Significance of study of jurisprudence

Introduction
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, which is attested earlier. The word jurisprudence is derived from the Latin word "JURISPRUDENTIA" which means knowledge of law or skill in the law. Jurisprudence is a study of the fundamental legal principles. It may be described as any thought or writing about law. It is a procedure or a concept to understand the essential principles of law and legal system. Philosophers of law ask "what is law?" and "what should it be?" Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, 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 law of nature, civil law, and the law of nations. General Jurisprudence can be broken into categories both by the types of questions scholars seek to address 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: Problems internal to law and legal systems as such. Problems of law as a particular social institution as it relates to the larger political and social situation in which it exists.

Meaning of Jurisprudence
In English jurisprudence we are concerned rather to reflect on the nature of legal system, on the underlying meaning of legal concepts and on the essential features of legal system. We need English jurisprudence to analysis the basic concept of law. Jurisprudence is a 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 systems. It is a subject which differs in kind from other subjects on the legal syllabus. For the

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typical legal subject, e.g Contract or Tort, consist of a set of rules and principles to be derived from authoritative source and applied to factual situations in order to solve practical problems. Jurisprudence, by contrast, does not constitute a set of rules, is not derived from authority and is without practical application. Salmond gave definition Science of the first principle of civil law. 1 According to him, thus, jurisprudence deals with a particular species of law, viz. Civil law or the law of the state. This kind of law consists of rules applied by courts in the administration of the justice. It has characteristic feature that distinguish it from law of every kind, like law of theologians, the moralists and the jurist. In mid-19th century, Austin propounded:The matter of jurisprudence is positive law: law simply and strictly so called: or law set by political superior to political inferiors.2 This definition was much criticized by jurists, particularly HLA Hart, as regarding the problem of continuity of legislation and the problem of persistence of laws. Hart defined jurisprudence as the combination of primary rules and secondary rules. Holland defined it as formal science of positive law, where 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 concern itself with the general portion of legal doctrine.

Scope of Jurisprudence
There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads:

EARLY PERIOD: In the early period, Jurisprudence has been so defined as to cover moral and

religious precepts and that has created confusion.

Salmond, JURISPRUDENCE, (10th Edn.), p.2 2 John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED 1832( London, Weinfield & Nicolson, 1955), p.9. Chanakya national law university Page 6

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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 sovereign or supreme lawmaking authority within the realm. Therefore, the scope of Jurisprudence was limited to the study of the concept of positive law only.

MODERN PERIOD: At present, there is a tendency to widen the scope of Jurisprudence cannot be

circumscribed or limited. It includes all concepts of human order and human conduct in human state and society.

View of P.B.Mukherji: Jurisprudence includes political, social, economic and cultural ideas. It covers the study of man in relation to state and society.

View of Lord Redcliff: Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.

Benefits of jurisprudence
Jurisprudence is basically a theoretical subject but it also has a practical and educational value. The practical value or purposes of jurisprudence has been enumerated as under. Remove the complexities of law: One of the task of jurisprudence is to construct concepts and make law more manageable and rational. Answer the new problems: Jurisprudence can teach people to look around them and realize that answers to legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.

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Grammer of law:

Jurisprudence is the grammer of law. It throws light on the basic ideas and the fundamental principles of law e.g. negligence, liability etc. Training of mind: Jurisprudence trains the mind to solvethe difficult legal provisions in legal way. Grasp on the subject: It helps in knowing and grasping the language, grammer, the basics of treatment and assumption upon which subject rests. Useful in art of pleading and legislation: It helps legislators and the lawyers the proper use of legal terminology. It relieves them of the botheration, creation of defining again and again certain expressions e.g. right, duty etc 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. To study foreign law: It enable a lawyer to study foreign law because the fundamental principles are generally common to all systems of law. Importance under the light of different jurists: 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. By M.Dias: The study of Jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existance. Chanakya national law university Page 8

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The true purpose of the study of Jurisprudence should not be confined to the study of positive law alone but must include normative study that deals with the improvement of law in the context of prevailing philosophies of time, place and circumstances.

Other Benefits: 1. Translates laws Jurisprudence is an old theory that has been used for centuries. In fact, the ancient Romans and Greeks believed in this philosophy of law. For the whole period that people have had laws for governing their actions, commentators and philosophers have been meditating about these laws. Hence, jurisprudence allows philosophers to consider how laws fit into the specific society that they are assumed to protect and govern. 2. Offers better law understanding As law is generally incomprehensible and slippery, some terms can be very confusing and exceptionally complicated. Studying jurisprudence is therefore important for good lawyers. This action guarantees that the lawyer has a deep comprehension of not only the basic law, but also the philosophical things that have been used in its formation. 3. Increases job prospects Studying law will not make you a lawyer immediately, although an extensive legal education is a key element. For judges as well as other individuals who have to refuse, defend or infer the law, the field of jurisprudence is very vital. It will not only increase ones job prospects, but it will also offer great understanding of other studies of philosophy, history and society. 4. Important Link: Law is generally a very essential part of most communities. Actually, a legal system can be seen in every country of the world today. As laws have such a great importance, jurisprudence offers the link between a country and its citizens.

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IMPACT OF OTHER FIELDS ON LAW AND VICE-VERSA

Jurisprudence is by its nature a multidimensional subject, its concern relate in various ways to most if not all different fields. 1. Law and economics With the rapid increase in the scope and rigor of microeconomics have fostered the emergence of a distinct and subfield of legal theory- economic analysis of law. This concept has heuristic, descriptive, and normative aspects. As a heuristic, it seeks to display underlying unities in legal doctrines and institutions; in its descriptive mode, it seeks to identify the economic logic and effects of doctrines and institutions and the economic causes of legal change and in its normative aspects it advises judges and other policymakers on the most efficient methods of regulating conduct through law. 2. Feminist jurisprudence Until a few decades back, there was severe neglect and paucity of women lawyers, judges and policymakers. Due to that reason, law failed to reflect womens interests concerning, and their perspectives on, a wide range of issues. These issues included the rules of evidence in trials for rape, the sale and display of pornography, sexual harassment in the work-place, gender discrimination. The theoretical branch of the womens lawreform movement is called the feminist jurisprudence. 3. Law and Cognitive psychology The importance of abnormal psychology in evaluating issues of insanity that arise in criminal trials and civil commitment has long been recognized. It is the study of brains governance of human behaviour. This would involve evaluating the judges decisionmaking procedures in psychologically realist terms, accounting for the role of emotion in decision-making process, etc. There are other field as well, like legal history, literature, medical, etc where the law has got significance as such influencing them.

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THE CONTRIBUTIONS OF JURISPRUDENCE TO PROFESSIONAL LEGAL COMPETENCE

The most obvious value of Jurisprudence is that it provides understanding of law. Foundational studies emphasize the roots from which law developed and which continue to nourish it. Relational studies throw light on the law in another way, using ideas which it shares with other enterprises. One cannot claim to really know law without some appreciation of these roots and relationships. Academic purists therefore regard this kind of understanding as a sufficient justification for including Jurisprudence in the core curriculum, but there are other justifications. Those who have taken Jurisprudence courses have found them of value in practice, allowing them to view particular legal problems from various viewpoints and to analyze and explain complex conceptual matters in a lucid and succinct manner. A Jurisprudence course, even an elementary one, will also provide the ability to read and evaluate books containing philosophical ideas, and important works in any professional field tend to be of this type. However, the real importance of Jurisprudence lies in its ability to provide direction and purpose to professional activities. At the crossroads of life, individual lawyers and the profession as a whole begin to wonder where they are going and, in response to these concerns, must inevitably think--and think Jurisprudentially. Jurisprudence is then to law what the art of navigation is to sailing, and without it the law will be a "ship of fools." 3

Unfortunately, this kind of benefit is more easily seen after years in practice when immediate professional objectives have been reached and reflection is a more normal and natural process than it was in law school. But if the beginning is not made in law school and the basic intellectual tools for the job provided there, later reflection may not last very long, nor get very far.

The reference here is to Plato's analogy of the ship, the original "ship of fools." There was a navigator on board but the crew, totally ignorant of the art of navigation, were unable to discern the knowledgeable from the ignorant and kept electing the latter to the post of navigator. The point is that some knowledge of Jurisprudence is essential for all lawyers, just as some knowledge of navigation was needed for all crew members of the ship Chanakya national law university Page 11

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INCORPORATING JURISPRUDENCE INTO THE LAW SCHOOL CURRICULUM

THE IMPORTANCE OF THE LINK BETWEEN THEORY AND PRACTICE

Most students come to law school, medical school, etc. primarily in order to learn how to function as lawyers, doctors, or whatever. This focus, while it is a powerful incentive to study hard, is sometimes a bar to education in depth. Students may wish primarily to learn rules and techniques and how to handle immediate problems. Preoccupation with the professional and the practical on the part of students is simply a fact of life nowadays from which we cannot hope to escape. Showing the professional relevance of any materials will greatly increase the energy and interest which the students will bestow on them.

GENERAL QUESTIONS ASKED

The usual general questions relate to: (1) The definition of law. The classical definitions of law can be taught in a dreary and trivial manner, like hanging out shirts in a row to see which one we might select to wear. But they are not mere verbal formulae, laying down conventional meanings for words; they are dynamic interpretative descriptions, invitations to view law in a certain way. It is no accident that new definitions of law have heralded radical changes in the way in which law was written, taught, and practiced. (2) The formal organization of a legal system. Discussion of legal forms is the modern version of the old notion that the study of law is and should be scientific. New understandings of formal systems and their place in science should make this topic more alive and relevant than it ever was. (3) The nature of values and their place in legal theory. Lawyers increasingly find themselves in a polyvalent world where there is a constant clash of ideals and values. It is not surprising that they are becoming very concerned about moral questions and ethical theory; there has indeed been a great revival of interest in the old doctrine of Natural Law. (4) Specific legal doctrines which present conceptual problems. Included here might be such topics as the doctrine of precedent or the hierarchy of legal authorities or the canons for

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the interpretation of statutes. It is not difficult to create interest in the classical discussions of such doctrines since they are both theoretically difficult and practically important. All of these items then can and should be shown to have relevance for jurisprudence and therefore to be important for every student of the law, not only those with a philosophical bent.4

PRUDENCE, JURISPRUDENCE, AND APPLIED ETHICS

Modern ethics acts always as though moral choice and moral decision, if rightly done, are the result of what can be placed in arguments pro and cons. Applied ethics is a modern industry or pseudo-industry, keeping those in it forever busy. How does the menagerie of the world of applied ethics come about? Is there any alternative to it? The answer to this perhaps lies in recovering the meaning of prudence from the Ancients and the Humanists--the third term in the sequence of wisdom, eloquence, and prudence. Wisdom as characterized above is thought directed to the whole. It agrees with G.W.F. Hegel's maxim, The True is the whole.5 To know something as true is to know the whole course of what it is. Eloquence is to put the sense of the whole into words.

Ancient ethics centered on the question of what is the best life--pleasure, honor, or contemplation. Aristotle mentions a fourth, the pursuit of business, but this merges with pleasure and honor. Modern ethics--Kantian ethics or utilitarian ethics--are criterion-oriented. They embody the view that ethics is decision-making and decisions require a criterion to guide them. This criterion must be rational and unvarying. It is a principle of certainty that can be applied to situations that are contingent, thus directing us out of the contingency to a correct determination of what we are to do. As John Dewey points out, there is customary morality and reflective morality. 6 Customary morality is generally unproblematic: a situation presents itself and we follow custom in acting on or in it. Reflective morality occurs when custom

4 5
6

J. Stanley McQuade, PROCRUSTEAN JURISPRUDENCE, 40 Am. J. Juris. 79, p.8. G.W.F. Hegel, Phenomenology of Spirit 11 (A.V. Miller trans., Oxford Univ. Press 1977). John Dewey, Theory of the Moral Life 3-28 (Irvington Publishers, Inc. 1980) (1908).

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offers no clear course in a situation that is problematic in that it contains a conflict of two or more courses of action, each of which has moral attractions or merits. We can resort to some version of the categorical imperative of Kantian ethics or we can resort to seeking the greatest good for the greatest number, as advocated by Utilitarianism.

Neither of these as such offers us a means to resolve the pros and cons of a particular ethical issue. The door is open to applied ethics, and it crosses the threshold to enter every aspect of life and society. In fact-finding coupled with elaborate argumentations, distinctions, and projections, the applied ethicist bears down in problematic situations, advancing toward possible decisions. When we examine these we are left with unease. It is the same unease that technological man has about the world--that something is left out. What is left out is selfknowledge. There is no technique for the ancient ideal of self-knowledge, which is the key to wisdom. A true science of ethics, can be formed on the basis of the science of law or jurisprudence. This view agrees with the Roman view that the law can be regarded as philosophy in the sense of civil wisdom--knowledge of things human and divine.

Any doctrine of prudence that looks to the law as a basis for ethical judgment cannot consider only the ius civile of a given tradition for its precedents. It must look within a given tradition for that part of its ius civile that is universal, that connects to the principle of ius gentium.

Ethical principles arise out of human practice, not out of abstract formulation of universal rules that are held to apply to all human conditions at all times. This process of the interaction of situation and principle is jurisprudential in its form, as it has behind it the sense of precedent cases. It is further jurisprudential as it actually looks to the law as a system of wisdom to guide and form ethical or moral conscience.

The prudence needed to guide choice is to be found in jurisprudence--in what can be learned from the law; what principles of the human world can be brought to bear; and further, what precedents may be appealed to. All has happened in human affairs, and no particular situation that arises is without analog with the past. New precedents arise, but they arise always in relation to what has gone before. All that has happened has made its way into the law and resides there, to be drawn forth. On this view, then, jurisprudence and the law become the Chanakya national law university Page 14

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basis of ethics, just as ethics in the form of custom was originally the basis of the law itself in any society. All laws, however, in order truly to be laws must be embodiments of Law, that is, they must be in accord with the authority of human reason. In contrast to the vacuity of criterion-based ethics, ethics based on jurisprudence supplies any situation requiring a moral decision with content. What has gone before in human affairs that applies to a particular situation is the beginning point for a moral decision. The decision will be based on reasoning by analogy from past resolutions of similar situations Attention to jurisprudence as an active guide to human prudence puts aside any need for rights-theory. Ethics becomes a part of jurisprudence, not something separate from it requiring different principles. In his Synopsis of Universal Law, the condensed statement of his doctrine of jurisprudence, Vico says: He makes of virtue three parts--prudence, temperance, and fortitude--that regulate the three parts of man: prudence, intelligence; temperance, caprice; fortitude, force; and that human reason embraced by the will is virtue insofar as it combats cupidity, and this same virtue is justice insofar as it gauges utilities. And thus from the three parts of virtue he brings forth three rights or reasons: dominion, liberty, and tutelage [i.e., guardianship, security]. From prudence, or just choice of utilities, comes dominion; from temperance or moderation of the self's will and things pertaining to it, comes liberty; from fortitude, or moderated force, comes tutelage, and these three parts of justice are the three sources of all commonwealths and all laws.7

Giambattista Vico, Synopsis of Universal Law, in 21 New Vico Studies 1, 4 (Donald Phillip Verene trans., 2003). Chanakya national law university Page 15

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BIBLIOGRAPHY
Web Sources: http://www.scribd.com/doc/23041149/Jurisprudence http://benefitof.net/benefits-of-jurisprudence/ http://www.londoninternational.ac.uk/current_students/programme_resources/laws/su bject_guides/jurisprudence/juris_2.pdf http://clevermirchu.xtreemhost.com/Scope%20of%20jurisprudence.html

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