What is jurisprudence?

Jurisprudence in its limited sense means evolution of general principles upon wh

ich actual rules of law are based. It is concerned with rules of external conduc
t
which persons are constrained to obey. There for ethemologically jurisprudence i
s that science which imparts to us knowledge about law
Jurisprudence has been used in different senses sometimes it means law, sometime
s it means as philosophy of law and sometimes as science of law. W.Friedman in 1
945 used legal theory for jurisprudence and now there is a tendency to prefer le
gal theory in place of jurisprudence.
Jurisprudence has been derived from the Latin word “jurisprudentio”; it means k
nowledge of law .In Latin language jure or juris means law or prudential means s
kill or knowledge. Therefore jurisprudence signifies a practical knowledge of la
w and its application but today it is not used in this sense. In law it is refus
ed as a body of judicial incidents as distinguished from status & expert opinion
on etc.
In Germany it is termed as “rechts philosophic” i.e. philosophy of right (the la
w is the abstract sense. In Greece and Rome the jurisprudence was mixed with the
theology. It was termed as renaissance when law was separated. In Hindu law we
get the trace of mixing these two because in it legal rights are mixed with reli
gious rights.
In the 19th century jurist did jurisprudence as science of law. Amos in 1874 def
ined jurisprudence as science of law. At this stage the legal philosophy was sep
arated from political philosophy and the jurisprudence was separated from. Juris
prudence was developed as a separated science. Before Amos, Bentham divided the
jurisprudence in two parts expostirio(what the law is) and censorio(what the law
ought to be).
Meaning
Jurisprudence was understood in different senses for different jurists. For any
jurist it was impossible to study the entire dimension of jurisprudence from all
angles. The jurist named the various dimension of jurisprudence but for proper
study of the subject, they select a particular field and confine themselves to t
hat area. For this reason no single definition can be signally accepted for juri
sprudence:-
Austin:-
Austin’s main work is “Lectures on Jurisprudence”. It was collected posthumousl
y by his wife. He defined jurisprudence as “a science of law which concerns with
analysis of concept or its underline principles. Austin the appropriate subject
of jurisprudence is positive law i.e. existing to him jurisprudence is not a mo
ral philosophy but it is a systematic study of actual law. Jurisprudence has not
hing to do with goodness or badness of law. For a jurist the morality of law is
indefinite. He divided the study of Jurisprudence into general and particular Ju
risprudence, which includes such subject or ends of law which are common to all
system.
While particular Jurisprudence is confined only to actual system of law or any p
ortion of law. The particular Jurisprudence is the particular one for example Po
ssession is one of the fundamental legal concepts known to all system of law. It
is the function of Jurisprudence to explain its character and determine the con
ditions, under which it is acquired, transferred or extinguished
General Jurisprudence discharges this function without any particular system of
law particular jurisprudence would also do same thing but with a particular syst
em of law i.e. it would analyze, systemize and explain, how the nature and scope
of possession has been defined or delimited by any particular system of law.
Gray:-
Gray accepted the classification of Austin though he preferred the term compara
tive Jurisprudence in place of general Jurisprudence.
Salmond and Jethrow Brown:-
They repudiated the concept of general jurisprudence. The only kind of jurisprud
ence of is particular Jurisprudence. Salmond considered jurisprudence as the sci
ence as a science of civil law. Jurist of historical school also denied the exis
tence of general Jurisprudence. According to them law is like language bows and
evolve in this process of evolution it is conditioned by local factors eg. polit
ical, geographical, religious & historical. These local factors differ from city
to city and consequentially only a particular jurisprudence is possible.
Holland:-
He objects to Austin’s concept of particular Jurisprudence. If Jurisprudence is
a science then like all sciences it must be general and it is meaning to call it
particular. He further says that it is like geology to call the study of compos
ition and structure of earth. The analytical approach of Austin was more concret
e, understandable and particular. It attracted the attention of the jurist in th
e countries. Holland defined jurisprudence as the formal science of law. By form
al science he means the dealing with various relations which are regulated by le
gal rules themselves which regulate those relations. Material science supplies t
he fact while formal science of jurisprudence elucidated meaning of the relation
regulated by law eg. Jurisprudence explains the legal aspect of marriage and it
s connection with property and family. Secondly, Holland like Austin is concerne
d with positive law he is not concerned with law as it ought to be or the object
of the law. Gray has criticized Holland saying that material roles of law is to
clay relation governed by those rules, like bricks as bricks cannot be made wit
hout clay. There cannot be a relationship without material rule. Dias and Hughes
have criticized Holland’s analogy. Law as a social institution and structure of
society differs in objective, condition and environment.
Buckland:-
He holds that the principles of geology may be elaborated from the geology of En
gland & Rome. The geology may be the same all over the world but law is not a me
chanical structure like geological deposits.
Salmond:-
Salmond also criticized the Holland’s dejection of particular Jurisprudence. Ac
cording to Salmond Jurisprudence can be defined n two sense
1) Generic sense
2) Specific sense
In generic sense means science of civil law (law of land).
In specific sense, it means science of the first principle of civil law.
Jurisprudence inGeneric sense
Salmond agrees with Austin and Holland to extent that Jurisprudence is the scien
ce of basic principles of legal system. The civil law is the law of land which i
s administered by the court in administration of justice. On this point he diffe
red with Austin and Holland as he narrowed the field of Jurisprudence. The study
of Jurisprudence is today not confined to the study of law as administered by c
ourt of justice but it takes note of social life of society.
General Jurisprudence is not the study of legal system in general but general or
fundamental element of the legal system.
Generic sense
1) Legal disposition
2) Legal history
3) Science of legislature
Legal disposition means the purpose is to set forth the content of the actual le
gal system at any time past or present.
Legal history is to set forth the historical process of any legal system. What i
t is? And, what it was?
Science of legislature does not see the present or past but the ideal future of
law.
Jurisprudence in Specific sense
1) Analytical Jurisprudence.
2) Historical Jurisprudence.
3) Ethical Jurisprudence.
Analytical
To study the first principle of law historical origin and ethical are examined a
nd not its validity.
Historical
It governs he general principle, origin and development of law. The history i
ncludes study of first principle and construction of legal system.
Ethical
to study ethical significance and the adequacy of law. The purpose for which it
exists and the manner and measure of the purpose which is to be full filled.
Gray:-
Defined jurisprudence as science of law i.e. systematic arrangement of rules fol
lowed by the courts and principle underlining them. He divides Jurisprudence int
o three classes:-
1) Particular Jurisprudence:-science of law of a particular community.
2) General Jurisprudence:-comparison of law of two or more community.
3) Comparative Jurisprudence:-comparison of all legal system of the world.
Stone has criticized the gray’s approach and said that he failed to determine an
y province of jurisprudence and rather he reduced Jurisprudence to merely a matt
er of rules.
Conclusion
Even after criticism of Austin it can be safely said that Austin’s definition i
s more correct. Has widened the scope of Jurisprudence by classifying it in to t
wo categories:-
1) General Jurisprudence
2) Particular Jurisprudence