Abstract:

Jurisprudence comes from the Latin word ‘jurisprudentia’ which means the knowledge of law. The earliest definition of this term was provided by Bentham and AustinThe scope of jurisprudence has widened manifold since then and now it encompasses the entire gamut of law, not just positive laws. Jurisprudence is a subject whose knowledge is the basis and the foundation of the whole legal studies. It is the study of the fundamental principles of law. This article aims at providing the detailed study of the meaning and nature of jurisprudence , it also elucidates the classical Hindu school of jurisprudence.

Keywords: Jurisprudence, law, judiciary, rights.

Introduction:

Jurisprudence helps a person to understand the deeper meaning of the law. Jurisprudence is an integral part of the law which is based on theories and various analysis. Jurisprudence talks about the relationship of law with other social sciences, society, man and nature.

Meaning :

The word JURIS means law and PRUDENTIA mean skill or knowledge, thus, it tells us the knowledge of law and its applicability. It covers the whole body of legal principles in the world how laws were made and have its roots in jurisprudence.

Jurisprudence is the mother of all legal science.

We all know that law being a dynamic concept keeps on changing with the evolution of society, changes taking place in the society, how law will have its effect on the changing society.

Jurisprudence appears to be in a generic sense include the study of various facets of law. Jurisprudence is the combination of general principles upon which the actual rules of law are based. Jurisprudence imparts us the knowledge about law.

Jurisprudence-Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.

-Most of our law has been taken from Common Law System.

-Bentham is known as Father of Jurisprudence. Austin took his work further.

Bentham was the first one to analyze what is law. He divided his study into two parts:

1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.

2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.

However, Austin stuck to the idea that law is command of sovereign. The structure of English Legal System remained with the formal analysis of law (Expositorial) and never became what it ought to be (Censorial).

J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s extraversion. He further said that it is a lawyer’s examination of the percept, ideas and techniques of law in the light derived from present knowledge in disciplines other than the law.

Thus, we see that there can be no goodness or badness in law. Law is made by the State so there could be nothing good or bad about it. Jurisprudence is nothing but the science of law.

Contents Of Jurisprudence:

There are many views regarding the contents of jurisprudence. But the generally accepted one are sources, legal concepts and legal theory forms the main premises of the study of jurisprudence.

SOURCES: – it is well known that sources are the basic features of a legal system which are mainly founded on the authoritative sources and the nature and the working of legal authority behind these sources.
Under this head subject such as custom, legislation, precedent as a source of law, pros and cons of codification of laws, reasoning and judicial interpretation and its method, inquiry into the administration of justice etc., are included under this head for study of jurisprudence.

LEGAL CONCEPTS:– analysis of legal concepts such as property, rights, ownership, possession, obligation, acts, negligence, legal personality and many other related issues. Jurisprudence tries to bring a comprehensive picture of these concepts as they are studied particularly in ordinary branches of law but as they are studied and have function in several branches of law it tries to bring comprehensive data as a whole.

LEGAL THEORY:- it also constitutes one of the most important components of jurisprudence. Legal theory is mainly concerned with the law as it is and exists and functions in the society and the manner in which the law is created and enforced as it also influence the social opinion and law on each other.
Legal theory tries to co-relate the law with the branches or disciplines such as religion, philosophy, ethics, politics, etc.

Nature of Jurisprudence:

Jurisprudence in its nature is entirely a difference subject from other social science.  The reason for this is that it is not codified but a growing and dynamic subject having no limitation on itself.  Its inquiry system is of different status from other subjects.  Every jurist does not base his study on the rules made but tries to understand their utility after due deliberation. Thus the jurisprudence has no limited scope being a growing subject. There is difference of opinion about the nature of jurisprudence.  It is called both art and science.  But to call it science would be more proper and useful. The reasons for this is that just as in science we draw conclusions after Making a systematic study by investing new methods.  In the same way jurisprudence is concerned with the fundamental principles of law systematic and scientific study their methods.

Law can never be static. Law has to keep changing according to the developments in society. In the same manner, the scope of the law also cannot be static.

The views of Austin and Salmond on the study and nature of law –

Austin says that law is the aggregate of the rules set by men as political superiors or sovereign to men as politically subject. According to him, Law is the command of the sovereign. He further said that there are three elements in law-

a) command

b) duty

c) sanction

But, Salmond defined law as the body of principles and applied by the State in the administration of justice.

Holland regarded jurisprudence as the formal science of favorable laws. He called the law an analytical science and not a material science.

Classical School Of Jurisprudence (Hindu):

Hindu jurisprudence developed as the civilization incorporated peoples wholesale be it in South East Asia, the Himalayan regions, India’s pre-colonial North East and the deep south. These newly inducted communities introduced newer practices. The legal framework adapted to historical, political, economic and social changes. Medieval commentators re-interpreted legal statutes to keep pace with newer contexts. Legal codes were revised due to the influence of regional custom. Numerous interpolations, recasts and additions are seen in the Manu Sanhita itself. Hindu law is a complex and dynamic code open to changing needs and imperatives.

However, its coherent theoretical parameters reconcile evolving circumstances with the basic principles of law. Hindu jurisprudence originates from community, not a state polity. In this way, particular groups of society began to gain influence in the creation and administration of law. Primary corporate groups, Kingships, and Brahmins were the factions, which conveyed Hindu jurisprudence in practice. Corporate groups were responsible for legislating law through the conception of social norms kingships were responsible for the administration of punishment and the worldly Hindu system; and Brahmins were responsible for ritual, penance, and the maintenance of a spiritual Hindu system.

Dharma of the Castes:

 I. Brahmin

a. Six occupations – teaching and studying the Veda, offering and officiating at sacrifices, giving and accepting gifts.

II. Kṣatriya

 a. three occupations – studying the Veda, offering sacrifices, and giving gifts.

 b. special dharmas -Rājadharma, the dharma of a ruler.

1. Protection of the people.

2. Promulgation of the law of castes and life-stages.

 3. Punishment of the wicked (MDh 7.14-31; YS 1.338, 354-359)

 4. Adjudication of disputes

III. Vaiśya

a. Three occupations – studying the Veda, offering sacrifices, and giving gifts

 b. special dharma

 1. Trade

2. Animal husbandry

 3. Agriculture

 IV. Sudra

a. Service of all three classes.

Judicial practices of Classical Hindu Law

The Brahmin was an integral part of the administration of classical Hindu law. For Gautama, the Brahmins and the king sustain the divine order of the world, the Brahmins with their council and the king by punishment. In this way, dharma cannot come to fruition without the two castes’ cooperation. The Brahmin's opinion is the only counterbalance to the king's authority in society, and because of this, the texts say that the king cannot make a decision without the advice of a Brahmin. For this reason, Brahmins have a right to participate in the court of justice. Additionally, when a king cannot preside over a case himself, a Brahmin must be appointed to take his place. The Brahmin not only gives advice on the administration of justice but also in affairs of the state. "Brahmin is master when the question is one of ritual and of penance. But his scope extends in reality over all the field of royal activity, as much on its political side as on its religious”. The superiority of the Brahmin is not attached to their birth (Varna) but to the fact that they are devoted to the study of the Veda, and thus are qualified to instruct other people. Because of this devotion to the Veda, the Brahmin is more closely in line with the divine than the king. Thus, Gautama says, the king is the master of all with the exception of the Brahmin. Such high ranking in the classical Hindu law system is apparent in that Brahmin's are exempt from taxes, and may own land (something that is reserved for only kings and Brahmins. There are no references of judicial procedure in early Vedic times but there was a frequent mention of the term rita implying that there was a divine cosmic order by which the universe was regulated. The idea of Dharma seems to have developed from Rita, since Dharma later became the word commonly used in ancient India to designate law. The Rig Veda provides little evidence of civil law. In ancient India Dharma had a religious basis and was enforced by religious threat. It changed not by the will of the king but the evolution of social custom usages and practices. During the Brahman period, the process of giving punishments to culprits was formed and for this reason law-assistants were appointed. The full Judicial procedure came into light during the composition of the Dharmaśāstras and Smritis. King figures appeared as the highest judicial authority with a network of courts established under him. The courts consisted of ten members King, Pravivaka, the Sabhyas, the Ganika (accountant), the Lekhaka (Clerk) and court inspector

1 Kings at the center of the court, facing the east- Sabhyas and Pradvivka on his right facing the north side, bench clerk on the left accountant opposite the bench clerk facing west. The King acted as the supreme judge and had the final decision issued under his signature and seal.

 2 Pradvivakas and Sabhyas- assist the king in arriving at the truth and giving correct judgment.

3 Sabhyas seven, five or three in number—selected for their knowledge of the law and they had to advise the king on laws applicable to the case. Including only the people well versed in the Vedic lore and civil law.

4 Bench clerk wrote down the pleading made orally in the case.

 5 Accountant made calculation of money involved in the suits.

6 Sadhyapala preserved the order in the court, execute its decrees and see to the attendance of parties and witnesses.

The decision of a case in ancient India was based on eight sources according to brahmanical law givers. These sources are the three Pramanas (possession, documents, and witnesses) logical inference, the usages of the country, sapathas (oaths and ordeals), the king’s edict and admission of the litigants. If there were cases where no possessions, documents and recourse can be provided the decision of the King became the ultimate authority.

Four parts of a trial—

1 Pratijna - plaint or complaint

2 Uttaram - answer of written statement

3 Kriya - Trial

4 Nirnaya- Decision according to Yajnavalkya

Ordeal

Ordeals also referred to as Divya were divine methods of proof. They decided what cannot be or is not to be decided by human means of proof. The general rule stated by Yājñavalkya, Narada, Brahaspati, Katyayana is that ordeals are to be retorted to only if there is no human evidence or circumstantial evidence available. Different kinds of ordeals are mentioned at different places, Manu gives only two ordeals i.e. holding of fire and plunging in water. Yet Yājñavalkya

and Vishnu give a list of five, namely balance, fire, water, poison, consecrate water. Narada gives seven different types of ordeals, i.e. ordeal by balance, fire, water, poison, libration, rice, hot piece of gold. Though there has been evidence found that shows the practice of only two ordeals i.e. ordeal by rice and ordeal by sacred libation. They show up in the sources from ancient Kashmir. In the final decisions by the King human modes of proof ruled over divine modes of proof. Ordeals were only used in extraordinary circumstances. There are also more restrictions on who can perform what type of ordeal. Ordeals were generally performed in the presence of King, the judge, learned Brahmans and the public. The place and time where the ordeals could be performed also held importance. They were usually administered either at dawn or in the forenoon or sometimes even late at night. Sunday was the preferred day to administer them. They usually took place at places like temple, royal gate, public place where four roads meet and the hall of justice. The chief judge by the order of the King had to conduct all the rites like a sacrificial priest. The chief judge and the Sodhya had to take religious dips, observe a fast and convoke all deities.

 Four major ordeals are:

1 Ordeal of balance (Tula, Dhata)-mostly given to women, minors and old or disabled people. The person performing the ordeal was twice weighed on a balance. If the person weighed lighter than the previous weight they were considered innocent; if they were heavier the second time they were considered guilty.

2 Ordeal of fire (Agni) - A hot ball of iron had to be carried across a certain distance in the palm of the hand using pipul leaves. If the hand did not end up getting burnt the person was declared innocent. If the hand was burnt the person was found guilty.

3 Ordeal of water (Salila)-The person had to dive into a river and keep themselves under water, while at the same time an arrow was also shot into the water and was brought back by a fleet runner. If the person stayed under water till that time and no body part was visible then the person was considered innocent. If the person floated back up again before the arrow was retrieved or a body part other than the top of the head became visible the person was found guilty.

4 Ordeal of Poison (Visa)-the person had to take a certain quantity of poison and was monitored for any reactions for a certain time period. If there was no visible effect of the poison the person was considered innocent.

Other types of ordeals included ordeals mentioned in the Smritis like the ordeal of sacred libation in which an image of a deity was washed in holy water and the accused had to drink that water. If within a certain time period a misfortune occurred in his life he was found to be guilty. Ordeal of rice grains, ordeal of heated piece of gold, ordeal by ploughshare, ordeal by lot also existed within various texts. Ordeals played a significant part in the judicial administration of ancient India, even though they were not really rational and couldn’t really detect guilt. As pointed out in Medhatithi ordeals were like magic and were meant to scare the guilty party and come out with the truth.

Oaths

Oaths are an affirmation of truth which can be liable to punishment for perjury if the statement given turns out to be false. Manu recommended that when human proofs failed Sapatha or oath could be applied in search of the truth According to the Smriti oaths were intended to be used in simple cases, while ordeals were used only in serious cases. A person making an oath was to swear on his near and dear ones. He might touch the head or feet of a Brahman or his wife or his son, or the feet of an image of a deity or take sacred grass or sesamum, silver, gold, earth, fire, water according as the value of the disputed property. The waiting period on the oaths was one, three, five or more days depending on the nature of the accusation. There is a great amount of sanctity attached to Oaths as explained in Manu that if a man swears on an oath falsely even in a small matter will be lost in this world as well as the next.