Jurisprudence is the study of the Theory and Philosophy of Law. This article focuses on factual information concerning the subject. There are several ideas with regards to the meaning of jurisprudence and its nature.
Definition and Meaning
The term ‘jurisprudence’ has been derived from the Latin term ‘jurisprudentia’ which literally translates to ‘knowledge of law’ or ‘skill in law’. The Roman civilization, which is popularly known as the bedrock of all human civilizations in the world, started to question the meaning and nature of law. Ulpian defined law as the “knowledge of things divine and human”. According to him, the law is the science of right and wrong. Several jurists in Europe began to deliberate upon the meaning of the law.
Jeremy Bentham, the Father of Jurisprudence, stated that the “science of jurisprudence” has nothing to do with ideas of good and bad. His disciple, Austin, defined jurisprudence in the following words, “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.” According to him, laws are commands made by the sovereign and their non-obedience leads to imposition of sanctions. He termed such laws as positive law and stated that the main subject matter of jurisprudence is the study of positive laws. According to Holland, “Jurisprudence means the formal science of positive laws. It is an analytical science rather than a material science.” Keeton defined jurisprudence as, “the study and systematic arrangement of the general principles of law.”
Jurisprudence is the study of the Theory and Philosophy of Law. The subject, in its entirety, differs from other social sciences. There are several ideas with regards to the meaning of jurisprudence and its nature. This makes it difficult to define. Each country has its own idea of jurisprudence shaped by the social and political conditions in which the development of law took place in that particular region. Modern jurisprudence is tied to sociology on one end and philosophy on the other. The ideas of jurisprudence that are popular in major legal systems throughout the world today have their origins in the West.
Jurisprudence versus Legal Theory
One of the most interesting debates in jurisprudence has been with regards to the difference between jurisprudence and legal theory. It has been argued that while jurisprudence studies the legal concepts which may or may not be theoretical in nature, the legal theory deals with the philosophical aspects of the law.
According to Friedmann, “All systematic thinking about legal theory is linked at one end with philosophy and at the other end with political theory.”
Salmond explains that the jurisprudence is concerned with investigating law while legal theory seeks to understand the law in a strictly academic manner. According to him, jurisprudence brings some important principles of law and legal concepts to light and legal theory attempts to study legal concepts in an academic manner to answer questions pertaining to meaning of law. The subject matter of jurisprudence includes the study of concepts such as nature of law, legal systems and legal institutions, etc. as well as the utility of concepts such as liberty, equality, neutrality, etc. Legal theory is concerned with the meaning of law and legal concepts and the philosophies which shape them such as- natural law and natural rights, legal positivism, legal realism, Marxism, feminist legal theory, postmodern legal theory, etc.
Jurisprudence originated in the Roman civilization with the Romans questioning the meaning and nature of law. It was quite limited since the concepts of law, morals and justice were confused with each other. References are also made to the works of ancient Greek philosophers such as Homer, Socrates, Plato and Aristotle. With the fall of the Roman Empire, the ideas of Roman and Greek jurisprudence disappeared and the Christian State emerged. Soon, the authority of the church over the state was challenged by the reformist and ideas of secularism emerged. Many theories were proposed with regards to the evolution and nature of ‘state’ by philosophers like Hugo Grotius, John Locke, Rousseau and Blackstone. The Age of Reason in the 17th Century led to the formation of ideas of collectivism and social welfare. Slowly, the idea of positive law and positivistic approach gained popularity whereby the boundaries of the law were demarcated and its scope was limited.
The purpose of jurisprudence is to study the law and legal concepts and analyze the same to facilitate better understanding of legal complexities. Therefore, the theories of jurisprudence are quite useful in solving complex legal problems in the practical world. The various studies and analysis of the legal concepts help a legal professional in sharpening his legal acumen. The subject has immense academic value. One of the most important features of jurisprudence is its relation with other social sciences such as sociology, political science, ethics, etc. Therefore, research in the field of jurisprudence yields great amount of social benefits. Moreover, jurisprudential concepts make way for sociological perspectives in law, thereby preventing it from being reduced to rigid formalism. Jurisprudence is known as the “grammar of law”. It helps in the effective expression and application of legal concepts to real-life legal problems. It greatly helps in the interpretation of law and determination of legislative intent. It stresses upon the importance of considering present social needs over the ideas of the past while dealing with legal problems.
Jurisprudence is also known as the “eye of law”. The human eye senses the light reflected from objects in order to make them visible. Similarly, jurisprudence throws light on several fundamental legal concepts in order to facilitate their effective application in deliberation of legal problems.
The Hindu legal system is one of the most ancient legal systems of the world. It is based on the concept and philosophy of “Dharma”. The Hindu concept of dharma might appear to be similar to the natural school of jurisprudence. Dharma refers to the order set by nature and the adherence of human beings to such natural order. Dharma includes the concept of nyaya or justice. The term natural order implies to the cosmic order- the law which sustains the entire universe. The Hindus believed that dharma ensures that humans exist in harmony with the entire cosmos or universe.
The philosophy of Dharma is found to be encoded in various ancient Hindu texts known as the “Dharmashastras” (Code of Law). Some of the most important ones are:
- Manu Smiriti – it is the systematic collection of all rules of Dharma Shastras- covering all the branches of law then in force. The simple language and great clarity in its composition made the Manu Smriti the most authoritative source of ancient Hindu jurisprudence.
- Narada Smriti- It consists of both substantive as well as procedural laws.
- Yajnavalkya Smriti
- Arthashastra- The political treatise of Hindus
The modern Indian Legal System is based on the common law system. The ancient Hindu system is denounced greatly to ensure that the Indian state remains secular in nature. Thus, the ancient Hindu legal system has lost its relevance in the modern world.
Though several thinkers have questioned the utility of jurisprudence, it still remains one of the most important subjects of law. The purpose of the law is to regulate society to maintain order. Jurisprudence ensures that law remains connected with society and its philosophies. Without jurisprudence, the law would be reduced to a formalistic science which may appear to facilitate its goal of regulation. However, in the long run, it would only lead to a situation of chaos and constant conflicts between law and society.
- V. D. Mahajan, ‘Jurisprudence and Legal Theory’, Fifth Edition, Eastern Book Company.
- W. Friedmann, ‘Legal Theory’, Fifth Edition, Sweet & Maxwell (South Asian Edition).
Contributed by Tejas Vasani