Jurisprudence comes from the Latin word ‘jurisprudential’ meaning “knowledge of Law”. Bentham and Austin had provided the earliest description of this term. Since then, the spectrum of jurisprudence has grown in many areas and now it covers the whole gamut of law, not just positive laws. It’s the study of the basic principles of law. The judiciary’s versatility in interpreting the law to support the State’s social welfare ends has also led to a major expansion of the jurisprudence.
Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale of that always varies. It is not derived from any legislative act or state assembly. Lord Tennyson calls it the “topic of Lawless Law”. Related principles such as the roots of law, the need for law, the importance of law are discussed by related lawyers. This analysis of legal principles is called Jurisprudence.
Jurisprudence allows us to grasp the more abstract nature of the law. Jurisprudence is an important part of the law that is based on different hypotheses and interpretations. Jurisprudence speaks of the relationship between the law, culture, man, nature and other social sciences.
Jurisprudence denotes a logical and analytical study of the law. The term Jurisprudence originated from the Latin word “Juris” and “prudentia”, which can be divided into two sections, and that is the jurisprudence that originated from the word “jus”, meaning “law”, and the word “prudential”, meaning “prudence”, forethought, or discretion.
Jurisprudence can also be referred to as a legal philosophy. Jurisprudence offers us an outline and a much deeper understanding of the law and the role the law plays in society. It deals with legal logic, bodies of law and legal frameworks.
The subject matter of Jurisprudence holds much importance in the vast field of Law.
Importance of Jurisprudence:-
- Fundamental significance is of utmost importance under the field of the study of jurisprudence. Jurisprudence consists primarily of analysis and the process for building and clarifying the fundamental principles of law. Jurisprudence is not about making the new rules; rather, it focuses on current rules in the structure and jurisprudence, and its ideas will help lawyers develop a different, much better procedure and rules while practicing.
- Jurisprudence can support students too. In students life it has its own scholastic value. Jurisprudence not only focuses on primary laws but also addresses the social impact of those laws. Jurisprudence incorporates both theoretical and logical study of legal principles.
- Jurisprudence frequently reflects on the law and its importance for society. There is discussion of justice and the articulation of law. It deals with the fundamental principles of the in the eye of law. It helps a person understand the thoughts of law and its divisions.
- Jurisprudence is the grammar of law, too. It helps a person understand the language and the legal grammar. Compared with ordinary language, legal language and grammar are somewhat different, so Jurisprudence teaches a lawyer’s mind so that he can use proper legal terminology and phrases.
- Jurisprudence provides interpretation rules and, as a result, helps judges and lawyers understand the importance of laws passed by lawmakers.
- Jurisprudence and its relationship with other social sciences provide students with a broad spectrum of understanding how law can be related and linked to other disciplines.
- Jurisprudence teaches people that the answer to a legal problem is not hidden in the past or awaiting in the future, rather than hidden around them in the fundamentals of legal studies in the answer to a legal issue.
- Jurisprudence also discusses political and legal rights, and how the system can strive to balance them.
Nature of Jurisprudence
Jurisprudence analyses conceptions of law. It also seeks to figure out what the basic concepts of law are. It not only analyses the already defined laws but also analyses and sets the foundation for new rules. It is the product of Jurists ‘and Philosophers’ thought. They have the right to view, analyze and comment about the legal system. As such, it can be viewed as an analytical exercise that does not have immediate practical application. It sets the tone for legislative change.
Jurisprudence binds laws to other fields, such as psychology, politics, economics etc. The scale constantly shifts. It is not derived from any legislative act or state assembly. Lord Tennyson calls it, Lawless subject of law. Various concepts like Origin of law, need of the law, the utility of the law are studied by various Jurists. This study of concepts of law is called Jurisprudence.
Jurisprudence offers answers to multidimensional legal questions. It helps in overall growth of society. It enhances the capacity of the lawyer to justify rational reasoning. It blesses or hastens a lawyer’s skill with a sense of philosophy, ethics and morality which helps them move forward in their discipline. There are also occasions when there are loopholes in the rules; Judges choose the path of Jurisprudence at those periods. Jurisprudence is the theoretical foundation of the law, and without it; it is not possible to enforce the law in effect.
Schools of Jurisprudence
1) Analytical or Imperative School (Positivism)
The analytical school is constructive ‘in its approach to social legal issues. It focuses on things as they are and not what they should be. The positivists’ main concern is the statute, which is currently considered positum, and not the ideal Law. Legislation, judicial precedents and common law are the most relevant legal sources.
Analytical school’s motto is “Ubi civitas ibI lex” i.e. “where there is State, there will be no anarchy”; State is a necessary evil.
The main proponents of this school are: Bentham, Holland, Austin, Salmond, etc:
a) Bentham’s concept of Law:-
Bentham (1748-1832), the founder of Positivism, should be considered the father of analytical positivism, and not Austin, as is generally assumed (Austin owes much to Bentham, in fact). He was a codified law (Legislation) fighter. The purpose of Bentham’s work was to ensure the indispensable implementation of a civil code.
Bentham differentiated expository jurisprudence from censorial jurisprudence (i.e., what the law should be). His definition of law is imperative, i.e. law is the assembly of signs, statements of will conceived or embraced in a state by a sovereign.
According to him, the role of law must be to achieve these ends, i.e. providing food, creating wealth, fostering equality, and preserving security. Bentham’s philosophy of hedonism or pain and satisfaction principle has been questioned on the basis that suffering and pain alone cannot be the only measure of the law’s adequacy.
b) Austinian Concept of Law:
John Austin (1790-1859) was a professor at the University of London. He applied empirical method: Law should be carefully examined and evaluated, and the underlying theory should be discovered and his area of analysis limited only to the Positive Law (Jus positivism).
Law, so-called simply and strictly law, set by political superiors to inferiors. Thus, the school he founded is called by different names, logical, positivistic and analytical positivism. Austin is believed to be the founder of English jurisprudence.
Austin defined law as a rule set for an intelligent being’s guidance by an intelligent being having power over him. According to him, so-called proper law includes: law of God, laws of man and rules of positive nature.
According to him every rule, properly named, must have three elements, command, sanction and sovereign elements. According to him, law is a sovereign’s order, which mandates his subjects to do or refrain from such actions. If the order is not obeyed, an implicit threat of a punishment occurs.
c) Hart’s Concept of Law:
Professor Hart (1907) can be regarded as the leading representative of British positivism in the present day. He wrote an important book “The Law’s Definition”, questioning the theory of Austin. According to Hart, Law consists of laws that are broad-based and non-optional in nature, but at the same time appropriate for formalization, regulation and adjudication. He said law is a set of social rules that acquire the character of legal laws (laws arising from social pressure). Law is a set of laws which can be publicly ascertained. In Hart’s opinion, law is analogous to a legal structure.
According to Hart, there are two types of rules where the primary rule establishes norms of conduct or imposes duties (i.e. international law), while the secondary rule is the rule under which the primary rules may be created, added, omitted or changed. The secondary rules are public or private (e.g. Laws, Constitution) rules which impart power. From these the rules of recognition are derived and provide authoritative criteria for the identification of primary rules of obligation.
2) Philosophical school or Natural law school
The school of philosophy or ethics is concerned primarily with the relationship of law to certain principles the law is intended to achieve. It seeks to examine the reason for which it has passed a specific law. It has no historical or analytical substance to it. This school’s most notable jurists are Grotius (1583-1645), Immanuel Kant (1724-1804), and Hegel (1770-1831).These jurists do not recognize law either as a ruler’s arbitrary order, or as the development of historical necessity. The law is for them the product of human reason and its aim is to uplift and ennoble human personality.
3) Historical School
Law so closely touches real life that seeing the action of laws in their social setting is only normal. The Functional Approach to Law (Historical and Sociological Schools) emphasizes actual social circumstances as giving rise to law and legal structures, and is concerned not with the person but with the associated man. The historical school arose as a response to legal theories promoted by logical positivists (as they failed to meet people’s needs) and the thinkers of natural law. This school’s motto is “Ubi societas ibi lex”, that is to say, “where there is culture, there is law.”
4) Sociological School
Auguste Comte was the first to use the term sociology, and is considered the father of sociology research by some jurists. The approach used by Comte may be called scientific positivism. He pleads for applying scientific method to sociological research. Society is like an organism and if it is driven by scientific principles it will advance.
Herbert Spencer introduced the organic theory of society in a scientific analysis.
He applied sociology to the evolutionary pattern of society.
Duguit was influenced by Durkhiem who took inspiration from Comte himself. Durkhiem’s key argument, on which Duguit focused himself, was that he made a distinction between two kinds of men’s needs in society.
1. There are certain individual needs that are addressed by mutual assistance and
2. The needs of individuals are varied and met by the exchange of services.
Therefore the most critical aspect of social stability is the division of labor. He called it Unity with society. This social cohesion grows through the creation of free individual activities.
5) Realist School
Sociological Jurisprudence in America formed an extreme wing under the realist school name. They are concerned with researching the law as it operates and functions which means examining the social forces that make a law on the one hand and the social consequences on the other. Instead of abstracting logical deductions from general rules and the inarticulate conceptual premises underlying a legal system, they focus more on what the courts can do.
American Realism is not a jurisprudence school but a thinking pedagogy.
Scope of Jurisprudence
The scope of Jurisprudence has been aptly put forth by Karl Lwellyn to be ‘as bigger as law and bigger’. The scope of Jurisprudence has been dealt with in the following sub-heads:
Living Law Concept & Social Engineering
In addition to the study of formal law or paper law it aims at the practical study of law. Ehrlich’s definition of Living Law linked law to the actual existence of society and thus promoted the empirical study of law within the context of society. The significance in India of Living Law becomes imperative because there is a large gap between formal legislation and norms which are prevalent in culture. An example of the difference between practicalities in society and formal laws can be laid down in the Dowry Prohibition Act, 1961, where further changes were made to the laws to make the offence punishable with stringent Punishments but the mischief in the society is not curtailed.
The spectrum of jurisprudence is not limited to one or only a few legal frameworks being studied. It concerns a comparative review of various legal systems proposing codification and institutional changes by legislation. The nineteenth century was characterized by a general trend towards codification. In the field of law reform, jurisprudence should be an innovative study by concentrating attention on those parts of law that do not serve the purpose for which they were built.
Directive Principles of State Policy (DPSP) and Jurisprudence
The spectrum of jurisprudence does not restrict itself to understanding and applying those principles. It includes also the laws that are nevertheless not strictly enforceable, central in the country’s governance. Recent writings on policy perspectives have led to the conclusion that DPSP is identical to Raj Dharma, the basic principles of governance contemplated in the conventional Indian culture. In Minerva Mills v. Union of India, it was held that: in other words, the Indian Constitution is built on the cornerstone of equilibrium between Part III and Part IV. It should also be noted that the Indian principle of ‘rights’ often includes a ‘duty’ aspect. So, even if the DPSP are unenforceable, they are fundamental in the governance of the country and the State is bound by them.
The jurisprudence also includes the fields of gender and compensatory justice (LGBT)
The marginal and underprivileged individuals of the society including LGBTQ community are given opportunity to raise their issue in honorable courts by filling a Public Interest Litigation to support their cause.
Thus in this Article, a difference has been made between Jurisprudence and the law that we usually practice. Jurisprudence helps lawyers and magistrates discover the true sense of law. We came across different legal theories and how they were influencing society and the law. Jurisprudence is a major part of the law and cannot be isolated from it.
There are different types of jurisprudence that are used for the entire study of the law. There is no law school which is in itself complete. Different schools of law offer different methods of law analysis that exposes one another to give a better theory of law that can be implemented in different circumstances. Analytical school focused on the law as it is, and disregards the moral nature of the law. In the Classical School of Law, the interpretation of law as an instrument of social regulation was lacking.
There are different methods for law study, but their object is the same as understanding the fundamental concepts of law and legal study.
Since then, and now, the reach of jurisprudence has broadened. Now it includes the whole spectrum of rules, and not just good laws. The judiciary’s versatility in interpreting the law to support the State’s social welfare ends has also led to unprecedented expansion of the field of jurisprudence.
Frequently Asked Questions
- How has the concept of Jurisprudence evolved?
- Theories of different scholars on the concept of Jurisprudence.
- What are the different types of schools under which Jurisprudence is studied?
- Scope of Jurisprudence in Contemporary times.
- How Jurisprudence helps in interpretation of statues?
 AIR 1980 SC 1789