INTRODUCTION TO ENGLISH JURISPRUDENCE

1. INTRODUCTION TO JURISPRUDENCE:
Jurisprudence is a science of legal principles which help the law to flourish by
enabling it to change its course with changing need of the society and having
its roots to the principles of law that ensure the service of justice to the
subjects. It provides roots through which all the branches of law gain their
strength; in other word it is a ground from which all other laws are derived.
Historically, the origin of the jurisprudence goes back to the days when the
jurists started finding answers to the question “What does Justice Means”? In
ancient times the principle of Natural Justice was considered as a sole
touchstone to determine the Just nature of laws. However, later with the
emergence of theory of legal positivism the element of morality was
extracted from the concept of Just Law as the proponents of this theory
postulates that the Law is nothing but command of sovereign when it is
backed by sanction.
2. MEANING OF “JURISPRUDENCE”

Etymologically Jurisprudence is derived from latin word Jurisprudentia it is

comprising of two words Juris means Law and Prudentia means
Prudence/foresight
Legally the term Jurisprudence is defined by jurists in following words

John Salmon defines jurisprudence as to be understood in two senses one

wide and the other narrow. In the wider sense it means “the science of civil
law” by word science means systematic knowledge of law which is different
from mere knowledge of provision of law. The wider sense of jurisprudence is
further divided into three categories (i) Expositive (ii) Historical and (iii)
critical. In narrow sense the Jurisprudence is limited to the consideration of
basic or fundamental principle of civil law.
John Austin defines jurisprudence as the “Philosophy of positive law”. He
postulates that the science of law is concerned with the law as it is and not as
it ought to be. He divides jurisprudence in two basic categories.

1. General Jurisprudence; science concerning with the exposition of

principles of nations which are common to all the systems of law.
2. Particular Jurisprudence; it is study of evolved and developed system of
law of a particular nation.

Keeton defines Jurisprudence as the study of systematic arrangement of the

general principles of law.

KINDS OF THEORATICAL JURISPRUDENCE:

1. Analytical: dogmas or exposition of general legal principle as they exist or
existed
2. Historical: concerning the historical evolution of principle of law
3. Philosophical: dealing with the principles of law as they ought to be in ideal
state.
4. Sociological School of thought
5. American Realism

ANALYTICAL JURISPRUDENCE:
It deals with the law as it is ignoring its historical evolution or ethical
connection. Its scope extends to
1. Analysis of law
2. Treatment of complex idea or concept in its elementary sub-division
3. Examination of relationship between civil law and other form of law
4. Study of sources of law
5. Investigation of theory of legislation, precedent and customs
6. Classification of the different sub-divisions of corpus juris or the entire body
of law with reason thereof
 7. Treatment of rights, their kinds and classes, their creation, transfer or
extinction
8. Dealing with legal liability, its kinds, extent and incidence
9. Investigation of such legal concepts as property, possession, trust,
contracts, persons, acts, intentions, motives, negligence etc
AUSTIN’S ANALYTICAL, POTIVISM OR IMPERATIVE THEORY:
Austin is considered as the father of modern English jurisprudence. He confines
it to the study of the positive law and applies analytical method for that matter.
Austin’s theory of positivism;
Austin defines law as the command of the sovereign to do or abstain from
doing anything when such command is backed by sanction. He attributes four
characteristics to positive law
1. Command
2. Sovereign
3. Duty and
4. Sanction
Difference between Austin’s Positivism and Bentham’s analytical
theory

Sr Bentham Austin
.
0 Law is assemblage of signs, Law is command to sovereign
1 declarative of a volition, conceived backed by sanction.
or adopted by the sovereign in a
state, concerning the conduct to be
observed in a certain case by a
certain person or class of persons,
who in the case in question are or
are supposed to be subject to his
power.
0 Accepts partial and divided Sovereign is illimitable and
2 sovereign indivisible
0 Sovereign’s command are laws if Moral and religious sanctions are
3 backed by moral or religious not sanction in the true sense
sanctions. Believe in concept of
reward or alluring motives
0 Model of theory is rational Model of theory is criminal
4 reconstruction structure
0 Every law has directive and Law has only one directive that is
5 sanctional or incitative part sanction

Historical Jurisprudence
Historical jurisprudence concerns itself with the scientific study of the origin
and development of the principles of law. Henry Maine, sir Fedrick pollock,
Gustav hugo is foremost proponent of this science.
Savigny,
The nature of particular system of law was a reflection of the spirit of the
people who evolved it.
Montesquieu,
Laws are the creation of climate, local situations, accident or imposture
Hugo,
Law like language and manners of the people, forms itself and develops as
suite to the circumstances. The essence of law is its acceptance, regulation
and observance by the people.
Harder,
 Every nation possesses its own individual character and qualities and non is
intrinsically superior to other.
Main feature of historical School:
The proponent of this school believe that the source of law is neither the will of
the sovereign nor the habits of a community but it is instinctive sense of what
is right possessed by every race.
The basis contribution of this school in the knowledge of jurisprudence is that it
believes that the law has strong connection with the society in which the same
was evolved.
1. Law is bord with society
2. Law develops with the society
3. Law dies with the society
4. Custom is main source of law.

Philosophical Jurisprudence:

According to Salmond; “Philosophical jurisprudence is the common ground of

moral and legal philosophy, of ethics and jurisprudence”

Philosophical school concerns itself chiefly with the relation of law to certain
ideals which law is meant to achieve.

Major Exponents of Philosophical School:

Grotius: He showed that a system of natural law may be derived from the
social nature of man; he believed that the agreement of mankind concerning
certain rules of conduct is an indication that those rules originated in right
reasons

Immanuel Kant: He gave philosophical school of thought a new dimension by

replacing prevalent psychological and empirical methods by the critical
method. He attempted the rational character of life and world not on the
observation of facts and matters but on human consciousness itself.

Characteristics of Philosophical School of Thought:

I. The purpose of State is to protect the rights of every individual by

restraining other individuals to interfere in the right of that individual.
II. Law is essential different from the ethics on the point that in case of law
the free action of people is controlled by compulsion but the base of law is
provided by ethics
III. The object of Jurisprudence is to secure liberty to the individual and its
ultimate object is same as that of ethics which is attainment of human
perfection
IV. The relationship between individual and state is defined in three principles
i. Through fulfilment of civic duties, the individual becomes a
member of the state
ii. The law limits and assures the rights of individual
iii. Outside this sphere of civic duty the individual is free and only
responsible to himself.

Sociological School of thought

Sociological school devotes its attention not on the ethical content and the aim
of law but on the actual circumstances which give rise to legal institutions and
which condition their scope and operation.

Major Exponents

Montesquieu
 Auguste Comte
Durkheim

Characteristics of Sociological School of thought

I. Law is a social relation, an expression of human society concerning the

external relation of its individual members. The jurist should concentrate
his attention not so much on individual and abstract right as “willing
agent” as on Social Purpose and interest served by Law.
II. The centre of gravity of legal development lies not in legislation, nor in
judicial decision but on society itself. The centre point of law is Human
itself. This is the sociological jurisprudence that paved the way of concept
of welfare state in the modern world by compelling the jurist to study law;
seek origin of law testing law as given social phenomenon and lastly,
judging law by its social utility.
III. Law is measuring rod of any society, law reproduces the principle form of
social solidarity.
American Realism:
This theory is part of sociological approach and is sometimes called the left wings of
the functional school. This theory is a mix of both analytical school of thought and
the sociological school. They study law as it is not as it ought to be and study social
structure of a society to gauge the needs the law is supposed to meet and help law
to achieve this purpose they give much weightage to the judge made laws, they
believe that a law is whatever the judge says.
Conclusion: