of law.
- According to Jullius Stone ‘Jurisprudence’ means ‘lawyer’s extraversion. It is the lawyer’s examination of the precepts, ideas and techniques of the law in the light derived from present knowledge in disciplines other than the law.
- According to Ogden and Richard, ‘Jurisprudence’ means any though or writing about law (other than a technical exposition of a branch of law itself).
- According to Dias and Hughes there is no proper meaning of the term ‘Jurisprudence’. Any thought or writing about the concept of law, social functions or purposes of law etc are fit subjects for jurisprudence.
- According to G. C. Lee ‘Jurisprudence’ is a science which endeavours to ascertain the fundamental principles of which the law is the expression. It rests ‘upon the laws as established facts, but at the same time i is a power in bringing the laws into coherent system and in rendering all parts thereof subservient to fixed principles of justice.
- According to Kelson, study of ‘Jurisprudence’ is the study of a hierarchy of norms, the validity of each norm depending on that of a superior norm ‘Grund Norm’. (For him norm means ‘rule of conduct’. Grund norm means the superior norm).
- According to Lawellyn ‘Jurisprudence’ means an empirical study of events and factors that influence the judge.
- According to Keeton ‘Jurisprudence’ is the study and systematic arrangement of the general principles of law.
- According to Lord Lloyd ‘Jurisprudence’ involves the study of general theoretical questions about the nature of laws and legal system, about the relationship of law to justice and morality and about the social nature of law.
- According to Professor Carleton Kemp Allen ‘Jurisprudence’ is the scientific synthesis of the essential principles of law.
- According to Roscoe ‘Jurisprudence’ is a consideration of the ethical and social merits of legal rules.
- The celebrated Roman jurist, Ulpian (228 AD) defined jurisprudence as “the observation of things human and divine, the knowledge of the just and unjust”. The definition is too broad and might well apply to religion, ethics or philosophy.
- According to Raddiffle ‘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 disciplines interwoven together for the common good of the society.
- Cicero defines ‘Jurisprudence’ as the philosophical aspect of the knowledge of law.
- According to H.L.A Hart, a legal system consists of primary and secondary rules. These rules explain the nature of law and provides key to the 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 defect of primary rules. His view was a reaction against rigid positivism. He viewed Jurisprudence as a science of law in a broader perspective by co-relating law and morality.
- According toDean Roscoe Pound defines jurisprudence as “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 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 the society.
- According to G.W. Paton, jurisprudenceis a particular method of study, not the law of one country, but of the general notion of law itself.
Conclusion:
From the above definitions of Jurisprudence, it could be seen that there is no commonly agreed definition of Jurisprudence. Each Jurist guided by his own consciences but since the conception of the term law till the beginning of the 20th century, a new approach to the study of law in relation to society is given. Some jurist, therefore, treats law as “social engineering” an instrument to bring social change or support social change. Thus the function of law is the supplement to social sciences.