The term “JURISPRUDENCE” has been derived from two Latin words i.e. “JURIS” and “PRUDENTIA”. The former means “LAW” and the later means “KNOWLEDGE”.
Thus, the literary meaning of Jurisprudence can safely be understood as the “KNOWLEDGE OF LAW”.
However, the meaning of jurisprudence as “knowledge of law” is too broad and indeterminate. Jurisprudence deals with various complicated angles of legal concept and theory so it is not easy to confine the whole idea of study of jurisprudence in the frame of one single definition.
Therefore, many Legal Jurists, Philosophers and Social scientists have time to time come up with different definitions of their own and have interpreted the scope of this subject as per there understanding.
Like many other branches of study, the study of Jurisprudence started among the Romans first. Some Roman Jurists have made effort to define Jurisprudence as well.
Ulpian, the great Roman Jurist defines Jurisprudence as “the knowledge of things divine and humans, the science of right and wrong”.
Roman Jurist Paulus opined that “the law is not to be deduced from the rule, but the rule from law.”
From the definition of Ulpian, it can be clearly seen that his idea of jurisprudence primarily focuses on the resemblance between law and morality.
Likewise, Paulus draws a connection between Rule and Law and sees law to be broader than the rule. These definitions by Roman Jurists are though vague and premature, have certainly laid the foundation of the idea of legal science and put forth its distinct position in society.
Other than the Roman Jurists, numbers of definitions have been given by different scholars and Philosophers around the world viz. Hobbes, Bentham, Blackstone, Austin, Salmond, Holland, Savigny, Puchta, Pound and many more. Salmond defines jurisprudence as “the Science of first principle of civil law”. Austin refers to jurisprudence as the “philosophy of positive law”.
Jurists have tried to simplify the meaning, scope, object and different other aspects regarding the subject from time to time and the process still continues.
What is Law
In order to understand jurisprudence in the right way, we must first understand the meaning and concept of law. Many a time Law has been compared with other concepts and ideas like morality, rules, values etc.
Different scholars have tried to draw the relation between law and these concepts. The word “law” covers multiple meaning and ideas in it and that is why the definitions are given by different philosophers always varies from one another. However, Law in its comprehensive sense is generally of the following kinds-
- Imperative law
- Physical or scientific law
- Natural or moral law
- Conventional law
- Customary law
- Civil law.
- Practical or technical law
- International law
The ‘imperative law’ means a percept or rule of action imposed upon men by some authority which enforces obedience to it. It basically says about the laws that are prevalent for the time being to be followed and obeyed.
‘Physical or scientific law’ is the kind of law which signifies those universal facts and rules that are observed in nature for e.g. the law of motion. It talks about all those actions that are uniform to every being.
‘Natural law’ is the principles of natural right and wrong. It deals with the ideal morality that exists. There are different other names of this law viz. ‘moral law’, ‘law of God’, ‘universal law’, ‘eternal law’ etc.
‘Conventional law’ necessarily means those rules and regulations which is an outcome of an agreement between persons, groups, organizations etc. The law they agree upon applies to those of the parties only.
‘Customary law’ is made of those rules and laws which have been observed in a particular society for a very long time. When they are recognized by the state they become a part of the ‘civil law’.
‘Civil law’ means the law of the land i.e. the law made by the sovereign authority of a state.
Then there are “international law’, ‘technical law’ that deals with rules by which different states are governed in their relation with each other and rules which ensures a fair and competitive marketplace for sellers and buyers, and has started dealing with the areas like robotic studies, artificial intelligence etc. respectively.
All these laws are not different kinds of law but they can be understood as the enumeration of various senses that law can be used. And all the senses that come out to simplify and to specialize the subject of law are necessarily covered under the study of jurisprudence.
However, Jurisprudence has been divided into different school of thoughts. And the advocates of each school define and limit the scope of jurisprudence according to their understanding. The number of schools of thought has also increased with the passage of time. Some of the very first and important school of thoughts are as follows-
- Natural law school
- Positive/ analytical school
- Historical school
- Sociological school
Natural law school means the school of thought which is based on law of nature, divine or universal law in general. This school of thought is mostly influenced by religion. It stresses the existence of universal morality in the world and in society to be specific.
Positive/analytical school is an approach which deals with legal systems and sanctions actually in force those which are exercised as a command backed by sanctions. This school puts emphasize on legislation as the most important source of law.
Historical school necessarily argues that the law found and not made. The advocates of this school believe customs, habits etc. as the source of law.
The sociological school of law emphasizes on the importance and impact of society on law and vice-versa. The advocates of the sociological school of jurisprudence believe that both society and law are dependent and related to each other. This approach takes law as an instrument of social progress.
There are some other schools of jurisprudence besides the schools that are mentioned above as well like synthetic school, legal realism etc. Almost all of these schools of thought limit themselves to some specific sphere of legal science. And that is why we study all those schools of thought in the subject of jurisprudence. Jurisprudence studies, analyses and discusses on every aspect of this whole evolution that we have come so far.
Sources of law are one of the important subjects covered understudy of jurisprudence. The major sources of laws are custom, precedent and legislation. Some argue custom to be the principal source of law, some say precedent is the main source of law and some others accept legislation as the most important source of law. Sources of law is one of the major aspects that come under the purview of different schools of thought. Viz. advocates of analytical/positive school of thought believe legislation and only legislation as the source of law.
Historical school of thought highlights on the importance of custom and precedent. Advocates of this school of thought say that customs and precedent should be the main source of law. Some jurists have their opinion that all these three sources are important in their own way but they should be followed and used as per the circumstance and public demand.
Law has been conflicted time to time with morality. In the early stages of human society there was no distinction between laws and morals. The Greeks in the name of the ‘doctrine of natural rights’ formulated a moral and theoretical foundation of law. The Roman jurists in the name of ‘natural law’ recognized certain moral rules and principles as the basis of law.
In the middle age, the Church became dominant in Europe and Christian morals were considered as the basis of law. As far as Hindu society is concerned the primary sources of law like the Vedas and Smritis do not necessarily distinguish between law and moral. However later on Mimansa laid down certain principle to distinguish obligatory injunctions from recommendatory injunctions.
It modern times there is a clear distinction between laws and morals. The morals are mostly concerned with the individual and its character development. On the other hand, laws are concerned with society at large and lays down rules in order to maintain harmony and balance in the society. It deals with the behaviour of a human being with other human beings as well as with the state.
Moral looks deep into the thought process of a human and is concerned with motive. But always sees the action. If there is no wrong action as per the prescribed law then one can not be punished by the state no matter how much ill intention he/she has in his/her mind.
The morals are ending in themselves as they are considered good and virtuous. But law is just a means to the smooth running of society.
Generally, morals are considered to be of universal value. On the other hand, law is always relative in nature. It varies from time to time, country to country and society to society.
Thus, we can conclude that morals are not equal to laws. If you look at the penal codes of different countries we can see there are some acts which are though not immoral are illegal in nature. For e.g. treason offences are not necessarily immoral but they are criminal acts. Likewise, things which are highly immoral may not come under the per view of an illegal act. For e.g. a person is passing by road where he sees that a child is drowning in the river and he is a popular swimmer but he takes no action to save that child and goes away. This might seem as a big immoral act but that person cannot be penalised as he is not legally bound to take responsibility for that child’s life. But if a father intentionally restrains himself from feeding his child and as a result the child dies then his act comes under the illegal act and he shall be penalised.
So jurisprudence helps to study all basic ideas and roots that exist before we talk about the prevailing laws and regulations distinctively. Jurisprudence goes deep into the concepts which our whole legal system in worldwide is based on. Therefore, it talks about history, the present and the future. It talks about what it was, what it is, what it should be and what could have been as well. Jurisprudence says about the very idea and philosophy of regulating human society and connects it with every corner of legal mechanism that exists.
It covers all these discussions, arguments, analysation, and many more other things which need to be studied for constant progress of society, human’s behavioural relation with it and each other.
References
Salmond on jurisprudence.
Jurisprudence Theory by Dr. B.N. Mani Tripathy.
This article has been written by Sushree Sukanya Das, 3rd-year B.A. LL.B.(Hons.) student at Madhusudan Law College, Cuttack, Odisha.
