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What is Jurisprudence?
Jan 5, 2022 Jurisprudence

Priya Singh & Raju Kumar

: 3 Minutes

INTRODUCTION

The history of the concept of law shows that Jurisprudence has

evolved from the period of classical Greece to the modern precedent
of the 21st century with many changes in its nature at different stages
of development.1 Jurisprudence is a concept that puts theory and life
at the center. It deals with the basic principles on which the
superstructure of the law is based. The concept of jurisprudence
basically helps to cultivate one's own ideas regarding a particular
theory. Abstractly, jurisprudence is a discipline whose knowledge is the
basis, the foundation of all legal studies. Case precedent is the name of
a certain type of legal investigation, in which it is a matter of reflecting
the nature of legal norms, the basic meaning of legal concepts, and the
basic characteristics of legal system.2 Jurisprudence is both idealistic
and abstract and a study of human behavior in society.3 In
jurisprudence, we ask what rule is, and what distinguishes law from
ethics, etiquette, and other related phenomena.4

The term jurisprudence is derived from the Latin word

"jurisprudential" which means "competence or knowledge of the law."5 In
the first decades of the 19th century with the theories advanced by
Bentham and Austin, the term Bentham is known as the father of
Jurisprudence which was the first to analyze what the law is.6
Jurisprudence is closely associated with other social sciences, as they
all deal with human behavior in society. Roscoe Pound, who promoted
legal theory as "social engineering," also says that jurisprudence is
closely related to other social sciences, although distinct enough to be
essential, but interrelated.7

MEANING AND NATURE OF JURISPRUDENCE

jurisprudence is the study of basic legal principles. It can be a)

philosophical b) scientific c) historical. Civil, criminal, constitutional,
administrative and military laws must have some foundation.8 All that
is founded on wisdom is deep and enduring; what is based on justice
will be respected for centuries; what speaks the truth will resist all
obstacles. But what is based only on convenience will not last long;
what suits only a particular class or section of the population will
inevitably create discontent, antagonism and lack of peace; what is
unfair is a bad law and will not be obeyed even if it must be obeyed.9

The word jurisprudence is not normally used in other languages in the

English sense. In French, it refers to something like "jurisprudence". The
development of the company is dynamic and therefore difficult to
accept a certain definition. New problems and new problems require
new solutions and new interpretations in changed circumstances.
However, scientific inventions have brought people all over the world
together, helping popularize ideas and thoughts and develop a common
term. Despite the difficulties, an approach that allows the reader to
visualize the subject and grasp its fundamentals is still possible.10

The Greeks did not develop a systematic science of legal relations. For
the Greeks, jurisprudence was generally a branch of theology based on
natural law. The Romans also gave a vague and broad meaning to the
term "jurisprudence". Ulpian called the jurisprudence of observing
things or gods, the knowledge of justice and injustice. So that time
merged with theology. For St. Thomas Aquinas, jurisprudence became
a branch of theology.11 As a result of the Reformation and Renewal, the
process of separating jurisprudence from theology began. Kant
formulated the idea of legal justice and undermined the eighteenth-
century school of natural law by showing that it was impossible to do
by pure reason what one sought to do. Bentham reinforces the
tendency and jurisprudence to break free from theology; he spoke of
the jurisprudence of responsibility and censorship. He said that the law
binds man until a temporary punishment can make it effective, even if
it is against God's law.12 In the late 19th century, the development of
human affairs gave rise to growing concern with conflicting ideologies
and difficult social conditions, leading to a decisive shift in opinion.
determined. As a result of this change, jurisprudence is now seen in a
much broader and infinitely broader sense than Austin understood it.13
When used in this sense, the term refers to a treatise that refers to a
body of knowledge useful in the application of applicable or useful legal
doctrines or principles to legal matters or architecture, engineering or
environment cases.

DEFINITION BY DIFFERENT PHILOSPHERS.

AUSTIN'S DEFINITION

Austin calls jurisprudence the "philosophy of positive laws". By positive

law or positivism, he means the law made by a political superior to
control the behavior of those who are under his authority. Therefore,
the "positive law" used by Austin is identical to "civil law". The term
"philosophy" is used by Austin to describe jurisprudence in a somewhat
miserable way.14

The first jurist to make jurisprudence a science was John Austin, who is
often considered the father of English jurisprudence. with the analysis
of its underlying concepts or principles.15

Austin defines "jurisprudence" as a "science of law" concerned with the

analysis of its underlying concepts or principles. For Austin, the
relevant subject of jurisprudence is positive law, that is, law as it is. For
him, jurisprudence was not a moral philosophy, but a systematic study
of real laws as opposed to morals, ideals or natural laws.16

Austin further divides case precedent into two categories, viz. general
and specific jurisprudence.

1. General jurisprudence: According to Austin, general jurisprudence

is the philosophy of positive law. they are directly related to the
principles and differences common to various active and specific
legal systems and each of these different systems certainly implies
its meaning, is it worthy of praise? praise or blame or whether it
conforms to an assurance measure or test. . For Austin, therefore,
jurisprudence generally means the science concerned with
exposing the principles, concepts, and differences common to
different legal systems. Concepts of rights and obligations,
property, possessions, personality, property, etc. of the general
 case. Common precedent is an attempt to set out basic principles
and generalize the dissemination of two or more systems.17
2. Particular Jurisprudence: it is the study of law as the science of a
positive legal system as it currently exists or a real system that
exists in a particular identified country or defined countries.
specific determination. According to Austin, jurisprudence is
specifically the science of any real system of law or any part
thereof. The only actual jurisprudence is concrete.18

The Austin jurisprudence classification in general and in particular has

been criticized by Salmond, Holland, and other jurists. Salmond points
out that the flaw in Austin's idea of jurisprudence in general lies in his
assumption that unless a legal principle is common to many legal
systems; it cannot be handled in general jurisprudence. There may be
many schools of jurisprudence, but there are not many different types
of jurisprudence. Jurisprudence is an inseparable social science. The
distinction between general jurisprudence and specific case precedent
is inappropriate. It is not correct to use terms such as Hindu
jurisprudence, Roman jurisprudence or English jurisprudence.
Jurisprudence is a social science that deals with social institutions
governed by law.

The jurists of the historical school have also denied the existence of
jurisprudence in general. As a rule, like language, grows and develops.
In this evolution, it is Jurists of the historical school also denied the
existence of jurisprudence in general. According to the law, like the
language, grows and develops. In this evolution, it is regulated by local
factors, for example political, geographical, religious, historical, etc ...
these local factors vary from one country to another. As these local
factors vary from country to country, only specific jurisprudence can
be obtained.19

Holland is consistent with his definition of jurisprudence as a science

which rejects distinctions between law, jurisprudence in general, and
jurisprudence in particular. He said that if jurisprudence is rightly
called a science, like all sciences, it must be general and it makes no
sense to call it specific. He further emphasizes and illustrates his point
with examples from geology. Geology is the science of the composition
and structure of the earth; would be a strange use of language to call
the study of Britain's composition and structure a geosciences.20

Gray accepts Austin's classification of jurisprudence into general and

particular jurisprudence, though he prefers the term 'comparative
jurisprudence' in place of general jurisprudence. Allen also agrees with
Austin. He says there are certain elements inherent in the conception
of law as a phenomenon of social life. Therefore existence of general
jurisprudence is possible.

HOLLAND'S DEFINTION

Holland has defined the jurisprudence as "the formal science of

positive law". specifics but with basic fundamentals. Jurisprudence
from this point of view should relate to the general part of legal
doctrine. It must deal with the general concepts and universal
principles which form the basis of any comprehensive legal system.21
Thus, jurisprudence began to be understood as a scientific study of
fundamental principles, the basis of many developed legal systems.
Austin's analytical approach to the study of law was continued by
Thomas Erskine Holland, another English jurist.22 He has described the
jurisprudence as the formal science of ordinary human relations,
recognized as having legal consequences. The formal science of
positive law."23
Holland The six-word definition of jurisprudence is flawless 'formal
science of positive law'. The question is, what is formal science?
Holland herself explains in 'primary' terms. human relations are
governed by rules of law rather than by substantive rules which, in and
of themselves, have later been interpreted, in a feminine sense like
Austin. It is the present and existing law as opposed to the
hypothetical, ideal and abstract law. As a result, Holland, like Austin,
says that jurisprudence is always a posteriori, not a priori.24

SALMOND'S DEFINITION

Salmond defines jurisprudence as the science of the first principles of

civil law. He therefore emphasizes that jurisprudence deals with a
particular type of law, for example. civil law or state law. Civil law is
made up of rules applied by the courts in the administration of justice.
He agrees with Gray in arguing that jurisprudence concerns only the
laws of jurists and not the laws of theologians and moralists, although
they also govern human behavior in society.25

According to Salmond, jurisprudence in the specific sense includes

theoretical precedent. law. ; therefore, it does not deal with specifics
but with its basic principles and conceptions. General jurisprudence in
Salmond's view is not concerned with the study of the legal system in
general, but with the general and basic elements of a particular legal
system. In addition, Salmond divided case precedent into the following
categories:26

A. LAW EXPOSURE: its purpose is to expose the content of a real

legal system as it has always been, whether formerly or here.
B. LEGAL HISTORY: its purpose is to expose the historical process by
which any legal system has become or what it is.
C. THE SCIENCE OF LEGISLATION its purpose is to state the law,
not as it is or ever existed, but as it should be. It is not concerned
with the past or present of a legal system, but with its ideal future.

It further divides case precedent in a specific sense into:-

I. LAW ANALYSIS: the aim is to analyze, without reference to their

historical origin or development, their moral significance or
validity, first principles of law.
II. LAW HISTORY: aims to address the general principles governing
the origin and development of law, is the history of the formation
of the first principles and conceptions of the legal system.
III. Ethical RIGHTS: the aim is to deal with the law from the point of
view of its moral significance and completeness. it is not about the
intellectual content of the legal system or its historical
development, but the purpose of its existence and the means and
ways of achieving it.

According to Salmond, adequate scientific treatment of any body of

law involves the study of these categories of jurisprudence.

Salmond's definition has been criticized on the grounds that it narrows

the scope of jurisprudence by saying that it is a science of civil law and
therefore covers only a particular legal system. With the advent of the
functional approach, the province or scope of jurisprudence could not
be limited. The study of jurisprudence is not limited to the study of the
law administered by the courts of law. It also notes the realities of the
social life of societies.27

* Authors are third year B.A.,LL.B(Hons.) students Pursuing their

degrees from Chanakya National Law University, Patna. [Authored on
November 03, 2021.]
1 Available at https://www.ramauniversity.ac.in/online-study-
material/law/llb/isemester/jurisprudence/lecture-1.pdf last seen on
01.08.2021 at 11.00 PM.

2 Available at http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/6.%20jurisprudence%20final.pdf last seen on
01.08.2021 at 11.30 PM

3 Available at https://www.legalbites.in/meaning-nature-scope-
jurisprudence/ last seen on 01.08.2021 at 12.00 AM

4
Available at https://www.bhu.ac.in/law/blj2006-072008-
09/BLJ_2006/8_RAVINDRA.doc last seen on 02.08.2021 at 11.00 PM

5
Available at
https://www.law.cornell.edu/wex/jurisprudence#:~:text=The%20word%20jurisprudence%20derives%20from,mean
last seen on 02.08.2021 at 12.30 AM

6
Available at Available at https://www.ramauniversity.ac.in/online-
study- material/law/llb/isemester/jurisprudence/lecture-1.pdf

7 Available at https://www.scribd.com/document/406935384/linkage-
between-Jurisprudence-and-other-social- sciences last seen on
04.08.2021 at 12 AM

8 Available at
https://www.icsi.edu/media/webmodules/Jurisprudence%20Interpretation%20and%20General%20Laws.pdf
last seen on 10.08.2021 at 10.00 PM

9
Available at https://www.coursehero.com/file/p7vnole/As-observed-
by-Phillimore-To-develop-the-science-of- law-and-to-weave-it-into/
last seen on 10.08.2021 at 10.30 PM

10
Available at
http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-
Rigved.pdf last seen on 03.08.2021 at 11.30 PM

11
Available at https://strictlylegal.in/jurisprudence-nature-and-
concept-of-law/ last seen on 11.08.2021 at 10.30 PMs

12 Available at http://dayanandlaw.org/wp-
content/uploads/2020/10/Jurisprudence.pdf last seen on 11.08.2021
at 11.00 PM

13 Available at
http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-
Rigved.pdf last seen on 11.08.2021 at 11.30 PM

14 Available at https://www.iilsindia.com/study-
material/894406_1618737617.docx last seen on 13.08.2021 at 10.00
PM

15 Available at https://www.iilsindia.com/study-
material/64040_1599977145.docx last seen on 13.08.2021 at 10.30
PM

16 Available at http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/6.%20jurisprudence%20final.pdf last seen on
12.08.2021 at 11.00 PM

17
Available at
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1167742_code109516.pdf?
abstractid=1167742&mirid=1 last seen on 12.08.2021 at 11.30 PM

18
Available at https://www.ramauniversity.ac.in/online-study-
material/law/llb/iiisemester/jurisprudence/lecture- 2.pdf last seen on
 13.08.2021 at 12.00 AM

19
Available at http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/6.%20jurisprudence%20final.pdf last seen on
13.08.2021 at 01.00 AM

20
Ibid

21 Available at https://www.iilsindia.com/study-
material/64040_1599977145.docx last seen on 13.08.2021 at 03.00
AM

22 Available at https://www.jstor.org/stable/pdf/1327078.pdf last seen

on 14.08.2021 at 10.00 PM

23
Ibid

24 Available at https://www.ramauniversity.ac.in/online-study-
material/law/llb/iiisemester/jurisprudence/lecture- 2.pdf last seen on
14.08.2021 at 10.30 PM

25 Available at http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/6.%20jurisprudence%20final.pdf last seen on
15.08.2021 at 12.10 AM

26 Ibid

27
Available at http://www.fimt-ggsipu.org/study/bballb302.pdf last
seen on 15.08.2021 at 12.30 AM
- Raju Kumar & Priya Singh*

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