Jurisprudence is the theory and philosophy of law.

Scholars of jurisprudence, or
legal theorists (including legal philosophers and social theorists of law), hope to
obtain a deeper understanding of the nature of law, of legal reasoning, legal
systems and of legal institutions. Modern jurisprudence began in the 18th
century and was focused on the first principles of the natural law, civil law, and
the law of nations.

General jurisprudence can be broken into categories both by the type of

question scholars seek to answer and by the theories of jurisprudence, or
schools of thought, regarding how those questions are best to be answered.
Contemporary philosophy of law, which deals with general jurisprudence,
addresses problems in two rough groups:

 1.) Problems internal to law and legal systems as such.

 2.) Problems of law as a particular social institution as it relates to the larger
political and social situation in which it exists.

Answers to these questions come from four primary schools of thought in

general jurisprudence:

 Natural law is the idea that there are rational objective limits to the power of
legislative rulers. The foundations of law are accessible through human
reason and it is from these laws of nature that human created laws gain
whatever force they have.[2]
 Legal Positivism, by contrast to natural law, holds that there is no necessary
connection between law and morality and that the force of law comes from
some basic social facts although positivists differ on what those facts are.
 Legal Realism is a third theory of jurisprudence which argues that the real
world practice of law is what determines what law is; the law has the force
that it does because of what legislators, judges, and executives do with it.
 Similar approaches have been developed in many different ways
in Sociology of law.
 Critical Legal Studies is a younger theory of jurisprudence that has
developed since the 1970s which is primarily a negative thesis that the law is
largely contradictory and can be best analyzed as an expression of the policy
goals of the dominant social group.

The English term is based on the Latin word jurisprudentia: juris is

the genitive form of jus meaning "law", and prudentia means "knowledge". The
word is first attested in English in 1628, at a time when the word prudence had
the now obsolete meaning of "knowledge of or skill in a matter". The word may
have come via the French jurisprudence.

Jurisprudence is the name given to certain type of investigation into law, an

investigation of an abstract, general and theoretical nature which seeks to lay
essential principles of law and legal system. It is a subject which differs in kind
from other subjects on the legal syllabus. Actually it means elucidation of the
general principles upon which actual rules of law are based.

1. Austin's Definition:

Austin defines jurisprudence as "the philosophy of positve law" positive law

means the law laid down by the political superior for controlling the conduct of
those subjects to his authority.

a. Divisions of Jurisprudence by Austin:

Austin divided the jurisprudence into following:

(1) General Jurisprudence

(2) Particular Jurisprudence

(1) General Jurisprudence:

General Jurisprudence includes such subjects or ends of law as are common to

all systems.

(2) Particular Jurisprudence:

Particular Jurisprudence is the science of any actual system of law or any

portion of it.

Salmonds Definition of Jurisprudence:

Salmond defines Jurisprudence as " The Science of Law" by law he means the
"Law of the land" or "Civil law".

Salmond uses the term Jurisprudence into two senses.

i. Generic sense:

Generic Jurisprudence includes the entire body of legal doctrines. In that sense,
jurisprudence is of three kinds:

a. Expoitory or Systematic Jurisprudence:

It deals with the contents of an actual legal system as existing law at any time,
whether in past or in present.

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 ought to be. It
deals with the ideal of the legal system and the purpose for which it exists.
Scope of Jurisprudence

There is no unanimity of opinion regarding the scope of jurisprudence. It may

be discussed under the following three heads.

1. Early Period:

In the early period, jurisprudence has been so defined as to cover moral and
religious percepts also and that has created confusion.

2. Austinian Period.

It was the Austin who distinguished law from morality and theology and
restricted the term to the body of rules set and enforced by the soveriegn 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.

3. Modern Period: At present, there is a tendency to widen the scope of

jurisprudence. The present view is that the scope of jurisprudence cannot be
circumscribed or limited. It includes all concepts of human order and human
conduct in state and society.

Importance and utility of jurisprudence

Jurisprudence is basically a theoreticl subject but it also has a practical and

educational value. The practical value or purposes of jurisprudence has been
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 law:

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 in 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. 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 principles are
generally common to all systems of law.
ix. Importance under the light of different jurists:

a. 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.

b. By M. Dias:

The study of jurisprudence is an opportunity for the lawyers to bring theory and
life into focus, for it concerns human thought in relation to social existence.

Branches of jurisprudence

Historical Jurisprudence

Analytical Jurisprudence

Ethical or Philosophical School

Historical Jurisprudence deals with the general principles governing the origin
and development of law, with the influences that effect the law, with the origin
and development of those legal conceptions and principles which are so
essential their nature as to deserve a place in the philosophy of law.

Analytical Jurisprudence

It analyses the first principles of law as the exist in the legal system. Example:-
rights duties etc.

Ethical or philosophical jurisprudence

Deals with ethical significance and adequacy of law.

`The purpose of legal theory

Law As a dictate of reason:- The idea that in reality law consists of rules in
accordance with reason and nature has formed the basis of a variety of natural
law theories ranging from classical times to the present day. Natural law also
serves as a defence against ethical relativism. Indeed the idea of natural law
originated in answer to a philosophical theory challenged the obligation of all
human rules and even of law itself.

Law as a command of the sovereign: Imperative Law

It distinguishes the question whether a rule is a legal rule from the question
whether it is a just rule. And seeks to define law not by reference to its content
but according to formal criteria which differentiate legal rules from other rules
like morals etiquettes etc.

Law as the practice of the court: legal realismlike Austin the realist looks on law
as the command of the sovereign but his sovereign is not the parliament but the
judges for the realist the sovereign is the court.

Law as system of rules:- rules are concerned not with what happens but with
what ought to be done.they are imperative and prescriptive rather than
indicative or descriptive. Rules differ from command in their generality whereas
a command normally calls for one unique performance a rule has general
application and demands repeated activity.

Law as international law:-the stand taken by international lawyers is to reject

the austanian definition of law to deny the necessity of a sovereign and
sanctions and to propose a definition of law wide enough to include
international law, because according to Oppenheim law was defined as a body
of rules for human conduct within a community which by common consent of
this community shall be enforced by external power. But it lacs certain
important features of standard legal system such as legislative organs, courts
with compulsory jurisdiction and institutionalised methods of law enforcement.

The territorial nature of law:-

Law is defined as consisting of rules which can be created by a legislature and

applied and developed by a court but since both these institutions are organs of
the state and since states are territorial in nature the law is understood in terms
of territory and boundaries.

Jurisprudence as compared to other schools of social Sciences:- [ kindly refer

to Avtar singh chap. 1 @ pg 4-10] Self explanatory.

Schools of jurisprudence