Jurisprudence
Jurisprudence: Meaning, Definition and Scope
At a Glance ▪ Jurisprudence comes from the Latin jurisprudentia: juris (of law) and prudentia (knowledge, skill). Literally, the knowledge of law. ▪ There is no single agreed definition. Each jurist defines it through the lens of his own school, so the definition tells you the definer's philosophy. ▪ The classic narrow view is Austin's (the philosophy of positive law) and Holland's (the formal science of positive law). The wide view is Stone's (the lawyer's extraversion) and Llewellyn's (as big as law, and bigger). ▪ Salmond uses the word in two senses: generic (the science of civil law as a whole) and specific (the science of the first principles of civil law). ▪ Bentham splits it into expository (law as it is) and censorial (law as it ought to be). Austin splits it into general and particular jurisprudence. |
Every subject in the law syllabus teaches you a law: the law of contract, of crimes, of the Constitution. Jurisprudence alone asks about law itself. What is law? Why is it binding? Where does it come from? What is a right, a duty, a person, ownership, possession? Think of the other subjects as the individual rooms of a large house. Jurisprudence is the architect's study, where you examine the foundations, the load-bearing walls and the plan that holds all the rooms together. That is why it is often called the eye of law (a description Indian textbooks credit to Laski): it lets a lawyer see the system as a whole.
Figure: The word jurisprudence as an equation: juris and prudentia combine into the knowledge of law
1. Meaning of the Word
The Latin jurisprudentia joins jus (law, right; genitive juris, of law) with prudentia (knowledge, foresight, practical wisdom). For the Romans it meant the skilled knowledge of the law possessed by the jurisconsults, the learned lawyers who advised on legal questions. The meaning of the English word has shifted over time. In English and Indian usage it now means the theory or philosophy of law. In France, by contrast, la jurisprudence means the body of case law, the decisions of the courts. American writers sometimes use it loosely for the case law of a particular field, as in 'First Amendment jurisprudence'. For exam purposes, jurisprudence means the study of the fundamental principles, concepts and theories of law in general.
2. The Classic Definitions
Definitions of jurisprudence differ because each jurist writes from inside a school. A positivist confines it to law as it is. A natural lawyer adds law as it ought to be. A sociologist carries it out into society. Learn the definitions with their authors, because examiners test the pairing.
Classic Definitions ▪ Ulpian (Roman jurist, Digest): 'Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia': the knowledge of things divine and human, the science of the just and the unjust. The widest definition of all, from an age when law, religion and morals were not yet separated. ▪ Austin (The Province of Jurisprudence Determined, 1832): 'Jurisprudence is the philosophy of positive law.' Positive law means law set by a sovereign to his subjects, studied without regard to its goodness or badness. ▪ Holland (Elements of Jurisprudence, 1880): 'Jurisprudence is the formal science of positive law.' Formal, because it studies the relations that law regulates, not the material rules themselves. ▪ Salmond (Jurisprudence, 1902): in the generic sense, 'the science of civil law', that is, the law of the land; in the specific sense, 'the science of the first principles of the civil law'. ▪ Gray (The Nature and Sources of the Law, 1909): 'the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules'. ▪ Keeton: 'the study and systematic arrangement of the general principles of law'. ▪ Allen: 'the scientific synthesis of the essential principles of law'. ▪ Paton (A Text-Book of Jurisprudence, 1946): 'a particular method of study, not of the law of one country, but of the general notion of law itself'. ▪ Julius Stone (The Province and Function of Law, 1946): 'the lawyer's extraversion': the lawyer's examination of the precepts, ideals and techniques of the law in the light of knowledge drawn from disciplines other than law. ▪ Llewellyn: 'Jurisprudence is as big as law, and bigger.' |
Sorted by school, the definitions are easier to remember. Positivists define jurisprudence by its object (positive law), natural lawyers by its values, sociologists by its links with other disciplines, and realists by its width.
School | Representative definition | What the definition stresses |
|---|---|---|
Natural law | Ulpian: the knowledge of things divine and human, the science of the just and the unjust | Law cannot be understood apart from justice and morality |
Analytical (positivist) | Austin: the philosophy of positive law; Holland: the formal science of positive law; Salmond: the science of civil law | Law as it is, laid down by the State, studied apart from its merits |
Sociological | Stone: the lawyer's extraversion, examining law in the light of other disciplines | Law as a social institution, understood through the social sciences |
Realist | Llewellyn: as big as law, and bigger | Law as what officials actually do; no fixed boundary to the subject |
3. Salmond's Two Senses, and a Common Error
Salmond uses the word in two senses, and this pair is often muddled with Austin's. In the generic sense, jurisprudence is the whole science of civil law, meaning all the legal doctrine of a country, from contract to crime. In the specific (narrow) sense, it is only one department of that science: the study of the first principles of the civil law, such as the nature of law, its sources, rights and duties, persons, property and liability. Salmond then divides jurisprudence in the specific sense into three branches: analytical (the analysis of the first principles of law as they exist), historical (their origin and development) and ethical (law as it ought to be). The error to avoid is to say that Salmond's generic jurisprudence means 'law in general' and specific jurisprudence means 'the law of one country'. That general against particular pair belongs to Austin, not Salmond.
4. Austin, Holland and Bentham on the Kinds of Jurisprudence
Bentham divided jurisprudence into expository jurisprudence, which describes the law as it is, and censorial jurisprudence, which criticises it and proposes the law as it ought to be. He linked censorial jurisprudence with the art of legislation. Austin kept only the expository side and divided it again. General jurisprudence studies the principles, notions and distinctions common to all mature legal systems, such as right, duty, sanction and sovereignty. Particular jurisprudence studies the law of one actual system, such as the law of England. Holland objected that there can be no such thing as particular jurisprudence. Jurisprudence, for him, is a formal science of general principles, and only the material (the rules of a given country) is particular, not the science that studies it.
Jurist | Division | What each part covers |
|---|---|---|
Bentham | Expository and censorial | Law as it is; law as it ought to be (the art of legislation) |
Austin | General and particular | Principles common to mature systems; the law of one system |
Salmond | Generic and specific | The whole science of civil law; its first principles only |
Salmond (specific sense) | Analytical, historical, ethical | First principles as they are, as they grew, as they ought to be |
Holland | Only general | Denies particular jurisprudence: the material is particular, not the science |
5. The Nature of Jurisprudence
Jurisprudence is abstract and general. It does not ask what the limitation period for a suit is; it asks what a right is, and why a lapse of time can bar its remedy. It is not a branch of substantive or procedural law, and it has no court or statute of its own. It is a thinking subject: its value lies in the questions it teaches you to ask. It is also interdisciplinary. Stone's definition shows that modern jurisprudence borrows freely from philosophy, sociology, economics, psychology and political science (see Note 4). Finally, it is not settled. Its central questions, such as whether an unjust law is still law, are still argued, which is why the subject is organised into competing schools.
6. The Scope of Jurisprudence
On the narrow (Austinian) view, the scope is confined to positive law: the analysis of legal concepts in a mature system, without regard to their justice or history. On the wide view, the scope has no fixed boundary. It covers the sources of law, the nature and purpose of law, the relation of law to morality, justice, society and the State, the historical growth of law, and the social effects of legal rules. Llewellyn's quip that jurisprudence is 'as big as law, and bigger' sums up the modern position. For an exam answer, the scope can be organised into four fields.
Field | The question it asks | Typical topics (see Notes) |
|---|---|---|
Analytical | What is law, and what do its concepts mean? | Nature of law, sources, rights, persons, possession, ownership (Notes 7, 22, 28 to 36) |
Historical | How did law come to be what it is? | Custom, Volksgeist, status to contract (Notes 13, 25) |
Ethical or normative | What ought the law to be? | Natural law, justice, law and morality (Notes 9, 20, 21) |
Sociological and functional | What does law do in society? | Social engineering, realism, law and social change (Notes 14, 15, 41) |
7. The Utility of Jurisprudence
Why a practising lawyer or judge needs it ▪ It builds legal reasoning. Jurisprudence trains the mind to analyse concepts, spot the principle behind a rule and argue by analogy. That is the daily work of advocacy and judging. ▪ It fills gaps. When a statute is silent or a case is new, the court falls back on first principles: what a right is, what justice requires, what the purpose of a law is. ▪ It guides the legislator. Bentham's censorial jurisprudence is the science of good law-making. A legislator who understands the purpose and limits of law drafts better statutes. ▪ It explains the Constitution. Indian constitutional law is jurisprudence in action: natural rights, the rule of law, the basic structure, constitutional morality and proportionality are all jurisprudential ideas. ▪ It gives perspective. Salmond noted that jurisprudence has an intrinsic interest of its own. It lets a lawyer see his daily technical work as part of a larger and older enterprise. |
8. Jurisprudence Beneath the Other Law Subjects
Every other law paper rests on jurisprudence. The concepts it analyses in general terms (right, duty, liability, possession, ownership, person, sovereignty) are used every day by the Contract Act, the law of torts, the criminal codes and the Constitution without being defined there.
Contract. The Indian Contract Act, 1872 defines a contract as an agreement enforceable by law. Salmond's imperfect right is best seen here: a time-barred debt is not extinguished, because Section 3 of the Limitation Act, 1963 bars only the remedy. Hence a written promise to pay it is enforceable under Section 25(3) of the Contract Act, and a creditor may appropriate a payment towards it under Section 60 (Notes 28 and 35).
Torts. Torts rests on the theory of liability (Note 34). In M.C. Mehta v Union of India (1987), arising from the oleum gas leak at a Shriram plant in Delhi, the Supreme Court laid down absolute liability for enterprises engaged in hazardous activities, without the exceptions allowed under the strict liability rule: a deliberate choice between theories of liability.
Crimes and constitutional law. Sentencing draws on the theories of punishment (Note 27): Bachan Singh v State of Punjab (1980) confined the death penalty for murder (now Section 103 BNS, formerly Section 302 IPC) to the rarest of rare cases. Kesavananda Bharati (1973) asked, at bottom, whether any organ of the State can be an Austinian sovereign.
Subject | Jurisprudential concept it uses | Illustration |
|---|---|---|
Contract | Obligation; perfect and imperfect rights | Time-barred debt: Section 25(3) Contract Act |
Torts | Theories of liability: fault, strict, absolute | M.C. Mehta v Union of India (1987) |
Crimes | Mens rea; theories of punishment | Bachan Singh v State of Punjab (1980) |
Property and persons | Possession, ownership, legal personality | Idol as a juristic person: Yogendra Nath Naskar v CIT (1969) |
Constitutional law | Sovereignty, rule of law, natural rights | Kesavananda Bharati v State of Kerala (1973) |
9. Jurisprudence in an Indian Courtroom
The clearest proof that jurisprudence is practical is that the same Indian question was answered in opposite ways by two theories of law, forty years apart.
ADM Jabalpur v Shivkant Shukla Supreme Court of India, 1976 (5 judges, 4:1) During the Emergency, the majority held that while the right to move courts under Art. 21 was suspended, no one could challenge detention even if it was illegal. This is a strictly positivist reading: the only rights are those the Constitution grants, and what it grants it may suspend. Khanna J, dissenting, held that life and personal liberty are not the gift of the Constitution; the State has no power to deprive a person of them without the authority of law. This is the language of natural rights and the rule of law. |
K.S. Puttaswamy v Union of India Supreme Court of India, 2017 (9 judges) Recognising privacy as a fundamental right, the Court described the ADM Jabalpur majority as seriously flawed and it now stands overruled. The plurality held that life and personal liberty are inalienable rights inherent in human existence, which the Constitution recognises rather than creates. Khanna J's dissent became the law. |
Memory Aid ▪ Analogy: other law subjects are the rooms of a house; jurisprudence is the foundation and the architect's plan. You cannot understand why the rooms stand without it. ▪ Mnemonic for the definitions: 'Please Find Some Easy Books'. Philosophy of positive law (Austin); Formal science (Holland); Science of civil law (Salmond); Extraversion (Stone); Bigger than law (Llewellyn). ▪ Pairs to keep apart: Bentham = expository and censorial; Austin = general and particular; Salmond = generic and specific. |
Exam Corner: Likely Questions ▪ Define jurisprudence. Why is there no universally accepted definition? Discuss with reference to Austin, Holland, Salmond and Stone. ▪ Explain the nature and scope of jurisprudence. Is it a science? ▪ Distinguish general from particular jurisprudence, and expository from censorial jurisprudence. ▪ Discuss the utility of jurisprudence for lawyers and judges, with Indian illustrations. |
Exam Corner: MCQ Traps ▪ 'Formal science of positive law' is Holland, not Austin. Austin's phrase is 'philosophy of positive law'. ▪ 'Lawyer's extraversion' is Stone. 'As big as law, and bigger' is Llewellyn. ▪ General and particular jurisprudence is Austin's pair, not Salmond's. Holland denied particular jurisprudence. ▪ Expository and censorial jurisprudence is Bentham's pair. ▪ In French legal usage, 'jurisprudence' means case law. |
10. Frequently Asked Questions
Q. Why is there no agreed definition of jurisprudence?
A. Because each jurist defines it through his own view of what law is. A positivist such as Austin confines it to positive law; a natural lawyer includes law as it ought to be; a sociologist such as Stone carries it into the other social sciences. The definition therefore reflects the definer's school.
Q. What is the difference between Austin's and Salmond's classifications?
A. Austin divides jurisprudence into general (principles common to mature systems) and particular (the law of one system). Salmond uses generic (the whole science of civil law) and specific (the science of its first principles), and splits the specific sense into analytical, historical and ethical branches.
Q. Is jurisprudence of any practical use?
A. Yes. It trains legal reasoning, guides courts when statutes are silent, helps legislators draft good law, and underlies Indian constitutional law. ADM Jabalpur (1976) and Puttaswamy (2017) show two theories of law producing opposite answers to the same question about liberty.
Q. How does jurisprudence help with contract, torts and criminal law?
A. It supplies the concepts they take for granted: the theory of rights explains why a time-barred debt survives without a remedy, and the theory of liability explains the absolute liability of M.C. Mehta (1987).
See also: Note 2 (jurisprudence as science and philosophy), Note 3 (kinds and schools), Note 4 (allied social sciences), Note 7 (meaning of law).
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