JURISPRUDENCE

Meaning, Nature, Scope and utility of Jurisprudence

Meaning

The word „jurisprudence‟ is made from the Latin word. ‘Juris’ in Latin
signifies „legal‟ and ‘prudentia’ means skill or knowledge.

The term Jurisprudence has at different times been used in different

senses. Sometimes as philosophy of law and sometimes as the science of law.
Presently, Jurisprudence is aptly termed as the “Legal Theory”.

The study of concepts of law is called Jurisprudence.

AUSTIN - According to him, Jurisprudence is considered with Positive Law

i.e., Law as it is (Existing Law).

The term „positive law‟ means law laid down by a political superior for
commanding obedience from his subjects. Thus, the Law is the command of the
sovereign.

BENTHAM – Jurisprudence is an analysis of formal structure of law and its

concept.

THOMAS HOLLAND - He considered Jurisprudence as „the formal science

of positive law”. That is it deals with the various relations which are regulated
by legal rules.

NATURE & SCOPE

Jurisprudence is often called both art and science. But to call it or prove it
to be science is more appropriate. The reason for this is that, in science, we
draw conclusions after doing a systematic and logical study by applying new
methods and techniques. Similarly, jurisprudence is concerned with the
fundamental principles of law, and thus calling it science is a bit more suitable.

It not only analysis the already defined laws but also analysis and sets the
foundation for new rules.
 Legal theory is concerned with law as it exists and functions in society
and the way in which law is created and enforced, the influence of social
opinion and the law where jurisprudence meets other fields, such as psychology,
politics, economics etc.

1. Jurisprudence is the theoretical foundation of the law, and without it; it is

not possible to enforce the law in effect.
2. It is the product of Jurists „and Philosophers‟ thought. It sets the tone for
legislative change. It helps in overall growth of society.
3. Researchers in Jurisprudence contribute to the development of society.
4. It helps in and makes easy the study of the rational reasoning (actual
meaning) of the law.
5. It has educational value. It helps in the logical analysis of the legal
concepts
6. Holland observed that jurisprudence throws light on the basic ideas and
the fundamental principles of law in society. This is the reason it is
considered as “the eye of law.”

Kinds of Jurisprudence

1. Systematic – which deals with the contents of an actual legal system, as

existing at any time, whether past or present.
2. 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.
3. Science Of Legislation: purpose of which is to set forth the law, as it
ought to be. It deals with its ideal future of the legal system.

UTILITY OF JURISPRUDENCE

1. Under the field of the study of jurisprudence, there is primarily analysis

and the process for building and clarifying the fundamental principles of
law. Thus, it throws light on the basic ideas of law in a given society.
2. The study of jurisprudence helps students, interns, and all practicing
advocates in developing the correct understanding about law and its
division.
3. It is considered as a secondary or subsidiary subject but has a high value
in educational institutions. Jurisprudence is an essential subject for the
study of law. The logical analysis by jurists of legal concepts and theories
broadens the outlook of advocates and sharpens their sensible technique
to look a case effectively.
 4. Jurisprudence teaches proper legal terminology and phrases.
5. Jurisprudence helps the judges and lawyers in ascertaining the true
meaning of the laws passed by the legislators by providing the rules of
interpretation.
6. It helps to understand the importance of laws which are passed by
lawmakers.
7. Therefore, the study of jurisprudence should deal with the improvement
of law in the context of prevailing socioeconomic and political
philosophies of time, place and circumstances.
8. It helps in knowing the basis of assumptions and treatment upon which
the subject rests.
9. Jurisprudence and its relationship with other social sciences provide a
broad spectrum of understanding how law can be related and linked to
other disciplines.
10. Jurisprudence also discusses political and legal rights, and how the
system can strive to balance them.
11. To study foreign law: It enable a lawyer to study foreign law because the
fundamental principles are generally common to all systems of law

[Law as to understand is a notional pattern of conduct to which action do or

ought to conform. The concept of law largely depends on the social values,
accepted norms and behavioural patterns of a particular society at a given time.]

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Philosophical school of law

Philosophical School or the moral school of jurisprudence has many names –

one of the most common ones being the Natural Law or Divine Law of
Jurisprudence due to the prominent Jurists of this school advocating the sources
of law as God, Nature or Reason.

According to this school, the law is universal and eternal in nature with a
rational and reasonable approach which is a direct as well as logical progression
from human morals. This school explores law in the aspect of what it aspires to
be and intends to accomplish – moral, reasonable, and just.
 Natural Law theories have been classified into four parts on the basis of their
era:

I. Ancient period
II. Medieval period
III. Renaissance period
IV. Modern period

I. ANCIENT PERIOD – This period highlights the contributions of

famous philosophers who regarded law closely to the concepts of virtue and
morals.

These philosophers are further divided into Greek philosophers and

Roman philosophers who have set the stone for the philosophical school during
the 5th century BC. At first Greek thinkers laid the basis for natural law. The
Greek thinkers developed the idea of natural law and developed its essential
features.

Heraclitus (530- 470 B.C): - He laid the basis of natural law. He found it in the
rhythm of events. This he termed „destiny‟, „order‟, and „reason‟ of the world.
Nature is not just substance, but a relation, an order of things.

Socrates (470-399 B.C): -

 Famous Greek philosopher who advocated that virtue and ethics is

knowledge. And anything not virtuous is still to be applied in the case of
the law.
 According to him, a man has his own „human insight‟, which makes him
judge whether some act is right or wrong. It is this insight, according to
him, by which a man is able to remember the ethical values in him.
 Law, according to Socrates, is a mere product of correct reasoning.
 He divided the concept of Justice into two parts – natural justice, which is
uniform and universal according to him and legal justice, which is man-
made laws that differed from place to place.
 However, he did support man-made law or positive law, but argues that it
should not be blindly followed – rather, it should be critically evaluated
by men using their „human insight‟.
 Plato (427-347 B.C):

 Another famous Greek philosopher who supported Socrates‟ philosophy

of law
 He perceived people to be living in an orderly universe where everything
happens for a reason.
 He says God gave to all men in equal measure a sense of justice and of
ethical reference so that in the struggle

Aristotle (384-322 B.C):

 Aristotle is the Greek philosopher and disciple of Plato who gave the
Philosophical School a proper ground by defining the concept of natural
law; thus, is regarded as the founding father of this school.
 Since man by his reason can discover the eternal principle of justice. The
law discovered by his reasoning is called „natural justice‟.
 He supported Plato‟s theory and added that law is either ;
 particular, that is, differs from state to state and is codified, or
 general which is unwritten and stems from virtue, ethics and
religious values.

Roman - Natural Law exercised a very constructive influence on the Roman

law through division of Roman law into three distinct divisions namely „Jus
civile‟, „Jusgentium‟ and „Jus naturale‟.

Stoics : Later in Rome, Stoics built up on the theory of Aristotle but

transformed into an ethical theory.

According to him, reason which governs the entire universe and man
being a part of the Universal is also governed by reason. It is the moral duty of
man to subject himself to the „law of nature‟. He further argued that it is a
man‟s duty to obey the law of nature.

Cicero: is another Roman philosopher who advocated Reason as the source of

law.

II. MEDIEVAL PERIOD - This period is mainly highlighted by the

rise of religious philosophies which was also extended into Jurisprudence by
these legal philosophers:
 St. Augustine - He believed natural laws to be derived from God as a direct
influence of God on the human mind and argued it as a part of the natural
foundation of Christianity. Therefore, according to him, the source of law is
God who influences law by logic and order.

St. Thomas Aquinas - His theories were very similar to that of Aristotle‟s but
with a high focus on Christianity. He defined natural law as the obedience of
reason for the common good. According to him, a man should follow the laws
set in nature by God, which he can find by applying reason and studying
religious scriptures.

He primarily classified law into four forms:

 Law of God or Eternal law (revealed through fate)

 Law of nature (revealed through nature)
 Human or man-made law (derived from Reason)
 Law of Divine or scriptures (derived from religious scriptures)

III. RENAISSANCE PERIOD - This period highlights the revival of this

school as the legal philosophers and scholars of this time restudy the Greek
and Roman philosopher‟s theories regarding the law. Most of the
philosophers under this period focus on the origin of the State and gave their
theories that formed what we know as the „Social Contract Theory‟. These
philosophers included:

Hugo Grotius - He was the first one to detach law from religion. He held law
was not merely based on „reason‟ but on the right reason i.e. self supporting
reason of man. He treated natural law to be based on the nature of man and his
urge to live in a peaceful society. He considered divine law as the grandmother,
natural law as the parent and the positive law as the child.

He gave five chief principles that defined natural law:

 To abstain from things that belong to another individual;

 To restore any goods of another we may have with us;
 To fulfil promises and pacts made to others;
 To repay damages to others caused by our fault;
 To punish those who deserve it.
 Thomas Hobbes - He is one of the most famous philosophers of Social
Contract Theory and he believed in the existence of natural rights.

According to Hobbes, men before there was any State, behaved like wild
animals. This caused men to be insecure about their safety and natural rights.
Thus, they came together and consented to give all their natural rights to a Ruler
through a social contract. He painted the Ruler as the ultimate sovereign
symbolized by Leviathan (a sea monster) who dominates all. He advocated that
the State stood for stability and security of the natural rights of the subjects
which they protected and preserved through law and order established by the
State.

His theory of natural law is based on the natural right of self-preservation

of person and property.

John Locke - According to him, the nature of men before the formation of the
State was calm, free and peaceful. The only reason people came together to
form the State was to protect three principles of natural rights; namely the right
to life, property and liberty. The State, in Locke‟s theory, was in a bilateral
contract created as a trust which dissolves if they fail to person their function.
Thus, making the obligation of the subjects towards the State limited and
conditional.

Rousseau- Rousseau believed that the gradual increase of population brought

on the insecurity of scarcity which led to the conflict of interest between an
individual‟s will and the will of the community.

According to Rousseau, to overcome this conflict, men formed a

community and gave up their natural rights to the State for the preservation of
the rights and live according to the „general will‟. His theory is considered to be
the forerunner of the modern jurisprudence thought and legal theory.

IV. MODERN PERIOD - As the nineteenth century arrived around, the

advocacy for natural law declined as the focus shifted more and more
towards other aspects of the law. With other schools like Analytical and
Historical, Jurists started leaning more towards them due to their practicality
and the advocacy of philosophical school slowly decreased.
 However, by the time the twentieth century arrived, the belief in
philosophical school also came back. The new approach was concerned with the
practical problems of the society and not the abstract ideas

Stammler - described the law as “species of will and self-authoritative.” For

him, the greatest expression of the social existence of man was a just law aimed
at preserving individual freedom. According to him, the two basic principles
needed for a just legislation were:

(1) Principles of respect, and

(2) Principle of community participation.

The law of nature, he believes, implies „just law „which harmonizes the aims of
society. The aim of law is not to safeguard one‟s will, but to unify everyone‟s
objectives.

Prof. Rawls – Rawls propounded the two basic principles of justice, namely

(i) equality of right to securing generalized wants including basic

liberties, opportunities, power and minimum means of subsistence, and

(ii) social and economic inequalities should be arranged so as to ensure

maximum benefit to the community as a whole.

Lon Fuller: Fuller is one of the leading supporters of the modern natural law
philosophy. He wrote 'The Law in Quest of Itself' and 'The Morality of Law'. He
distinguished 'morality as it is' ('morality of duty') from 'morality as it ought to
be' ('morality of aspiration'). He believed that the purpose of law is to subject
human conduct to the control and guidance of legal rules.

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