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Thread: Q1. Define Jurisprudence?

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    Yelp 32 Q1. Define Jurisprudence?

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    Q1. Define Jurisprudence? Explain practical value of jurisprudence. (2000), (1997),(1993)
    1. Introduction:
    The study of jurisprudence started with the Romans. The definitions gives by the Roman jurists are vague and inadequate but they put forth the idea of a legal science. Every jurist has its own notion of the subject matter and the proper limits of jurisprudence depends upon his ideology and the nature of society. The world jurisprudence used is different languages in different senses. In French it refers “case law”. These has been a shift during the last one century and jurisprudence today is envisaged in more broader sense than it had understood in Australia age.
    2. Meaning Of Jurisprudence:
    The term jurisprudence is derived from the Latin word “Jurisprudentia” which means either “Knowledge of law” or “skill in law” .
    3. Definition Of Jurisprudence:
    It is definition to give a universal and uniform definition of jurisprudence. Following definitions have been givens by the leading jurists.
    I. Austin’ s Definition:
    Austin defines jurisprudence as “ the philosophy of positive law” positive law laid down by a political superior for controlling the conduct of those subjects to his authority.
    A. Divisions Of Jurisprudence By Austin:
    Austin divided the jurisprudence into following:
    (i) General Jurisprudence
    (ii) Particular Jurisprudence
    (i) General Jurisprudence:
    General Jurisprudence includes such subject or ends of law as are common to all systems.
    (ii) Particular Jurisprudence:
    Particular Jurisprudence is the science of any actual system of law or any portion of it.
    B. Criticism On Austin’ s Definition:
    Salmond’ s 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’ s points out that it is only the material which is particular and not the science itself.
    II. Holland’ s Definition Of Jurisprudence:
    Sir Thomas Erskine Holland defines Jurisprudence as “The formal science of positive law”.
    A. Analysis Of Holland’ s Definition:
    According to Holland, Jurisprudence is not a material science. Holland follows the Austin’s 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 form or the external side of the subject and not its internal contents.
    B. Criticism:
    By Gray:
    The real relation of jurisprudence to law is treated but how law is treated
    By Dr.Jenks:
    He observed that jurist can only recognize a law by its form, for it is the form which causes the manifold matter of the phenomena to be perceived but having got the form as it were, on the operating table, has to dissect it and ascertain its meaning Jurisprudence is concerned with means rather than with ends, though some of its means are ends in themselves.
    III. Salmond’ s Definition:
    Salmond defines Jurisprudence as “The Science of Law”. By law he means the “law of the land”
    Or “civil”.
    Salmond uses the term Jurisprudence is two senses.
    (i) Generic sense:
    Generic jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence is of 3 kinds.
    (a) Expository or Systematic Jurisprudence:
    It deals with the contents of an actual legal system as existing law at any time, whether in past or in presents.
    (b) Legal History:
    It deals with the history of development of law.
    (c) Science of legislation:
    The purpose of the science of legislation is to set forth law as it be. It deals with the ideal of the legal system and the purpose for which it exists.
    (ii) Specific Sense:
    Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is also called theoretical or general jurisprudence . it is also defined as “the science of the first principal of the Civil Law.”
    In this sense, he divides the subject into 3 branches:
    (a) Analytical Jurisprudence
    (b) Historical Jurisprudence
    (c) Ethical Jurisprudence
    A. Criticism:
    It is submitted that Salmond had failed to give an accurate and scientific and also the divisions made by him of jurisprudence into general and particular raises a great deal of criticism as the Holland observes that these expressions should be discarded, as the science should be treated as incapable of being divided into these two branches.
    IV. Definition Of Jurisprudence At Present Juncture:
    The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, economics, anthropology and money others.
    4. Scope Of Jurisprudence:
    There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads.
    I. Early Period:
    In the early period, jurisprudence has been so defined as to cover moral and religious percepts also and that has created confusion.
    II. Austinian Period:
    It was the Austin, who distinguished law form morality and theology and restricted the term to the body of rules set and enforced by the sovereign or supreme law-making authority within the realm. So the scope of jurisprudence was limited to the study of the concept of positive law only.
    III. Modern Period:
    At present, there is a tendency to widen the scope of jurisprudence. The present view is that the limited. It includes all concepts human order and human conduct is 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 Redcliffe:
    Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.
    5. Importance And Utility Of Jurisprudence:
    Jurisprudence in basically a theoretical subject but it also has a practical and educational value. The enumerated as under.
    (i) Remove the complexities of law:
    One of the task of jurisprudence is to construct concepts and make law more manageable and rational.
    (ii) Answers the new problems:
    Jurisprudence can teach people to look around them and realize that answers to new legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.
    (iii) Grammar of Mind:
    Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g., negligence, liability etc.
    (iv) Training of Mind:
    Jurisprudence trains the mind to solve the difficult legal provisions in legal way.
    (v) Grasp on the subject:
    It helps is knowing and grasping the language, grammar, the basis of treatment and assumption upon which subject rests.
    (vi) Useful in Art of pleading and legislation:
    It helps legislators and the lawyer 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.
    (vii) To Interpret law:
    It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation.
    (viii) To study foreign law.
    It enable a lawyer to study foreign law because the fundamental principal are generally common to all systems of law.
    (ix) 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 administration 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 existence.

    6. Conclusion:
    To conclude, I can say, that jurisprudence is the science of law and there are different methods of approach to it. 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 deal with the improvement of law in the context of prevailing, socio-economic and political philosophies of time, place and circumstances.

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