Relevancy of Studying Jurisprudence as a

Subject with Reference to Philosophy of Law

SUBMITTED TO: SUBMITTED BY:

Dr. Sugandha Akshay Bansal

Master of Laws (1st Semester)

Roll No. 2095/20

 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me throughout

the course of this project. I am thankful for their aspiring guidance, invaluably constructive
criticism and friendly advice during the project work. I am sincerely grateful to them for sharing
their truthful and illuminating views on a number of issues related to this project.

I express my heartfelt thanks to Ms. Sugandha for her support and guidance and for being a
guiding light throughout by her worthy Lectures

I would also like to thank all the people who provided me with the facilities and conducive
environment for the completion of this project.

Akshay Bansal
 CONTENTS

ACKNOWLEDGEMENT...............................................................................................................2
INTRODUCTION...........................................................................................................................4
RELEVANCE OF JURISPRUDENCE...........................................................................................7
SUGGESSION..............................................................................................................................12
CONCLUSION..............................................................................................................................13
BIBLIOGRAPHY..........................................................................................................................14
 INTRODUCTION

Jurisprudence has some practical aspects in nature. We studies subjects like math and science.
They had practical aspect. They are so progressed subjects as with the generalization of these
subjects, there introduction of new concepts, Routine practice makes it more effective. Same
thing applies on jurisprudence. If we regular apply logical theories and concepts of jurisprudence
then it will be easy for those people who had a legal background So as to understand the behind
concept of making law and understand it in best way and finding out the new legal problems
arising in society. We know that society is of dynamic in nature. We need a proper channel to
understand the new need of legal problems and their solutions.

With the help of jurisprudence, we come to know the basic fundamental cause of making law
and studying the basic of laws. It helps in getting elucidation of general principles upon which
actual rules of law are based. Therefore, jurisprudence is that science which imparts to us
knowledge about “Law”. Jurisprudence involves certain types of investigations into law, an
investigation of abstract, general and theoretical nature which seeks to law bare the essential
principles of law and legal system.

Jurisprudence is considered to be the philosophy of law. As in if we study the concept of

philosophy of law it includes a branch of philosophy which helps in determination of nature of
law what is impact of law in society, needs to change according to the dynamic world, attitude,
human values etc.

Contents of jurisprudence

There is divergent view regarding the exact contents of jurisprudence. But it has been generally
accepted that sources, legal concepts and legal theory constitute the main premises of the study
of jurisprudence.

1. Sources- There are well known fact that the basic features of legal system is derived
from the competent sources and the authorities working on these sources. So obviously it
forms the content of jurisprudence. There are sources like customs, precedents and
legislation; Methods of judicial interpretation and reasoning are included in the study.
2. Legal concepts- Another area which concerns jurisprudence is the analysis of legal
concepts such right property, ownership, possession obligations, acts, negligence, legal
personality and related issues. Jurisprudence tries to bring a more comprehensive picture
of each concept as a whole.
3. Legal Theory- As there are sources and legal concepts of jurisprudence same legal
theory also contribute to the jurisprudence. Legal theory is concerned with law as it exists
and functions in the society, and manner in which law is created and enforced as also the
 influence of social opinion a law on each other. It is therefore, necessary that while
analyzing1 legal concepts, an effort should also be made to present them in the
background of social development and changing economic and political attitudes.1The
end of law is based on conceptions of man, both as a thinking individual and a political
being2

Approach to the study of jurisprudence

Jurisprudence was not a concept of western thoughts but also mentions in the old Hindu concepts
which was based on “Dharma”. It contains moral concepts and principles which are made for the
welfare of the society. It was made for maintaining the social order in society. But with the
passage of time the concept of jurisprudence become narrow due to political reasons. At that
time some of legal concepts didn’t match to change the situation. In the period of Moghul rule
and British rule the Indian legal system had completely get off track and lost its essence. British
rule bought a well-developed system of law which is gradually introduce in India.

The present era is of globalization and liberalization there is more emphasis on Science and
Technology which leads to development of these subjects. There is need of study of
jurisprudence in modern times which should be interpreted in a broader sense so as to give global
coverage.

The traditional approach of jurisprudence is substituted by the empirical and a priori

(Theoretically) methods. Every legal system should be critical analyzed so as to come at perfect
solutions of legal problems and system.

Meaning of Jurisprudence

The word jurisprudence is derived from the Latin word jurisprudentia, which means knowledge
of law. Hence jurisprudence is knowledge of law and its applications in society. It covers the
body of legal principles in society. The Roman civilization, which set up a base of all human
civilizations in the society, (society as a whole which include n no. of sample), has asked that
what is nature of law and need to setup a meaning of same. Ulpian a jurist has defined law as
“knowledge of things divine and human”. According to him, the law is the science of right and
wrong. Bentham, the Father of Jurisprudence, also stated that “science of jurisprudence” has
nothing to do with ideas of good and bad. There are number of Jurists who had presented their
views for jurisprudence.

Jurisprudence is the study of philosophy and theory of law. It has its own place as well as
meaning according to in which society it is going to be implemented. It is implemented

1
Fitzgerald P.J.: salmond on jurisprudence (12th ed. 1966) p.3.
2
Friedmann. W.: Legal theory (5th ed.) p.3.
according to different political and social conditions. Now in modern times it is having two
hands as in sociological and philosophical aspects.

Definition of Jurisprudence

Jurisprudence has different definition in different times. This is different because different
methods of approach and inquiry is taken while studying the concept of the same. Julius stone
has described jurisprudence as it involves examination of precepts, ideas and techniques of the
law by lawyer’s in the light of disciplines other than the law.3

There is some eminent jurist who had given the different definitions of jurisprudence.

Gray – Jurisprudence is the science of law, the statement and systematic arrangement of rules
followed by the courts and the principles involved in those rules. In other sense it is kind of law
which is having rules set by the court while administrating the justice.

Ulpian – He says that Jurisprudence is the observation of things human and divine, the
knowledge of the just and the unjust. He said that jurisprudence is the same sense as a Dharma.
He defines it as it covers the province of religion, ethics and philosophy. He gave a wide
definition of jurisprudence.

Salmond – Salmond defines jurisprudence as the science of the first principles of civil law. He
says that its jurisprudence is particular species of law, called civil law or law of the state.
Salmond agrees with the concept of grey an observed Jurisprudence as a science of law in three
kinds, namely: -

1. Expository or systematic jurisprudence

2. Legal history, which deals with legal system in process of historical development.
3. The science of legislation, to set forth law as it ought to be.

John Austin – Austin calls jurisprudence as philosophy of positive law. He was fist jurist to
make jurisprudence as a science. He terms it as positive law in which a political superior is
commanding his subjects for obedience of law. He divided jurisprudence in to parts as (1)
General jurisprudence and (2) Particular jurisprudence. “General jurisprudence” here means the
science concerned with exposition of principles of nations which are common to all systems of
law. “Particular jurisprudence” means science of such system of positive law which actually
obtained in specifically determined nation.

Roscoe Pound – According to him jurisprudence is “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”
3
Julius Stone: Some Reflections in Jurisprudence, p.2
There are many more jurist who had presented their view and given the different definition of the
jurisprudence but the above mention jurist had covered the almost scope of jurisprudence

Evolution

Jurisprudence originated in the Roman civilization with the Romans questioning the meaning
and nature of law. It was quite limited since the concepts of law, morals and justice were
confused with each other. References are also made to the works of ancient Greek philosophers
such as Homer, Socrates, Plato and Aristotle. With the fall of the Roman Empire, the ideas of
Roman and Greek jurisprudence disappeared and the Christian State emerged. Soon, the
authority of the church over the state was challenged by the reformist and ideas of secularism
emerged. Many theories were proposed with regards to the evolution and nature of ‘state’ by
philosophers like Hugo Grotius, John Locke, Rousseau and Blackstone. The Age of Reason in
the 17th Century led to the formation of ideas of collectivism and social welfare. Slowly, the idea
of positive law and positivistic approach gained popularity whereby the boundaries of the law
were demarcated and its scope was limited.4

RELEVANCE OF JURISPRUDENCE

The purpose of jurisprudence is to study the law and legal concepts and analyze the same to
facilitate better understanding of legal complexities. Therefore, the theories of jurisprudence are
quite useful in solving complex legal problems in the practical world. The various studies and
analysis of the legal concepts help a legal professional in sharpening his legal acumen. The
subject has immense academic value. One of the most important features of jurisprudence is its
relation with other social sciences such as sociology, political science, ethics, etc. Therefore,
research in the field of jurisprudence yields great number of social benefits. Moreover,
jurisprudential concepts make way for sociological perspectives in law, thereby preventing it
from being reduced to rigid formalism. Jurisprudence is known as the “grammar of law”. It helps
in the effective expression and application of legal concepts to real-life legal problems. It greatly
helps in the interpretation of law and determination of legislative intent. It stresses upon the
importance of considering present social needs over the ideas of the past while dealing with legal
problems.

After understanding the meaning of jurisprudence, now we need to know that why jurisprudence
is essential to be studied. Jurisprudence has various branches like

Natural School of law: Natural school of law derives from natural law. Natural law means that
law which is created by nature and it has its own way to punish for sins. We need to study

4
www.legalbites.in Article By Mayank Shekhar
natural law in the present scenario because when no law is able to provide justice to a person
then at that time there is natural justice which provides justice. It fits to the dynamic society.

Analytical School of law: Under this school the law is interpreted as it is in real form. Various
ideas of this school are practiced today like codification of law, study of the conception of legal
rights and duties, law to be made by the state, etc.

Historical School of law: This school believes that law is derived from the historical
development of society. We need to study this because we get to know that how customs and
usages have been accepted as law. In the present scenario some customs are accepted as law
example: The Hindu Marriage Act, 1955, Punjab Customary laws.

Sociological School of law: This school deals law as social thing. This includes need to study
the thoughts of this school because this school believes that law is created by society. We get to
understand the role of society in law making.

There are so many other reasons to study jurisprudence in common understanding we need to
study jurisprudence:

To understand law: Jurisprudence helps us to understand the law. As we understand from

definitions, jurisprudence is the language of law means it gives language to law which could be
understood by the followers. It is the grammar of law which tells us the easy understanding of
law. Grammar of any subject is the important part of learning of a language, it includes the rules
for correct writing and speaking, grammar includes the instructions for how a language should be
used correctly. Same as jurisprudence includes the instructions how a law should be written and
spoken correctly and gives a correct interpretation of the law. It explains how a law should be
studied and helps the people to make their own interpretation with their knowledge of that law.

To know the idea behind law: Jurisprudence helps to understand the idea behind making of any
law, that why a particular law exists and what is the purpose of existence of that law. For
example, Indian Penal Code, this law exists because in case of occurrence of any criminal act,
this penal code states whether that act is a crime or not and if it is then up to what extend it is
punishable and determines the nature of that criminal act.

To know the impact of law: Jurisprudence explains the impact of law on the society. At very
first jurisprudence determines whether a law is correct or not and then determines its impact on
the society. Law is something which is made by human to modulate the society, law gives justice
and protection to the victims and punishment to the wrong doers. In many other ways’ laws leave
its impact on the society.
To know the wholesome of law: Jurisprudence helps the jurists and scholars to understand the
benefit of law it helps to determine the morality, necessity, the cleanliness, ethics and goodness
of law.

To check the credibility of law: Jurisprudence checks the credibility of law, it determines
whether a law is of such quality that it can be trusted and believed in. It checks whether a law is
trustworthy or not and it can provide justice to the people.

It makes the law dynamic: According to the changing society and time jurisprudence helps the
law to change according to that changing society and time. This makes the law acceptable to the
society.

To understand the different perspective of law: jurisprudence explains the different

perspective of law. What law is according to something, for example: depending on the view,
from which we examine the law, lead us different legal regime, like civil law, criminal law,
commercial law, international law, etc.

To give decision according to law: Jurisprudence helps the judges to apply the correct law on
the basis of their knowledge of law and give the correct decision. As jurisprudence makes
understanding of any law easy, the judges are able to judge the situation and nature of the case
correctly and apply correct law according to it.

It is a kind of weapon for law persons: As it is known that jurisprudence helps to interpret the
law, it helps to determine the validity of the law, helps to apply the correct law on any situation,
etc. Therefore, it is a kind of weapon for the law person who can correctly use the correct law by
making the correct interpretation of it. It is the path finder, the path which leads to justice.

Helps to present the case: Jurisprudence helps the lawyer to present the case in the court of law.
Not only judges but it also helps the lawyers to determine the situation and nature of the case and
claim for justice with the help of correct law.

To make society aware about the law: Jurisprudence makes the society aware about the law. It
studies the conscience of society, meaning that it senses the responsibility towards the society,
towards the need of society, the problems of the society and the injustice in the society. Like this
it gets to know about the society and work according to it and make the people aware of their
rights and duties. It makes the people aware of their obligation towards their society and how to
cope up with any problem. It makes the people believe in law and make them determined and
help them to fight for themselves and also help other people.

It works as the basic element of law: Jurisprudence provides what a law should consist of to be
correct, effective and to be successfully accepted by the people. It determines for any branch of
law what elements are necessary, example: legal right is something which is very essential for a
person because no one live without rights, the basic elements of legal right (as given by salmond)
are: subject, person is bound for duty, the act or forbearance, the object of right and title.

Jurisprudence helps in proper implementation of law: As we have already got to know from
the above discussion that jurisprudence helps to understand the law in a better way and it also
explains the reasoning behind every law, then when law is properly known to us then this proper
understanding of law helps in proper implementation of law.

Jurisprudence helps to frame the law: Jurisprudence explains about various laws and
ideologies related to law, jurisprudence also describes various law schools which has different
thinking about law example: Analytical law school, Natural Law school, Sociological law
school. These school gives different understanding of law which helps the law makers to frame
the correct law.

To provide justice: Laws are made according to the need of the society. Laws are made
according to the crimes and injustice which occurs in the society. Laws acknowledge the rights
and duties of and individual towards the society and of the society towards the individual. Laws
are created and enforced by the social or governmental institutions. Through the laws these
institutions provide justice to the people. Laws abolishes unjust behavior, discrimination and
arbitrariness means law do not allow any person to misbehave with any other person or to make
discrimination on any basis and also do not allow the power holders to misuse their power by
applying reasonable restriction on their power and treats everyone equal and in case of any
wrong it provides remedies to the sufferer and punishment to the wrong doer.

Jurisprudence fills the loopholes of law: Loophole in a law means ambiguity in law.
Jurisprudence helps to avoid the ambiguity. It is well known that Jurisprudence gives the proper
understanding to the law makers to frame correct law and also makes society aware of the law,
this helps the people in society and the law maker to make a correct interpretation of any law.
Jurisprudence makes law to be understood easily so that no problem occurs while making any
interpretation of that law. Jurisprudence explains the reason behind any law which makes it easy
for the law professionals to make their own interpretation of law. Example: in case of contract
law, assuming that a homeowner entered into a contract with an electrician to conduct work
throughout the home. The contract indicated that the services must be rendered in June. The
homeowner interpreted the language to say that the services must be rendered and complete by
June 30; however, the electrician might have interpreted the language to say that he must begin
the work in June but that doesn’t necessarily mean that he needed to have the work complete by
June 30.

Jurisprudence helps to differentiate between law and morality: Jurisprudence explains the
difference between law and morality. Morality is belief, custom and thinking but law is the set
rule which is mandate to follow. Although HLA Hart believed that law should have the essence
of morality, both are supplementary and complementary to each other.

Jurisprudence shows pros and cons of the law and maintain check and balance: We can
understand this with an example: if any person kills other person then earlier it was law that the
murderer shall be killed later the law was changed that a proper process shall be there to punish
the criminal and direct capital punishment shall not be given because as he had no right to take
someone’s life in the same way no one has the right to kill that person if this is done it create
huge chaos in the society, capital punishment can be given only in case of rarest of the rarest.
Like this jurisprudence shows pros and cons of the law and maintain check and balance in the
society.

New Horizons of Jurisprudence

With the advance of knowledge and developments in jurisprudential thinking, the traditional
positivistic approach to legal doctrines, principles of law and constitutional dictums have lost
their credence and a new socio- legal philosophy based on social engineering and judicial
activism has emerged for the fulfilment of felt desires and needs of the society. This dynamic
approach focuses more on the right of citizenry, the poor or underprivileged women, children,
and other vulnerable sections of the society who are unable to protect and preserve their
constitutional and human rights. In the changed scenario, a duty is cast upon the judiciary and the
apex court in particular, to ensure that the basic cardinal principles of good governance such as
secularism, national integration, democracy, rule of law and socio- economic justice and assured
to the people of india. These new dimensions call for judicial activism and dynamic approach on
the part of lawyers and judges to ensure social justice and be responsive to the social change
which the country is witnessing in the new millennium.

The supremacy of law must be upheld, no matter haw powerful or man of status a man may be.
Thus, State of Haryana v. Bhajanlal5 justice Pandian of the supreme court reiterated the
supremacy of law in the context of powerful political tycoons allegedly involved in corruption
for private gain at public expense.

Supreme court in the decision of Sterlite Limited case6 adopted a more pragmatic and proactive
approach and ordered the company to pay a fine of one hundred crore rupees for causing
environmental pollution due to its mineral exploitation activity which had caused huge damage
to people living in the vicinity. The high court of west Bengal had ordered closure of the
company in 2010 but the supreme court considered that it is insufficient in view of social justice
to he affected people.

5
AIR 1992 SC 604
6
Decided by the supreme court on 2/4/2013 wherein the court considered merely closure of the company as
insufficient in view of the tremendous damage caused to environment and people due to pollution caused by the
company’s mineral exploitation activities.
 SUGGESSION

We study various laws and the reasoning behind those laws theoretically but in practical life we
do not see that those laws work according to their reasoning. In practical life we do not see that
the idea of jurisprudence is been applied in the same way it is explained. Example: In our
country their multiple party system according to which any person can make a party and can
contest election, this is there to stop the suppression of one party over the whole country and so
that the people from different ideologies can also come forward. Some local politicians are
misusing this law This idea is been misused by the local politicians, they form local parties and
support the local goons which help them to win in election and ten they are helped by those
politicians monetarily. These politicians are threat to the society and the only purpose of them is
to stay on the seat and earn money although they do no welfare of the people, this also leads to
the local goons to become a part of the political system.

Even if the ideas are applied then with the span of time the misuse of those ideas are taking place
now. Example: Reservation was included in the Constitution to encourage the suppressed people
to come forward and work freely. But now after so many years of independence the state is not
able to remove the gaps between the forwards and backwards and sometimes this has done
injustice with those who deserves. For example: in UPSC the person ranked AIR 12,000 from
Scheduled Case is selected but a Person Ranked AIR 190 from Forward caste is not selected just
because it has not scored the rank which was cut-off for the forwards.

Our legal system is set as such that people are completely dependent on the state for everything
and claims only their right. But they do not understand their duty towards the state or society.
For any problem they blame the state but are not ready to accept that they have some duty which
they have to follow because of which this can be possible that the problem which they are facing
do not occur. Example: people complain of rising price of petrol and diesel but never accept that
they have duty not to misuse the natural resources as they may end at some point and future
generation may face problem.

I conclude after all the discussion that the need which the jurisprudence explains and the way in
which jurisprudence should be applies should not only be theoretical but should be applied in
practical life. People should not only be made aware of their right but also of their duty and there
should be proper implementation of law with check and balance.
 CONCLUSION

Study of jurisprudence consist of finding the rationale or we can say that the reasoning behind
such laws. In such study of jurisprudence, we go deeper and find out why is it that a particular
rule or a regulation or a particular mode or manner of behavior has taken the status of law what
distinguishes a legal rule from a moral rule or etiquettes, manner, a social rule custom; what
makes a rule enduring or lasting; why people obey or disobey laws etc. we thus reflect on the
rules already known and not look for new rules. Thus, when we speak of law we speak of the
philosophical aspect of law. When we speak of the law, we are referring to a definite or a
concentrate law laid down by a specific legal system, say the English or the Indian legal system.

From the whole discussion we get to understand that Jurisprudence is very essential part of law
or we can say law is a part of jurisprudence one cannot imagine law without Jurisprudence. We
can say this because Jurisprudence is the base of every law which exist in the society.
Jurisprudence is that theory which explains the meaning of the existence of any law and also
becomes the language of law. We got to know that the meaning of jurisprudence has been
interpreted by different jurists and every interpretation is different from each other.

Now we can conclude that jurisprudence is although not clear in its meaning but we can
understand it works as the language of law, it also acts as the grammar of law and has different
meaning at different place. It proves to be very essential part of law which is needed to be
studied to understand any law in better way.
 BIBLIOGRAPHY

BOOKS:

 Dr. N. V. Paranjape, Studies in Jurisprudence and Legal Theory 3 7 8 (Central

Law Agency, Allahabad, 8th edn. 2016)
 Dr, b. N. Mani Tripathi, Jurisprudence the Legal Theory 11 (Allahabad Law
Agency, Faridabad, 19th edn.)
 P. J. Fitzgerald, Salmond on Jurisprudence 1 2 3 4 5 (Universal Law Publishing,
New Delhi, 12th edn.)
 V. D. Mahajan, Jurisprudence and Legal Theory 11 12 13 (Eastern Book
Company, 5th edn.)

WEBSITES:

 https://www.researchgate.net/publication/333117791_need_to_study_jurisprudence

 https://www.legalbites.in/jurisprudence-meaning-importance-and-indian-perspective/

 https://lawbhoomi.com/is-jurisprudence-relevant-in-contemporary-times/

 http://www.livelaw.in/jurisprudence-relevance