The word Jurisprudence is derived from a Latin word Jurisprudentia which in its widest sense means, “Knowledge of Law” or “Skill in law”.
The Latin word juris means law and the word prudentia means skill or knowledge. Thus the word Jurisprudence signifies knowledge of law and its application.
In this sense, Jurisprudence covers the whole body of legal principles in the world.
Jurisprudence has a long history of evolution beginning from classical Greek period to 21st century Modern Jurisprudence with numerous changes in its nature in various stages of its evolution.
In simple & limited Sense, Jurisprudence means elucidation of general principles upon which actual rules of law are based.
It is concerned with Rules of external conduct which persons are constrained to obey. Therefore, etymologically jurisprudence is that science which provides us knowledge about law.
For eg. There are various branches of law prevalent in our modern state such as law of contract, tort, crime, property, trust, companies, insolvency, etc and in Jurisprudence we study the basic principles of each of these branches and we are not concerned with detailed rules of these laws.
Definitions of Jurisprudence
The term jurisprudence has different means at different times and this variation is due to different methods of inquiry and approach to the study of this subject.
Various jurist has defined jurisprudence in its sense which are as under –
ULPIAN – Ulpian the celebrated Roman jurist defined Jurisprudence as “the observation of things – human and divine, the knowledge of the just and the unjust”.
Its Meaning is more or less the same as the term Dharma under the Hindu jurisprudence and covers the province of religion, ethics and philosophy. Thus this definition is too broad in meaning and has wider connotation.
CICERO – He defined Jurisprudence as the “Philosophical aspect of knowledge of law”.
GRAY – Professor Gray opined that “Jurisprudence is the science of law, 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 consist of rules enforced by courts while administering justice.
SALMOND – He defines Jurisprudence in his term as “the science of the first principles of the Civil law”.
Thus he points out that jurisprudence deals with particular species of law only, i.e civil law or the law of the state. The civil law consist 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 is not concerned with the laws of the theologian and moralist although they also governs the conduct of man in the society.
Salmond defined Jurisprudence in two different senses –
- In generic sense – “Jurisprudence is the science of the civil law”. It includes entire body of legal doctrines. Since jurisprudence is the knowledge of law and from this point of view it includes the entire books of laws.
- In specific sense – it means only particular branch of such doctrines. According to him, specific sense alone is the only proper jurisprudence because it deals with general principles of a particular legal system.
Kinds of Jurisprudence
- Expository or systematic Jurisprudence – It deals with the contents of an actual legal system as existing at anytime whether past or present.
- Legal history – which is concerned with the legal system in the process of historical developments.
- The science of legislation – The purpose here 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.
Dr. Allen had objected to the salmond’s definition on the ground that he has limited the scope of jurisprudence to a particular legal system. This view is rather too narrow.
- John Austin is known as Father of Modern Jurisprudence.
- Austin calls Jurisprudence as the “philosophy of positive law”. He was the first jurist who make jurisprudence as a science.
- By the term positive law he meant jus positivum, i.e law laid down by a political superior for commanding obedience from his subjects. Thus it is identical with civil law of salmond.
- He said that, law are those rules which is made by a political superior person to political inferior persons & they must have to abide by those rules made by the political superior person at any cost.
- He 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 customs and ethical abstract ideas. He preferred to divide jurisprudence into two different parts, namely –
- General jurisprudence means the science concerned with exposition of the principles of nations which are common to all the systems of law.
- Particular jurisprudence consisted of the science of any such system of positive law as now obtains or ones actually obtained in specifically determined nation.
- Prof. Holland argues that it is vague to think of general Jurisprudence. According to him, science is science and it cannot be classified into general or particular.
- Criticising Austin’s concept of general Jurisprudence, Buckland observed that even those who professed this view including Austin himself, did not adhere to it in general practice.
HOLLAND – In the terms of Sir Thomas erskine Holland Jurisprudence is “the formal science of positive law”.
According to him Jurisprudence should only concern itself with the basic principles or concept 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 does not deals with concrete details but only with the fundamental principles underlying them.
Meaning of certain words
- Formal – According to Holland, this science is formal rather than material one. It deals more with the form and outer aspect rather than with the matter and content of law.
- Science- Jurisprudence is a science and not an art. A systematic and formulated knowledge is called science.
Dr Edward Jenks remarked that Jurisprudence cannot be said to be purely formal science because it cannot afford to ignore the social forces which give shape to the law.
Dr. ALLEN – Defines Jurisprudence as “the scientific synthesis of the essential principles of law”.
Dr. KEETON – According to keeton “Jurisprudence is the study and scientific synthesis of the general principles of law”.
HLA HART – Hart believed that union of primary and secondary rules explains the nature of law and provides key to 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 defects of the primary rules.
He further opined that both these kinds of rules contain a minimum element of natural law that is law and morals which every legal system must necessarily contain. Thus hart viewed jurisprudence as a science of law in a broader perspective by co-relating law and morality whereas Austin failed to do so.
ROSCOE POUND – According to Pound, Jurisprudence is the science of law using the term law in the judicial sense, denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice.
In the ultimate analysis of above definitions, holland’s definition of Jurisprudence as the formal science of positive law seems to be more acceptable.