1.1.

Meaning and Definition of Jurisprudence

• Jurisprudence involves the study of general theoretical

questions
i) about the nature of law and legal system,
ii) about the relationship of law to justice, morality
iii)and about the social nature of law.
• Jurisprudence, as a philosophy of law attempts to
correlate with social values and provides practical
solutions by way of fusion of
i) fact,
ii) justice and
iii) value
 Introduction
• Jurisprudence as a science of law is primarily concerned
with regulation of human conduct in accordance with the
i) set values,
ii) needs and
iii)goals of each society.
• The term "jurisprudence" has at different times, been used
in different senses.
• Sometimes it has been used as a synonym for the term
i) "law",
ii) sometimes as philosophy of law and
iii)sometimes as a science of law.
 Introduction
• The present tendency appears to prefer the
term "legal theory" to the term
"jurisprudence".
 Introduction: Historical Aspects
• The study of jurisprudence started with the
Romans.
• The word "jurisprudence" is derived from the
Latin word "Jurisprudentia" which means
"knowledge of law".
• In the Latin language "jure" or "juris" means law
and "prudentia" means 'skill' or 'knowledge'.
• Jurisprudence then signifies a practical
'knowledge of law and its application'.
 Introduction: Definitions
• Ulpian defines jurisprudence as "the
knowledge of things divine and human, the
science of the just and unjust". (Literary
activity AD 211 and 222)
• Bentham and his disciple Austin in the early
part of the 19th century gave the word
jurisprudence a technical significance among
English lawyers.
Introduction: Bentham’s Definition
• Bentham distinguished between examination
of the law ‘as it is’ and as it ‘ought to be’
 Introduction: Austin’s Definition
• Austin defines 'jurisprudence' as 'science of law
which deals with analysis of the concepts or its
underlying principles'.
• For Austin, the appropriate subject of
jurisprudence is positive law i.e., law as it is
(existing law).
• To him jurisprudence is not a moral philosophy.
• But it is a systematic study of actual law as
distinguished from moral, ideal or natural law.
 Introduction: Austin’s Definition
• Austin further divides jurisprudence into two classes
viz.,
i) 'general jurisprudence' and
ii) 'particular jurisprudence'.
• According to him 'general jurisprudence' is the
philosophy of positive law
• For Austin, 'general jurisprudence', means
i)the science concerned with the exposition (elucidation;
clarification) of the principles
ii) and distinctions which are common to the different
systems of law.
 Introduction: Austin’s Definition
• The concept of
i) rights and duties,
ii)ownership,
iii)possession,
iv)personality,
v)property etc. comes under the province of
general jurisprudence.
 Introduction: Austin’s Definition
• 'Particular jurisprudence' "is the science of any
such system of positive law as now actually
obtains or once actually obtained in a
specifically determined nation or specifically
determined nations".
• “Particular jurisprudence”"is the science of
any actual system of law or any portion of it.
 Introduction: Austin’s Definition
• Ownership, for example, is one of the
fundamental legal concepts known to all systems
of law.
• “Particular jurisprudence” would
i) analyze,
ii) systematize and
iii)explain
how the nature and scope of ownership has been
defined or delimited (encircled) by the particular
system of law.
 Introduction: Holland’s Definition
• Holland defines jurisprudence as 'the formal
science of positive law'.
• It is formal or analytical science rather than a
material science.
• The term positive law has been defined by
Holland as "the general rule of external
human action enforced by a sovereign political
authority".
 Introduction: Holland’s Definition
• The term formal means "that which concerns
only the form and not its essence".
• Jurisprudence is not concerned with the
i) actual material contents of law but
ii)with its fundamental conceptions.
• Formal science is that which deals with the
various relations which are regulated by legal
rules than with the rules themselves which
regulate those relations.
 Introduction: Holland’s Definition
• Material science supplies
i) the facts,
ii) while the formal science of jurisprudence elucidates
the meaning of the relations or prescriptions regulated
by law.
• For example, it explains the legal aspect of marriage
and its connection with property and the family.
• Secondly, for Holland (like Austin) jurisprudence is
concerned with positive law-
• it is not concerned with law as 'it ought to be' nor with
the objects of law but with law as 'it actually is'.
Introduction: Salmond’s Definitions
• Salmond agrees with both Austin and Holland
only to the extent that jurisprudence is 'a
science, a systematic study of basic principles
of legal systems'.
• Salmond defines jurisprudence as "the science
of law".
 Introduction: Salmond’s Definition
• Salmond has divided jurisprudence into following
categories-
• He divides jurisprudence in the generic sense into -
a) Legal exposition:- The purpose of which is to set forth the
contents of an actual legal system as existing at any time,
whether past or present.
b) Legal history:- The purpose of which is to set forth the
historical process whereby any legal system came to be
what it is or what it was.
c) The science of legislation:- Purpose of which is to set forth
the law, not as it is or has been, but as it ought to be. It
deals not with the past or present of any legal system but
with its ideal future.
 Introduction: Salmond’s Definition
• He divides jurisprudence in the specific sense into -
a) Analytical jurisprudence:- The purpose of which is to analyse,
without reference either to their historical origin or development or
to their ethical significance or validity - The first principles of law.
b) Historical jurisprudence:- The purpose of which is to deal with the
general principles governing the origin and development of law. It is
the history of the first principles and conceptions of the legal
system.
c) Ethical jurisprudence:- The purpose of which is to deal with the law
from the point of view of its ethical significance and adequacy. It is
concerned not with the intellectual content of the legal system or
with its historical development but with the purpose for which it
exists and the measure and manner in which that purpose is
fulfilled.
Introduction: Salmond’s Definition
• According to Salmond, complete scientific
treatment of any body of law involves the study of
these (generic and specific)categories mentioned
above.
• Criticisms of Salmond’s definition.
i) The study of jurisprudence today is not confined
to the study of law as administered by courts of
justice.
ii) It also takes note of the facts of social life of
societies.
 Introduction: Gray’s Definition
• Gray has defined jurisprudence as a science of
law i.e., systematic arrangement of rules
followed by courts and principles underlying
them.
 Introduction: Keeton’s and Pound's
Definitions
• Keeton considers 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".
 Introduction: Conclusion
• Jurisprudence is a study of the fundamental legal
principles.
• It may be described as any thought or writing about
law and its relation to other disciplines such as
i) philosophy,
ii)psychology,
iii)economics,
iv)anthropology and many others.
 Introduction: Conclusion
• It is to be determined from the expositions of
law itself.
• It includes whatever law thinks, says and does
in any field of human society.
• It includes political, social, economic and
cultural ideas.
• (For more definitions refer to V.D. Mahajan’s
Jurisprudence and Legal Theory)