The Study of Jurisprudence has started with the Romans. It involves the
study of the theoretical question of law and legal systems, about justice of
law, the relation of it with ethics and the social structure of law. To
understand the meaning of jurisprudence, in simple words, under Social context,
it can be said that it is a philosophy of law which attempts to establish a
relationship with social values and provides practical solutions through the
mixture of fact, justice and value.
Under psychological context, it is the study
which deals with the regulation of human conduct according to set values, needs,
and goals of society which are of changing character, thus jurisprudence also
aims at fulfilling those needs of changing society.
As per my understanding Jurisprudence
is the name given to a certain type
of study into law, an abstract, general and theoretical nature, which try to
find essential principles of law and legal systems. So it deals with knowledge
and not the law
. It is recognised as the systematized or formulated
knowledge of law.
Now let's focus in understanding the various definitions given by the
Salmond defines Jurisprudence as, " Jurisprudence is the science of the first
principle of the civil law.
" According to him jurisprudence can be defined in
- in the Generic Sense jurisprudence can be defined as Science of
Civil Law and
- in the Specific sense Jurisprudence can be defined as the science
of the first principle of civil law.
Sir Thomas Erskine Holland has defined jurisprudence as the formal science of
A formal science, as distinguished from a material science, is one
which deals not with concrete details but with the fundamental principles
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
As per Roscoe Pound, jurisprudence as " the science of law, using the term law
in the juridical sense, as denoting the body of principles recognised or
enforced by public and regular tribunals in the administration of justice".
As per Julious Stone, jurisprudence means lawyer's extraversion
meant it involves examination of precepts, ideals, and techniques of the law in
the light derived from present knowledge in disciplines other than the law.
In the words of Byden and Richard, it means any thought or writing about
and Lewellyn defines it as an empirical study of events and factors that
influence the judge.
Thus, above are the various definitions of jurisprudence which has been made by
several jurists in defining this term, but from all these definitions I
personally think that the definition of Roscoe Pound and Julius Stone fulfils
the nature of jurisprudence as master science of law.
Roscoe Pounds Theory Of Social Engineering:
Roscoe Pound was a leader of Sociological School of Jurisprudence, according to
him sociological school of jurisprudence ensures that making, interpretation and
application of laws take account of social facts. He has linked the lawyers work
to that of engineering, he developed the theory of social engineering which aims
at building an efficient structure of society resulting in the satisfaction of
maximum wants with the minimum of friction and waste.
According to Pound:
Law is social engineering which means a balance between the competing interests in
society, in which applied science are used for resolving individual and social
Theory of Social Engineering: Pound compared the task of the lawyer to the
engineers. He stated that the aim of social engineering is to build a structure
of society as possible which requires the fulfilment or satisfaction of maximum
wants with minimum usage of resources.
It involves the balancing of competing interests. He called this theory as the
theory of Social Engineering
. If we break these two words i.e. Social
which means group of individual forming a society and the word Engineering
means applied science carried out by engineers to produce finished products,
based on continuous experimentation and experience to get the finished product
by means of an instrument or device.
The aim of social engineering is to build as efficient structure of society as
possible which requires the satisfaction of the maximum wants with the minimum
friction and waste. In involves balancing competing interests, here the term
interests means claims, wants, desires, or expectations, which men assert de
facto about which law must do something if organised societies are to endure. It
is the task of the jurists to assist the court by classifying and expatiating on
the interests protected by law.
For facilitating the tasks of social
engineering, Pound classified various interests to be protected by law in three
- Private Interests / Individual Interest– The Private interests to
be protected by law are the individual's interests of personality . These include
his physical integrity, reputation, freedom of violation and freedom of
conscience. They are safeguarded by the criminal law, law of torts, law of
contracts, and by limitations upon the powers of government to interfere in the
matter of belief and opinion.
Following are Individual interests according to Pound includes:
- Personality- Interest of personality consist of interests in:
- The physical person,
- Freedom of will,
- Honour and reputation,
- Privacy and sensibilities,
- Belief and opinion.
- Domestic relations – It is important to distinguish between the interest
of individuals in domestic relationships and that of society in such
institutions as family and marriage. Individual interests include those of:
- Parents and Children,
- Husbands and Wives &
- Marital interests.
- Interest of substance includes:
- Interests of property,
- Succession and testamentary disposition,
- Freedom of industry and contract,
- Promised advantages
- Advantageous relations with others,
- Freedom of association, and
- Continuity of employment
- Public Interest– Public interests according to him are the claims or
demands or desires
looked at from the stand point life in politically organized society . The main
public interest according to Roscoe pound are:
- Interests of state as a juristic person which includes - i.e. protection
and interest of the state as a guardian of social interest. Claims of the
politically organized society as a corporation to property acquired and held
for corporate purposes.
- Interests of State as a guardian of social interest,namely superintendence
and administration of trusts, charitable endowments, protection of natural
environment, territorial waters, sea-shores, regulation of public employment and
so on to make use of thing which are open to public use , this interest seem to
overlap with social interests.
- Social Interest : Social interests are the claim or demands or desires
thought of in terms of social life and generalized as claims of social
Social interests are said to include:
- Social interest in general security -Social interest in the general
security embraces those branches of the law which relate to:
- General safety, General health,
- Peace and order,
- Security of acquisitions and Security of transactions.
- Social interest in the security of social institutions- Social interest
in the security of the social institutions include:
- General security of domestic institutions,
- Religious institutions, political institution and
- Economic institutions.
- Social interest in general morals – Social interest in general morals
comprises of prevention and prohibition of prostitution, drunkenness,
- Social interest in conservation of social resources- Social interests in
the conservation of social resources covers conservation of social resources
and protection and training of dependents and defectives, i.e. ,
conservation of human resources, protective and education of dependents and
defectives, reformation of delinquents, protection of economically
- Social interest in general progress – Social interest in general
progress has three aspects. Economic progress, political progress and
Political progress covers free speech and free association, free opinion,
Economic progress covers freedom of use and sale of properly , free, trade ,
free industry and encouragement of inventions by the grant of patents.
Cultural progress covers free science, free letters, encouragements of arts and
letters, encouragements of higher education an learning and aesthetics
- Social interest in individual life.- Meaning thereby each individual be
able to live a human life according to the individual's:
- Political life
- Physical life
- Social and
- Economic life.
Pound's theory is suggesting that it will look at the law as it is, and then
addresses the issue of how it will change and grow based on social wants, needs
and demands pragmatically and relatively . However, the question remains that if
the law is the way Pound describes, then why is there a need to do such a
detailed socio-legal research to problems that will arise and be dealt with on a
case by case basis, one at a time. Another issue which may easily be picked up
as a criticism could be that Pound highlights the difference between the law in
books and the law in action. Actually, Pound has only substantively paid little
detailed attention to this living law leaving it quite theoretical which seems
to go against the spirit of his jurisprudential approach.
Ehrlich, on the other
hand, was preoccupied by this issue and went into great detail of the living
law almost to the exclusion of all else. The following words from Roscoe Pound
clearly indicate his view that the function of law is to fulfil individual,
social and public interests as well as providing social control: For the
purpose of understanding the law of today, I am content to think of law as a
social institution to satisfy social wants – the claims and demands involved in
the existence of civilized society – by giving effect to as much as we need with
the least sacrifice, so far as such wants may be satisfied or such claims given
effect by an ordering of human conduct through politically organized society.
For present purposes I am content to see in legal history the record of a
continually wider recognizing and satisfying of human wants or claims or desires
through social control; a more embracing and more effective securing of social
interests; a continually more complete and effective elimination of waste and
precluding of friction in human enjoyment of the goods of existence – in short,
a continually more efficacious social engineering. There seems to be little
distinction provided in the discussion between the functions and the effects of
While one can easily argue that law and other factors can be seen as
factors towards social control, the question that can arise is whether social
control is a function of law or rather the result. In other words, in accepting
that social control is a function of law, is the reader/writer looking at the
effects and using a backward reasoning process, assuming the results that emerge
were the cause of the actual reason for the law to have been made as it was.
Secondly, arguing from a Marxist or even Feminist perspective, one could take a
more critical stance of what the law is and argue that law is one of the tools
used to create and secure inequality, discrimination in conferring privileges
and wealth . In line with this thinking, one may argue that the law in fact does
not necessarily function to provide an ever-growing base for the gratification
of individual wants and needs.
Julius Stone Approach:
It is derived from present knowledge in discipline other than law . He has
not restricted this definition only on the subject of law. Here the word Lawyer
means probable stakeholders of law that is the Jurists, Scholarly Person,
Lawyers, Judges, etc. Lawyers can be academic lawyer and the practising lawyer.
Academic lawyers include teachers, students and experts.
include-Lawyers, advocates, etc. Extraversion means enriching existing body of
knowledge through research, observation, and conclusion. In this definition,
this jurists has tried to focus and gave importance that if one wants to
understand jurisprudence he should also have knowledge of the subjects other
than law. He states that, Judges are supposed to be guided by the law. Julius
Stone has divided jurisprudence into three parts:
- Analytical Jurisprudence (Analysing the Law)
- Functional Jurisprudence (Maintain Peace and Order)
- Principles of Justice (To establish Justice)
Here the Stone's objective was, first, to subject mainstream analytical and
positivist jurisprudence to an extended critique, and second, to scrutinize the
use and limits of logic in legal decision- making particularly in appellate
courts of common legal systems, but also among the courts under the legal codes
of the civil law systems of Europe. Here, Stone's concern was with sociological
jurisprudence – by which he meant, not a sociology of law, but an 'applied study
of law in society', that is, a study of law in its application and function
in society, conceived as a rational basis for the practical task of
administering law and justice in contemporary societies.
According to Julius Stone he defines:
Jurisprudence is Lawyer's
Extraversion' means that it is the lawyer's examination of precepts, ideals, and
techniques of law in the light decisions as either direct applications of
existing law, or deductions from existing legal principle', and he acknowledged
that in some cases logical deduction may genuinely occur .
In particular, logical deduction can occur, he said, when judges determine the
matters before them by searching the cases to discover the appropriate rule or
rules of law which logically govern the situation. Such rules of law function as
major premises in a logical syllogism; the facts of the case operate as minor
premises; and the conclusion to be drawn by the court follows necessarily.
On the other hand, the legal order cannot provide ready-made rules for every
conceivable controversy; of necessity, the law must have gaps. Furthermore, life
changes and the law is not always adapted to the changes with sufficient speed.
Hence, judges cannot be totally bound to the law. They must have a certain
measure of freedom.
Jurisprudence, as it has developed in English speaking countries, constitutes
the effort of lawyers to look upon their own field from the point of view of the
other sciences, combined with a peculiar effort of legal scholars to refine
their own methods in those ways which do not lawyers into other fields and this
peculiar extension of legal science is jurisprudence.
In a nutshell, from the above discussed points according to me Roscoe Pound's
theory and Julius Stone definitions fulfils the definition of jurisprudence as
master science of law.
- V.D. Mahajan, V., 2019. Jurisprudence & Legal Theory. 6th ed. EBC
- Dr. B N Mani Tripathi, Jurisprudence Legal Theory,16 Ed.,Allahabad Book