Introduction
A lawless society is unimaginable as well as undesirable. It would lead to a chaotic environment due to the undue dominance of the stronger over the weaker. States across the globe, have their constitution and other substantive and procedural law. These concrete statutes are legislated keeping the societal structure as well as natural justice and international laws. Broadly, the study to understand the background, evolution, and effect of such laws can be termed as Jurisprudence. Though it has been defined by numerous scholars of different schools over a period, no consensus over a definition could’ve been made. John Salmond was one of the jurists who gave his theory on Jurisprudence.
He tried to narrow down the definition of jurisprudence by recognizing the branches of jurisprudence as civil, international, and natural jurisprudence. Even though his theory tried to ascertain the extent of jurisprudence, but somehow failed to give an accurate and scientific definition.
Though Salmond's Theory of Jurisprudence is not free of criticism, it keeps helping scholars to have a better understanding of jurisprudence in the modern time. It has served jurists in the proper interpretation of laws and to judges in providing justice.
Significance of Jurisprudence
The term “Jurisprudence” is derived from a Latin word “jurisprudentia", which means knowledge of the law, where Latin term "juris" means 'legal' and "prudentia” signifies ‘skill’ or ‘knowledge’. The definitions of "jurisprudence" given by different jurists differ due to the personal notions regarding the limitations of the subject as well as due to personal ideology and nature of society in which the jurist resided. The basic reason for such differences in theories is due to variable growth and the development of law in different countries.[1]
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Definitions:
Romans were credited for initiating the study of Jurisprudence, Roman Jurist Ulpian defined this as-"the knowledge of things divine and human, the science of just and unjust". Another Roman Paulus said-"the law is not to be derived from the rule, but the rule from the law", though the definitions were not adequate, they moved forward the idea of the independent legal study.[2]
Austin defined jurisprudence as "philosophy of positive law," which means that jurisprudence is more of a scientific study rather than moral philosophy. That is, it is study of existing laws rather than natural or moral law. He categorizes jurisprudence as general (philosophy of positive law) and Particular (science of system of a positive law) Jurisprudence. His theory was criticized by jurists like Salmond and Holland over the inappropriate categorization.[3]
Holland was an English Jurist, who defined jurisprudence as "the formal science of positive law", he believed that jurisprudence should be restricted to the basic principle behind the natural system of law. His definition was criticized by jurists like Dr. Jenks and Gray over the existing ambiguity between ‘formal science’ and ‘material science’.[4]
Keeton stated the definition as“the study and the systematic arrangement of the general principles of law”.[5]
These definitions and criticisms given by different jurists clarified that no perfect definition for jurisprudence exists and no one was able to put a definite limit on the extent of the study of Jurisprudence.
Utility:
Apart from Jurisprudence being an abstract and theoretical subject, it also serves many other purposes. It has a practical utility to increase generalization of laws, which helps in forming concepts that will serve in understanding the rationale behind complex laws. It serves as an educational purpose by providing logical analysis, which sharpens the logical understanding of the lawyer. Jurisprudence is known as "the eye of the law" because it talks about the basic principle of the law. Lastly, it also serves the jurists and judges in ascertaining the actual meaning of law passed by the legislation.[6]
Salmond’s Theory of Jurisprudence
John William Salmond (1862-1924) was a scholar born in England. He earlier worked as a barrister and solicitor of the Supreme Court of New Zealand and also as a professor and finally served as a judge in the same the Supreme Court.[7]
Salmond has explained his theory in his book "Jurisprudence or The Theory of The Law" in which he mentions "the term jurisprudence means the science of law" in its widest sense. In this, he describes three branches of Jurisprudence:[8]
- Civil jurisprudence – by this he means, law of the land, which gives the wholesome principles in the tribunals of the state;
- International Jurisprudence – this is the science of international law which deals with the rules prevails between the states; and
- Natural Jurisprudence - this is the science of natural law (Jus Naturale).
Salmond further narrowed down the definition and iterates that-"Jurisprudence as the science of civil law"; by this statement he negated the existence of the other two branches (International and Natural Jurisprudence). He gives the reasoning that whenever one speaks of Law without any qualification, he means the laws administered in tribunals of the state.[9] Similarly, when one mentions jurisprudence without any specification, it implies to Civil Jurisprudence only.[10]
He further divides the practical or concrete legal study of civil jurisprudence into three branches which were systematic, historical, and critical jurisprudence. [11]
(i) Systematic (legal exposition) deals with the present, it describes the present legal system;
(ii) Historical (legal history) deals with the past, the legal system in the process of its historical development; and
(iii) Critical (the science of legislation) deals with the ideal future, rather than focusing on the law as it is or has been, it expounds on the law it ought to be.
After narrowing jurisprudence to civil jurisprudence, Salmond proceeded to further narrow it down and said that jurisprudence doesn't include the complete civil law, rather it only includes a part of it. He mentions a division of theoretical and practical legal study of civil jurisprudence, where he only includes the theoretical part of it as a concern. He finally defines Jurisprudence as-
“It is the science of the first principles of the civil law”.
Though he denied the possibility of any kind of logical and hard line between the first principles and the rest of the portion of the legal system, Salmond has conclusively said that Jurisprudence (i) is not an elementary outline of the concrete legal system and;
(ii) is not the general jurisprudence as held by other writers.
However, Salmond has negated the complete exclusion of the historical and critical aspects, he admits that it is not possible to give an analytical picture of law after the total exclusion of historical and critical aspects.[12]
Apart from his theory, Salmond has also signified the practical utility of the subject of jurisprudence. He compared the intrinsic interest of the serious scholars of Mathematics and Jurisprudence and pointed that just like a mathematician investigates the number theory without the aim of having any practical use but by the reason of fascination, Jurisprudence has its intrinsic interest for its subject. The researches in Jurisprudence may evolve the whole political and social thought.[13]
Criticism
The major criticism of Salmond's theory of Jurisprudence was majorly based on the omission of natural jurisprudence and international jurisprudence. The rise of the functional approach and putting a constraint on the limitation of the scope of jurisprudence in not viable. He tried to demarcate the boundary of the subject but he failed to provide an accurate and scientific definition.The same words Salmond gave in his definitions could mean differently, as a result, some vague notions might end up under the ambit of Jurisprudence.[14]
Modern world relevance of Salmond’s Theories
Along with the theory defining the subject matter of Jurisprudence, many other theories were given by John Salmond for the important subject matters of the Jurisprudence.
Legislation
Salmond dissociates legislation between supreme and subordinate. He observes supreme legislation proceeds from sovereign powerin the state and cannot be repealed or controlled by any other legislative authority whereas subordinate legislation proceeds from the authority other than sovereign authority and is dependent for its existence on sovereign authority.[15]
In this regard, division of powers in India prevents the accumulation of power in the hands ofa single legislation and provides certain jurisdiction for the Central Government and the state governments.[16] Indian Constitution denies the theory partially by giving the power of revision of any legislation made by such sovereign authority to the Indian Courts, and the court has the power to nullify the complete or partial laws inconsistent with the fundamental rights.[17]
Rights and Duties
Salmond defines a right as an interest recognized and protected by the rule of right. It is any interest, respect for which is a duty, and the disregard for which is wrong.[18] The Supreme Court of India defines legal rights as follows:[19]
“In a strict sense, legal rights are correlative of legal duties and are defined as interests which the law protects by imposing corresponding duties on others. But in a generic sense, the word "right" is used to mean an immunity from the legal 'power of another immunity is exemption from the power of another in the same way as liberty is exemption from the right of another.”
Salmond defines duty as an act of which every citizen is obliged to perform in furtherance of protecting the rights of others. He considers it of two types: legal and moral.[20] Indian Constitution also includes fundamental duties of a citizen which can be termed as legal duties,[21] according to the types of duties provided by Salmond.
Even after so much criticism and development in Jurisprudence, John Salmond has maintained its significance, many a time Supreme Court Judges has quoted his theories of jurisprudence.
In a case of State of Maharashtra v. Reliance Industry Ltd.,[22]with respect to concept of ownership, it was observed:
“According to Sir John Salmond, the owner of a material object is he who owns a right to the aggregate of its use. Ownership denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons.”[23]
Similarly, in the case of Subramanian Swamy vs. Union of India, he was quoted while analyzing the ‘rule of action’ as follows:[24]
“…This arduous task of protecting the law abiding citizens and punishing the law breakers vests with the State which performs it through the instrumentality of law. It is for this reason that Salmond has defined law as a 'rule of action' regulating the conduct of individuals in society. The conducts which are prohibited by the law in force at a given time and place are known as wrongful acts or crimes, whereas those which are permissible under the law are treated as lawful. The wrongdoer committing crime is punished for his guilt under the law of crime.”
Conclusion
John Salmond has been one of the major contributors to the modern jurisprudence (after the 18th century). He was a jurist, judge as well as a professor. He gave his theory on the extent of the subject matter of Jurisprudence as well as gave his theories even in smaller matters of Jurisprudence. His theory of Jurisprudence has been criticized for being much narrow and inaccurate but he has given significant insight on different jurisprudences. Though better definitions of Jurisprudence were given by different jurists, it did not decrease the importance of Salmond's theories. Jurists, as well as judges including Deepak Mishra, while giving the judgment on the Subramanian Swamy, quoted the theory of Salmond for clarification. This in itself proves the relevance of his theories in this modern world.
By-
Adarsh Kumar
Chanakya National Law University
[1]V.D. Mahajan, Jurisprudence and Legal Theory 1, (5th Ed. 1993).
[2] Mahajan, Supra, 1.
[3] Bix, Brian, John Austin, The Stanford Encyclopedia of Philosophy (Aug. 1, 2020, 21:24),
https://plato.stanford.edu/entries/austin-john/#Bib.
[4]Mahajan, Supra, 5-8.
[5]Mahajan, Supra, 9.
[6] Mahajan, Supra, 12-15
[7] Alex Frame, Salmond, John William, Te Ara - the Encyclopedia of New Zealand (Aug. 3, 2020, 02:27)
https://teara.govt.nz/en/biographies/3s1/salmond-john-william
[8] John Salmond, Jurisprudence or The Theory of The Law,1-2 (2nd ed. 1907)
[9] Here civil law is used in the sense of the law for the people of a state, it should not be misunderstood to omit the criminal law.
[10] Salmond, Supra, 3.
[11] Salmond, Supra, 3.
[12] Salmond, Supra, 4-7.
[13] Mahajan, Supra, 12-13.
[14] Mahajan, Supra, 9.
[15] Salmond, Supra, 129.
[16] Ind. Const. art. 246.
[17] Ind. Const. art. 13.
[18] Salmond, Supra, 182.
[19]State of Rajasthan and Ors.vs. Union of India (UOI) and Ors. (06.05.1977 - SC) : MANU/SC/0370/1977.
[20] Salmond, Supra, 181.
[21] Ind. Const. art. 51A.
[22](2017) 10 SCC 713.
[23] Salmond, Jurisprudence, pp. 246-247, 12th ed., 1966.
[24](2016) 7 SCC 221.
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