THE VARIOUS KINDS OF JURISPRUDENCE
(1) Introduction:-
No-doubt jurisprudence is study of legal system in general. However, it addresses only those questions, which an intelligent layperson raises about law and does not address those questions, which a practicing lawyer or judge thinks about law.
(2) Definition Of Jurisprudence:-
Jurisprudence is an English word and the same has been derived from two Latin words. Tnese Latin words are Juris and Prudentia. Juris means law where as Prudentia means knowledge: shortly speaking, Jurisprudentia means either knowledge of law or skill in law. However, different scholars have defined this term in different ways. The definitions, which have been put forward by some scholars, are:
(i) Salmond and jurisprudence
(ii) Holland and jurisprudence
(iii) Paton and jurisprudence
(iv) Austin and jurisprudence
(i) Salmond And Jurisprudence:-
According to Salmond, Jurisprudence is that knowledge, which proves helpful in understanding basic principles of laws of a country.
(ii) Holland And Jurisprudence:-
According to Holland, Jurisprudence is knowledge to explain the Positive Law.
(iii) Paton And Jurisprudence:-
Paton states that Jurisprudence is study of common principles of law.
(iv) Austin And Jurisprudence:-
Austin defines jurisprudence as the philosophical study of Positive laws.
(3) Definition Of Jurisprudence At Present Time:-
In the light of all these definitions and others described by different scholars, this very term, Jurisprudence, can be defined as any writing or thought about law and its relations to other disciplines such as economics, philosophy, psychology etc.
(4) Value Of Jurisprudence:-
Jurisprudence not only provides knowledge about law and its concerned matters, but it has a direct relation with human being and society, and this is the way, which highlights the true practical direction of law. Undoubtedly Jurisprudence is a theoretical subject, but it is of practical and educational value too. And its value can be analyzed through following points:
(i) Jurisprudence is a science
(ii) Establishment of developed state and society
(iii) Development of strong political system
(iv) Jurisprudence is helpful to study law
(i) Jurisprudence Is A Science:-
Jurisprudence has great concern with all other disciplines. The reality is that jurisprudence can be studied in some more organized manner by keeping in view legal trends, social moves, and moral, political and historical thoughts. In this way, Jurisprudence assumes importance of a science.
(ii) Establishment Of Developed State And Society:-
Jurisprudence leads to establish developed state and society.
(iii) Development Of Strong Political System:-
Jurisprudence leads to such ideas, which are very important for developing strong political system in this developed period.
(iv) Jurisprudence Is Helpful To Study Law:-
As far as knowledge about law and legal matters are concerned, the importance of jurisprudence cannot be refused as it helps to remove complexities present in the existing law, to find out solutions to newly developed problems, and to interpret law.
(5) Kinds Of Jurisprudence:-
Different scholars have given different definitions of Jurisprudence. And these different definitions have given birth to different kinds or schools of thought of Jurisprudence. These kinds or schools of thought are:
(i) Historical Jurisprudence or Historical School of Thought
(ii) Analytical Jurisprudence or Analytical School of Thought
(iii) Ethical Jurisprudence or Ethical School of Thought
(iv) Natural Jurisprudence or Natural School of Thought
(v) Sociological Jurisprudence
(vi) Comparative Jurisprudence
(vii) Synthetic Jurisprudence
(viii) American Realism
(ix) Scandinavian Realist
(i) Historical Jurisprudence or Historical School of Thought:-
According to this school of thought, it is difficult to understand legal system without studying historical moves and incidents. This school of thought believes that knowledge about legal historical evolution helps to know and understand the basic principles. Thus, historical jurisprudence means scientific study of evolution and development of principles of law. In other words, historical jurisprudence is history of legal principles and conceptions of legal system.
(i-a) Some Main Concepts Of Historical Jurisprudence:-
Some main concepts of historical school of thought are:
a) Sources of law
b) Enforcement of law
c) Independent of state-boundaries
d) Origin of law
a) Sources Of Law:-
According to historical school of thought, historical customs and traditions are real sources of law.
b) Enforcement Of Law:-
Historical school of thought suggests that law cannot be forcibly enforced.
c) Independent Of State-Boundaries:-
According to historical school of thought, law is independent of state-boundaries.
d) Origin of Law:-
Historical school of thought opines that existence of law can be traced from historical moves and circumstances.
(i-b) Criticism Against Historical Jurisprudence:-
No-doubt, it is historical jurisprudence, which has thrown light on this important reality that law can not be understood without appreciating historical social circumstances through which law has developed, yet one criticism against historical school of thought is that this school of thought concentrates only upon history: it only deals with different forms of law, which have appeared in the past, but does not consider law about present and future. Contrary to this, human being has not only relation with past, but has also great concern with present and future. As historical jurisprudence completely neglects present and future, therefore it has to face some criticism.
(6) Analytical Jurisprudence or Analytical School Of Thought:-
Analytical school of thought or analytical jurisprudence is opponent school of thought to historical school of thought. It has no concern with various stages of past through which law has been evolved. The main object of this school of thought is to analyze the basic principles of law as they exist in the present time. Some Main Concepts Of Analytical Jurisprudence:-
Some main concepts of analytical school of thought are:
a) Order of a command or Authority
b) Sovereign
c) Enforcement of law
d) Main object of law
a) Order Of Command Or Authority:-
Analytical school of thought believes that law is an order of some command or authority.
b) Sovereign:-
Analytical school of thought also believes that this command or authority is a sovereign and this sovereign can be a person or a party. This school further opines that there exists no law without sovereign.
c) Enforcement Of Law:-
According to analytical school of thought, sovereign manages enforcement of law; sovereign creates some enforcement force or agency, which enforces law.
d) Main Object Of Law:-
According to analytical school of thought, law is to provide justice and providing of justice is duty of sovereign.
(ii-b) Criticism Against Analytical Jurisprudence:-
No-doubt, analytical jurisprudence has gained great popularity, yet one criticism against this school of thought is that analytical jurisprudence neglects not only historical evolution of law, but also moral aspect of law. Even analytical jurisprudence fails to highlight this reality that all laws are not imperatives and are not enforced through use of force.
(iii) Ethical Jurisprudence or Ethical School of Thought:-
This school of thought does not study law by keeping in view past and present, but studies law by keeping this view in mind how law should be in future. For this school of thought, to provide justice is real purpose of law. Therefore, it investigates measures and manners through which this purpose can be achieved. Shortly speaking, it can be stated that ethical jurisprudence is study of law from moral point of view i.e. how law should be and how its purpose can be achieved.
(iii-a) Some Main Concepts Of Ethical Jurisprudence:-
Some main concepts of ethical school of thought are:
a) Object of law
b) Achievement of justice
c) Element of morality
a) Object Of Law:-
According to ethical school of thought, main object of law should be only to provide justice. This school even suggests that law, which is not meant to provide justice, cannot be called law.
b) Achievement of Justice:-
Ethical school of thought recommends that principles of ethics and law should be made helpful either for achievement or for providing justice by keeping in mind differences between ethics and law.
c) Element Of Morality:-
According to ethical school of thought, law should be studied from moral point of view.
(iv) Natural Jurisprudence or Natural School of Thought:-
According to natural jurisprudence a concepts of law have been established on basis or knowledge and as Nature leads reason or knowledge, therefore law is product of Nature. In other words, this school of thought emphasizes that jurisprudence is study of Nature.
(iv-a) Some Main Concepts Of Natural Jurisprudence:-
Some main concepts of Natural school of thought are:
a) What is jurisprudence?
b) What is real law?
c) What is Natural law?
d) How principles of Natural law can be understood?
a) What Is Jurisprudence?
According to natural school of thought, Nature gives birth to reason or knowledge, and reason or knowledge gives birth to law. Therefore, jurisprudence is study of Nature.
b) What Is Real Law?
Natural school of thought supposes that real law is that one, which is respected. A law, which is made by human being and which is not in conformity to Natural Law. is not respectable.
c) What Is Natural Law?
Natural school of thought thinks that all things are bound to ever lasting or eternal law of God, and this eternal law is, jn fact, Natural Law.
d) How Principles Of Natural Law Can Be Understood?
According to Natural school of thought, human act mirrors his/her nature, and this relation helps us through reason to understand principles of Natural law.
(v) Sociological Jurisprudence:-
Sociological jurisprudence tests law as a given social phenomenon and judges it through its social utility. In fact, this kind of jurisprudence is not only study of ethical content and aim of law, but is also study of circumstances, which develops legal institutions and which control their scope and operation.
(vi) Comparative Jurisprudence:-
Comparative jurisprudence is a comparative study of two or more systems of law: Concepts and ideas of one legal system are compared with those of another system and through this comparison, some rules, which are common to both compared systems, are discovered.
(vii) Synthetic Jurisprudence:-
The basic foundation of this kind of jurisprudence is this concept that knowledge is a synthetic whole and can not be divided into compartments. The main concept behind this kind is that jurisprudence is not only study of fundamental legal principles including their historical, philosophical and sociological basis, but also an analysis of legal concept.
(viii) American Realism:-
American realist movement has been originated by analytical positivists and it bases on sociological approaches. This movement puts more emphasis on scientific observation of law as far as its making and working are concerned. The people, who are working under this movement, study those forces, which influence judges in reaching their decisions; they not only study judgments of judges, but also observes human factor in judges and lawyers.
(ix) Scandinavian Realist:-
The Scandinavian Realists are always in contradiction to philosophy of Natural Law. They have, in fact, completely denied
(7) Conclusion:-
In spite of this reality that there exist differences among scholars about the concept and scope of jurisprudence, it can not be ignored that jurisprudence is of great significance as far as study of general or fundamental elements of a particular legal system is concerned.