A Quest for an Identity

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    ject as jurtsprudentra-. In the present day jur ists often distinguishbetween four forms of jurisprudence" The first and the most prevalentform of jur isprudence seeks to analyze, explain. classify, and cri ti cize entire bodies of law. Law school textbooks and legal encyclopedias represent this type of scholarship. The second type of Jurisprudence compares and contrasts law with other fie lds of knowledgesuch as l iterature. economics. rel igion, and the social sciences. Thethird type of jurisprudence seeks to reveal the historical, moral, andcultural basis of a part icular legal concept The fourth body of jur isprudence focuses on f inding the answer to such abstract quest ionsas : What is law? How do judges decide cases? Other branches ofsubstant ive law, for example, tell us how rights and dut ies are acquired, whereas jurisprudence would inquire into things such as whatare rights and duties? How do they work? Trying to ascertain whetherjur isprudence is a science or a philosophy of law would be an exercise in the fourth category2. Now we may turn to a few definitions. The celebrated Roman.jurist Ulpian looked at jurisprudence as the "concept of things divineand human. the knowledge of what is r ight andwrong." However it iscontended that this def init ion is too wide and may well apply to suchSUbjects as rel igion, ethics etc Besides it has even been suggestedtha this particular way of looking at jurisprudence was onlya piece ofrhetoric and not prusued by the Romans at a115.3. The definition o f jur isprudence as provided in Black's Dictionary runs along the fol lowing lines: ,. Jurisprudence is the philosophyof Jaw, or the science which treats of the princ ip les of positi ve lawand legal relations." This particular definition uses both "philosophy"as well as "science" in its approach to define". It may be noted that itfal ls within the scope of this paper to determine whether jur isprudenceis a science or a philosophy of law. However definit ions are5 Id.6 With regard to definitions It has been observed by Professor Kenny that "they

    belong rather to the end of our knowledge tnan ~ the 'beginning of It"

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    always an abstraction. that is they are selective and do not Includeeverything They represent a model, an approximation to the detail ofthe subject matter". A par ticu lar way of look ing at the law may wellproduce one part icular answer but at the same t ime there might bean equal plausibil ity of a dif ferent answer being produced with a dif -ferent percept ion Every jur ist would have his own not ion of the sub-ject-matter and l imits of Jurisprudence and his approach would begoverned by his allegiances and his iceoloqy". In essence there can-not be one 'supremely useful' definit ion" However, a distinction canbe drawn between two kinds of def init ions: the fi rst consist of thosewhich merely Ident ify the mater ial 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 wouldtend 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 definit ion of .jurisprudence". Julius Stone has well summed up the situation bylooking at Jurisprudence as: "The lawyer's extraversion. It IS the law-yer 's examination of the precepts, ideals, and techniques of the lawin the l ight derived from present knowledge in discipl ines other thanthe taw"." Thus it would be necessary to go beyond mere definit ionsin order to understand the true nature of "jurisprudence" by seeing It7 Julius Stone. Legal System and Lawyers ' Reasonings (New Delhi Unive rsal

    Law Publishing Co 1999) at 53 55. The author says that definit ions aremnemonics for clanficatron With elucidation ot follow or summation mnemonicsrecalling what has already been expounded In either case they are not definitive

    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 1010. Supra note 3 at 1111 Jurisprudence IS concerned With the nature of law. its functions. the means by

    which it performs these funct ions the limits of law. the relation of law tojustice and morali ty. the mides by which law changes and develops. and more:See 13 Encyclopedia Britanruca 149 (1965)

    12 Supra IiGte 7 at 16

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    in the light of the characteristics of science and philosophy of lawThe Nature of Science & Jurisprudence4. Science is understood as any system of knowledge that is concerned with the physical world and its phenomena and that entailsunbiased observations and systematic experimentation':'. In general,a science involves a prusuit of knowledge covering general truths or~ h operations of fundamental laws. The nature of scientific inquiryhas been descr ibed thus by an eminent scholar: "a systematic explanation of facts, by ascertaining the conditions and consequencesof events, by exhibi ting the logical relat ions of proposi tions to oneanother ..." 14 Any general proposition that is of scientific interest issaid to have a material aspect'S It can be explained as the correspondence or non-correspondence with facts, i.e., with what actuallyhappens to exist The material aspect of a propost ion set apart forscienti fic treatment is simply its truth or falsehood as a matter offact Thus the propostion that "Catt le chew cud" is t rue, becausethey do in all observed cases. However, the proposition that "Dragons breathe fire" is false as there are no dragons in reality At thisjuncture another point with regard to scientific propostions needstobe looked at There are said to exist two natural types of propostionswhich together embrace all possible propostions: 16(i) Categor ical Proposit ions: Such and such is the case in re13. 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. R it chie. Scientific Method (New York. Harcourt. Brace & Co . 1923) asc ited in Jerome Hal l. Reedings in Jurisprudence (New Y o r ~ ~ The Bobbs- Merril lCo Inc. 1938) at 64416. Cassius J Keyser. "On the Study of legal SCience". 38 Yale Law Journal 413(1929) as Cited in Jerome Hall . Readings I n Jurisprudence (New York' The

    Bobbs-Merrill Co. Inc. 1938) at 648. Corresponding to these two propositionsthere also exist two great quest ion types which together embrace all possiblequestions'

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    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 thingswould also be so, in response to questions about the possibleworld. According to Keyser science is the "enterprise havingits aim to establish categorical propositions", with observationbeing the ultimate test in every case, while mathematics is the"enterprise having for its aim to establish hypotheticalpropostions" and logical deduction is the ultimate test in everycase.

    5. Jurisprudence is often referred to as the science of law. Holland is in fact of the opinion that it is a complete science and that ~ cannot admit of any classif ications being made into particular andgeneral. For him a science" is a system of general izaions which,though they may be derived from observations extending over a limited area will nevertheless hold good everywhere, assuming the subject matter of the science possess the same characteristics." 17 Inthe nineteenth century due to its remarkable achievements in theareas of theoretical knowledge and technology, science was reaisedto a pedestal of great prestige. Most fields of study, in wake .of thedevelopments felt a need to organize themselves on a scientific footing so as to move in the direction Of progress to which sciencepojnted 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 ofthe type: What is the velocity of l ight? What is the shape of the earth ?etc.) .(ii) Questions regarding the make-up of the world of possib il ity. (E.g. - QUest ions of the type' I f the temperature were set to 40 C, then would Ethinolreact with Plutonium to give Ventrinol ?)

    17.lnfra.note 20. at 5. One may study botany or geology by observat ion of Indianplants 0 Indian rock st rata, but this does not mean that there is any such sc ce'as Ind ian 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. Theauthor points out that many significantdeveJopments in landscape painting

    were stimulated by similar objectives. FOJ example. John Constable, tried bythe direct study of nature to transfer to his canvases a tru ly realist and scient i f lcInte rpretation of what he beheld He urged, in 1836. that painting is ascience and should be prusued as an inqui ry into the laws of nature

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    ing that in an age when science was acquiring so much of prestige,that jurists were persuaded to believe that legal theory could also bedeveloped along scientific lines Bentham pointed in this direction bydemonstrating the way in which the principle of utility could be developed in a scientific spirit and applied to the problems of criminologyand of criminal and civil law. John Austin's work dealing with 'thescience of positive law' also resulted in a distinction being made between positive law (man made law-as it actually is) and law as itought to be. Only the former constituted the SUbject matter of thescience while the latter was to be investigated not by the jurist but bythe theologian or the student of ethics 19. In the words of Moyle "theend of jurisprudence is in general the same as that of all science, acomplete grasp, a systematic penetration of its subject-matter, thepower of following the most general propositions into their minutestramifications, and inversely of ascending from the most concrete case,through all intermediatestages of thought to the principle which gov-.ems it. ":

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    sciences developing in the wake of societies becoming more complex. Friedmann.points out that it had been a fundamental tenet ofthe various neo-Kantian schools of thought to distinguish betweenthe sc ienti fic methods of the natural sc iences and the social sciences. kant himself had made a distinction between: man as a partof nature (and to that extent sub ject to the laws of causation) , andman as a reasonable being which regulated conduct by imperativesof purpose." But the neo-Kantians applied the scientific method notjust to the theory of knowledge (the percept ion and the order ing ofphenomenon outside the human being) as Kant had done, but even tothe whole of the human nature in its various manifestations. Thus asa consequence a methodological separation occurred of the naturalsciences (governed by causality in the natural phenomenon) with thesocial sciences (manifestation of human volition or purpose in man'ssocial organization experessing itself in ethics, law, history etc.)>6. Langdell however is of the view that law is a science and admits that it is one of the greatest and most difficult of sciences: andthat well-equipped university is the true place for teaching and learning that science." Thus in essence he inculcates the idea that thelaw library is the proper workshop of professors and students alike.As a consequencean d analogy IS capable of being drawn between:what law libraries mean to law students and what laboratories are tothe chemists and the physicists, the museum of natural h istory tothe zoologists, the botanical garden to the botanists and the like. Inthe realm of science and mathematics progress to a large extent canbe attributed to the increasing generalization, that has united branchesof study p r ~ v i o u s l y distinct. In law too general izat ions have meant22. "Supra note 14, at 49.23. Supra note 14. at 49 Neo-Kantian legal philosophers such as Del Vecchio.

    Stammler etc. despite their di fferences share the basic assumption that law isa normative not a natural science .24 C.C. Langdel l. "Harvard Celebration Speeches", 3 Th e La w Quarterly Review

    123 (1887) as cited in Jerome Hall, Readings in JUrisprudence (New York: TheBobbs - Merrill Co. Inc. 1938) at 645.-...

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    improvement. The English law of negligence for instance developedfrom a host of individual rules about particular types of situtation to ageneral principle."7. One of the characterist ics of the modern development of scientif ic knowledge has been its inter-mingling and interaction with otherdisciplines and othe theoretical conceptions In the past the interinsicl inks between the sciences were very weak and there was hardly anyinter-penetration. But now two-branch and even multi-branch scienceshave formed due to the same object being studied simultaneously bydif ferent sciences combined in one whole (e.g. molecular biology,mathematical economics etc. ).26 Kerimov in the context observes thatthe general theory of law (which he refers to as a branch of scienti ficknowledge), which had traditionally remained isolated and not interacted much with other social , natural and applied sciences,couldnot afford to do so anymore "as that would only slow 'down theprogress of the science of law."27The interface of law and other sciences would bring in new and original trends and discipl ines such as:economic law, criminology, concrete sociological studies of legalevents etc. The scienti fic method of examining facts is not pecul iarto one class of phenomena or workers. It would be a fallacy to believethat the scienti fic frame of mind is reserved for the professional scientist. 28 Pearson says that the pecul iari ty of the scienti fic methodlies in the fact that once it becomes a habit of mind, the the mindconver ts all facts into science. As a consequence the field of science becomes endless encompassing most if not all f ields.25. Inf ra note33, at 4.26. Dzhangir Kerimov, Methodology of Law (Moscow: Progress Publishers, 1989)27. Ali enati on of the sci ence of alw would lead to its exclusion from the comprehensive s tudy of soc ia l beings and prevent it from using the therore ti ca l andmethodological achievements of othe sciences in the legal sphere of publiclife.28. Karl Pearson, The Grammar of Science (3 '"ed. , London: Adam & Charles

    Black, 1911) as cited in Jerome Hall. Readins in Jurisprudence (New York. TehBobbs-Merr il l Co 1938) at 675.

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    The 'search for "truth" also involves the scienti fic method."Samuel Mermin says that when one is absolutely convinced ("soulsat is fied) about a theory and legal philosophy to account for the"deeper reality"beyond ephemeral statues and opinions of particulartime and place, then there is nothing to stop an individual from adopting that "private truth". But for that truth to be accepted in commonby all, it has to pass the standards of observation and exper ience,experiment and logical reasoninq.all pivotal to the scientific method.Acording to Mermin the preferabi li ty of the scienti fic method l ies inthe fact that with all the uncertainties abounding around it, it hasworked more successfully than any other for understanding and controlling the non-human world.Philosophy & Jurisprudence8. By phi losophy (from Greek, by'way of Latin, "phi losophia", "loveof wisdom") we mean the critical examination of the grounds for fundamental beliefs and an analysis of the basic concepts employed inthe expression of such beliefs." Philosophical inquiry has had a majorrole to paly in the intellectual history of civilization. The realm ofjurisprudence shares a certain relationship with philosophy.Jurisprudental writings are concerned with disquisit ions about lawrather than exposit ions of law. It s u ~ g e s t s thought about thought. 3129. Infra note 32, at 46. In this context Karl Pearson has observed: "There is noshor t-cut to t ruth; no way to gain a knowledge of the universe except throughthe gateway of scientific method." Pearson further clar if ies this not ion of amethod. The law of gravi ty existed much before Newton was born. It was byway of an invention of a method that he mentally conceptualised the conceptof gravi ty and gave scientific form to it. The s ta tement of the formula was notso much a mat ter of di scovery as it was of the creation of the law of gravit y.Thus law in the scienti fic sense is essential ly a product of the creat ive humanmind and has no meaning apart from man.30. "Philosophy", 9 The New Encyclopaedia Britannica (15th ed., Chicago: BritannicaCorp., 1976) at 338.31. Accerd inq to Col lingwood 'Ph ilosophy ' can be called thought of the seconddegree. Phi losophy is ref lect ive. For example, to discover the dis tance of the

    earth from the sun is a task for thought of the first degree, in the part icu larcase for astronomy, however to d iscover what it is exact ly that we are doingwhen we discover the distance of the earth from the sun is a task for thought

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    Thoughts about law according to Dias consists of ever-changing ideas and outlooks, and developments that take place in the contemporaryphysical, moral and other areas, making it d if ficul t to decide howthese should be taken into account. Jurisprudence improves the useof law by accumulat ing insights from dif ferent branches: criminal,constritutional etc., in the solution to problems. Jurisprudence mayalso draw in method and content from other discipl ines such as sociology, anthropology, philosophy etc. In this sense it performs an integrative function". For one of the tasks of jur isprudence is to linklaw with o ther disciplines and so to help locate it within its widersocial context. 339. According to Coll ingwood when phi losophy of something is referred to (say of art, rel igion, law etc.) then the indication is towardsa body of thoughts that arise when we think about that thing. Hementions two conditions for thoughts to be philosophical: first, they'must be universal and second they must be necessary. Thus thoughtscan not claim to be the philosophy of a subject unless they ariseuniversally and necessarily in the mind of everyone who thinks aboutthe subject." As a resul t of these two conditions a fortuitous association of ideas, for instance associating framed canvasses with thethought of art, cannot be philosophy, Collingwood distinguishes between philosophical thoughts and those that are scientific. he opines

    of the second degree, thought about thought. See R. G. Col lingwood, The Ideaof His to ry (Oxford:OUP, 1994) at 1. However Marx's c ri ti ci sm of the philoso-pher's function runs along the fol lowing lines: " What the phi losophers do is todescribe the wor ld ; the point is to change it."32. Samuel 39, 40 (1950). The Study of Jurisprudence : A Letter to a HostileStudent ", 49 (1) M ichigan Law Review 39, 40 (1950). The author mentions anation-while survey of the American Phi losophical Association in the late 1940sof opinion in var ious f ie lds of endeavor, on the role of phi losophy on educationand modern life. which found thi s funct ion to be a d is ti nc ti ve and vi ta l one.

    33. P.J. Fitzgerald, Salmond on Jurisprudence (12 th ed. Mumba i : N. M. Trfpathi Pvt.Ltd .. 1966) at 3 In analyzing legal concepts we must try to present themagainst a backdrop of changing social, economic and political developmentsand attitutdes.34 R. G. Col li ngwood . The Idea of His to ry (Oxford. OUP, 1994) at 335.

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    and continuous l ines equidistant from a central point. Thus conceptexisted prior to any drawinq of the c irc le by anyone and would havestill exis ted if none had been drawn. It is something that is a philo sophic reality - a t rue absolute and something that eternally ' is' 44.11. Jean Wahl said of fhe problem of philosophy: "We mustbeboth conscious of what great thinkers have accomplished, and alsoeager 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 respect ful adieu. We must not forget them." 45Thus in philosophy a trade - of f is to be done between keeping inmind the achievements of the past in the sub jec t and mov ing on thelooking for newer explanations. Jul ius Stone is of the opinion that ifthis att itude of philosophers towards their predecessors is correctthen it is also correct for jurisprudens towards theirs. In Stone's opinion the cross-relations between philosophy and jurisprudence are ofa complex nature. very often the same problem does arise in both thedisciplines (for instance the relation between values and the facts ofexistence ). When this happens, Jur isprudence, in Stone's opinionmust tackle them as phi losophy must. However he does point out in-therrns of a warning that most of the problems of jur isprudence are insubstance are in substance different from those of phi losophy as thesubject-matter of jurisprudence in large parts is at var iance from traditional philosophical thought and with a subject as varied and dynamic as jurisprudence no jurist can pruport to bring it entirely withinone part icu lar phi losophical t radl tlcn . " Thus there might be( " .overlappings at places. 47 Besides it may often happen that matters45. 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 partof the jurist to deceive (if others atleast himself) if he claims the sphere ofjurisprudence would fit in within a praticular leaning of philosophy.

    47. Dworkin suggests in the context: "The philosophy of law studies philosophical problems raised by the existence and practice of law. It has no centralcore of philosophical problems dist inct to i tsel f, as other branches of philosophy do. but overlaps most of these other branches SeeR. M. Dwork in, "Introduction". The Philosophy of Law (R M. Dworkin ed.. Oxford: OUP, 1977) at 1.

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    on which philosophers may have something to sawhich is of jurisprudential concern may often be incidental to the gneral philosophical concern of the phi losophers. Another aspecbf philosophy onwhich Stone dwells is the fact that there is no !Bce for "isms" inphilosophy (as Gilbert Ryle has written in the eviliof "Taking Sidesin Philosophy"). Alleged party issues are never pHosophical and tos,ay that one is a disciple of so-and-so would mea that person prefers to shut his eyes to all doctr ines and problemsave those of soand-so. Stone finds such partisan thinking deplorble and endorsesthe open-minded approach which is willing to acept meaningfu linsights from any stream of thought flowing into prsent knowledge.This position stands true for jurisprudential probleis also and it cannot afford to end up tak ing sides in philosophy".Concluding Remarks12. We have seen that there can never be any ne way of lookingat 'Jurisprudence' . No accurate single def init ion en ever be madepossible. Thus we proceeded to see jurisprudencen the light of science and philosphy. It may even be remembered ia t jurisprudenceis often def ined as the science or phi losophy of lev. The choice between a phi losophy or a science of alwis to a lare extent howeveronly a matter of terminology. Philosophy was one the fashionableword (at that t ime phusics was known as 'naturaphilosopby'). butsince the time science has gained an exalted pice, a number ofstudies and discipl ines beyond the physical scieces have sought"shelter under the protective umbrella of science."13. It is difficult to decide whether jurlsprudenctis only a scienceor a philosophy exclusively. In fact it is like havilg to answer thequestion "what is law?" Different people have diftrent approachesand accordingly they either see it as a science or rphilosophy. Having seen jurisprudence in the light of the charactEistics of science48 Supra note 7, at 9.49. Supra note 8. at 16.

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    (