DEFINITION AND CONCEPT OF JURISPRUDENCE

The word jurisprudence derives from the Latin term juris prudentia, which means “the study,
knowledge, or science of law.” In the United States jurisprudence commonly means the philosophy
of law. … The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a
particular legal concept.

Jurisprudence or legal theory is the philosophy of law, i.e., the science of law. It is the study of the
theories and principles on which a legal system is founded. Jurisprudence is the science. The term
may also refer to a department of law, as in ‘medical jurisprudence.’

There are several different types and schools of jurisprudence. Some treat the subject like science or
math. Others, however, take a different approach.

The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus meaning
“law”, and prudentia means “knowledge”. The word is first attested in English in 1628, at a time
when the word prudence had the now obsolete meaning of “knowledge of or skill in a matter”. The
word may have come via the French jurisprudence, which is attested earlier.

The most prevalent form of jurisprudence seeks to analyse, explain, classify, and criticize entire
bodies of law, ranging from contract to TORT to Constitutional Law. Legal encyclopaedias, law
reviews, and law school textbooks frequently contain this type of jurisprudential scholarship.

The second type of jurisprudence compares and contrasts law with other fields of knowledge such as
literature, economics, religion, and the social sciences. The purpose of this type of study is to
enlighten each field of knowledge by sharing insights that have proven to be important in advancing
essential features of the compared discipline.

The third type of jurisprudence raises fundamental questions about the law itself. These questions
seek to reveal the historical, moral, and cultural underpinnings of a particular legal concept. It traces
the evolution of civil and criminal responsibility from undeveloped societies where liability for
injuries was based on subjective notions of revenge, to modern societies where liability is based on
objective notions of reasonableness.

The fourth and fastest-growing body of jurisprudence focuses on even more abstract questions,
including, what is law? How does a trial or appellate court judge decide a case? Is a judge similar to a
mathematician or a scientist applying autonomous and determinate rules and principles? Or is a
judge more like a legislator who simply decides a case in favor of the most politically preferable
outcome? Must a judge base a decision only on the written rules and regulations that have been
enacted by the government? Or may a judge also be influenced by unwritten principles derived from
theology, moral philosophy, and historical practice?

Apart from different types of jurisprudence, different schools of jurisprudence exist. For instance,
there is the classic debate over the appropriate sources of law between positivist and natural law
schools of thought. Positivists argue that there is no connection between law and morality and the
only sources of law are rules that have been expressly enacted by a governmental entity or court of
law. Naturalists, or proponents of natural law, insist that the rules enacted by government are not
the only sources of law. They argue that moral philosophy, religion, human reason and individual
conscience are also integrated parts of the law.

History of Jurisprudence:
Jurisprudence already had this meaning in Ancient Rome even if at its origins the discipline was a
(periti) in the jus of mos maiorun’I (traditional law), a body of oral laws and customs verbally
transmitted “by father to son”. Praetors established a workable body of laws by judging whether or
not singular cases were capable of being prosecuted either by the edicta, the annual pronunciation
of prosecutable offense, or in extraordinary situations, additions made to the edicta. An iudex then
would judge a remedy according to the facts of the case.

Their sentences were supposed to be simple interpretations of the traditional customs, but
effectively it was an activity that, apart from formally reconsidering for each case what precisely was
traditionally in the legal habits, soon turned also to a more equitable interpretation, coherently
adapting the law to the newer social instances. The law was then implemented with new evolutive
Institutiones (legal concepts), while remaining in the traditional scheme. Praetors were replaced in
3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of
competence or experience.

In ancient Indian vedic society, the law or Dharma, as followed by Hindus was interpreted by use of
“Manu Smrti” a set of poems which defined sin and the remedies. They were said to be written
between 200 BC 200 AD. In fact, these were not codes of law but norms related to social obligations
and ritual requirements of the era.

Under the Roman Empire, schools of law were created, and the activity constantly became more
academic. In the age from the early Roman Empire to the 3rd century, a relevant literature was
produced by some notable groups including the Proculians and Sabinians. The scientific depth of the
studies was unprecedented in ancient times.

After the 3rd century, Juris prudentia became a more bureaucratic activity, with few notable
authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again
undertaken in depth, and it is from this cultural movement that Justinian’s Corpus Juris Civilis was
born.

Development of Jurisprudence:

Ancient Jurisprudence was derived from Greek Jurisprudence through prominent scholars like
Aristotle, Socrates and Plate. Modern jurisprudence began in the 18th century and was focused on
the first principles of the natural law, civil law, and the law of nations. “Jurisprudence”, Black’s Law
Dictionary Natural law is the idea that there are rational objective limits to the power of legislative
rulers. The foundations of law are accessible through human reason and it is from these laws of
nature that human created laws gain whatever force they have. Shiner, “Philosophy of Law”,
Cambridge Dictionary of Philosophy.

(a) Legal Positivism by contrast to natural law, holds that there is no necessary connection between
law and morality and that the force of law comes from some basic social facts although positivists
differ on what those facts are. l Spore, Legal Positivism’, Cambridge Dictionary of Philosophy.

(b) Legal Realism is a third theory of jurisprudence which argues that the real world practice of law is
what determines what law is; the law has the force that it does because of what legislators, judges,
and executives do with it. Similar approaches have been developed in many different ways in
Sociology of law.

(c) Critical Legal Studies is a younger theory of jurisprudence that has developed since the 1970s
which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as
an expression of the policy goals of the dominant social group.l Moore, “Crjtjcal Legal Studies”,
Cambridge Dictionary of Philosophy.

Also of note is the work of the contemporary Philosopher of Law Ronald Dworkin who has advocated
a constructivist theory of jurisprudence that can be characterized as a middle path between natural
law theories and positivist theories of general jurisprudence.

Field of Jurisprudence

Field of jurisprudence: there is enmity of opinion regarding the field of jurisprudence. The exact limit
of the field of jurisprudence has variedly been expressed by the jurists. Jurisprudence has been
defined by some jurists as to cover moral and religious precept and this view has created confusion.

Austin distinguished law from morality and theology and restricted the term to the body of rules set
and enforced by the sovereign and supreme law making authority within the realm. So, the field of
jurisprudence was limited by Austin to the study of the concepts of positive law and ethics and
theology fall outside the province of jurisprudence.

At present the field of jurisprudence has been widened and the issues which are previously
considered as outside the range of jurisprudence are included in its field. The present view is that
the field of jurisprudence cannot be restricted circumscribed. “It includes all concepts of human
order and human conduct in State and society. Anything that concerns order of the state and society
falls under the domain of jurisprudence.”

1. B. Mukhei says “new jurisprudence is both an intellectual and idealistic abstraction as well as
behaviouristic study of man in society. It includes political, social, economic and cultural
ideas. It covers the study of man in relation of State and society”

Effectiveness of Jurisprudence

It is often said jurisprudence has no practical effectiveness as for its being a theoretical one.
According to Salmond “there is its own intrinsic interest like other subjects of serious scholarship.
Just as a mathematician investigates the number theory not with the aim of seeing his findings put
to practical use but by reason of the fascination which it holds for him, likewise the writer on
jurisprudence is impelled to his subject by its intrinsic interest. It is as natural to speculate on the
nature of law as on the nature of light. Researches in jurisprudence may have repercussions on the
whole of legal, political and social thought.

Jurisprudence has practical value. One of the chores of jurisprudence is to construct and elucidate
concepts serving to render the complexities of law more manageable and more rational. In this way,
theory can help to improve practice.

Jurisprudence also has educational value. Jurisprudence can help lawyer to combat the occupational
view which leads to excessive concentration on legal rules for their own sake and disregard of social
function of law.

Role of Jurisprudence in law:

Jurisprudence is said to be the eye of law. It is also said to be the grammar of law. By understanding
the concept and distinction of nature of law, a lawyer can find out the actual rules of law.
Jurisprudence trains the critical faculties of its students so that they can detect fallacies and use
accurate legal terminologies and expressions.
The legislature who are subject of creating law, are also provided a precise and unambiguous
terminology by jurisprudence through its study. “it relieves them of the botheration of defining
again and again in each Act certain expressions such as right, duty, possession, ownership, liability,
negligence.”

According to Dr. M. J. Sethna, the value of jurisprudence lies in examining the consequences of law
and its administration on social welfare and suggesting changes for the betterment of the
superstructure of laws.

2.7 The History of Jurisprudence in Slave Society of Ancient Greece

History of Greek Jurisprudence is important on the sense that the Greece is in some cases the
predecessor of western jurisprudence.

At that time, comparatively speaking, there was not much statute law, neither were the professional
jurist groups in the poleis, let alone an independent jurisprudence. However various works on
philosophy, ethnics, politics and literature, involved many general theories about law, most of which
discussed the relationships between law and divinity, nature, politics, moral and justice. For
instance, is the law a divine or a human one? Does the law reflect justice and nature, or just power?
What are the relationships between law and state, democracy, freedom and equality? What is the
relationship between natural law and positive law? All the ideas have exerted an important influence
on the later development of jurisprudence in the western world.

Platon (427-347 BC), a famous Greek mentalism philosopher, advocated “the politics of wise man”,
and belittled the role of law. Nevertheless in his later works, he altered to believe that law is the
second best choice, only inferior to “the politics of wise man”, moreover he was inclined to accept
that law is omnipotent.

Among all the Greek thinkers, Aristotle (384-322 BC) has advanced the most rich and profound
thoughts of law. For example, he deemed that, whether a law conformed to justice or not relied on
the polity; but law was different from the polity they were rules, by right of which men in power
took the reins and punished those who disobeyed the law. In other words, law restricted both the
common people and the men in power. His thoughts included that rule of law was better than rule
by man; rule of law meant people generally obeyed the law, which should be well enacted; law
reflected the justice, which meant a kind of equality. There were two kinds of justice.

Aristotle also discussed the difference between natural justice and legal justice (promissory justice),
which was considered the distinction between the natural law and the positive one.