3RD FEBRUARY UPDATE

NOTE
Please do not consider this write-up as notes. This is a brief update about today’s class. You
can use it as a ready-reference to recollect what we discussed in class and as a base for further
study and preparation of notes. Please use other books and resources to substantiate and add
to the following discussion. Any claim that anything in the exams was not mentioned in these
updates shall not be entertained.

We began our discussion on the 1st Unit which I am producing below for the sake of
convenience:

UNIT – I

INTRODUCTION

a) Meaning of the term ‘Jurisprudence’.

b) Norms and the normative system.
c) Different types of normative system.
d) Legal System as a normative order – Similarities and
differences of the legal system with other normative systems.
e) Nature and definition of law.

 JURISPRUDENCE AND THE CONFUSION SYNDROME.

We began with a brief talk about the tendency of being confused during and after
jurisprudence classes [Let us call it the jurisprudence “confusion syndrome”]. It is normal to
be in such a ‘state of mind’ when one is dealing with jurisprudence. However, it should not
be treated as something that is bad or something that reflects poor learning and understanding
skills. This confusion is natural and normal and can be attributed to the nature and the content
of jurisprudence as a subject. The nature of jurisprudence and the subject-matter of the same
makes it difficult and confusing and all we could do is to try and make a little sense of the
same. Therefore, as far as jurisprudence is concerned, “to be confused” means “to be
normal”.

One of the main reasons as to why this happens is because of the “subjective” nature of
jurisprudence. Studying jurisprudence is not like studying law of crimes or law of contracts.
And let me briefly explain this difference. When we attempt to study law of crime we follow
a certain pattern to do the same. We bring out the text of a particular section (let us say
section 300) and try to dissect it into certain elements. We then use a body of case laws to
understand these elements and then move on to the next provision. Same is the case with law
of contract or any other law passed by a competent legislative body. However, same
pattern/method of study cannot be applied when we attempt to study jurisprudence.
Jurisprudence is not about studying a provision of law and applying a case law to the same. It
is more about the philosophy of ‘law’ and various ‘legal concepts’. It is about the foundations
and fundamentals of law, legal concepts and legal systems. And there is no tight jacket
methodology to study the same. Everyone will try to answer the philosophical questions
raised in jurisprudence according to their own ideas and philosophies, according to their own
analytical skills, and according to their own power of interpretation.

 MEANING AND NATURE OF JURISPRUDENCE.

This ‘issue of subjectivity” is so closely associated with jurisprudence that the scholars do
not have consensus even in regards to the ‘definition of jurisprudence’ itself. Different
scholars have provided different definitions as to the meaning of the term “jurisprudence”.
They have provided different answers to questions like what do we mean by the term
jurisprudence? What does it include? and so on. Even though we did not discuss these
definitions in the class, I would like to mention them here for the sake of clarity. I will do so
with the intention of using these definitions to identify aspects of jurisprudence which are
common to all.
 NAME OF THE SCHOLAR DEFINITION

Salmond “Science of the First Principles of Civil Law”

Austin “Philosophy of Positive Law”

Holland “Formal Science of Positive Law”

Gray “Science of Law, the Statement and Systematic Arrangement of

the Rules followed by the Courts and the Principles involved in
those Rules”

Pound “Jurisprudence is the Science of Law using the Term ‘Law’ in the
Juridical Sense, as Denoting the Body of Principles Recognised
or Enforced by Public and Regular tribunals in the Administration
of Justice”

Paton “Jurisprudence is a particular method of study, not of the law of

one country, but of the general notion of law itself.”

It is clearly evident from these definitions that “jurisprudence” is associated to “law” and
the nature of this association is ‘philosophical’ or ‘scientific’. Jurisprudence is the type of
science which explores the necessity, creation, nature, application and enforcement of laws. It
is the study of theories and philosophies regarding law. And it is due to this reason that its’
roots can be found in the Latin term “jurisprudentia” which means ‘knowledge of law’.
Herein ‘juris’ means ‘law’ and ‘prudentia’ means ‘skill or knowledge’. We did subsequently
discuss how ‘jurisprudence’ as a science of law can be explained by virtue of its comparison
to ‘physical science’. Our friend Newton helped us there. Therefore, in simple terms,
jurisprudence as a subject of law deals with understanding the philosophy or science of ‘law’,
of various ‘legal concepts’ and of various ‘legal systems’.

 RELEVANCE OF JURISPRUDENCE AS A LAW SUBJECT AND ITS SCOPE.

The importance of jurisprudence as part of law school curriculum cannot be overstated. It

plays a very crucial role as far as the overall intellectual and personality development of
members of legal fraternity is concerned. Since it deals with the basis or foundations of law,
legal concepts and legal systems, a person well read in jurisprudence will have a better and
more elaborate understanding of what is law, how is it created, how does it operates, how it is
interpreted and how is it enforced. Understanding the philosophy of law helps to understand
the nature, limits, extent and boundaries of our own laws and legal system. In this regard we
discussed the dissenting opinion of Justice H.R. Khanna in the famous (or should I say
infamous) A.D.M. Jabalpur v. Shivkant Shukla case. I highlighted the fact that almost the
entire dissenting opinion is based on the Natural Law School of jurisprudence. And the case
in its entirety can be seen as a conflict between the Positivist School and Natural Law School
(something we will take up for proper discussion in other classes).

It is suggested that the teaching (and studying) of jurisprudence broadens the base of legal
education as an education in itself and provides the future legal practitioner with an
awareness of the social, economic and political context within which the law operates. This
suggests the importance of studying and understanding law in the background of these areas
of social science. Jurisprudence provides the connection between law and other social
sciences. It helps us understand the importance of reading as a part and parcel of different
aspects of human life. We did subsequently discuss the manner in which law can be related to
sociology, political science, history, economics, and psychology.

The next question that arises is in relation to the scope of jurisprudence. What do we
study in jurisprudence? What is the subject matter of jurisprudence? The scope of
jurisprudence can be divided into following categories:

a. Theories/Schools of Jurisprudence [which basically talk about how different scholars

have tried to define the term ‘law’ including sources of law].
b. Theories of Justice.
c. Legal Concepts [Like Rights, Duties, Possession, Ownership and Liability].