Scope of jurisprudence

 Scope of jurisprudence

According to jurists, the scope of jurisprudence is limited and unlimited as per their definitions so the perception and different authorities attribute different meanings and varying premises to the law which causes different opinions about the exact limit of the fields covered by jurisprudence. Jurisprudence has been defined as to cover moral and religious percepts also and that has created confusion. Jurisprudence is a human science. It bears relation with the other spheres of human activity. It cannot be treated in isolation. Its conspectus can be better appreciated conjointly with other social sciences like Political science, Sociology, History, Economics, Psychology, Ethics etc.

Political Science 

is the study of Governmental Organization. The regulation of Governmental

Organization in any organized society is by law. The study of the foundations of law is Jurisprudence. It is linked with Political science; was influenced by political theories and influenced political theories.

Sociology

is the study of man and his actions in the process of social formation and development in order to ensure a well-ordered social organization. To that goal, Jurisprudence also aims and assists. Their inter linkage is beyond question and cannot be separated to make a systematic pursuit.

Jurisprudence, to a large extent, is influenced by experience in the past, that is, history. If present is believed to be a gradual projection of the past, past experiences have to be considered for understanding the present science of law.

Economics 

deals with maximization of one’s satisfaction and the greatest of such satisfaction is Justice, the maximization of which is the concern of Jurisprudence. The interplay of economic considerations and jural relations is inseparable and economic analysis of law has become the new addition of ever expanding horizons of Jurisprudence.

psychology Law not only deals with physical actions but is equally connected with mental condition and status. Victimology, penology, mens rea and mental state are important components of study both in psychology and Jurisprudence.

Ethical science prescribes right and wrong of any conduct on considerations of morality. Law prescribes conduct as right and wrong on many other considerations too besides morality. Ethics and Jurisprudence have the same focus only and differ in dimensions. Despite such inseparable links with other social sciences, the Juristic science’s concerns primarily relate to “law.

Kinds of jurisprudence

There are several divisions of jurisprudence as forwarded by various jurists and theorists:

1.Austin's classification of jurisprudence 

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 i.e. law as it is (existing law). 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. '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.

2.Salmond classification 

Salmond defines Jurisprudence as, " Jurisprudence is the science of the first principle of the civil law." 

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.

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 covers only particular legal system

3.Bentham's Classification: 

Bentham divides jurisprudence into expository and censorial. Expository jurisprudence ascertains what law is. Censorial jurisprudence lays down what law ought to be. 

Expository jurisprudence may be further sub-divided into authoritative and unauthoritative.  Authoritative jurisprudence refers to the legislative power while unauthoritative jurisprudence implies textbooks on laws. 

Unauthoritative jurisprudence may again be divided as local and universal. Local jurisprudence consists of textbooks in the laws of any one definite country whereas universal jurisprudence comprises of law works on universal legal philosophies, without reference to any single country. 

On the other hand, Bentham calls censorial jurisprudence as a science of legislation or of law reform. It paved the way for the emergence of sociological jurisprudence later on. Censorial Jurisprudence guides the lawmakers in the exact use of legal terms by supplying a precise and patent terminology. It also brings in homogencity and accuracy in legal phraseology. Thus, censorial jurisprudence talks about the ideal or expected position of law rather than what law actually is now.

Other Jurist classified jurisprudence as follows :

Many jurists has made an attempt to classify jurisprudence from various approaches some of them are: General and Particular, Expository and Censorial, Analytical, Historical and Ethical, Comparative, continental and common Jurisprudence.  

Austin divided as general and particular jurisprudence. General jurisprudence includes such subjects or ends of Law as are common to all systems while particular jurisprudence is confined only to the study of any actual system of law or any portion of it. To quote Austin :” I mean then by general jurisprudence the science concerned with the exposition of the principles, notions and distinctions which are common to all systems of Law , understanding by system of Law the ampler and maturer system which , by reason of their amplitude and maturity , are re-eminently pregnant with instruction.” The necessary principles, notions and distinctions of General (Universal) Jurisprudence are:

•       The notion of Duty, Rights, Liberty, Injury, Punishment, Redress with their various relations to one another and to Law of Sovereignty and Independent Political Society.

 

•       The distinction between written or unwritten law, in other words, between law proceeding immediately from a sovereign or supreme maker, and law proceeding from a subject or subordinate maker.

 

 

•       The distinction of Rights into rights availing against the world at large (for example property or dominion) and rights availing exclusively against person specifically determined (for example rights from contracts)

 

•       The distinction of rights availing against the world at large into property or domain and the various restricted rights which are carved out of property or domain. 

•       The distinction of obligation (or of duties corresponding to rights against person specifically determined) into obligations which arises from contracts, obligation which arises from injuries and obligations which arises from incidents that are neither contracts nor injuries. 

 

•       The distinction of injuries or delicts into civil injuries (or private delicts) and crimes (or public delicts), with the distinction of civil injuries (or private delicts) into torts/or delicts and contracts/, or of obligations ‘quasi ex contractu’.  

Thus ,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 of those resemblance between different system which are at bottomed in the common nature of men, or correspond to the resembling points in these several portions. It is an attempt to expound the fundamental principles and broadest generalisations of two or more systems. It includes the entire body of legal doctrines. In short, the nature, the ends and the similarities or resemblance which are common to all different mature legal system form the subject matter of general jurisprudence.   

Particular (National) jurisprudence:

According to Austin Particular jurisprudence is the science of any actual system of Positive law or any portion of it. The only practical jurisprudence is particular .The proper subject of particular jurisprudence is concerned with specific state or national law or particular area of such state law. However criticized by many jurists among them Holland criticized by observing that a science is made up of general propositions whether they are drawn from a few phenomenon or a great many. He shows that in Austin’s particular jurisprudence it is only the material of the science, and not the science itself, which is particular Holland therefore rejects the distinction made by Austin. Sir John Salmond has repudiated the notion of general jurisprudence .He observes that general jurisprudence is not the study of legal system in general but the study of the general or fundamental elements of a particular legal system. According to him, a principle to become a topic of jurisprudence need not be a norm ‘common to the system of Law. Universal reception is not the sine qua for a principle to qualify itself for treatment by the science of Law.

Expository and Censorial

Bentham divided Jurisprudence into expository and Censorial .The expository jurisprudence ascertains what law is. The censorial jurisprudence ascertains what law ought to be. Expository jurisprudence is sub-divided into authoritative and unauthoritative. Authoritative jurisprudence means the legislative power and unauthoritative means text-books on Law. Unauthoritative jurisprudence may again be divided as local or universal. The local jurisprudence consists of text-books upon the Laws of any one country, while the universal jurisprudence consists of law works on universal jurisprudence i.e. without reference to any one country. However Holland criticized the divisions of Bentham observing that an exposition of existing law is obviously quite another thing from a science of law and criticism upon the law with a view to  its amendments are the subject nor of jurisprudence as Bentham himself states , of the part of legislation.   

Analytical, Historical and Ethical 

Salmond makes a distinction between the use of the term jurisprudence in the generic and specific sense. Generic includes the entire body of legal doctrines whereas specific means only a particular department of such doctrines. For him specific sense is alone the proper jurisprudence. In generic sense includes legal exposition, legal history and the science of legislation. In specific sense he divided Jurisprudence into Analytical, historical and ethical. 

Analytical Jurisprudence 

The purpose of this branch of study is to analyze and dissect the law of the land as it exists today. This analysis as to the first principles of law is done without reference to their historical origin or their ethical significance. The analytical jurisprudence deals with such subjects as following:

•       Analysis of the conception of a civil laws:

•       An account of the legal sources from which the law proceeds , an investigation  of the theory of legislation, judicial precedents, and customary law:

•       An account of the scientific arrangement of the law;

•       An analysis of the conception of legal rights, together with the division of rights into various classes and the general theory of the creation , transfer and extinction of rights;

•       An investigation of the theory of legal liability civil and criminal;

•       An examination of any other legal conception of theoretical interests, such as property, possession, obligation, contracts, personality, incorporation, acts, motive, negligence and many others.

Historical Jurisprudence 

It constitutes the general portion of legal history and examines the manner of growth of a legal system. It deals with the general principles governing the origin and development of laws as also the origin and development of legal conceptions and principles found in the philosophy of law .It traces the growth of law from origin with a view to finding out the origin of our legal concepts and the general course of their evaluation. According to historical jurisprudence, law is antecedent to the state. It lays emphasis on custom. 

Ethical Jurisprudence 

It deals with law not as it is or has been, but as it ought to be. It is concerned with the purpose for which the law exists and manner in which such purpose is fulfilled. Salmond observes that ethical jurisprudence is the meeting point and common ground of moral and legal philosophy-of ethics and jurisprudence. Ethical jurisprudence has had as it’s subject to conception of Justice, the relation between law and justice, the manner in which law fulfills its purpose of maintaining justice and ethical significance and validity of these legal conception and principles which are fundamental in their nature as to be the proper subject matter of analytical Jurisprudence.  

Introduction to Jurisprudence

 1.1 Meaning and definition of Jurisprudence 

    It is difficult to give a universal and uniform definition of Jurisprudence.  However jurist has made their attempt to define jurisprudence from different perspective. Before defining Jurisprudence, the English word Jurisprudence has been derived from Latin word Jurisprudentia. Jure or Juris meaning law or legal; prudentia meaning skill or knowledge; it is the skill of law or knowledge of law. Thus Jurisprudence signifies knowledge or science of law and its application. In this sense, Jurisprudence covers the whole body of legal principles. Jurisprudence in not confined to legal provisions and court decisions and it embraces much more. Under French law, it refers to the body of judicial precedent, as distinguished from status and expert opinion, etc. In Germany, it is called rechts philosophic which is a philosophy of rights, which is of law in the abstract sense.
The study of Jurisprudence stated with the Romans, in its widest sense means, Knowledge of the law but in its limited sense evolution and explanation of general principles upon which actual rules of law are based. It is mainly concerned with the rules of external conduct which people are compelled to obey. It is said that jurisprudence is that science which gives us knowledge about law but the term law we always use in its abstract sense. So it deals with knowledge of Law and not the law. Jurisprudence consists of the examination of realm of law and the formulation of valid propositions hence Jurisprudence is subject matter of Law.

1.2. Definition of Jurisprudence

    Jurisprudence has been assigned different meanings by different authors. Thus, jurists have given various definitions of the term. However, a single definition cannot be called universally accepted. Perhaps the precise meaning of the term is not possible because as a method, jurisprudence relates to concepts that regulate human conduct according to the values, needs, and goals of every society. These values, needs, goals, etc., vary from time to time and from society to society at different times within the same society and therefore also in the meaning and scope of jurisprudence. An overview of the subject of Jurisprudence must begin with taking note of the different perspectives on its nature, especially Jurisprudence as a science and Jurisprudence as knowledge. 

1.2.1. Jurisprudence as a Science

The following are some of the expositions by jurists emphasizing that Jurisprudence is a science.

•Austin

Austin was the first jurist to make jurisprudence as a science. He defines 'jurisprudence' as "the philosophy of positive law. For Austin, the appropriate subject of jurisprudence is positive law i.e. Law it is (existing law). For him, jurisprudence is not moral philosophy; rather it is a systematic study of substantive law as distinct from moral, ideal, or natural law. In other words, jurisprudence is not a moral philosophy but it is a scientific and systematic study of the existing, actual and positive law and has been distinguished from natural, ideal or moral law.

Criticism: 

Austin's definition criticized 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.

           •Sir Thomas Erskine Holland 

Holland defines jurisprudence as ‘the formal science of positive law’. According to him it is formal or analytical rather 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.

Criticism:

Many eminent jurists have criticized 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 Lecture 2: Meaning and definition of Jurisprudence 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 are the subject of legal exposition, criticism or compilation rather than jurisprudence.

           •Salmond 

According to Salmond, jurisprudence can be defined in two senses (1) in the ‘Generic Sense’ jurisprudence can be defined as ‘Science of law and in the ‘specific sense’ jurisprudence can be defined as the science of the first principle of civil law. 

Criticism:

Salmond's Definition has been criticized on the ground that he has narrowed down the field of jurisprudence by saying that it is a science of civil law and hence covers only particular legal system.

  •Gray 

Gray has defined jurisprudence as a science of law, systematic arrangement of rules followed by courts and principles underlying them. For Gray, jurisprudence is of three kinds-first particular jurisprudence or the science of the law of a particular community; second comparative jurisprudence or the comparison of the law of two or more communities; third, general jurisprudence or the comparison of all legal systems of the world.  From the definitions discussed above, we can say that Austin’s definition is relatively more correct. Austin has broadened the scope of jurisprudence by classifying it at least into two categories, ‘General’ and ‘Particular’, and pointing out that jurisprudence involves the study of principles common to all States and also the analysis of these principles in a specific determined nation.

Criticism:

Stone has Criticized Gray's Definition and said that Gray has failed to determine any province of jurisprudence rather he has reduced jurisprudence to merely a matter of arrangement of rules.

•       Beale 

The science of Justice

•       Clark  

The science of law in general

            •Allen 

The scientific synthesis of the essential principles of law. ‘Science’ includes any systematized knowledge of any subject of intellectual enquiry. As Jurisprudence is concerned with the systematized knowledge of the subject of law, it may be regarded as a kind of science; though by many it is not regarded as a formal science like physical sciences. The end of Jurisprudence is the same as that of all sciences in general; structuring and synthesizing the course and the effect. 

1.2.2. Jurisprudence as Knowledge

Prudence means wisdom which comes from knowledge, legal knowledge is the significance of the term jurisprudence. It is, but natural, that many jurists attempted to state the amplitude of Jurisprudence from the knowledge perspective. The following observations of some jurists are from that perspective:

                    •     Ulpian

The knowledge of things, human and divine, the science of the just and unjust

       •     Paton 

A particular method of study not of the law of one country, but of the general notions of law itself.

                    •    Stone 

The lawyer’s extraversion. It is the lawyer’s examination of the precepts, ideas and techniques of the law in the light derived from present knowledge in disciplines other than law

                    •     Cicero

According to Cicero, It is a philosophical aspect of knowledge of law.