The history of the notion of law indicates that jurisprudence evolved from the ancient Greek period to modern jurisprudence in the twenty-first century, with multiple changes in its character at various phases of its existence. Jurisprudence is a term used to bring theory and reality together. It deals with the fundamental ideas that the superstructure of law is built upon.
Jurisprudence is a concept that aids in the development of one’s own views in connection to a certain philosophy. In general, jurisprudence is a discipline whose understanding is fundamental and foundational to all legal sciences. Jurisprudence is the name given to a certain sort of legal study in which we consider the essence of legal norms, the underlying meaning of legal concepts, and the key characteristics of legal systems.
Jurisprudence is a behavioural study of man in society as well as an intellectual and philosophical abstraction.
MEANING AND NATURE
Jurisprudence is derived from the Latin word jurisprudence, which signifies legal competence or knowledge. The term jurisprudence took on a distinct connotation in the early nineteenth century, thanks to the views of Bentham and Austin. Bentham, dubbed the “Father of Jurisprudence,” was the first to analyse what constitutes law. He separated his research into two sections:
Law as it is, explanatory approach, sovereign command. – Examining law as it should be, censorial approach, morality of law.
Austin, on the other hand, was primarily concerned with the formal examination of English law and its connected notion. The philosophy of Austin, that law is the sovereign’s command, became the framework of the English legal system, which stayed with the formal examination of law as it is expositrial and never became censorial as it should be.
• Ulpian- Jurisprudence was defined by a Roman jurist as the observation of things, both human and divine, and knowledge.
• Austin- He refers to jurisprudence as the philosophy of positive law, which he defines as law enacted by a political superior in order to force allegiance from his subordinates. He preferred to split his idea into two sections:
i) General jurisprudence- It covers topics or ends of law that are common to all systems.
ii) Particular jurisprudence- It is the study of any actual legal system, or any part of one. In essence, they are the same, yet the extent of their work differs.
SALMOND CRITICISM OF AUSTIN
According to him, an idea must be common across o categories in order to fit into the category of general jurisprudence. Various legal systems exist. This isn’t always the case, as certain ideas may fit into neither of the two groups.
HOLLAND CRITISICM OF AUSTIN
He claimed that it is just the material that is unique, not the science itself.
The formal science of positive law is known as jurisprudence. It is more of an analytical science than a martial one.
- He was the one who coined the phrase “positive law.” Positive law, he explained, is the broad rule of external human conduct that is enacted by a sovereign political authority. In Austin’s definition, he merely added the term formal. We study only the forum, not the essence, in a formal setting. Jurisprudence is not concerned with how a positive law is applied or how it is specific.
Jurisprudence, he explained, is the science of law. He meant the law of the land or civil law divided jurisprudence when he said law.
The complete set of legal concepts is included.
This refers to a certain department or a section of doctrines.
SCOPE OF JURISPRUDENCE
Over the course of the year, there was a lot of discussion on the scope of jurisprudence. Jurisprudence, according to Justice P.B Mukherjee, is both an intellectual and idealistic abstraction as well as the behavioural study of man in society. Political, social, economic, and cultural ideas are all included. It is concerned with the study of man’s relationship with society.
This clarifies the difference between law and jurisprudence. As a result, jurisprudence is defined as the philosophy of law, with the goal of reflecting on existing norms rather than inventing new ones. Austin, on the other hand, was the only one who attempted to limit the scope of jurisprudence. He attempted to separate morals and theology from the study of law.
Kameshwar Prasad and others v. the state of Bihar and another, 1962 SCR Supl.(3) 369, 1962 AIR 1166
According to the plaintiff, the “Bihar Government Servants’ Conduct Rules,” which stipulate that “No government servant shall participate in any demonstration or resort to any kind of strike in connection with any topic relevant to his terms of service,” are illegal. The part prohibiting “any form of demonstrations” was found to be in violation of the plaintiff’s rights under Article 19 of the constitution, according to the court. However, because there is “no basic right to resort to a strike,” the statute cannot be knocked down because it outlaws strikes.
There is a distinction to be drawn between jurisprudence and the law that we commonly practise. Jurisprudence aids a lawyer’s magistrate in determining the genuine meaning of the law. We learned about many legal ideas and how they influenced society and the law. Jurisprudence is an integral aspect of the legal system and cannot be separated from it. For the complete study of law, there are various sorts of jurisprudence. There is no such thing as a complete legal school; different schools of law offer distinct methods of law analysis that expose one another to produce a better theory of law that can be used in many situations. In the classical school of law, the understanding of law as an instrument of social regulation was lacking. Analytical schools focused on the law as it was, and dissertate the moral nature of the law.
The scope of jurisprudence has expanded since then. It now encompasses the entire gamut of regulations, not simply excellent laws. The ability of the judiciary to interpret the law to promote state social welfare goals has resulted in an unanticipated development of the discipline of jurisprudence.
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