INCEPTION OF JURISPRUDENCE

Jurisprudence is the philosophy of law. In other words, it seeks to explain what law is about in the most general way. Etymologically, the word ‘jurisprudence’ is the English derivation of the Latin word ‘jurisprudentia’ which means the study, knowledge or skill with regards to the law. It discusses law in the most general way e.g. what is law, what is its purpose, how it originated, how does it develop, what are its basic concepts and structure, what is its relation with other social phenomena like the economy, the social system, etc. 

The study of jurisprudence as separate branch of knowledge started with the Romans. For them, jurisprudence meant ‘knowledge of law’. But in modern sense this meaning is too vague and general. Though the Romans in practice never confused law with morality or religion, in theory this distinction is hardly found to be in existence in earlier times. The definition and concept of jurisprudence by Roman jurists may appear to be vague and inadequate in the modern sense of the term, but the credit of recognizing jurisprudence as an independent branch of legal science for the first time goes to the Roman legal philosophers, which eventually paved way to development of the subject in the present form.

The Indian jurisprudence is as old as humanity itself; there is no founder of it other than the Creator itself. It owes its origin to ancient concept of Dharma which was considered to be best way to discipline one’s mind. The practice of Dharma enabled citizens to inculcate the sense of discipline in conducting themselves in the society. This eventually brought about peace and prosperity in the society. According to Dr. Kane, the concept of dharma passed through several transitions over the years and in the modern context it signifies privileges, duties and obligations of a man, his standard of conduct as a member of the society.

However, with the passage of time and changes in the socio-political conditions of India due to the influence of Mughals and later British rule, “the ancient Hindu law which at one time governed the entire gamut of human activity-civil, criminal and miscellaneous, was modified, supplemented and finally superseded by various legislative enactments”. Thus the Hindu law which was at one time revealed to have a divine origin being a part of dharma, has now become “man-made” law and therefore has lost its divinity which the religion still retains, though the distortions therein have reduced it to a mere farce and tool for hoodwinking and playing with the sentiments of the masses by those who are the helm of the religious affairs. It is an irony of fate that dharma, which is as old as humanity itself and of which law proper has been only a part and parcel, has lost all its credence and glory and its is now being increasingly used as a means to accomplish the selfish ends of those who are in power rather than as an instrument to secure even-handed justice to the people of India.

However, with the march of time and progress of Indian society, concept of law and therefore, of jurisprudence has changed radically. India is now a sovereign socialist secular democratic republic. Democracy presupposes government of the people, by the people and for the people, and therefore, citizens are expected to be self restrained and self disciplined. They should also be conscious of their rights and duties. Law played a significant role in sustaining a stable social order. India being a welfare state, a new Indian jurisprudence needs to be developed so as to ensure that law becomes an effective instrument of social change in various facet of Indian life. It has to play the functional role of harmonizing the conflicting interest if individuals in the society by maintaining equilibrium between the freedoms of individuals on the one hand and social welfare on the other.

The modern law and legal philosophy does not touch the morality or the religion. But the dharma of the ancient Indian legal system comprised all the three, namely law, morality and religion within its ambit. This is evinced by the fact Sadachar laid greater stress on morality then law. The element of religion was conspicuously present in the dharma because of its emphasis not only in noble feeling or intentions but in both noble motive and action. Thus religion as a part of dharma meant by what is approved by conscience of virtuous men who are free from hatred and worldly temptations. Religion therefore, consisted in both noble motive and action because noble feeling precedes noble action. In other words, former is the cause and the latter is the effect. For example, to help the poor and needy or attending to the sick and diseased persons are no doubt noble but that should be achieved in a noble way either by sacrifice of personal comforts or personal money but if it is done by robbing others or exploiting others, it would be contrary to dharma.  

The modern conception of Indian law is based on the notion of reasonableness. Though morality and reasonableness appear to be identical concepts, all that are reasonable need to be necessarily moral. For example, in the Bearer Bond’s case, the law in question, namely, the Special Bearer Bonds (Immunities & Exemptions) Act, 1981 was challenged on the ground of immortality as it extended immunity to tax-evaders and hoarders of black money but the Supreme Court by majority of 4: 1 upheld the validity of the Act on the ground of reasonability because it was enacted to unearth black money which was an ‘obstinate economic problem’ and other efforts having failed. The Apex court took a positivist view and observed that ‘Law is Law’ and, therefore, immunity to black-money hoarders by itself could not be ground of constitutional challenges under Article 14 of the Constitution.

The study of the evolution of ancient Indian law and jurisprudential philosophy would reveal the conception of justice in the form of Dharma governed the communal life with a view to safeguarding the common interests of the people. As rightly pointed out by S. Vardhachariar, there appears to have been a logical order in the historical evolution of the ancient legal system in which desire for justice and respect for law were greatly influenced by the public opinion. Kohler also believed that the essential element of law in ancient Indian was not that it should lead to objectively right results, but that society should recognize the domain of the law in administration of justice.

As the time advanced, there was a radical change in social conditions and human behavior which resulted in shift of trend and jurisprudence come to be envisaged in a broader perspective.

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