Jurisprudence and Other Social Sciences

2.2: JURISPRUDENCE

Submitted by
Dipankar Kamble
UG 16-20

Submitted to

Dr. Ragini Khulbalkar, Assistant Professor of Law

Ms. Karishma Gavai, Assistant Professor of Law
Dr. Himanshu Pandey Assistant Professor of Law
Dr. Deepmala Baghel, Assistant Professor of Sociology.

Academic Year: 2016-2017

NATIONAL LAW UNIVERSITY, NAGPUR

Table of Contents
Introduction .................................................................................................... 2
Chapter - I .......................................................................................................... 4
Introduction : Nature and Scope of Jurisprudence ............................................. 4
1.1 Origins..................................................................................................... 5
1.2 Nature and Scope of Jurisprudence.............................................................. 6
Austin ............................................................................................................. 7
Salmond ......................................................................................................... 7
Holland........................................................................................................... 8
Keeton ............................................................................................................ 9
Roscoe Pound................................................................................................. 9
Dias and Hughes ............................................................................................ 9
1.3 Scope of Jurisprudence ............................................................................ 9
Chapter – II .................................................................................................. 11
Elements and Relations with Other Social Sciences.................................... 11
2.1 Jurisprudence and Sociology ................................................................. 12
2.2 Jurisprudence and Psychology ............................................................... 13
2.3 Jurisprudence and Morality.................................................................... 14
2.4 History and Jurisprudence...................................................................... 15
2.5 Jurisprudence and Politics...................................................................... 18
2.6 Synthetic Jurisprudence ......................................................................... 19
Conclusion ................................................................................................... 20
BIBLIOGRAPHY ........................................................................................ 21

1
 Introduction

The philosophy of law, or the science which treats of the principles of positive
law and legal relations. "The term is wrongly applied to actual systems of law,
or to current views of law, or to suggestions for its amendment, but is the name
of a science. This science is a formal, or analytical, rather than a material, one.
It is the science of actual or positive law. It is wrongly divided into 'general' and
'particular,' or into 'philosophical' and 'historical.' It may therefore be deigned as
the formal science of positive law." Ho 11. Jur. 12. In the proper sense of the
word, "jurisprudence" is the science of law, namely, that science which has for
its function to ascertain the principles on which legal rules are based, so as not
only to classify those rules in their proper order, and show the relation in which
they stand to one another, but also to settle the manner in which new or doubtful
cases should be brought under the appropriate rules. Jurisprudence is more a
formal than a material science. It has no direct concern with questions of moral
or political policy, for they fall under the province of ethics and legislation; but,
when a new or 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 which, when so applied, will produce the greatest advantage to the
community.1

Objective of the study

In order to the study the relation of jurisprudence with other social sciences,
firstly we need to understand the nature and scope of jurisprudence and how it
differs from other sciences. The jurists main objective of their proposed theories
was to comprehend all sorts of linkage with other sciences.
The main obejcetive of the study are as follows :
 What is Jurisprudence?

1
http://thelawdictionary.org/jurisprudence/
2
  What are the scope and elements of jurisprudence?
 Analogy of jurisprudence with respect to other social sciences.
 Need to study these inter-linkage seprerately.
 How these studies help the man to regulate their actions accordingly.

Research Methodology
In order to approach the prescribed objectives of study, doctrinal model of
research methodology is proposed, intensive literature review on the subject
will be applied and the issues under study would be examined in a systematic
manner.

****

3
 Chapter - I

Introduction : Nature and Scope of Jurisprudence

What is Jurisprudence ? When ever we hear this question many things strikes
our mind like for example: different schools, thoughts of different jurists,
ideologies etc
Not only does every jurist have his own notion of the subject-matter and proper
limits of jurisprudence but his approach is governed by his allegiances , or those
of his society , by his “ideology”. No doubt such ideological factors are
frequently implicit rather than openly avowed ; thus Holme’s description of
them as “ inarticulate major premises”2. It has been said that “traditional theories
in jurisprudence reflect old “ideologies”,3 as we may readily see in theories s
those of natural law or of utilitarianism.

The hard-headed and pragmatic attitude of common lawyers to the law and the
absence of any philosophical tradition informing legal education or the practice
of law in common law countries have tended to provoke scepticism towards
theory among judges, legal practitioner and even academic lawyers; a
scepticism which may be shared by a law students. This has been considerably
reinforced by the fact that it is only in comparatively recent times that legal
education has established itself in English universities . Law was previously
thought under an apprenticeship system. The lawyer was expected to apply
himself to the problems of the clients without pausing to explore or speculate
upon what the law was about ; what was or should be the role of the law and the
lawyers in society; whether it was capable of responding to contemporary needs.
It has been pointed out by Otto Kahn-Freund that any serious academic
discipline must entail instilling in the student a capacity for critical thought.4 He

2
Collected Legal Papers, 203, 209.
3
Northrop (1949) Journal of Legal Education 791.
4
“Reflections on Legal Education” (1966) 29 M.L.R 121,123
4
believed the deep concern of English law with the concept of “authority” has
encouraged pragmatism and diminished critical faculties of students and that
this, in turn has cast doubt on the legitimacy of law studies in English
universities. 5 However, education which consists in the instilling of dogma,
authoritative through it may be is hardly worthy of its name. It was Kahn-
Freund’s view, which we endorse, that legal education needs to teach both law
and its context, social, political, historical and theoretical. Jurisprudence
involves the study of general theoretical questions about the nature of laws and
legal systems, about the relationship of law to justice and morality and about
the social nature of law. A proper discussion of questions such as these involves
understanding and use of philosophical and sociological theories and findings
in their application to law. A study of jurisprudence should encourage the
student to question assumptions and to develop a wider understanding of the
nature and working of law. Questions of theory constantly spring up in legal
practice, through they may not be given very sophisticated answer.

1.1 Origins

The choice between a philosophy or a science of law is no doubt to a large extent

a matter of terminology. Philosophy was once the fashionable word, when
physics was known as “natural philosophy”. 6 But since that day science has
become all the rage, and many studies beyond the physical sciences have sought
shelter under the comforting umbrella of science, Science , however , Is
concerned with empirically observable facts and events whereas philosophy is
concerned with certain ultimate questions of structure. Bertrand Russell once
put it rather neatly by saying that science is what we know, philosophy what we
don't know.7Nowadays, the emphasis in English-speaking Countries8is rather
on the structure of language and logic than on a search for some ultimate
metaphysical reality beyond the realm of empirical fact. But be that as it may ,

5
Cf R.H.S Tur, “ Juriprudence and Practice” (1976) 14 J.S.P.T.L. 38,41-42
6
Cf.G.Ryle, in British Philosophy in Mid-Century (Mace, ed.), pp.257-258.
7
B.Russell, My Philosophical Developement, p.276.
8
Cf.Continental countries: Passmore, 100 years of philosophy (1975), pp. 459-460.

5
philosophers in one form or another are still seeking after, or at least analyzers
of, what Whitehead calls “unifying concepts”9and in this sense we may perhaps
regards those jurists who study law in its normative aspects , and who seek to
identify and analyse the conceptual structure of all legal systems, as they
concern themselves with general jurisprudence, might be expected to identify
and compare what may be common elements of different legal systems as a
matter of fact rather than of logical necessity. Austin though he does speak of
the science of jurisprudence, also uses the description “philosophy of positive
law” , Kelsen on the other hand, despite the philosophical character of his
approach, insists that his theory is a pure science of law . Yet what he apparently
desires to emphasise by this nomenclature is the elimination (as with Austin
before him) of all extraneous matter from the study of positive law, such as
natural law or ethics. Nelson also insists that he had purged his science of all
ideological elements , but he seems to have been no more successful than other
jurists in achieving this.

1.2 Nature and Scope of Jurisprudence

What is Jurisprudence?

There is no universal or uniform definition of Jurisprudence since people have

different ideologies and notions throughout the world. It is a very vast subject.
When an author talks about political conditions of his society, it reflects that
condition of law prevailing at that time in that particular society. It is believed
that Romans were the first who started to study what is law.
Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.
-Most of our law has been taken from Common Law System. Bentham is known
as Father of Jurisprudence. Austin took his work further.
Bentham was the first one to analyse what is law. He divided his study into two
parts:
1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.

9
See A.N. Whitehead , The Concept of Nature(1920)
6
2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.
However, Austin stuck to the idea that law is command of sovereign. The
structure of English Legal System remained with the formal analysis of law
(Expositorial) and never became what it ought to be (Censorial). J. Stone also
tried to define Jurisprudence. He said that it is a lawyer’s extraversion. He
further said that it is a lawyer’s examination of the percept, ideas and techniques
of law in the light derived from present knowledge in disciplines other than the
law. Thus, we see that there can be no goodness or badness in law. Law is made
by the State so there could be nothing good or bad about it. Jurisprudence is
nothing but the science of law.
Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound

Austin- He said that “Science of Jurisprudence is concerned with Positive Laws

that is laws strictly so called. It has nothing to do with the goodness or badness
of law.
This has two aspects attached to it:
1. General Jurisprudence- It includes such subjects or ends of law as are
common to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any
portion of it.
Basically, in essence they are same but in scope they are different.

Salmond
He said that for a concept to fall within the category of ‘General Jurisprudence’,
it should be common in various systems of law. This is not always true as there
could be concepts that fall in neither of the two categories.10 Critics say that it
is not an accurate definition. Salmond only gave the structure and failed to
provide any clarity of thought.

10
G.W. Paton, A TEXTBOOK ON JURISPRUDENCE, pg.9-10 (4th Ed. 1972).
7
Holland
He said that it is only the material which is particular and not the science itself.
Holland’s Definition- Jurisprudence means the formal science of positive laws.
It is an analytical science rather than a material science.
1. He defined the term positive law. He said that Positive Law means the general
rule of external human action enforced by a sovereign political authority.
2. We can see that, he simply added the word ‘formal’ in Austin’s definition.
Formal here means that we study only the form and not the essence. We study
only the external features and do not go into the intricacies of the subject.
According to him, how positive law is applied and how it is particular is not the
concern of Jurisprudence.
3. The reason for using the word ‘Formal Science’ is that it describes only the
form or the external sight of the subject and not its internal contents. According
to Holland, Jurisprudence is not concerned with the actual material contents of
law but only with its fundamental conceptions. Therefore, Jurisprudence is a
Formal Science.
4. This definition has been criticized by Gray and Dr. Jenks. According to them,
Jurisprudence is a formal science because it is concerned with the form,
conditions, social life, human relations that have grown up in the society and to
which society attaches legal significance.
5. Holland said that Jurisprudence is a science because it is a systematized and
properly co-ordinated knowledge of the subject of intellectual enquiry. The term
positive law confines the enquiry to these social relations which are regulated
by the rules imposed by the States and enforced by the Courts of law. Therefore,
it is a formal science of positive law.
6. Formal as a prefix indicates that the science deals only with the purposes,
methods and ideas on the basis of the legal system as distinct from material
science which deals only with the concrete details of law.
7. This definition has been criticized on the ground that this definition is
concerned only with the form and not the intricacies.11
Salmond- He said that Jurisprudence is Science of Law. By law he meant law
of the land or civil law. He divided Jurisprudence into two parts:

11
B.N.Mani Tripathi, Jurisprudence : The Legal Theory, pg. 12-15, 19th Ed. Reprint 2016.

8
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the
doctrines. ‘Specific’ is further divided into three parts:
1. Analytical, Expository or Systematic- It deals with the contents of an actual
legal system existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws
as it ought to be. It deals with the ‘ideal’ of the legal system and the purpose for
which it exists.

Keeton- He considered Jurisprudence as the study and systematic arrangement

of the general principles of law. According to him, Jurisprudence deals with the
distinction between Public and Private Laws and considers the contents of
principle departments of law.12
Roscoe Pound
He described Jurisprudence as the science of lawusing the term ‘law’ in juridical
sense as denoting the body of principles recognized or enforced by public and
regular tribunals in the Administration of Justice.
Dias and Hughes
They believed Jurisprudence as any thought or writing about law rather than a
technical exposition of a branch of law itself.

1.3 Scope of Jurisprudence

After reading all the above mentioned definitions, we would find that Austin
was the only one who tried to limit the scope of jurisprudence. He tried to
segregate morals and theology from the study of jurisprudence.
However, the study of jurisprudence cannot be circumscribed because it
includes all human conduct in the State and the Society.13
Approaches to the study of Jurisprudence- There are two ways

12
G.W. Paton, A TEXTBOOK ON JURISPRUDENCE, pg.10-11(4th Ed. 1972).
13
B. N . Mani. Tripathi , JURISPRUDENCE : THE LEGAL THEORY, pg.150-52, (19th ed.
2013).

9
1. Empirical- Facts to Generalization.
2. A Priori- Start with Generalization in light of which the facts are examined.
Significance and Utility of the Study of Jurisprudence.14
This subject has its own intrinsic interest and value because this is a subject of
serious scholarship and research; researchers in Jurisprudence contribute to the
development of society by having repercussions in the whole legal, political and
social school of thoughts. One of the tasks of this subject is to construct and
elucidate concepts serving to render the complexities of law more manageable
and more rational. It is the belief of this subject that the theory can help to
improve practice. Jurisprudence also has an educational value. It helps in the
logical analysis of the legal concepts and it sharpens the logical techniques of
the lawyer. The study of jurisprudence helps to combat the lawyer’s
occupational view of formalism which leads to excessive concentration on legal
rules for their own sake and disregard of the social function of the law. The
study of jurisprudence helps to put law in its proper context by considering the
needs of the society and by taking note of the advances in related and relevant
disciplines. Jurisprudence can teach the people to look if not forward, at least
sideways and
around them and realize that answers to a new legal problem must be found by
a consideration of present social needs and not in the wisdom of the past.
Jurisprudence is the eye of law and the grammar of law because it throws light
on basic ideas and fundamental principles of law. Therefore, by understanding
the nature of law, its concepts and distinctions, a lawyer can find out the actual
rule of law. It also helps in knowing the language, grammar, the basis of
treatment and assumptions upon which the subject rests. Therefore, some
logical training is necessary for a lawyer which he can find from the study of
Jurisprudence. It trains the critical faculties of the mind of the students so that
they can dictate fallacies and use accurate legal terminology and expression. It
helps a lawyer in his practical work. A lawyer always has to tackle new
problems every day. This he can handle through his knowledge of Jurisprudence
which trains his mind to find alternative legal channels of thought.
Jurisprudence helps the judges and lawyers in ascertaining the true meaning of

14
G.W. Paton, A TEXTBOOK ON JURISPRUDENCE, pg.295-298 (4th Ed. 1972).
10
the laws passed by the legislators by providing the rules of interpretation.
Therefore, the study of jurisprudence should not be confined to the study of
positive laws but also must include normative study i.e. that study should deal
with the improvement of law in the context of prevailing socio-economic and
political philosophies of time, place and circumstances. Professor Dias said that
‘the study of jurisprudence is an opportunity for the lawyer to bring theory and
life into focus, for it concerns human thought in relation to social existence’15

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Chapter – II

Elements and Relations with Other Social Sciences

Different branches of knowledge are so inter-related that none of them can be

studied in isolation. All social sciences stand in close connection with one
another. All of them study the actions of human beings living in the society,
though from different angles and with different ends. To quote Paton: “Modern
jurisprudence trenches on the fields of social sciences and of philosophy; it digs
into the historical past and attempts to create the symmetry of a garden out of
the luxuriant chaos of conflicting legal system.” 16 Julius Stone defines
jurisprudence in terms of the knowledge of other sciences. To quote him,
“Jurisprudence then in the present hypothesis is the lawyer’s extraversion. It is
lawyer’s examination of percepts , ideals and techniques of the law in the light
derived from present knowledge in disciplines other than law.” 17 Justice
McCardie emphasises the indispensability of the study of the other social
sciences in these words; “There never was a time when the barrister had greater
ned of a wide culture and of full acquaintance with history, with economics and

15
https://lawphotostat.files.wordpress.com/2015/03/jurisprudence-3.pdf
16
A Text Book of Jurisprudence, p.1.
17
Province and Function od Law, p.25.
11
with sociological sciences.” Dean Roscoe Pound of the harvard Law School
writes : “Jurisprudence, ethics, economics, politics, history and sociology are
distinct enough at the core, but shade out into each other. When we look at the
core or chiefly at the core, the analytical distinctions are sound enough. But we
shall not understand even the core, and much less the debatable ground beyond,
unless we are prepared to make continual deep incursions from each into each
others. All the social sciences must be co-workers and emphatically all must be
co-workers with Jurisprudence.”18

2.1 Jurisprudence and Sociology

According to Salmond, jurisprudence is the knowledge of law and in that sense
all law books can be considered as books on jurisprudence. Among the
phenomenon studied by sociologist is law also that makes sociology intimately
connected with jurisprudence. The attitude of the sociologist towards law is
different from that of lawyer who, in his professional capacity,is concerned with
the rules which have to be obeyed by the people. He is not interested in knowing
how and to what extent those rules actually govern the behaviour of the ordinary
citizen. A book on the law of torts or contracts deals with the rules relating to
torts and contracts but not mentioned how often torts and breaches of contract
are committed. A lawyers is essentially interested in those who frame the rules
and execute them in a given society.
There is a separate branch of sociological jurisprudence based on sociological
theories and is essentially concerned with the influence of law on society at
large , Particularly social welfare. The sociological approach to legal problems
is essentially different from that of a lawyer. In the case of crime in society, its
causes are to a very great extent sociological and to understand their pros and
cons, one must have a knowledge of society.
Sociology has helped jurisprudence in its approach to the problem of prison
reforms and has suggested ways and means of preventing social wrongs.
Previously, judges and legislators came to their conclusions regarding the effect
of punishment by depending upon popular opinion and personal impressions,
but now they have at their disposal precise data through the efforts of
criminologists. Their decisions are no more conjectural but are based on solid

18
Law and Morals, p.115.
12
facts. There decisions are no more conjectural but are based on solid facts. There
is a general indignation against hanging as the extreme form of punishment and
hence its abolition in many countries of the world.
Behind all legal aspects, there is something social. The cause of crimes are
partly sociological
and an understanding of sociology helps the legislators in their task of prison
reform and prevention of crime. Topics like motivates, aims and theories of
punishment and efficacy of the various types of punishments are considerably
helped by sociology. The birth and growth of social has given a new orientation
to the study of jurisprudence. There is distinction between the sociological
jurisprudence and the sociology of law. The latter differs mainly from the
former in that ‘“it attempts to create a science of social life as a whole, and to
cover a great part of general sociology and political science”. In the sociology
of law, the emphasis is on the society but in sociological jurisprudence
emphasis is on the relation between law and society. The sociology of law is a
branch of sociology dealing with the law and legal institutions in the light of
sociological principles, aims and methods.19

2.2 Jurisprudence and Psychology

Psychology has been defined as the science of mind and behaviour. It is

recognised that no human science can be discussed properly without a thorough
knowledge of the human mind and hence its close connection with
jurisprudence. In the study of criminal jurisprudence there is great scope of
psychological principles in order to understand the criminal mind behind the
crime. Both psychology and jurisprudence are interested in solving such
questions as hr motive for crime, acrimony personality, whether a criminal gets
pleasure in committing a crime, why there are more crimes in one society than
in another and what punishment should be given in any particular case. In

1919
B. N . Mani. Tripathi , JURISPRUDENCE : THE LEGAL THEORY, pg.141, (19th ed.
2013).
13
criminology, psychology plays an important part.It is the duty of a lawyer to
understand the criminal and the working of a criminal mind.
It is the duty of a law giver to understand man and not to pass judgments and
say what man ought to do or ought not to do. Psychology can help the law-
maker considerably in the approach to the problem of not only making the law
but also of executing it.
Jurisprudence is concerned with man’s external conduct and not his thoughts
and metal processes, but penology has benefited from the knowledge made
available by psychological researches.
There is a school of jurists which holds the view that the sanction behind all
laws is psychological one. Study of negligence, intention, motive and other
cognate mental conditions forms part of both jurisprudence and psychology.

2.3 Jurisprudence and Morality

Ever since the revival of the scientific study of jurisprudence the connection of
law and morality has much discussed, but the question is not yet, and perhaps
never will be settled. Every variety of opinion has been entertained, from the
extreme doctrine held by Austin that for the purpose of the jurist, law is
absolutely independent of morality, almost to the opposite positions, held by
every Oriental cadi, that morality and law are one. The question is an important
one, and upon the answer which is given to it depends upon the answer which
is consequences. The problem is an intensely practical one.20

The popular conception of the connection between law and morality is that in
some way the law exists to promote morality, to preserve those conditions which
make the moral life possible, and than to enable men to lead sober and
industrious lives. The average man regards law as justice systematized, and
justice itself as a somewhat chaotic mass of moral principles. On this view, the
positive law is conceived of as a code of rules, corresponding to the code of
moral laws, deriving its authority from the obligatory character of those moral
laws, and being just or unjust according as it agrees with, or differs from them.
This, like all other popular conceptions, is inadequate for scientific purposes,

20
G.W. Paton, A TEXTBOOK ON JURISPRUDENCE, pg.17-19(4th Ed. 1972).
14
and the jurist, so for at least as he is also a scientist, is compelled to abandon it.
For it is contradicted by the fact’s. positive laws do not rest upon moral laws
and common notions of justice furnish no court of appeal from the decrees of
the State. The average man confounds law and morality, and identifies the rules
of law with the principles of abstract justice.21
Both law and morality imply human freedom. Clearly, without freedom one
cannot speak of morality. But the same holds for law, for if it were automatically
and not freely obeyed, men would be mere robots. Law is not a simple indication
of what happens, such as the law of physics; it is an admonition to free persons
about what they are required to do if they wish to live freely and responsibly in
society; and it normally carries with it a sanction or punishment to be imposed
on whoever is shown to have acted against given norms of conduct. Just law,
properly understood, appeals to freedom.22

2.4 History and Jurisprudence

The historical school of jurists was founded by Friedrich Karl von Savigny
(1779–1861). Its central idea was that a nation's customary law is its truly living
law and that the task of jurisprudence is to uncover this law and describe in
historical studies its social provenience. As in other schools of thought,
acceptance of this approach did not necessarily mean agreement on its
theoretical or practical consequences.
To followers of Savigny the identification of law with custom and tradition and
the Volksgeist, or genius peculiar to a nation or folk, generally meant a rejection
of rationalism and natural law; a rejection of the notion of law as the command
of the state or sovereign, and therefore a disparagement of legislation and
codification; and a denial of the possibility of universally valid rights and duties
and of the individual's possession of nonderivable and inalienable rights. In
positive terms, historical jurisprudence identified law with the consciousness,
or spirit, of a specific people. Law is "found" by the jurist and not "made" by
the state or its organs. Law is a national or folk and not a political phenomenon;
it is a social and not an individual production; like language, it cannot be

21
G.W. Paton, A TEXTBOOK ON JURISPRUDENCE, pg.16,(4th Ed. 1972).
22
G.W. Paton, A TEXTBOOK ON JURISPRUDENCE, pg.17-19(4th Ed. 1972).
15
abstracted from a particular people and its genius; it is a historical necessity and
not an expression of will or reason, and therefore it cannot be transplanted.
In addition to Savigny, the historical school was probably influenced by Johann
Gottfried Herder (1744–1803) and the romantic notions of folk culture, by the
emphasis on tradition in the work of Edmund Burke (1729–1797), by the stress
on historical continuity in the work of Gustav Hugo (1764–1844), and by the
Hegelian conception of Spirit. In Germany, the main proponents of historical
jurisprudence were G. F. Puchta, Karl Friedrich Eichhorn, Rudolph von Sohm,
and Otto von Gierke.23
In England Henry Maine (1822–1888) was closely identified with the historical
school, although there is no evidence that he was directly influenced by the
German thinkers. Modern historical jurisprudence in England was born with the
publication in London of Maine's Ancient Law in 1861, the year of Savigny's
death. Until then historical research in law had been neglected, but from that
time on, the field was assiduously cultivated. In reaction against natural law and
under the influence of Thomas Hobbes, the tendency in England had been to
regard law as the command of the state, and the task of the jurist was conceived
as a concern with the analysis of positive law without regard to historical or
ethical considerations. Maine broke with these traditional attitudes. Probably
influenced by Rudolf von Ihering (Der Geist des römischen Recht, 3 vols.,
Leipzig, 1852–1865), Maine was stimulated to apply the historical method to
jurisprudence. Charles Darwin's Origin of Species, published two years before
Ancient Law, also probably influenced Maine.

Maine rejected the natural law, rationalistic, and a priori approaches to the
nature of law. In his Early History of Institutions (London, 1875) he saw a
people's law as compounded of opinions, beliefs, and superstitions produced by
institutions and human nature as they affected one another. Indeed, English
common law seemed better to exemplify Savigny's views than did the law of
Germany, which drew heavily on Roman law. But as an Englishman, Maine
saw in law more than a people's customs; he observed and took into account the
creative and reforming work of Parliament, and so he was led to recognize

23
Pound, Roscoe. Interpretations of Legal History. New York: Macmillan, 1923.
16
legislation as an instrument of legal growth. And he found that equity and legal
fictions played creative roles in the common law. In these respects he departed
radically from Savigny's monistic approach to law and its sources.24

Maine's comparative historical studies, which took into account diverse legal
systems, kept him from a belief in the mystical uniqueness of a people and its
genius and its law; he observed uniformities as well as differences in different
legal orders, and so he was led to suggest that similar stages of social
development may be correlated with similar stages of legal development in
different nations. Maine differed from Savigny also in believing that custom
might historically follow an act of judgment, so that the jurist could be seen to
have had a creative role in making the law, even though he claimed only to have
found it. Maine also noted the part played in early societies by the codification
of customary law. In revealing the ideals operative in a society at a particular
stage of its development and in relating them to social conditions, Maine
stimulated the development of the use of the sociological method in
jurisprudence. It thus became apparent that just as law cannot be divorced from
history, so, too, it cannot be divorced from philosophy and sociology. Thus, if
Savigny's historical jurisprudence was mainly conservative in import, Maine's
work had a predominantly liberalizing effect. Then too, Maine's work
influenced the development of comparative legal studies.

Other English scholars associated in varying degree with the historical school
of jurisprudence are James Bryce (1838–1922), Frederic W. Maitland (1850–
1906), Frederick Pollock (1845–1937), and Paul Vinogradoff (1854–1925).

Perhaps the greatness of historical jurisprudence lay in the fact that it provided
its own seed of dissolution; for once it is admitted that law is historically
conditioned, it is as impossible to limit the conception of law to a Volksgeist as
to the commands of the sovereign; all forms of social control and all sources of
law emerge as subjects for legitimate consideration and study.25

24
Walton, F. P. "Historical School of Jurisprudence and Transplantations of Law." Journal of
Comparative Legislation & International Law 183 (3rd series, 1927).
25
Dias R.M.W., ‘JURISPRUDENCE’, pg. 147 (5th Ed. 2013).
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2.5 Jurisprudence and Politics

No less close and no less ancient is the connection between Political Science
and Jurisprudence, the science of law. The former is the study of the State and
government whereas the latter is the study of law.
If human beings are to live a life of togetherness and safeguard the existence of
the community itself, they must accept certain rules of conduct.
The rules governing society may be few or many. They can range from a few
primitive traditions, handed down orally from one generation to another, to the
whole complex set of constitutional and governmental regulations which are
associated with the modern State. The regulations of the State are called laws
and these are formulated, administered and enforced by the government.26
Every State, no matter what its form of government, develops its own
constitutional law. Similarly, every political philosophy embraces or implies
jurisprudence. From a social point of view, laws must be influenced by their
environments. As is the structure of society, so is the content of laws.

In a community of large land-owners the laws will not be the same as in a

country of peasant farmers. Similarly, the laws governing private property and
the conditions of labour will be different under a capitalistic pattern of society
and a socialistic one. The constitutional law of a democratic government
basically differs from that in a dictatorship.

Strictly speaking, Jurisprudence is a sub-division of Political Science, as it is

the State that creates and maintains the conditions of law. But it is now treated
as a separate study because of the vastness of its scope and its specialised study
of law. Moreover, law is concerned with classes of persons and classes of
situations in general, and often hypothetical terms.27

26
.W. Paton, A TEXTBOOK ON JURISPRUDENCE, pg.20-19(4th Ed. 1972).

Relationship of Jurisprudence and Political Science – Essay, Article shared by Suhana

27

Dhawan.
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2.6 Synthetic Jurisprudence

The establishment, sooner or later, of a Synthetic Jurisprudence (we would

probably have called it “Syncretic” Jurisprudence) was almost a biologic
necessity; it was certainly a natural outgrowth of the Indian philosophy of life.
From the earliest recorded history of the peoples of the Indian peninsula who
later formed themselves into a unified nation, there was manifested a sense of
unity in the midst of diversity; as Humayun Kabir calls it, “a sense of Indianess.”

This sense of Indians grew “in the capacity of Indian society to adjust itself to
the challenge of the times India accepted freely, gifts other people brought. The
process of synthesis continues to this day.’ Systems of law reflect of necessity
the social environment in which they arise and develop.

The Synthetic Jurisprudence was founded by Minocher J. Sethna in 1955.

Synthetic Jurisprudence can be defined as a method which is to bring logical
analysis of the given juristic materials, the historical development of those
materials, the metaphysical or philosophical findings of ideals or principles
behind them, the political principles to which they may be referred or which
give common direction to juristic and political institutions, as well as the
principles of social institutional development and their relation to justice and to
political philosophy, as well as a general science of society and social
institutions-to bring all this as it were to a common focus upon the problems of
jurisprudence in what he calls a synthetic science of law.

Synthetic Jurisprudence describes the object of Jurisprudence as “that of

examining the existing law, and the Principles on which it is based, and of
analysing its concepts, studied with the help of history, in the light of a
comparative study of the legal systems of the world and of testing the utility of
the law, studying reasons at its substratum, and examining it in the light of
sociology and psychology and under the rules of natural justice and social
conscience. . . .Good laws are those which are capable of doing the greatest
good to the largest number in society.”28

28
Dias R.M.W., ‘JURISPRUDENCE’, pg. 152-155 (5th Ed. 2013).
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 ****

Conclusion

Jurisprudence is closely inter-related with other social sciences since all of them
are concerned with human behavior in society. Pound who propounded the
theory of law as “social engeneering”, pointed out that Jurisprudence is closely
inter-related with ethics, economics. Politics and sociology which though must
co-ordinate with Jurisprudence to make it functional branch of knowledge.
Similarly, Paton has observed that modern jurisprudence trenches on the fields
of social sciences and of philosophy; it digs into the historical past and attempts
to create the symmetry of a garden out of the luxuriant chaos of conflicting legal
system.

There is a separate branch of sociological jurisprudence which is based on

sociological theories, and is essentially concerned with the influence of law on
the society at large, particularly social welfare. The sociological approach to the
legal problems is different from the approach of lawyer. Jurisprudence in its
approach to the problems of prison reforms and has suggested ways and means

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of preventing social wrongs. It has given a new orientations to the science of
Jurisprudence.
For a reason there has been such a connectivity to make the process of natural
jurisdiction prevailing in the society. These relations have been explaining some
the interdependence of the subject to manage and regulate human conduct. This
project work has mentioned all sorts of connectivity of legal science to the other
sciences which make the decision making process smooth and effective.

BIBLIOGRAPHY
Books
 Dias R.M.W., ‘JURISPRUDENCE’, 5th Ed. 2013, Lexis Nexis ,
Harayana.
 Freeman M.D.A Lloyd’s ‘INTRODUCTION TO
JURISPRUDENCE’, 9th Ed. 2014,Sweet Maxwell, London
 Hollnad T. E., Holland’s ‘JURISPRUDENCE’, 13th Ed.1924,
Universal Law Publishing Co. New Delhi.
 John D. Finch, ‘INTRODUCTION TO LEGAL THEORY’, 2nd Ed.
1974, Universla Law Publication.Co. Delhi.
 Paton G.W. , ‘ A TEXTBOOK ON JURISPRUDENCE’, (4th Ed.
1972) Oxford University Press, New Delhi.

Sources

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 Samir Jaiswal, The Concept Of Jurisprudence, Wordpressindia :
https://lawphotostat.files.wordpress.com/2015/03/jurisprudence-3.pdf.
Last Visited: 15 february 2017.

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