2 Conspectus of Jurisprudence

Prof. V. Kesava Rao

1.1 INTRODUCTION

It is well known that Jurisprudence means knowledge of law. Derived from Latin Jurisprudentia , Jure or Juris meaning law or legal ; prudentia meaning skill or knowledge ; it is the skill of law or knowledge of law. The general notion of knowledge of law is the knowledge of statutory provisions and judicial decisions. However, the expression jurisprudence in not confined to legal provisions and court decisions and it embraces much more. Mere knowledge of the legal principles and adjudicatory postulates is not the conspectus of Jurisprudence. Delineating ‘the conspectus of Jurisprudence’ is next to impossibility. Laying down ‘the overview’ of Jurisprudence is impractical in view of the ambivalent nature of the term Jurisprudence.

1.2 AMBIVALENT NATURE OF THE TERM ‘JURISPRUDENCE’

The ambivalent nature of the term Jurisprudence led to difficulties in laying down its scope with precision. The conspectus of Jurisprudence was laid down and re-laid by not only jurists but also by experts in other disciplines like political science and sociology besides a host of others. Their approach to the subject from different perspectives was largely felicitated by its uncertain nature. The only thing that is certain is that it is more than mere knowledge of principles of law. It is generally conceded that it is concerned with ascertaining the fundamental principles of which law is founded. It deals with the foundation and not with the superstructure of law. Such a subject deprives the luxury of laying down The overview of Jurisprudence and necessarily one has to look to lay down An Overview of Jurisprudence. Therefore, deliberately , the title is ‘A Conspectus of Jurisprudence’ and not ‘The Conspectus of Jurisprudence.’

The difficulties in stating the overview of the term Jurisprudence are more confounded by the use of the word in different contexts. The following are some of the classic examples :

Equity Jurisprudence … The title of the Book , a treatise upon the law administered by the Courts of Equity.

Medical Jurisprudence … A name used for enunciating the medical facts important in legal proceedings. It expounds the medical aspects inherent and essential for dealing with the legal cases.

Ophthalmic Jurisprudence … Title of a book on the ophthalmic branch of medicine.

Dental Jurisprudence… The name of a chair in the Dental School of Chicago.

Hindu Jurisprudence … It refers to the body of law governing those following Hindu religion.

Architectural Jurisprudence …The title given by an enterprising expert in the field of Architecture to the fundamental principles of Architecture.

Comparative Jurisprudence … The phrase used to describe the study of the resemblances and differences between different legal systems.

One word used in varied contexts to denote different ideas makes the endeavour to lay down The Overview of the subject of Jurisprudence a futile one and it impels confinement to An Overview of the subject of Jurisprudence. This inherent limitation is the starting point for understanding the subject of Jurisprudence ; its amplitude, aims and analysis of the different perspectives.

1.3 PERSPECTIVES ON ITS NATURE

An overview of the subject of Jurisprudence must begin with taking note of the different perspectives on its nature, especially Jurisprudence as a science and Jurisprudence as a knowledge.

1.3.1 Jurisprudence as a Science

The following are some of the expositions by jurists emphasizing that Jurisprudence is a science.

Holland — “ The formal science of positive law.”1

Beale— “The science of Justice.”2

Clark— “The science of law in general’”3

Salmond — “The first principle of civil law.”4

Allen—“The scientific synthesis of the essential principles of law’”5

GRAY—“ The science of law , the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules.6

‘Science’ includes any systematized knowledge of any subject of intellectual enquiry. As Jurisprudence is concerned with the systematized knowledge of the subject of law, it may be regarded as a kind of science ; though by many it is not regarded as a formal science like physical sciences. The end of Jurisprudence is the same as that of all sciences in general ; structuring and synthesizing the course and the effect.

1.3.2 Jurisprudence as a Knowledge

Prudence means wisdom which comes from knowledge , legal knowledge is the significance of the term jurisprudence. It is , but natural, that many jurists attempted to state the amplitude of Jurisprudence from the knowledge perspective. The following observations of some jurists are from that perspective :

Ulpian … “ The knowledge of things, human and divine , the science of the just and unjust.”7

Paton… “ A particular method of study not of the law of one country, but of the general notions of law itself.”8

1  Holland, ELEMENTS OF JURISPRUDENCE, 13th Ed. P6

2 Beale , JURISPRUDENCE

3 Clark, PRACTICAL JURISPRUDENCE, P1.

4 Salmond , JURISPRUDENCE, P 1. (11th Ed.)

5 Allen, C.K., LAW IN THE MAKING, P 5

6 Gray , THE NATURE AND SOURCES OF LAW, P 134

7 ULPIAN, ROMAN JURIST.

Stone … “The lawyer’s extraversion. It is the lawyer’s examination of the precepts, ideas and techniques of the law in the light derived from present knowledge in disciplines other than law.”9

The knowledge that is emphasized as the core of Jurisprudence is the study relating to law. The knowledge of its abstract principles and not the knowledge of the concrete principles of law is the province of Jurisprudence. It is the knowledge, systematically presented of the ultimate principles that provide the basis for the specific and concrete provisions of actual legal system. The knowledge of analysing and systematizing the essential elements underlying the legal rules without specific reference to the institutions of law of any nation is Jurisprudence. It is a knowledge ; knowledge of law as well as knowledge relating to law , its theory, basis , concepts and tools. Jurisprudence, therefore , was described as “Eye of Law” and “Grammar of Law”.

Sethna observes, “Jurisprudence is the harp that produces the melody of law, for the legislators, Judges and lawyers are the musicians who play (and sing) on the strings (the fundamental principles) of this harp”.10 Jurisprudence is the harp that produces the melody of law and law plays on the strings of that harp being played by the principal stake holders, the legislators, the lawyers and the Judges for the benefit of the public in any given polity. Its importance cannot be overstated and is reflected in its aims and uses.

1.4 AIMS AND USES OF JURISPRUDENCE

1.4.1 Aims of Jurisprudence

The aim of Jurisprudence, in the words of Moyle, is ……”A complete grasp, a systematic penetration of its subject matter : the power of following the most general propositions into their minutest ramifications , and inversely of ascending from the most concrete case, through all intermediate stages of thought to the principle which governs it.”11

In the words of Paul Vinogradoff , “ In contrast to the single rules and divisions of positive law which strike across the history of all nations, there arises a science of law, a

8  PATON, A TEXT BOOK OF JURISPRUDENCE, P 2.

9 JULIUS STONE, THE PROVINCE AND FUNCTION OF LAW, P 25.

10 SETHNA, JURISPRUDENCE, P 1.

11 Moyle, INTRODUCTION TO THE INSTIUTES OF JUSTINIAN, P-61.

Jurisprudence which aims at discovering the general principles underlying legal enactments and judicial decisions.”12

The aims of Jurisprudence, therefore, are two-fold. The first is to provide an insight into the basis of foundations of legal principles and judicial decisions. The second is to analyse the legal concepts underlying it in order to consider what the law is, so that what law ought to be can be known. Evolving out of such analysis of basis or foundation emerge the body of rules expressed by the rubric ‘law’ in any given society.

1.4.2 Uses of Jurisprudence

The uses of Jurisprudence are many. The following are some of them :

a) It provides an understanding of nature of law. What is law ? is a question asked by philosophers as well as politicians, historians, sociologists and others. The subject of Jurisprudence gives an understanding of what is law and the nature of law.

b) It helps in tracing the underlying principles of law. The strength of building being the strength of the foundation ; the strength of law being the strength of the foundation of law, an exploration into the underlying principles is a must. It is addressed by Jurisprudence.

c) It develops critical faculties for legal perception. Law is not a subject to be approached in a unifocal way due to its function in a society. The faculties required for proper understanding of law are to be developed. They are adverted to in the field of Jurisprudence, which calls for multifocal approach.

d) It enables proper comprehension of legal expression and terminology. Every discipline has its own language and terminology and the context in which certain words are used and the concepts ought to be understood. Law, as a discipline, is not an exception. Jurisprudence provides that contextual and correlated comprehension.

e) It fosters the link between law and other discipline. Law, being a human science, cannot remain detached from other sciences, social as well as physical. Their interplay is a factor to be reckoned with for law to fulfil its purpose. Jurisprudence deals with 12Paul Vinogradoff, COMMON SENSE IN LAW such interplay and examines the interface between them in any given society at any given time.

f) It prepares the students of law for civil life. Phillimore observes, “ Such is the exalted science of Jurisprudence, the knowledge of which it sends the students into civil life full of luminous precepts and notions, applicable to every exigency of the human affairs.” 13

Such a useful subject cannot grow over night , but evolves gradually over a long period of time.

1.5. GENESIS AND GROWTH OF JURISPRUDENCE

Traditionally , the genesis of Jurisprudence as a distinct subject is treated to the Romans and the growth of Jurisprudence is divided into three phases : Pre-Roman phase, Roman phase and Post Roman phase.

1.5.1 Pre- Roman Phase

In the pre-Roman phase, the idea of Jurisprudence is virtually non-existent. All the sciences were expected to be learnt by all men at the same time. The division of intellectual pursuit

13 Phillimore, J.G., PRINCIPLES AND MAXIMS OF JURISPRUDENCE, P30.

was not recognised. To cite an example, Aristotle’s studies embraced physics, ethics, metaphysics and poetry as, according to the thought of that time, they formed one universal science of philosophy. No coherent and separate discipline, at present recognised and known as Jurisprudence, was developed. It has virtually not emerged in the period anterior to Romans ; the Greek regime.

“The Greek intellect , with all its mobility and elasticity, was quite unable to confine itself within the straight waist coat of a legal formula ,” according to Henry Maine.14 He further observed that , “Questions of pure law were constantly argued on every consideration which could influence the mind of the Judges.”15 The genesis of Jurisprudence as a distinct subject happened during the Roman reign.

1.5.2 Roman Phase

The credit of genesis of Jurisprudence as a distinct science goes to Romans. As observed by Holland, “For the beginning of science which reduces legal phenomenon to order and coherence, the world is indebted to Romans. It is also from their language that the science derives its name.16

The Romans have laid the foundations of modern analytical Jurisprudence. Their contribution to legal philosophy, however, is not that great, but has been slight. Yet, it is the Romans that are responsible for evolving a Juristic Science, the Jurisprudence. The Romans were the pioneers to study legal philosophy as a distinct branch of learning and bringing legal knowledge to order and coherence. Justinian’s “Corpus Juris Civilis” is the classic example. The seeds of Jurisprudence as a distinct science sown has , since then, grown and blossomed into an important human science in the post-Roman phase.

1.5.3 Post – Roman Phase

The post-Roman phase , in initial stages, was totally influenced by Theology. Under its influence, Jurisprudence was relegated to the status of a branch of Theology. As observed by

14 Maine, Sir Henry., ANCIENT LAW, P 127.

15 IBID.

16 Holland, Supra Note 1.

St. Thomas Acquinas, “Every law framed by man bears the character of law exactly to that extent to which it is derived from the Law of Nature. But if on any point it is in conflict with the law of Nature, it at once ceases to be law ; it is a mere perversion of law. it was only a temporary set-back. 17

Jurisprudence breaking its shackles from theology began in 16th century. Bentham weaved the juridical science out of theological influence and control and it once again emancipated as a distinct branch of learning. In the 19th century, it gained total importance and grew as an independent science and an important subject. To such growth, “Hindu Jurisprudence” can be stated as a contribution.

The modern Jurisprudence, in the words of Paton, “trenches on the fields of the social sciences and of philosophy ; it digs into the historical past and attempts to create the symmetry of a garden out of the luxurious chaos of conflicting legal systems.”18 It has become another ‘science’ , the science of law in the society, having a bearing on other social sciences.

1.6 JURISPRUDENCE VIS-A-VIS OTHER SOCIAL SCIENCES

Jurisprudence is a human science. It bears relation with the other spheres of human activity. It cannot be treated in isolation. Its conspectus can be better appreciated conjointly with other social sciences like Political science, Sociology, History, Economics, Psychology, Ethics etc.

17Summa Theologica

18    Paton, Supra Note 8.

1.6.1 Jurisprudence vis-a-vis Political Science

Political Science is the study of Governmental Organisation. The regulation of Governmental Organisation in any organised society is by law. The study of the foundations of law is Jurisprudence. It is linked with Political science ; was influenced by political theories and influenced political theories.

1.6.2 Jurisprudence vis-a-vis Sociology

Sociology is the study of man and his actions in the process of social formation and development in order to ensure a well-ordered social organisation. To that goal, Jurisprudence also aims and assists. Their inter linkage is beyond question and cannot be separated to make a systematic pursuit.

1.6.3 Jurisprudence vis-a-vis History

Jurisprudence, to a large extent, is influenced by experience in the past, that is, history. If present is believed to be a gradual projection of the past, past experiences have to be considered for understanding the present science of law.

1.6.4 Jurisprudence vis-a-vis Economics

Economics deals with maximisation of one’s satisfaction and the greatest of such satisfaction is Justice, the maximisation of which is the concern of Jurisprudence. The interplay of economic considerations and jural relations is inseparable and economic analysis of law has become the new addition of ever expanding horizons of Jurisprudence.

1.6.5 Jurisprudence vis-a-vis Psychology

Law not only deals with physical actions but is equally connected with mental condition and status. Victimology , penology, mens rea and mental state are important components of study both in psychology and Jurisprudence.

1.6.6 Jurisprudence vis-a-vis Ethics

Ethical science prescribes right and wrong of any conduct on considerations of morality. Law prescribes conduct as right and wrong on many other considerations too besides morality. Ethics and Jurisprudence have the same focus only and differ in dimensions.

Despite such inseparable links with other social sciences, the Juristic science’s concerns primarily relate to “law”.

1.7 JURISPRUDENTIAL CONCERNS

The primary concerns of Jurisprudence is law and its end. What is law ? and the different perceptions as to what is law are its major concern. Basing on the different perceptions of law, schools of law have emerged. Prominent among them are the Natural law school. Historical school, Sociological school, Analytical school or Positivist school , Renaissance school, Economic Realist school. The jurists in each of these schools approached study of law from one perspective. The relative merits and demerits of these schools vis-a-vis one another is the natural concern of the science of Jurisprudence. The school of thought on law from different paradigms is considered in jurisprudence.

The different purposes of law as envisaged from time to time and what ultimately is the ‘end of law’ is its field of interest. Such inquisition is incomplete until the different disquisitions by jurists from time to time as to the ideal of law are considered for determining the ‘ideal law’ , the ultimate concern of jurisprudence. Ideating on ideas of law and ideal law are its chief concerns.

With that as the goal, Jurisprudence deals with the sources of law; “Custom, Precedent and Legislation”—- their merits, demerits, respective roles and contributions for

development of law and the reality of them as a source in today’s context. The ultimate concern of Jurisprudence is Justice, the what and how of Justice? Different theories of Justice and different approaches to Justice are the core concern of the study of Jurisprudence. Jurisprudence is the think tank of What, Why and How of law.

The think tank being shrouded by confusion as to the fundamental concepts peculiar to the discipline of law cannot be ruled out. The legal concepts on which the legal science is based must be clear in their import. Such clarity comes out from proper inquisition and the innovative ideas forthcoming are taken into account. Jurisprudence, necessarily , and therefore definitely, gives a clear idea of the legal concepts. The foremost of the legal concepts which are part of Jurisprudence are :

Right

Liability

Obligation

Person

Property

Ownership

Title

Possession. These concepts are explored and explained in vivid detail in the subject…”Jurisprudence.”

Jurisprudence, as a distinct branch of study, calls for a basic idea of other leading social sciences ; besides an overview of what constitutes the subject of study, before embarking on such study. This lesson’s chief purpose is to lay before the reader the gamut of Jurisprudence in a nut-shell by laying before the reader an overview and not the overview, A Conspectus and not The Conspectus of Jurisprudence.

The reader will be studying in the nine modules :

• The nature and scope of Jurisprudence and the different systems of law.
• The Natural Law school of thought.
• The Positivist or Analytical school of thought in the light of politically organised state.
• The synthesis between Natural law & Positive law schools of thought.
• The Historical and Sociological schools of thought positing Law as a social phenomenon.
• Law as an Instrument of Hegemony reflected in the Economic School of Thought of Marx and others.
• Economic Analysis of law.
• Legal concepts including the concept of Justice and
• Indian conceptions of law and an overview of its legal system.

The Western orientations to Indian orientations; from uncertainty as to the scope of Jurisprudence and legal concepts to certainty are covered in this paper titled “ Advanced Jurisprudence.” The first lesson is deliberately titled as A Conspectus to Jurisprudence to lead the research oriented reader to ponder whether it is possible and plausible to develop an Indian Jurisprudence, distinct from Hindu Jurisprudence , and to lay down The Conspectus of Jurisprudence. The other lessons in this paper would help the reader in proper comprehension and research in that direction in the subject of Jurisprudence.

LEARN MORE

1) Reginald E M De Beer, An Analysis of Salmond’s Jurisprudence (Gale, Making of Modern Law)

2) James De Witt Andrews, Jurisprudence: Origin, Development Principles, Methods, Vocation (Gale, Making of Modern Law)

3) Henry Carter Adams, Economics and Jurisprudence An Address by Henry C. Adams, President of the American Economic Association, Delivered at the Meeting of the Association in Baltimore, Maryland, December 28, 1896 (American Economic Association, 1897)