UNIT- I

QUESTION 1. Salmond states that “Jurisprudence is the name given to the certain type of
investigation into law, an investigation of an abstract, general and theoretical nature which
seeks to lay bare the essential principles of law and legal system”. Explain the nature and
utility of Jurisprudence in the light of abovementioned definition. Do you think it is the
most appropriate definition of Jurisprudence?

ANSWER 1:- Various meaning has been given by various jurists and philosophers to the word
‘Jurisprudence’. The word is derived from the Latin word ‘Jurisprudentia’ which again can be
divided into two words ‘Juris’ means legal and ‘Prudentia’ means knowledge. Many facts of
jurisprudence have been described by many philosophers and jurists. In simple words, it can be
said that ‘Jurisprudence’ is the name given to a certain type of investigation into law, an
investigation of an abstract, general and theoretical nature, which try to find essential principles
of law and legal systems. So it deals with knowledge of ‘law’ and not ‘the law’.

The task of jurisprudence’ consists of the examination of realm of law and the formulation of
valid propositions. Salmond defines jurisprudence as the science of the first principles of the
civil law. According to Salmond, jurisprudence in the specific sense includes theoretical
jurisprudence; therefore, it deals not with concrete details but with its fundamental principles and
conceptions.

According to Salmond, jurisprudence in the specific sense includes theoretical jurisprudence;

therefore, it deals not with concrete details but with its fundamental principles and conceptions.
General jurisprudence as visualized by Salmond deals not with the study of legal system in
general but with the general and fundamental elements of a particular legal system. Furthermore
Salmond has divided jurisprudence into following categories:-

LEGAL EXPOSITION: the purpose of which is to set forth the contents of an actual legal
system as existing at any time, whether past or present.

LEGAL HISTORY: The purpose of which is to set forth the historical process whereby any
legal system came to be what it is or what it was.

1|Page
THE SCIENCE OF LEGISLATION: purpose of which is to set forth the law, not as it is or
has been, but as it ought to be. It deals not with the past or present of any legal system but with
its ideal future. He further divides jurisprudence in the specific sense into:-

ANALYTICAL JURISPRUDENCE: the purpose of which is to analyze, without reference

either to their historical origin or development to their ethical significance or validity-the first
principles of law.

HISTORICAL JURISPRUDENCE: the purpose of which is to deal with the general

principles governing the origin and development of law, it is the history of the first principles
and conceptions of the legal system.

ETHICAL JURISPRUDENCE: the purpose of which is to deal with the law from the point of
view of its ethical significance and adequacy. it is concerned not with the intellectual content of
the legal system or with its historical development but with the purpose for which it exists and
the measures and manner in which that purpose is fulfilled.

According to Salmond, complete scientific treatment of any body of law involves the study of
these categories of jurisprudence. Salmond’s definition has been criticised on the ground that he
has narrowed down the field of jurisprudence by saying that it is a science of civil law, and hence
covers only particular legal system. With the emergence of functional approach, the province or
scope of jurisprudence cannot be limited. The study of jurisprudence is not confined to the study
of law as administered by courts of justice. It also takes note of the facts of social life of
societies.

Salmond stated that Jurisprudence involves certain types of investigations into law, an
investigation of an abstract, general and theoretical nature which seeks to lay bare the essential
principles of law and legal systems elaborating the point further, he observed that “in
jurisprudence we are not concerned to derive rules from authority and apply them to problem; we
are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal
concept and on the essential features of legal system”. This makes the distinction between law
and jurisprudence amply clear. Thus whereas in law we look for the rule relevant to the given
situation , in jurisprudence we ask , what is for a rule to be legal rule, and what distinguishes law
from morality; etiquette and other related phenomenon. It, therefore, follows that jurisprudence

2|Page
comprises philosophy of law and its object is not to discover new rule but to reflect on the rules
already on the rules already known.

Salmond pointed out that jurisprudence has its own intrinsic like any other subject of serious
scholarship just as a mathematician investigates the number theory not with the aim of seeing his
findings put to practical use but by reason of the fascination which it holds for him, likewise the
writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal
researches on jurisprudence may well have their effect on contemporary sociopolitical though
and at the same time may themselves be influenced by these ideologies. Jurisprudence also has
its practical applicability. It seeks to rationalize the concepts of law which enable us to solve the
different problem involving intricacies of law. In other words, it serves to render the
complexities of law more manageable and rationale and in this way this can help to improve
practice in the field of law.

Jurisprudence also has great educational value. The logical analysis of legal concepts widens the
outlook of lawyers and sharpens their logical technique. It helps them in shedding aside their
rigidity and formalism and trains them to concentrate on social realities and the functional
aspects of law. It is not the form of law but the social function of law which has relevance in
modern jurisprudence. Law has to take note of the needs of society and also of the advances in
the related and relevant disciplines such as sociology, Economic, philosophy, psychiatry etc. for
instance, a proper economic theory of law of contract may perhaps require some knowledge of
economic and economic theory or a proper grasp of criminal law may need some knowledge of
criminology and psychiatry and perhaps also of sociology.

Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws
passed by the Legislature by providing the rules of interpretation. It also furnishes them
opportunity to pinpoint the lacunae, shortcomings and defects in the laws framed by the
legislature and improvise them through their judicial interpretation. The study of jurisprudence
helps in rationalizing the thinking of the students and prepares them for an upright civil life. The
knowledge of law and legal precepts also helps them to face exigencies of human life boldly and
courageously. Jurisprudence may also be helpful to legislators who play a crucial role in the
process of law of law-making. The study of jurisprudence may familiarize them with
technicalities of law and legal precepts thus making their job fairly easy as also interesting.

3|Page
Conclusion

Salmond has defined law in abstract sense. His definition brings ethical purpose of law as well.
Law is instrument of justice and that idea is prominently brought out in the definition of
Salmond. Although he tried to demarcate the boundaries of the subject very clearly but he fails to
give an accurate and scientific definition. As he said jurisprudence certain kind of investigation
into the law which is quit vague notion as we concern specifically on legal rule which are already
discovered and do not object to reflect or discover on any new rule which is most important
concept of this definition. He define this concept in narrow sense as we can see now see that the
goal of justice is not the only purpose of law and it serve many ends which may vary from time
to time and place to place. Therefore he ignored all the aspects except legal system and rules. He
alleged jurisprudence being an abstract and theoretical subject.

4|Page