Vol XV A QUEST FOR AN IDENTITY 362

ject as jurtsprudentra-. In the present day jurists often distinguish

between four forms of jurisprudence" The first and the most prevalent
form of jurisprudence seeks to analyze, explain. classify, and criti-
cize entire bodies of law. Law school textbooks and legal encyclope-
dias represent this type of scholarship. The second type of Jurispru-
dence compares and contrasts law with other fields of knowledge
such as literature. economics. religion, and the social sciences. The
third type of jurisprudence seeks to reveal the historical, moral, and
cultural basis of a particular legal concept The fourth body of juris-
prudence focuses on finding the answer to such abstract questions
as : What is law? How do judges decide cases? Other branches of
substantive law, for example, tell us how rights and duties are ac-
quired, whereas jurisprudence would inquire into things such as what
are rights and duties? How do they work? Trying to ascertain whether
jurisprudence is a science or a philosophy of law would be an exer-
cise in the fourth category
2. Now we may turn to a few definitions. The celebrated Roman
. jurist Ulpian looked at jurisprudence as the "concept of things divine
and human. the knowledge of what is right andwrong." However it is
contended that this definition is too wide and may well apply to such
SUbjects as religion, ethics etc Besides it has even been suggested
tha this particular way of looking at jurisprudence was onlya piece of
rhetoric and not prusued by the Romans at a11
5
.
3. The definition of jurisprudence as provided in Black's Diction-
ary runs along the following lines: ,. Jurisprudence is the philosophy
of Jaw, or the science which treats of the principles of positive law
and legal relations." This particular definition uses both "philosophy"
as well as "science" in its approach to define". It may be noted that it
falls within the scope of this paper to determine whether jurispru-
denceis a science or a philosophy of law. However definitions are
5 Id.
6 With regard to definitions It has been observed by Professor Kenny that "they
belong rather to the end of our knowledge tnan ~ o the 'beginning of It"
363 CENTRAL INDIA LAW OUARTERLY 2002
always an abstraction. that is they are selective and do not Include
everything They represent a model, an approximation to the detail of
the subject matter". A particular way of looking at the law may well
produce one particular answer but at the same time there might be
an equal plausibility of a different answer being produced with a dif-
ferent perception Every jurist would have his own notion of the sub-
ject-matter and limits of Jurisprudence and his approach would be
governed by his allegiances and his iceoloqy". In essence there can-
not be one 'supremely useful' definition" However, a distinction can
be drawn between two kinds of definitions: the first consist of those
which merely Identify the material for the purpose of examination.
and the second consist of those which organize the completed study
. and come before the logical unfolding of the patterns implicit in them".
The definition of jurisprudence as provided in Black's Dictionary would
tend to fall with in the former category with the material for study be-
ing determmed. that is to try and a n s w e ~ how jurisprudence is a sci-
ence ora philosophy or both. There can be no exhaustive definition of .
jurisprudence". Julius Stone has well summed up the situation by
looking at Jurisprudence as: "The lawyer's extraversion. It IS the law-
yer's examination of the precepts, ideals, and techniques of the law
in the light derived from present knowledge in disciplines other than
the taw"." Thus it would be necessary to go beyond mere definitions
in order to understand the true nature of "jurisprudence" by seeing It
7 Julius Stone. Legal System and Lawyers' Reasonings (New Delhi Universal
Law Publishing Co 1999) at 53 55. The author says that definitions are
mnemonics for clanficatron With elucidation ot follow or summation mnemonics
recalling what has already been expounded In either case they are not defini-
tive
8. De nnis Lloyd's Introduction to Jurisprudence (M D.A Freeman ed . 5" ed ..
Londor Stevens & Sons. 1985) at 1
9 Supra not" 3 at 10
10. Supra note 3 at 11
11 Jurisprudence IS concerned With the nature of law. its functions. the means by
which it performs these functions the limits of law. the relation of law to
justice and morality. the mides by which law changes and develops. and more:
See 13 Encyclopedia Britanruca 149 (1965)
12 Supra IiGte 7 at 16
Vol XV .
A QUEST FOR Ar-.'CENTITY 364
in the light of the characteristics of science and philosophy of law
The Nature of Science &Jurisprudence
4. Science is understood as any system of knowledge that is con-
cerned with the physical world and its phenomena and that entails
unbiased observations and systematic experimentation':'. In general,
a science involves a prusuit of knowledge covering general truths or
~ h e operations of fundamental laws. The nature of scientific inquiry
has been described thus by an eminent scholar: "a systematic ex-
planation of facts, by ascertaining the conditions and consequences
of events, by exhibiting the logical relations of propositions to one
another ... " 14 Any general proposition that is of scientific interest is
said to have a material aspect'S It can be explained as the corre-
spondence or non-correspondence with facts, i.e., with what actually
happens to exist The material aspect of a propostion set apart for
scientific treatment is simply its truth or falsehood as a matter of
fact Thus the propostion that "Cattle chew cud" is true, because
they do in all observed cases. However, the proposition that "Drag-
ons breathe fire" is false as there are no dragons in reality At this
juncture another point with regard to scientific propostions needsto
be looked at There are said to exist two natural types of propostions
which together embrace all possible propostions: 16
(i) Categorical Propositions: Such and such is the case in re
13. Britannica Encyclopedia Co .. "Science" hltp/lwwwbritannica com/ebl
articleeu=68002.htm (November 1, 2001)
14. W. Friedmann, legal Theory (5th ed.. New York: Columbia University Press.
1967) at 48.
15. A D. Ritchie. Scientific Method (New York. Harcourt. Brace & Co. 1923) as
cited in Jerome Hall. Reedings in Jurisprudence (New Y o r ~ ~ The Bobbs- Merrill
Co Inc. 1938) at 644
16. Cassius J Keyser. "On the Study of legal SCience". 38 Yale Law Journal 413
(1929) as Cited in Jerome Hall. Readings In Jurisprudence (New York' The
Bobbs-Merrill Co. Inc. 1938) at 648. Corresponding to these two propositions
there also exist two great question types which together embrace all possible
questions'
365 CENTRAL INDIA LAW QUARTfRLY 2002
sponse to questions relating to the actual world.
(ii) Hypothetical Propositions: If such and such things supposed
were true, then of logical necessity such and such other things
would also be so, in response to questions about the possible
world. According to Keyser science is the "enterprise having
its aim to establish categorical propositions", with observation
being the ultimate test in every case, while mathematics is the
"enterprise having for its aim to establish hypothetical
propostions" and logical deduction is the ultimate test in every
case.
5. Jurisprudence is often referred to as the science of law. Hol-
land is in fact of the opinion that it is a complete science and that ~ t
cannot admit of any classifications being made into particular and
general. For him a science" is a system of generalizaions which,
though they may be derived from observations extending over a lim-
ited area will nevertheless hold good everywhere, assuming the sub-
ject matter of the science possess the same characteristics." 17 In
the nineteenth century due to its remarkable achievements in the
areas of theoretical knowledge and technology, science was reaised
to a pedestal of great prestige. Most fields of study, in wake .of the
developments felt a need to organize themselves on a scientific foot-
ing so as to move in the direction Of progress to which science
pojnted
18
. As a consequence in Lloyd's opinion it was hardly surpris-
(i) Questions regarding the make-up of the actual world (Eg. - ~ e s t i o n s of
the type: What is the velocity of light? What is the shape of the earth ?etc.) .
(ii) Questions regarding the make-up of the world of possibility. (E.g. - QUes-
tions of the type' If the temperature were set to 40 C, then would Ethinol
react with Plutonium to give Ventrinol ?)
17.lnfra.note 20. at 5. One may study botany or geology by observation of Indian
plants 0 Indian rock strata, but this does not mean that there is any such sc ce
'as Indian botany or In a n geology as-distinct from English botany OJ geology.
18. Dennis Lloyd, The Idea of Law (Middlesex :Penguin Books, 1991) at 105. The
author points out that many significantdeveJopments in landscape painting
were stimulated by similar objectives. FOJ example. John Constable, tried by
the direct study of nature to transfer to his canvases a truly realist and scien-
tiflcInte rpretation of what he beheld He urged, in 1836. that painting is a
science and should be prusued as an inquiry into the laws of nature
Vol XV
AQUEST FOR AN IDENTITY 366
ing that in an age when science was acquiring so much of prestige,
that jurists were persuaded to believe that legal theory could also be
developed along scientific lines Bentham pointed in this direction by
demonstrating the way in which the principle of utility could be devel-
oped in a scientific spirit and applied to the problems of criminology
and of criminal and civil law. John Austin's work dealing with 'the
science of positive law' also resulted in a distinction being made be-
tween positive law (man made law-as it actually is) and law as it
ought to be. Only the former constituted the SUbject matter of the
science while the latter was to be investigated not by the jurist but by
the theologian or the student of ethics 19. In the words of Moyle "the
end of jurisprudence is in general the same as that of all science, a
complete grasp, a systematic penetration of its subject-matter, the
power of following the most general propositions into their minutest
ramifications, and inversely of ascending from the most concrete case,
through all intermediatestages of thought to the principle which gov-.
ems it. ":<0 One question that has however arisen is whether the sys-
tem of inquiry of science as applied in the case of natural sciences
(which study the matter and phenomenon and their behaviour in the
world around us and based on cause and effect relationships) can be
applied in the case of a social science (those concerned with the
patterns of human behaviour and their interactions in society) - law
21
The scope of study of both forms of science has been growing over
time with the natural sciences covering a wider area and the social
19. Ibid at 108. Austing distinguished between analytical and normative [unspru-
dence. The former is concerned With" the logical analysis of the basic con"
cepts that ..arise in the law - duty, responsibility, negligence, the concept of
law itself etc. while the latter is concerned with rational criticism and evatuatin
of legal practices which often has a moral content.
20, Introduction to the Institutes of Justinian as cited in K. Krishnamenon. Outlines
of Jurisprudence (3'
d
ed., Mumbai : Ashish Publishing House, 1961) at 1. The
author says that when we refer to a jurist. we imply that his knowledge IS of
a special kind. comprehensive and such as to enable him to formulate general
truths, or in other words the knowledge is scientific
21 "Jurisprudenc was the first of the social sciences to be born", said Wuzrel
See R.W.M Dias: Jurisprudence (5" ed.. New Delhi. Aditya Books Pvt. Ltd
1994) at 1
367 CENTRAL INDIA LAW QUARTERLY 2002
sciences developing in the wake of societies becoming more com-
plex. Friedmann. points out that it had been a fundamental tenet of
the various neo-Kantian schools of thought to distinguish between
the scientific methods of the natural sciences and the social sci-
ences. kant himself had made a distinction between: man as a part
of nature (and to that extent subject to the laws of causation), and
man as a reasonable being which regulated conduct by imperatives
of purpose." But the neo-Kantians applied the scientific method not
just to the theory of knowledge (the perception and the ordering of
phenomenon outside the human being) as Kant had done, but even to
the whole of the human nature in its various manifestations. Thus as
a consequence a methodological separation occurred of the natural
sciences (governed by causality in the natural phenomenon) with the
social sciences (manifestation of human volition or purpose in man's
social organization experessing itself in ethics, law, history etc.)>
6. Langdell however is of the view that law is a science and ad-
mits that it is one of the greatest and most difficult of sciences: and
that well-equipped university is the true place for teaching and learn-
ing that science." Thus in essence he inculcates the idea that the
law library is the proper workshop of professors and students alike.
As a consequence and analogy IS capable of being drawn between:
what law libraries mean to law students and what laboratories are to
the chemists and the physicists, the museum of natural history to
the zoologists, the botanical garden to the botanists and the like. In
the realm of science and mathematics progress to a large extent can
be attributed to the increasing generalization, that has united branches
of study distinct. In law too generalizations have meant
22. "Supra note 14, at 49.
23. Supra note 14. at 49 Neo-Kantian legal philosophers such as Del Vecchio.
Stammler etc. despite their differences share the basic assumption that law is
a normative not a natural science .
24 C.C. Langdell. "Harvard Celebration Speeches", 3 The Law Quarterly Review
123 (1887) as cited in Jerome Hall, Readings in JUrisprudence (New York: The
Bobbs - Merrill Co. Inc. 1938) at 645.
-
...
Vol XV
A QUEST FOR AN IDENTITY
improvement. The English law of negligence for instance developed
from a host of individual rules about particular types of situtation to a
general principle."
7. One of the characteristics of the modern development of scien-
tific knowledge has been its inter-mingling and interaction with other
disciplines and othe theoretical conceptions In the past the interinsic
links between the sciences were very weak and there was hardly any
inter-penetration. But now two-branch and even multi-branch sciences
have formed due to the same object being studied simultaneously by
different sciences combined in one whole (e.g. molecular biology,
mathematical economics etc. ).26 Kerimov in the context observes that
the general theory of law (which he refers to as a branch of scientific
knowledge), which had traditionally remained isolated and not inter-
acted much with other social, natural and applied sciences,could
not afford to do so anymore "as that would only slow 'down the
progress of the science of law."27The interface of law and other sci-
ences would bring in new and original trends and disciplines such as:
economic law, criminology, concrete sociological studies of legal
events etc. The scientific method of examining facts is not peculiar
to one class of phenomena or workers. It would be a fallacy to believe
that the scientific frame of mind is reserved for the professional sci-
entist. 28 Pearson says that the peculiarity of the scientific method
lies in the fact that once it becomes a habit of mind, the the mind
converts all facts into science. As a consequence the field of sci-
ence becomes endless encompassing most if not all fields.
25. Infra note33, at 4.
26. Dzhangir Kerimov, Methodology of Law (Moscow: Progress Publishers, 1989)
27. Alienation of the science of alw would lead to its exclusion from the compre-
hensive study of social beings and prevent it from using the theroretical and
methodological achievements of othe sciences in the legal sphere of public
life.
28. Karl Pearson, The Grammar of Science (3'"ed., London: Adam & Charles
Black, 1911) as cited in Jerome Hall. Readins in Jurisprudence (New York. Teh
Bobbs-Merrill Co 1938) at 675.
369 CENTRAL INDIA LAW QUARTERLY 2002
The 'search for "truth" also involves the scientific method."
Samuel Mermin says that when one is absolutely convinced ("soul-
satisfied) about a theory and legal philosophy to account for the
"deeper reality"beyond ephemeral statues and opinions of particular
time and place, then there is nothing to stop an individual from adopt-
ing that "private truth". But for that truth to be accepted in common
by all, it has to pass the standards of observation and experience,
experiment and logical reasoninq.all pivotal to the scientific method.
Acording to Mermin the preferability of the scientific method lies in
the fact that with all the uncertainties abounding around it, it has
worked more successfully than any other for understanding and con-
trolling the non-human world.
Philosophy & Jurisprudence
8. By philosophy (from Greek, by'way of Latin, "philosophia", "love
of wisdom") we mean the critical examination of the grounds for fun-
damental beliefs and an analysis of the basic concepts employed in
the expression of such beliefs." Philosophical inquiry has had a major
role to paly in the intellectual history of civilization. The realm of
jurisprudence shares a certain relationship with philosophy.
Jurisprudental writings are concerned with disquisitions about law
rather than expositions of law. It s u ~ g e s t s thought about thought. 31
29. Infra note 32, at 46. In this context Karl Pearson has observed: "There is no
short-cut to truth; no way to gain a knowledge of the universe except through
the gateway of scientific method." Pearson further clarifies this notion of a
method. The law of gravity existed much before Newton was born. It was by
way of an invention of a method that he mentally conceptualised the concept
of gravity and gave scientific form to it. The statement of the formula was not
so much a matter of discovery as it was of the creation of the law of gravity.
Thus law in the scientific sense is essentially a product of the creative human
mind and has no meaning apart from man.
30. "Philosophy", 9 The New Encyclopaedia Britannica (15
th
ed., Chicago: Britannica
Corp., 1976) at 338.
31. Accerdinq to Collingwood 'Philosophy' can be called thought of the second
degree. Philosophy is reflective. For example, to discover the distance of the
earth from the sun is a task for thought of the first degree, in the particular
case for astronomy, however to discover what it is exactly that we are doing
when we discover the distance of the earth from the sun is a task for thought
Vol XV A QUEST FO'RAN IDENTITY 370
Thoughts about law according to Dias consists of ever-changing ideas
and outlooks, and developments that take place in the contemporary
physical, moral and other areas, making it difficult to decide how
these should be taken into account. Jurisprudence improves the use
of law by accumulating insights from different branches: criminal,
constritutional etc., in the solution to problems. Jurisprudence may
also draw in method and content from other disciplines such as soci-
ology, anthropology, philosophy etc. In this sense it performs an in-
tegrative function". For one of the tasks of jurisprudence is to link
law with other disciplines and so to help locate it within its wider
social context. 33
9. According to Collingwood when philosophy of something is re-
ferred to (say of art, religion, law etc.) then the indication is towards
a body of thoughts that arise when we think about that thing. He
mentions two conditions for thoughts to be philosophical: first, they'
must be universal and second they must be necessary. Thus thoughts
can not claim to be the philosophy of a subject unless they arise
universally and necessarily in the mind of everyone who thinks about
the subject." As a result of these two conditions a fortuitous asso-
ciation of ideas, for instance associating framed canvasses with the
thought of art, cannot be philosophy, Collingwood distinguishes be-
tween philosophical thoughts and those that are scientific. he opines
of the second degree, thought about thought. See R. G. Collingwood, The Idea
of History (Oxford:OUP, 1994) at 1. However Marx's criticism of the philoso-
pher's function runs along the following lines: " What the philosophers do is to
describe the world; the point is to change it."
32. Samuel 39, 40 (1950). The Study of Jurisprudence : A Letter to a Hostile
Student", 49 (1) Michigan Law Review 39, 40 (1950). The author mentions a
nation-while survey of the American Philosophical Association in the late 1940s
of opinion in various fields of endeavor, on the role of philosophy on education
and modern life. which found this function to be a distinctive and vital one.
33. P. J. Fitzgerald, Salmond on Jurisprudence (12
t h
ed. Mumbai : N. M. Trfpathi Pvt.
Ltd .. 1966) at 3 In analyzing legal concepts we must try to present them
against a backdrop of changing social, economic and political developments
and attitutdes.
34 R. G. Collingwood. The Idea of History (Oxford. OUP, 1994) at 335.
373 CENTRAL INDIA LAW QUARTERLY 2002
and continuous lines equidistant from a central point. Thus concept
existed prior to any drawinq of the circle by anyone and would have
still existed if none had been drawn. It is something that is a philo-
sophic reality - a true absolute and something that eternally 'is' 44.
11. Jean Wahl said of fhe problem of philosophy: "We mustbe
both conscious of what great thinkers have accomplished, and also
eager to find elsewehre a more adequate and richer version of reality.
We must be familiar with them, bear them in mind, and salute them,
before bidding them a respectful adieu. We must not forget them." 45
Thus in philosophy a trade - off is to be done between keeping in
mind the achievements of the past in the subject and moving on the
looking for newer explanations. Julius Stone is of the opinion that if
this attitude of philosophers towards their predecessors is correct
then it is also correct for jurisprudens towards theirs. In Stone's opin-
ion the cross-relations between philosophy and jurisprudence are of
a complex nature. very often the same problem does arise in both the
disciplines (for instance the relation between values and the facts of
existence ). When this happens, Jurisprudence, in Stone's opinion
must tackle them as philosophy must. However he does point out in
-therrns of a warning that most of the problems of jurisprudence are in
substance are in substance different from those of philosophy as the
subject-matter of jurisprudence in large parts is at variance from tra-
ditional philosophical thought and with a subject as varied and dy-
namic as jurisprudence no jurist can pruport to bring it entirely within
one particular philosophical tradltlcn ." Thus there might be
(" .
overlappings at places. 47 Besides it may often happen that matters
45. Supra note 7, at 7.
46. Supra note 7, at. Radbruch said: "only with a bad conscience can a jurispru-
dent be a systematic philosopher." Thus it would be only an attempt on the part
of the jurist to deceive (if others atleast himself) if he claims the sphere of
jurisprudence would fit in within a praticular leaning of philosophy.
47. Dworkin suggests in the context: "The philosophy of law studies philosophi-
cal problems raised by the existence and practice of law. It has no central
core of philosophical problems distinct to itself, as other branches of philoso-
phy do. but overlaps most of these other branches See R. M. Dworkin, "Intro-
duction". The Philosophy of Law (R M. Dworkin ed .. Oxford: OUP, 1977) at 1.
VOl XV A QUEST FOR ANmENTITY 374
on which philosophers may have something to sawhich is of juris-
prudential concern may often be incidental to the gneral philosophi-
cal concern of the philosophers. Another aspecbf philosophy on
which Stone dwells is the fact that there is no !Bce for "isms" in
philosophy (as Gilbert Ryle has written in the eviliof "Taking Sides
in Philosophy"). Alleged party issues are never pHosophical and to
s,ay that one is a disciple of so-and-so would mea that person pre-
fers to shut his eyes to all doctrines and problemsave those of so-
and-so. Stone finds such partisan thinking deplorble and endorses
the open-minded approach which is willing to acept meaningful
insights from any stream of thought flowing into prsent knowledge.
This position stands true for jurisprudential probleis also and it can
not afford to end up taking sides in philosophy".
Concluding Remarks
12. We have seen that there can never be any ne way of looking
at 'Jurisprudence'. No accurate single definition en ever be made
possible. Thus we proceeded to see jurisprudencen the light of sci-
ence and philosphy. It may even be remembered iat jurisprudence
is often defined as the science or philosophy of lev. The choice be-
tween a philosophy or a science of alwis to a lare extent however
only a matter of terminology. Philosophy was one the fashionable
word (at that time phusics was known as 'naturaphilosopby'). but
since the time science has gained an exalted pice, a number of
studies and disciplines beyond the physical scieces have sought
"shelter under the protective umbrella of science."
13. It is difficult to decide whether jurlsprudenctis only a science
or a philosophy exclusively. In fact it is like havilg to answer the
question "what is law?" Different people have diftrent approaches
and accordingly they either see it as a science or rphilosophy. Hav-
ing seen jurisprudence in the light of the charactEistics of science
48 Supra note 7, at 9.
49. Supra note 8. at 16.
(