Jurisprudence as Science, Philosophy and Legal Theory

A student meeting jurisprudence for the first time often asks: what kind of subject is this? It has no sections to learn, no cases to apply in the ordinary way, yet it is examined as a law subject. The answer is that jurisprudence wears three hats. When it analyses and classifies legal concepts systematically, it acts like a science. When it asks why law binds us and whether unjust law is law, it acts as philosophy. When it builds general explanations of how legal systems work, it is legal theory. This note explains each hat and why none of them alone fits.

1. Is Jurisprudence a Science?

Science in the broad sense means any systematic and organised body of knowledge about a subject, arranged by principles. In that sense jurisprudence plainly is a science. It classifies law, defines its concepts precisely, and arranges them into an ordered system, much as a botanist classifies plants. Holland called it the 'formal science of positive law', Salmond the 'science of civil law', and Gray the 'science of law'. Holland also stressed that it is a progressive science, which grows as legal systems mature.

In the strict sense of the natural sciences, however, jurisprudence is not a science. A physicist can test a hypothesis by experiment and predict an eclipse to the second. Jurisprudence cannot run a controlled experiment on society. Its subject matter, law, is made by human choice and changes with it, and its conclusions are bound up with values. Critics therefore deny it scientific status. The better view is that it is a social or human science: systematic in method, but dealing with human conduct and human purposes.

How the jurists labelled the subject

The label a jurist chose tells you what he thought the subject was for. Those who wanted order and precision called it a science; those who wanted to reach the foundations called it philosophy; those who wanted to connect law with the world around it spoke of legal theory.

2. The Case For and Against Scientific Status

The question whether jurisprudence is a science is a favourite essay topic because both sides have respectable arguments. The table sets them side by side. Notice that most disagreements come down to which meaning of science is being used: the broad sense of organised knowledge, or the strict sense of the laboratory.

Weighing the two columns, the fair conclusion is that jurisprudence is a science in the broad sense and not in the strict one. Kelsen's contribution was to change the terms of the debate: legal science need not imitate physics, because it has its own object (norms) and its own principle of connection (imputation rather than causation). On that view the objection that law cannot be tested in a laboratory misses the point, just as it would for grammar or logic.

3. Jurisprudence as Philosophy

Philosophy asks the most general questions about any subject: what it is, how we know it, and what value it has. Austin himself defined jurisprudence as the philosophy of positive law, though for him that meant only a general analysis of legal concepts. In the wider sense, jurisprudence as philosophy asks: What is law, and how does it differ from morality or a gunman's order? Why should anyone obey law? Is an unjust law still law? What is justice? These questions cannot be settled by collecting facts. They are answered by argument. This philosophical side of jurisprudence is sometimes called legal philosophy or the philosophy of law (see Note 5 for how far the two terms differ).

Hart described his own book, The Concept of Law (1961), as 'an essay in descriptive sociology' as well as analytical jurisprudence. That shows how the philosophical and the scientific hats overlap: even a philosopher of law describes social practices, and even a scientist of law must make conceptual choices.

4. Jurisprudence as Legal Theory

Legal theory is the name used for the general explanatory theories of law: Austin's command theory, Kelsen's pure theory, Hart's theory of rules, Dworkin's interpretive theory, Pound's social engineering, the realists' prediction theory. Friedmann's textbook, Legal Theory, is the standard work. His central point is that every legal theory is linked on one side to philosophy (it rests on some view of human nature and knowledge) and on the other to political theory (it reflects some view of the State and society). Legal theory, in other words, sits between pure philosophy and practical law. Whether legal theory is narrower than jurisprudence, or simply another name for it, is taken up in Note 10.

5. Jurisprudence as an Art: The Craft of Judging

A science tells you what is; an art tells you how to do something well. Knowing every rule of cricket does not make a good umpire, and knowing every doctrine does not make a good judge. The Roman jurist Celsus defined law (jus) as ars boni et aequi, the art of the good and the equitable, a definition Ulpian placed at the opening of the Digest. The Romans saw legal knowledge as a practical skill exercised by jurisconsults for real clients, not only as a body of theory.

The English common lawyers said the same. In a celebrated exchange with James I, Sir Edward Coke told the King, in substance, that cases are decided not by natural reason but by the artificial reason and judgment of law, which requires long study and experience. In the twentieth century Benjamin Cardozo, in The Nature of the Judicial Process (1921), described the judge's working methods: the method of philosophy (logic and analogy), of history (the evolution of a rule), of custom (tradition and practice) and of sociology (justice, morals and social welfare). The judge must choose and blend them, and that choice is a craft. Llewellyn, in The Common Law Tradition: Deciding Appeals (1960), praised the grand style of judging, which tests a rule against its reason and the needs of the situation, over the formal style, which applies rules mechanically.

Even Kelsen, the most scientific of jurists, conceded the point in his own way. A higher norm, he said, is only a frame within which several decisions are possible; the choice within the frame is an act of will, not of pure cognition. The science of law can mark out the frame, but filling it is the work of judgment. That is why a complete answer describes jurisprudence as a science and an art: a science in its knowledge of the law, an art in its application.

6. The Three Hats Compared

7. Why the Labels Matter in Exams

A question such as 'Jurisprudence is a science. Discuss.' is really asking you to show that the answer is yes and no. A good answer defines science in both its broad and strict senses, credits Holland, Salmond and Gray with the scientific view, explains Kelsen's normative science, notes the critics who stress values and unpredictability, and concludes that jurisprudence is best described as a systematic social science that has a philosophical core. Adding Bentham's expository and censorial division (see Note 1) shows that jurisprudence can describe law as it is (the scientific side) and criticise it as it ought to be (the philosophical side).

8. One Judgment, Two Hats: An Indian Perspective

Indian constitutional judgments show the science and the philosophy of law working together on the same page. In Kesavananda Bharati v State of Kerala (1973, 13 judges, 7:6) the judges analysed the text of Art. 368 and the meaning of the word amendment, the work of legal science, and they also debated whether any power under a constitution can be unlimited, the work of legal philosophy. The privacy judgment is an even clearer example.

9. Frequently Asked Questions

Q. Is jurisprudence a science?
A. In the broad sense of a systematic, organised body of knowledge, yes: Holland, Salmond and Gray treat it as a science. In the strict sense of the natural sciences, no, because it cannot experiment or predict and it deals with human values. It is best described as a social science with a philosophical core.

Q. What did Kelsen mean by a normative science?
A. That jurisprudence studies norms, statements of what ought to happen, rather than facts about what does happen. The link between a crime and its sanction is imputation (the law attributes the sanction to the act), not causation.

Q. How does legal theory relate to philosophy and politics?
A. Friedmann explains that every legal theory is tied on one side to a philosophical outlook and on the other to a political theory. Legal theory therefore sits between philosophy and the practical law.

Q. Is jurisprudence an art or a science?
A. Both. It is a science in so far as it systematically describes and classifies law, and an art in so far as law must be applied with judgment to particular cases. Celsus called law the art of the good and the equitable, and Cardozo showed how the judge blends logic, history, custom and social welfare in deciding.

See also: Note 1 (definitions), Note 5 (jurisprudence and legal philosophy), Note 10 (jurisprudence and legal theory), Note 12 (Kelsen).