Introduction to Jurisprudence

UNIT - I
INTRODUCTION
JURISPRUDENCE
-SHIVANI SHARMA
-ASSISTANT PROFESSOR
-SARDAR PATEL SUBHARTI INSTITUTE OF
LAW

INTRODUCTION TO JURISPRUDENCE
 Jurisprudence had its evolutionary beginning from the classical Greek
period to 21st-century modern jurisprudence.
 Jurisprudence is a concept to bring theory and life into focus.
It deals with the fundamental principles on which rests the
superstructure of law.
In abstract jurisprudence is a subject whose knowledge is the basis
and the foundation of the whole legal studies.
Jurisprudence is a name given to a certain type of investigation into
law, where we are concerned to reflect on the nature of legal rules;
 and on the underlying meaning of legal concepts and on the
essential features of the legal system.

LEGAL THEORY AND JURISPRUDENCE
LEGAL THEORY
◦ The terms “Legal Theory” were coined by
W. Freidmann.
◦ Legal Theory reflects the struggle of law
between tradition and progress, stability
and change, certainty and flexibility.
◦ Legal theory reveals the manner in which
people in different countries at different
times have speculated about some of the
problems concerning law
◦ It is linked with philosophy at one end and
political theory on the other.
JURISPRUDENCE
◦ Jurisprudence may be defined as the
study of fundamental legal principles,
including their philosophical, historical,
and social basis and analysis of legal
concepts.
◦ It is concerned with the normative and not
merely the positive; it is not merely with
the actual but also with the intended.

ACCORDING TO FITZGERALD
Jurisprudence
◦ “Jurisprudence is the name given to certain
type of investigations into law, an
investigation of an abstract, general and
theoretical nature which seeks to lay bare the
essential principles of law and legal systems.”
◦ To him, jurisprudence is both philosophy of
law and a reflective study rules which form
the basis of concrete legal problems.
◦ According to V.D. Mahajan, “jurisprudence
and legal theory are synonyms as
jurisprudence is the science of law and legal
theory is the theory of law and as both study
and analyse the law in all its bearings though
jurisprudence is a wider term than legal
theory.”
Legal Theory
◦ “Legal theory is an attempt to answer the
question, ‘what is law?’ in order to clarify the
most of all legal concepts, the concept of law
itself”
◦ It means legal theory is essentially a
theoretical evaluation and an objective
inquiry of basic nature, meaning and
purpose of law – not what legislature or
court define in their day to day affairs but of
basic concept of law in order to ascertain
whether and to what extent the inter-
relationship between law, morality and justice
is necessary to determine the true nature
and functions of law.
◦ It is concerned with law as it exists and
functions in the society and the way in which
it is created and enforced.

PARTS OF JURISPRUDENCE
JURISPRUDENCE
Concepts
Legal
Theory
Sources

JURISPRUDENCE – Juris + prudentia (Latin) = ‘knowledge of law’ or ‘skill of law’
Ulpian - “The observation of things human and dive, the knowledge of just and unjust.”
Keeton - Defines jurisprudence as "the study and systematic arrangement of the general principles
of law.”
Dean Roscoe Pound defines jurisprudence as "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".
Cicero – “Philosophical aspect of knowledge of law”
Paulus – The law is not to be deduced from rule but rule from the law
Blackstone – Jurisprudence is the study of science of law
DEFINITIONS

Dr. C.K. Allen – “Jurisprudence is the scientific synthesis of all the essential principles of law.”
 Julius Stone - "Jurisprudence is the lawyer's extraversion. It is the lawyer's examination of the
precepts, ideals and techniques of the law in the light derived from present knowledge in
disciplines other than the law.”
Gray- " jurisprudence is the science of law, the statement and systematic arrangement of the
rules followed by the Court and the principles involved in those rules."
Criticism- Stone has Criticised 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
of rules.
H.L.A Hart- A legal system consists of primary and secondary rules. These rules explain the
nature of law and provides key to the science of jurisprudence.
He viewed Jurisprudence as a science of law in a border perspective by co-relating law and
morality.

Austin - defines Jurisprudence as the "Philosophy of Positive Law". Austin was the first
jurist to make jurisprudence as a science.
Positive law is akin to civil law
The term philosophy may be said to be inaccurate as jurisprudence confines itself to
civil or man made law
Criticism: Austin's definition criticized by Salmond and Holland and other Jurists on the
ground that it is not proper and appropriate to classify as the Particular Jurisprudence.
That will be study of system of law and not a kind of jurisprudence.
Jurisprudence
General Particular

Holland- Jurisprudence is the ‘formal science of positive law’- it is formal or analytical science
rather than a material science. Formal here means ‘only in its form and not in essence’, ‘only
exterior and not the interior’. He follows the definition of Austin and adds the word ‘formal’.
(Science- the intellectual and practical activity encompassing the systematic study of the structure and
behaviour of the physical and natural world through observation and experiment.)
◦ “Jurisprudence deals rather with the various relations which are regulated by the legal rules
with the rules which themselves regulate these relations”
◦ “it is not the material science of the common portions of the law of various nations but the
formal science of those relations of mankind which are generally recognized as having legal
consequences”
◦ Criticism: Many eminent jurists have criticized the definition of Holland that jurisprudence is
the formal science of positive law. It is not free from defects. The question arises what is a
science? Holland himself explains that by the term 'formal' he means that jurisprudence
concerns itself with human relations which are governed by the rules of law rather than the
material rules themselves, for the latter are the subject of legal exposition, criticism or
compilation rather than jurisprudence.

Salmond- Science of the first principles of civil law
In Salmond's point of view, Jurisprudence thus deals with civil law or the law of the state. This kind of
law consists of rules applied by courts in the administration of justice
Criticism: Salmond's Definition has been criticized on the ground that he has narrowed down the
field of jurisprudence by saying that it is a science of civil law and hence covers only particular legal
system.
Jurisprudence
Generic
Analytical Historical Ethical
Specific
Analytical
Legal
History
Science of
Legislation

Bentham – He distinguished between examinations of law as it is and as it ought to be
Patterson – Jurisprudence means a body of ordered knowledge, which deals with a particular
species of law
Jurisprudence
Expositional Law as it is
Censorial
Law ought to
be

SCOPE OF JURISPRUDENCE
 No unanimity of opinion regarding scope of jurisprudence
 Jurisprudence has been so defined to include moral and religious
precepts, that has created confusion
 Austin distinguished law from morality and theology (study of nature
of god)
 The scope of Jurisprudence was limited to study the concepts of law
and ethics and theology fall outside the province of jurisprudence
 Present view I that the scope of Jurisprudence can not be limited

Anything that concerns the order and human conduct in state
and society falls under the domain of jurisprudence.
Justice P.B. Mukherjee – “Jurisprudence is a name given to a
certain type of investigation into law, where we are concerned to
reflect on the nature of legal rules and on the underlying meaning
of legal concepts and on the essential features of the legal
system.”
 Lord Radcliffe – “Jurisprudence is a part of history, economics
and sociology, a part of ethics and a philosophy of life”
 Karl Llewellyn – “Jurisprudence is as big as law- and bigger”

SIGNIFICANCE AND IMPORTANCE
◦ Researchers in Jurisprudence contribute to the development of society by
having repercussions in the whole legal, political and social school of
thoughts.
◦ To construct and elucidate concepts serving to render the complexities of law
more manageable and more rational. It is the belief of this subject that the
theory can help to improve practice.
◦ It helps in the logical analysis of the legal concepts and it sharpens the
logical techniques of the lawyer.
◦ The study of jurisprudence helps to put the law in its proper context by
considering the needs of the society and by taking note of the advances in
related and relevant disciplines.

◦ Jurisprudence can teach the people to look if not forward, at least sideways and
around them and realize that answers to a new legal problem must be found by a
consideration of present social needs and not in the wisdom of the past.
◦ Jurisprudence is the eye of law and the grammar of law because it throws light on
basic ideas and fundamental principles of law.
◦ It helps a lawyer in his practical work. A lawyer always has to tackle new problems
every day. This he can handle through his knowledge of Jurisprudence which trains his
mind to find alternative legal channels of thought.
◦ Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the
laws passed by the legislators by providing the rules of interpretation.
◦ Professor Dias said that “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.”
◦

RELATIONSHIP OF JURISPRUDENCE
WITH OTHER SCIENCES
◦ Jurisprudence is closely inter-related with other social sciences since all of them are concerned
with h
◦ G.M.Paton “observed modern jurisprudence trenches on the field of social science and of
philosophy; it digs into the historical past and attempts to create symmetry of a garden out of
the luxuriant chaos of conflicting legal system.”uman behaviour in society.”
◦ Dean Roscoe Pound who propounded the theory of law as a ‘social engineering’ pointed out
that “jurisprudence is closely inter-linked with ethics, economics, politics, and sociology which
though distinct enough as the core, are shade into each other. All other social sciences must
co-ordinate with jurisprudence to make it a functional branch of knowledge.”

Sociology and Jurisprudence
This branch is based on social theories. It is essentially concerned with the influence of law on
society at large particularly when we talk about social welfare.
G. W. Paton gave 3 obvious reasons as a relation between law and sociology:
◦ It enables a better understanding of the evolution and development of law;
◦ It provides great sub stream for an identity of law commensurate with human needs and
interests;
◦ and provides objectivity to legal interpretation which is need of the hour.
Jurisprudence and Psychology
◦ No human science can be described properly without a thorough knowledge of Human Mind.
Hence, Psychology has a close connection with Jurisprudence.
◦ Relationship of Psychology and Law is established in the branch of Criminological
Jurisprudence. Both psychology and jurisprudence are interested in solving questions such as
motive behind a crime, criminal personality, reasons for crime etc.

Jurisprudence and Ethics
Ethics has been defined as the science of Human Conduct. It strives for ideal Human Behavior.
This is how Ethics and Jurisprudence are interconnected:
◦ Ideal Moral Code– This could be found in relation to Natural Law.
◦ Positive Moral Code– This could be found in relation to Law as the Command of the
Sovereign.
◦ Ethics is concerned with good human conduct in the light of public opinion.
◦ Jurisprudence is related with Positive Morality in so far as the law is the instrument to assert
positive ethics.
◦ Jurisprudence believes that Legislations must be based on ethical principles. It is not to be
divorced from Human principles.
◦ Ethics believes that No law is good unless it is based on sound principles of human value.
◦ A Jurist should be adept in this science because unless he studies ethics, he won’t be able to
criticize the law. However, Austin disagreed with this relationship.

Jurisprudence and Economics
◦ Economics studies man’s efforts in satisfying his wants and producing and distributing wealth.
Both Jurisprudence and Economics are sciences and both aim to regulate the lives of the
Both of them try to develop the society and improve the life of an individual. Karl Marx was a
pioneer in this regard.
Jurisprudence and History
◦ History studies past events. Development of Law for the administration of justice becomes
sound if we know the history and background of legislation and the way law has evolved. The
branch is known as Historical Jurisprudence.
Jurisprudence and Politics
◦ In a politically organized society, there are regulations and laws which lay down authoritatively
what a man may and may not do. Thus, there is a deep connection between politics and
Jurisprudence.

Introduction to Jurisprudence

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