Jurisprudence involves the theoretical study of law, including the nature of law, its relationship to morality and justice, and its social context. It attempts to reconcile law with social values by considering facts, justice, and values. Historically, jurisprudence began with the Romans and seeks to understand law as both a practical skill and a science. There are differing views on what jurisprudence entails, but it generally involves the analysis and systematization of legal concepts, principles, and systems.
Jurisprudence involves the theoretical study of law, including the nature of law, its relationship to morality and justice, and its social context. It attempts to reconcile law with social values by considering facts, justice, and values. Historically, jurisprudence began with the Romans and seeks to understand law as both a practical skill and a science. There are differing views on what jurisprudence entails, but it generally involves the analysis and systematization of legal concepts, principles, and systems.
Jurisprudence involves the theoretical study of law, including the nature of law, its relationship to morality and justice, and its social context. It attempts to reconcile law with social values by considering facts, justice, and values. Historically, jurisprudence began with the Romans and seeks to understand law as both a practical skill and a science. There are differing views on what jurisprudence entails, but it generally involves the analysis and systematization of legal concepts, principles, and systems.
Jurisprudence involves the theoretical study of law, including the nature of law, its relationship to morality and justice, and its social context. It attempts to reconcile law with social values by considering facts, justice, and values. Historically, jurisprudence began with the Romans and seeks to understand law as both a practical skill and a science. There are differing views on what jurisprudence entails, but it generally involves the analysis and systematization of legal concepts, principles, and systems.
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The passage discusses various definitions of jurisprudence put forth by different scholars like Bentham, Austin, Salmond, Gray, Keeton and Pound. It also talks about different categories or types of jurisprudence.
Definitions of jurisprudence are discussed by scholars like Bentham, Austin, Gray, Keeton and Pound. Bentham distinguished between law as it is and as it ought to be. Austin defined it as the science of law dealing with analysis of concepts and principles.
According to Salmond, jurisprudence can be divided into generic and specific categories. The generic categories are legal exposition, legal history and science of legislation. The specific categories are analytical jurisprudence, historical jurisprudence and ethical jurisprudence.
1.1.
Meaning and Definition of Jurisprudence
• Jurisprudence involves the study of general theoretical
questions i) about the nature of law and legal system, ii) about the relationship of law to justice, morality iii)and about the social nature of law. • Jurisprudence, as a philosophy of law attempts to correlate with social values and provides practical solutions by way of fusion of i) fact, ii) justice and iii) value Introduction • Jurisprudence as a science of law is primarily concerned with regulation of human conduct in accordance with the i) set values, ii) needs and iii)goals of each society. • The term "jurisprudence" has at different times, been used in different senses. • Sometimes it has been used as a synonym for the term i) "law", ii) sometimes as philosophy of law and iii)sometimes as a science of law. Introduction • The present tendency appears to prefer the term "legal theory" to the term "jurisprudence". Introduction: Historical Aspects • The study of jurisprudence started with the Romans. • The word "jurisprudence" is derived from the Latin word "Jurisprudentia" which means "knowledge of law". • In the Latin language "jure" or "juris" means law and "prudentia" means 'skill' or 'knowledge'. • Jurisprudence then signifies a practical 'knowledge of law and its application'. Introduction: Definitions • Ulpian defines jurisprudence as "the knowledge of things divine and human, the science of the just and unjust". (Literary activity AD 211 and 222) • Bentham and his disciple Austin in the early part of the 19th century gave the word jurisprudence a technical significance among English lawyers. Introduction: Bentham’s Definition • Bentham distinguished between examination of the law ‘as it is’ and as it ‘ought to be’ Introduction: Austin’s Definition • Austin defines 'jurisprudence' as 'science of law which deals with analysis of the concepts or its underlying principles'. • For Austin, the appropriate subject of jurisprudence is positive law i.e., law as it is (existing law). • To him jurisprudence is not a moral philosophy. • But it is a systematic study of actual law as distinguished from moral, ideal or natural law. Introduction: Austin’s Definition • Austin further divides jurisprudence into two classes viz., i) 'general jurisprudence' and ii) 'particular jurisprudence'. • According to him 'general jurisprudence' is the philosophy of positive law • For Austin, 'general jurisprudence', means i)the science concerned with the exposition (elucidation; clarification) of the principles ii) and distinctions which are common to the different systems of law. Introduction: Austin’s Definition • The concept of i) rights and duties, ii)ownership, iii)possession, iv)personality, v)property etc. comes under the province of general jurisprudence. Introduction: Austin’s Definition • '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". • “Particular jurisprudence”"is the science of any actual system of law or any portion of it. Introduction: Austin’s Definition • Ownership, for example, is one of the fundamental legal concepts known to all systems of law. • “Particular jurisprudence” would i) analyze, ii) systematize and iii)explain how the nature and scope of ownership has been defined or delimited (encircled) by the particular system of law. Introduction: Holland’s Definition • Holland defines jurisprudence as 'the formal science of positive law'. • It is 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 political authority". Introduction: Holland’s Definition • The term formal means "that which concerns only the form and not its essence". • Jurisprudence is not concerned with the i) actual material contents of law but ii)with its fundamental conceptions. • Formal science is that which deals with the various relations which are regulated by legal rules than with the rules themselves which regulate those relations. Introduction: Holland’s Definition • Material science supplies i) the facts, ii) while the formal science of jurisprudence elucidates the meaning of the relations or prescriptions regulated by law. • For example, it explains the legal aspect of marriage and its connection with property and the family. • Secondly, for Holland (like Austin) jurisprudence is concerned with positive law- • it is not concerned with law as 'it ought to be' nor with the objects of law but with law as 'it actually is'. Introduction: Salmond’s Definitions • 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'. • Salmond defines jurisprudence as "the science of law". Introduction: Salmond’s Definition • Salmond has divided jurisprudence into following categories- • He divides jurisprudence in the generic sense into - a) Legal exposition:- The purpose of which is to set forth the contents of an actual legal system as existing at any time, whether past or present. b) 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. c) The science of legislation:- Purpose of which is to set forth the law, not as it is or has been, but as it ought to be. It deals not with the past or present of any legal system but with its ideal future. Introduction: Salmond’s Definition • He divides jurisprudence in the specific sense into - a) Analytical jurisprudence:- The purpose of which is to analyse, without reference either to their historical origin or development or to their ethical significance or validity - The first principles of law. b) Historical jurisprudence:- The purpose of which is to deal with the general principles governing the origin and development of law. It is the history of the first principles and conceptions of the legal system. c) Ethical jurisprudence:- The purpose of which is to deal with the law from the point of view of its ethical significance and adequacy. It is concerned not with the intellectual content of the legal system or with its historical development but with the purpose for which it exists and the measure and manner in which that purpose is fulfilled. Introduction: Salmond’s Definition • According to Salmond, complete scientific treatment of any body of law involves the study of these (generic and specific)categories mentioned above. • Criticisms of Salmond’s definition. i) The study of jurisprudence today is not confined to the study of law as administered by courts of justice. ii) It also takes note of the facts of social life of societies. Introduction: Gray’s Definition • Gray has defined jurisprudence as a science of law i.e., systematic arrangement of rules followed by courts and principles underlying them. Introduction: Keeton’s and Pound's Definitions • Keeton considers jurisprudence as "the study and systematic arrangement of the general principles of law". • Dean Roscoe Pound defines jurisprudence as "the science of law, using the term law in the juridical sense, as denoting the body of principles recognized or enforced by public and regular tribunals in the administration of justice". Introduction: Conclusion • Jurisprudence is a study of the fundamental legal principles. • It may be described as any thought or writing about law and its relation to other disciplines such as i) philosophy, ii)psychology, iii)economics, iv)anthropology and many others. Introduction: Conclusion • It is to be determined from the expositions of law itself. • It includes whatever law thinks, says and does in any field of human society. • It includes political, social, economic and cultural ideas. • (For more definitions refer to V.D. Mahajan’s Jurisprudence and Legal Theory)