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JURISPRUDENCE – MEANING
The study of jurisprudence began with the Romans, who regarded it as the science of law. However, this interpretation is now considered too ambiguous and narrowly applied. Over time, with the evolution of societal conditions and human behavior, the scope and trend of jurisprudence have significantly shifted.
The term “Jurisprudence” is derived from the Latin words:
Juris — meaning “law” Prudentia — meaning “skill or knowledge”
Together, they signify the “knowledge of law.” However, the term has carried different meanings at different times, making it impossible to define in a single, universally accepted way. Jurisprudence has undergone a long journey—from ancient Greece through Roman law, and into the modern legal framework.
In simple terms, jurisprudence is the study and systematic arrangement of the principles of law.
Alternatively, it can also be described as the philosophy of law that deals with the nature and function of law. This perspective is known as functional jurisprudence.
In the Indian context, there exists a unique concept known as Indian Jurisprudence, which draws heavily from the ancient doctrines of Dharma and Shastras. These form the spiritual and moral foundation upon which traditional Indian legal thought is based.
Indian Jurisprudence thus reflects a blend of legal philosophy and spiritual tradition, showing how deeply law is interwoven with cultural values in India.
DEFINITIONS
The term jurisprudence has been defined by different authors as follows:
Ulpian- He was a Roman jurist and defines Jurisprudence as “The observation of things human and divine, the knowledge of the just and the unjust.”
Gray- Professor Gray defined Jurisprudence as “Jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principle involved in those rules”
Salmond- He defined jurisprudence as “science of the first principles of civil law”
Austin– Austin calls jurisprudence as the philosophy of positive laws. There are two types of jurisprudence according to him:
- 1. General Jurisprudence- It is a branch of jurisprudence which is common to all systems of law.
- Particular Jurisprudence– It is a branch of jurisprudence which is concerned only with a particular state or national law.
Bentham- Bentham in his study divides jurisprudence into two types:
- Expository Jurisprudence: Study of law as it actually is.
- Censorial Jurisprudence: Law as it ought to be.
NATURE OF JURISPRUDENCE
One of the key aspects of jurisprudence is its focus on the sources of law. This branch of legal theory provides valuable insights into a variety of legal sources, including:
Statutory Law
Common Law
Constitutional Law
Through the study of jurisprudence, legal scholars and practitioners aim to understand how these sources interact with each other and how they collectively shape the evolution of legal systems.
Another vital function of jurisprudence is its ability to clarify the very concept of law. While law is often thought of as just a set of rules and regulations, jurisprudence reveals that law is, in fact, a complex, dynamic, and multifaceted phenomenon. It cannot be condensed into a single, static definition.
Instead, jurisprudence shows that the law is fluid — continuously shaped by social, cultural, and political influences.
Note: Jurisprudence is not substantive or procedural law.
Rather, it is an uncodified framework — a lens through which we interpret and understand the legal system in its entirety.
As the great thinker Harold Laski put it:
Some scholars regard jurisprudence as a science. Others describe it as a social science, especially those aligned with the historical school of thought, which considers jurisprudence a reflection of historical, cultural, and political evolution.
Regardless of perspective, one thing is clear:
Jurisprudence plays a **critical role** in shaping our understanding of the legal system and guiding the development of modern legal theory and practice.SCOPE OF JURISPRUDENCE
The scope of jurisprudence has steadily expanded over the years. It is widely accepted that its scope is so vast that it cannot be strictly confined.
In essence, anything that governs human conduct and order within a State falls within the domain of jurisprudence.
A Broader Perspective
As Justice P.B. Mukherjee insightfully observed:
It encompasses political, economic, and cultural ideas, and examines the relationship between humans and society. This holistic view is supported by numerous jurists.
Nature of Investigation
Jurisprudence engages in multiple forms of legal inquiry—typically abstract, theoretical, and general in nature. These investigations help lay the foundational principles behind all laws and legal systems.
A key distinction:
Jurisprudence: Explores what qualifies a rule as “legal” and how it differs from morality, customs, and etiquette.
Major Schools of Jurisprudence
Jurisprudence is further classified into five major schools, each offering a unique lens to interpret law:
Natural School- Analytical School
- Historical School
Sociological School
Realist School
These schools reflect different philosophies and methodologies of understanding law and its impact on society.
Jurisprudence, therefore, is not limited to dry legal codes — it is a rich, evolving field that bridges law with life itself.SOURCES OF JURISPRUDENCE
1. Custom
Custom is one of the earliest and most significant sources of law. As society develops, customs gain importance and begin to shape legal norms. A custom is a practice consistently followed by people and recognized by the courts once certain conditions are fulfilled.
📖 Definition (Webster’s New International Dictionary):
A long-established practice considered as unwritten law, resting on long-standing acceptance and carrying the force of law.
✅ Essentials of a Valid Custom:
🧠 Reasonableness – It must align with societal values and not be arbitrary or oppressive.
⚖️ Consistency – It must not contradict statutory law or public policy.
📌 Observance – It should be followed as a matter of right, not coercion.
⏳ Continuity – It must have been in long, uninterrupted use.
📚 Types of Custom:
🔁 Conventional Custom (Usage):
A conventional custom is also called usage. It is an established practice whose authority is conditional on its acceptance and incorporation of agreement between the parties bound by it. It is legally valid as it is incorporated by an agreement by the parties.📜 Legal Custom:
Legal customs are those customs which are binding rules of law and are independent of any agreement between the parties.
🏛️ Case Law:
Baba Narayan vs Saboosa [(1943) 2 MLJ 186]
It was held that although the custom need not be immemorial, it must be long-standing and continuous, as this gives it legal force.
2. Legislation
Legislation is one of the most powerful and effective sources of law today. It refers to laws made by the legislature which are officially recognized and backed by the authority of the State.
📖 Etymology:
From Latin: ‘legis’ (law) + ‘latum’ (to make) → “making of law”
⚖️ Types of Legislation:
🏛️ Supreme Legislation:
It is a kind of legislation which is created by the sovereign authority of the State. It cannot be overridden or annulled by any other legislative body.🏗️ Subordinate Legislation:
It is kind of legislation made by authorities under the power delegated by the sovereign authority, such as rules and regulations by government departments.
3. Judicial Precedent
Judicial precedents are past decisions by the courts that serve as a guide for future cases. They carry a binding or persuasive value, depending on the court hierarchy.
📖 Blackstone’s View:
Precedents are established rules that guide judges in deciding similar future cases.
📚 Types of Precedents:
🧷 Authoritative Precedent:
Authoritative precedent refers to the precedent which has binding force in itself and judge must follow such a decision Example: A Supreme Court decision is binding on all High Courts and subordinate courts in India.🧩 Persuasive Precedent:
Persuasive precedent refers to the precedent which the judges are under no obligation to follow but they may take considerations of such precedent.Example: Judgments from foreign courts or courts of equal standing.
References
- Studies in Legal Theory and Jurisprudence by Dr. N.V. Pranjape, 8th Edition
- Julius Stone: Some Reflections in Jurisprudence
- Patterson: EW Jurisprudence 1st Edition
