I teach jurisprudence to students of law. This is one of those courses where students come with a lot of misconceptions regarding the content and purpose of the course.
A common misconception is that this course is dry and boring. Another misconception is that it is irrelevant to the practice of law and is merely concerned with philosophical enquiries suited to academics.
Although I disagree with the assertion about the dry and boring nature of jurisprudence, here I shall restrain myself to deal specifically with the second misconception related to the jurisprudence being abstract and irrelevant to practicing lawyers. I shall first briefly explain what ‘jurisprudence’ is and then explain the ‘need’ for the practitioners to study the same.
The term ‘jurisprudence’ is derived from Latin terms juris and prudentia, which conjunctively mean “the study, knowledge, or science of law.”
From a generic perspective, jurisprudence is largely concerned with questions that all students of law must grapple with, e.g. ‘What is law?’ and ‘What is justice?’ etc.
These questions are concerned with the study of the nature of law as a discipline or as a single system encompassing all the different areas of law such as corporate law and criminal law. It is this study that is largely associated with the term jurisprudence.
On the other hand, jurisprudence in the context of a specific area of law refers to the study of the evolution of that area of law. For example, the jurisprudence of property law entails study of the evolution of the concept of ‘property’ (or any other relevant concept within this area of law) from a historical and judicial perspective.
This would involve understanding ‘property’ in the light of various legislations and judicial pronouncements over a period to grasp the present understanding of the concept of property. In fact, study of any area of law, starts with an introduction to some basic concepts involved in that area.
This equips a student of law or a lawyer trying to make sense of a new area of law with the requisite knowledge, to deal with legal problems concerned with that area of law. By design, all law courses deal with the relevant jurisprudence in the initial phase.
I find that students intuitively understand the need to study jurisprudence of individual areas of law without associating it with the term jurisprudence but are largely reluctant in investing time and energy in studying jurisprudence in its commonly recognized form, as the study of the nature of law – the philosophy of law.
Now that we understand the concept of jurisprudence, let us look into the need for studying it. I will use the question ‘What is law?’ to help us understand the ‘need’ better.
The question, though simple in its formulation, demands an investigation of the concept of law on multiple fronts.
For example, what is law when seen from the perspective of ‘purpose’?
Does it have a purpose in the first place?
If yes, what is the purpose?
Law when seen from the perspective of beneficiary – who is it made for?
The citizens or the state?
Law when seen from the perspective of its content – should law be ‘moralistic’ or ‘just’?
What makes a law ‘just’?
From the perspective of the origin of law – who makes laws?
It is easy to recognize the lawmaking function of the legislature. What about the judiciary? Do public officials end up giving meaning to the letters of the law by implementing it in a particular manner?
All these questions, though very philosophical, affect our practical reality in more ways than we realize. These questions help students discover and understand the multiple facets of law such as in terms of its design as a system and its implementation as a mechanism.
It trains students to look at a given piece of legislation holistically, separate from the individual clauses in the legislation. It trains students to ask questions that are relevant in solving legal problems that do not have a simple yes or no answer. To put in lesser words, study of jurisprudence develops the ability of students to think critically.
To illustrate the critical enquiry I am talking about, let us consider the recent restrictions imposed on the public to combat the spread of COVID-19. People were asked to wear masks at all points of time for the duration they were outside their homes.
This included wearing masks while people were sitting in their personal cars used only by the members of the family. The failure to wear masks attracted a fine.
In this context, let us investigate the following question: If an individual is sitting inside her personal car with windows rolled up, should she be fined?
If your answer is ‘yes’, is it because the law clearly states so?
If that is the logic we will follow, should we never question any of the laws made by the legislature?
If you are uncomfortable with not having the right to question a law based on rationality, justice and fairness then you must also be ready to understand a law in a manner different from the command or order of the state.
If you were the lawyer arguing in favour of the fine being imposed, your argument can simply be that it was mandated by law. However, if you were arguing against the fine, a more nuanced approach would be required.
Why was this law made? – to arrest the spread of virus. But considering that the individual is alone in the car and the windows are rolled up, is there really a threat of infection from/to co-passengers?
Is this what the legislature or the concerned authority intended? Do policemen have discretion to differentiate between cases of individuals driving alone compared to driving with family members or driving passengers? How does the use of discretion by policemen shape the perception of law by the public?
In another scenario, there are family members staying in the same house who are travelling in the same car. Should they be fined for not wearing masks?
But these family members also stay in close contact with each other (without masks) at homes, should they really be bothered for not wearing masks in their personal car?
If the idea was to arrest the spread of the virus, it is not happening if family members wear masks around each other only while sitting in the car. They must do the same inside their homes as well. So why are they being stopped and fined?
Perhaps the purpose of this law is not to arrest the spread of the virus. It is to enforce a general habit of wearing masks among the public when out of home.
Thus, it makes sense to fine those individuals not wearing a mask irrespective of their windows being rolled up and their car being sanitized frequently.
But is the law being enforced uniformly in all public spaces? We often find that pedestrians who are not wearing masks are not stopped and fined by the police.
We often find that in large public gatherings organized by political leaders, individuals in the crowd as well as politicians on the stage are not wearing masks.
So, is the law really there to build a habit of wearing masks when its implementation is so selective?
Is one even obligated to follow such laws that are evidently implemented differentially?
Why are individuals obligated to follow laws irrespective of their discriminatory implementation?
Let us take another example. Recently the government has announced that digital media and OTT platforms will be regulated. But does it mean that the lawyers had no laws or previous judgments for reference in the absence of area specific regulations/laws – ‘no’.
Lawyers are trained to cull out the legal issue at the core of a legal problem at hand and use the existing jurisprudence concerned with the legal issue to resolve the legal problem.
Even in the absence of specific rules/guidelines/regulations lawyers have been using principles found in the jurisprudence of media laws (print, radio, television, and cinema) to deal with the digital media related legal problems.
In matters of regulation of media of mass communication, irrespective of the medium, there are always issues related to freedom of expression.
What holds true for freedom of expression with respect to print media is equally relevant for digital media. A lawyer who understands jurisprudence can draw these connections.
Legal problems that deal with the interpretation of constitutional provisions often require the lawyers and judges to dive deep into philosophical enquiries.
Matters involving violations of rights pose the questions of justice before the judges.
What is ‘justice’?
Should it be seen only from a social perspective?
Should economic perspective be involved as well?
Are their competing theories of justice?
Which theory suits the problem at hand?
Is it possible to choose one conception of justice over the other on case-to-case basis?
Arbitrations between corporate entities may pose challenges with respect to enforcement of arbitral awards (Tata-Docomo dispute) – whether an arbitral award arising out of a contractual obligation be enforced even when in contradiction to domestic public policy? Matters dealing with alleged unfair trade practices inevitably deal with questions of ethics and justice.
Therefore, law students must study jurisprudence to develop the ability of understanding laws in the entirety of their scheme and vision.
Legal problems are not mere problems of compliance, they are problems demanding correct interpretation and application of law.
Without jurisprudence, a lawyer may be able to identify issues relating to non-compliance of rules and regulations but not necessarily those of interpretation and application. That ability comes only through developing critical reasoning skills through study of jurisprudence.
BML Munjal University