NATURE SCOPE AND DEFINATION OF JURISPRUDENCE |
NATURE, SCOPE AND UTILITY OF JURISPRUDENCE
Define Jurisprudence, the importance and scope of Jurisprudence?
The nature and scope of jurisprudence - Key to the science of jurisprudence is an analysis of the first principles of law?
Table of content
1. Introduction
2. Meaning of Jurisprudence
3. Definition of Jurisprudence
4. Scope of Jurisprudence
5. Contents or subject matter of Jurisprudence
6. Utility of Jurisprudence
7. Relation of Jurisprudence with other social science
8. Conclusion
9. Recommended books and reading
1. INTRODUCTION
The word. jurisprudence has been derived from the Latin word jurisprudentia, which means a "knowledge of low" The word "Juris" means law and "prudential" means knowledge, science or skill Thus jurisprudence signifies knowledge or science of law and its application. In this sense, jurisprudence covers the whole body of legal principles in the world. It could be seen that in England, in the formative era of common law, the term, "jurisprudence"
It could be seen that in England, in the formative ERA of common law, the term “Jurisprudence” was being used in a generic sense to include the study of various facets of laws. At the beginning of the 19th century, theories propounded by Bentham and Austin gave a definite meaning to the term Jurisprudence.
The impression of law has assumed different meanings at different times. There cannot be a commonly agreed definition of the law. The growth and development of law in different countries has been simultaneous and under different social and political conditions. The word "law" used in different contest convey different meanings. With the evolution of society being of a dynamic nature, it is very difficult for a definition of low to get recognition of all the legal systems.
By Thermos (Thermos) - Own work, CC BY-SA 2.5, |
The perception of the law has a long history of evolution beginning from the classical Greek period to 21st-century modern jurisprudence with several changes in its nature in various stages of our evolution. The rapid changes in modern times have given me new problems and issues, which are to be tackled by law through a practical approach in interpreting the law. While doing so, jurisprudence has to take into consideration the socio-economic and political conditions, changing pattern for the society which has widens its scope as a source of law.
2. MEANING OF JURISPRUDENCE
As seen above jurisprudence in its widest sense means "knowledge of the law" but in its limited sense, it means evolution and explanation of general principles upon which actual rules of law are based. It is mainly concerned with the rules of external conduct which people are compelled to obey. Therefore, sometimes it is said that jurisprudence is the science that gives us knowledge about "law" but the term "law" we always use in its abstract sense i.e., not in the sense of concrete statutes but the sense of principles underlying law.
Thus, for example, there are various branches of law existing in the modern legal system such as contract, torts, crime, trust, properties, companies, labour etc. 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.
We, definitely study these laws in detail when we study those branches of law separately. Jurisprudence examines the general principles of law therefore jurisprudence may be considered to be the study and systematic arrangement of the general principles of law.
Jurisprudence in its other sense may be regarded as the philosophy of the law dealing with the nature and the function of the law. In modern times the term "jurisprudence" often is used because of the rapid social changes, as functional jurisprudence. So far India is concerned, the Indian jurisprudence has its origin in the ancient concept of Dharma which was considered to be the best way to discipline the mind of human beings.
The practice of Dharma enabled citizens to have a sense of discipline in conducting themselves in the society which brought about peace and prosperity in the society. However, as social progress, the concept of law has changed radically. India, being a welfare State, a new Indian jurisprudence needs to be developed to ensure that law becomes an effective instrument to bring social change. Law plays a significant role in sustaining a stable social order. It has to play the functional role of harmonizing the conflicting interest of individuals in society by balancing the interest between the freedom of individuals on one hand and social welfare on the other hand.
3. DEFINITION OF JURISPRUDENCE
The term "jurisprudence" has been defined differently at different times because of different methods of inquiry and approaches to the study of the subjects. Some of the definitions of the term Jurisprudence" given by various eminent jurists as under
1. Julius Stone - "jurisprudence is lawyer's extraversion". It means jurisprudence involves the examination of precepts, ideas and techniques of law by lawyers in the light of disciplines other than the law.
2. Ulpian -"jurisprudence means knowledge of the law" He was a Roman jurist who defined Jurisprudence as, "the observation of things, human and divine, the knowledge of just and unjust
3. Gray-"Jurisprudence is the science of law, the Statement and systematic arrangement of the rules followed by the Courts and the principals involved in those rules”
4. Salmond- Jurisprudence is the science of the first principles of the civil law." Civil law consists of rules applied by Courts in the administration of justice.
5. Austin - "Jurisprudence is the philosophy of positive law "He was the first justice to make jurisprudence a science. He emphasized that positive law is only proper law as it is given by political superior having the power to make it.
6. Holland - "Jurisprudence is the formal science of positive law According to hum jurisprudence should only concern itself with the basic principles of concepts underlying in any Meaning of Jurisprudence natural system of law.
7. Dr Allen - Jurisprudence is a scientific synthesis of the essential principles of law.
8. H.L.A. Hart - A legal system consisting of primary and secondary rules. These rules explain the nature of law and provide a key to the science of jurisprudence. He viewed jurisprudence as a science of law in a border perspective by co-relating law and morality.
9. Roscoe Pound - "Jurisprudence is a science of law, a body of principles recognized and enforced by public and regular tribunals in the administration justice." He concentrated on the functional aspect of law and the impact of law and society on each other.
10. Dr M.J. Sethna - Jurisprudence is a study of fundamental legal principles including their philosophical, historical and sociological bases and analysis of legal concepts.
From the above-discussed definitions of various jurists, it is pertinent to note that there is no commonly agreed definition of jurisprudence. Each jurist is guided by his conscience but since the conception of the term law till the beginning of the 20th century, a new approach to the study of law about society is given. Some jurist, therefore, treats law as "social engineering" an instrument to bring social change. Thus, the function of law is a supplement to social sciences.
4. SCOPE OF JURISPRUDENCE
In jurisprudence, we mainly study the nature of law, which includes its definition, classification, its nature and purpose, the nature of rights and duties the other questions related to it. Jurisprudence includes all concepts of human order and human conduct in State and society.
According to Justice P.B. Mukherjee, "jurisprudence is both an intellectual and idealistic abstraction as well as the behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers the study of a man about State and society."
According to the great jurist Radcliffe, "jurisprudence is a part of history, a part of economics and sociology, a part of ethics and philosophy of life.
Salmond observed, "in jurisprudence, we are not concerned to derive rules from authority and apply them to the problem, we are concerned rather reflect on the nature of legal rules, on the underlying meaning of legal concepts and the essential features of the legal system."
5. CONTENTS OR SUBJECT-MATTER OF JURISPRUDENCE
Following are the contents of jurisprudence –
1. Sources - The basic features of the legal system are mainly to be found in its authoritative sources and the nature and the working of the legal authority behind these sources. Hence, they become the content of jurisprudence. It includes the study of sources of law such as custom, legislation and precedent, the merits and demerits of codification of laws. method of judicial interpretation and reasoning, an enquiry into the administration of justice etc.
2. Legal concepts - It includes analysis of legal concepts such as rights, obligations, property, ownership, possession, acts, negligence, legal personality and the related issues. The study of these abstract legal concepts furnishes a background for a better understanding of law in its various forms.
3. Legal Theory - Legal theory also constitutes one of the components of jurisprudence. Legal theory is concerned with law as it exists and its function the society, how the law is made and enforced and also the influence of social opinion and law on each other. The legal theory also relates law with other branches such as religion, philosophy, ethics, politics etc. and pursue its study in a wider social perspective.
The legal theory comprises the philosophy of law. It seeks to examine and analyze the philosophical contents of law. It attempts to answer what is the law to clarify, most of the legal concepts. Legal theory is one aspect of jurisprudence, Jurisprudence covers a wider field of study. It involves an investigation of law, whereas legal theory is an attempt to answer what is the law.
6. UTILITY OF JURISPRUDENCE
There is always confusion as to the practical utility of jurisprudence as a subject, as it is said that jurisprudence is an abstract and theoretical subject but this view is rejected by various jurists Salmond pointed out that jurisprudence has its intrinsic interest like any other subject. The legal research on jurisprudence may well have an effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies. Jurisprudence has its practical applicability. It seeks to rationalize the concepts of law which enable us to solve different problems. Moreover. jurisprudence has great educational value.
The logical analysis of legal concepts widens the outlook of the lawyers and sharpens their logical technique. Holland observed that jurisprudence throw light on the basic ideas and the fundamental principles of law in a given society. Therefore, some of the jurists call it, "the eye of law."
Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of laws passed by the legislatures by providing the rules of interpretation. It furnishes them to find out the lacunae, shortcomings and defects in the laws framed by the legislatures. The defect can be cured through their judicial interpretation. The study of jurisprudence helps the students in rationalizing their thinking and prepares them for an upright civil life. The knowledge of the law and legal precepts helps them to face the exigencies of human life boldly and courageously.
Jurisprudence is helpful to legislators who play a vital role in the process of law-making. The study of jurisprudence helps them to understand the technicalities of the law and legal precept and thereby make their job easy and interesting.
According to R. W.M. Dias, the study of jurisprudence provides an opportunity for lawyers to bring theory and life into focus, for it concerns human thought about social existence.
7. RELATION OF JURISPRUDENCE WITH OTHER SOCIAL SCIENCES
Jurisprudence is closely interrelated with other social sciences since all of them are concerned with human behaviour in society. Dean Roscoe Pound who propounded the theory of law as a "Social Engineering pointed out that jurisprudence is closely inter-related with ethics, economics, politics and sociology. All the social sciences must coordinate with jurisprudence to make it a functional branch of knowledge
1. Jurisprudence and Ethics: -
Ethics deals with human conduct and lays down the ideas of human behaviour It relates to morality and public opinion which changes from place to place, time to time and person to person. Public opinion and morals go on changing with social evolution, culture and development. Jurisprudence deals with positive morality since the law is considered an instrument to regulate human conduct in society. Some of the jurists like Dr M.J. Sethna has pointed out that the laws of communities are reflected in their culture, ideology and social norms. Hence ethical value cannot be excluded from jurisprudence.
2. Jurisprudence and Psychology: -
Psychology is a branch of knowledge concerned with the working of mental faculty Jurisprudence is mainly concerned with human action and it is the human-made which controls human actions. Thus, there is an inter-relation between psychology and jurisprudence. Psychology plays a dominant role in the study of criminology and penology. The psychology of the offender is one of the important factors in deciding the nature of the punishment of the convicted person. The legal concept such as negligence, intention, motive, recklessness, mens rea etc, deals with the faculty of mind and therefore they form a part of a study of psychology as also the jurisprudence.
3. Jurisprudence and History: -
We could appreciate the present law and legal system by taking into consideration its past historical evolution. Therefore, there is a close interconnection between history and jurisprudence History consists of the study of past events. Thus, to understand the Constitutional jurisprudence of a country, it is necessary to look into its past Constitutional history.
4. Jurisprudence and Sociology: -
To some extent sociology also includes the study of a part of the law, for example, criminology relates to both sociology and law. Jurisprudence includes in its ambit the sociology of law, that is the practical functioning of law in society. Sociology, as well as the study of jurisprudence, is concerned with the regulation of human conduct in society hence both are closely related.
5. Jurisprudence and Economics: -
Economics being a science of money and wealth and jurisprudence a science of law, both are related closely, Economics deals with the production and distribution of wealth for satisfying human wants. It is one of the main factors for the incidence of crime. Many laws try to regulate the economic activities of mankind. For example, laws relating to banking, companies, negotiable instruments, consumer protections, the ceiling of lands and wealth, payment of wages, bonuses, etc. are made to regulate one or the other activity of a man in the society. The ultimate aim of economics, as well as jurisprudence, is to improve the standard of life of the people for the welfare of the community as a whole.
6. Jurisprudence and Politics: -
Political science deals with the principles governing the organization. The state is a politically organized society that makes laws for the good governance of the people. Politicians are the representatives of the people and law-making organs of the government. It reflects on the relationship of jurisprudence with politics.
7. Comparative Jurisprudence: -
Comparative jurisprudence implies a comparative study of laws in the legal institution of two or more legal systems in different countries of the world. Prof. Gutteridge has rightly stated that." comparative jurisprudence is a term we suggest the use of the comparative method as a tool to find our differences and similarities between the different legal systems. It includes a comparison of precepts. doctrines and legal institutions which are found in a different system of law. The importance of comparative jurisprudence lies in the fact that it enables a country to know about the shortcomings of its legal system and it can be cured through the method of comparison.
7. CONCLUSION
Jurisprudence means knowledge of law or science of law. It signifies knowledge or science of law and its applications. It covers the whole body of legal principles in the world. The concept of law has assumed different meanings at different times. There cannot be a commonly agreed definition of the law. In Jurisprudence, we mainly study the nature of law which includes its definition, classification, its nature, purpose, the nature of rights and duties and other questions related to it. Jurisprudence includes all concepts of human order and human conduct in state and society.
Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of laws passed by legislatures by providing the rules of interpretation. The defect in the law can be cured through their judicial interpretation Jurisprudence is closely interrelated with other social sciences since all of them are concerned with human behaviour in society.
A. Recommended
books and reading: -
- 1. Fitzgerald PJ. Salmond on Jurisprudence
- 2. Dias, Jurisprudence
- 3. Sethna MJ. Jurisprudence
- 4. Mahajan V D, Jurisprudence and Legal Theory
- 5. Tandon M P. Jurisprudence
- 6. Dhyani S N. Jurisprudence and Legal Theory
- 7. Paranjpe, Jurisprudence
0 Comments