A PROJECT REPORT ON

NATURE & SCOPE OF JURISPRUDENCE

________________________________________________________________________

Table of contents
ACKNOWLEDGEMENT...................................................................................................3
RESEARCH METHODOLOGY........................................................................................4
INTRODUCTION...............................................................................................................5
MEANING OF JURISPRUDENCE....................................................................................6
JURISPRUDENCE IN RELATION TO OTHER SOCIAL SCIENCE............................10
SCOPE OF JURISPRUDENCE........................................................................................12
UTILITY OF JURISPRUDENCE.....................................................................................14
SCHOOLS OF JURISPRUDENCE..................................................................................16
CONCLUSION..................................................................................................................19
BIBLIOGRAPHY..............................................................................................................20

RESEARCH METHODOLOGY
The project is basically based on the doctrinal method of research as no field work is
done on this topic. The whole project is made with the use of secondary source like
Articles, Books, and Internet etc.
AIMS & OBJECTIVES:
The aim of the project is to present a detailed study of Nature and value of
Jurisprudence through decisions and suggestions and different writings, articles &
reports.
METHOD OF WRITING:
The method of writing followed in the course of this research paper is primarily
analytical.
MODE OF CITATION:
The researcher has followed a uniform mode of citation throughout the course of this
research paper.

Gap Area
My project work covers almost all needed aspects related to the topic. However it fails to
cover some least important points like relation of Jurisprudence with crime and
punishment, theoretical aspect of administration of justice, effect of Jurisprudence on
caste and class system in India etc.

INTRODUCTION

4
Jurisprudence is the theory and philosophy of law. It has been derived from a Latin
word jurisprudencia, which in its widest sense means knowledge of law. Jurisprudence
signifies knowledge of law and its application.
Scholars of Jurisprudence, or legal theorists (including legal philosophers and social
theorists of law), hope to obtain a deeper understanding of the nature of law, of legal
reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th
century and was focused on the first principles of the natural law, civil law, and the law
of nations.1 General jurisprudence can be broken into categories both by the types of
questions scholars seek to address and by the theories of jurisprudence, or schools of
thought, regarding how those questions are best to be answered. Contemporary
philosophy of law, which deals with general jurisprudence, addresses problems in two
rough groups:2

1.) Problems internal to law and legal systems as such.

2.) Problems of law as a particular social institution as it relates to the larger

political and social situation in which it exists.

During the formative era of the common law in England, the term jurisprudence was
being used in a generic sense to include the study of various facets of law. However, in
the early decades of the 19th century with the theories propounded by Bentham and
Austin, the term jurisprudence acquired a definite meaning. Bentham distinguished the
study of law as it is and as it ought to be
Law being a dynamic concept , changes with time and changes with evolution of society
under different socio-economic and political conditions. The rapid changes in modern
times have given rise to new problems and issues which are to be tackled by law through
pragmatic approach in interpreting law. While doing so , the modern jurisprudence , has
to take into consideration the social ethos and changing patterns of the society, which
immensely widens its scope as a science of law.

"Jurisprudence", Black's Law Dictionary

Shiner, "Philosophy of Law", Cambridge Dictionary of Philosophy

MEANING OF JURISPRUDENCE
It is difficult to give a uniform and universal definition of

Jurisprudence. Every jurist

has his own notion of the subject matter and the proper limits of jurisprudence which
depends upon his ideology and the nature of society. The words used for law in different
countries have different meanings. The words of one language do not have synonyms in
other languages conveying same meaning. The evolution of society is of dynamic nature
and hence the difficulty in accepting a definition by all.3
Jurisprudence is ubiquitous. Its concerns are an inescapable feature of the law and legal
system. It is both informed by and has significant implications for economic, political and
social theory.4
Jurisprudence has generous frontier. It accommodates abundant subjects of intellectual
enquiry. No society can properly be understood or explained without a coherent
conception of its law and legal doctrine. The social, moral and cultural foundations of the
law and the theories which both inform and account for them are no less important than
the laws black letter.5
Jurisprudence is sometimes used merely as an imposing synonym for law, as when we
speak of medical jurisprudence. This is not the use to which the term is put in this work.
Jurisprudence is a particular method of study, not of the law of one country but of the
general notion of the law itself. It may be defined as a study relating to law, and although
the term law may seem to the uninitiated a simple one analysis reveals that there are
many uses of this word. Hence one of the first task of jurisprudence is to throw light on
the nature of law. Each school of jurisprudence tends to set up its own definition.6
Modern jurisprudence trenches on the fields of the social sciences and of philosophy, it
digs into the historical pasts and attempts to create the symmetry of a garden out of the
luxuriant chaos of the conflicting legal systems. The breath of its scope, covering a
voluminous literature written in many tongues, makes it a difficult subject to master. 7
DEFINITIONS
3

Jurisprudence and Legal Theory, V.D Mahajan, 5th edtn, Eastern Book Company, pg.1
Understanding Jurisprudence- An Introduction to Legal Theory, Raymon Wacks, Oxford University
Press.pg 2
5
Ibid pg 5
6
A Textbook of Jurisprudence, G.W Paton, 4th edtn., Oxford University Press. Pg.2
7
Ibid
4

The study of jurisprudence started with the Romans. The Latin equivalent of
jurisprudence is jurisprudencia which means knowledge of law or skill of law. Ulpian
defines jurisprudence as the knowledge of things divine and human, the science of just
and unjust. Paulus, another Roman jurist, maintained that the law is not to be deduced
from the rule but the rule from the law. The definitions given by the Roman jurists are
vague and inadequate but they put forward the idea of a legal science independent of the
actual institutions of a particular society.8
In England the word Jurisprudence was in use throughout the early formative period of
the common law, but as meaning little more than the study of or skill in law. It was not
untill the time of Bentham and Austin(early part of 19th century) that the word began to
acquire a technical significance among the English lawyers. Bentham distinguished
between examination of law as it is and as it ought to be (expositorial and censorial
jurisprudence). Austin occupied himself with expositorial jurisprudence and his work
consisted mainly of formal analysis of the structure of the English Law. Analytical
exposition of the type which Bentham pioneered, has dominated English legal thought up
to the modern times. The word Jurisprudence has come to mean in England almost
exclusively an analysis of the formal structure of law and its concepts.9
There has been a shift during the last one century and jurisprudence today is envisaged in
an immeasurably broader and more sweeping sense than that in which Austin understood
it.10
Salmond defines Jurisprudence as the Science of the first principles of the civil law.11
Jurisprudence thus deals with a particular species of law, civil law or law of the state.
This kind of law consists of the rules applied by the courts in the administration of
Justice. It is only with the jurists law that the jurisprudence is concerned. They regulate
the external human conduct only not the inner beliefs, therein differing form the law of
the theologian. They are enforced by the courts or judicial tribunals of the society which
apply a variety of sanctions ranging from capital punishment to fine. The certainity of the

Supra 3
Ibid
10
Ibid
11
Salmond: Jurisprudence, 10th edtn, pg 2
9

7
sanctions and the existence of a determinate authority for the enforcement distinguish the
jurists law from that of the moralist.12
Austins Definition
Austin refers to jurisprudence as the Philosophy of Positive Law. Austins broad
approach of law was to regard it as the command of the sovereign. Positive law is a
general rule of conduct laid down by a political superior to a political inferior. The notion
of command requires that there must be a determinate person to issue the command, and
there is a implied threat of a sanction if the command is not obeyed. 13Austins aim was to
separate positive law sharply from such social rule as those of custom and morality.
Jurisprudence was the general science of positive law in the rigid sense in which Austin
defined it.14
Hollands Definition
Sir Thomas Erskine Holland has defined Jurisprudence as the Formal Science of
Positive Law. A formal science, as distinguished form a material science is one which
deals not with concrete details but with the fundamental principles underlying them.
Jurisprudence in this view should concern itself with the general portion of legal doctrine.
It should deal with the general conceptions and pervading principles that constitute the
basis of any mature system of law.
Holland says: Jurisprudence deals with the human relations which are governed by rules
of law rather than the material rules themselves. Since Jurisprudence deals only in
Formal or abstract way with those relations of mankind which are generally recognized
as having legal consequence. It is called a formal science.
Keeton considers Jurisprudence as the study and systematic arrangement of the general
principles of law. Jurisprudence considers the elements necessary for the formation of a
valid contact but it does not attempt to enter into a full exposition of the detailed rules of
the law of contract, either in English Law or in other systems. It analyses the notion of
status and considers the most important examples, but it does not consider exhaustively
the points in which persons of abnormal status differ from ordinary persons.

12

Jurisprudence & Legal Theory, Prof. G.C Venkata Subbarao, Eastern Book Company, pg 5-6
H.L.A Harts introduction to the Province of Jurisprudence determined,(1954)
14
Supra 6 pg 6.
13

8
Jurisprudence deals with the distinction between public and private laws and considers
the contents of the principal departments of law.15
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.
According to Gray, 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.
Lee writes that Jurisprudence is a science which endeavors to ascertain the fundamental
principles of which law is the expression. It rests upon the law as established facts, but at
the same time it is a power in bringing law into a coherent system and in rendering all
parts thereof subservient to fixed principles of justice.
G.W Paton says that jurisprudence is a particular method of study, not of law of one
country, but of the general notion of the law itself. It is a study relating to law.
The view of Julius Stone is that jurisprudence is the lawyers extraversion. It is the
lawyers examination of the precepts ideals and techniques of the law in the light derived
from present knowledge in disciplines other than the law.

15

Elementary principles of Jurisprudence, pg 1-2

JURISPRUDENCE IN RELATION TO OTHER

SOCIAL SCIENCE
Different branches of knowledge are so inter-related that none of them can be studied in
isolation. Modern jurisprudence trenches on the fields of social science and of
philosophy, it digs into the historical pasts and attempts to create the symmetry of a
garden out of the luxuriant chaos of conflicting legal systems. 16 Jurisprudence , ethics,
economics, politics and sociology are distinct enough at the core, the analytical
distinction are sound enough. But we shall not understand even that core, and much
leass the debatable ground beyond, unless we are prepared to make continual deep
incursions from each into each other. All the social science must be co-workers and
emphatically all must be co-workers with jurisprudence.17
Jurisprudence and Sociology
Sociology has helped jurisprudence in its approach to the problem of prison reforms and
has suggested ways and measures and means of preventing social wrongs. Behind all
legal aspect, there is something social . Among the phenomena studied by sociologists is
law also and that makes sociology intimately connected with jurisprudence. The cause of
crimes are partly sociological and an understanding of sociology helps the legislatures in
their task of prison reforms and prevention of crime. Topics like motive, aims and
theories of punishments are considerably helped by sociology. The birth and growth of
sociology has given a new orientation to the study of jurisprudence.
Jurisprudence and Psychology
Psychology is defined as the science of mind and behavior. In study of criminal
jurisprudence there is great scope for the study of psychological principles in order to
understand the criminal mind behind the crime. Both psychology and jurisprudence are
interested in solving such questions as the motive of crime, a criminal personality,
16
17

A Text Book of Jurisprudence, Paton, pg. 1

Law and Morals, Dean Roscoe Pound, pg. 115

10
punishments to be given, why crimes are increasing more in one society than the other,
study of Negligence, Intention, Motive and Cognate mental conditions form part of both
the Jurisprudence and Psychology.
Jurisprudence and Ethics
Ethics has been defined as the science of human conduct. It deals with how man behaves
and what should be the ideal human behaviour. Ethics lays down the rules for human
conduct based upon higher and nobler values of life. Laws are meant for regulating
human conduct in the present and subordinating the requirements of the individual to that
of

the society at large. A jurist must be adept at science of ethics because he cannot

criticize a law unless he examines that law through the instrumentality of ethics.
Although Austin separated law from ethics, jurisprudence must not be divorced from
ethics altogether. If ethical values are excluded from jurisprudence it shall be in the
formalistic vacuum of the sanctuary of the State barring the road to all contact with life
and society.
Jurisprudence and Economics
Economics studies mans efforts in staisfying his want and producing and distributing
wealth. Economics is the science of wealth and jurisprudence is the science of law. There
is a close relation between the two. Economic problems arise from day to day and it is
duty of the law giver to tackle those problems. The aim of the economist is to improve
the standard of life of people and also to develop their personality. Jurisprudence teaches
legislators how to make laws which will promote social and economic welfare. The
intimate relation between economics and jurisprudence was first emphasized by Karl
Marx and the interpretation of jurial relations in the light of economic factor is receiving
serious attention.

Jurisprudence and History

11
History studies past events in their different perspective. History furnishes the
background in which a correct idea of jurisprudence can be realized. The relationship
between the two is so close that there is a separate historical school of jurisprudence.

SCOPE OF JURISPRUDENCE
Jurisprudence involves certain types 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. Elaborating the point further, Salmond observed. in jurisprudence
we are not concerned to derive rules from authority and apply them to problem; we are
concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal
concepts and on the essential features of legal system.18 This makes the distinction
between law and jurisprudence amply clear. Thus, whereas in law we look for the
relevant to the given situation, in jurisprudence we ask, what is for a rule to be legal rule,
and what distinguishes law from morality; etiquette and other related phenomenon. It,
therefore, follows that jurisprudence comprises philosophy of law and its object is not to
discover new rule but to reflect on the rules already known. 19
There is a tendency to widen the scope of jurisprudence and at present now it is included
what was previously considered to be beyond the province of jurisprudence. The present
view is that the scope of jurisprudence cannot be circumscribed or regimented. It includes
all concepts of human order and human conduct in State and society. Anything that
concerns order in the State and society falls under the domain of jurisprudence.
There is no unanimity of opinion regarding the scope of jurisprudence. Different
authorities attribute different meanings and varying premises to law and that causes
difference of opinions with regard to the exact limits of the field covered by
jurisprudence. Jurisprudence has been so defined as to cover moral and religious precepts
also and that has created confusion. It goes to the credit of Austin that he distinguished
law from morality and theology and restricted the term to the body of rules set and
enforced by the sovereign or supreme law-making authority within the realm. Thus, the
18
19

Fitzgerald P.J: Salmond on Jurisprudence (12th Edition. 1966) p.1

Ibid

12
scope of jurisprudence was limited to the study of the concepts of positive law and ethics
and theology fall outside within the province of jurisprudence.
.
Jurisprudence attempts to discover as much as possible concerning legal method, to study
the concepts of the law and trace the influence of the social forces upon their
development. Jurisprudence is not primarily interested in discovering uniformities, for
diversity may even be more important.20
Jurisprudence is a functional study of the concepts which legal system dvelop, and of the
social interest which law protects. But the element of interest brings in the question of
value. Functional Jurisprudence cannot be satisfactorily developed without a
complementary study of the purposes for which the society exists21

UTILITY OF JURISPRUDENCE
There is general confusion regarding practical utility of jurisprudence as a subject . It is
often alleged that jurisprudence being an abstract and theoritical subject is devoid of any
practical use.
20
21

Supra 6 p 44-45
ibid

13
Jurisprudence has its practical applicability. It seeks to rationalize the concepts of law
which enable us to solve different problems involving intricacies of law. In other words it
serves to render the complexities of law more manageable and rationale and in this way it
can help to improve practice in the field of law.22
Progress in science and mathematics has been largely due to increasing generalization
which has unified branches of study previously distinct, simplified the tasks of both
scientist and mathematician and enable them to solve by one technique a whole variety of
different problems. Generality can also mean improvement of law. English law relating to
negligence has progressed from a host of individual rules about particular types of
situations to a general principle. One of the tasks of jurisprudence basis of treatment s to
construct and elucidate concepts serving to render the complexities of law more
manageable and more rational. In this way, theory can help to improve practice.
Jurisprudence is often said to be the eye of law. It is the grammar of law. It throws light
on the basic idea and the fundamental principles of law. By understanding the nature of
law, its concept and distinction, a lawyer can find out the actual rules of law. It also helps
in knowing the language, grammar, the assumption upon which subject rests. Some
logical training is necessary for a lawyer which he can find from a study of jurisprudence.
Jurisprudence trains the critical faculties of it students so that they can detect fallacies and
use accurate legal terminology and expression.
Jurisprudence also has an educational value. The logical analysis of legal concepts
sharpens the logical techniques of lawyer. The study of jurisprudence can also help to
combat the lawyers occupational view of formalism which leads to excessive
concentration on legal rules for their own sake and disregard of the social function of law.
Jurisprudence can teach people to look, if not forward , at least sideways and around
them and realize that answers to new legal problems must be found by consideration of
the social needs and not in the wisdom of the past.
Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the
law passed by the legislatures by providing the rules of interpretation. It also furnishes
them opportunity to pinpoint the lacunae , shortcomings and defects in the laws framed
by the legislature and improvise them through their judicial interpretation.
22

Sawer: Law in Society p. 153

14
The study of jurisprudence helps in rationalizing the thinking of the students and prepares
them for an upright civil life. The knowledge of law and legal precepts also helps them
to face exigencies of human life boldly and courageously.23
Such is the exalted science of jurisprudence, the knowledge of which sends the students
into civil life, full of luminous precepts and notions, applicable to every exigency of
human affair.24 Value of jurisprudence lies in examining the consequence of law and its
administration on social welfare and suggesting hinges for the betterment of the
superstructure of laws25.
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. Teachers of law hope to
encourage their pupils to learn how to think rather than what to know and jurisprudence
is peculiarly suited to this end.26

SCHOOLS OF JURISPRUDENCE
It is common to separate jurists into various schools. Such a classification is useful in so
far as it confined to an attempt to label in a broad way some of the most significant
approaches to the problem.27 There is no unanimity regarding desirability of the grouping
of essential themes concerning nature of law into different schools. Some jurists have
23

Phillinore J.G : Principles and Maxims of Jurisprudence p.30

Ibid
25
Dr. M.J Sethna
26
Prof R.W.M Dias, Jurisprudence, preface , piii
27
Supra 6 pg 3
24

15
justified this division or grouping in the interest of uniformity and indentifying law into
definite categories or branches which are called schools of jurisprudence while others
have denounced such disintegration of jurisprudence into different schools which would
perpetuate over-lapping and atomization.28
Analytical Schools
The major premise of analytical schools of jurisprudence is to deal with law as it exists in
the present form. It seeks to analysis the first principles of law as they actually exists 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
emanating from the sovereign. This school is also called imperative school. The
advocates of this school are neither concerned with the past of the law nor with the future
of it, but they confine themselves to the study of law as it actually exists i.e. positus.
Bentham and Austin are considered to be fore runners of this school in England. The
other exponents of analytical schools are Holland, Salmond, Amos, Markby.
Historical School
The exponents of the historical school of jurisprudence take social institutions in their
sequence, with primacy to primitive legal institutions of the society. Thus the school does
not attach importance to relation of law to the State but gives primacy to the social
institutions in which the law develops itself. The historical school concentrates on
evolution of a well- developed legal system, the historical school concentrates on
evolution of law from the primitive legal institutions of the ancient communities. The
task of historical school is to deal with the general principles governing the origin and
development of law and with the influence that affect the law. Historical school emerged
as a reaction to the legal theories propounded by analytical positivists and the natural law
thinkers. The exponents of this schools are Savigny, Burke, Henry Maine, Pollock.
Philosophical school
According to the exponents of this school, legal philosophy must be based on ethical
values so as to motivate people for an up-right living. According to this school, the
purpose of law is to maintain justice and order in society. The ethical school of
jurisprudence expound the first principle of law as it ought to be. It is neither concerned
28

Stone Julius: Province and Function of Law p 26

16
with the historical past nor with the analytical present but with the future of law as it
ought to be. This schools considers law as the means by which individuals will is
harmonized with the general will of the community. The proximate of jurisprudence is to
secure liberty to the individual for the attainment of human perfection. Hugo Grotius,
Kant, Hegel are considered to be main exponents of the ethical school of Jurisprudence.
Sociological School
Sociological school of jurisprudence has emerged as a result of synthesis of various
juristic thoughts. The exponents of this school considered law as a social phenomena.
They are chiefly concerned with the relationship of law to other contemporary social
institutions. They emphasis that the jurists should focus their attention on social purpose
and interest served by law rather than on individuals and their abstract rights. According
to this school, the essential characteristic of law should be to represent common
interaction of men in social groups, whether past or present, ancient or modern. They
treat law as social process. The exponents of this school are Montesquieu, Roscoe
Pound, Von Ihring, Spencer. Auguste Compte.
Realist School
The realist movement in United States represents a latest branch of sociological
jurisprudence which concentrates on decisions of the courts. The realists contend that law
has emanated from judges, therefore law is what courts do and what they say. For them
judges are the law makers. This school is not much concerned about the ends of law but
their main concentration is on a scientific observation of law and its actual functioning.
The contentions of realists is that judicial decisions are not based on abstract formal law
but the human aspect of the judge and the Lawyers also has an effect on courts decision.
According to Friedmann, Oliver Windell Holms, Gray, Cardozo and Jerome Frank were
the mental founders29 of the realist movement in America who emphasized on functional
and realistic study of law not as contained in the statute or enactment but as interpreted
and laid down by the courts in their judicial pronouncements.
They do not support formal , logical and conceptual approach to law because the court
while deciding a case reaches his decision on emotive rather than logical ground. Realists

29

Friedmann: Legal theory, 5th edtn p. 293

17
are opposed to the value of legal terminology for they consider it as a tacit method of
suppressing uncertainty of law.

CONCLUSION
Jurisprudence in its limited sense means elucidation of the general principles upon which
actual rules of law are based. It is concerned with rues of external conduct which persons
are constrained to obey. Therefore, etymologically jurisprudence is that science which
imparts to us knowledge about law. Jurisprudence may be considered to be the study and

18
systematic arrangement of the general principles of law. Yet in another sense it may be
regarded as the philosophy of law dealing with the nature and function of law. This
approach to jurisprudence is receiving macy in modern times keeping in view the rapid
social change taking place all around the world in recent years. This has given rise to
what is called functional jurisprudence.
The Indian jurisprudence owes its origin to the ancient concept of Dharma. The study of
jurisprudence as a separate branch of knowledge started with the Romans. The definition
and conception of jurisprudence by Romans jurists may appear to be vague or inadequate
in the modern sense of the term but the credit of recognizing jurisprudence as an
independent branch of legal system for the first time goes to Roman legal philosophers
which eventually paved way for the development of the subject in its present form.
Jurisprudence is regarded primarily s a discipline in how to think for oneself and not
something to know. Its value lies in the analysis from which conclusion may be drawn
and not the formulation of any final decision.
The true purpose of the study of jurisprudence should not be confined to the study of
positive law alone but must include normative study. That study should deal with the
improvement of law in the context of prevailing socio-economic and political
philosophies of time, place and circumstances.
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. Teachers of law hope
to encourage their pupils to learn how to think rather than what to know and
jurisprudence us peculiarly suited to this end.30

Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of
certain restrictions and limitations I was not able to deal with the topic in great detail.

BIBLIOGRAPHY

30

Jurisprudence, R.W.M Dias, Preface , pg vii

19
1) Myneni Dr. S.R.; Jurisprudence (Legal Theory); Second Edition 2004; Asia Law
House
2) Mahajan V.D.; Jurisprudence & Legal Theory; 5 th Edition 1987; Eastern Book
Company
3) Paton G.W.; A Textbook of Jurisprudence; 4th Edition 1972; Oxford Universal Press
4) Sinha Surya Prakash; Jurisprudence Legal Philosophy; 4th Edition 2003; West Group
5) Subbarao G. C. Venkata; Jurisprudence and Legal Theory; 9 th Edition 2006; Eastern
Book Company
6) Fitzgerald P J; Salmond on Jurisprudence; 12th Edition 1966; Universal L aw
Publishing house
7) Wacks Raymond, Understanding Jurisprudence. Oxford University Press.