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Jurisprudence Class Notes

The document provides an overview of jurisprudence based on class notes. It defines jurisprudence as the study or knowledge of law. It discusses different thinkers' definitions of jurisprudence such as Austin, Holland, Salmond, Keeton, Pound, and Dias and Hughes. Austin viewed jurisprudence as the science of positive law while Holland defined it as the formal science of positive laws. The document also outlines the nature and scope of jurisprudence according to different scholars and concludes that jurisprudence involves the study of fundamental legal principles and cannot be limited in scope as it examines all human conduct in state and society.

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23K views

Jurisprudence Class Notes

The document provides an overview of jurisprudence based on class notes. It defines jurisprudence as the study or knowledge of law. It discusses different thinkers' definitions of jurisprudence such as Austin, Holland, Salmond, Keeton, Pound, and Dias and Hughes. Austin viewed jurisprudence as the science of positive law while Holland defined it as the formal science of positive laws. The document also outlines the nature and scope of jurisprudence according to different scholars and concludes that jurisprudence involves the study of fundamental legal principles and cannot be limited in scope as it examines all human conduct in state and society.

Uploaded by

SuyashVerma
Copyright
© Attribution Non-Commercial (BY-NC)
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Download as DOCX, PDF, TXT or read online on Scribd
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Jurisprudence Class Notes

04.01.2011

Module I- Introduction to Jurisprudence

1. Nature and Scope of Jurisprudence


2. The Nature of Law

Nature and Scope of Jurisprudence

What is Jurisprudence?

There is no universal or uniform definition of Jurisprudence since people have different ideologies
and notions throughout the world. It is a very vast subject.

When an author talks about political conditions of his society, it reflects that condition of law
prevailing at that time.

Romans were the first who started to study what is law.

Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.

Most of our law has been taken from Common Law System.

Bentham is known as Father of Jurisprudence. Austin took his work further.

Bentham was the first one to analyse what is law. He divided his study into two parts:

1. Examination of Law as it is- Expositorial- Command of Sovereign.


2. Examination of Law as it ought to be- Censorial- Morality of Law.

Austin stuck to the idea that law is command of sovereign. The structure of English Legal System
remained with the formal analysis of law and never thought what it ought to be.

J. Stone also tried to define Jurisprudence. He says that it is a lawyer’s extra version. It is lawyer’s
examination of the percept, ideas and techniques of law in the light derived from present knowledge
in disciplines other than the law.

There can be no goodness or badness in law. Law is made by the state so there could be nothing
good or bad about it. Jurisprudence is the science of law.

Definitions by:

1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes
05.01.2011

Austin- Science of Jurisprudence is concerned with Positive Laws that is laws strictly so called. It has
nothing to do with the goodness or badness of law.

Two Parts:

1. General Jurisprudence- It includes such subjects or ends of law as are common to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it.

In essence they are same but in scope they are different.

Salmond’s Criticism

He said that for a concept to be General Jurisprudence, it should be common in various systems of
law. This is not always true.

Holland’s Criticism

He said that it is only the material which is particular and not the science itself.

Holland’s Definition- Jurisprudence means the formal science of positive laws. It is analytical science
rather than material science.

1. He defines the term positive law. He says that the positive law means the general rule of
external human action enforced by a sovereign political authority.
2. He simply added the word ‘formal’ in Austin’s definition. Formal means we study only the
form and not the essence. We study only the external features and do not go into the
intricacies. How it is applied and how it is particular that is not the concern of Jurisprudence.
3. The reason for using the word Formal Science is that it describes only the form or the
external sight of the subject and not its internal contents. Jurisprudence is not concerned
with the actual material contents of law but with its fundamental conceptions. Therefore,
Jurisprudence is a Formal Science.
4. It has been criticized by Gray and Dr. Jenks. Jurisprudence is a formal science because it is
concerned with the form, conditions, social life, human relations that have grown up in the
society and to which society attaches legal significance.
5. Jurisprudence is a science because it is a systematized and properly co-ordinated knowledge
of the subject of intellectual enquiry. The term positive law confines the enquiry to these
social relations which are regulated by the rules imposed by the states and enforced by the
courts of law. Therefore, it is a formal science of positive law.
6. Formal as a prefix indicates that the science deals only with the purposes, methods and
ideas of the basis of the legal system as distinct from material science which deals only with
the concrete detail of law.
7. It has been criticized on the ground that this definition is concerned only with the form and
not the intricacies.
06.01.2011

Salmond- Jurisprudence is Science of Law. By law he means law of the land or civil law. He divides
Jurisprudence into two parts:

1. Generic- This includes the entire body of legal doctrines.


2. Specific- This deals with the particular department or any portion of the doctrines.

Specific is further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development.
3. Ethical- The purpose of legislation is to set forth laws as it ought to be. It deals with the ideal
of the legal system and the purpose for which it exists.

Criticism- It is not an accurate definition. Salmond only gave the structure and failed to provide any
clarity of thought.

Keeton- He considers Jurisprudence as the study and systematic arrangement of the general
principles of law. Jurisprudence deals with the distinction between Public and Private Laws and
considers the contents of principle departments of law.

Roscoe Pound- Jurisprudence as the science of law using the term ‘law’ in juridical sense as denoting
the body of principles recognized or enforced by public and regular tribunals in the administration of
justice.

Dias and Hughes- Jurisprudence as any thought or writing about law and rather than a technical
exposition of a branch of law itself.

Conclusion- Jurisprudence is the study of fundamental legal principles.

Scope of Jurisprudence- Austin was the only one who tried to limit the scope of jurisprudence. He
said morals and theology in the study of jurisprudence. Basically, the study of jurisprudence cannot
be circumscribed because it includes all human conduct in state and society.

Approaches to the study of Jurisprudence- There are two ways

1. Empirical- Facts to Generalization.


2. A Priori- Start with Generalization in light of which facts are examined.

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