Jurisprudence is the theoretical and analytical study of law. It is often termed as the grammar and philosophy of law. Jurisprudence was first originated in the classical Greek period, and later it went through several changes in the 21st century. Every year, new changes are made to the jurisprudence practice to help people understand it better. The primary focus of jurisprudence is theory and legal principles. The legal structure was formed based on the same set of legal principles. Jurisprudence is when a person creates ideas in their mind relating to a particular legal theory. In jurisprudence, legal studies are the foundation steps. It is a process in which an individual reflects on a certain aspect of law, or its characteristics, or the complete legal system. In simple words, if you are studying property law and trying to understand why it was formed and how it is relevant to your area, it is jurisprudence. When a person studies jurisprudence, he can ask questions about a particular law and the reason behind its formulation, and how different it is from a custom or a moral principle.
Jurisprudence acquired a new term and meaning in the mid-18th century though its origin can be traced back to a few decades before. Jurisprudence is derived from the Latin word ‘jurisprudentia,’ which means ‘knowledge of the law.’ Generally, it refers to practicing law while exercising common sense, good judgment, and caution.
Jurisprudence is generally defined as the theoretical and philosophical study of law. Various jurists have defined Jurisprudence in their own terms:
According to Robert Keeton, an American lawyer, jurist, and legal scholar,
Jurisprudence is the study and scientific synthesis of the essential principle of law.”
Dias and Hughes
According to Dias and Hughes,
Jurisprudence is any thought or writing about law rather than a technical exposition of a branch of law itself.”
According to Ulpian, a Roman jurist,
Jurisprudence is the knowledge of things divine and human. The science of the just and unjust.”
Bentham and Austin
John Austin, the student of Jeremy Bentham, popularized Bentham’s views about law and jurisprudence. According to Austin,
The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”
Nature of Jurisprudence
One can find that each scholar defines jurisprudence in a different manner. When one scholar defines this term, another criticizes it and provides another definition from his perspective. Following is a short description of what some eminent scholars state about jurisprudence.
Austin made a significant contribution to the subject of jurisprudence. He analyzed English law in detail and stated that ‘law is the command of the sovereign.’ This eventually became the framework of the legal system in England and adopted the Expository Approach. Further, he defined jurisprudence as ‘the philosophy of positive law.’ He divided it into two major categories:
It refers to the subjects of law as a standard in a system. It is generic and wider in scope.
It refers to the science of any legal system or a part of the system. It is specific and focuses only on one aspect.
He criticized Austin’s definition of jurisprudence as certain concepts do not fall in either of the categories laid down by Austin. According to Salmond, jurisprudence is the ‘science of law.’ His division of law includes two parts:
All the legal doctrines are included in this part.
It refers to a part of a doctrine or a specific department. Specific jurisprudence is further divided into analytical jurisprudence, legal history, and science of legislation.
Another eminent scholar who criticized Austin’s theory was Holland. According to Holland, jurisprudence is an analytical science and is ‘the formal science of positive laws.’ He stated that positive law is the general rule of human actions enforced by a sovereign body. He added the word ‘formal’ to Austin’s definition because he referred to only the form and not the essence. According to him, to study jurisprudence, it is alright to analyse the external elements of a law and not go into detail. Jurisprudence is related to the fundamental aspects of law and not the minor parts. Hence, it is known as a formal science. Jurisprudence organizes details about intellectual property and other topics. Hence, it is known as a science.
Julius Stone based his study on the lawyer’s extraversion. According to him, it is the lawyer who examines the ideas, concepts, and methods of a law.
In the Indian context, jurisprudence is related to Dharma. Dharma gives a moralistic interpretation of jurisprudence as it talks about duty in various contexts including social, legal, and spiritual duties. In a nutshell, Dharma connotes righteousness.
Scope of Jurisprudence
Over the years, the scope of jurisprudence has changed widely, but the distinction between law and jurisprudence is pretty clear. Jurisprudence is the philosophy of law, but it does not refer to creating new rules and regulations. It reflects over a certain rule or set of legal rules. One can say that there is no agreement in the scope of jurisprudence. Each scholar says different things. Some have included moral and religious elements and made it more complicated. Several scholars have criticized Austin’s theory. But his definition shows us the difference between laws and theories. He has set boundaries for the term jurisprudence in a territory and by a sovereign authority. But other scholars have not preferred this definition. In modern times, the scope of jurisprudence refers to human conduct and human order. It is the study of law, and it is not the law itself – one should understand this basic difference.
There are two approaches to the study of jurisprudence:
Facts to generalization approach.
Generalizing the evaluated facts.