Jurisprudence - Benefits of Studying the Subject

WHY STUDY LEGAL THEORY?

(Extract from: Ian Mcleod)

The discussion of the nature of legal theory which you have just read,and any number of similar discussions which you may read elsewhere, will leave many students saying 'So what? How will all this help me when I am a lawyer?You may even pray in aid Cotterrell's comment that 'no-one could suggest that legal theory has at any time been necessary to help the lawyer earn a living in everyday practice'. (The Politics of Jurisprudence, 1989, p. 223.)But the key word here is necessary, for there can be equally little doubt that cases do arise where practitioners with acknowledge of legal theory are better equipped than those who lack it… Indeed, it may even be argued that without a knowledge of legal theory there is a sense in which you cannot credibly claim to be a lawyer, as distinct from someone who knows some laws: 'while legal science is capable of being intelligently learnt, legal facts are capable only of being committed to memory'. (IE. Holland, The Elements of Jurisprudence, 13^thedn, 1924, p. 4.)

In similar vein, Holmes, having noted that the English meaning of jurisprudence’ is confined to the broadest rules and most fundamental conceptions’, adds that 'one mark of a great lawyer is that he sees the application of the broadest rules'. He proceeds to illustrate this basic truth with a practical anecdote.

'There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant.... If aman goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis[for predicting what the court will do if the matter ever comes before it] .' (The Path of the Law (1897) 8 Harv LR, pp. 474-5.)

The study of legal theory takes you beyond laws and into law. Making the point more explicitly in relation to professional practice, the value of a knowledge of legal theory lies in the fact that it provides a principled overview of law as a whole, which enables practitioners to relate a large number of individualized statements of legal doctrine to, and evaluate them in the light of, each other. Practitioners with a knowledge of legal theory will be able to construct arguments, and counter opposing arguments, with more confidence, and with a greater likelihood of success, than would otherwise be the case. As Holmes puts it:

'The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echoof the infinite, a glimpse of its unfathomable process, a hint of the universal law.' (Op. cit., p. 478.)

More polemically, if less poetically, members of the critical legal studies movement regard a knowledge of legal theory as being unequivocally essential to practitioners. Thus Alan Thomson challenges the view (which he takes to be prevalent among both students and practitioners), that legal theory is marginal, and that the only thing which really matters, even for a radical lawyer, is to be a good lawyer:

'Critical legal theory must ... make explicit the implicit theory on which the existing legal rules, institutions and practices are based, with the aim of showing that since that theory cannot support what it claims it can, the world could be otherwise ... '

and

'critical legal theory attempts to reconnect law with everyday political and moral argument, struggles and experiences, with all their attendant incoherences, uncertainties and indeterminacies. Most importantly, in rejecting a view of law as the expression of reason, critical legal theorists reveal, in different ways, law as the expression and medium of power.' (Foreword: Critical Approaches to Law: Who Needs Legal Theory?, in Ian Grigg-Spalland Paddy Ireland (eds), The Critical Lawyers' Handbook, 1992, pp. 2-3.)

Ronald Dworkin, who is by no stretch of the imagination a member of the critical legal studies movement, goes even further than Thomson, arguing that legal theory and legal practice are, in fact, two aspects of a single, seamless, whole. (See p. 131.)

Finally, however, although it is easy to justify the study of legal theory by reference to the demands of legal practice, it is not necessary to do so:

'It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas.' (Oliver Wendell Holmes, Law in Science and Science in Law (1899) 12 Harv LR p. 444.)

SUMMARY

·         Legal theory involves a progression from the study of laws to the study of law.

·  Differences of terminology between legal theory, jurisprudence and legal philosophy/philosophy of law are largely matters of personal taste.

·         The study of legal theory involves the use of sources other than the law, including works on philosophy and political theory.

·         All legal theories must be seen in the context of the historical period and the culture within which their authors were working, as well as within the context of the questions which their authors were seeking to answer.

·         Legal theories are classified in a variety of ways, but all classificatory schemes are only aids to understanding and not substitutes for it.

·         There is no universally accepted way of identifying what is morally right and what is morally wrong, but three of the major approaches to these questions involve theories that are either duty-based, consequence-based or virtue-based.

Legal theory can be relevant to practitioners of law when it makes them think about the basis of what they are doing. It also has its own intrinsic value as a branch of the study of ideas.

WHAT ARE THE USES OF STUDYING JURISPRUDENCE?

(Extract from:Hari Chand, Modern Jurisprudence, pp12-16)

There are jurists who maintain that jurisprudence is not of practical use; it has intrinsic interest. For instance Harris differs with the view that the teaching of jurisprudence makes better lawyers. In his words, "jurisprudence has to do, not with the lawyer's role as a technician but with any need he may feel to give account of his life's work - either to fellow citizens, or to himself, or to any gods there be.

One may wonder,if it were so, why are would-be lawyers made to study this subject compulsorily? Many of them may very well say that they do not wish to render any account of their life or life's work to anyone and, therefore, they should be freed from the hard task of abstract thinking involved in jurisprudence. In fact, if a survey is taken, a vast majority of law students would like to get rid of the study of jurisprudence, if they are given an option to do so. Then what is the justification for inflicting unnecessary intellectual torture? But the truth is that jurisprudence is not only of great practical use to lawyers but also a great necessity in learning the law. It is a great myth, which needs to be exploded, to think that a person can understand law without understanding jurisprudence. Just as they say that an unmarried man is half a man, it may be said that a lawyer who has not understood jurisprudence is half a lawyer who may falter any moment because his knowledge of law is without foundation - without jurisprudence.

a.      Disciplining the Mind – to think of broader issues, social problems quest for knowledge

The study of jurisprudence' disciplines the mind and enables it to think over social problems. It is said about a good book that it should make people more hungry to know more. Nothing can be truer than the fact that the study of jurisprudence makes one intellectually hungry to learn more and more. It is an appetiser for acquiring more knowledge. Jurisprudence is a vast subject and encompassing every branch of knowledge. It would make its pursuer learned and wise. Of course, this can be said about every subject but it is truer of jurisprudence than any other subject.

b.      Broadens the knowledge of Law

Like any branch of social sciences, jurisprudence broadens our knowledge of law. Since it is a must for a modern jurist to study social sciences like history, economics, politics, sociology, anthropology,psychology, the jurist has a wider perspective for his subject. He can study rules, principles, doctrines, the very bones of law, in the light of his knowledge of social sciences. The study of historical development of culture and evolution of social life would equip him with the evolutionary nature of law. Law can never be static; it is an ever changing subject. Thus the study of jurisprudence opens our mind to new worlds; it is a window to the universe of knowledge and learning. Jurisprudence enables us not only to delve deeply into theoretical basis of law but also helps us in solving brainracking and mind-boggling problems which we face in today's complex andchaotic world. The complexity and fast changing horizons of our social life leave us no time for peace of mind; jurists have been overburdened with heavy problems all the time. The questions of justice, morality, peace and harmony are sufficient enough to agitate the minds of men but a host of problems of environmental pollution, drug trafficking, inequitable international trade and terrorism are some of the never ending banes of our times. Without the help of law, such problems will ever ulcerate the heart of mankind. Jurists cannot rest content as the problems raise their ugly heads every day and cry for solution. Jurisprudence enables them to rise to the occasion and meet the challenges posed by the modern world. He can suggest policies and programmes to get over the menace of terrorism.

c.       Improving the law and suggesting legal reform

Since it gives us broader knowledge and wider perspective, coupled with a deeper understanding of the mechanics of law, jurists are in a better position to improve upon the law and suggest reform suitable to meet the demands of society. Thus jurisprudence serves as a great tool for improvement and development of law. It helps in the study of various elements, factors, set of circumstances which effect the working of a legal system in various ways and thus purge it of pernicious elements and make it work efficiently and effectively.

d.      Providing perspective or ‘ideology’ on law

Besides, now it is common knowledge that every social system whether based on capitalism, socialism, or communism requires an ideological framework. Ideology has been infused in every sphere of intellectual life and law could not escape from it. Jurisprudence represents, in a way, an ideology for lawyers and jurists.

It is an ideological tool. Ideological battles are fought with a philosophy of law and a plethora of jurisprudential learnings. It is only with the study of jurisprudence that one may venture to meet the challenge posed by counter ideologies in the sphere of law and without a thorough understanding of jurisprudence one cannot find one's path. Jurisprudence has been rightly described as the eye of law. Without this eye, law is blind and would lead but in the dark valley of chaos and confusion.

e.       Ability to deal with a new situation which demands experimentation

Again, jurisprudence enables us to deal with a new situation which demands experimentation. Everyone is hesitant before leaping into the dark but the knowledge of jurisprudence which is distilled from the wisdom of philosophers, lawyers, historians and economists comes to our rescue in a fluid situation. Above all, the perpetual problem which is confronted in a legal system, i.e. interpretation and application of laws would ever remain unsolved and untackled if jurisprudence were not there .It is only with the help of jurisprudence that modern complex and multi-faceted problems of society can be solved. Its knowledge is a great help to the judge, the lawyer, the legislator and the administrator. It is only through the medium of jurisprudence that lawyers and judges have become more amenable to the persuasion of social scientists; now judges are more receptive to the findings of social scientists and are ready to lend their ears to the new truths revealed by them.

Thus they can do justice in a better and satisfactory way when they are accompanied by a great helper and friend called jurisprudence. Jurisprudence would come to one's rescue in a situation where existing techniques fail. It is a master key for all working with a legal system not only to its understanding but also to its development and success. 

f.        Better understanding of human affairs

Above all, jurisprudence is a study of man as history, economics, political science, psychology, anthropology - all social sciences are a study of man. Man is a complex entity with numerous facets.

Probably we are in need of many new branches of knowledge to study man. Jurisprudence is a study of mankind as it is the business of jurisprudence to study the behaviour of man under various legal regimes. Rule-governed action of man is the object which the jurist has to study. The jurist, if he is well equipped with the experiences of mankind with various laws, can tell us what types of societies had lived on this earth. The laws of a society embody the norms of the society which contain, to a large extent, the knowledge as to the kind of society. These norms are not artificial or fictional accounts; these have been distilled from the practical life of the people and therefore they may reveal more than any other artifact as to the nature and character of the society. As the society changes, the laws undergo changes.

Therefore, if someone were to study the evolution of mankind, probably the changes in laws from time to time indicate unmistakably the course of development of mankind.

g.      Pursuit of knowledge

In the end, it needs to be stressed that it is not its usefulness which should persuade one to study jurisprudence but its ultimate value. If Socrates could hold knowledge as an ultimate value, there is all the more good reason for us to hold jurisprudence as an ultimate value. Here we agree with Cicero, the great Roman jurist who held the view that jurisprudence is more than a dependent science.Huntington Cairns sums up:

"He (Cicero) saw that it was a mistake to depend jurisprudence on the ground of its usefulness to positive law, a lesson which modern jurists have even yet not learned. If the sole justification of jurisprudence is its usefulness to positive law, then it will never achieve the status of an independent science in as much as a science of means is always controlled by the ends. It was clear to Cicero that jurisprudence was something more than a dependent science.”

Jurisprudence and Social Sciences

JURISPRUDENCE, SOCIAL SCIENCE AND SOCIOLOGY

(Extract from:Avtar Singh and Harpreet Kaur, Introduction to Jurisprudence, pp5-9)

Jurisprudence is closely inter-related with other social sciences since all of them are concerned with human behaviour in society. Pound who propounded the theory of law as a 'social engineering', pointed out that jurisprudence is closely inter-related with ethics, economics, politics and sociology which though distinct enough as the core, are shades into each other. All the social sciences must co-ordinate with jurisprudence to make it a functional branch of knowledge. 3 Similarly, Paton has observed that modern jurisprudence trenches on the fields of social sciences and of philosophy; it digs into the historical past and attempts to create the symmetry of a garden out of the luxuriant chaos of conflicting legal systems.

There is a separate branch of sociological jurisprudence which is based on sociological theories, and is essentially concerned with the influence of law on the society at large, particularly social welfare. The sociological approach to the legal problems is different from the approach of the lawyer. Sociology has helped jurisprudence in its approach to the problems of prison reforms and has suggested ways and means of preventing social wrongs. It has given new orientation to the science of the jurisprudence.

Sociology and Jurisprudence

The relationship between sociology and jurisprudence is thus stated in Sethna:

Sociology is the science of society-the study of man in society-and as such it includes so many subjects and the human sciences in its scope. It traces human institutions, the ways of social living, social standards, race, blood, environment of men, the religious influences, ideals and beliefs pervading the life of men, the different cultures, and their effect on society, through its branch, namely, anthropology through which we have learnt much relating to the science of law, that is, Jurisprudence, especially Historical Jurisprudence. Sociology studies the relations of men, from the pre-historic age and later times down to the present age. It views the past, tells of the experience and lessons of the past, talks of and surveys the present and seeks to provide for a beautiful future. Indeed all that concerns human welfare is included in the scope-directly or indirectly-of this all-embracing science-this science of human sciences. Jurisprudence, especially sociological Jurisprudence, can best be understood in the light of sociological principles. We must examine the effect of laws on society and try to improve those laws. So also is historical jurisprudence a sister to sociology. The historical jurist derives his knowledge relating to legal institutions and their origin from sociological and historical sources also. Anthropology tells him much about law and religion ; and a study of the sociology of the law acquaints him with the origin of law and legal institutions and their development.

Jurisprudence and Ethics

Ethics is the science of human conduct. It lays down the ideals of human behaviour. Ethics gives us public opinion as to good or proper human conduct which varies considerably from place to place and from time to time, and from people to people. What may be a rule of good morality at one time may not be at another time. As Dr Sethna has said, 'It changes in the furnace of social evolution, social culture and social development. What may be a rule of good morality at one time may be a bad moral today'.

Jurisprudence is concerned with positive morality since law is considered as an instrument to regulate human conduct in society. Positive morality is dependent not only upon the good actions of men but it requires a strong coercive influence for the maintenance of a public conscience. There is a separate branch of jurisprudence called the ethical jurisprudence which seeks to lay down the standards of ideal for human conduct in terms of law for the maintenance of public conscience.

Dr Sethna defining the relationship between ethics and jurisprudence has said, 'In the mirror of a community's laws are reflected in its culture,its ideology and its miranda. On the high level of its laws is perceived the glory of a country's civilization -the depth of its positive ethics. Hence,the relationship between ethics and jurisprudence.

Dr Sethna continues to observe as follows:

Ethics depends on law for enforcement of some of its rules through the instrumentality of the law courts, the police and decrees of courts and punishments.So also good legislation must be based on ethical or nomological principles. Just as there are values in ethics, there should be a complete recognition of values in law also.

Ethics examines human conduct and lays down rules of duty and ideal conduct,dealing with the values of life. On high values, human living is to be shaped. Laws are meant for regulating human conduct and for subjecting the individual ego to the social ego. So the jurist should have good knowledge of ethical values and should base the law of the land on such ethical principles as may be thought fit tobe incorporated in law.

Jurisprudence and Psychology

Psychology is the science of mind and behaviour and as such, is very closely related to the science of law, that is, jurisprudence. In the study of criminal jurisprudence, there is a very great scope for the study of psychological principles in order to understand the criminal mind behind the crime.

The psychology of the offender is one of the crucial factors in deciding the nature of punishment to be given to the convict. The modern reformative techniques of punishment are devised for the treatment of the offenders according to their psychological traits.

Psychology can help the law-maker considerably in the approach to the problems, of not only making the law, but also of executing it.Many legal concepts such as negligence, motive, mens rea, intention which pertain to the faculty of mind, they form a part of study of psychology as also thee jurisprudence.

Jurisprudence and History

There is a close inter-connection between history and jurisprudence because without probing in to the history we can not appreciate the present law and legal system. History is the study of past events in their proper prospective. Therefore, for the study of different branches of law their study in the historical prospective is required without which the study would be incomplete.

Jurisprudence and Economics

Economics is a science of money and wealth whereas jurisprudence is a science of law but both are intimately co-related. There are many laws which tend to regulate economic activities of men because economic factors ie, money or production and distribution of wealth are responsible factors for the incidence of crimes in society. For example, Negotiable Instruments,Consumer Protection, Law relating to Banking, Companies, Bonus,Insurance, Payment of Wages etc. These tend to regulate economic activities of men and for this regulation of wealth, Law of Poverty developed as a separate branch of law for the welfare of the poor people so that they canal so be brought into the mainstream of development and progress. So we can say that the ultimate aim of both the economics and jurisprudence is to improve the standard of life of the people for the welfare of the community as a whole.

The close relationship with economics is thus explained in Sethna:

Jurisprudence certainly has a close relation to economics, especially the economics of welfare.The aim of economics is to bring in prosperity; the aim of legislation is to produce good laws for the welfare and mutual relations of men in civilised society;and jurisprudence is the science and philosophy dealing with the basic principles of law and the ideal for betterment and greater good. Jurisprudence teaches the legislators how to make good laws for promoting the economic and social welfare of the people. To-day, we have a good deal of legislation relating to the economics of welfare. In the production of wealth, we must look to the welfare of the worker as well. Factory laws,laws relating to workmen's compensation, laws relating to payment of wages, the limitation of hours of work, and laws relating to labour insurance and for the procuring of an equitable distribution of wealth, have been passed and are being passed. So also we have Agricultural Debtor's Relief Acts, Zamindari Abolition Acts, and laws relating to prevention of fragmentation of agricultural holdings. So Jurisprudence is interlinked with the economics of welfare. Both deal with welfare.

Jurisprudence and Politics

Political science deals with the principles governing the organisations of government. State as a political organisation makes law for good governance of people and politicians are the law-making organ of the Government.Therefore, relationship of jurisprudence with politics is well-founded. As remarked by Friedmann jurisprudence is linked at one end with philosophy and at the other end with political theory.

The following statement of the relationship between politics and jurisprudence is worthy of being noted

Politics is the science of government. Good government depends upon good laws; so here we have the tracing of the close relation between politics and jurisprudence. As Edmund Burke has well expressed, a good government is not a partnership in a tea-house or a coffee-house, but a partnership in every art, a sharing in all science, a participation in all virtue. Jurisprudence,certainly, deals with virtues and values. Just as in ethics we have values, soalso, in Jurisprudence we have values. Ethical and Sociological Jurisprudenceplays prominent part.

Laws .should not be regarded merely as the machinery of government or the enforcement of a particular or general policy; laws should be based on the social,economic and political needs of the people, for law should act in the service of man,and not be a machinery for enslaving. Just as a good government is possible only with good laws, so also good laws are perceivable only in a good State with a good government and an ideal legislature. Hence the intimate relation between politics and jurisprudence.

RELATIONS OF JURISPRUDENCE WITH OTHER SOCIAL SCIENCES

By: LellalaVishwanadham

(VSRD Technical & Non-Technical Journal Vol. 3 (5), 2012

http://www.vsrdjournals.com/vsrd/Issue/2012_05_May/Web/2_Lellala_Vishwanadham_655_Research_Communication_VSRD_May_2012)

Introduction

Different branches of knowledge are so interrelated that none of them can be studied in isolation.All social sciences stand in close connection with one another.All of them study the actions of human beings living in society, though from different angles and with different ends.

In the view of the Paton, “Modern Jurisprudence trenches on the fields of social sciences and of philosophy; it digs into the historical past and attempts to create the symmetry of a garden out of the luxuriant chaos of conflicting legal systems”.

Justice Mc Cardie emphasises the indispensability of the study of other social sciences in these words: “There never was a time when the barrister had greater need of a wide culture and of a full acquaintance with history with economics and sociological science.

Roscoe pound of the Harvard Law School, explained, “Jurisprudence, ethics, economics, polities and sociology are distinct enough at the core, but shade out into each other.When we look at the core or chiefly at the core, the analytical distinctions are sound enough.But we shall not understand even that core, and much less debatable ground beyond, unless we are prepared to make continual deep incursions from each into each of others.All the social sciences must be co-workers and emphatically all must be co-workers with 

Jurisprudence

Jurisprudence and Sociology

According to Salmond, Jurisprudence is the knowledge of law and in that Sense all law books can be considered as books on jurisprudence.Among the phenomena studied by sociologists is law also and that makes sociology intimately connected with Jurisprudence.

Sociological Jurisprudence based on Sociological theories and is essentially concerned with the influence of law on society at large, particularly social welfare.The sociological approach to legal problems is essentially different from that of a lawyer.

In the case of crime in society, its causes are to a very great extent sociological and to understand their pros and cons, one must have knowledge of society.

Sociology has helped jurisprudence in its approach to the problem of prison reformed and has suggested ways and means of preventing social wrongs. Preciously, judges and legislators came to their conclusions regarding the effect of punishment by depending upon popular opinion and personal impressions, but now they have at their disposal precise data through the efforts of criminologists.

Behind all legal aspects, there is something social.The causes of crimes are partly sociological and an understanding of sociology helps the legislators in their task of prison reform and prevention of crimes.Topics like motives, aims and theories of punishment and the efficacy of the various types of punishmentsare considerably helped by sociology.The birth and growth of sociology has given a new orientation to the study of Jurisprudence.

There is a distinction between sociological Jurisprudence and sociology of law.The latter differs mainly from the former inthat it attempts to create a science of social life as a whole and to cover a great part of general sociology and political science”. In the sociology of law, the emphasis is on society but in sociological Jurisprudence emphasis is on the relation between law and society.

The sociology of law is a branch of sociology dealing with the law and legal institutions in the light of sociological principles, aims and methods.

Jurisprudence and Psychology

Psychology has been defined as the science of mind and behavior.It is recognized that no human science can be discussed properly without a thorough knowledge of the human mind and hence it’s close connection with jurisprudence.In the study of criminal jurisprudence,there is a great scope for the study of psychological principles in order to understand the criminal mind behind the crime.Both psychology and jurisprudence are interested in solving such questions as the motive for crime, a criminal personality, whether a criminal gets pleasure in committing a crime why there are more crimes in one society than in another and what punishment should be given in any particular case.In criminology, psychology plays an important part.It is the duty of a lawyer to understand the criminal and the working of a criminal mind.

It is the duty of a law-giver to understand man and not to pass judgments and say what man ought to do or ought not to do.Psychology can help the law-maker considerably in the approach to the problem of not only making the law but also of executing it.

Jurisprudence is concerned with man’s external conduct and not his thoughts and mental processes, but penology has benefited from the knowledge made available by psychological researchers.

There is a school of jurists which holds the view that the sanction behind all laws is a psychological one.Study of negligence, intention, motive and other cognate mental conditions forms part of both Jurisprudence and Psychology.

Jurisprudence and Ethics

Ethics has been defined as the science of human conduct.It deals how man behaves and what should be the ideal human behaviour.There is the ideal moral code and the positive moral code.The former belongs to the province of natural law, while the latter deals with the rules of positive or actual conduct; Ethics is concerned with good or proper human conduct in the light of public opinion.Public opinion varies from the place to place, from time to time and from people to people.

Jurisprudence is related to positive morality in so far as law is considered as the instrument through which positive ethics ties to assert itself.Positive morality is not dependent upon the good actions of a good man only.It requires a strong coercive influence for maintaining public conscience.

The branches of ethical jurisprudence which tries to examine the existing ethical opinions and standards of conduct in terms of law and makes suggestions for necessary changes so that it can be properly depict the public conscience.

There are many ethical rules of conduct which are not considered as crimes.The law ignores trifles.It may be immoral to tell a lie but it is not a crime.Many acts are unethical but all unethical acts are not necessarily criminal.One has to consider the problem of laws which are considered undesirable by society.All that is prohibited by law is not necessarily immoral.For enforcing certain ethical conduct, ethics depends upon law through the instrumentality of the police, law courts, judges and the system of courts and punishment.Legislation must be based on ethical principles.It must not be divorced from human values.No Law can be good if it is not based on sound ethical principles.

Ethics lays down the rules for human conduct based upon higher and nobler values of life.Laws are meant for regulating human conduct in the present and subordinating the requirements of the individual to that of society at large. A jurist must be adept at the science of ethics because he cannot critics a law unless he examines that the through the instrumentality of ethics

Jurisprudence and Economics

Economics studies man’s efforts in satisfying his wants and producing and distributing wealth.Economics is the science of wealth and Jurisprudence is the science of law.There is a close relationship between the two. Very often, economic factors are responsible for crimes.Economic problems arise from day to day and it is the duty of the law-giver to tackle those problems.The aim of the economist is to improve the standard of life of the people and also to develop their personality.Jurisprudence teaches legislators how to make laws which will promote social and economic welfare. Both jurisprudence and economics aim at the betterment of the lives of the people.There are laws relating to workmen’s compensation, factory legislation, laws relating to labour, insurance, maternity welfare, bonus, leave facilities and other concessions given to workmen.There are laws for the benefits of the agriculturists such as the Zamindari Abolition Acts, Agricultural Debtors Relief Acts, Acts preventing the fragmentation and sub-division of agricultural holdings and regulation of agricultural labour. Both Jurisprudence and economics help each other in furthering the welfare of society.

The intimate relation between economics and Jurisprudence was first emphasized by Kar lMarx

Jurisprudence and History

History studies past events in their different perspectives.The relation between Jurisprudence and history is so close that there is a separate historical school of Jurisprudence.History furnishes the back ground in which a correct idea of Jurisprudence can be realized.

Jurisprudence and Politics

Friedman rightly points out that Jurisprudence is linked at one end with philosophy and at the otherend with political theory.Politics deals with the principles governing governmental organization.In a politically organized society, there exist regulations which may be called laws and they lay down authoritatively what men may do and what they may not do.

WHAT IS THE RELATION OF JURISPRUDENCE WITH OTHER SOCIAL SCIENCES?

By

Zulfiqar Ali Chandio

Jurisprudence is closely inter-related with other social sciences since all of them are concerned with human behavior in society. Pointing out the relationship between jurisprudence and other social sciences, G.M Paton observed that, modern jurisprudence trenches on the fields of social science and of philosophy; it digs into the historical past and attempts to create the symmetry of a garden out of the luxuriant chaos of conflicting legal systems. Julius Stone explained the relation between them as, “Jurisprudence is the lawyer's extraversion."Roscoe Pound who propounded the theory of law as a "social engineering" also said that jurisprudence is closely interrelated with other social sciences which though distinct enough as the core, are shade into each other. In simple words we can say that different branches of knowledge are so inter-related that none of them can be studied in isolation. All social sciences stand in close connection with one another. All of them study the actions of human beings living in society, through from different angles and with different ends.

Jurisprudence and Sociology

The attitude of sociologists towards law is different from that of a lawyer who, in his professional capacity, is concerned with the rules which have to be obeyed by the people. He is not interested in knowing how and to what extent those rules actually govern the behavior of the ordinary citizens. There is separate branch of sociological jurisprudence based on sociological theories and is essentially concerned with the influence of law on society at large, particularly social welfare. In the case of crime in society, its causes are to a very great extent sociological and to understand their pros and cons, one must have knowledge of society. Sociology helped jurisprudence in its approach to the problem of prison reforms and suggested ways and means of preventing social wrongs. Behind all legal aspects, there is something social. The causes of crimes are partly sociological and an understanding of sociology helps the legislators in their task of prison reform and prevention of crime. The birth and growth of sociology has given a new orientation to the study of jurisprudence.

A study of jurisprudence is not considered an essential component of the education and training programs of large numbers of lawyers. The subject is considered pretentious.

Some jurists concentrate on highly abstract theorising, to the exclusion of the severely practical concerns of the law. This may have contributed to suspicion of the subject and a rejection of its pretensions.

Much of the true value of jurisprudence resides elsewhere than in the day-to-day practical applications of the law.

·         Its study provides a discipline of thought which seeks not to ignore the realities of legal practice, but rather to give added dimension to an understanding of those realities.

·         It offers an overall view of the law, a unified and systematic picture, in which the nature of legal institutions and theories becomes more comprehensible.

·         Austin viewed jurisprudence as providing a ‘map’ of the law which presents it as ‘a system or organic whole’.

Some legal scholars and students have found a major attraction of jurisprudence to be its intrinsic interest, which emerges from the importance of the perennial questions with which it deals. ‘What are human rights?’, ‘Are there any absolute values in the law?’, ‘What is justice?’ These problems exemplify matters which have been raised over the centuries by philosophers and jurists. Not only the content of legislation and the administration of legal institutions, but the basis of society itself, have been affected by attempts to answer questions of this nature. They are of abiding human interest.

The intellectual discipline required for a study of this area of thought must be of a high order. Intensive, systematic analysis, the ability to exercise one’s critical faculties and to engage in a continuous questioning of one’s own basic assumptions – all can be heightened by a study of jurisprudence. The intellectual skills required to see into the essence of current arguments which turn, for example, on ‘the right to silence’, ‘the value of the jury’, ‘the presumption of innocence’, can be sharpened by a consideration of legal theorising.

The study of jurisprudence should enlarge one’s perception of the patterns of fact and thought from which today’s legal structures have emerged. Specifically, awareness of the evolution of legal thought provides a key to an understanding of change as a basic phenomenon of the law. It is the continuous shifting of views and the transformation of social institutions which tend to be reflected in jurisprudence – and which give rise to the deep conflicts which trouble many observers, such as Arnold. The ability to perceive a process of change beneath the apparently static processes of the law can be intensified by jurisprudential analysis. It is of interest to note the recognition of change which emerged in the decision of the House of Lords in Page v Smith(1995) and in which could be discerned a modification of views concerning nervous shock and tort – an area in which there has been much jurisprudential speculation and debate. The War Crimes Act 1991 was preceded by wide-ranging debates which turned on important aspects of legal theory, involving changing social attitudes towards crime, punishment, and retribution. A shift of emphasis in the role of foreseeability and intent in assault, which has formed the basis of much recent jurisprudential debate, was evident in the decision of the House of Lords in R v Savage (1991). Perception of the law as an aspect of a changing social environment and attitudes characterises much contemporary juristic thinking, particularly evident in cases involving ‘the right to life’: see, for example, the decision of the Court of Appeal in ReA (Children) (2000), in which the court was asked to pronounce on the lawfulness of the surgical separation of conjoined twins.

     Additionally, awareness of change and its reflection in legal theory may enable jurists to note, and perhaps warn against, the invisible, unacknowledged, yet extremely potent influence of ‘defunct scribblers’ who continue to affect the thoughts and the activities of those ‘practical persons’ who have ‘no time for theorising’. Jurists and philosophers have pointed out the significance of the paradox that those who affect to reject theory are, effectively, embracing it. The statement, ‘I don’t need any legal theory to tell me that violence can be met effectively only by a law which sanctions counter-violence’, is, in fact, the expression of a basic, complex theory. The belief, ‘You haven’t to be a theoretician to know that the law has no place in family relationships’ implies acceptance, consciously or unconsciously, of a profound analysis of functions of law. A study of the growth and social context of legal theory makes clear the relationship of theory and practice, the one modifying the other.

    The very wide range of contemporary jurisprudence has enlarged its relevance and interest. The days when legal theory was equated with an implied rejection of the significance of ‘problems of the real world’ have gone. The figure of the jurist as a recluse, uninterested in law in action, is now seen as mere caricature. Modern jurists include many who demonstrate a profound concern for social justice and communal harmony – this is obvious in the writings of contemporary American legal theoreticians. Dworkin, for example, argues cogently that the real purpose of the law can be found in the aim of ensuring that a community acts towards all its members in a ‘coherent, principled fashion’. Rawls proposes acceptance of a public conception of justice which must constitute the fundamental character of any well-ordered human association. Nozick lays stress on the importance of using principles of justice so as to clarify problems inherent in the holding and transferring of society’s resources. It may be that a pattern of concern has now emerged in which the responsibilities of the law, its theoreticians and practitioners, are clearly emphasised, a pattern which is in clear contrast to the implications of Arnold’s perception of a ‘chaotic’ jurisprudence.

Where jurists survey the established socio-legal order, their jurisprudential analysis is often of significance for students of the law who are a part of that order, and whose perceptions of law as an instrument of social policy are thereby challenged. One type of perception relates generally to the relationship between jurisprudence and other disciplines. Because modern jurisprudence ranges very widely over society and because it builds some of its theoretical framework on material derived from contact with other disciplines, students are brought to an awareness of the interdependence of all social studies and to acceptance of the complex nature of their own place within the social framework – a positive step which belies the negative nature of Arnold’s comment.

     The role of the lawyer within our society – and it is that to which many law students aspire – is the subject of continuing analysis by jurists, with the result that the very rationale of the legal profession in the Western world has become a matter of debate and can no longer be taken for granted – a valuable event in itself. Thus, Luban has investigated facets of the role of the lawyer as ‘partisan advocate’ – a creature of the common law adversarial system. He believes that the standard view of the role of the lawyer, based on principles of ‘partnership and non-accountability’ in some respects, may no longer be acceptable to society save in a highly qualified form. He calls for a more intensive debate on professional ethics as they relate to the individual conscience and socio-legal institutions and suggests that the lawyer acts as a ‘broker of the conspiracy at the Centre of the legal system’ – a conspiracy between citizens and legal institutions, each acting within defined areas so as to maximize power. Jurisprudential analysis of this nature is thought provoking and valuable.

     Perhaps the most important product of a study of jurisprudence emerges in an enhanced ability to discern the shape of legal things to come, albeit in shadowy and inchoate form. The attitudes of today’s legal theoreticians in relation to matters such as mens rea, causation, the concept of economic loss in tort, the basis of property rights, and the nature of parental responsibility, might mark tomorrow’s ideologies and legal structures. A study of the modes of thought of contemporary jurists contemplating ‘the destination of the law’ cannot but be advantageous to those who have an interest in the future of society and the law.

     None of these comments should be taken, however, as denying the existence of trivial, often worthless, theorising in the name of jurisprudence. Feinberg’s objections to ‘portentous and hoary figures from the past’ being paraded, each with an odd vocabulary, and a host of dogmatic assertions, to the confusion of students, are not to be ignored. These objections may add weight to Arnold’s complaint. But interest in the past for its own sake has little appeal to lawyers or students. ‘Jurisprudence for its own sake’ is now almost a meaningless slogan. Jurisprudence has changed its objectives and its methodology. The search for justice in human relationships, the search for certainty in the law and the continuous probing of the role of the State in the recognition, promulgation, and enforcement of human rights are rarely absent from legal theorising. The result is a challenging of entrenched positions and narrow certainties, and a questioning of the hitherto unquestionable. This is, indeed, a sign of ‘conflict’; but it is also a sign of vitality.

    When Stone wrote of the science of jurisprudence as ‘the lawyer’s extraversion ... the light derived from present knowledge in disciplines other than the law’, he acknowledged the structures of legal theory as being linked totally with other studies, thus proclaiming the relevance of jurisprudence to life in general and everyday law in particular.

In that sense, a study of jurisprudence can be valuable in that it ensures perceptions of the law in the setting of a comprehensible, changing world. At times, these perceptions will appear, in Arnold’s words, as ‘a troubling mass of conflicting ideas’, chaotic and often contradictory. But this is not necessarily a negative or undesirable state of affairs, for it is in the attempted resolution of apparent contradictions that the study of jurisprudence can be advanced.