CHAPTER ONE

NATURE AND SCOPE OF

JURISPRUDENCE

What is Jurisprudence?
T IS DIFFICULT. to give a universal and uniform definition of juris-
I prudence. Every jurist has his own notion of the subject-matter and
the proper limits of jurisprudence depend upon his ideology and the
nature of society. Moreover, the growth and development of law in
different, countries has been under different social and political condi-
tions. The words used for law in different countries convey different
meanings. The words of one language do not have synonyms in other
languages conveying the same meaning. The word "jurisprudence" is
not generally used in other languages in the English sense. In French,
it refers to something like "case law". The evolution of society is of a
dynamic nature and hence the difficulty in accepting a definition by
all. New problems and new issues demand new solutions and new in-
terpretations under changed circumstances. However, scientific inven-
tions have brought the people of the world closer to each other which
helps the universalisation of ideas and thoughts and the development
of a common terminology.
The study of jurisprudence started with the Romans. The Latin
equivalent of "jurisprudence" is jurisprudentia which means either
"knowledge of law" or "skill in law". Ulpian defines jurisprudence
as "the knowledge of things divine and human, the science of the 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 defi-
nitions given by the Roman jurists are vague and inadequate but they
put forth the idea of a legal science independent of the actual institu-
tions of a particular society.
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 until the time of Bentham and his
 JURISPRUDENCE AND LEGAL THEORY [CHAP.

disciple Austin in the early part of the 19th century that the word began
to acquire a technical significance among English lawyers. Bentham
distinguished between examination of the law as it is and as it ought to
be ('expositorial' and 'censorial jurisprudence). Austin occupied him-
self with "expository" jurisprudence and his work consisted mainly of
a fornal analysis of the structure of English Law. Analytical exposition
of the type which Bentham pioneered and Austin developed, has dom-
inated English legal thought up to the modern times. The word juris-
prudence has come to mean in England almost exclusively an analysis
of the formal structure of law and its concepts.
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. To quote Buckland:
"The analysis of legal concepts is what jurisprudence meant for the
student in the days of my youth. In fact it meant Austin. He was a
religion; today he seems to be regarded rather as a disease." Julius
Stone describes jurisprudence as "the lawyer's extraversion. It is the
lawyer's examination of the precepts, ideals and techniques of the law
in the light derived from present knowledge in disciplines other than
the law".' Lord Radcliffe writes, "You will not mistake my meaning or
suppose that I deprecate one of the great humane studies if I say that
we cannot learn law by learning law. If it is to be anything more than
just a technique, it is to be so much more than itself: a part of history,
a part of economics and sociology, a part of ethics and philosophy of
life."'
A us tin
The view of Austin is that the science of jurisprudence is concerned
with positive law, with "laws strictly so-called". It has nothing to do
with the goodness or badness of law. Austin divided the subject into
general and particular jurisprudence. General jurisprudence includes
such subjects or ends of law as are common to all systems while par-
ticular jurisprudence is confined only to the study of any actual system
of law or any portion of it. To quote Austin, "1 mean then by general
j urisprudence the science concerned with the exposition of the prin-
ciples, notions and distinctions which are common to all systems of
law, understanding by system of law the ampler and maturer systems
which, by reason of their amplitude and maturity, are pre-eminently
pregnant with instructions." Again, "the proper subject of general or
universal jurisprudence is a description of such subjects and ends of
laws as are common to all systems and those resemblances between

Lec,'al Stjde,,, and Lawyers' Reasonings, p. 16.

2
The Law and Its Compass, pp. 92-93.
11 NATURE AND SCOPE OF JURISPRUDENCE

different systems which are bottomed in the common nature of men or

correspond to the resembling points in the several portions". General
jurisprudence is an attempt to expound the fundamental principles
and broadest generalisations of two or more systems. It is the province
of general, pure or abstract jurisprudence to analyse and systematise
the essential elements underlying the indefinite variety of legal rules
without special reference to tle institution of any particular country.
Particular jurisprudence is the science of particular law. It is the science
of any system of positive law actually obtaining in a specifically deter-
mined political society. To quote Austin, "Particular jurisprudence is
the science of any actual system of law or any portion of it. The only
practical jurisprudence is particular."
General and particular jurisprudence differ from each other not in
essence but in their scope. The field of general jurisprudence is a wider
one. It takes its data from the systems of more than one State while
particular jurisprudence takes its data from a particular system of law.
Its principles are coloured and shaped by the concrete details of a par-
ticular system. However, in both cases, the subject of jurisprudence is
positive law.
The relation of general and particular jurisprudence may be shown
by an example. Possession is one of the fundamental legal concepts
recognised by all systems of law. The function of jurisprudence is to
explain its characteristics, its legal value, mode of its acquisition and
extinction. General jurisprudence will analyse it without reference to
any particular legal system, but particular jurisprudence will do the
same thing but with r6ference to some particular system of law.
Austin's classification of jurisprudence into general and particular
jurisprudence has been criticised by Salmond, Holland and other ju-
rists. The main contention in rejecting the classification uf Austin is
based upon its impracticability. Salmond points out that the error in
Austin's idea of general jurisprudence lies in the fact that he assumes
that unless a legal principle is common to many legal systems, it can-
not be dealt with in general jurisprudence. There may be many schools
of jurisprudence but there are not different kinds of jurisprudence.
Jurisprudence is one integral social science. The distinction between
general and particular jurisprudence is not proper. It is not correct
to use such terms as Hindu jurisprudence, Roman jurisprudence or
English jurisprudence. Actually what we are dealing with are not dif-
ferent kinds of jurisprudence but different systems of law. It is more
appropriate to use the term jurisprudence alone without any qualify-
ing epithet. Jurisprudence is a social science which deals with social
 JURISPRUDENCE AND LEGAL THEORY [CHAP.

institutions governed by law. It studies them from the point of view of

their legal significance.
Holland also has criticised the classification of Austin. Referring to
the particular jurisprudence of Austin, Holland points out that it is
only the material which is particular and not the science itself. The
study of a particular legal system is not a science. Giving the exam-
ple of the geology of England, Holland points out that, "A science is
a system of generalisatons which, though they may be derived from
observation over a limited area, will hold good everywhere assum-
ing the subject-matter of the science to possess everywhere the same
characteristics." Again, "principles of geology elabrated from the ob-
servaLo rl of England alone hold good all over the globe insofar as the
same substances and forces are everywhere present and the principles
of jurisprudence, if arrived at entirely from English data, would be
true if applied to the particu law of any other community of human
beings, assuming them to resemble essentials to the human beings
who inhabited England".
The criticism of Holland is based on the assumpton that law has the
same characteristics all over the world but that is oppsed to human
experience. Maitland points out that "races and nations do not travel
by the same roads and at the same rate". Lord Bryce writes, "The law
of every country is the outcome and result of the economic and social
conditions of that country as well as the expression of its intellectual
capacity for dealing with these conditions." Buckland observes, "Law
is not a mechanical structure like geological deposits; it is a growth
and its true analogy is that of biology." Savigny says, "Law grows
with the growth and strengthens with the strength of people and its
standard of excellence will generally be found at any given period to
be in complete harmony with the prevailing ideas of the best class of
citizens." Puchta writes, "The progress in the formation of law accord-
ingly keeps pace with the progress in the knowledge of the people of
the facts which they observe and hence it is that law has its provincial-
isms no less marked thati language."
Dias and Hughes point out serious ambiguities in Austin's defirion
of general jurisprudence. Austin gives no criterion for amplitudL and
maturity. He also does not explain whether the commo principles are
those which are in fact found to be common or those which for some
reason are treated as being necessarily common. There is no demon-
stration that the notions which he put into his book are in truth shared
by "ampler and natural sys t em." whatever they may be. When we look
at the substance of his book, we find that it is drawn mainly from Eng-
11 NATURE AND SCOPE OF JURISPRUDENCE

lish Law with occasional superficial references to Roman Law. His ju-
risprudence is essentially "particular", at the most comparative.
Buckland points out that Austin and others who profess "general
jurisprudence" do not adhere to it in practice.

Holland
Sir Thomas Erskine Holland defines jurisprudence as "the formal sci-
ence of positive law". It is a 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 po-
litical authority". Holland follows the definition of Austin but he adds
the term formal which means "that which concerns only the form and
not its essence". A formal science is one which describes only the form
or the external side of the subject and not its internal contents. Juris-
prudence is not concerned with the actual material contents of law but
with its fundamental conceptions. Holland came to the conclusion that
jurisprudence is not a material science but merely a formal science. To
quote him, "The assertion that jurisprudence is a general science may
perhaps be made clearer by an example. If any individual should ac-
cumulate a knowledge of every European system of law, holding each
part from the rest in the chambers of his mind, his achievements would
be best described as an accurate acquaintance with the legal systems
of Europe. If each of these systems were entirely unlike the rest except
when the laws had been transferred in the course of history from one
to the other, such a distinguished jurist could do no more than endeav-
our to hold fast and to avoid confusing the heterogeneous information
of which he had become possessed. Suppose, however, as is the case,
that the laws of every country contain a common element; that they
have been constructed in order to effect similar objects, and involve the
assumption of similar moral phenomena as everywhere existing; then
such a person might proceed to frame out of his accumulated materials
a scheme of the purposes, methods and ideas common to every sys-
tem of law. Such a scheme would be a formal science of law, present-
ing many analogies to grammar, the science of those ideas of relation
which, in greater or less perfection, and often in the most dissimilar
ways, are expressed in all the languages of mankind. Just as similari-
ties and differences in the growth of different languages are collected
and arranged by comparative philology and the facts thus collected
are the foundations of abstract grammar, so comparative law collects
and tabulates the legal institutions of various countries and from the
results thus prepared, the abstract science of jurisprudence is enabled
to set forth an orderly view of the ideas and methods which have been
variously rchscd in actual systems. It is, for instance, the office of
 JURISPRUDENCE AND LEGAL THEORY [CHAP.

comparative law to ascertain what have been at different times and

places the periods of prescription or the requisites of a good marriage.
It is for jurisprudence to elucidate the meaning of prescription in its
relation to ownership and to actions; or to explain the legal aspects of
marriage and its connection with property and the family. We are not
indeed to suppose that jurisprudence is impossible unless it is preced -
ed by comparative law. A system of jurisprudence might conceivably
be constructed from the observation of one system of law only at one
epoch of its growth". Again, "jurisprudence is therefore not the mate-
rial science of those portions of the law which various nations have in
common, but the formal science of those relation of mankind which
are generally recognised as having legal consequences". Jurisprudence
"deals rather with the various relations which are regulated by legal
rules than with the rules which themselves regulate these relations".
Many eminent jurists have criticised the view of Holland that juris-
prudence is a formal science of positive law. According to Gray: "Ju-
risprudence is, in truth, no more a formal science than physiology. As
bones and muscles and nerves are the subject-matter of physiology,
so the acts and forbearances of men and the events which happen to
them are the subject-matter of jurisprudence and physiology could as
well dispense with the former as jurisprudence with the latter." Again,
"the real relation of jurisprudence to law depends upon not what law
is treated but how law is treated. A treatise on jurisprudence may go
into the minutest particulars or be confined to the most general doc-
trines and in either case deserves its name; what is essential to it is
that it should be an orderly, scientific treatise in which the subjects are
duly classified and subordinated". Dr. Jenks asks: "Can jurisprudence
be truly said to be a purely formal science? Not, it is submitted, un-
less the word "formal" be used in a strained and artificial sense. It is
true that a jurist can only recognize a law by its form; for it is the form
which, as has been said, causes the manifold matter of the phenomena
to be perceived. But the jurist, having got the form as it were, on the
operating table, has to dissect it and ascertain its meaning. Jurispru-
dence is concerned with means rather than with ends, though some
of its means are ends in themselves. But to say that jurisprudence is
concerned only with forms is to degrade it from the rank of a science
to that of a craft."
Professor Platt also criticises the definition of Holland in these
words: "Without resorting to acts and forbearances and to the state of
facts under which they are commanded law cannot be differentiated at
all; not so much as the bare framework of its chief departments can be
erected. An attempt to construct quite apart from all the matter of law
even the most general conception of ownership or contract would be
IJ NATURE AND SCOPE OF JURISPRUDENCE

like trying to make bricks not merely without straw but without clay
as well."
Holland's definition of jurisprudence appears to be a good one.
There is no reasonable reason to criticise it. The criticism of Gray is
not without doubt. In his view a scientific treatise on any department
of the law may be described as jurisprudence. Such usage is by no
means uncommon, but if we understand by jurisprudence "the sci-
ence of law in 'general", we must admit it to be a misapplication of
this ponderous quadrisyllable. Dr. Jenks seems to confuse a formal sci-
ence with a "formalistic" manner of dealing with the science, lithe
jurist attaches undue importance to mere forms, takes positive view as
the highest law and fails to penetrate to the social forces which would
mould the law, his treatment of his subject would be formalistic and
unworthy of a great social science. Jurisprudence, as a science, is con-
cerned only with the form which conditions social life, with human
relations that have grown up in society and to which society attaches
legal significance. In this sense, jurisprudence is a formal science. Be-
ing the systematised and properly coordinated knowledge of a subject
of intellectual inquiry, jurisprudence is a science. The subject of inquiry
is the mutual relations of men living together in an organised society.
The term "positive law" confines the inquiry to those social relations
which are regulated by the rules imposed by the State and enforced
by its courts. The prefix "formal" indicates that the science deals only
with the purposes, methods and ideas at the basis of the legal system
as distinct from a "material science" which deals with the concrete de-
tails of law.
Salmond
Salmond defines jurisprudence as "the science of law". By law he
means the law of the land or civil law. In that sense, jurisprudence
is of three kinds. Expository or systematic jurisprudence deals with
the contents of an actual legal system as existing at any time, whether
in the past or in the present. Legal history is concerned with a legal
system in its process of historical development. The purpose of the sci-
ence of legislation is to set forth law as it ought to be. It deals with the
ideal of the legal system and the purpose for which it exists.
Salmond makes a distinction between the use of the term jurispru-
dence in the generic and specific sense. Generic jurisprudence includes
the entire body of legal-doctrines whereas specific jurisprudence deals
with a particular department of those doctrines. In the latter sense, it
may be called theoretical or general jurisprudence. Salmond says that
his book is concerned only with this jurisprudence which he defines as
"the science of the first principles of the civil law".
 JURISPRUDENCE AND LEGAL THEORY [CHAP.

Taking the word jurisprudence in its "specific" sense, Salmond has

made a division of the subject into three branches, viz., analytical, his-
torical and ethical jurisprudence. For a comprehensive treatment of the
subject, all the three branches must be studied. About his own book,
Salmond says that it is "primarily and essentially a book on analytical
jurisprudence. In this respect, it endeavours to follow the main current
of English legal philosophy rather than that which prevails upon the
continent of Europe, and which, to a large extent, is primarily ethical
in its scope and method". He further adds that he has not excluded the
historical and ethical aspect altogether because by their total exclusion,
it is not possible to give a complete analytical picture of law.
It is submitted that although Salmond tried to demarcate the bound-
ary of the subject very clearly, he failed to give an accurate and scien-
tific definition. On the basis of his definition, the same word may be
used to mean things quite different in nature and many vague notions
will enter into the domain of the subject.
Keeton
Keeton considers jurisprudence as "the study and systematic arrange-
ment of the general principles of law". Jurisprudence considers the
elements necessary for the formation of a valid contract 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 abnor-
mal status differ from ordinary persons. Jurisprudence deals with the
distinction between public and private laws and considers the contents
of the principal departments of law.'
Pound
Dean Roscoe Pound defines jurisprudence as "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 adminis-
tration 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 endeavours to ascertain the funda-
mental 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". According to C. K. Allen, "jurisprudence is
the scientific synthesis of all the essential principles of law". The view

Elementary Principles of Jurisprudence, pp. 1-2.

 NATURE AND SCOPE OF JURISPRUDENCE

of G.W. Paton is that "jurisprudence is a particular method of study,

not of law of one country, but of the general notion of law itself. his
a study relating to law". Clark writes that jurisprudence is the science
of law in general. It does not confine itself to any particular system of
law but applies to all the systems of law or to most of them. It gives the
general ideas, conception and fundamental principles on which all or
most of the systems of laws of the world are based.
The view of Julius Stone is that jurisprudence is the lawyer's ex-
tra version. It is the lawyer's examination of the precepts, ideals and
techniques of the law in the light derived from present knowledge in
disciplines other than the law.
Dias and Hughes describe jurisprudence as "any thought or writ-
ing about law, other than a technical exposition of a branch of the law
itself. So, if X writes a book about the economic effect on the families
of convicted prisoners on their convictions, this could be called a con-
tribution to jurisprudence. If 1' writes a book on theories of justice in
the ancient world, this too would be a contribution to jurisprudence.
If 1, describes how the development of English case law is governed
by the psychology of the judges, this would also fall within the scope
of our subject.
Sometimes qualifying adjectives are tacked on to the noun, so that
X's book might be called a study in 'Economic Jurisprudence', T's book
an example of 'Philosophical Jurisprudence', and Z's book one on 'Psy-
chological Jurisprudence'; but, with or without the qualifying adjec-
tives, it would be within the modern sense of the word to describe all
three books as being works of jurisprudence".'
Jurisprudence is a study of the fundamental legal principles. At the
present juncture, the term jurisprudence may tentatively be described
as any thought or writing about law and its relation to other disciplines
such as philosophy, psychology, economics, anthropology and many
others. It is to be determined from the expositions of law itself. Modern
jurisprudence trenches on the fields of social sciences and philosophy.
It digs into the historical past and attempts to create the symmetry
of a garden out of the luxuriant chaos'of conflicting legal systems. It
icIudes whatever law thinks, says and does in any field of human
society. It includes political, social, economic and cultural ideas.

Scope of Jurisprudence
There is no unanimity of opinion regarding the scope of jurisprudence.
Different authorities attribute different meanings and varying premis-
es to law and that causes difference of opinions with regard to the ex-

Jurisprudence, pp. 3-4.

10 JURISPRUDENCE AND LEGAL THEORY [CHAP.

act 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 au-
thority within the realm. Thus, the scope of jurisprudence was limited
to the study of the concepts of positive law and ethics and theology fall
outside the province of jdrisprudence.
There is a tendency to widen the scope of jurisprudence and at
present we include 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. P.B. Mukherji writes that new jurisprudence
is "both an intellectual and idealistic abstraction as well as behaviour-
istic study of man in society. It includes political, social, economic and
cultural ideas. It covers the study of man in relation to Slate and soci-
ety".
Thurman W. Arnold defines jurisprudence "as the shining but un-
fulfilled dream of a world governed by reason. For some, it lies buried
in a system, the details of which they do not know. For some, familiar
with the details of the system, it lies in the depth of an unreal literature.
For others, familiar with its literature, it lies in the hope of a future en-
lightenment. For all, it is just around the corner".
The view of Lord Radcliffe is that jurisprudence is a part of history,
a part of economics and sociology, a part of ethics and a philosophy
of life.' Karl Llewellyn observes: "Jurisprudence is as big as law—and
bigger".'

Approach to Study of Jurisprudence

The traditional classification of approaches into analytical, historical,
ethical and sociological has been rejected. The new approaches are the
empirical and a priori approaches. The former proceeds from facts to
generalisations and the latter starts with a generalisation in the light of
which facts are examined. An a priori generalisation must have been
constructed on an empirical basis and an empirical investigation is of-
ten greatly facilitated by a priori concept as a starting point. Thus, a
constant use is made of both the approaches. The particular basis of
approach derives its material exclusively from one system of Law. The

The Law and Its Compass, pp. 92-93.

Jurisprudence, p. 372.
 NATURE AND SCOPE OF JURISPRUDENCE II

comparative basis of approach derives its material from more than one
system. The general basis presupposes certain notions common to all
or a large number of systems. Jurisprudence is regarded primarily as
a discipline in how to think for oneself and not something to know. Its
value lies in the analysis from which conclusions may be drawn and
not the formulation of any final conclusion.

Significance and Utility of Jurisprudence

It is sometimes said that jurisprudence has no practical utility as it is
an abstract and theoretical subject. Salmond does not agree with this
view. According to him, there is its own intrinsic irrterest like other
subjects of serious scholarship. Just as a mathematician investigates
the number theory not with the aim of seeing his findings put to practi-
cal use but by reason of the fascination which it holds for him, likewise
the writer on jurisprudence is impelled to his subject by its intrinsic
interest. It is as natural to speculate on the nature of law as on the na-
ture of light. Researches in jurisprudence may have repercussions on
the whole of legal, political and social thought.
Jurisprudence also has practical value. Progress in science and
mathematics has been largely due to increasing generalisation which
has unified branches of study previously distinct, simplified the task
of both scientist and mathematician and enabled them to solve by one
technique a whole variety of different problems. Generality can also
mean improvement in law. The 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 is 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 also has an educational value. The logical analysis
of legal concepts sharpens the logical technique of the lawyer. The
study of jurisprudence can also help to combat the lawyer's occupa-
tional view of formalism which leads to excessive concentration on
legal rules for their own sake and disregard of the social function of
law. Law is to be put in its proper context by considering the needs
of society and by taking note of the advances in related and relevant
disciplines. A proper grasp of the law of contract may require some
understanding of economics and economic theory, a proper grasp of
criminal law, some knowledge of criminology and psychiatry and a
proper grasp of law in general and some acquaintance with sociology.
jurisprudence can tcach t he people to look, if not forward, at ieastsidr'-
ways and around them and realise that answers to new legal problems
 JURISPRUDENCE AND LEGAL THEORY [CHAP.
12

must be found by a consideration of the present social needs and not

in the wisdom of the past.
Jurisprudence is often said to be "the eye of law". It is the grammar
of law. It throws light on the basic ideas and the fundamental princi-
ples of law. To quote Holland: "The ever renewed complexity of hu-
man relations calls for an increasing complexity of legal details, till a
merely empirical knowledge of law becomes impossible."'
By understanding the nature of law, its concepts and distinctions,
a lawyer can find out the actual rules of law. It also helps in knowing
the language, grammar, the basis of treatment and assumptions 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 facul-
ties of its students so that they can detect fallacies and use accurate
legal terminology and expression. In his practical work, a lawyer has
to tackle new and difficult problems which he can handle through his
knowledge of jurisprudence which trains his mind into legal channels
of thought. For example, a question may arise whether a certain per-
son is entitled to certain property by virtue of his adverse possession
for more than the prescribed period of time. His knowledge of juris-
prudence will tell him what constitutes possession and that will help
him in tackling the problem before him.
A study of jurisprudence helps legislators by providing them a pre-
cise and unambiguous terminology. It relieves them of the botheration
of defining again and again in each Act certain expressions such as
right, duty, possession, ownership, liability, negligence etc.
The study of jurisprudence enlightens students and helps them in
adjusting themselves in society without causing injuries to the inter-
ests of other citizens. J.G. Phillimore observes: "Such is the exalted sci-
ence of jurisprudence, the knowledge of which sends the students into
civil life, full of luminous precepts and notions, applicable to every
exigency of human affairs."'
Jurisprudence helps the judges and the lawyers in ascertaining the
true meanings of the laws passed by the legislatures by providing the
rules of interpretation.
According to Dr. M.J. Sethna, the value of jurisprudence lies in ex-
an'iining the consequences of law and its administration on social we!-
fare and suggesting changes for the betterment of the superstructure
of laws.

Elements of Jurisprudence. P . I.
Principles and Maxims of Jurisprudcnce. p. 30.
 NATURE AND SCOPE OF JURISPRUDENCE 13
I]
The true purpose of the study of jurisprudence should not be con-
fined to the study of positive law alone but must include normative
study. That study should deal with the improvement of law in the con-
text of prevailing socio-economic and political philosophies of time,
place and circumstances. We agree with Pound's theory of the "func -
tional attitude", regarding law as "social engineering the utility 1
which should be tested every now and then by the jurists who should
improve its quality at every stage. The very vagueness of the concept
should serve as a challenge to legal thinkers in the country and that
should encourage all lawyers and jurists on an inquiry as to the sense
of societal values which should be nursed and nurtured in order to
build a proper legal system which will serve as an efficient vehicle of
socio-economic justice".
Prof. R.W.M. Dias writes that the study of jurisprudence is an oppor-
tunity 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.9
Relation of Jurisprudence with other Social Sciences
Different branches of knowledge are so inter-related that none of them
can be studied in isolation. All social sciences stand in close connec-
tion with one another. All of them study the actions of human beings
living in society, though from different angles and with different ends.
To quote Paton: "Moderi jurisprudence trenches on the fields of social
sciences and of philosophy; it digs into the historical past and attempts
to create the symmetry of a garden out of the luxuriant chaos of con-
flicting legal systems.""' Julius Stone defines jurisprudence in terms of
the knowledge of other sciences. To quote him: "Jurisprudence then
in the present hypothesis is the lawyer's extraversion. It is lawyer's
examination of the precepts, ideals and techniques of the law in the
light derived from present knowledge in disciplines other than law."
Justice McCardie emphasises the indispensability of the study of other
social sciences in these words: "There never was a time when the bar-
rister had greater need of a wide culture and of a full acquaintance
with history, with economics and with sociological science."
Dean Roscoe Pound of the Harvard Law School writes: "Jurispru-
dence, eihics, economics, politics and sociology are distinct enough
at the core, but shade out into each other. When we look at the core
or chiefly at the core, the analytical distinctions are sound enough.
Jurisprudence, Preface, p. vii.
A Text Book of Jurisprudence. p. I.
Province and Function of Law, p.25.
 14 JURISPRUDENCE AND LEGAL THEORY [CUAI'.

But we shall not understand even that core, and much less the de-
batable ground beyond, unless we are prepared to make continual
deep incursions from each into each of others. All the social sciences
must be co-workers and emphatically all must be co-workers with
jurisprudence." 12

Jurisprudence and Sociology

According tg Salmond, jurisprudence is the knowledge of law and in
that sense all law books can be considered as books on jurisprudence.
Among the phenomena studied by sociologists is law also and that
makes sociology intimately connected with jurisprudence. The attitude
of the sociologists towards law is different from that of a lawyer who,
in his professional capacity, is concerned with the rules which have to
be obeyed by the people. He is not interested in knowing how and to
what extent those rules actually govern the behaviour of the ordinary
citizen. A book on the law of torts or contract deals with the rules re-
lating to torts and contract but does not mention how often torts and
breaches of contract are committed. A lawyer is essentially interested
in those who frame the rules and execute them in a given society.
There is a separate branch of sociological jurisprudence based on
sociological theories and is essentially concerned with the influence
of law on society at large, particularly social welfare. The sociological
approach to legal problems is essentially different from that of a law-
yer. In the case of crime in society, its causes are to a very great extent
sociological and to understand their pros and cons, one must have a
knowledge of society.
Sociology has helped jurisprudence in its approach to the problem
of prison reforms and has suggested ways and means of preventing
social wrongs. Previously, judges and legislators came to their conclu-
sions regarding the effect of punishment by depending upon popular
opinion and personal impressions, but now they have at their disposal
precise data through the efforts of criminologists. Their decisions are
no more conjectural but are based on solid facts. There is a general
indignation against hanging as the extreme form of punishment and
hence its abolition in many countries of the world.
Behind all legal aspects, there is something social. The causes of
crimes are partly sociological and an understanding of sociology helps
the legislators in their task of prison reform and prevention of crime.
Topics like motives, aims and theories of punishment and the efficacy
of the various types of punishments are considerably helped by sociol-

Lan' and Morals, F' 115.

 11 NATURE AND SCOPE OF JURISPRUDENCE 15

ogy. The birth and growth of sociology has given a new orientation to
the study of jurisprudence.
There is a distinction between sociological jurisprudence and the
sociology of law. The latter differs mainly from the former in that "it
attempts to create a science of social life as a whole, and to cover a great
part of general sociology and political science". In the sociology of law,
the emphasis is on society but in sociological jurisprudence emphasis
is on the relation-between law and society. The sociology of law is a
branch of sociology dealing with law and legal institutions in the light
of sociological principles, aims and methods.
The view of Paton is that the relationship between law and social
interests can be usefully studied by jurisprudence for three reasons. It
enables us to understand better the evolution of law. For example, an
attempt to explain law on a purely logical basis ignoring social inter-
ests, is equivalent to interpreting a graph of the vibrations in a speed-
ing motor car without taking into account the surface of the road. Al-
though man's view of ethics and his social needs have changed over
the centuries, the element of human interest provides a greater sub-
stratum of identity than the logical structure of law. Although Ger-
man law adopted the subjective theory of contract and English Law
has preferred an objective approach, each has been forced to adapt its
theoretical basis to the needs of modern commerce. Although the view
of certain jurists like Kelsen that jurists should not discuss the question
of social int-rests, is attractive, yet such a study is essential to a lawyer
in order to enable him to properly understand the legal system.

Jurisprudence and Pschology

Psychology has been defined as the science of mind and behaviour. It
is recognised that no human science can be discussed properly with-
out a thorough knowledge of the human mind and hence its close con-
nection with jurisprudence. In the 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 mo-
tive for crime, a criminal personality, whether a criminal gets pleasure
in committing a crime, why there are more crimes in one society than
in another and what punishment should be given in any particular
case. In criminology, psychology plays an important part. It is the duty
of a lawyer to understand the criminal and the working of a criminal
mind.
nd.
It is the duty of a law-giver to understand man and not to pass judg-
ments and say what man ought to do or ought not to do. Psychology
16 JURISPRUDENCE AND LEGAL THEORY [CHM'.

can help the law-maker considerably in the approach to the problem of

not only making the law but also of executing it.
Jurisprudence is concerned with man's external conduct and not his
thoughts and mental processes, but penology has benefited from the
knowledge made available by psychological researches.
There is a school of jurists which holds the view that the sanction
behind all laws is a psychological one. Study of negligence, intention,
motive and other cognate mental conditions forms part of both juris-
prudence and psychology.

Jurisprudence and Ethics

Erics has been defined as the science of human conduct. It deals with
how man behaves and what should be the ideal human behaviour.
There is the ideal moral code and the positive moral code. The former
belongs to the province of natural law, while the latter deals with the
rules of positive or actual conduct. Ethics is concerned with good or
proper human conduct in the light of public opinion. Public opinion
varies from place to place, from time to time and from people to peo-
ple. Dr. Sethna writes: "It changes in the furnace of social evolution,
social culture and social development. What may be a rule of good
morality at one time may be a bad moral today."
Jurisprudence is related to positive morality insofar as law is con-
sidered as the instrument through which positive ethics tries to assert
itself. Positive morality is not dependent upon the good actions of a
good man only. It requires a strong coercive influence for maintaining
public conscience. There is a separate branch of ethical jurisprudence
which tries to examine the existing ethical opinions and standards of
conduct in terms of law and makes suggestions for necessary changes
so that it can properly depict the public conscience.
There are many ethical rules of conduct which are not considered
as crimes. The law ignores trifles. It may be immoral to tell a lie but
it is not a crime. Many acts are unethical but all unethical acts are not
necessarily criminal. One has to consider the problem of laws which
are considered undesirable by society. All that is prohibited by law
is not necessarily immoral. For enforcing certain ethical conduct, eth-
ics depends upon law through the instrumentality of the police, law
courts, judges and the system of courts and punishment. Legislation
must be based on ethical principles. It must not be divorced from hu-
man values. No law can be good law if it is not based on sound ethical
principles.
Ethics lays down the rules for human conduct based upon higher
and nobler values of life. Laws are meant for regulating human con-
I] NATURE AND SCOPE OF JURISPRUDENC E17

duct in the present and subordinating the requirements of the indi-

vidual to that of society at large. A jurist must be adept at the 'ciene
of ethics because he cannot criticise a law unless he examines that law
through the instrumentality of ethics.
Although Austin separated jurisprudence from ethics, jurispru-
dence must not be divorced from ethics altogether. The reason is that
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 or society". It shall be reduced to a "system of rather
arid formalism".
Dr. Sethna writes: "In the mirror of a community's laws are reflected
its culture, its ideology and its Miranda. On the high level of its laws is
perceived the glory of a country's civilisation—the depth of its positive
ethics. Hence the relationship between ethics and jurisprudence".

Jurisprudence and Economics

Economics studies man's efforts in satisfying his wants and producing
and distributing wealth. Economics is the science of wealth and juris-
prudence is the science of law. There is a close relationship between
the two. Very often, economic factors are responsible for crimes. Eco-
nomic problems arise from day to day and it is the duty of the law-
giver to tackle those problems. The aim of the economist is to improve
the standard of life of the people and also to develop their personality.
Jurisprudence teaches legislators how to make laws which will pro-
mote social and economic welfare. Both jurisprudence and economics
aim at the betterment f the lives of the people. There are laws relat-
ing to workmen's compensations factory legislations laws relating to
labour, insurance, maternity welfare, bonus, leave facilities and other
concessions given to workmen. There are laws for the benefit of the
agriculturistS such as the Zamindari Abolition Acts, Agricultural Debt-
ors Relief Acts, Acts preventing the fragmentation and sub-division of
agricultural holdings and regulation of agricultural labour. Both juris-
prudence and economics help each other in furthering the welfare of
society.
The intimate relation between economics and jurisprudence was
first emphasized by Karl Marx and the interpretation of Jural relations
in the light of economic factors is receiving serious attention at the
hands of jurists.

Jurisprudence and History

History studies past. events in their different perspectives. The relation
between jurisprudence and history is so close that there is a separate
 18 JURISPRUDENCE AND LEGAL THEORY [CHAP.

historical school of jurisprudence. History furnishes the background in

which a correct idea of jurisprudence can be realised.
Jurisprudence and Politics

Friedmann rightly points out that jurisprudence is linked at one end

with philosophy and at the other end with political theory, Politics
deals with the principles governing governmental organisation. In
a politically organised society, there exist regulations which may be
called laws and they lay down authoritatively what men may do and
what they may not do.

Synthetic Jurisprudence
The necessity for synthetic jurisprudence arises from the fact that it is
necessary to determine the truth from all aspects and from different
angles. Analytical jurisprudence, studied separately, does not give an-
ything more than an understanding of the legal concepts as they pre-
vail in various legal systems. This in itself is useful but we cannot stop
after merely analysing the problem. We will be in a better position if
we discuss the historical aspects of the legal ideas, problems or princi-
ples and go further in the light of philosophical norms and sociological
requirements. The historical jurists lay emphasis on historical jurispru-
dence and refuse to recognise the other branches of jurisprudence.
The first thing to be done in the study of jurisprudence is to un-
derstand the fundamental principles analytically. When that is done,
we should turn to its historical aspects. We must trace the origin of
the legal ideas and principles and sources of law. Our knowledge and
experience of the past would help us to be wise in the present and fore-
warned for the future. Philosophical jurisprudence enables us to trace
the philosophical basis of our laws and consider the legal principles in
the light of philosophical norms. A comparative study of law is useful
as a thorough study of the legal systems of other countries enables us
to improve the legal machinery of our own country. Sociological juris-
prudence helps us to study the fundamental principles of law.
Knowledge is a synthetic whole and cannot be divided into water-
tight compartments. It is our duty to amalgamate half-truths in order
to form the whole truth. Synthesis enables us to reconcile the conflict-
ing theories. In synthetic jurisprudence, we study the various topics
and theories from the point of view of synthesis. We analyse, we ret-
rospect, we compare, we philosophise, we socialise and we synthesise.
The fruits of synthesis are well-balanced and well-digested truths. The
advocates of synthetic jurisprudence consider jurisprudence as a study
of fundamental legal principles, including their historical, philosophi-
cal, scientific and sociological basis-arid indtdñg