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jurisprudence:formal-science-of-positive-law

Jurisprudence: Formal Science of Positive Law

According to Prof. Holland, “jurisprudence is a formal or analytical science, as opposed to material one and deals rather with the various relations which are regulated by legal rules than with the rules themselves which regulate those relations.”

Holland defines jurisprudence as “the formal science of positive law”. It is wrongly applied to actual system of law, or to current views of laws, or to suggestions for its amendment, but is the name of a science. The science is a formal, or analytical, rather than a material one. It is the science of actual or positive law.

Jurisprudence belongs to formal science

According to Holland, jurisprudence is a formal science rather than a material one. It deals more with the form and outer (but fundamental) aspect, rather than with the matter and contents of law. It concerns itself with basic ideas and fundamental principles of various systems of law rather than with laws themselves.

In the words of Holland, “It deals rather with the various relations which are regulated by legal rules than with the rules themselves which regulate those relations.”

Thus, it deals only with the formal constituents and fundamental conceptions of law and not with its actual material content and the detailed rules. Therefore, jurisprudence is not a material science, but formal one.

Jurisprudence is a science and not an art

A systematic and formulated knowledge is called science. Since the ideas, principles and conceptions underlying various systems of law and dealt within jurisprudence form a systematized branch of learning, jurisprudence is a science. Moreover, jurisprudence does not concern itself with any particular system of law, prevailing in a particular State.

According to Paton, “jurisprudence is a particular method of study, not of law of one country, but of the general notion of law itself.” Clark calls jurisprudence as “the science of law in general.” According to Stammler, a naturalist also, “jurisprudence is formal science.” And this formal science is of positive law.

Positive law

Positive law is a general rule of external human action enforced by a sovereign political authority. Jurisprudence is not a science of legal relations a priori, as they might have been, or should have been, but is abstracted a posteriori from such relations as have been clothed with a legal character in actual systems, that is to say from law which has actually been imposed, or positive law. Thus, jurisprudence is a progressive science. Its generalizations must keep pace with the movement of systems of actual law. Hence, for Holland, jurisprudence concerns itself only with this positive law.

Criticism

Prof. Gray criticizes Holland’s definition as being too narrow and cryptic. He observes that an attempt to construct, quite apart from all the matter of law, even the most general conception of ownership or contract would be like trying to make bricks, not merely without straw, but without clay as well.

According to Prof. Gray; Jurisprudence is, in truth, no more a formal science than physiology. As bones, muscles and nerves are the subject matter of physiology, so the acts and forbearance of men and the events, which happen to them, are the subject matter of jurisprudence; and physiology could as well dispense with the former as jurisprudence with the latter.

Finally, Prof. Gray observes, “jurisprudence stands for the scientific treatment of law and it is not desirable that its natural meaning should be limited and restricted in the manner it has been done by Prof. Holland.“

According to Prof. Adamsonthe notion of form and formal relations are by no means so simple and free from ambiguity that by their aid one can at once solve a complicated problem of philosophic arrangement.“

Dr. Edward Jenks objects to Holland’s definition of jurisprudence as a purely formal science. He observes, “It is not a formal science unless the word ‘formal’ be used in a strained and artificial sense.” It is true that a jurist can only recognize a law by its form; for it is form, which causes the manifold matter of the phenomenon to be perceived. However, the jurist, having got the form as it were on the operating table, has to dissect it and ascertain its meaning. He concludes by observing that “to say that jurisprudence is concerned only with forms, is to degrade it from the rank of science to that of a craft.”

Jurisprudence is a science of civil law

Holland’s definition of jurisprudence as “the formal science of positive law” is not open to any serious objection. In the words of Salmond, using the word science in its widest possible sense, as including the systematized knowledge of any subject of inquiry, “jurisprudence is a science of civil law.” The subject of its inquiry is relations of men living in a society clothed with a legal character. Such relations of men are governed by the rules, which have actually been imposed by common consent of the organized community and enforced by its courts. In this sense, jurisprudence is a science of positive law.

Jurisprudence is again a formal science of positive law, inasmuch as it deals with the various relations, which are regulated by legal rules than with the rules themselves, which regulate those relations. It is not the material science of those portions of the law, which various nations have in common, but the formal science of those relations of mankind which are generally recognized as having legal consequences.

The criticisms appear to be based on the view that Dr. Holland gave no place whatever to the matter of law. The subject matter of law is certainly relevant and may be important in the first stage, but the material aspect does not form the be-all and end all of jurisprudence. Without its formal and analytical aspect, jurisprudence will be reduced to a number of facts heaped together. Therefore, the truth lies, not in denying one or the other, but in giving both the matter and the form, their due. In order to give a wider meaning to the definition, it would be better to define jurisprudence as a ‘science’ without putting any qualifying epithet before the word ‘science’.

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.


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Created on 2021/03/30 16:28 by LawPage • Last modified on 2021/04/09 22:12 (external edit)