MEANING, NATURE AND SCOPE OF JURISPRUDENCE

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

[Advocate]

 

 

MEANING, NATURE AND SCOPE OF JURISPRUDENCE-

Tanmoy Mukherjee

      [Advocate]

Meaning-

The word Jurisprudence is derived from its Latin equivalent "Jurisprudentia", meaning knowledge of law. 'Juris' denotes law and 'prudentia' denotes knowledge. In the Oxford English dictionary, Jurisprudence is defined as knowledge or skill in law; the philosophy of law; a system or body of law.

Definition-

-According to the Encyclopedia Britannica, "Jurisprudence is the name given to those studies, researches and speculations which aim primarily at answering the plain man's question: “What is law?”

-According to Salmond, Jurisprudence is the "science of civil law".

By 'civil law' is meant the law of land. The word 'civil law' does not include International law and since Jurisprudence is the science of civil law, International law goes out of the orbit of Jurisprudence.

-According to Austin jurisprudence is the - "Jurisprudence is the science of positive law". He observed that Jurisprudence is the systematic study of the existing legal system which is based upon legislation.

-According to Holland Jurisprudence is "the formal science of positive law". He says that Jurisprudence is a 'formal’ science rather than material one. It means that Jurisprudence deals more with the form and outer aspect, rather than with the matter and contents of law. It concerns itself with the basic ideas and fundamental principles of various systems of law rather than with laws themselves. By 'positive law' Holland means law made by sovereign political authority.

-According to the great Roman jurist Ulpian, Jurisprudence is, "the knowledge of things divine and human, the science of right and wrong".

-According to Allen- Jurisprudence is the scientific synthesis of the essential principles of law.

-According to Professor Keeton, Jurisprudence is a study and systematic arrangement of the general principles of law.

-According to Gray, Jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by courts and the principles involved in those rules.

-According to Kelsen, "Jurisprudence is a science of norms or normative science". He further said that the task of legal theory is to clarify the relation between the basic norm called the Grundnorm and all other inferior norms and not to enter into the question regarding the nature and source of Grundnorm.

 

NATURE OF JURISPRUDENCE-

The nature of Jurisprudence discussed below-

1.Jurisprudence is a science and not an art.

2.In fact it is a progressive science.

3.Jurisprudence does not merely connote a knowledge of law. It covers a field much wider than this.

4.Julius Stone has said regarding nature of Jurisprudence that "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 law".

5.According to Salmond, Jurisprudence is a subject which differs in kind from other subjects in the legal syllabus.

6.Legal subjects like Torts, Contracts consists of set of rules derived from authoritative sources and are applied to the factual situations in order to solve practical problems. Jurisprudence on the other hand, does not constitute a set of rules, is not derived from any authoritative source and is without practical application.

7.In other legal subjects, we look for a rule relevant to a given situation but in Jurisprudence we ask what it is for a rule to be a legal rule and what distinguishes law from morality, etiquette and other phenomena. In this sense Jurisprudence comprises philosophy of law.

8. Paton has rightly said regarding the nature and scope of jurisprudence, that, "Modern Jurisprudence trenches on the field of social science and of 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". He has also said that "Jurisprudence is particular method of study, not the law of one country, but of the general notion of law itself".

9. Julius Stone has very beautifully put forward the nature of jurisprudence by saying, "It is a chaos of approaches to chaos of topics chaotically delimited".

PURPOSE OF JURISPRUDENCE-

-According to Salmond, there are three purposes of Jurisprudence-

1. Exposition of law-

It means that law should be exposed first as to what it is and then it should be studied systematically.

2. Legal History-

It means that it is also the purpose of Jurisprudence to study the historical background of law and trace the source of law.

3. Science of law-

It means that the purpose of Jurisprudence is not only to expose the law or to trace the history of law but also to know what the law ought to be. In other words it means that, the purpose of Jurisprudence is to find out how better laws can be made.

-According to Bentham there are two purposes of Jurisprudence-

1. Exposition of law-

It means to know what the law is and analyze it.

2. Censor of law-

It means to find out what the law ought to be, i.e., to find out the ideal future of law.

According to Austin, the purpose of Jurisprudence is -Exposition of law and not Censor of law. He said that Jurisprudence is concerned only with the law as it is and not what the law ought to be. He was of the view that "What the law ought to be" is the function of the moralists or the politicians.

 

Thus we can say that, the purpose and function of jurisprudence is-

-to examine and study the existing law and the fundamental principles on which law is based,

- to analyze its concepts studied with the help of history, in the light of comparative study of legal systems of the world,

- to test its utility,

- to examine it in the light of Sociology and Psychology and under the rules of natural justice ,

- to examine its consequences on social welfare ,

-to suggest changes for betterment of law and,

-to attain justice by means of rules of law.

 

SCOPE, UTILITY  OF JURISPRUDENCE-

The uses and utility of Jurisprudence can be stated as follows-

1.It gives an understanding of the nature of law.

2.It helps in study of the actual rules of law and in tracing out the principles underlying therein.

3.A study of jurisprudence would help a lawyer to sharpen his professional techniques.

4.It will put a gloss on his arguments by giving him an insight into the nature of legal concepts.

5.It helps in making a scientific development of law.

6.It helps to bridge the gaps in the law. When the law is silent on a particular point, it comes to the rescue of the judges to fill in the gap on the basis of sound jurisprudential principles.

7.It develops the critical faculties of mind and gives proper understanding of legal expressions and terminologies.

8.It widens the mental horizon of jurists, thinkers and philosophers and thereby develops their analytical faculties.

9.Jurisprudence is the grammar of law.

10. It is the eye of law.

11.Law needs help of the jurisprudence to throw light on the fundamental principles.

12.It serves to render the complexities of law more manageable and rational.

13. Jurisprudence imparts to the lawyers, judges and Academicians complete clarity of legal thought and makes the brain perfect in legal ways of thinking.

14.It helps to fight the vice of occupational formalism of lawyer and the judges. If this occupational formalism is not checked, it would lead to excessive concentration on legal rules in disregard of social realities.

15.It reduces the burden of legislature in defining certain legal terms again and again.

16.It is a subject having a natural, philosophical appeal.

17. Its study would satisfy the urge for a theoretical or philosophical knowledge of the principles underlying the law.

18.By reason of constant juristic researches, the law-makers and the administrators are able to get at the ideas of changing the legal system according to present problems and needs.

19.It provides an opportunity to jurists to consider and re-consider various aspects of the applicability of law very much like physical scientists who keep busy testing and retesting their theories by practical applications and thereby bringing out new and improved versions.

 

The utility of jurisprudence is to serve as the self-reflecting conscience of the legal system. It is the discipline that constantly asks, "What is law, and what ought it to be?" By providing this essential perspective, it transforms law from a mere instrument of state power into a dynamic, ethical, and intellectually grounded tool for achieving order and justice in society.