Jurisprudence t226i

JURISPRUDENCE INTRODUCTION: 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 word jurisprudence is derived from the latin word "JURISPRUDENTIA" which means knowledge of law or skill in the law.jurisprudence is a study of the fundamfntal legal principles.it may be described as any thought or writing about law.it is a procedure or a concept to understand the essential principles of law and legal system. Philosophers of law ask "what is law?" and "what should it be?" Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first principles of the law of nature, civil law, and the law of nations.General Jurisprudence can be broken into categories both by the types of questions scholars seek to address and by the theories of jurisprudence or schools of thought regarding how those questions are best to be answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems in two rough groups: • Problems internal to law and legal systems as such. • Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

MEANING :In English jurisprudence we are concerned rather to reflect on the nature of legal system,on the underlying meaning of legal concepts and on the essential features of legal system.we need english jurisprudence to analysis the basic concept of law. Jurispridence is a certain type of investigation into law,an investigation of an abstract,general and theorretical nature which seeks to lay bare the essential principles of law and legal systems.It is a subject which differs in kind from other subjects on the legal syllabus.For the typical legal subject,e.g Contract or Tort,consist of a set of rules and principles to be derived from authoritative source and applied to factual situations in order to solve practical problems. Jurisprudence,by contrast,does not constitute a set of rules,is not derived from authority and is without practical application. In jurisprudence we are not concerned to derive rules from authority and apply them to problems,we are concerned rather to reflect on the nature of legal rules,on the underlying meaning of legal concepts and on the essential features of legal system.Thus,where as in law we look for the rule relevent to the given situations,in jurisprudence we ask what it is for a rule to be a legal rule,and what distinguishes law from morality,etiquette and other related.

The word "Jurisprudence"has meant many different things at different times. Jurisprudence is not practical value,albiet of a long-term character. One of the task of jurisprudence is to construct and elucidate organising concepts serving to render the complexities of law more manageable and more rational,and in tle his way theory can help to improve practice. Leagal system is understandable by jurisprudence.The term jurisprudence may tentetvely be described as any thought or writing about law and its relation to other disciplines such as philosphy,psychology,economics,anthropology and many others. Jurisprudence is a science of law and there are different methods of approach to it. DEFINITION’S: 1) SALMOND's DEFINITION :"The science of civil law" Salmond defines jurisprudence as"The science of law" or "Civil law".According to Salmond it is systematic study of civilization. In this definition Salmond says that law is a science and it concern with right and duties belonging to every citizen. Salmond uses the term jurisprudence in two senses. • Generic sense. • specific sense.

GENERIC SENSE :Generic Jurisprudence includes the entire body of legal doctrines.In that sense,jurisprudence is of three kinds.  Expoitory or Systematic jurisprudence :It deals with the contents of an actual legal system as existing law at any time,whether in part or in present.  Legal History :It deals with the history of development of law.  Science of Legislation :The purpose of the science of legislation is to set forth law as it ought is be. It deals with the ideal of the legal system and the purpose for which it exists.

Specific Sense :specific jurisprudence deals with a particular department of legal doctrines. In this sense,it is also defined as"The Science of the first principles of the civil law". In this sense,he divides the subject into three branches.  Analytic Jurisprudence.  Historical Jurisprudence.  Ethical Jurisprudence.  ANALYTIC JURISPRUDENCE :-

Analytical jurisprudence deals with the analysis of basic principles of law.it is not concerned with the past stages of its evolution.It is not concerned with its goodness or badness.The purpose is to analyse and discuss the law of the land as its exists today.  HISTORICAL JURISPRUDENCE. Historical jurisprudence deals with the scientific study of evolution and development of principles of law. Historical jurisprudence is the history of the legal principles and conceptions of legal system.it is a movement for fact against fancy,a call for a return from myth to reality.

 ETHICAL JURISPRUDENCE :Ethical jurisprudence deals with the law as it ought to be an ideal state.It investigates the purpose of law and the measure and manner in which that purpose is fulfilled.It concerns itself chiefly with the relation of law to certain ideas which law is meant to achieve.

 CRITICISM ON SALMOND's DEFINITION :It is submitted that salmond had failed to give an accurate and specific definition and also the division made by him of jurisprudence into general and particular raises a great deal of criticism as the Hollan observes that these expressions should be discarded,as the science should be treated as incapable of being divided in to these two branches.

HOLLAND's DEFINITION :Sir Thomas Erskine Holland defines jurisprudence as "The formal science of positive law". According to Holland,jurisprudence is not a material science.Holland follows the Austin's and salmond definition but he adds the term "formal" which means "that which concerns only the form and not its essence".He says that jurisprudence is only a formal science i.e, a science which describes only the formor the external side of the subject and not its internal contents. Holland metioned one thing more which is positive law.we include both positive and negative both in positive law. POSITIVE LAW means when you have to do something in the concequences of law. NEGATIVE LAW means when u don't have to do something in the concequences of law.

CRITICISM ON HOLLAND's DEFINITION :By Gray: The real relation of jurisprudence to law depends not what law is treated but how law is treated. By Dr.Jenks: He observes that jurist can only recognize a law by its forms for it is the form which causes the manifold matter of the phenomena to be percieved but having got the form as it were,on the operating table,has to disect it and assertain its meaning.

Jurisprudence is concerned with means rather than with ends,through some of its mean are ends in themselves.

 ALLEN's DEFINITION :Allen says: "It is a scientific synthesis of essential principles of law". According to Allen law is a proper and separat subject.It is an analytic or systematic process to study the essential principles of law.

 PATON's DEFINITION :Paton says: "A particular method of study not of laws of one country but of general Notions of law itself". According to paton it is a proper way to study not only the law of one country but general concepts and rules of every country or whole world. Paton says law is an independent study.

 AUSTIN's DEFINITION :Austin defines jurisprudence as "The philosphy of positive law means the laid down by a political superior for controlling the conduct of those subjects to his authority. Austin divided the jurisprudence into following. i) General jurisprudence. ii) Particular jurisprudence.

GENERAL JURISPRUDENCE :General jurisprudence includes such subjects or ends of law as are common to all system. PARTICULAR JURISPRUDENCE :Particular jurisprudence is the science of any actual system of law or any portion of it. CRITICISM ON AUSTIN's DEFINITION. SALMOND CRITICISM : The error in Austin's idea of general jurisprudence lies in the fact that he assumes that unless a legal principal is common to many legal systems, it cannot be dealt within general jurisprudence. There may be many schools of jurisprudence but not different kinds of it. HOLLAND'S CRITICISM: Holland points out that it is only the material which is particular and not the science itself.

 KEETON DEFINATION :-

" Jurisprudence is the study and systemic arrangement of the general principles of law".

BENEFITS OF JURISPRUDENCE :Jurisprudence is basically a theoretical subject but it also has a practical and educational value. The practical value or purposes of jurisprudence has been enumerated as under.  REMOVE THE COMPLEXITIES OF LAW: One of the task of jurisprudence is to construct concepts and make law more manageable and rational.  ANSWER THE NEW PROBLEMS: Jurisprudence can teach people to look around them and realize that answers to legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.

GRAMMER OF LAW: Jurisprudence is the grammer of law. It throws light on the basic ideas and the fundamental principles of law e.g. negligence, liability etc.  TRAINING OF MIND: Jurisprudence trains the mind to solvethe difficult legal provisions in legal way.  GRASP ON THE SUBJECT: It helps in knowing and grasping the language, grammer, the basics of treatment and assumption upon which subject rests.  USEFUL IN ART OF PLEADING AND LEGISLATION: It helps legislators and the lawyers the proper use of legal terminology. It relieves them of the botheration, creation of defining again and again certain expressions e.g. right, duty etc  TO INTERPRET LAW: It helps the judges and the lawyers in ascertaining the true meanings of the law ed by the legislatures by providing the rules of interpretation.  TO STUDY FOREIGN LAW: It enable a lawyer to study foreign law because the fundamental principles are generally common to all systems of law.  IMPORTANCE UNDER THE LIGHT OF DIFFERENT JURISTS: By Dr.M.J.Sethna:

The value of jurisprudence lies in examining the consequences of law and its istration on social welfare and suggesting changes for the betterment of the superstructure of laws. By M.Dias: 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 existance. The true purpose of the study of Jurisprudence should not be confined to the study of positive law alone but must include normative study that deals with the improvement of law in the context of prevailing philosophies of time, place and circumstances.

SCOPE OF JURISPRUDENCE:There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads: o EARLY PERIOD: In the early period, Jurisprudence has been so defined as to cover moral and religious precepts and that has created confusion. o AUSTINIAN PERIOD: It was the Austin, who distinguished law from morality and theology and restricted the term to the body of rules set and enforced by trhe sovereign or supreme law-making authority with in the realm. Therefore, the scope of Jurisprudence was limited to the study of the concept of positive law only. o MODERN PERIOD: At present, there is a tendency to widen the scope of Jurisprudence cannot be circumscribed or limited. It includes all concepts of human order and human conduct in human state and society. View of P.B.Mukherji: Jurisprudence includes political, social, economic and cultural ideas. It covers the study of man in relation to state and society. View of Lord Redcliff: Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.