Steady Learning

: The Greek Philosopher, Aristotle(384-323 B.C.) remarked long ago that man is a social animal. Human beings are gregarious and so associate with their fellows in manifold forms of activity. The mutual relations that grow up between them are the very bonds of society. From various points of view these social relations can be made the subject-matter of a systematized study. The knowledge derived from each point of view, when properly co-ordinated forms a distinct science. The sciences which treat of man as a social and spiritual being and study his activities and operations as such, may be designated as social sciences.

: Social Sciences are to be distinguished from Natural Sciences. Man being a product of nature may be studied as such. The scientific knowledge of man as a mere physical being, without regard to his specific nature as a moral and social being, is the subject-matter of the natural science of human biology or physiology. The physical scientist is concerned, however, not so much with man as with natural phenomena. He has to explain the actual occurences in nature and this he does by establishing that, a certain event is the necessary consequence of another event. The physical scientist conceives phenomena of nature as united by an irrefrangible law of causality. By means of natural laws discovered by him a physical scientist is able to predicate what actually happens in a given conjunction of events.

: In the social sciences we are concerned with man as a moral or social being and have to arrange human acts according to the relation of means and purposes. The social scientist has to investigate what means should be adopted to answer certain social purposes and prescribe suitable rules of human conduct. Rules of human conduct enforced by political authority are laws. Jurisprudence as a social science addresses itself to those who study law as a system of knowledge. It treats of the activity of man in society from the point of view of its legal significance.

: The most general of the social sciences is sociology. It deals with the general principles underlying man’s thought and action at all stages of social development and in every relation of life. That branch of this science which treats of primitive man and his social institutions is designated Anthropology. Juristic science or Jurisprudence is chiefly, though not exclusively, concerned with man in a well-ordered social organisation, in an advanced stage of civilisation. Anthropological research, however, has shed much light on many juridical questions and has enabled us to penetrate to the origin of many legal institutions.

: Ethics is another social science. It expounds the principles and moral considerations which affect man’s conduct and which constitute his criterion of right and wrong. Closely allied to Ethics is Theology in which the principles inculcated are presented as immutable and eternal principles endowed with divine sanction and as matters of unquestioning belief and implicit obedience. Juridical science too is concerned with human conduct, but its principles are changeable, being man-made, and have no claim to divine sanction differing, however, from ethical precepts in that their enforcement may be compelled by human authority.

: Psychology is yet another social science. It treats of man’s mental states and processes, his emotions, thoughts and sensations. Jurisprudence is concerned with man’s external conduct and not with his thoughts and mental processes, but important branches of it, such as Penology, have benefitted much from the knowledge made available by psychological research.

: Social relations may be studied from the point of view of man’s activity in satisfying his wants, in producing and distributing wealth. This is the subject matter of the science of Economics. The intimate relationship between Economics and Jurisprudence was first noticed by Karl Marx (1818-1883) and the interpretation of jural relations in the light of economic factors is receiving the serious attention of jurists.

: Societies have developed compex organisations for their government. We may study the principles on which societies are governed and by which the relations between men and their governmental organisation should be regulated. The result of this study is the science of Politics. In a politically organised society there exist regulations, which may be called Laws, authoritatively laying down what men may or may not do. The study of the fundamental principles underlying these laws is the science of Jurisprudence. The closely allied science of Legislation deals with the principles by which the improvement of law may be effected.

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: Etymologically, as we have already seen, Jurisprudence means ‘Knowledge of Law’. The celebrated Roman Jurist, Ulpian (180-228) defined Jurisprudence as ‘The observation of things human and divine, the knowledge of the just and the unjust’. This definition is too broad and might well apply to religion, ethics or philosophy.

: Salmond defines Jurisprudence as the “Science of the first principles of the civil law”. Jurisprudence thus deals with a particular species of law, viz., civil law or law of the State. This kind of law consists of rules applied by courts in the administration of justice. It has characteristic features that distinguish it from law of every other kind. Of laws which govern the conduct of man in society we have three kinds: the laws of the theologian, the moralist and the jurist. It is with the jurists law only that Jurisprudence is concerned. The laws of the theologian or religious laws derive their authority from a divine or super human source. They are intended to regulate human conduct as well as beliefs and are enforced by spiritual rewards or penalties in the other world, that is, by utra mundane sanctions. The laws of the moralist are man-made. They exist in societies, the most primitive as well as the most civilised, and are enforced by no determinate authority save public opinion which visits the contravention of those ridicule social ostracism and the like uncertain penalties. The laws of the jurist are easily distinguishable from those of the theologian and the moralist. They regulate external human conduct only and not the inner beliefs, therein differing from the laws of the theologian. In their mature condition they exist in politically organised society, that is, a society which has an organised system of Government for its members who occupy a defined territory and over whom it can exercise an unlimited amount of control. They are enforced by courts or judicial tribunals of the society which apply a variety of sanctions ranging from capital punishment to a fine. The certainty of the sanctions and the existence of a dterminate authority for enforcement distinguish the jurist’s law from that of the moralist. It is the jurist’s law or, as Salmond calls it, civil law, that is the fit subject of Jurisprudence.

: Austin refers to jurisprudence as “the philosophy of positive law”. By Positive Law or Jus positivism, he means the law laid down by a political superior for controlling the conduct of those subject to his authority. “Positive Law” as used by Austin is thus identical with “Civil Law”. The term “Philosophy” used by Austin in describing Jurisprudence is somewhat misleading. Philosophy deals with the most general theories about things, human and divine, while Jurisprudence restricts itself to the general theory of man-made law.

: Sir. Thomas Erskine Holland has defined Jurisprudence as the “Formal Science of Positive Law”. A formal science, as distinguished from a material science, is one which deals not with concrete details but with the fundamental principles underlying them. Jurisprudence in this view should concern itself with the general portion of legal doctrine. It should deal with the general conceptions and pervading principles that constitute the basis of any mature system of law. In every system of law there are certain fundamental conceptions and broad principles which serve as the basis for the concrete details of the law. Notions of property, contract, possession, etc., are basic to any well-developed legal system. Jurisprudence separates these ideas and frames out a scheme of their purposes, methods and principles without going into the specific rules relating to them in any particular legal system. As Holland says: “Jurisprudence deals with the human relations which are governed by rules of law rather than with the material rules themselves”. Specific rules are the appropriate subject-matter of legal exposition or compilation rather than of juristic science. Since jurisprudence deals only in a “formal or abstract way with those relations of mankind which are generally recognised as having legal consequences”. Dr. Holland calls it a formal science.

: Prof. Gray in ‘The Nature and the Sources of the Law’ and Dr. Edward Jenks in ‘The New Jurisprudence’ have objected to the description of Jurisprudence as a formal scence. Prof. Gray remarks: ‘The relation of Juriisprudence to law depends not upon what law is treated, but how law is treated. A treatise on jurisprudence may go into the minutest particulars or be confined to the most general doctrines and in either case deserves its name; what is essential to it is that it should be an orderly, scientific treatise in which the subjects are duly classified and subordinated’. In this view a scientific treatise on any department of the law may be described as ‘Jurisprudence’. Such usage is by no means uncommon, but if we understand by jurisprudence ‘the science of law in general’, we must admit it to be a misapplicattion of this ponderous quadrisyllable. Prof. Gray’s criticism cannot, therefore, be accepted as sound.

Dr. Jenks has remarked: “Can jurisprudence be truly said to be a purely formal science?” Not, it is submitted, unless the word ‘formal’ be used in a strained and artificial sense. It is true that a jurist can only recognise a law by its form; for it is from which, as has been said, ’causes the manifold matter of the phenomena to be perceived’. But the jurist, having got the form as it were, on the operating table, has to dissect it and ascertain its meaning….To say that jurisprudence is concerned only with forms, is to degrade it from the rank of a science to that of a craft.

Dr. Jenks seems to confuse a formal science with a ‘formalistic’ manner of dealing with the science. If the jurist attaches undue importance to mere forms, takes positive law as the highest law and fails to penetrate to the social forces which mould the law, his treatment of his subject would be formalistic and unworthy of a great social science. Jurisprudence as a science, however, is concerned only with the form which conditions social life, with the human relations that have grown up in society attaches legal significance. In this sense Jurisprudence is necessarily a formal science.

: We can see no valid objection to Dr. Holland’s definition of jurisprudence as the formal science of Positive law. Being the systematized and properly co-ordinated knowledge of a subject of intellectual inquiry, Jurisprudence is a science. The subject of its inquiry is the mutual relations of men living together in organised society. The term ‘Positive Law’ confines the enquiry to those social relations which are regulated by the rules imposed by the State and enforced by its courts. Finally, the term ‘formal’ indicates that the science deals only with the purposes, methods and ideas at the basis of the legal system as distinct from a ‘material science’ which would deal with the concrete details of the law.

: Austin makes a distinction between ‘general’ and ‘particular’ Jurisprudence. According to him the former is “the science concerned with the exposition of the principles, notions and distinctions which are common to the systems of law, understanding by systems of law, the ampler and maturer systems which, by reason of their amplitude and maturity, are pre-eminently pregnant with instruction”. ‘Particular Jurisprudence’ is the science of any one of such systems of law.

: Sir John Salmond has repudiated the notion of ‘general jurisprudence’ as conceived by Austin. According to him, a principle to become a topic of jurisprudence need not be, to use Austin’s words, “common to the systems of law”. Universal reception is not the sine qua non for a principle to qualify itself for treatment by the science of law. Salmond points out that even if the doctrine of judicial precedent or case-law system prevails only in England, the rule of stare decisis would be a fit subject for jurisprudence. He concludes that “Jurisprudentia generalis” or general jurisprudence is not the study of the general or fundamental elements of a particular legal system”. Prof. Allen regards this statement as meaning that in Salmond’s opinion ‘particular’ jurisprudence is the only kind of jurisprudence properly so-called. No doubt, the sentence of Salmond above-quoted seems to warrant this view, but what Salmond really repudiates is only the notion of ‘general’ jurisprudence, such as that of Austin, which carries the misleading suggestion that principles germane to general jurisprudence are such only because they are common to the mature legal systems. That there can be a theoretical jurisprudence embodying the principles that are basic to any legal systems is plainly affirmed by Salmond.

: The fallacy underlying Austin’s distinction between ‘general’ and ‘particular’ jurisprudence is pointed out by Dr. Holland with his usual acuteness. He shows that in Austin’s ‘particular’ jurisprudence it is only the material of the science, and not the science itself, which is “particular”. It is possible to construct a science of law from the examination of one system only, e.g., English Law. A science is made up of general propositions and sound generalisations are science whether they are drawn from a few phenomena or a great many. Of course, the larger the number of phenomena that are brought under observation, the gretaer is the probability that the conclusions drawn are sound and reliable. Dr. Holland, therefore, rejects the distinction made by Austin and holds that jurisprudence should be used without any qualifying epithet and that it represents the science of the basic principles of the law. It is hardly necessary to point out that it conduces to certainty in legal nomenclature to use ‘jurisprudence’ simpliciter to signify the science of law.

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