CONCEPTS OF

JURISPRUDENCE
The term “Jurisprudence” has been derived
from the Latin word “Jurisprudentia” this
means “skill or knowledge of law”.
In the early decades of the 19th century,
with the theories propounded by Bentham &
Austin the term jurisprudence has acquired
a definite meaning. Bentham is known as
Father of Jurisprudence was the first one to
analyze what is law. He divided his concept
into two parts:-
(1.) Examination of Law ‘as it is’ i.e.
Expositorial Approach- Command of
Sovereign.
(2.) Examination of Law ‘as it ought to be’
i.e. Censorial Approach- Morality of
Law.
However, Austin concerned himself mainly
with formal analysis of law and its related
concepts, which still continues to be the
basic concept. Austin’s ideology that law
is the command of the sovereign became
the structure of the English Legal System,
which remained with the formal analysis
of law ‘as it is’ (Expositorial) & never
became “as it ought to be’ (Censorial).

JURISTIC APPROACH
Ulpian- ‘The Roman jurist defined
jurisprudence as the observation of things,
human & divine, the knowledge of the just
and the unjust’.

Austin- ‘He defined jurisprudence as the

philosophy of positive law. The term
positive law connotes ‘jus positivum’
which means law lay down by a political
superior for commanding obedience from
his subjects. He preferred to divide his
concept into two parts-
(1.) General Jurisprudence:- This includes
such subjects or ends of law as are
common to all system.
(2.) Particular Jurisprudence:- It is the
science of the actual system of law or
any portion of it.

Basically, in essence they are the same

but in scope they are different.

SALMOND’S CRITICISM FOR AUSTIN

He said that for a concept to fall into the
category of general jurisprudence, it
should be common in various systems of
law. This can be true as there are such
concepts that fall in neither of the two
categories.

HOLLAND’S CRITICISM FOR AUSTIN

He said that it is only the material which
is particular & not the science itself.
Holland’s Definition- He said that
jurisprudence means the ‘formal analysis
of positive law’. It is an analytical science
rather than a material science.
(A.) He defined jurisprudence as the
‘formal science of positive law’.
Positive law means the general rule of
external human action enforced by a
sovereign political authority.
(B.) We can see that, he simply added the
word ‘formal’ in Austin’s definition.
Formal here means that we study only
the form and not the essence. We
study only the external features and do
not go into the intricacies of the
subject. According to him, how a
positive is applied & how it is
particular is not the concern of
jurisprudence.
(C.) The reason for using the word ‘formal
science’ is that it describes only the
 form or the external sight of the
subject and not its internal contents.
According to Holland, Jurisprudence is
a formal science which is concerned
with the actual material contents of
law & only its fundamental
conceptions. Therefore, Jurisprudence
is a formal science.
(D.) This definition has been criticized by
Gray and Dr. Jenks. According to
them, jurisprudence is the formal
science because it is concerned with
the form, conditions, social life, human
relations that have grown up in the
society & to which society attaches
legal significance.
(E.) Holland defined jurisprudence as the
formal science because it is a
systematized & property coordinate
knowledge of the subject of
intellectual inquiry. The Positive law
confines the inquiry to these social
relations which are regulated by the
rules, imposed by the states and
enforced by the courts of law.
Therefore, ‘it is a formal science of
positive law’.
SALMOND’S DEFINTION OF
JURISPRUDENCE:
He defined jurisprudence as the
‘science of law’. By law, he meant
‘law of the land or civil law’. He
divided jurisprudence into two parts-
(1.)Generic:- This includes the entire
Body of the legal doctrines.
(2.)Specific:- This deals with the
Particular department or any
Portion of doctrines.
Specific is further divided into three
parts-
(a.) Analytical, Expository or
systematic it deals with the
contents of an actual legal system
 existing at any time, past or the
present.
(b.) Legal History it is concerned
with the legal system in its process
of historical development.
(c.) The science of legislation the
purpose of it is to set forth law ‘as
it ought to be’. This deals with the
ideal future of the legal system &
the purpose which it may serve.
CRITICISM OF SALMOND:-
A critic says that it is not an accurate
definition. Salmond only gave the
structure and failed to provide any clarity
of thought.
DEFINITION OF KEETON:-
According to him, “jurisprudence is the
study & scientific synthesis of the
essential principal of law”. The definition
seeks to explain the distinction between
public and private law.
DEFINITION OF ROSCOE POUND:-
He described “jurisprudence as the
‘science of law’ by using the term ‘law’ in
‘the juridical sense’ by denoting the body
of principals recognized or enforced by law
& regular tribunals in the Administration
of Justice”.
DIAS & HUGHES:-
They defined jurisprudence as any thought
or writing about law rather than a
technical exposition of the branch of law
itself.
THE END