JURISPRUDENCE PROJECT

AMITY LAW SCHOOL, NOIDA

AMITY UNIVERSITY, U.P

PRESENTED BY- SHREY NARULA

BCOM LLB (H)
A11921615044
7TH SEMESTER, 4TH
YEAR

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 “JURISPRUDENCE”

The word jurisprudence is derived from latin word

“jurisprudentia”, means ‘knowledge of law’. The Latin word
‘juris’ means law and ‘prudentia’ means skill or knowledge.
Thus, jurisprudence signifies knowledge of law and its
application.
According to Oxford dictionary it is defined as jurisprudence
is the systematic and formulated knowledge or science of
human law.
In this sense it covers the whole body of legal principles in the world.
The history of the concept of law reveals that jurisprudence has
assumed different meanings at different times. It is therefore, difficult
to attempt a singular definition of the term. It has a long history of
evolution beginning from classical Greek period to 21 st Century
modern jurisprudence with numerous changes in its nature in various
stages of its evolution.
Scholars of jurisprudence, or legal philosophers, hope to obtain a
deeper understanding of the nature of law, of legal reasoning, legal
systems and of legal institutions. Modern jurisprudence began in the
18th century and was focused on the first principles of the law of
nature, civil law, and the law of nations. General Jurisprudence can
be broken into categories both by the types of questions scholars
seek to address and by the theories of jurisprudence or schools of
thought regarding how those questions are best to be answered.
Contemporary philosophy of law, which deals with general
jurisprudence, addresses problems in two rough groups:

 Problems internal to law and legal systems as such.

 Problems of law as a particular social institution as it relates to

 the larger political and social situation in which it exist.

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During the formative era of the common law in England, the term
“jurisprudence” was being used in a generic sense to include the
study of various facets of law. However, in the early decades of the
19th century with the theories propounded by Bentham and his
disciple Austin, the term ‘jurisprudence’ acquired a definite meaning.
Bentham differentiated between study of law as “it is” and “as it ought
to be” and called them ‘expositorial’ and ‘censorial’ jurisprudence
respectively.

Later, Austin concerned himself mainly with the formal analysis of the
English and its related concepts, which still continues to be the basic
contents of English jurisprudence.

Jurisprudence has been considered at various times and by different

schools of thought as philosophy, history or science. It is concerned
essentially with the nature and function of law. It deals with such
questions as what is law, where does it come from. What does it do?
And what are the means for doing it.

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 “Jurisprudence – Its Meaning”

Jurisprudence in its limited sense means elucidation of the

general principles upon which actual rules of law are based. It
is concerned with the rules of external conduct which persons
are constrained to obey. Therefore, etymologically
jurisprudence is that science which imparts to us knowledge
about ‘law’.
The term ‘law’ of course is a term of various connotations; here
we use it in its abstract sense, that is to say, not in the sense of
concrete statutes but in the sense of general principles
underlying law. Thus, for example: there are various branches
of law prevalent in the modern State such as contract, tort,
crime, property, trusts, companies, labour relations, insolvency
etc. and in jurisprudence we have to study the basic principles
of each of these branches and we are not concerned with the
detailed rules of these laws. These have to be studied in detail
when we study those branches of law separately.
Jurisprudence examines the general principles of penal liability
but it does not attempt to detail out the essentials of each
offence. In short, jurisprudence may be considered to be the
study and systematic arrangement of the general principles of
law. In another sense, jurisprudence may be regarded as the
philosophy of law dealing with the nature and function of law.
This approach to jurisprudence is receiving primacy in modern
times keeping in view the rapid social changes taking place all
around the world in recent decades. This has eventually given
rise to what is now termed as the “functional jurisprudence”, the
thrust being on inter-relationship between law and justice.

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The Indian jurisprudence owes its origin to the ancient concept
of “Dharma” which was considered to be the best way to
discipline one’s mind. The practice of Dharma enabled citizens
to inculcate a sense of discipline in conducting themselves in
the society. However, with the march of time and progress of
Indian society, the concept of law and therefore, of
jurisprudence has changed radically.

India is now a Sovereign, Socialist, Secular, Democratic,

Republic. Democracy pre-supposes government of the people,
by the people and of the people, and, therefore, citizens are
expected to be self – restrained and self – disciplined. They
should also be conscious of their rights and duties. ‘Law’ plays
a significant role in sustaining a stable social order. India being
a welfare state, a new Indian jurisprudence needs to be
developed so as to ensure that law becomes an effective
instrument of social change in various facets of life.

Law has to play the functional role of harmonizing the

conflicting interests of individuals in the society by maintaining
equilibrium between the freedom of individuals on one hand
and social welfare on the other.

The study of jurisprudence as a separate branch of knowledge

stated with the Romans. For them, jurisprudence meant
“knowledge of law”. But in the Modern sense this meaning is
too vague and general. Though the Romans in practice never
confused law with morality or religion, in theory this distinction is
hardly found to be in existence in earlier times. The definition
and conception of jurisprudence by Roman jurists may appear
to be vague or inadequate in the modern sense of the term, but
the credit of recognizing jurisprudence as an independent
branch of legal science for the first time goes to Roman legal
philosophers, which eventually paved way to development of
the subject in the present form.

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 DEFINITIONS OF JURISPRUDENCE :-

The term ‘jurisprudence’ has meant different things at different times.

The variation is due to different methods of inquiry and approach to
the study of the subject. It is for this reason that Julius Stone has
described jurisprudence as “the lawyer’s extraversion” meaning
thereby that jurisprudence involves examination of precepts, ideals
and techniques of the law by lawyers in the light of disciplines other
than law. The definition of jurisprudence as given by some of the
eminent Jurists may be stated as follows:

Definition According to Ulpian:-

Ulpian defined jurisprudence as- “the observation of things human
and divine, the knowledge of the just and the unjust.”
It connotes more or less the same meaning as the term ‘Dharma’
under the Hindu jurisprudence and covers the province of religion,
ethics and philosophy. Thus, this definition is too broad and has wider
connotation.

Definition According to Gray:-

Professor Gray has also defined jurisprudence more or less in the
same manner. He opined that “jurisprudence is the science of law,

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the statement and systematic arrangement of the rules followed
by the courts and the principles involved in those rules.”
Thus, jurisprudence deals with that kind of law which consists of rules
enforced by courts while administering justice. In other words, the
laws of the jurist deal with man and seek to regulate external human
conduct in the society. It does not concern itself with the inner beliefs
of man imbibed in religious laws, which derive their authority from
super human source which we can call as “God’. The sanction for
their enforcement is spiritual reward or curse according to man’s
deeds.

Criticism:-
Stone has criticized 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.

Definition According to Salmond:-

Salmond defines jurisprudence as “the science of the first
principles of the civil law.” Thus, he points out that jurisprudence
deals with a particular species of law namely, civil law or the law of
the State.
The civil law consists of rules applied by courts in the administration
of justice. He agrees with Gray in upholding that jurisprudence is
concerned with only jurist’s law and it is not concerned with the laws
of theologian and moralist although they also govern the conduct of
man in society. The juristic laws regulate external human conduct
only and not the inner beliefs f man in society. They are enforced by
courts of judicial tribunals and carry with them sanctions ranging from
capital punishment to a fine or even a mere admonition.
Salmond supports Holland and Austin in holding that jurisprudence is
a science, that is, a systematic study of the basic principles of

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individual specific legal systems. He classified jurisprudence in
‘generic’ and ‘specific’ sense. The former includes the entire body
of legal doctrines whereas the latter means only a particular branch of
such doctrines. According to him, specific sense alone is the proper
jurisprudence because it deals with general principles of a particular
legal system.
Salmond observed that as the ‘science of law’ there may be three
kinds of jurisprudence:
Expository or systematic jurisprudence, which deals with the
contents of an actual legal system as existing at any time
whether past or present.
Legal history, which is concerned with the legal system in its
process of historical development.
The science of legislation, the purpose of which is to set forth
law as it ought to be. It deals with the ideal future of the legal
system and the purpose which it may serve.
Criticism :-
Dr. Allen has objected to the Salmond’s definition on the ground that
he has limited the scope of jurisprudence to a particular legal system.
It is rather too narrow a view.

Definition According to John Austin:-

Austin calls jurisprudence as the “philosophy of positive law.”
He was the first jurist to make jurisprudence as a science. By the
term “positive law” he meant “jus positivum”. That is law laid down by
a particular superior for commanding obedience from his subjects.
Thus, it is identical with “civil law” of Salmond. Austin pointed out that
science of law is concerned with law ‘as it is’ and not ‘as it ought to
be’, which he considers as the science of legislation.
Austin distinguishes law from those of customs and ethical abstract
ideas. He preferred to divide jurisprudence into two parts, namely:
(1) General jurisprudence

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 (2) Particular jurisprudence
By “General jurisprudence”, he meant “the science concerned with
exposition of the principles of nations which are common to all the
systems of law” whereas “Particular jurisprudence”, consisted of the
science of any such system of positive law as now obtains or once
actually obtained in specifically determined nation.
Criticism:-
This classification has been criticised by his critics as being
unscientific and impracticable.
Professor Holland argues that it is vague to think of general
jurisprudence. According to him, science is science and it cannot be
classified as general or particular.
Salmond repudiated the notion of ‘General jurisprudence’ as
conceived by Austin. According to him, a principle to become a topic
of jurisprudence need not be, to use Austin’s words, “common to the
systems of law.” Universal reception is not the sine qua non for a
principle to qualify itself for treatment by the science of law. Salmond
points out that even if the doctrine of judicial precedent or case-law
system prevails only in England, the rule of Stare decisis would be a
fit subject for jurisprudence. He concludes that “Jurisprudentia
generalis or general jurisprudence is not the study of legal systems in
general but the study of the general or fundamental elements of a
particular legal system.”
Professor Allen regards this statement as meaning that in
Salmond’s opinion ‘Particular Jurisprudence’ is the only kind of
jurisprudence properly so-called. No doubt, the sentence of Salmond
above-quoted seems to warrant this view, but what Salmond really
repudiates is only the notion of ‘general’ jurisprudence, such as that
of Austin, which carries the misleading suggestion that principles
germane to general jurisprudence are such only because they are
common to the mature legal systems. That there can be a theoretical
jurisprudence embodying the principles that are basic to any legal
systems is plainly affirmed by Salmond.
Buckland criticised Austin’s concept of ‘general jurisprudence’; he
observed that even those who professed this view including Austin
himself, did not adhere to it in practice.

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Dias and Hughes characterized Austin’s definition of general
jurisprudence as full of ambiguities as it lacked amplitude and
maturity in the prevailing legal system.
Definition According to Holland:-
Sir Thomas Erskine Holland defines jurisprudence as “the formal
science of positive law.” According to him, jurisprudence should
only concern itself with the basic principles or concepts underlying
any natural system of law. Holland defines positive law as a general
rule of external human action enforced by a sovereign political
authority. He calls jurisprudence as a ‘formal’ science as it deals not
with concrete details but only with the fundamental principles
underlying them.
To illustrate: there are fundamental principles in concepts relating to
property, possession, contract, etc. in all the well developed legal
systems. Jurisprudence harmonises these separate ideas under a
basic concept and frames out a scheme of their purposes and
evolves methods and principles for their retention without interfering
in anyway with the working of specific rules in any given legal system.
Holland therefore rightly observed, “Jurisprudence deals with the
human relations which are governed by rules of law rather than the
material rules themselves.” Since jurisprudence deals only in a
“formal or abstract way with those relations of mankind which are
generally recognized as having legal consequences”, it is not a
material science but rather a formal science of law.
Criticism:-
Professor Gray and Dr. Jenks, however, object to the Holland’s
description of jurisprudence as a ‘formal science’. They pointed out
that the real relation of jurisprudence to law depends not upon what
law is treated, but how law is treated. Gray further stated that in fact
jurisprudence is no more formal science than physiology.
Dr. Edward Jenks criticized Holland’s definition of jurisprudence as
‘formal science of law’ and remarked that jurisprudence cannot be
said to be purely formal science because it cannot afford to ignore the
social forces which give shape to law.

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Dias and Hughes while criticizing Holland observation that the
Holland’s analogy of jurisprudence with ‘geology’ is erroneous. Now
the substances and forces became the same everywhere. Law is a
social institution and structures of societies differ in their objectives,
traditions and environments. Same is the view of Buckland who put a
question, ‘how the principles of geology elaborated from the geology
of England alone, hold good all over the globe.’ He further says, ‘law
is not a mechanical structure like geological deposits.’
Salmond also criticised Holland for his rejection of particular
jurisprudence. He supported Austin’s particular jurisprudence. He
protests against attributing jurisprudence any quality whatever of
generality or universality.

Definition According to Keeton:-

According to Keeton, “jurisprudence is the study and systematic
arrangement of the general principles of law.” The definition seeks
to explain the distinction between public and private laws.

Definition According to Dean Roscoe Pound:-

According to Pound, “jurisprudence is the science of law using
the term ‘law’ in the juridical sense, as denoting the body of
principles recognized or enforced by public and regular
tribunals in the administration of justice.”
He emphasized that there is an inevitable co - relationship between
jurisprudence and other social sciences. Thus, he opined that
“jurisprudence, ethics, economics, politics and sociology are distinct
enough as the core, but shade out into each other.”
Pound suggested a separate branch of sociological jurisprudence,
which is concerned with the influence of law on society at large. He
firmly believed that behind every issue, there is something special;
therefore, in the study of jurisprudence, the emphasis should be on
the relationship between law and society.

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 Definition According to Dr. Allen:-
Dr. Allen defined jurisprudence as “the scientific synthesis of the
essential principles of law.” Though this definition may seem to be
abstract at a glance, it surely takes notice of the widening scope of
law in its various facets.

Definition According to Radcliffe:-

He defined “jurisprudence as a part of history, a part of
economics and sociology, a part of ethics and a philosophy of
life.” Thus, it is and amalgam of a number of other disciplines inter-
woven together for the common good of the society.

Definition According to Paton:-

Paton says: "A particular method of study not of laws of one

country but of general Notions of law itself".
According to Paton, it is a proper way to study not only the law of one
country but general concepts and rules of every country or whole
world. Paton says law is an independent study.
Definition According to E. W. Patterson:-

E. W. Patterson defined jurisprudence “as a body of ordered

knowledge which deals with a particular species of law.”

BENEFITS OF JURISPRUDENCE :-

Jurisprudence is basically a theoretical subject but it also has a

practical and educational value. The practical value or purposes of
jurisprudence has been enumerated as under.

 REMOVE THE COMPLEXITIES OF LAW:

One of the tasks of jurisprudence is to construct concepts and make
law more manageable and rational.

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  ANSWER THE NEW PROBLEMS:
Jurisprudence can teach people to look around them and realize
that answers to legal problems must be found by a consideration of
the present social needs and not in the wisdom of the past.

GRAMMAR OF LAW:

Jurisprudence is the grammar of law. It throws light on the basic

ideas and the fundamental principles of law e.g. negligence, liability
etc.

 TRAINING OF MIND: Jurisprudence trains the mind to solve the

difficult legal provisions in legal way.

 GRASP ON THE SUBJECT: It helps in knowing and grasping the

language, grammar, the basics of treatment and assumption upon
which subject rests.

 USEFUL IN ART OF PLEADING AND LEGISLATION: It helps

legislators and the lawyers the proper use of legal terminology. It
relieves them of the botheration, creation of defining again and
again certain expressions e.g. right, duty etc.

 TO INTERPRET LAW: It helps the judges and the lawyers in

ascertaining the true meanings of the law passed by the legislatures
by providing the rules of interpretation.

 TO STUDY FOREIGN LAW: It enables a lawyer to study foreign law

because the fundamental principles are generally common to all
systems of law.

IMPORTANCE UNDER THE LIGHT OF DIFFERENT JURISTS:

 By Dr. M.J. Sethna:

The value of jurisprudence lies in examining the consequences of
law and its administration on social welfare and suggesting changes
for the betterment of the superstructure of laws.

 By R.W.M. Dias:

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 The study of Jurisprudence is an opportunity for the lawyer to bring
theory and life into focus, for it concerns human thought in relation to
social existence.
The true purpose of the study of Jurisprudence should not be
confined to the study of positive law alone but must include normative
study that deals with the improvement of law in the context of
prevailing philosophies of time, place and circumstances.

SCOPE OF JURISPRUDENCE:-

There is no unanimity of opinion regarding the scope of

jurisprudence. It may be discussed under the following three heads:

o EARLY PERIOD:

In the early period, Jurisprudence has been so defined as to cover

moral and religious precepts and that has created confusion.

o AUSTINIAN PERIOD:

It was the Austin, who distinguished law from morality and theology
and restricted the term to the body of rules set and enforced by the
sovereign or supreme law-making authority with in the realm.
Therefore, the scope of Jurisprudence was limited to the study of the
concept of positive law only.

o MODERN PERIOD:

At present, there is a tendency to widen the scope of Jurisprudence

cannot be circumscribed or limited. It includes all concepts of human
order and human conduct in human state and society.

“PURPOSE AND SCOPE OF JURISPRUDENCE”

The scope of jurisprudence has widened considerably over the years.
It is generally believed that the scope of jurisprudence cannot be
circumscribed. Broadly, speaking, jurisprudence includes all concepts
of human order and human conduct in State and society. In other
words, anything that concerns order in the State and society will be
within the domain of jurisprudence.

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Justice P.B. Mukherjee observed:- “Jurisprudence is both an
intellectual and idealistic abstraction as well as behavioural study of
man in society. It includes political, social, economic and cultural
ideas. It covers the study of man in relation to State and society.”
Radcliffe also held a similar view and stated that “jurisprudence is a
part of history, a part of economics and sociology, a part of ethics and
a philosophy of life.”
Jurisprudence involves certain types of investigations into law, an
investigation of an abstract, general and theoretical in nature which
seeks to lay bare the essential principles of law and legal systems.
Elaborating the point further, Salmond observed – “In jurisprudence
we are not concerned to derive rules from authority and apply them to
problem; we are concerned rather to reflect on the nature of legal
rules, on the underlying meaning of legal concepts and on the
essential features of legal system.” This makes the distinction
between law and jurisprudence amply clear.

Thus, whereas in law we look for the rule relevant to the given
situation, in jurisprudence we ask, what is for a rule to be legal rule,
and what distinguishes law from morality; etiquette and other related
phenomenon. It therefore, follows that jurisprudence comprises
philosophy of law and its object is not to discover new rule but to
reflect on the rules already known.

Jurisprudence discloses knowledge of general ideas and principles of

all legal systems, so it is called “eye of the law”. Certain fundamental
conceptions such as negligence liability, mens rea etc. have to be
learned before provision of law relating to them can be understood,
and jurisprudence teaches these fundamentals conceptions.
Jurisprudence trains the mind into legal ways of thought. It teaches
the proper use of legal terms, and is called grammar of law. The
study of jurisprudence helps law makers by providing them brief and
clear terminology. It enlightens students and helps them in adjusting
themselves in society without causing injuries to the interest of other
student.

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 CONCLUSION:-
Jurists thus have given different definitions of the term
‘jurisprudence’. However, no one single definition can be said to be
universally acceptable. Perhaps, the exact connotation of this term is
not possible because as a method, jurisprudence deals with concepts
which regulate human conduct in accordance with the values, needs
and goals of every society. These values, needs and goals etc. vary
from time to time and from society to society as also within the same
society at different times and hence the meaning and scope of
jurisprudence also varies.

It is well known that ‘law’ being a dynamic concept, it changes with

the evolution of society under different socio-economic and political
conditions. The rapid changes in modern times have given rise to
new problems and issues which are to be tackled by law through
pragmatic approach in interpreting law. While doing so, the modern
jurisprudence has to take into consideration the social ethos and
changing patterns of the society which immensely widens its scope
as a science of law.
In the ultimate analysis Holland’s definition of jurisprudence as the
formal science of positive law seems to be more acceptable. The
term ‘positive law’ is concerned with an inquiry into the social
relations regulated by the rules of law which are imposed by the State
and enforced by the law – courts. Jurisprudence is a ‘formal science’
because it only deals with the purposes, methods and ideas of the
legal system and not with its concrete details.

Austin’s definition discussed above is also relatively correct. Austin

has at least widened the scope of jurisprudence by classifying it into
two categories, ‘General’ and ‘Particular’ and by pointing out that the
jurisprudence includes the study of principles common to all States
and also the analysis of these principles in a specific determined
nation.

To sum up jurisprudence is a study, knowledge understanding,

philosophy or research of the fundamental legal principles. It is any
thought or writing about law and its relation to other social sciences

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such as economics, psychology, philosophy, sociology, politics and
ethics etc. It digs into the historical past and attempts to create the
symmetry of a garden out of the confusion of different conflicting legal
system. It consists in whatever law thinks, says and does in any field
of human society.

REFERENCES:-
 Dr. N. V. Paranjape – “Studies in Jurisprudence & Legal
Theory”

 Prof. [Mrs.] Nomita Aggarwal – “Jurisprudence (Legal

Theory)

 V. D. Mahajan - “Jurisprudence and Legal Theory”

 P.S.A. Pillai – “Jurisprudence and Legal Theory”

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