This article is written by Smaranika Sen from Kolkata Police Law School. This article exhaustively deals with the concept of jurisprudence.
Table of Contents
Introduction
We are all accustomed to the meaning of the law. Several questions come to our mind, such as what could be the reason behind the system of laws, or why should there be a legal system in the society or how did the rule of law come into effect, etc. These various answers are given by jurisprudence. Jurisprudence is the study of the law in theoretical and philosophical aspects. It shows us the correct way of studying the law.
Meaning of jurisprudence
The term ‘jurisprudence’ is derived from the Latin word ‘jurisprudentia’, which means the knowledge of the law. If the word jurisprudentia is dissected into Juris and prudentia, Juris means law and prudentia means skill. There is no such definite definition of jurisprudence. However, various jurists have defined the term jurisprudence. Jeremy Bentham is considered the Father of Jurisprudence. According to him, jurisprudence is a set of philosophical principles and various interpreted theories. This eventually shows us the concept of law. According to Austin, the appropriate subject for jurisprudence is the existing laws or the positive law. He was the first philosopher and jurist who considered jurisprudence as a science. Keeton has defined jurisprudence as the study and systematic arrangements of the general principles of law.
Jurisprudence throws light on the basic principles of law. It shows us the correct path of finding the reason behind the rules of law and understanding their concept. It also helps the judges and lawyers in deriving the proper interpretation of the laws. The study of jurisprudence brings out clarity in understanding the concept of law.
Significance of Jurisprudence
It gives a multidimensional approach to the system of law. At times, a huge gap is observed between the law and its application in society. Jurisprudence helps in such cases. It helps in bringing logic to the rules of law so that the application in society can be beneficial for the people. It also shows us the connection of law with subjects such as philosophy, economics, psychology, politics, etc. People, especially judges and lawyers, get a better understanding of the concept of law through the study of jurisprudence. It also helps the authorities to understand how and when any reformation is required. Lord Tennyson, considers jurisprudence as ‘the lawless subject of law’.
Evolution of Jurisprudence
The origin of jurisprudence is in the Roman civilization. The Romans were quite interested to find out the meaning and the nature of the law. However, at that time the research was quite limited regarding the concept of law. It was also observed that the Greek civilization was also trying to understand the concept of law. Philosophers like Plato, Socrates, Aristotle, etc have given many references regarding the concept of law. With the fall of these civilizations, the Christian States emerged. However, with the emergence of secular States, various new theories came up proposed by John Locke, Rousseau, Blackstone, Hugo, etc, with concepts and evolution of law. During the 17th century, the positive approach towards law saw the light.
Different approaches towards the study of jurisprudence
Classical Theory
This theory associates jurisprudence with various legal theories proposed by different eminent jurists and philosophers. Some of the theories are:
Roman theory
It stated that the rule of law and morality were interlinked and connected. However, this theory was criticized on the basis that they had mixed up the concept of justice and morality. This theory does not hold any importance in the contemporary world.
Greek theory
This theory mainly focused on the system of natural law and justice.
Ancient Indian theory
This theory is based upon the concept of ‘Dharma’. Dharma is considered a set of rules which are ordered by nature itself. It is the most ancient legal system theory in the world.
Reformative theory
This theory focused on the development of secularism. The ideas of individualism arose. The functions of the State were limited. Three natural rights were guaranteed to every citizen, they are- the right to life, the right to liberty, and the property rights. In this theory, it was believed that law was made by either State or any sovereign. This theory holds a lot of importance even in today’s world in the study of jurisprudence. It is believed that this theory is quite appropriate for the democratic States.
Rationalist theory
This theory emerged as a consequence of the Industrial Revolution. This Revolution changed the economic conditions of Europe. The poor economic conditions, unemployment all over led to several issues. These issues, eventually, questioned the appropriateness of the reformative theory. It was also questioned whether the reformative theory is appropriate enough in a democracy. Thus, the concept of collectivism and socialism started to emerge. The rationalists gave immense power to the state. This theory is popular in almost all welfare States.
Modern theory
This theory tried to create dominance over the socialist concepts. It tried to give importance to the positive approach towards the law. This modern theory believed that the study of jurisprudence should rest upon the positive approach and have a strict boundary. The study of jurisprudence should not go beyond a limited boundary in a socialistic approach. This theory received both popularity and criticism. It was criticized on the basis that if the study of jurisprudence only focuses upon a positive approach and a limitation is set out, then the actual purpose of jurisprudence might fail.
Different schools of jurisprudence
The different approaches or theories regarding jurisprudence have led to the formation of different schools of jurisprudence. The different schools of jurisprudence are:
Philosophical school or Natural school
The philosophical school of jurisprudence mainly focuses on the aim that the law intends to achieve. It tries to decode the reason behind the establishment of the legal system. Grotius, Immanuel Kant, Hegel were the notable jurists of this school. They further stated that the law is for the benefit of the people. According to Grotius, moral ethics in natural law was prevalent for all irrespective of whether someone is Christian or not. Grotius, Locke, and Rosseau stated that the social contract was important in the life of humans.
Historical school
The historical form of school mainly focuses on the customs, traditions, ethics, etc followed by people from the immemorial time. The origin of the historical school of jurisprudence is believed to be the evolution of law since long back. Savigny, Henry, Edmund are considered the notable jurists of this form of school. Savigny is known as the father of the historical school of jurisprudence. He has given the Volksgeist theory, which shows that law is based upon the free will of the common people. This theory further states that the evolution of law happens with the growth of nations, and law dies with the dissolution of nations. The heart of this theory is the consciousness of people.
Realist school
The origin of the realist school is in American jurisprudence. The realist school mainly focuses on the practical view rather than abstract ideologies. It is more concerned about what the court may do rather than ideologies present behind the general rules of law. This school believes in the social investigation regarding studying the functions of law. Oliver Holmes, Karl Llewellyn are some of the notable jurists of this school.
Sociological school
The sociological school of jurisprudence is the amalgamation of the thoughts of various jurists. This form of school regards law as a social function. This form of school tries to analyze the expressions of people, the laws of society, and the relation between law and society. Montesquieu, Auguste, Comte Spencer, Herber, etc are the chief exponents of this theory.
Analytical school
The origin of the analytical school of jurisprudence dates back to the 19th century. The emergence of this school is from civil law. This form of school is based upon the positive approach towards law. The purpose of the analytical school of law was to understand the principles of law without the reference of a historic approach and also to gain a proper understanding of the fundamentals of law. This form of school emphasized the laws “as it is”.
The analytical school provided us with precision in legal thinking, scientific terms, and excluded such areas which go beyond the scope of the law. The chief exponents of this school are Jeremy Bentham, John Austin, Salmond, Holland, Hart, etc. Bentham proposed the imperative theory of law and also drew distinctions between social desirability and logical necessity. Austin, on the other hand, did not support the latter part. According to him, jurisprudence is the formal analysis of the concept of law. His division of jurisprudence into general and particular jurisprudence was based on a positive outlook towards law.
Jurisprudence in the Indian perspective
In ancient India, Jurisprudence was mainly based on the old customs or traditions. With the advancement of time, various things have changed. The then-concept of jurisprudence might become not so relevant. But are changes required? If so, then had the changes already been made? If not so, then what transformations are required? Let us look into certain spheres and analyze them.
Social Jurisprudence
Under the Indian Constitution, Part III provides us with the fundamental rights of every citizen. Part IV deals with directive principles. These provisions’ purpose is for social welfare. The concept of the issuance of Public Interest Litigation (PIL) was due to the emergency period in India. The PIL was beneficial especially for the underprivileged to get justice. Some of the landmark cases, where the judiciary in India has upheld the social jurisprudence are:
- Striking down of Section 377 of the Indian Penal Code (1860).
- Protecting the rights of women by abolishing triple talaq
- The orders of courts in the benefit of migrant workers during Covid-19
However, some cases have been criticized hugely. They have been criticized by people as they have observed the lack of social welfare.
Feminist jurisprudence
Feminist jurisprudence began in the year of 1960. Feminist jurisprudence mainly focuses on the social, economic, political equality of sexes. Under the Indian constitution, the protection of women is expressly mentioned in different Articles. Article 15 of the Constitution protects women from any discrimination. The same Article also gives power to the State to make any provisions for the benefit of women and children. There are also different Acts and statutes which expressly show the protection of women. In the case of National Legal Service Authority v. Union of India (2014), the Court held that the social, political, economic equality of women is enshrined in the Preamble itself. Though a lot of laws are there to protect the equality of women, yet women are still under the constant fight for their rights. Even in this modern century, a lot of cases happen where female foeticide takes place, a girl child is not allowed to study, and are the victims of the most heinous crimes like rape, sexual assault, etc. Various eminent personalities have criticized that the laws for women need to be interpreted widely and at some provisions, amendments are required.
The relation of politics and jurisprudence
In India, the judiciary holds an independent space along with the executive and legislation. India has followed the idea of separation of powers. However, the application of such doctrine was quite impossible in reality. In the case of Ram Jawaya v. State of Punjab (1955), it was observed that the different organs of government would perform their functions, however, at times, they might perform the functions of other organs, to a certain limit. Some of the spheres which highlight the relation between politics and jurisprudence are the appointment of the judges, judges transfer, appointing Chief Justice of India, etc. However, it is observed that the total separation of the three functions of organs cannot take place in reality. Thus, the judiciary will be interlinked to some extent, but it should be taken into account that the influence of the other organs must not go beyond a limit that might disrupt the true sense of justice.
Conclusion
The study of jurisprudence helps one remove the complications in the understanding of legal concepts. It helps the mind in creating logic and understanding the reason behind such legal concepts. Even the lawyers and judges take the help of jurisprudence for the interpretation of some rules. A law student must read jurisprudence to understand the depth of the concept of law and create a solid foundation in one’s mind. Jurisprudence is also known as the ‘eye ‘ of the law.
References
- http://www.legalserviceindia.com/legal/article-1952-nature-and-schools-of-jurisprudence-an-overview.html
- https://www.legalbites.in/library-jurisprudence/
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