The word ‘Jurisprudence’ is derived from the Latin word ‘jurisprudentia’. This means ‘knowledge of the law’. The Latin word ‘juris’ means law and ‘prudential’ means skill or knowledge. Thus jurisprudence signifies knowledge of law and its application. Jurisprudence is the study of law.
Chapter 1: Introduction
Meaning of Jurisprudence: The word ‘Jurisprudence’ is derived from the Latin word ‘jurisprudentia’. This means ‘knowledge of the law’. The Latin word ‘juris’ means law and ‘prudential’ means skill or knowledge. Thus jurisprudence signifies knowledge of law and its application. Jurisprudence is the study of law. It is a type of science that explores the creation, application, and enforcement of laws. Jurisprudence is the study of theories and philosophies regarding law.
Definition of Jurisprudence:
Ulpian: He defined Jurisprudence as “The observation of things human and divine, the knowledge of just and unjust.”
Austin: He defines Jurisprudence as the “Philosophy of Positive Law”. Positive Law means the law laid down by political superior to regulate the conduct of those subjects in his authority. The positive law is identical to civil law. However, the term Philosophy is misleading. Philosophy is the theory of things, man and divine, while Jurisprudence only deals with man-made law.
Salmond: He defines Jurisprudence as the “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.
Holland: He defines Jurisprudence as “The Formal Science of Positive Law”. He says “Jurisprudence deals with the human relations which are governed by rules of law rather than with the material rules themselves.”
Importance 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.
- Answers the new problems: Jurisprudence can teach people to look at them and realize that answers to new legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.
- The 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 a legal way.
- Grasp on the subject: It helps in knowing and grasping the language, grammar, the basis of treatment and assumption upon which subject rests.
- Useful in Art of pleading and legislation: It helps legislators and the lawyer the proper use of legal terminology. It relieves them to 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.
Chapter 2: Schools of Jurisprudence
- Analytical School of Jurisprudence: The major premise of analytical school of jurisprudence is to deal with law as it exists in the present form. It seeks to analyze the first principle of law as they actually exist in a given legal system. The exponents of analytical school of jurisprudence consider that the most important aspect of law is its relation to the state. They treat law as a command from the sovereign, namely the state. This school is therefore also called the imperative school.
- Historical School of Jurisprudence: The task of the historical school is to deal with the general principles governing the origin and development of law and with the influence that affects the law.
- Sociological School of Jurisprudence: The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behavior, organization, environment, skills, and powers involved in the maintenance of a particular society.
- Realist School of Jurisprudence: It was around 1930’s that some American jurists notably Holmes, Cardozo and Gray raised their voice against legal conceptualism and stressed on the study of law as it actually operates and functions. They were called realists and their legal approach has been named as Realist School of jurisprudence.
- Natural School of Jurisprudence: It refers to those rules which are related to nature and human in such a manner that without which there is no possibility of peace and security in the society.
Chapter 3: Natural School of Law
Meaning: It refers to those rules which are related to nature and human in such a manner that without which there is no possibility of peace and security in the society.
Historical Evolution of Natural Law Theory:
The origins of natural law lie in the thought of the philosophers and jurists of the ancient world. They were convinced that there were rules for human behavior based upon objective, eternal norms. They conceived of these norms as having been established by nature and human reason. The Romans were the first to coin the term “natural law” (jus naturale). Medieval and early modern jurists and theologians (Catholic, Protestant, and Jewish) found the idea of natural law attractive. It was congruent with their conception of the universe and with their notions of human psychology. Expanding upon and developing further the definitions of natural law they found in the ancient sources, medieval jurists and theologians placed natural law at the pinnacle of a hierarchy of laws that regulated and guided human behavior. Their paradigm held sway in western jurisprudence until the nineteenth century.
Therefore, the evolution and development of natural law theory has been through various stages which may broadly be studied under the following periods:
- Ancient Period
- Medieval Period
- The Period of Renaissance
- Modern Period
Chapter 4: Renaissance Period of Natural Law
The period of renaissance in the history of development of natural law may also be called the modern classical era which is marked by rationalism and emergence of new ideas in different fields of knowledge. General awakening among the masses coupled with new discoveries of science during the fourteenth and fifteenth centuries shattered the foundation of established values. That apart, tremendous growth of trade and commerce in European countries created new classes in the society which needed greater protection from the state. The cumulative effect of these developments was that there was a general wave of nationalism and a demand for absolute sovereignty of the state and supremacy of the positive law overthrowing the dominance of Church. New theories supporting the sovereignty of state were propounded by rationalist polito-legal thinkers such as Machiavelli, Jean Bodin. As a result of these developments, temporal authority of the Church and the theological natural law received a serious blow and finally it dwindled giving way to natural rights of man and the state. The natural law theories propounded by Grotius, Locke and Rousseau revolutionized the existing institutions and held that ‘social contract’ was the basis of the society. Hobbes used natural law theory to perpetuate reactionary movement and justify status quo for the preservation of peace and protection of individuals from perpetual conflict and chaos.
With the renaissance and the rise of humanism, the natural law became open to rational inquiry free from religious trappings.
There were many philosophers contributed in the evolution of natural law theory.
- Hugo Grotius: Hugo Grotius(1583–1645) worked as a jurist in the Dutch Republic and laid the foundations for international law, based on natural law. Grotius removed natural law from the jurisdiction of moral theologians and made it the business of lawyers and philosophers, by asserting that by their very nature, natural laws were authoritative in themselves, with or without faith in God. He held that the moral ethics of natural law applied to all social and rational beings, Christian and non-Christian alike. Grotius also promoted the concept of “Just War” as war which was required by natural, national and divine law under certain circumstances. He developed a series of rules for “right conduct” of war, based on the principle that actions in a war should “serve the right.” Grotius also wrote De Jure Praedae , one chapter of which, defending free access to the ocean for all nations, was reprinted and widely circulated under the title Mare Liberum.
- Thomas Hobbes: Thomas Hobbes founded a social contractualist theory of legal positivism. He declared that all men could agree that what they sought (happiness) was subject to contention, but that a broad consensus could form around what they feared (violent death at the hands of another, and loss of liberty and personal property). Natural law was defined as the way in which a rational human being, seeking to survive and prosper, would act. It could be discovered by considering humankind’s natural rights; previous interpretations had derived natural rights by considering the natural law. In Hobbes’ opinion, the only way that natural law could prevail was by all men submitting to the commands of a sovereign. The ultimate source of law now became the sovereign, who was responsible for creating and enforcing laws to govern the behavior of his subjects. Since the sovereign’s decisions need not be grounded in morality, the result was legal positivism, the concept that law was created by the state and must therefore be obeyed by the citizens belonging to that state. Jeremy Bentham further developed the theory by modifying the concept of legal positivism.
In Thomas Hobbes’s treatise Leviathan, natural law is a precept, or general rule, discovered through reason, by which a man is forbidden to do anything which is destructive of his life, or takes away the means of preserving his life; and forbidden to omit doing anything which he thinks may preserve his life. Hobbes defines nine Laws of Nature.
- John Locke: John Locke (1632–1704) is among the most influential political philosophers of the modern period. In theTwo Treatises of Government, he defended the claim that men are by nature free and equal against claims that God had made all people naturally subject to a monarch. He argued that people have rights, such as the right to life, liberty, and property that have a foundation independent of the laws of any particular society. Locke used the claim that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments. Locke is thus also important for his defense of the right of revolution. Locke also defends the principle of majority rule and the separation of legislative and executive powers. In the Letter Concerning Toleration, Locke denied that coercion should be used to bring people to (what the ruler believes is) the true religion and also denied that churches should have any coercive power over their members. Locke elaborated on these themes in his later political writings, such as the Second Letter on Toleration and Third Letter on Toleration.
- Jean Rousseau: Jean-Jacques Rousseau(1712 – 1778) believed modern man’s enslavement to his own needs was responsible for all sorts of societal ills, from exploitation and domination of others to poor self-esteem and depression. Rousseau believed that good government must have the freedom of all its citizens as its most fundamental objective. The Social Contract in particular is Rousseau’s attempt to imagine the form of government that best affirms the individual freedom of all its citizens, with certain constraints inherent to a complex, modern, civil society. Rousseau acknowledged that as long as property and laws exist, people can never be as entirely free in modern society as they are in the state of nature, a point later echoed by Marx and many other Communist and anarchist social philosophers. Nonetheless, Rousseau strongly believed in the existence of certain principles of government that, if enacted, can afford the members of society a level of freedom that at least approximates the freedom enjoyed in the state of nature. In The Social Contract and his other works of political philosophy, Rousseau is devoted to outlining these principles and how they may be given expression in a functional modern state.
- Immanuel Kant: Immanuel Kant(1724-1804) is one of the most influential philosophers in the history of Western philosophy. His contributions to metaphysics, epistemology, ethics, and aesthetics have had a profound impact on almost every philosophical movement that followed him. This article focuses on his metaphysics and epistemology in one of his most important works, The Critique of Pure Reason. A large part of Kant’s work addresses the question “What can we know?” The answer, if it can be stated simply, is that our knowledge is constrained to mathematics and the science of the natural, empirical world. It is impossible, Kant argues, to extend knowledge to the supersensible realm of speculative metaphysics. The reason that knowledge has these constraints, Kant argues, is that the mind plays an active role in constituting the features of experience and limiting the mind’s access only to the empirical realm of space and time.
Chapter 5: Conclusion
Jurisprudence is the study of law. It is a type of science that explores the creation, application, and enforcement of laws. Jurisprudence is the study of theories and philosophies regarding law. It has a practical and educational value. There are five schools of jurisprudence. In the natural law school there are four periods of evolution of theory. In this the period of renaissance played a vital role in the development of natural law theory. It is marked by rationalism and emergence of new ideas in different fields of knowledge. In the period of renaissance there were many philosophers propounded their theories but mainly Hugo Grotius, Thomas Hobbes, John Locke, Jean Rousseau and Immanuel Kant were propounded natural law theory in best way. So in the renaissance period the rise of humanism the natural law became open to rational inquiry free from religious trappings.
- Paranjape N.V., “Studies in Jurisprudence & Legal Theory”, Central Law Agency, Allahabad, 7th edition, 2013.
- Subbarao Venkata, “Jurisprudence and Legal Theory”, Eastern Book Company, Lucknow, 9th edition, 2008.
- Dwivedi S.P., “Jurisprudence and Legal Theory”, Central Law Agency, Allahabad, 6th edition, 2012.
- Mahajan V.D. “Jurisprudence and Legal Theory”, Central Law Publications, Allahabad, 5th edition, 2015.
- Dhyani S.N., “Jurisprudence and Indian Legal Theory”, Universal Law Publishing, New Delhi, 2014.
 John Austin (1790-1850). He is often described as the father of modern jurisprudence.
 Oliver Wendell Holmes, an American author(1809-1894)
 Pinnacle means at a higher point
 Machiavelli, a polito-legal thinker (1469-1527)
 “On the Law of Prize and Booty”
 It is a famous work of John Locke.
 the action of making someone a slave.
 A famous work of Immanuel Kant published in 1781.
By – Akshaya Varma