Q. 4. Austin divides Jurisprudence into “General and Particular”. To what extent Salmond and Holland agree with this division?
Ans. Austin’s division of Jurisprudence— Austin divides jurisprudence into general and particular jurisprudence.
General jurisprudence—By “general jurisprudence” is meant science of positive law not limited to one particular place. It is a science of different systems of laws obtaining in different societies. It is universal in nature and takes account of various systems of law and thus is also called as pure or universal jurisprudence.
Particular Jurisprudence- On the other hand particular jurisprudence is science of particular system of law, present or past. Its field is confined to one particular country and is, therefore, sometimes termed as national jurisprudence. General jurisprudence has a wider scope than particular jurisprudence.
It may, however, be noted that the meeting ground of Austin’s general and particular jurisprudence is positive law, in so far as in each case matter comes out of positive law. While in the former case positive law common to all systems; is taken into consideration, in the latter case we are concerned with particular system of (positive) law. In the words Df Austin himself, “The proper subject of general or universal urisprudence is a description of such subjects and ends of law as are :ommon to all systems and of those resemblances between different systems which are bottomed in the common nature of men or correspond to the resembling point in these several portions. ” He explains, that general jurisprudence is “the science concerned with the exposition of the principles, notions and distinctions which are common to the systems of law, understanding by systems of law, the ampler and matured systems.” On the other hand particular jurisprudence is the science of any actual system of law or of any portion of it. The only practical jurisprudence is particular.
Criticism of Austin’s division- Austin’s division of jurisprudence has been subjected to criticism both by Salmond and Holland.
Salmond says, “General jurisprudence involves the misleading suggestion that this branch of legal science relates not to any single system of law, but to those conceptions and principles that are to be found in all developed legal systems and which are, therefore, in this sense general. It is true that a great part of the matter with which it is concerned is common to all mature systems of law, but it is not because of universal reception that any principle pertains to the theory or philosophy of law. Even if no system in the world save that of England recognized the legislative efficiency of judicial precedents, the theory of case law would, nevertheless, be a fit and proper subject of general jurisprudence. Jurisprudentia generalis is not the study of legal systems in general but the study of general or fundamental elements of a particular legal system and those fundamental elements may find a place in every system of law prevalent in a civilized society.
Holland criticizes Austin on the ground that in case of particular jurisprudence, material or data may have been taken from a particular source, yet, when generalized that science itself holds good everywhere and so cannot become particular. In Holland’s words “a science is a system ofgeneralization which, though they may be derived from observation over a limited area, will hold good everywhere assuming the subject matter of the science top ossess everywhere the same characteristics.” He further says, “principles of jurisprudence, if arrived at entirely from English data, would be true if applied to the particular law of any other community of human being, assuming them to resemble to the human beings who inhabit England.”Hence, there cannot be anything like particular jurisprudence and so also general.
Holland’s criticism of Austin has not, however, gone unchallenged. Holland’s assumption regarding resemblance of different communities in essential is disputed and with this fails his criticism of Austin. According to Puchta “Law has its provincialisms no less marked than language.”
“Races and Nations do not travel by the same roads and at the same rate” thus observed Maitland. For example, under Sunni school of Mohammedan jurisprudence a Muslim male cannot marry a Hindu female, if he marries, the marriage is only fasid (irregular) and can become valid or regular when the Hindu female embraces Islam. Whether she does embrace Islam or not, but the children are full legitimate and can inherit from both parents. But the parties of fasid marriage have no mutual right of inheritance. The “fasid” marriage is a specie of particular jurisprudence. Similarly son’s birth right in the ancestral property of the father is a specie of particular jurisprudence which is only found in Hindu jurisprudence.
Many other examples maybe cited but this proves that certain rules of law are applicable to certain particular social realms and at places where such followers of a particular law choose to reside.