NATURE AND SCOPE OF JURISPRUDENCE

 

NATURE AND SCOPE OF JURISPRUDENCE

 

Jurisprudence and Legal Theory

 

Definition or Meaning of Jurisprudence

 

The word ' jurisprudence ' is derived from the Latin word ' jurisprudentia ' which denotes " the knowledge of law ' . In Latin , ' jure ' or juris ' means law ' or ' legal ' and ' prudentia ' means ' skill or knowledge ' .

 

In French law , la jurisprudence ' is the term applied to the body of law built up by the decisions of particular courts . In France , jurisprudence is called ' la philosophie du droit ' that is the philosophy of rights , that is of law - in the abstract sense of the term ' law ' .

 

In Germany we have the term ' rechts philosophie ' that is the philosophy of rights , that is of law in the abstract sense .

 

According to L.B. Curzon , to define ( anything ) is to state with an acceptance degree of precision the sets of properties possessed by the phenomenon which is to be determined i.e. to determine essential qualities . He further states in his " Jurisprudence " that Jurisprudence presents some difficulties : it seeks to range over law in its entirety ; it embraces a large variety of peripheral matters ( e.g. psychological and economic interpretations of legal phenomena ) ; it involves enquiries of a fundamental nature ( What is a right ? What is a duty ? ) , which in themselves , turn upon the definition of other terms and the essential nature of ' meaning ' .

 

The celebrated Roman juris - consult Ulpain ( 180-228 AD ) defines jurisprudence as " the knowledge of things , human and divine ; the science of the just and the unjust " . Cicero defines jurisprudence as " the philosophical aspect of the knowledge of law " . According to Cicero , the study of law must be rooted in the depths of philosophy , and by an examination of the human mind and the social nature of man , deep principles of true justice may be embedded in our laws , without which the rules of positive law are but of a trivial importance .

 

According to Salmond , Jurisprudence may be defined as " the science of civil law " . Austin refers to jurisprudence as " the philosophy of positive law " . Holland defines it as " the formal science of positive law " . According to Gray , jurisprudence is " the science of law , the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules " .

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Modern writers are agreed that the term jurisprudence does not merely represent ' a knowledge of law ' ; it covers a field much wider than this . Prof. Allen has defined jurisprudence as ' the scientific synthesis of the essential principles of law ' . To Paton , it is a particular method of study , not of the law of one country but of the general notion of law itself . And , according to Prof. Keeton , it is a study and systematic arrangement of the general principles of law.

 

P.J. Fitzgerald states that " Jurisprudence is the name given to a certain type of investigation into law , an investigation of an abstract , general and theoretical nature , which seeks to lay bare , the essential principles of law and legal systems .

 

 According to Professor Jolowicz , " Jurisprudence is a general theoretical discussion about law and its principles , as opposed to the study of actual rules of law .

" As per Julius Stone , " Jurisprudence is the lawyer's examination of the precepts , ideals and techniques of the law in the light derived from present law in the light derived from present knowledge in disciplines other than law . "

Lord Cross says , " Jurisprudence is the study of a lawyer's fundamental assumptions . "

 

Schumpeter states that jurisprudence is the sum total of the techniques of legal reasoning and of the general principles to be applied to individual cases .

 

To Karl N. Llewellyn ( 1893-1962 ) , " Jurisprudence means any careful and sustained thinking about any phase of things legal , if the thinking seeks to reach beyond the practical solution of an immediate problem in hand . It includes all types of honest and thoughtful generalisation in the field of law . "

 

Dr. Edward Jenks in " The New Jurisprudence " states that a treatise on jurisprudence may go into the minutest particulars or be confined to the most general doctrines and in either case deserves its name ; what is essential to it is that it should be an orderly , scientific treatise in which the subjects are duly classified and subordinated .

 

In the Oxford English Dictionary , jurisprudence is defined as " knowledge of skill in law ; the science which treats of human laws ( written or unwritten ) in general ; the philosophy of law ; a system or body of law " .

 

Basing on the above definitions , we may define jurisprudence as the study of fundamental legal principles , including their philosophical , historical,  and social basis , and an analysis of legal concepts . Thus , jurisprudence is considered as the study of fundamental legal principles , and is concerned with the normative and not merely the positive ; it is concerned not merely with the actual , but also with the ideal . It may be considered as philosophy of law and quintessence of law . We may conclude by saying that jurisprudence is the science of law dealing with profound legal principles which influence and change human conduct from time to time .

 

 

Meaning of Legal Theory

 

The term ' legal theory ' has been , for the first time , coined by W. Friedmann in 1945 in his work ' Legal Theory ' . Since then it has become popular amongst the continental and American jurists who refuse to accept the traditional Anglo - Saxon concept of jurisprudence .

 

The term ' legal ' , according to Chambers Twentieth Century Dictionary , means " pertaining to , or according to law " ; and the term ' theory ' means " an explanation or system of anything ; an exposition of the abstract principles of a science or art " . Legal theory , may , therefore , be defined as the exposition of the abstract principles of the science of law , or a systematic study and analysis of law in all its bearings .

 

Prof. W.Friedmann says , " But all legal theory ideology , as must contain elements of philosophy man's reflections on his position in the universe - the ideas entertained on the best form of society . For all thinking about the end of law is based on conceptions of man both as a thinking individual and as a political being . "

 

According to John D. Finch :

 

 " Broadly speaking , legal theory involves a study of the characteristic features essential to law and common to legal systems an analysis of the basic elements of law which made it law and distinguish it from other forms of rules and standards , from systems which cannot be described as legal systems and from other social phenomena . "

 

The term ' legal theory ' is generally used in the sense as an evaluative and normative study of the concept of law and its relationship with morality and justice which the law subserves . Such a study of law involves value judgments of the social goals and of ideological and political goals which the legal system is to conserve or cater . The term ' legal theory ' has both philosophical and sociological implications . It is an evaluative and philosophical study of law in terms of ends , values and goals which law ought to sub - serve . The continental jurists like Ihering , Stammler , Duguit , Kohler , Geny and the American jurists , who have propounded the theory of ' living law ' , ' law with ever changing content  or law based on ' felt - needs ' or social forces and processes have adopted an evaluative and philosophical approach towards law which is supposed to sub - serve by putting forth the moral , social and human factors as lodestar for law.

 

Professor W.Friedmann has explained the relation of legal theory with philosophy and political science as under : " All systematic thinking about legal theory is linked at one end with philosophy and , at the other end , with political theory . Sometimes the starting - point is philosophy , and political ideology plays a secondary part - as in the theories of the German classical metaphysicians or the Neo - Kantians . Sometimes the starting - point is political ideology , as in the legal theories of Sociological and Fascism . Sometimes theory of knowledge and political ideology are welded into one coherent system , where the respective shares of the two are not easy to disentangle , as in the scholastic system or in Hegel's philosophy system . But all legal theory must contain elements of philosophy of man's reflection in the universe - and gain its colour and specific content from political theory the ideal entertained on the best form of society . For all thinking about the end of law is based on conceptions of man both as a thinking individual and as a political being . "

 

The principles of legal theory bring about homogeneity and accuracy in legal phraseology . The purpose of studying legal theory is to be capable of discovering legal fallacies which would otherwise remain unnoticed . It provides as part of the training of lawyers , something which a mere technical training in the substantive law cannot give them , something which is not only an addition to their technical equipment but which is also an education in the broad sense of the term that is to say an outlook on the law as it stands in relation to other fields of knowledge .

 

Professor W.Friedmann states , " Before the nineteenth century , legal theory was essentially a byproduct of philosophy , religion , ethics or politics . The great legal thinkers were primarily philosophers , churchmen and politicians . There is a decisive shift from the philosophers or politicians to the lawyers . Legal philosophy is of fairly recent date . It follows a period of great development in juristic research , technique and professional training . The new era of legal philosophy arises mainly from the confrontation of professional lawyer in his legal works , with problems of social justice . " It can be said that legal theory should include elements of philosophy and derive its substance from political theory . According to Rob - bruch the task of legal theory is the " classification of legal values and postulates upto their ultimate philosophical foundation . "

 

Differences and Similarity of Jurisprudence and Legal Theory

 

Legal scientists use ' jurisprudence ' and ' legal theory ' interchangeably. But P.J. Fitzgerald who edited ' Salmond on Jurisprudence ' used these terms varyingly . He says , " Jurisprudence is the name given to a certain type 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 " . In other words to Fitzgerald jurisprudence is both a philosophy of law and a reflective study rules which form the basis of concrete legal problems.

P.J. Fitzgerald says that legal theory is " an attempt to answer the question , ' What is law ' ? in order to clarify the most of all legal concepts , the concept of law itself . It means legal theory is essentially a theoretical evaluation and an objective inquiry of the basic nature , meaning and purpose of law - not what legislature or court define in their day - to - day affairs but of basic concept of law in order to ascertain whether and to what extent the inter - relationship between law , morality and justice is necessary to determine the true nature and functions of law . Legal theory is concerned with law as it exists and functions in society ; and the way in which law is created and enforced . The essential task of legal theory is to examine and analyse the philosophical notion of law which itself is confounded by divergent philosophical , political and ideological controversies .

 

Legal theory is not concerned with or interested in the entire field with which jurisprudence is concerned . Its principal concern is to analyse what can be described as fundamental elements of the phenomenon ' law ' . But the distinction so made between ' jurisprudence ' and ' legal theory ' appears to be of semantic value . The distinction of these terms is illusory as their contents are not only inseparable as are their respective goals and purposes . The distinction between the two is one of emphasis and of range only rather than of content . Both are concerned with general nature of law , in factors whether social , economic or political which influence law and in the modes and methods which are adopted for evaluating and evolving various legal concepts and theories .

 

We can consider the terms ' jurisprudence ' and ' legal theory ' as synonyms as jurisprudence is the science of law and legal theory is the theory of law and as both study and analyse the law in all its bearings though jurisprudence is a wider term than the legal theory . '

 

Nature and Scope of Jurisprudence

 

Jurisprudence is an investigation of an abstract and theoretical nature of law . It deals with the essential principles of law and legal system . It does not constitute a set of rules . It is not derived from authority and it is without practical application . It comprises philosophy of law . Its object is not to discover new rules but to reflect on the rules already known.

 

Jurisprudence is normative evaluation of basic legal values and ideals which impart validity and recognition to a legal system . It is a conceptual analysis of theory of law correlated to socio - political goals of a society which provide explanation , justification and meaning to the totality of legal system . Jurisprudence is not merely a study of abstract ideas which governed human conduct during different periods or a set of concrete rules based on determinism and induction , it is also a value oriented method to resolve varying social interests which call for legal recognition and enforcement .

 

Jurisprudence is a science in so far as it deals with the knowledge of the law and legal principles . It is also a history in so far as it studies the origin of law , the history of primitive institutions , customs , usages etc. and traces the evaluation of the legal system of the world . Jurisprudence is a philosophy in so far as it deals with the ethics as also the normative sociology of law . Jurisprudence is a social study, and the best jurists are those who make good laws , and good laws are those which are capable of doing the greatest good to the largest number in society.

 

Jurisprudence is an experimental study of legal ideas and ideals and of social philosophy and political ideology in form and content , nature and function which make it a living and dynamic discipline- ' a master science ' of legal thought .

 

Jurisprudence is indeed an intellectual inquiry and exercise concerning the nature of law and basic functions of law , the relationship between law and justice , and law and morals etc. Functionally speaking , it is a technique or methodology to devise , design and identify such pressing demands or problems which require solution with the parameters of law and other social norms .

 

Jurisprudence as Philosophy of Law

 

From ancient period to nineteenth century , law was inseparable part of beliefs , myths , philosophy and religion . As a philosophy , Jurisprudence examines whether the law is as it ought to be . Jurisprudence was understood and interpreted as a product of customs , intuition , morality , ethics etc. The Roman thinker Ulpian defined jurisprudence in his famous formula , ' to live honestly, to injure no one , and to give every man his due ' and makes it the ' science of just and unjust '.

 

Jurisprudence is intended initially to control human conduct with the help of ideal laws . The philosophers believed that these laws are devised by some supernatural power for establishing righteousness , justice and order in society . For ancient Greeks Delphin's Oracle was considered as the Divine Will . They believed that the king was the Supreme Judge and law was an instrument of eternal peace . The philosopher - king - the wisest and unselfish required no guidelines as he was free from passion and desire .

 

Plato never looked at law in isolation from religion and ethics . Aristotle believed that a state based on law was the only practicable means of achieving ' good life '.

 

The Roman philosophers , jurists and thinkers carried further the rich legacy of the Greeks . They considered human reason the foundation of law and justice . Cicero declared that ' true law is right reason in agreement with nature ' . Other Roman jurists like Gaius , Celsus and Paul also tried to mould actual legal rules to conform to higher ideals of reason and justice .

 

During the medieval period legal philosophy acquired religious fervour . The earlier Jesuit fathers of Christian Church postulated a legal theory wherein the Emperor was the temporal head in wordly affairs and Pope was the Supreme Authority over spiritual matters . When rivalry for the supremacy started between the Emperor and the Pope , Roman Pope acquired ascendency . The Canon Law acquired universality by being theological , ethical and legal . St. Agustine considered State as a sinful institution in which Church as custodian of lex aeterna may interfere at will . The Christian fathers declared that ' we ought to obey God rather than men . The content of jurisprudence had become overwhelmingly religious and orthodox in character .

 

From sixteenth century onwards the theological natural law was gradually substituted by a rationalist philosophical law by separating jurisprudence from religion . Grotius finally set free jurisprudence from theology and placed natural law entirely on a rationalist basis . He was followed by Pufendorf , the propagandist of rationalist natural law . Hobbes also indirectly makes law of reason as the basis of natural law and the sovereign will protect their natural rights , social peace , safety of life and property .

 

The natural law philosophers like Locke and Montesquieu regard natural law as a check on absolutism and despotism , Rousseau , the great champion of individual freedom makes individual only subject to the general will . To Kant natural law provides the limits to individual freedom to provide equal liberty and freedom of others . This principle makes a man a rational being and achieve harmony of all beings under a principle of reason . Kant says , ' Act in such a way that the maxim of your action could be made the maxim of general action . The entire legal structure of Kant is guided and controlled by moral order . Kant's emphasis on law as a function of the State paved the way for the rise of positivism in the nineteenth century .

 

Jurisprudence- a Science of Law

 

Science is primarily a quest for knowledge . Science is the systematised knowledge of any subject of intellectual inquiry . Science is , also , an objective , logical and systematic method of analysis of phenomena devised to permit the accumulation of reliable knowledge . Science is more precise and more concerned with truth.

 

Jurisprudentia est divinarum atque humanarum rerum notitia justi atque injusti scientia : ' Jurisprudence ' is the knowledge of things divine and human , the science of what is right and what is wrong ( Black's Law Dictionary )

 

Jurisprudentia legis communis angliae est scientia socialis et copiosa . The jurisprudence of the common law of England is a science social and comprehensive.

 

Jurisprudence is the science of law which treats the principles of positive and substantive law and legal relations . Its function is to ascertain the principles on which legal rules are based to classify them in their proper order and show the relation in which they stand to one another . It is not merely a history of law ; its function is to separate the essential elements of legal principles from its historical accidents on a comparative study of the legal institutions of various countries . It has no direct concern with questions of moral or political policy , but when a new and doubtful case arises to which two different rules seem , when taken literally , to be equally applicable , it may be , and often is , the function of jurisprudence to consider the ultimate effect which would be produced if each rule were applied to an indefinite number of similar cases , and to choose that rule , when so applied as will produce the greatest advantage to the community ( Latin for Lawyers ).

 

Austin calls jurisprudence as ' Science of Law ' . Salmond calls it as ' science of civil law ' . Holland defines it as ' the formal science of positive law ' . Allen calls it as ' the scientific synthesis of the essential principles of law '.

 Jurisprudence being a science of law deals with the abstract principles . " The end of Jurisprudence " , says Moyle , " is in general the same as that of all science ; a complete grasp , a systematic penetration of its subject - matter ; the power of following the most general propositions into their minutest ramifications , and inversely of ascending from the most concrete case , through all intermediate stages of thought the principle which governs it . "

 

David Hume (1711-1776) demonstrated that ' reason ' as understood in the system of natural law was confusing , unreal and illogical . He observed that reason in itself dictates no way of acting . He says that the sense of pleasure and pain guides all actions . His theory ushered a scientific and critical approach to the study of social phenomena . The French philosopher Auguste Compte ( 1798-1857 ) rejected all a priori speculative thinking and confined his analysis to observe facts as they exist . Compte called this kind of explanation - ' positive ' because it confines itself to positive an empirical verification of facts and data ascertainable by observation and analysis . Thus , the era of philosophical natural law as developed from Grotius to Kant came to an end in the nineteenth century with the rise of positivism of Compte.

 

Jurisprudence - as ' Science of Legal Positivism ' - Jeremy Bentham (1748-1832)

 

In England legal positivism was proposed by Thomas Hobbes ( 1588 1679 ) and then by Jeremy Bentham and both of them correlated law with sovereignity and utility . Bentham says , " Nature has placed mankind under the governance of two sovereign matters , pain and pleasure . It is for them alone to point out what we ought to do , as well as to determine , what we should do " . He adds : " By the principle of utility is meant that principle which approves or disapproves of every action whatsoever according to the tendency , which it appears to augment or diminish the happiness of the party whose interest is in question ; or , what is the same thing , in other words , to promote or to oppose that happiness . "

 

Bentham distinguished what he called evaluative ( censorial ) jurisprudence or science of legislation from analytical ( expository ) jurisprudence which was concerned with law as it is , without regard to its moral or immoral character . He expounded the concept of positive law commanding citizens which they are obliged to do with a threat of sanction and legal consequences that flow in the event of disobedience of the command of the Sovereign . Bentham is considered as one of the greatest analytical jurists of all times.

 

Jurisprudence - as ' Science of Positive Law ' - John Austin (1790-1859)

 

It is Austin who for the first time treated jurisprudence as a science of with analysis of legal concepts - their exposition , examination , comparison and above all distinguishes them logically and scientifically in order to determine their exact scope and role within a given politically organized society . Austin says , " the matter of jurisprudence is positive law , law simply and strictly so - called or law set up by political superior to political inferior ' . In other words for Austin the appropriate subject of jurisprudence is positive law , that is existing by position i.e. law as it is in an independent political community by the express or tacit authority of its Sovereign or supreme government . Accordingly , he described that ' jurisprudence is a philosophy of positive law ' and distinguished it from the ' science of legislation ' . He asserted that ' science of jurisprudence is concerned with positive laws without regard to their goodness and badness " .

 

For Austin jurisprudence is not a moral philosophy but it is a scientific and systematic study of the existing , actual and positive law as distinguished from material , ideal or moral law . Austin says that the science of law is concerned with law as it is and it is not concerned with law as it ought to be . For him law as it is i.e. , positive law is the science of legislation . His principal objective , therefore , is to distinguish law from mass of customs and ethical abstract ideas in order to determine the meaning and scope of jurisprudence . Hence the subject - matter of jurisprudence is the positive law which according to Austin consists of commands set as general rules of conduct by a sovereign to a member or members of the independent political society wherein the author of the law is supreme.

 

 According to Hobbes , " Positive laws are those which have not been from eternity ; but have been made laws by the will of those that have had sovereign power over others " . Positive law is the law enforced by a sovereign political authority and regulates the legal relations between individual inter se and the relations of individuals with the state . Further , positive law means law as it actually is , not as it ought to be . Austin sharing these views states , " the matter of jurisprudence is positive law " . " Positive Law " as used by Austin is identical with ' Civil Law '.

 

The term ' philosophy ' used by Austin in describing jurisprudence is somewhat misleading . Philosophy deals with the most general theories about things , human and divine while jurisprudence restricts to the general theory of man - made law.

 

Austin discovered certain common , similar general principles in all politically organized system while recognising that every system of law has its specific and peculiar characteristic differences . He described these common basic laws and principles as ' general jurisprudence ' as distinguished from specific local laws obtained within one particular legal system as particular jurisprudence . Thus , jurisprudence is a philosophy of positive law of two types general and particular.

 

By general jurisprudence he means the philosophy of positive law . General jurisprudence , according to Austin means , " 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 mature systems which , by reason of their amplitude and maturity , are pre - eminently frequent with instruction.

 

 " Particular jurisprudence is the science of any actual system of law or any portion of it . The only practical jurisprudence is particular . The proper subject of particular jurisprudence is concerned with specific state or national law or particular area of such state law " . Thus by particular jurisprudence means , " the science of any such system of positive law as now actually obtained or once actually obtained in specific determined nation " .

 

Gray accepts Austin's classification of jurisprudence into ' general ' and ' particular ' , though he prefers the term comparative jurisprudence in place of general jurisprudence . Allen also agrees with Austin . He says that there are certain elements inherent in the conception of law as a phenomenon of social life and there is possibility of existence of general jurisprudence.

 

Criticism :

 

(1) Social and economic variations of different tems are so great that a general theory of legal principle as stated by Austin is impracticable and unscientific .

 

( 2 ) Salmond refused to accept what Austin calls ' general jurisprudence ' . In the words of Salmond , " Jurisprudence generalis is not the study of legal systems of general but the study of the general and fundamental elements of a particular legal system " .

 

(3) Holland while criticizing Austin's definition says that no general jurisprudence is possible.

 

Jurisprudence - as ' Formal Science of Positive Law ' - Sir Thomas Erskine Holland ( 1835-1926 )

 

Holland defines jurisprudence as ' the formal science of positive law ' . Positivism in legal theory means a method of examining man - made law which has actually been laid down by men for men or ' posited ' . It also means the study of law as it is as distinct from law as ought to be . Holland himself explains that by the term ' formal ' he means ‘ analytical ' as ' opposed to material one ' . The term ' formal ' deals with various relations which are regulated by legal rules than with rules themselves which regulate those relations .

 

According to him , jurisprudence is " the formal science of those relations of mankind which are generally recognised as having legal consequences , the formal science of positive law " . In other words , he says , jurisprudence is not a science of legal relations a priori as they might have been or should have been , but is a posteriori ... that is to say of law which has been actually imposed or positive law'.

 

Holland says , " Jurisprudence is not the material science of those portions of law which various nations have in common , but the formal science of those relations of mankind which generally recognised as having legal consequences ".

 

Jurisprudence should concern itself with the general portion of legal doctrine . It should deal with the general conceptions and pervading principles that constitute the basis of any mature system of law . In every system of law . there are certain fundamental conceptions and broad principles which serve as the basis for the concrete details of the law . Notions of property , contract , possession etc. are basic to any well - developed legal system . Jurisprudence separates these ideas and frames out a scheme of their purposes , methods and principles without going into the specific rules relating to them in any particular legal system .

 

Jurisprudence consists not of a set of rules , the contents or matter of which is of universal application . It is concer with all those topics dealt with in every system of law . Holland observes that comparative law collects and tabulates the legal institutions of various countries , and from the results thus prepared , the abstract science of jurisprudence is enabled to set forth an orderly view of the ideas and methods which have been variously realised in actual systems . For example , the office of comparative law ascertain what have been at different times and places the period of prescription , or the requisites of a good marriage . It is for jurisprudence to elucidate the meaning of prescription , in its relation to ownership and to actions ; or to explain the legal aspect of marriage , and its connection with property and the family . Jurisprudence is , therefore , not the material source of those portions of the law which various nations have in common , but the formal science of those relations of mankind which are generally recognised as having legal consequences .

 

Holland says , " Jurisprudence deals with the human relations which are governed by rules of law rather than with the material rules themselves " . Specific rules are the appropriate subject - matter of legal exposition or compilation rather than of juristic science . Since jurisprudence deals only in a " formal or abstract way with those relations of mankind which are generally recognised as having legal consequences " , Holland calls it a formal science .

 

Holland observes that the positive law is distinguishable not only from all rules which , like the principles of morality and the so called laws of honour and of fashion , which are enforced by an indeterminate authority , but also from all rules enforced by a determinate authority , which is either , on the one hand , superhuman , or , on the other hand , politically subordinate . It is a law which is authoritatively imposed.

 

Jurisprudence , being the systematized and properly coordinated knowledge of a subject of intellectual inquiry , is a science . The subject of its inquiry is the mutual relations of men living together in organised society . The term ' Positive Law ' confines the enquiry to those social relations which are regulated by the rules imposed by the State and enforced by its Courts . Finally , the term ' formal ' indicates that the science deals only with the purposes , methods and ideas at the basis of the legal system as distinct from a ' material science ' which would deal with the concrete details of the law.

 

Holland rejects the distinction between ' general ' and ' particular ' jurisprudence . He says that no general jurisprudence is possible . Science is science not general or particular . He says that in Austin's particular jurisprudence it is only the material of the science and not the science itself which is particular . Study of particular system would not be a science . Holland compares it with geology . The geology of England is not distinct from general geology ; it is a part of that science.

 

Criticism: Prof. Gray criticised Holland's definition as being too narrow . He says that the real relation of jurisprudence to law depends not upon what law is treated but how law is treated . According to Prof. Gray jurisprudence is not merely a formal science , but it is as well a material science . It is a science of legal relations as well as of legal rules . He further remarks that Holland's attempt to exclude the material of law from jurisprudence has laid himself ' open to charge of dealing with special subject matter of a particular system as if it were universal ' . Finally Prof. Gray observes that jurisprudence stands for the scientific treatment of law and it is not desirable that its natural meaning should be limited and restricted to in the manner it has been done by Holland.

 

Dr. Jenks has also criticised Holland's definition on the ground that jurisprudence cannot be said to be the formal science of law . Jurisprudence does not merely study form and ignore social forces which mould law . To call it a formal science i.e. , one concerned with form , is to degrade it from the rank of science to that of a craft.

 

Buckland has objected to Holland's definition . To him a principle found in ten states which goes on developing on different lines cannot continue as a general principle . The subject matter of the science of geology do not possess everywhere the same characteristics . Law is not a mechanical structure like geological deposits , it is a growth and its true analogy is with biology . The general laws are laws of development and suggest not abstract . Jurisprudence , but historical and comparative jurisprudence .

 

Jurisprudence - as ' Science of Civil Law ' - Salmond

 

Salmond defines jurisprudence as ' the science of the first principles of the civil law ' . He pointed out the fact that jurisprudence is science - a systematic study of basic principles of individual specific legal systems . He says that jurisprudence is a systematic study of the first or basic or essential principles of a national legal system leaving aside the other remaining or secondary or subordinate legal rules or doctrines . He agrees that the difference between first and secondary principles is rather one of degree rather than of kind . Thus , he says , jurisprudence is the study of those legal relations which do not extend beyond one legal system and on which such legal system is based .  

 

Salmond does not favour the use of the term ' positive ' law . He observes that " the term civil law , as indicating the law of the land , has been partially suspended in recent times by the improper substitute , ' positive ' law . Jus positivum was a title invented by medieval jurists to denote law made or established by human authority , as opposed to the jus naturale , which was uncreated and immutable . It is from this contract that the term ' positive ' derives all its point and significance . It is not permissible , therefore , to confine positive law to the law of the land . All law is positive that is not natural - International law , for example , is a kind of jus positivum , no less than the civil law itself . "

 

Salmond makes a distinction between the use of the term jurisprudence in the ' generic ' and ' specific ' sense . The former includes the entire body of legal doctrines whereas the latter means only a particular department of such doctrines . For him specific sense is alone the proper jurisprudence , because jurisprudence generally deals not with legal systems in general but with general principles of a particular legal system.

 

In short Salmond's definition of Jurisprudence breaks the Austinian Holland theory by delinking law from the political sovereign and correlating with courts of law and trying to make it purposive which in the Austinian jurisprudence was relegated as ' science of legislation '.

 

According to Salmond , a principle to become a topic of jurisprudence need not be , to use Austin's words , " common to the systems of law " . Universal reception is not the sine qua non for a principle to qualify itself for treatment by the science of law . Salmond points out that even if the doctrine of judicial precedent or case - law system prevails only in England , the rule of stare decisis would be a fit subject for jurisprudence . He concludes that " general jurisprudence is not the study of legal systems in general but the study of the general or fundamental elements of a particular legal system " In Salmond's opinion particular jurisprudence is the only kind of jurisprudence properly so - called .

Criticism: Allen has criticised Salmond's definition by pointing out that Salmond has limited the study of jurisprudence to one particular legal system . It is a very narrow interpretation . He says that for the judicial interpretation of a principle , English law is not enough . Salmond would not probably like to neglect materials on any point if available in other systems ; a study of these would add to juristic knowledge.

 

Jurisprudence as an Experimental Social Science

 

In the latter part of the nineteenth century and twentieth century , jurisprudence began to be studied as a process of social development , social change and social progress . This new method of studying law in relation to society viewed that law has to be judged not by application of eternal standards or reason or command but by a test whether law is actually workable in promoting , protecting and satisfying individual needs , wants and desires in society . Thus , jurisprudence in the modern era becomes a theory of experimental methods designated and tailored to achieve the existant socio economic and political goals of a society . Jurisprudence , therefore , becomes a science of social engineering . It is an experimental method to resolve , to reconcile conflicting interests in society by promoting social harmony , social justice . Such an approach owes its origin to the Austrian Gumplowicz , a Polish Jew who viewed all social phenomena as an unending struggle between racial groups , between different states . In Germany it was proclaimed by Rudolf Von Ihering ( 1818-1892 ) that law is concerned with reconciliation of conflicting interests and the protection of individual and collective interests . It was further carried by Eugen Ehrlich and Max Weber in Germany , William James , Roscoe Pound , Oliver Wendill Holmes etc. in America .

 

Paton says, ' Modern jurisprudence trenches on the field of social science and of philosophy , it digs into the historical past .... makes it a difficult subject to master ' . In fact the study of jurisprudence should be integrative and synthetic and purposive . It is in this context , Julius Stone says , " Study for Jurisprudence mastery over social sciences other than law is indispensable " . Now legal theory is considered as an instrument of social change and social justice.

 

Scope (or Subject matter or Boundaries) of Jurisprudence

 

The great controversy today relates to the scope or boundaries of jurisprudence . This can be usefully depicted if it is viewed in historical perspective . For a long time law is equalised to morality . According to Hobbes , the subject matter of jurisprudence deals with the national law , political government and sovereignity . Blackstone confused the law with ' justice ' or what the law ought to be . Bentham made the actual law as subject matter of his study . Austin has determined the province of jurisprudence ' . He states the science of jurisprudence is concerned with positive law ; which strictly so called . In continent , law , morality and justice remained undifferentiated . Salmond , taking the word jurisprudence in its ' specific ' sense , has made a division of the subject into three branches i.e. , analytical , historical and ethical . For a comprehensive treatment of the subject all the three branches must be studied .

 

In jurisprudence , we are concerned with the nature of legal rules on the underlying meaning of legal concepts and on the essential features of legal system . In jurisprudence we study law as a system of rules and principles.

 

The investigation of the sources of law naturally forms a subject of jurisprudential inquiry . Here we consider such matters customs , judicial precedents , legislation , statutory interpretation , codification and elucidation of the ratio decidendi of a case .

 

Jurisprudence studies the meaning of the term ' right ' in the abstract . and seeks to distinguish the various kinds of rights which are in theory possible under a legal system . Similarly it investigates other legal concepts like duties , persons , possession , ownership , liability , obligation , property , title , act , intention , negligence etc.

 

In jurisprudence we study the legal thoughts of different schools . The classification of jurisprudence into ' schools ' provides an index of the direction of the dominant theme or thesis be it religious , secular , scientific or sociological which found support and impetus from thinkers and philosophers in each age . All schools of jurisprudence are concerned with nature of law and its purpose , yet their methods , approaches and outlook vary e.g. philosophical , natural , analytical , historical , sociological etc. However , all these approaches remain faithful to general principles of law having the essential characteristics by answering the following five questions :

 

(i) What is that element which is called law ?

(ii) What is the nature of law ?

(iii) What makes law obligatory ?

(iv) What is the source of law ?

(v) What are their philosophical views ?

 

Jurisprudence is a living subject . It expands with the changes that take place in modern world . Hence we consider in jurisprudence the real factors of American and Scandinavian Realists , ' Critical Legal Studies Movement ' Post Modern Jurisprudence ' and recent theories of Adjudication.

 

In a wider and generic sense , jurisprudence studies the entire body of legal principles , abstract concepts and legal doctrines ; but in the stricter and more specific sense , it is the study of the substratum of any particular legal system .

 

Dias says that " jurisprudential study now - a - days concerns thought about law , its nature , function and functioning , on the broadest possible basis , and about its adaptation , improvement and reform.

 

The legal theory changed along with the development of just society from ' beliefs ' and ' morality ' in ancient time to ' the lawyer's extraversion " of present day .

 

Value (or Purpose) of Jurisprudence in Contemporary Society [Need to Study Jurisprudence]

 

 Jurisprudence is the harp that produces the melody of law , for the legislators , judges and lawyers by the musicians who play ( and sing ) on the strings ( the fundamental principles ) of this harp . Jurisprudence is the eye of the law . It stands towards actual system in a relation like that of grammar to a particular language .

 

One of the tasks of jurisprudence is to construct and elucidate organising concepts serving to render the complexities of law more manageable and more rational ; and in this way theory can help to improve the practice.

 

Jurisprudence has an educational value , since the logical analysis of legal concepts the lawyer's own logical technique . In addition , the study of jurisprudence can help combat the lawyer's occupational vice of formalism , which leads to excessive concentration on legal rules for their own sake to interest in legal form rather than in social realities.

 

An understanding of the concept of jurisprudence becomes necessary in order to have an overall idea and knowledge of new juristic philosophies of great contemporary legal thinkers . Moreover , the study of jurisprudence has acquired urgency as it imparts to students skill , training and insight for assessing legal rules in the context of set social milieu and values that are intended to be realised through such rules .

 

Jurisprudence develops one's critical faculties and trains the mind so as to discover legal fallacies which would otherwise remain unnoticed .

 

The study of jurisprudence is both a theoretical exercise concerning the development of law as it has evolved as well as is a functional perception of social process , ethos and other forces which shape and condition the ultimate quality and content of a legal system .

 

Jurisprudence, as it involves the study of those fundamental principles which are common to all systems of law , greatly helps in study of a particular system of law .

 

Jurisprudence as a philosophy of law has three related purposes namely , evaluation ( analysis ) , general synthesis and improvement in various legal . concepts in a logical and rational manner to sub - serve the postulated ideals . and beliefs which the thinkers hold essential for ordering of society.

 

The study of jurisprudence is of immense advantage in the closely allied science of legislation which deals with what the law should be . Jurisprudence teaches the legislator the correct use of legal terms by providing a precise and unambiguous terminology , which is so essential for their task . of pleading and legislation. It also brings about hamogeneity and accuracy in legal phraseology .

 

It is also of assistance to a moralist in asmuch as in progressive societies the law marks the stages of moral growth by crystallising moral ideals . It grows as the people grow and develops with the people .

 

The methodology and particular analysis of beliefs , ideals , myths is a product of social conditions and historical exigencies and their continuance or rejection provide the jurists an opportunity to make law either an instrument of status - quo or of change of by attempting to depend or demolish the existing ideals and beliefs in the face of new ones that would upset the existing order .

 

Jurisprudence gives an understanding of the nature of law to all . It helps in the study of the actual rules of law and in tracing out principles underlying therein . It helps in making a scientific development of law in contemporary society.

 

Relationship of Jurisprudence with other Disciplines

 

(1) Relationship between Jurisprudence and Economics: - According to Marshall , " Economics is a study of mankind in the ordinary business of life " . It examines that part of individual and social action which is most closely connected with the attainment and with the use of material requisites of well - being " . Economics is related to human welfare with scarce resources . The unlimited wants of the people and the scarce resources of the community lead to the origin of economic problems in production and distribution . The major economic problems are the economic progress , economic stability , human welfare and economic unequalities . The state has to enact legal Laws to solve these problems . Thus the economic problems are the basis for law making .

 

According to Salmond , Jurisprudence is the Science of Civil Law . Jurisprudence is a general theoretical discussion about law and its principles as opposed to the study of actual rules of law . Jurisprudence is considered as the study of fundamental legal principles and it is the science of law dealing with profound legal principles which influence and change human conduct from time to time . Jurisprudence is useful to enact laws for economic welfare , consumer protection , remove inequalities and to control economic crimes .

 

(2) Relationship between Jurisprudence and Sociology: Jurisprudence is the science of law . It is concerned with the study of the entire body of legal principles . Jurisprudence and Sociology are intimately related to each other . Sociology is the study of man in society . Law controls and regulates actions of human beings in society and it is , therefore , a subject of great importance for the sociologists .

 

There is , however , difference of approach of a sociologist and of a lawyer to the subject of law . A lawyer is concerned with the rules that men ought to obey ; he is not interested in knowing how and to what extent these rules govern the behaviour of ordinary citizens.

 

A sociologist , on the other hand , is interested in law as a social phenomenon . His chief concern is not with the rules themselves but with whether they are observed or not and in what way . A sociologist's study of law from this angle has been given title of Sociology of Law or Sociological Jurisprudence.

 

Criminology and Penology are its important branches . Criminology is concerned with the systematic study of crime and criminal behaviour from the social point of view . Penology studies the effects of various penal systems of punishment and the efficacy of reform and rehabilitation schemes in changing criminal behaviour.

 

These branches of Legal Sociology have rendered great service to the law makers and law executors by adding to their knowledge how the laws actually work and how the crime can be effectively dealt with . Sociology has thus shed considerable light and understanding on the various problems that the society has to solve , particularly , from the point of view of Criminal Jurisprudence.

 

Consequently Jurisprudence has assumed a new meaning that laws are to be made for men and the law makers and its executors are to take into consideration the human and the social aspect while making or executing it .

(3) Relationship between Jurisprudence and History: - There is linkage between History and Jurisprudence . There are three different ways . in which history relates to jurisprudence . The first is that the core operation of law entails an invocation and interpretation of the past . Hart says that a judicial decision applies rules whose validity lies in their origins . Ronald Dworkin states that law is a system of principles , the judge is bound not only by legislatively and judicially announced rules and concrete standards , but by a larger institutional history which carries and expresses threads of value of principle . The legal system is a more complex and persisting entity shaped by political , historical , cultural and other social forces .

 

The relationship between history and the key Jurisprudential topic of legal reasoning is , of course , particularly evident in common law systems which deploy structured mechanisms of binding precedent . In some forms of historical Jurisprudence , the recognition of the post - orientation of legal method has engendered more ambitious claims about the links between legal theory and history ; claims which , in effect , assert that the substantive qualities of the non - momentary system leak into the identification of the momentary system .

 

The second is that history and Jurisprudence are related in the sense that an understandin of historical context is important to an intelligent interpretation of theories - most obviously , theories which have emerged in worlds whose social political and religious dimensions are very different from our own .

 

We cannot understand the contemporary or local appeal of any legal theory - whether savigny's notion of Volksgeist , or medieval natural law theory , or current theories of sharia law , or Austin's legal positivism , or Kelsen's pure theory of law - without understanding something of the political , social and intellectual culture in the context of which they were developed.

 

The third is the relationship among intellectual lines which fails to be understood that between the philosophical enterprise of building a theory or concept of law ; and the historical analysis of law and legal institutions.

 

Law is shaped by three relatively distinctive yet intersecting elements : ideas , interests and institutions ; and that each of these elements has formed the principal object of particular traditions in legal theory . And once we think of law as shaped by these intersecting elements , it becomes plain that a theoritical understanding of law requires an analysis informed by understanding of the different forms , roles and modalities of law at different times and in different places , in other words , a Jurisprudence which opens itself to both history and comparative analysis.

 

(4) Relationship between Jurisprudence and Political Science: - The study of law and justice does not treat the affairs of Jurisprudence only but is linked to the State as the State is regarded to be the maker and maintains of an effective and equitable system of law and order . Matters relating to the organisation , jurisdiction and independence of judicial institutions , therefore become an essential concern of a political thought .

 

 Politics treats organised society , not as a social or political phenomenon but as a purely judicial regime , an ensemble of public law , rights and obligations , founded on a system of pure logic and reason .

 

Law covers the entire behaviour of man's social , economic and political actions . Previously , law was a branch of political science . As both law and political science deal with both state and man , political science has its relevance in the study of Jurisprudence.

 

The relation between politics and law has both a progressive function and a safeguarding function . Law and Politics , separately or together , both encourage and suppress the development of social relations , while they both also function to bring about justice and order . The essence of their ' separate and connected ' but not integral existence is to help set each other's borders . These borders prevent excessive one - sidedness in politics or the law , similar to ' checks and balances ' mechanism . In actuality , all legal institutes are a partial reflection of individual or collective political decisions at a certain time and in a certain environment , which have assumed a legal form and nature . This is true in systems where the main rule framer is an extremely politically legitized body ( e.g. the Parliament as Legislature ) and also in systems where judicial - precedent law has a strong influence between even the most autonomous judiciary is always determined by some sort of political influence . Legal institutions , however have a reverse influence on politics in that they limit and direct politics as part of a wider legal awareness , or specific legal ideology .

 

It is an immanent characteristic of every law that it is also the means of certain politics . However law is never a pure form through which political content would be realised , since it is in the very nature of law to be relatively autonomous or independent . Politics cannot exist without the law , since the law forms it and keeps it within certain limits that are dictated above all by the ideas of justice and social order . But , law could not exist without politics , since politics gives law its driving force and its " rough content " or substance , which law then adapts to its autonomous framework and develops its final form , expressing it in a specific normative manner . Thus , one of the most demanding tasks of every society is to continuously attempt to establish and maintain an appropriate balance between politics and law . This relationship is completely different in an authoritarian or totalitarian state as compared to a democratic state based on the rule of law . This is because in an authoritarian or totalitarian state , the " legal policy " is a subordinate to the " political policy . This is in contrast to a democratic state where there is a dynamic, partner competitor relationship between the two policies where sometimes politics prevails and other times the law prevails .

 

In democratic orders, modern law and politics , as a general rule , intensively confront one another in legislative and other parliamentary . procedures . This is where the influence of politics on law is the strongest . Nevertheless , modern law maintains a great amount of autonomy . This autonomy is achieved through : the fact that interest groups never fully determine the decisions of a pluralistic legislative body or could direct such body exclusively according to political preferences ; substantive and procedural legal rules , which to a large degree determine the limiting framework where the legislature operates and creates certain parliamentary practice ( routine ) , which it is difficult to depart from ( the predominance of legal formalism ) ; and the independent judiciary that limits excessive political aspirations and places them within the legal limits of functioning . What is especially important today in many countries is the role of constitutional courts . These courts , as a general rule , routinely interfere with the politically conditioned and interwoven activities of the legislative and executive branches of power , and therefore their decisions are naturally more or less politically colored . Finally , a certain level of legal awareness can be added to all this . Legal awareness always develops in political actors and directs them as an internal commitment to observing fundamental legal values and the existing law.

 

Jurisprudence and Power structure

 

State has power to control the society and public . To govern law , Government to be an agent of the State is required . It is through the government the State exercises its authority . Politics studies the various activities of government and its organisation , law - making process in various states , different forms of government and its merit and defects . The government consists of three organs , namely , legislature , law - making body ; executive , the law implementing authority and the judiciary , law - giving organ . The main function of the government is related to law only.

 

 Jurisprudence and just society

 

The aim of politics is to establish just society . The ultimate aim of law is also to make a man as law - abiding citizen. The state exists for the sake of man . The end of the state is the development and progress of man. For free and full development of individual personality rights are essential . So the political body should protect rights. It is the duty of the state to guarantee the fundamental rights to the people . Without rights one loses one's identity and simply becomes a unit , a slave . Politics provides knowledge to establish just society with independent citizens . The main function of state is to establish just society.

 

Divisions or kinds of jurisprudence

 

The following are the various divisions of the science of jurisprudence.

 

(1) General and Particular

Austin divides jurisprudence into general and particular.

 

(a) General (Theoretical or Comparative) Jurisprudence

 

By explaining the general jurisprudence Austin says , " I mean , then by general with exposition of the principles , notions and distinctions which are common to systems of law ; understanding by systems of law , the ampler and maturer systems which by reason of their amplitute and maturity are pre eminently pregnant with instructions " . The necessary principles , notions and distinctions of General Jurisprudence are :

 

(1) The notions of Duty , Right , Liberty , Injury , Punishment , Redress with their various relations to one another and to Law of Sovereignity and Independent Political Society ;

 

(2) The distinction between written or unwritten law , in other words , between law proceeding immediately from a sovereign or supreme maker , and law proceeding from a subject or subordinate maker ;

 

(3) The distinction of Rights into rights availing against the world at large ( for example property or dominion ) and rights availing exclusively against persons specifically determined ( for example , rights from contracts ) ;

 

(4) The distinction of rights availing against the world at large into property or domain and the various restricted rights which are carved out of property or dominion ;

 

(5) The distinction of obligations ( or of duties corresponding to rights against persons specifically determined ) into obligations which arise from contracts , obligations which arise from injuries and obligations which arise from incidents that are neither contracts nor injuries .

 

(6) The distinction of injuries or delicts into civil injuries ( or private delicts ) and crimes ( or public delicts ) , with the distinction of civil injuries ( or private delicts ) into torts / or delicts , and contracts / , or of obligations quasi ex contractu '.

 

Thus, the proper subject of general or universal jurisprudence is a description of such subjects and ends of law as are common to all systems , and of those resemblances between different systems which are at bottom in the common nature of man , or correspond to the resembling points in these several portions . It includes the entire body of legal doctrines . In short , the nature , the ends and the similarities or resemblances which are common to all different mature legal systems form the subject matter of general jurisprudence .

 

(b) Particular ( National ) Jurisprudence:

 

According to Austin , particular jurisprudence is " the science of any such system of positive law as now actually obtains , or once actually obtained in specifically determined nation ' . Particular jurisprudence can be described as a specific national jurisprudence which is distinct , different and separate from other legal systems . Particular jurisprudence , therefore , is the study of positive law underlying one particular and individual legal system .

 

Particular jurisprudence is the science of any actual system of law or of any portion of it . The only practical jurisprudence is particular . The proper subject of particular jurisprudence is concerned with specific state or national law or particular area of such state law .

 

Criticism: Holland criticises particular jurisprudence by observing that a science is made up of general propositions whether they are drawn from a few phenomena or a great many . He shows that in Austin's ' particular jurisprudence it is only the material of the science , and not the science itself , which is particular ' . Holland , therefore , rejects the distinction made by Austin.

 

Sir John Salmond has repudiated the notion of ' general ' jurisprudence . He observes that general jurisprudence is not the study of legal systems in general but the study of the general or fundamental elements of a particular legal system . According to him , a principle to become a topic of jurisprudence need not be a norm ' common to the system of law ' . Universal reception is not the sine qua non for a principle to qualify itself for treatment by the science of law.

 

Expository and Censorial Jurisprudence

 

Bentham divides jurisprudence into expository and censorial . The expository jurisprudence ascertains what law is . The censorial jurisprudence ascertains what it ought to be . Expository jurisprudence is sub - divided into authoritative and unauthoritative . Authoritative jurisprudence means the legislative power and unauthoritative jurisprudence means text - books on law . Unauthoritative jurisprudence may again be divided as local or universal . The local jurisprudence consists of text - books upon the laws of any one country , while the universal jurisprudence consists of law works on universal jurisprudence i.e. without reference to any one country.

 

Holland while criticising this decision observes that an exposition of existing law is obviously quite another thing from a science of law and criticism upon the law with a view to its amendment are the subject not of jurisprudence as Bentham himself states , of the art of legislation.

 

Divisions or Kinds of Jurisprudence

Generic and Specific Jurisprudence

 

Salmond makes a distinction between the use of the term jurisprudence in the ' generic ' and ' specific ' sense . The former includes the entire body of legal doctrines whereas the latter means only a particular department of such doctrines . For him specific sense is alone the proper jurisprudence.

 

The jurisprudence in the generic sense includes:

 

Legal Exposition: The purpose of which is to set forth the contents of an actual legal system as existing at any time , whether past or present.

 

Legal History: The purpose of which is to set forth historical process whereby any legal system came to be what it is or what it was.

 

The Science of Legislation: The purpose of which is to set the law , not as it is or has been but as it ought to be . It deals not with the past or present of any legal system but with its ideal future.

 

Taking the word jurisprudence in its ' specific ' sense , Salmond divided Jurisprudence into analytical , historical and ethical.

 

Analytical, Historical and Ethical Jurisprudence

 

Analytical Jurisprudence: The purpose of this branch of study is to analyse and dissect the law of the land as it exists today . This analysis as to the first principles of the law is done without reference to their historical origin or their ethical significance . The analytical jurisprudence deals with such subjects as the following :

(i) analysis of the conception of a civil law ;

(ii) an account of the legal sources from which the law proceeds , an investigation of the theory of legislation , judicial precedents , and customary law ;

 (iii) an account of the scientific arrangement of the law ; ( iv ) an analysis of the conception of legal rights , together with the division of rights into various classes and the general theory of the creation , transfer and extinction of rights ;

(v) an investigation of the theory of legal liability civil and criminal : and

(vi) an examination of any other legal conceptions of theoretical interests , such as property , possession , obligation , contracts , personality . incorporation , acts , motive , negligence and many others .

 

Historical Jurisprudence: It constitute the general portion of legal history and examines the manner of growth of a legal system . It deals with the general principles governing the origin and development of laws as also the origin and development of legal conceptions and principles found in the philosophy of law . It traces the growth of law from origin with a view to finding out the origin of our legal concepts and the general course of their evaluation . According to historical jurisprudence , law is antecedent to the State . It lays emphasis on custom .

 

 

Ethical Jurisprudence: It deals with law not as it is or has been , but as it ought to be . It is concerned with the purpose for which the law exists and manner in which such purpose is fulfilled . Salmond observes that ethical jurisprudence is the meeting point and common ground of moral and legal philosophy of ethics and jurisprudence . Ethical jurisprudence has had as its subject to conception of justice , the relation between law and justice , the manner in which law fulfils its purpose of maintaining justice and the ethical significance and validity of these legal conceptions and principles which are fundamental in their nature as to be the proper subject matter of analytical jurisprudence.

 

English and Continental (Foreign) Jurisprudence

In England the treatment of analytical aspect of study formed the main subject of jurisprudence . They avoid metaphysical speculation confining themselves to the basic concepts of mature legal systems and the law that is rather than speculating upon law as it ought to be . The word ' law ' in English legal philosophy means nothing but law . In England the existence of different words for law and justice tends to conceal the relation between the two. English jurists are accordingly prone to formulate a theory of law which does not concern itself with justice.

 

 Continental jurists have developed philosophical jurisprudence . They are concerned mainly with the ethical and metaphysical character of jurisprudence . The German word ' Recht ' the French word ' Droit ' and the Italian word Diritto ' mean not only law but also right or justice . The connection between law and justice is thus emphasized by the words of different nations of continent . Continental jurists are therefore prone to attach a special importance to law in its relation to certain higher ideals which it has to achieve .

 

Salmond says , " For the divergence between the juristic thought and literature of England and that of the continent there is more than one reason " . He assigns the following reasons for important divergences between the juristic thought of England and that of the continent.

 

In the first place any translation of continental jurisprudence into English language becomes largely unintelligible if the rough and ready device is adopted of translating as a matter of course the terms recht , droit and diritto into the term law .

 

In the second place , the fact that in continental languages law and justice are called the same name tends to create a certain confusion of thought by the identification of distinct things . In England we have different words for law and justice and cannot use the same word for both purposes .

In the third place , English jurisprudence tends naturally to assume the analytical and historical form to the exclusion of the ethical . Continental jurisprudence on the contrary , tends naturally to assume the ethical form .

 

Lastly, Salmond observes that the continental jurisprudence is distinguished from English not merely by its ethical, but also by its metaphysical character .