Summer Semester June 2024
NAME: SAHIL SHAW (A90821521027)
Semester-6, Batch-2021-26, Course- BBA LLB(H)
Subject: Jurisprudence
Subject Code: Law 404
Topic: Meaning & Definition of Jurisprudence
Date-
Submitted to: Prof. Arindam Saha.
-
Definition of Jurisprudence
To understand the meaning and the definition of jurisprudence let us
first see its etymology. The word ‘jurisprudence’ is the English
derivation of the Latin word ‘jurisprudentia’. The translation of the
word means the study, knowledge or skill with regards to the law.
Over the course of history, there have been many forms of the definition
of jurisprudence. Romans liked to call it the observation of all things
human, combined with the knowledge of the just and unjust. Salmond
defines it as the science of the very first principles of civil law.
It is also known as the science or philosophy of positive law. There is
no one correct definition of jurisprudence, all of these are correct in
their own regard.
To understand the meaning and the definition of jurisprudence let us
first see its etymology. The word ‘jurisprudence’ is the English
derivation of the Latin word ‘jurisprudentia’. The translation of the
word means the study, knowledge or skill with regards to the law.
Over the course of history, there have been many forms of the
definition of jurisprudence. Romans liked to call it the observation of all
things human, combined with the knowledge of the just and unjust.
Salmond defines it as the science of the very first principles of civil law.
It is also known as the science or philosophy of positive law. There is no
one correct definition of jurisprudence; all of these are correct in their
own regard.
Definition of Jurisprudence:
It is very difficult to define term 'jurisprudence', However, several attempts
have been made in this context to define the term. Some of the definitions of the
term "jurisprudence" given by various eminent jurists as under -
Ulpian: Ulpian a Roman Jurist defines jurisprudence as " the observation of
things divine and human, the science of just and unjust." Same connotation as
DHARMA. Right and wrong
Austin: Austin was the first jurist to make jurisprudence as a science. He
defines 'jurisprudence' as "the philosophy of positive law." He opines that the
appropriate subject to jurisprudence is a positive law (jus positivum) i.e. law as it is
(existing law, written). In other words, jurisprudence is not a moral philosophy but
it is a scientific and systematic study of the existing, actual and positive law has
distinguished from natural, ideal or moral law.
Austin divides jurisprudence into two classes. Viz 'general Jurisprudence
and Particular Jurisprudence. According to him 'General Jurisprudence is the
philosophy of positive law. On the other hand 'particular jurisprudence is the
science of any such system of positive law as now actually obtains or once actually
obtained in a specifically determined nation or specifically determined nations.
Criticism:
Austin's definition criticised by Salmond and Holland and other Jurists on
the ground that it is not proper and appropriate to classify as the general
Jurisprudence and Particular Jurisprudence.
Holland:
An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, "
Jurisprudence is the formal science of positive law'" According to him
jurisprudence should only concern itself with the basic principles of concepts
underlying in any natural system of law. Formal science = Rules of External
human conduct enforced and controlled by a sovereign political authority.
Criticism:
Many eminent jurists have criticised the definition of Holland that
jurisprudence is the formal science of positive law. It is not free from defects. The
question arises what is a formal science? Holland himself explains that by the
term 'formal' he means that jurisprudence concerns itself with human relations
which are governed by the rules of law rather than the material rules themselves,
for the latter
Salmond:
Salmond defines Jurisprudence as, " the science of the first principles of the
civil law." Civil law = rules enforced by courts while administering justice.
According to Salmond Jurisprudence can be defined in two senses (1) in the
'Generic Sense' jurisprudence can be defined as Science of Civil Law' and (2) in
the 'Specific sense' Jurisprudence can be defined as the science of the first principle
of civil law.
The Civil law consists of rules applied by Courts in the administration of
Justice. Salmond agrees with both Austin and Holland only to the extent that
jurisprudence is 'a science, a systematic study of basic principles of legal systems
and with Gray upholding that Jurisprudence only deals with jurist’s law.
Criticism :
Salmond's Definition has been criticised on the ground that he has narrowed
down the field of jurisprudence by saying that it is a science of civil law and hence
Roscoe 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 administration of justice". He
believed that behind every issue, there is something social; therefore, in the study
of jurisprudence, the emphasis should be on the relationship between law and the
society.
History of Jurisprudence
The concept of law and justice has its beginning in the era of ancient
Rome and ancient India. And since these prehistoric times to today in
the 21st century, it has evolved and grown through many stages.
Some of the first mentions of the concept of jurisprudence are found in
ancient Indian texts known as the Dharmashastra texts. In these times
there was a great belief in the concept of dharmas and morals.
Then in ancient Rome, the concepts developed further. They had forms
of traditional law as we see today. Along with this, citizens also abided
by a body of oral laws and customs and regulations.
The Roman empire leads to the rise of various schools of law. The
practice of law became more advanced and academic.
Importance of the Study of Jurisprudence
The study of jurisprudence is not only limited to the development and
evolution of law. The academics who study jurisprudence also make
great contributions to the fields of other social sciences like the political
and social fields. This leads to the overall development of society.
The study of jurisprudence also helps uncomplicate some of the
concepts and complexities of the legal world. It makes them more
manageable and rational and thus easier to understand. This can also
lead to a more effective practice of law.
We often call jurisprudence the grammar of the law. It will help a
lawyer the basic ideas and reasoning behind the written law. It helps
them better understand the fundamentals of the law and help them
figure out the actual rule of the law.
The lawyer and judges can use jurisprudence as a guide to correctly
interpret certain laws that require interpretation. The study of
jurisprudence does not serve only academic purposes. It will help
lawyers and other practitioners in the practical world as well.
It sharpens their legal knowledge. Also, it trains the mind to find
alternate routes and channels of thought in case of difficulty. The law
can mean more than one thing, and this exploration is a direct effect of
the study of jurisprudence.
