Nature and Scope of Jurisprudence Assignment

Assignment Task

Introduction to Jurisprudence

1.1. Meaning, nature and scope of jurisprudence

The study of the Theory and Philosophy of Law is called Jurisprudence. Jurisprudence is one of the fundamental subject while studying law. There are several ideas with regards to the meaning of jurisprudence and its nature.

The term ‘jurisprudence’ has been derived from a Latin term ‘ jurisprudentia ’ which literally means ‘knowledge of law’ or ‘skill in law’. The Roman civilization, which is popularly known as the base of all human civilizations in the world, started to question the meaning and nature of law. ^[1]

• Ulpian defined law as the “ knowledge of things divine and human ”. According to him, the law is the science of right and wrong. Several jurists in Europe began to deliberate upon the meaning of the law.
• Jeremy Bentham , the Father of Jurisprudence, stated that the “ science of jurisprudence ” has nothing to do with ideas of good and bad.
• Austin , disciple of Jeremy Bentham defined jurisprudence in the following words, “ Science of Jurisprudence is concerned with Positive Laws that is laws strictly so-called. It has nothing to do with the goodness or badness of law .” According to him, laws are commands made by the sovereign and their disobedience leads to imposition of sanctions . He termed such laws as positive law and stated that the main subject matter of jurisprudence is the study of positive laws .
• Holland defined jurisprudence as “ means the formal science of positive It is an analytical science rather than a material science .”
• Keeton defined jurisprudence as, “ the study and systematic arrangement of the general principles of law .” ^[2]

Jurisprudence is the study of the Theory and Philosophy of Law. It is difficult to define jurisprudence since its contents are entirely different from other social sciences and variations relating to meaning, nature and essence of jurisprudence. Each civilisation since the ancient time has different ideas relating ti jurisprudence shaped by various factors such as social, political, economical, religious ideas prvailing in that region. Modern idea relating to jurisprudence is connected to sociology and philosophy on either sides.

1.2. Need for study of jurisprudence

The study of law and legal concepts helps in analysing and better understanding of legal complexities is the main purpose of jurisprudence. Different ideas and theories of jurisprudence helps in solving the practical world problems in the field of law. The study of jurisprudence has enormous academic value. Its helps in various studies and analysis of legal concepts anf help a professional to sharpen his legal knowledge and understanding.

The most distinct feature of jurisprudence is its relationship with other social science subjects such as history, sociology, ethics, political science, psychology ans so on. Paton backed this feature and stated that jurisprudence is based on social sciences and philosophy since it examines the historical aspect of law to address the chaos created by distincting legal systems. Even Roscoe Pound stated that Jurisprudence, ethics, economics, politics and sociology are distinct to core but at certain point overlap each other. This it can be concluded that progress in the field of jurisprudence yields greater number of social benefits,

Jurisprudence is known as the “grammar of law”. It yields effective expression which is later applied to real-life legal problems and helps in formation and progress of certain legal concepts. Jurisprudence helps in the interpretation of law and determination of legislative intent. Its helps the future of the legal systems while considering the present needs of society over the ideas of past in legal problem solving.

Jurisprudence is also known as the “eye of law”. Jurisprudence throws light upon various basic legal concepts to facilitate their effective application in deliberation of legal problems similar to how the human eye senses the light reflected from objects to make them visible.

1.3. Relation between jurisprudence and other sciences

Law regulates significant aspects of human life. In simple terms, law is a set of regulations which are formulated by the state and are binding upon its subjects. Jurisprudence is the science of law.

It has been described as the “grammar of law”. To effectively interpret the law, it is essential to understand its origin, nature, and meaning. Not only interpretation, but even the legislative process requires legislators to keep several factors in mind to ensure that the law that is made is effectively 

enforced and followed by all. Jurisprudence studies the law to facilitate better legislation as well as interpretation. In doing so, it uses the wisdom provided by other social sciences.

Jurisprudence and Sociology

The objective of sociology is to study human actions in a social environment. Its studies humans as members of social groups. Law is an important element of society. However the approach of a lawyer towards law is different than a sociologist. Sociologist understands the law to understand the society and is concerned with the impact of law upon society. A lawyer on the other hand is concerned with the law itself. The impact of sociology is so vast upon law, that sociology school of law is studied as a different branch. However both the lawyer and the sociologist needs to have certain understanding of law and society. For example, crime is essentially an act of social deviance and to study crime it is essential to have basic understanding od society.

According to Paton, it is essential to understand the relationship between law and social interests since such a study would lead to a better understanding of the evolution of law. The human factor in law cannot be entirely neglected. Various jurists such as Keeton stresses upon the necessity of studying law as a separate branch without involving social interests, however this view appears to be impractical. ^[1]

Jurisprudence and Psychology

Psychology is the scientific study of human mind and its function especially those affecting behavior. Its objective is to understand the reasons behind the way human’s reaction to a stimulus. All the social sciences, including jurisprudence, study human actions. Psychology has gained importance among other social sciences for its distinct understanding of human mind while studying human actions. Certain human actions are to be regulated using law to maintain a healthy lifestyle of the society. In order to regulate the human actions it is essential to study reasons for human behaviour. Thus it is essential for legislators as well as the jurists to study basic psychological concepts. Such understanding will ensure that the law is not only made but also effectively followed by the people.

It is often debated that jurisprudence is not concerned with human mind. However, psychological researchers have greatly contributed to penology and criminology. ^[2] Analytical school of jurisprudence ponders upon the importance of sanctions imposed by the law. It is believed by various jurists

Various jurists such as Austin disagrees upon the connection between ethics and jurisprudence and believe that complete separation of ethics from jurisprudence would completely cut out the science of law from all forms of social contact and reduce it to a “system of rather arid formalism”. ^[1]

Jurisprudence and Economics

Economics refers to the science of wealth. Both, jurisprudence, and economics aim for the betterment of the lives of the people. Economics and jurisprudence aims at betterment of society, the former through the satisfaction of needs and wants of the people while the latter through enactment of various legislations. Wealth is an important source of happiness, peace, and fulfilment in an individual’s life. Therefore, to enact welfare legislations, lawmakers should consider the science of wealth.

The intimate relation between law and economics was first emphasized by Karl Marx. After his theory, several jurists began to evaluate the relation between the science of wealth and the science of law. 

Jurisprudence and History

History studies the events and happenings of the past. Jurisprudence studies the origin and evaluation of law. The present day problems are solved and analysed on the basis of the past. Thus the relationship between jurisprudence and history in detail.

Jurisprudence and Ethics

Ethics scientifically studies human conduct. It deals with the concept of ideal human conduct. Such an ideal state is determined by the moral values prevailing in the society which is assessed by the popular opinion of what is good and what is bad. Certain acts are considered to be against the society at large and thus are penalized by law. Law in general is not concerned with the idea of what is good or bad. However these ideas may help in determination of nature of act and assess that the act should be criminalised or not. However not all unethical acts are penalised and visa versa. Ethics deals with the values and beliefs about ideal human conduct. The law plays a regulatory role upon the human conduct. Thus basic study of ethics is essential for a jurist to examine law.

Various jurists such as Austin disagrees upon the connection between ethics and jurisprudence and believe that complete separation of ethics from jurisprudence would completely cut out the science of law from all forms of social contact and reduce it to a “system of rather arid formalism”. 

Estimate of Historical School

Historical School has always maintained that law cannot be studied in complete isolation of its social aspect. It is a movement for facts against fancy. While it is recognized that the Historical School primarily studies the “evolution” of law, it is also noted by jurists that “evolution” does not mean “progress”. It has been opined by some jurists that the Historical School owes its existence as a juristic school to the fact that it supplies the historical aspect of a particular law or legal concept as an aid for interpretation. The moment it fails to do so, it shall no longer be said to be a juristic school.

2.5 Sociological School of law

The sociological school of jurisprudence started dominating over the other schools in the initial years of the 20 Century. It aims to study the circumstances that led to the emergence of legal institutions and those which control their scope and applicability thereafter. It is completely unconcerned with the ethical constituents of law. Let us look at some of the notable sociological jurists and thinkers.

One of the most important aftermaths of the Industrial Revolution was the increased tendency towards socialization amongst the people. It was recognized that to ensure justice, it is important to strike a balance between the overall welfare of the society and the protection of individual

liberties. Thus, it was opined that the society is an important element in an individual’s life and vice-versa. Approaches made from this perspective are known as sociological approaches. 

Duguit (1859-1928)

Leon Duguit challenged the existing ideas on the concepts of State, sovereignty and law and viewed them from a social perspective. According to him, the most important social reality is the interdependence of the people. With the technological and scientific advancement of man, this interdependence has also increased. Specialization has increased to such an extent that an individual needs the help and support of other individuals to survive. It has become impossible for man to survive independently, without the membership of any community. Thus, social interdependence is not an idea or a theory but an important social fact. According to Duguit, all humans must strive to ensure that individuals work and exist in perfect harmony with each other. This is known as the principle of “social solidarity”. He goes on to say that all human activity and organizations must be tested based on their contribution towards ensuring social solidarity and that the State must not enjoy any extra privileges. State is also a human organization which is necessary to protect the principle of social solidarity. The principle of social solidarity is the object as well as the limit and extent of the powers of the State. According to him, “Man must so act that he does nothing which may injure the social solidarity upon which he depends; and more positively, he must do all which naturally tends to promote social solidarity.”

Rudolf von Ihering (1818-1898)

Ihering studied the genesis of Roman law and jurisprudence. He stressed on the importance of “purpose” in guiding the human will. According to him, just as a stone cannot be moved without any external force, the human will cannot operate without any specific purpose. According to him,

the purpose of law is to protect interests. Interest refers to the “pursuit of pleasure and avoidance of pain”. Individual interest is partly affected by social factors wherein an individual takes the interest of other people into account. According to him, law strives to ensure individual good only to an end and not an end in itself. The end is the collective good or overall welfare of the society. He was also of the opinion that law is not the only method to regulate society. There are other means and methods as well. Within a society, while there may be several aspects which exclusively fall within the domain of law, there are certain aspects wherein no legal intervention is required. He recognized the coercive character of law which is why his approach is said to be a modern approach towards the study of law.

Roscoe Pound (1870-1964)

The works of Dean Roscoe Pound have greatly contributed to the school of sociological jurisprudence. His ideas are a product of his constant confrontation with sociological and philosophical problems as well as the working of the American courts. Although some may describe him as completely pragmatic or a utilitarian, he never really denied the important part played by abstract legal philosophy in the development of legal institutions. However, he did approve of the various limitations that have been imposed upon it by time and place. Pound is credited for the growth of the functional attitude in jurisprudence. Functional attitude refers to the attitude of looking at the functional aspects and working of law rather than its abstract contents. According to him, the purpose of sociological jurisprudence is to ensure that social facts are taken into consideration while formulating, interpreting, and applying laws.

Theory of Social Engineering

Pound frequently stated that the task of a lawyer is analogous to that of an engineer. Pound defined interests as wants or desires which are asserted by individuals in a society. Law must attend to such assertions to create an organized society. According to him, the purpose of social engineering is to build a society in which maximum wants are satisfied with minimum friction and waste. Thus, it must balance competing interests. Pound classified various interests as follows:

1. Private Interests- These are an individual’s “interests of personality” such as physical integrity, reputation, freedom of volition and freedom of conscience.
2. Public Interests- These are the interests asserted by individuals either involved in politics or as viewed from the standpoint of political life.
3. Social Interests- These are the interests pertaining to the social life of an individual and generalized as the interests of social groups. These may pertain to:

• General Security
• Security of social institutions
• General Morals
• Conservation of Social Resources
• General Progress
• Individual life

One of the most important outcomes of sociological jurisprudence is that it promoted field study to evaluate the interrelation between law and society. Another important outcome is that it evaluated abstracted ideas on an empirical basis. Critics have argued that the sociological school

of jurisprudence teaches “a little of everything except law.” They further state that a textbook of sociology cannot be converted into that of jurisprudence by simply changing the title. Nevertheless, it is difficult to deny the importance of sociological school in the study of law for; firstly, it helps us understand the evolution of law in a better manner, secondly, the element of human interest shall always play a prominent role in law and lastly, study of social interest leads to a better understanding of the legal system.

2.6 American Realism

The aim of American realism is to reform the law. They recognize the fact that the same cannot be done without understanding it. They are interested in studying the law “as it is” and not “as it ought to be”. This is something that they have in common with the positivists. Furthermore, they seek to understand the law by taking into consideration the sociological factors. They adopt an empirical approach to the study of law.

The American realists put too much emphasis upon the role of judges in law. According to them, the law is what the judges decide through their judgments. This tendency is due to the fact that judges have played an important role in the development of the American Constitution and subsequent laws. American realism studies the human factors involved in law. In fact, it strongly emphasizes the importance of studying such human factors. Some of the noted American Realists are as follows:

Gray (1839-1915)

John Chipman Gray is one of the “mental fathers of realist movement”. Although known to be an analytical jurist, Gray considered the judiciary, and not the legislature, to be the most important source of law. He admitted the crucial role played by “non-logical” factors, such as personality and prejudice of the judge while delivering the judgments. Gray is complimented for laying down

a solid groundwork upon which many of the most important ideas of American Realism are currently resting.

Justice Holmes (1841-1935)

Oliver Wendell Holmes J. is famous for his “bad man’s theory” which looked at law from a criminal’s perspective. Law, according to him, is meant for the potential criminals or the “bad man”. He took note of the various definitions of law based on principals of ethics, morality and natural law and rejected all of them stating that the bad man only cares about what the courts will do if he commits certain acts. Such predictions or “prophecies” regarding the actions of the courts is known as the law. He believed in the complete separation of law and morals. He was interested in studying law “as it is”.

Legal history, according to him, should only be studied to analyze the relevance of certain historical laws in contemporary times. His definition of law as ‘prediction’ resulted in the increased importance of litigation and lawyers in the field of law. His approach towards law can be said to be empirical and pragmatic. Through his literary works and the writings as a judge of the Supreme Court of America, Holmes brought about a significant amount of change in the overall attitude towards the law.

Jerome Frank (1889-1957)

Frank insisted upon the existence of two groups of realists. While one group is skeptical about legal rules providing uniformity to law, the other group is skeptical about the establishment of facts before the trial court, in addition to the skepticism about legal rules. Frank identified himself as a member of the second group. According to him, law involves the application of certain rules of law to the facts of a case by the judge. He expresses his skepticism about the accuracy in the

finding of a fact by a judge and remarks that, in most judgments, it is difficult to distinguish between the facts found by the judge, the rule of law applied to them and the subsequent combination of both, the facts as well as the rules.

Frank emphasizes the uncertainty of the law. Precedents and codified law, according to him, are made under the false belief that law should be certain. He believed judges and lawyers should accept the fact that law is uncertain and should not strictly adhere to the precedents and codified laws. Such strict adherence to precedents and codifications to ascertain the law only provides a false sense of security to them and is actually quite harmful and dangerous.

Carl N. Llewellyn (1893-1962)

Llewellyn recognized law as an institution. According to him, law is an extremely complex institution in society. It owes its complexity to the use of several precedents and ideologies in the formulation of legal principles.

He further establishes the concept of “law-jobs” wherein law has two basic functions in society:

1. to facilitate group survival.

2. to engage in a quest for justice, efficiency, and richer life.

He further expounded upon the achievement of such “law-job ends” using “legal tools”. He established the concept of “craft” as a minor institution. “Craft”, according to him, refers to the skill and “knowhow” among a group of specialists who perform certain jobs within an institution. Such group or body of specialists continuously develops its skills from time to time and then passes them over to the next generation through education and practical example. He described the legal profession as a profession involved in the practice of such crafts with the juristic method being the most important one amongst them. 2.7 Modern Trends and Theories.

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