PublicationsWhat is the meaning of Jurisprudence in Law ?

May 28, 20210
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Introduction

Law is a subject that can be construed as having several layers of meanings and connotations. This leads to numerous permutations and combinations in defining it as per inclination. This is precisely what lawyers do and are expected to do in the court of law. The first basic meaning of the law is what we have generally known as jurisprudence. In the name of tracing the history of a concerned question of law, the legal fraternity often misinterprets it as jurisprudence. So the differentiation between the jurisprudence of law and legislative intent and judicial establishment of law should be established wisely. In order to understand the difference, we must erode the surface of law and dive deep to fully understand the meaning of Jurisprudence in Law.

Jurisprudence as a word has been adopted from the Latin word “Jurisprudentia” which means knowledge of Law. While trying to understand what is jurisprudence, one needs to acknowledge that there is no set definition of jurisprudence but only interpretations for the sake of application? Seldom, there are theories on the interpretations of various methods of interpretation of the law. Austin was the first among other legal scholars to give jurisprudence a skeleton for the purpose of clarity among the masses, he associated the characterization of jurisprudence with Positive law i.e. law as it is and further to explain and bridge the gap between the jurisprudence of law in terms of positivism and natural law.[1]Many theorists and scholars have dwelled and delved into giving jurisprudence a definition but it shall be understood that it cannot be defined as it is not a formula-based solution but a purposeful array open to further alterations and challenges.

Perspective of Jurisprudence

Statutes, amendments, and case laws are a part of jurisprudence, it helps to determine the evolution of law in society. However, developments in law cannot be said to be jurisprudence of law. For the purpose of better understanding, let’s take into account arguably the most historic judgment of the last decade, Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors[2] which has set a tone of equality in its truest sense. The judgement has decriminalized homosexuality in India, upholding the spirits of fundamental rights and pronouncing section 377 of the Indian Penal Code, 1860 (hereinafter referred as IPC) as unconstitutional. The first plea for decriminalizing homosexuality in Indian jurisdiction can be seen in 2009 when an NGO had filed a PIL seeking equal status under Article 14 and 21 of the Constitution of India, Naz Foundations vs. Government NCT of Delhi[3]the PIL had been dismissed on the grounds of violation of section 377 of the IPC, 1860.

Theoretical Application of Jurisprudence

Hart and Devlin Debate, in the 19th century Wolfenden Committee had to prepare a report on the issue of legalizing homosexuality and prostitution. The debate had been around two integral components of the integrity of the law, namely, Freedom of choice and Privacy of morality.[4] Devlin stated that we live in a society and its moral fabric shall be respected and prevail over personal choice and privacy. He stated that any action which disrupts the moral conscience of the society shall not be incorporated as valid or permissible conduct. Whereas, Hart debated and coined a theory known as the “No Harm Principle” which states that if two or more reasonable, consenting adults engage in an activity in a closed room then these actions should not be subject to the scrutiny of the law. He further emphasized that such actions, when they do not affect society, should be respected as a spirit of freedom of choice.

Ever since the dawn of the common law practice in India, the topic of homosexuality had been considered taboo and illegal (until 2018). The jurisprudence of equal rights for homosexuality had been an adaptation of Devlin’s theory of Privacy of morality. The Indian legal system believed in protecting the moral fabric of society. Thus, upheld section 377 of IPC, 1860 against Article 14 and 21 in the case of Naz Foundations vs. Government NCT of Delhi[5].Almost two centuries later, the Supreme Court of India has adopted the jurisprudence of Hart’s theory of “No Harm Principle” and has decriminalized homosexuality in India. The Apex court has recognized the fundamental rights of individuals with different sexual orientations and has normalized what had been interpreted as taboo and illegal. The following example is the epitome of what is jurisprudence in law! It is conceptualizing the purpose of law with moving developments around it. Jurisprudence is not a subject of black and white but rather creating theories. Jurisprudence aims to take into account all the factors such as, sociological, economic, or financial to construct a theory, which may or may not be utilized by the legislators while framing the law, or a lawyer corroborating his/her/their claims in a court of law, or a judge while interpreting laws.

Conclusively, one cannot define jurisprudence but define its meaning in law. It is the mere construction of a theory based on conceptual explanations and empirical explanations. Statutes, amendments, and case laws are a part of jurisprudence but cumulatively are not jurisprudence. It is to be noted that the subject of jurisprudence is inseparable from law and thus a necessity for a holistic understanding of the law at large.

REFERENCES

[1]Halpin, A. (2011). AUSTIN’S METHODOLOGY? HIS BEQUEST TO JURISPRUDENCE. The Cambridge Law Journal, 70(1), 175-202. http://www.jstor.org/stable/41300948

[2] AIR 2018 SC 4321.

[3]160 (2009) DLT 277.

[4]Feinberg, J. (1987). Some Unswept Debris from the Hart-Devlin Debate. Synthese, 72(2), 249-275. http://www.jstor.org/stable/20116426.

[5] Supra Citation no. 3.

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