Useful Notes on the Divisions of the “Science of Jurisprudence”

The following are the various divisions of the science of Jurisprudence:

1. Particular and General:

Austin divides jurisprudence into particular and general jurisprudence. According to Austin, particular jurisprudence is the science of any actual system of law or of any portion of ii. The only practical jurisprudence is particular.

The proper subject of genial or universal jurisprudence is a description of such subjects and ends of law as are common to all systems, and those resemblances between different systems which are bottomed in the common nature of man, or correspond to the resembling points in these several portions.

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Salmond and Holland have both criticized this unnatural divi­sion. The former criticising general jurisprudence, observes that the team “general jurisprudence” involves the misleading suggestion that this branch of legal science is that which relates not to any single system of law, but to those conceptions and principles that are to be found in all legal systems, and which are, therefore, in this sense general.

It is true that a great part of the matter with which it is concerned is common to all mature systems of law. But it is not because of universal reception that any principles pertain to the theory or philosophy of law. Jurisprudent generalis is not the study or legal systems in general, but the study of the general or fundamental ele­ments of a particular legal system.

Holland criticisms particular jurisprudence by observing that a science is a system of generalizations which, though they may be derived from-observations extending over a limited area, will never­theless hold good everywhere.

The term is a misnomer and when the existence of a ‘particular jurisprudence’ is not admitted, the employ­ment of the opposed term ‘general jurisprudence’ becomes unneces­sary. Both expressions should be discarded, and the science, observes Holland, should be treated as incapable of being divided into these two branches.

2. Expository and Censorial:

Bentham divides jurisprudence into expository and censorial. The former ascertains what the law is and the latter what it ought to be. Expository jurisprudence is sub-di­vided into authoritative and unauthoritative, the former being derived from the legislative power while the latter means text-books on law.

Unauthoritative jurisprudence may again be either local or universal. The former consists of text-books upon the laws of any one country, while live latter consists of law works on universal jurisprudence, i.e., without reference lo any one country.

Holland ‘criticising this division’ observes that an exposition of existing law is obviously quite another thing from a science of law, and criticism upon the law with a view to his amendment are the subject not of jurisprudence but, as Bentham himself states, of the art of legislation. Jurisprudence ought, therefore, to be used without any qualifying epithet, as the name of a science.

3. Historical and Philosophical Jurisprudence:

Jurispru­dence has further been divided into historical and philosophical on the ground that judicial principles are derived from different independent sources and are not more colorless generalizations. They may ema­nate from history, when they will have historical, philosophical or ethical character.

Holland dispels the idea of division of jurisprudence into historical and philosophical on the ground that one work on jurisprudence may contain more of historical disquisition, while in another philosophical argument may predominate; but such differ­ences are incidental to the mode of treatment, and afford no ground for a division of the science itself.