Every legal system contains power conferring laws and duty imposing laws. As
Society progress and become more populous, diversified and complex it requires
social and legal control. Legal institutions established and regulated by
numerous laws characteristically perform the social functions. Legal system acts
as a mediator between social ideals and social reality.
Likewise the emergence
of the concept Jurisprudence has given way for the numerous laws, rules,
legislations through which justice and dharma can be followed by the civilized
Society. This article deals with the nature, sources and value of Jurisprudence
etc. Further it enumerates the differences between law and morals, nature of
law, sources of law and Kinds of law etc.
The term Jurisprudence is derived from a latin word called Jurisprudentia. Juris
means law, Prudentia means Knowledge or skill. Jurisprudence means Knowledge of
law or skill in law. It is said that Jurisprudence is the eye of law. It is the
knowledge of fundamental principles. It is very difficult to formulate a uniform
definition of Jurisprudence. Each Jurist has his own notion about jurisprudence
and defined the term jurisprudence based upon his ideology and nature of the
- Salmond- The science of law
- Austin- The Science of Positive law
- Holland- The formal Science of Positive law
The object of study of Jurisprudence is to study the theory of law and its
fundamental principles and concepts. It provides Clear understanding about the
nature of law and basic functions of law, the relationship between law and
Justice, and law and morals etc.
Importance of Jurisprudence:
Jurisprudence is a science of civil law. It is a systematic and scientific study
of the existing rules. It is also called as the philosophy of law. Jurisprudence
provides theoretical foundation on the principles of law. It provides clear
conception about the legal philosophy and enables us to discover legal
fallacies. It teaches the lawyers, law students ,Judges ,Jurists and legislators
to think legally and make them efficient in their activities. According to
Salmond, Jurisprudence is the Science of law. It is a study not of the law of a
particular country but of the general notion of law itself.
Nature of Jurisprudence:
Jurisprudence is the eye of law. It is the grammar of law. Jurisprudence is
regarded as philosophy of law dealing with the nature and functions of law. It
contains the general principles upon which actual rules of law are based. As per
Austin’s view, the matter of Jurisprudence is positive law set by Political
superiors to political inferiors.
Value of Jurisprudence:
The value of Jurisprudence can be summarized as follows:
- The Philosophy of law is the basis for legal rules
- It has great advantage in the study of legal system
- The Knowledge of law is essential while making law
- Jurisprudence is concerned with what and how the law should be
- Jurisprudence has educational value
- It provides the rules of interpretation
- It helps in ascertaining the true meanings of laws
- The legal concepts sharpens lawyer’s logical technique
- It makes the lawyer to bring theory and life into focus
- It analyses ,clarifies, clears overlapping of legal rules
- It provides interdisciplinary approach in the social context.
Nature of Law:
Law means rule or command. It is a body of principles recognized and applied in
the Courts of Justice. It is a Code of Conduct. Hindus calls it as Dharma,
Muslims calls it as Hukum, Roman calls it as Jus, Germans calls it as Richt and
in France it is known as Droit.
Austin – Law is a command of Sovereign. The aggregate of rules set by men as
Politically superior, or sovereign , to men as politically subject.
Salmond – The body of principles recognized and applied by the State in
Holland – Law is general rule of eternal human action enforced by a Sovereign
Schools of Jurisprudence:
Jurisprudence means Knowledge of law or skill in law. School means idea.
Various Jurists expressed their various thoughts about Jurisprudence. Each set
of legal thought is known as school. Each School of thought is based on certain
basic assumptions about law. The schools of jurisprudence explain about law ,its
nature ,functions, basis, adaptation ,improvement and reform. The schools of
Jurisprudence have been classified into the following categories.
- Analytical School
- Historical School
- Natural law School
- Sociological School
- Philosophical School
- Realist School
- Comparative School
Theories of Punishment:
The purpose of Criminal Justice and the object of punishment are to reduce
crimes in the society. There are five theories of Punishment of punishment in
the administration of criminal justice.
- Deterrent theory
- Retributive theory
- Reformative theory
- Preventive theory
- Expiatory theory
Kinds of Punishment:
The object of Punishment is to prevent and reduce crimes and protect the society
from Criminals. There are six kinds of Punishments under Section 53 of Indian
Penal Code, 1860.
- Death Punishment
- Life Imprisonment
- Penal Servitude
- Solitary Confinement
- Forfeiture of Property
Sources of Law:
Law is derived from different sources. Various writers have expressed different
view about the origin of law. They may be historical or legal sources. They may
be recognized or unrecognized. Legal and recognized sources are authoritative
and historical and unrecognized sources are not authoritative. These sources are
the basis for legal principles. They may be formal or non- formal sources. The
sources which are recognized by law are called legal sources. They are
authoritative ; eg ; the decisions of English Courts. Legal sources are five
kinds . They are:
- Opinions of Jurists
Delegation means allotment or transfer. Delegated legislation means transfer of
law making power. It is a kind of subordinate legislation or executive
legislation. The main function of executive is to enforce the laws made by the
legislature, but sometimes the legislature may transfer its lawmaking power to
the various departments of Government to make law. This is known as delegated
According to Prof. Grifith delegated legislation during 19th and 20th Centuries
has grown in accordance with the growth of Executive and administrative
The reasons for the growth of delegated legislation are as follows:
The authority to which delegation is made has no independent power to make law.
Hence, delegated legislation is controlled in the following ways:
- Pressure of work on the Government
- Lack of time to the Parliament
- Lack of technical knowledge to the members of legislature
- Flexibility and Expediency
- Emergency Situation
- Parliamentary control
- Judicial Control
- Procedural Control
Codification of Law:
Codification means the systematic arrangement of law. According to Oxford
dictionary Code is a systematic collection of Statutes, body of laws , so
arranged as to avoid inconsistency and overlapping. According to Salmond
Codification making the rules in the form of enacted law. Codification implies
collection, compilation ,methodical arrangement and systematization of whole
body of laws. It Provides systematic principles and rules. It brings simplicity,
symmetry ,intelligibility and logical coherence.
Kinds of Law:
Salmond classified law into eight different kinds. They are as follows:
Authoritative rule is called as imperative law. The first Characteristic of
imperative law is that it must be in the form of a general rule. The second
Characteristics of imperative law is that some authority should enforce it.
According to Austin law is a command of Sovereign.
Physical or Scientific Law:
Natural law is called as Physical or Scientific law. Physical law is also known
as natural law or law of nature. e.g : law of gravitation, law of Planetary
motion, law of tides, law of chemical combination etc.
Natural or Moral law:
Command of God is called as natural or moral law. Natural law is unwritten. The
world is governed by the natural law. An ideal state follows the principles of
natural law. Natural la can never be compared with the positive law of the
A law based on agreement is called conventional law. It binds only the parties
to the agreement. Generally parties enforce Conventional law and in some cases
it is enforced by State. The State enforced Conventional law becomes a part of
civil law. eg: laws of Cricket, rules of a club, international law etc.
A law based on reasonable customs and usages is called Customary law. It is a
kind of law supported by conservative people. The State recognized Customary law
becomes a part of civil law. Eg: Hindu law of marriage, Succession etc.
Practical or technical law:
A law, which has certain ends, is called Practical or technical law. These rules
guide us as to what we ought to do in order to attain certain ends. Eg: laws of
music, law of architecture, laws of style, laws of any art or business etc.
The law of nations is called international law. According to Oppenheim
International law is the name for the body of Customary and treaty rules, which
are considered legally binding by, civilized states in their intercourse with
The term Civil law is derived from jus Civile or civil law of the Romans.
According to Salmond, civil law is the law of the state or of the land, the law
of lawyers and the law courts. It is a kind of positive law of the land. It is
also known as municipal law or national law.
Common law and Equity law of England:
The general law of England is called common law. The common law of England was
produced during the regimes of William I and Edward I. The general laws in
England is classified into three kinds such as:
- Statute law
- Common law and
- Equity law.
Almost every kind of law has reference to the common law and
equity law of England.
According to Salmond Constitutional law is the body of those legal principles,
which determine the Constitution of the State. According to A.V. Dicey ,
Constitutional law includes all rules, which directly or indirectly affect the
distribution or exercise of the Sovereign power of the State. According to
Austin, Constitutional law is not positive law or law in the strict sense, but
is merely positive morality. It derives its force only from Public Opinion
regarding its expediency and morality.
According to Prof. Wade Administrative law is primarily concerned with
administration. It is neither concerned with judicial control nor legislation.
Dr. Jennings defines it as the law relating to the administration. It
determines the Organization ,powers and duties o administrative authorities.
General and Special law:
The general or the Ordinary law of the land is called general law. It consists
of those legal rules, which are taken judicial notice of by the Courts. The law,
which are specially proved and brought to the notice of the Courts is called
Private and Public law:
Law, which govern the relation between person and person, is called Private
law eg: law of property ,law of contracts , law of torts etc. Law, which govern
the relation between person and State, is called Public law.
Substantive and Procedural law:
Generally law may be either Substantive or Procedural .The law, which deals with
rights and remedies is called Substantive law. Substantive law refers to ends.
Eg: IPC. The law which deals with means, mode or manner of obtaining the remedy
prescribed for the violation of right is called Procedural law. It is also known
as adjective law.
Foreign and local law:
The law of a foreign country is called foreign law. The law of a particular
locality is called local law. Ignorance of local law is no excuse, but ignorance
of foreign law is excusable just like the ignorance of fact.
The law administered in the courts maintained by military authorities is called
These are the importance of Jurisprudence and Law in the governance of the
Civilized society that has created numerous new fields in the legal system, has
improved the rule of law, high moral values as described by the great scholars
and Jurists in this new era.