Define and explain the meaning of Jurisprudence. What are the contents of Jurisprudence ?<\/b>
Or<\/b><\/p>\n\n\n\n
Discuss the nature and scope of ‘Jurisprudence’. Evaluate the need and importance of the subject in the study of law.<\/strong><\/p>\n\n\n\n Ans.<\/b> The word “jurisprudence” has been derived from a Latin word ‘Jurisprudentia’, which in its widest sense, means ‘knowledge of law’. The Latin word `juris’ means law and “prudentia” means skill or knowledge. Thus, jurisprudence signifies knowledge of law and its application. In this sense it covers the whole body of legal principles in the world.<\/p>\n\n\n\n Jurisprudence, in its limited sense, means elucidation of the general principles upon which actual rules of law are based. It is concerned with rules or external conduct which persons’are constraint to obey. Therefore, etymologicaly jurisprudence is that science which imparts to us knowledge above etymologically “law”. The ‘law’ of course, is a term of various connotations; here we use the term ‘law’ in its abstract sense, that is to say, in the’Sense of concrete statues not in the sense of principles underlying law. Thus, for example, there are various branches of law prevalent in a modern State such as contract, torts, crime, property, trusts, companies, labour relations, insolvency etc. and in jurisprudence we have to study the basic principles of each of these branches and we are not concerned with detailed rules of these laws.<\/p>\n\n\n\n In yet another sense, jurisprudence maybe regarded as the philosophy of law dealing with the nature and function of law. This approach to jurisprudence is receiving primacy in modern times keeping in view the rapid social changes taking place all around the world in recent years. This has eventually given rise to what is now termed as the ‘functional jurisprudence’. The thrust being on inter-relationship between law and justice.<\/p>\n\n\n\n The Indian jurisprudence owes its origin to the ancient concept of Dharma which was considered to be the best way to discipline one’s mind.<\/p>\n\n\n\n The practice of Dharma enabled citizens to inculcate a sense of discipline in conducting themselves in the society. This eventually brought about peace and prosperity in the society. However, with the march of time and progress of Indian society, the concept of law and, therefore, of jurisprudence has changed radically. India is now a Soverei Socialist, Secular, Democratic Republic. Democracy pre-supposes government of the people, by the people and for the people, and, therefore citizens are expected to be self-restrained and self-disciplined.<\/p>\n\n\n\n Definition of Jurisprudence Ulpian, the Roman jurist defined jurisprudence as “the observation of things human and divine, the knowledge of the just and the unjust.<\/p>\n\n\n\n Jaimini has defined Dluuma as “that which is signified by a command, and leads to man’s material and spiritual salvation.”<\/p>\n\n\n\n According to Yajnavalkya ‘Vyavallara’, means those rules which determine the judicial proceeding or controversies. Thus, in this sense jurisprudence deals with the principles underlying the rules which applied in deciding the legal controversies judicially.<\/p>\n\n\n\n Professor Gray has opined that “jurisprudence is the science of law, the statement g.nd systematic arrangement of the rules followed by the courts and the principles involved in those rules.” Thus, jurisprudence deals with that kind of law which consists of rules enforced by courts while administering justice. In other words, the laws of the jurist deals with man and seek to regulate external human conduct in the society.”<\/p>\n\n\n\n Salmond defines jurisprudence as the “Science of the first principles of the civil law.” Thus, he points out that jurisprudence deals with a particular species of law, viz., civil law or the law of the State. The civil law consists of rules applied by courts in the adminsitration of justice. He agrees with Gray in upholding that jurisprudence is concerned with only jurist’s law and is not concerned with the laws of theologian and moralist although they also govern the conduct of man in society. The juristic laws regulate external human conduct only and not the inner beliefs of man. They are enforced by courts of judicial tribunals and carry with them sanctions ranging from capital punishment to a fine or even, a mere admonition. The certainty of the sanctions and the existence of a determinate authority for enforcement distinguishes jurist’s law from that of the moralist.<\/p>\n\n\n\n\n\n\n\n (1) Expository or systematic jurisprudence, which deals with the contents of an actuallegal system, as existing at any time whether past or present.<\/p>\n\n\n\n (2) Legal history, which is concerned with the legal system in its process of historical development.<\/p>\n\n\n\n (3) The science of legislation, the purpose of which is to set forth law as it ought to be. It deals with future of the legal system and the purpose which it may serve.<\/p>\n\n\n\n Arnold has defined jurisprudence, “as the shinning but unfulfilled dream of a world governed by reason. For some, it lies buried in a system, the details of which, they do not know. For some, familiar with the details of the system, it lies in the depth of an unreal literature. For some, familiar with its literature, it lies in the hope of future enlightenment. For all, it is just around the corner”‘.<\/p>\n\n\n\n According to Radcliffe, “jurisprudence is a part of history, a part of economics and sociology, a part of ethics and philosophy of life” Thus, it is an amalgam of a number of other disciplines inter-woven together for the common good of the society.”<\/p>\n\n\n\n E. W. Patterson defined jurisprudence as a “body of ordered knowledge which deals with a particular species of law”.<\/p>\n\n\n\n The contexual meaning and contents of jurisprudence show that it involves an analysis and exposition of law in its various facets. Thus, it is a systematic study of the law as expounded by Austin and his successors. Such a study of law totally excludes customary practices and social or moral vagaries and fantacies which may dilute the contents of law. This is the reason why positivists insisted that law is a command of the sovereign so as to make legal system formal, logical, and empirical, quite unaffected by moral values or societal ethos. This methodology and approach to the study of law has brought it nearer to be reckoned as science.<\/p>\n\n\n\n The beginning of 20th century brought in its wake, a new approach to the study of law in relation to society which treats law as a ‘social engineering’, that is, an instrument of social change, European jurists like Lhering, Ehrlich, Max Weber and American legal thinkers such as Roscoe Pound and 0. W. Holmes and others gave new dimensions to law as an instrument of social change. They emphasised that law has to function within the parameters of social dynamics and needs of the society. Thus, function of law is to supplement social sciences. It is in this context that G. W. Paton suggests the study of jurisprudence should be integrative and synthetic and purposive This view finds further support from Julius Stone who calls jurisprudence as lawyers’ extraversion, which means that lawyers’ examination of the precepts, ideals, and techniques of law should proceed in the light of present knowledge in disciplines other than law. Thus Stone emphasises on inter-disciplinary approach to the study of law.<\/p>\n\n\n\n These propositions amply justify that jurisprudence can rightly be treated as a science like any other social science.<\/p>\n\n\n\n The scope of jurisprudence has widened considerably over the years. It is generally believed that the scope of jurisprudence cannot be circumscribed. Broadly speaking, jurisprudence includes all concepts of human order and human conduct in State and society. In other words, anything that concerns order in the State and society will be within the domain of jurisprudence. commenting on the scope of jurisprudence, Justice P. B. Mukerjee observed, “jurisprudence is both an intellectual and idealistic abstraction as well as behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to State and society.<\/p>\n\n\n\n Jurisprudence involves certain types of investigations into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems. Elaborating the point further, Salmond observed, “in jurisprudence we are not concerned to derive rules from authority and apply them to problem; we are concerned rather to reflect on the-nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal system”. This makes the distinction between law and jurisprudence amply clear. Thus, whereas in law, we look for the rule relevant to the given situation, in jurisprudence we ask, what is for a rule to be legal rule, and what distinguishes law from morality; etiquette and other related phenomenon. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rule but to reflect on the rules already known.<\/p>\n\n\n\n (i) Sources :<\/b> It is well-known that the basic features of a legal system are mainly to be found in its authoritative source and the nature and working of the legal authority behind these sources. Therefore, they obviously form the contents of jurisprudence. Under this head matters such as customs legislations, precedents as sources of law, pros and cons of condification of law, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for study.<\/p>\n\n\n\n (ii) Legal concerts. : <\/b>Another area which concerns jurisprudence is the analysis of legal concepts such as rights, property, ownership, possession, obligations, acts, negligence, legal personality and the related issues,. Although all these concepts are equally studied in the ordinary branches of law, but since each of them functions in several different branches of law, jurisprudence tries to bring out a more comprehensive picture of each concept as a whole. The study of these abstract legal concepts furnishes a background for better understanding of law in its various forms.<\/p>\n\n\n\n (iii) Legal Theory :<\/b> Besides the sources and the forces operating behind them and various legal concepts, legal theory also constitutes one of the main components of jurisprudence. Legal theory is concerned with law as it exists and functions in the society, and manner in which law is created and enforced as also the influence of social opinion and law on each other. Thus, legal theory seeks to co-relate law with other disciplines such as religion, philosophy, ethics, politics etc. and pursues its study in a wider sociolegal perspective. It is, therefore, necessary that while analysing legal concepts, an effort should be made to present them in the background of social developments and changing economic and political attitudes.<\/p>\n\n\n\n There is a general confusion about practical utility of jurisprudence as a subject. It is often alleged that jurisprudence being an abstract and theoretical subject, is devoid of any practical utility. But this view is not supported by Salmond who pointed out that jurisprudence has its own intrinsic interest like any other subject of serious scholarship. The legal researches on jurisprudence may well have their effect on contemporary socio-political thought and at the same time, may themselves be influenced by these ideologies.<\/p>\n\n\n\n Jurisprudence also has its practical applicability. It seeks to rationalise the concepts of law which enable us to solve the different problems involving intricacies of law. In other words, it serves to render the complexities of law more manageable and rationale and in this way this can help to improve practice in the field of law.<\/p>\n\n\n\n These apart, jurisprudence also has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shedding aside their rigidity and formalism and trains them to concentrate on social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to take note of the needs of society and also of the advances in the related and relevant disciplies such as sociology, economics, philosophy, psychiatry etc.<\/p>\n\n\n\n Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the Legislature by providing the rules of interpretation. It also furnishes them opportunity to pin point the lacunae, shortcomings and defects in the laws framed by the legislature and improvise them through their judicial interpretation.<\/p>\n\n\n\n The study of jurisprudence helps in rationalising the thinking of the students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face exigencies of human life boldly and courageously.<\/p>\n\n\n\n Jurisprudence may also be helpful to legislators who play a crucial role in the process of law-making. The study of jurisprudence may familiarise them technicalities of law and leagl precepts thus making their job fairly easy as also interesting.<\/p>\n","protected":false},"excerpt":{"rendered":" Define and explain the meaning of Jurisprudence. What are the contents of Jurisprudence ?Or Discuss the nature and scope of ‘Jurisprudence’. Evaluate the need and importance of the subject in the study of law. Ans. The word “jurisprudence” has been derived from a Latin word ‘Jurisprudentia’, which in its widest sense, means ‘knowledge of law’. 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