Jurisprudence

Module 1

Meaning of Jurisprudence
The term Jurisprudence is derived from Latin word
“Jurisprudentia” which means either "knowledge of
law" or "skill of law". The word "juris" means law and
“prudentia” means knowledge, science or skill.
Jurisprudence covers the whole body of legal principles
in the world. In simple, jurisprudence is the philosophy
of law.
Definitions of Jurisprudence
Jurisprudence is defined as the study of law which
seeks to understand the creation, application, and
enforcement of laws. . It is mainly concerned with the
rules of external conduct which people are compelled to
obey.
Ulpian, a Roman Jurist, defines jurisprudence as " the
knowledge of things divine and human, the science of
just and unjust."
John Austin defines jurisprudence as "the philosophy of
positive law." He opines that the appropriate subject to
jurisprudence is a positive law, i.e., law as it is (existing
law).
Sir Thomas Erskine Holland defines jurisprudence as
"the formal science of positive law”.
Salmond defines Jurisprudence as "the science of the
first principle of the civil law."
Keeton defines jurisprudence as "the study and
systematic arrangement of the general principles of
law.”
Roscoe Pound defines law as “the science of law, using
the term law in the juridical sense, as denoting the body
of principles recognized or enforced by public and
regular tribunals in the administration of justice".
According to Dr K. C. Allen, jurisprudence is the
scientific synthesis of all the essential principles of law.
G.W. Paton says jurisprudence is a particular method of
study, not the law of one country, but of the general
notion of law itself.
Julius Stone says, "jurisprudence is the lawyer's
extraversion. It is the lawyer's examination of the
precepts, ideals and techniques of the law in the light
derived from present knowledge in disciplines other
than the law.”
Importance or Scope of Jurisprudence
1. The study of jurisprudence helps uncomplicate
some of the concepts and complexities of the legal
world.

2. It makes law more manageable and rational and

thus easier to understand.

3. This can also lead to a more effective practice of

law.

4. It covers all the concepts of human conduct.

Justice P.B. Mukherjee says “Jurisprudence is both
an intellectual and idealistic abstraction as well as
the behavioural study of man in society.

5. It also extends to anything concerning the order in

state and society.

Distinction between Jurisprudence & Legal Theory

Jurisprudence, in its simplest form, is the philosophy of law. It
includes the study and analysis of law generally, as well as its
systems, institutions, and principles. Legal theory, meanwhile,
focuses specifically on the law in practice: how it functions
and operates within societies. The term 'legal theory' has been,
for the first time, coined by W. Friedmann in 1945 in his work
'Legal Theory'
Jurisprudence is the abstract reasoning about law, while legal
theory is the concrete analysis of law. Jurists typically focus
on jurisprudence, while lawyers and philosophers of law focus
on legal theory. However, there are many overlaps between
these two disciplines.

Various Schools of Jurisprudence

Schools of jurisprudence represent the different theories
about the formation and function of laws.
1. Natural School of Jurisprudence

This school of jurisprudence represents the belief that

there are inherent laws that are common to all societies,
whether or not they are written down or officially
enacted. This school of thought tells us that law is
rational and reasonable. What the law ought to be is the
concern of the natural school of jurisprudence. Morality
plays a dominant role in natural law.

Natural law thinking has played a wide role in the

fields of ethics, politics and law since ancient times.
Jurists of different ages gave different meanings to
the term natural law. Natural law school can be
broadly divided into four classes; ancient school,
medieval school, philosophical school and modern
school.
A. Ancient School

Greek
The abstract concept of law was acknowledged in the
poems of Homer in the 8th–7th century BCE. In the
Greek histories and literature of the 6th and 5th
centuries BCE, one finds the first articulation of ideas
about law that have had enduring influence in the West:
that law was considered a kind of prohibition with
regard to what its subjects ought to do and that law was
often accompanied by at least the threat
of punishment or coercion by the state.
Herodotus: Herodotus, in his book History of
the Greco-Persian Wars, recorded a Spartan king
remarking to the king of Persia that the Greeks “are
free, yet not wholly free; law is their master, whom they
fear much more than your men fear you. They do
whatever it bids.”
Heraclitus: Heraclitus, Greek logician, pointed at the
three principles of Law of Nature, (1) destiny, (2) order
and (3) reason. He expressed that nature is definitely
not a scattered heap of things. As per him, ‘reason’ is
one of the basic components of Natural Law.
Sophocles: The great dramatist Sophocles, in his
tragedy Antigone, said that the requirements of law and
morality may conflict. In the play, King Creon orders
the body of Antigone’s brother to remain unburied as a
posthumous punishment for treason. Out of familial
duty, Antigone flouts the order and buries the body,
thereby herself risking punishment by death. She rejects
the king’s legal authority, saying that even “he could
not override the unwritten and unfailing laws given us
by the gods.”
Socrates: Socrates, who is considered to be the
father of western philosophy, believed that just like
physical law, there existed natural law. In his concept
of natural law, man has his own insight, which tells
him about those things, whether good or bad. It is
according to that insight that man is able to develop
moral values in himself. The only way to judge the
basis of law is the “insight of man”. Through his
doctrine, Socrates wanted to ensure peace and
stability in the society. The death of Socrates in 399
BCE, as reported by Plato in the Phaedo (On the Soul),
is usually attributed to poisoning with common
hemlock.

Plato: Plato, the author of the famous book Republic,

while writing about the decline of the Athenian empire,
was the first to advance philosophical claims about the
nature of law. He came with a term nomos, which refers
simply to convention or practice. During Plato’s time,
this term had acquired the more-specific sense of a
statute or a proclaimed written directive that established
a standard for human action.
In his dialogue Crito, Plato fictionally cast his
teacher, Socrates, who was sentenced to death for
“impiety and corrupting the young”. Plato made the
provocative argument, in favour of the laws of Athens,
by saying that since Socrates received the benefits and
protections of living under law for his entire life and
had never left the city out of protest, he was obligated
either to obey Athens’ laws or to persuade the State that
no such actions should not enforced against him. Plato
said that since Socrates failed at his trial, the latter must
respect the laws by obeying their commands, regardless
of their content.
Plato’s dialogue Crito was the origin of several
enduring ideas in the philosophy of law, such as law by
nature claimed authority over its subjects and that the
very relationship between law and its subjects somehow
gave rise to an obligation of obedience. Plato’s later
work Laws made scattered reference to law, but failed
to articulate a robust philosophy of law in the modern
sense.
Aristotle: A generation later, Plato’s
student Aristotle (384–322 BCE), the father of political
science, gave more-systematic expression to a number
of influential ideas about law. Aristotle, who wrote the
book Politics, famously said that humans are “political
animals,” meaning that they naturally organize
themselves into distinct sorts of communities, the
largest of which is the city or city-state (polis in Greek).
Cities are characterized by their politeia, a word that is
often translated as “constitution” but in fact refers to
any general way in which a large
human community may organize itself. Law, Aristotle
said, is “a sort of order” and thus provides
a comprehensive framework of rules and institutions
through which a society is constituted.
Law is universal: According to him, law is by nature
universal in form and it is a standard of conduct that
applies generally in respect of both the classes of
persons and the types of conduct it governs. Because of
its universal nature, a law can sometimes fail to apply,
or apply only indeterminately, to a novel case
unforeseen by the legislator.
The problem here, Aristotle said, is not in the law or in
the lack of foresight by the lawmaker, but rather in the
“nature of the case. In such cases, what is required is a
corrective exercise he called “equity,” which involves
speculating about how the deficient law would have
applied had the lawmaker considered the novel case and
then applying the law accordingly.
Rule of law: Aristotle was also the first to articulate
what has come to be known as the ideal of the rule of
law. He shared the common Greek view that, as a
general principle, law had a share in eternal divine
wisdom. As such, it was an instrument for the exercise
of political power, particularly by tyrants, whose
policies represented only their own interests and not the
good of the community.

On the age-old debate as to whether the best law or the

best person should rule a city, Aristotle’s position was
clear: “He who asks law to rule is asking God and
intelligence and no others to rule, while he who asks for
the rule of a human being is importing a wild beast too.
Law is intelligence without appetite.”

According to Aristotle, man is a part of nature in two

means. Firstly, he is a part of the creatures of God.
Secondly, he possesses awareness and reason by which
he can form his will. By this reason, man can determine
the eternal norm of justice. The man’s reason being the
part of nature, the law discovered by reason is called
‘natural justice’. The law should be reformed or
amended rather than being broken.

Though Greek law faded in influence, the

Greek legacy in the philosophy of law was to endure for
several centuries, extending through the Middle Ages,
during which there were many refinements and
extensions of Greek themes and ideas, particularly
within the Christian tradition.

Roman
Although many aspects of ancient Greek culture
influenced the Roman Empire from the 1st
century BCE onward, law was not one among them.
The study of jurisprudence actually began with the
Romans. The Romans established new legal forms and
institutions as well as the first legal professionals and
administrators.
Justinian Code: Roman jurists developed the first form
of what would later be called “legal science”. It is a
new genre of legal writing in which jurists would
collect and organize Roman laws according to
complex taxonomies. This practice culminated in
Codex Justinianus or Code of Justinian, a legal code.
This code, assembled by Byzantine emperor Justinian
I (527–565 CE) eventually served as the basis of many
modern legal systems of Western Europe. The code
synthesized collections of past laws and extracts of the
opinions of the great Roman jurists. It also included an
elementary outline of the law and a collection of
Justinian’s own new laws. The four-book code was
completed in stages. Digesta is one of the books that
formed part of the Justinian Code.
Cicero
Roman jurist and philosopher Cicero (106–
43 BCE) articulated the first conception of what is
called “natural law.” Although Cicero was versed in the
positive law of the Roman state, he sought to link it
with what he considered objective moral truths, which
he called “laws”.
In his work De republica (On the Republic), he
famously held, echoing Sophocles, that: true law is
right reason in agreement with nature…to curtail this
law is impious, to amend it illicit, to repeal it
impossible…nor will it be one law at Rome and a
different one at Athens, but one and the same Law,
eternal and unchangeable.
Cicero’s idea that there is moral criteria for determining
the validity of positive law gained currency in the
centuries that followed.
St. Augustine or Augustine of Hippo’s (354–430 CE)
made a claim that “an unjust law does not seem to be a
law at all”, which served for centuries as a kind of
slogan of the natural-law tradition.
Stoics: Stoicism is a school of Hellenistic
philosophy founded by Zeno of Citium in Athens in the
early 3rd century BC. The Stoics are especially known
for teaching that "virtue is the only good" for human
beings, and that external things, such as health, wealth,
and pleasure should be viewed with indifference.
Stoics developed his theory of natural law based on
Aristotle’s theory, but made some important changes
and made it more ethical.
According to Stoics, the world operates because of
reason. Man’s reason is also a part of this world. So,
when he lives according to reason, he lives according
to nature. One of the duties of man is to follow the
law of nature.

For the Stoics, the natural law is the divine law (Jus
divindum) — the command of God imposed on men.
The Stoic law of nature is binding on all and the
positive law must conform to the natural law. Stoics
theory on natural law had a great influence on jurists
during the republican period.

Roman Classification of Law

Natural law helped the Roman people transform their

rigid lives into a cosmopolitan one. Sometimes, the
Courts of Rome also applied the principle of natural
law to deal with matters involving foreigners.
Roman Jurists classified law of Rome into three
broad categories: jus civile, jus gentium
and jus naturale.

Roman civil law or jus civile was only for Roman

citizens. But the Roman magistrates applied the rules
which were common with foreign law to foreign
citizens also. The body of law which developed in
this way was called ‘jus gentium’ and it became part
of Roman law. It represented well-meaning and
universal legal principles and, therefore, conformed
to ‘natural law’. Later, jus civile and jus gentium
became one when Roman citizenship was extended to
all except a few.

But even then, there was a separate concept of

natural law, jus naturale. The meaning of jus
naturale in Latin is natural right, the laws common to
all beings. All laws which would make sense to a
normal person were called jus naturale. So, the act of
slavery is not jus naturale.

B. Medieval School
Fr. Thomas Aquinas

Catholic philosophers and theologians moved away

from orthodox interpretations of natural law and gave
a more logical and systematic theory of natural law.
Natural-law theory was given its first systematic
treatment by the great Christian philosopher St. Thomas
Aquinas (1224–1274).
Aquinas generally worked within
the conceptual framework and basic principles of
Aristotle’s philosophy of nature, value, and politics, but
completely mixed Aristotle’s theory with that of
Christian faith and created a very elastic and logical
theory of natural law. He pleaded for the
establishment of the Church’s authority over the
State. He said even the sovereign has limited powers.
According to Aquinas, positive law must conform to
natural law. Positive law is valid only to the extent
that it is compatible with natural law. He identified
natural law with reason, sanctified social and
political organization, and worked hard to preserve
social stability.

Aquinas defined law in part as an “ordinance of

reason”—that is, a prescription that is both produced
(by lawmakers) and responded to (by subjects) through
an exercise of the distinctive human capacity of reason.
According to him, the purpose of law is to serve
the common good of a political community.
More concretely, law is a promulgated plan of
coordination whereby a society can realize goods
(both tangible and intangible) that cannot be achieved
by other means.
First, law can be derived by a kind of immediate
deduction from moral principles. For example, from the
moral principle that murder is wrong, the legal
prohibition of homicide may be formulated and enacted.

Second, law can be derived from morality by a more-

indirect process, which Aquinas called determinatio—
determination or specification of how a general moral
principle applies in specific circumstances
to facilitate human coordination.

Much of positive law, he claimed, was derived from

morality in this second way. A standard modern
example is traffic laws requiring that people drive on
one side of the road or the other. Of course, morality
does not require specifically that humans drive on the
right or on the left, but once a determination by
a legitimate political authority has been made, a law
that, for instance, requires driving on the left will be
binding on citizens.

Aquinas says, "the light of reason is placed by nature

[thus by God] in every man to guide him in his acts.”
Therefore, he says that human beings alone use reason
to lead their lives. He terms this as natural law.
He said all law originates from the lex aeterna or eternal
law. Aquinas divided the law into four:
1) Eternal Law: Divine Wisdom of God revealed to
man
2) Natural Law: Imprint of eternal law on the hearts
of men
3) Divine Law: Divine Law is the historical laws of
Scripture
4) Human Law: Interpretation of Natural Law in
various contexts

C. Philosophical School
This period saw major changes in all aspects of
knowledge, marked by the emergence of new ideas,
new branches of knowledge and discoveries of
science. Secondly, due to development in the field of
commerce, new classes emerged which wanted more
protection from the states. This gave rise to the
concept of nationalism. All these factors combined to
overthrow the dominance of the church.

New theories supporting the sovereignty of the state

began to emerge. The reason was the foundation of
all these principles. The natural law principles of this
era also had certain characteristics. This theory
proceeded with the belief that a social contract is the
basis of society. They looked at the purpose of human
life itself to extract Natural law principles.

The philosophical or moral school concerns itself

mainly with the connection of law to specific thoughts
which law is intended to accomplish. It tries to explore
the reasons for which a particular law has been
established. Grotius, Locke and Rousseau contributed
greatly to this school of thought.
Grotius: A Dutch national, Hugo Grotius is best known
for his 1625 work The Rights of War and Peace (De
Jure Belli ac Pacis).

He was the first one to detach law from religion.

According to him, natural laws are definitive in nature
with no requirement of the confidence of God, making
it a matter more focused on lawyers and thinkers than
the Divine.

He is also known as the father of international law

because of his rationalist world view such as
agreements must be kept and injuring someone
necessitates restitution.

He believed that natural law and its ethical morals

connect to all sane and social creature, Christian or non-
Christian alike.

In his work “The Law of War and Peace”, he stated that

natural law stemmed not only from morality, but also
from the very social nature of man; with both being
based on the concept of righteousness. Grotius believed
that only wars with just causes should be allowed.

He also believed in the legitimacy of government laws

must be judged by standards of justice – natural law.
Grotius defended natural law without appealing to the
Bible or organized religion. The ruler must follow the
natural laws. However, if he abuses his power, his
subjects have no right to revolt against him – thus,
making their political obligation towards the ruler
unconditional. He gave five chief principles that defined
natural law:
 To abstain from things that belong to

another individual;
  To restore any goods of another we may
have with us;
 To fulfil promises and pacts made to
others;
 To repay damages to others caused by
our fault;
 To punish those who deserve it.

Hegel: Hegel said that “the state and law both are
developmental.” According to him, the different
appearances of social life, including law, are the result
of a unique developmental procedure. This procedure
includes rationalistic structure.
Immanuel Kant: The philosophy of Immanuel Kant is
sometimes called the “Copernican revolution of
philosophy”. Kant brought together rationalism and
empiricism. Kant's paradigm shift is the "Copernican
Turn," which abandons study of (unknowable) reality-
in-itself in favour of inquiry into the world-of-
appearances and the innate structures of the mind that
determine the nature of experience.

Social Contract Theory: It determines a state of

nature. This state of nature is the condition before
entering into a contract. Thomas Hobbes, John
Locke and Rousseau are main proponents of social
contract theory.
Thomas Hobbes: Hobbes is the writer of the famous
book, Leviathan. According to him, man lived in a
chaotic state or state of nature. It was solitary, dirty,
cruel and short. Under the prevailing conditions, the
people entered into a contract, under which they
handed over all their rights, including natural rights,
to one person, to relieve their suffering. Men are not
allowed to reverse the contract and revive natural
rights since it would bring back state of nature,
which is filled with violence, death and insecurity.

John Locke: Locke stood for individual liberty and

advocated that the powers of the sovereign are not
unlimited. According to Locke, the person has the
right to protest against the sovereign if he is unable
to protect the rights of the individual. Then
individuals also have the right to overthrow the
current government. According to him, a person’s
rights to freedom, property, and life are basic natural
rights and the sovereign must realize these rights and
take a decision, taking into account the rights
described above.

Rousseau’s General Will Theory: Under Rousseau,

natural law and social contract received a new
interpretation. For him, a social contract is a
hypothetical construction of reason. Before the social
contract, man lived a happy life and there was
equality among men. According to Rousseau,
humans entered into a contract for the protection of
rights of equality and freedom and, they delegated
their rights not to one person, but to the whole
community, which Rousseau states as general will.

Rousseau, the author of the book the Social Contract,

says it is the duty of a person to obey the general will
because in this way he is following his own will. The
government and laws made must conform itself with
the general will and if they are not able to so that
they could be overthrown, in short, Rousseau stood
for the interest of the community, rather than the
interest of the individual.

D. Modern School

The 19th century saw the decline of natural law. The

problems created by new changes and developments
demanded concrete solutions. Individualism gave rise
to a collective view, modern science and political
theories began to propagate that there are no absolute
and immutable principles. Many historians rejected
the social contract theory, saying it was a myth. All
these factors gave natural law a strong shock.

But during the end of the 19th century, we saw the

revival of natural law theories mainly for the
following reasons:
a. It emerged as a backlash against legal theories that
exaggerated the importance of positive law.
b. It was felt that abstract thinking was not
completely redundant.
c. Positivist theories failed to solve problems created
by changed social conditions.
d. Due to the two world wars, the world witnessed the
great destruction of human life and property. The
principles of natural law were the approached to
achieve peace.

The principles given in the Universal Declaration of

Human Rights (UDHR) are the perfect example to show
the reason why natural law is important, and it exists
even today. The United Nations General Assembly
adopted UDHR on 10th December 1948.

Modern Natural Law exponents:

John Finnis: He defines law as primarily the

regulative legal rules made by an effective and
appropriate authority for the common good of a
complete community. He has a very different
perspective about natural law. He considers natural law
neither in the relation to human nature or metaphysics.
He believed in neo-natural law. Neo-naturalism is a
modern theory of international law which tends to
revive natural law theories through reliance on “an
inborn sense of justice”.
He also disposes of two important misconceptions
about the theory of natural law:
  He denies the fact that natural law is derived from
objectivity and a set pattern of behaviour. But he
asserts that it is an ascertainable from inside
knowledge of innate motivation which is different
in different persons.
 Natural law does not claim that law is not law if it
contradicts morality.
He has also laid down seven basic principles of human
nature:
1. Life
2. Knowledge
3. Play
4. Aesthetic pleasure
5. Sociability
6. Practical reasonableness
7. Religion

Lon Fuller: Fuller rejects the notion of natural law as a

body of authoritative higher law, and that a man’s
conduct should be measured in light of these principles.
No natural law theory can be accepted which attempts
to lay down in advance an eternal and unchanging code
of nature.
He suggests a new term “Eunomics” which, he defines,
as “the theory or study of good order and workable
arrangement”. He warns that Eunomics must not
attempt any orthodoxy or doctrine of binding ultimate
ends. According to him, the integrity of the laws is
determined primarily by the process which it uses to
accomplish its goals.
Fuller’s Eight Principles: Fuller recommended some
principle for the laws to be accepted.
1. The laws made should be “expounded” or
explanatory.
2. Law should be promulgated or publicized.
3. Laws should be applied only in “prospective”
manner.
4. Laws should be clear and comprehensible in all
manner and sense.
5. Laws should not be contradictory in nature.
6. Laws should not be impossible to obey.
7. Laws should not be made in such manner that they
need to be changed frequently.
8. Laws should be administered and stated as it is.
Ronald Dworkin: Dowrkin’s so-called Third Theory of
Law is best understood as a response to legal
positivism. It contrasts with the legal positivism and the
doctrine of natural law, and is in some ways
intermediate between the two. This theory is essentially
constituted by three theoretical commitments: the Social
Fact Thesis, the Conventionality Thesis, and the
Separability Thesis.

Rudolf Stammler: He defined law as, “species of will,

others-regarding, self-authoritative and inviolable”. For
him, a just law is the highest expression of man’s social
life and aims at preservation of freedom of individuals.
According to him, the two fundamental principles
necessary for a just law are (1) principles of respect,
and (2) the principle of community participation.
With a view to distinguishing the new revived natural
law from the old one, he called the former as ‘Natural
Law with variable content’. According to him, law of
nature means ‘just law’ which harmonizes the purposes
in the society. The purpose of law is not to protect the
will of one but to unify the purposes of all.

John Rawls: Professor Rawls, who wrote the famous

book A Theory of Justice, made significant contribution
to the revival of natural law in the 20th century. He
propounded two basic principles of justice, namely, (1)
equality of right to securing generalized wants
including basic liberties, opportunities, power and
minimum means of subsistence; and (2) social and
economic inequalities should be arranged so as to
ensure maximum benefit to the community as a whole.
Kohler: Kohler defined law as, “the standard of
conduct which in consequence of the inner impulse that
urges upon men towards a reasonable form of life,
emanates from the whole, and is forced upon the
individual”. He says that there is no eternal law and the
law shapes itself as the society advances morality and
culture in course of evolution. He tried to free the 19th
century natural law from the rigid and a priori approach
and attempted to make it relativistic, adapting itself to
the changing norms of the society.

2. Analytical School of Jurisprudence

(Positive School)

Analytical School of Jurisprudence is based on the legal

maxim, ‘Ubi civitas ibi lex’ which signifies ‘where
there is State, there will not be anarchy’. The essential
concept of the Analytical school of jurisprudence is to
deal with the law as it already exists. Law, according to
the Analytical school, is the sovereign’s direction. As a
result, analytical school is known as imperative school.

In the 19th century, the analytical school rose to

prominence. It claims that morals are not objective, but
the law must be objective. If morals are included in the
concept of law, the law will no longer be objective. The
analytical school takes a ‘positive’ perspective on
societal legal issues. The positivists’ main concern is
the law that is actually found (positum), rather than the
ideal law. This school, which is the most popular in
England, establishes the fundamental elements that
make up the fabric of law, such as state, sovereignty
and the administration of justice.

Jeremey Bentham, John Austin, Holland, John Salmond

and HLA Hart are major proponents of this school.
Bentham is regarded as the father of Jurisprudence.
Austin is considered as the father of the Analytical or
Positive School.

Bentham’s Theory of Utilitarianism: Bentham is

popularly known for his theory of utilitarianism which

has more emphasis on individualism. According to him,

the main function of law is to make free the individual

from the bondage. He adhered to the principle of

‘laissez-faire’, which meant minimum interferences of

the state in the economic activities of the individuals.

Bentham says that utility is that which produces benefit,

advantage, pleasure and good or happiness. His theory
introduced two premises, the first one is the belief in
consequentialism, and it means morality is concerned
with the effects of actions on the happiness of the
individuals. The second one is the maximization of
happiness.

He says in his book The Principle of Morals and

Legislation that an action is a right action when it
creates or its consequence leads to the greatest
happiness of the greatest number. The “greatest
happiness principle” or the principle of utility, is the
cornerstone of Bentham’s thoughts.

According to Bentham, Analytical Jurisprudence or

Expository Jurisprudence is concerned with law as it is,
without taking consideration of any moral or immoral
characters. Censorial jurisprudence, on the other hand,
is said to be science of legislation, meaning what the
law ought to be.

Austin’s classification of jurisprudence: Austin

divides jurisprudence into general and particular
jurisprudence. According to him, General jurisprudence
is meant to be science of positive law not limited to one
particular place. It is a science of different systems of
laws obtaining in different societies. It is universal in
nature.

On the other hand, Particular Jurisprudence is science

of particular system of law, present or past. Its field is
confined to one particular country and is, therefore,
sometimes termed as national jurisprudence. General
Jurisprudence has a wider scope than Particular
Jurisprudence.
Imperative Theory or Command Theory
Austin says law is the general command of the
sovereign or state backed by threat of sanction.
Command: Commands are necessarily general
prescriptions that signify a desire of the commanding
sovereign that an action be done or not done.
The command levies a “legal duty” on those who are
politically subject to the “commander” , who is the
sovereign. Every duty supposes a command by a
sovereign by which it is created.
The emphasis on the command makes the theory
Imperative. Command is an order given by a superior
authority to do some thing or forbid it to do something.
Sovereign: Like Bentham, Austin characterized the
sovereign as a person or group of persons who are
habitually obeyed by the bulk of a political community.
In Austin’s view, the reason for which people obey a
command is not important.
Austin defines sovereign as, “determinate human
superior, not in the habit of obedience to a like superior,
receives habitual obedience from the bulk of the
society.”
According to Austin, the Sovereign should be the
superior authority in the society or legal system, so that
authority is in a position to make the people obey the
commands with the use of power vested in them.
Austin speaks about the independence of the Sovereign
from the external factors like, political societies.
Sovereign should be free from all the control present in
the society. If there is any authority or any other
external factors to which the Sovereign has to comply,
that will not be regarded as Sovereign.
Sanction: If the ‘consequences’ is not attached, the
citizens will not necessarily obey the law and ultimately
the Sovereign.
Sanctions can be defined as fixed consequences,
“expectation of certain events”, authorised by the
sovereign, which the person going against the law will
face.
Through Sanctions, an element of coerciveness comes
into play which is authorised by the State. Therefore,
sanctions are a way to implement, enforce and protect
the command of the Sovereign.
Austin narrowed down the concept of sanctions in his
theory and did not consider rewards, i.e., positive
sanctions as sanctions. This can be understood by the
example of paying taxes. The citizens have to pay taxes
and if they do not do it, they know that they can face the
consequences of losing their property and is bound to
pay certain penalties. The fear of losing the property
and paying the huge penalties make the citizens pay the
taxes.
Criticism: This theory was highly criticised by all
schools of thoughts. Another thinker of positive school
HLA Hart was a major critique of theory. The first
criticism was about the generality of the Command
theory. Austin discussed the concept of command
enforced by sanctions in a general way, which was
applicable to only some laws like Criminal Law.
However, sanction cannot be made applicable with
respect to many laws. For instance, in Contract Law
which is a right in personam, the remedies cannot be
threat of sanctions.
Further, Hart said that the Sovereign will have to
change at certain point of time. He further rejected the
theory of sovereignty, on the basis that it has no
controlling power.
Further, assertion made by Austin that judicial decisions
are not laws but tacit commands of Sovereign are laws,
are not justifiable. Judicial precedents play an important
role in the legal system. It corrects any arbitrariness,
checks on the excessive use of power by any authority
and protects the citizens.

Pure Theory of Law

Hans Kelsen proposed his theory for the first time in his
book Pure Theory of Law in 1934 and expanded it in
1960. This theory is also known as Normative Theory.
It talks about pure law and it excludes from law the
other factors affecting the definition of law like
morality, ethics, economics, sociology etc.

Kelsen believes that the law should be pure from any

investigation such as sociological, political, historical,
logical, etc. According to him, “the law will stand on its
own”.

Grundnorm: Kelsen’s theory features a pyramidal

hierarchy with grundnorm being the foundational norm.
Grundnorm is a German term that means “fundamental
norm.”

He defines it as “the assumed ultimate rule by which the

norms are constituted and annulled, and their validity is
received or lost.” The grundnorm establishes the
content and verifies additional norms that are derived
from it.

According to Kelsen, other norms draw its legitimacy

from grundnorm. The grundnorm is the beginning point
of a legal system, and it is from this point that a legal
system grows more complex and specialised as it
evolves.
The grundnorm, which is self-contained, is at the
summit of the pyramid. The system of norms progresses
from downwards to upwards and finally closes at
grundnorm.
Jurisprudence is the knowledge of norms. Law is a
normative science. A norm of law is simply a
preposition in hypothetical from. A norm of law has a
distinct feature.

The Constitutional provisions such as fundamental

rights can be considered as an example for grundnorm.

Criticism:

Grundnorms are vague and confusing.

Natural law is ignored in this concept.

The supremacy of international law is felt.

No practical significance can be attached to
grundnorm.

Salmond’s Theory of Jurisprudence

John William Salmond (1862-1924) was a scholar born
in England. 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:
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 prevailing
between the states.
Natural Jurisprudence: This is the science of natural
law (Jus Naturale).
Salmond further narrowed down the definition and
termed Jurisprudence as “the science of civil law”. He
negated the existence of the other two branches
(International and Natural Jurisprudence). According to
him, when one mentions jurisprudence without any
specification, it implies to civil jurisprudence only.
Sub division of Civil Jurisprudence: He further
divides the practical or concrete legal study of civil
jurisprudence into three branches which were
systematic, historical, and critical jurisprudence.
(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.
(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.
Salmond further says 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 “the science of the first
principles of the civil law”.
HLA Hart’s Legal Positivism
Legal Positivism is that school of jurisprudence
according to which the legitimate sources of law are
only the ones which are in written form. HLA Hart, the
author of the book the Concept of Law, was the
exponent of Legal Positivism. He condemned the view
of Austin that law is the command of the sovereign
backed by sanction.

According to Hart, laws are rules that are independent

and constructive. Rules are more concerned with what
is to be done and hence, he drew a distinction between
primary rules and the secondary rules.

Primary Rules and Secondary Rules: According to

Hart, laws are the rules which forbid individuals to
perform various kinds of actions or impose various
restrictions or obligations on the individuals. The
Primary Rules are those rules which impose an absolute
obligation on an individual or make him abstain from
doing particular action. It is instrumental for the
generation of duties and obligations for an individual.
Hart says that these Primary Rules govern the
behavioural strand of an individual in society as well as
the conduct of an individual. They are obligatory in
nature. For example, the rules of criminal law exist for
the punishment of crimes such as theft, robbery and
murder. The rule of torts forbids defamation. Similarly,
the rule of environmental law condemns the pollution of
water bodies and the environment.

Hart says primary rules are the duty assessing.

Secondary rules are the power- conferring rules that
define the manner in which the primary rules are to be
honoured, changed and arbitrated. Secondary rules can
be said to be rules about primary rules. Together the
primary & secondary rules form the heart of the legal
system. And the principle of justice or the rule of
recognition is the ultimate rule that binds the legal
system as a coherent total.
The Primary Rules were found to be insufficient for
catering to all the needs of a dynamic society. This led
to the evolution of Secondary Rules. Secondary Rules
are the foundational rules of every just society. The
Secondary Rules are “power conferring” rules in nature.
There are three types of Secondary Rules: Rules of
Recognition, Rules of Change and Rules of
Adjudication.
Rule of Recognition: According to the Rules of
Recognition, the recognition of rules is not contingent
on the command of the sovereign. However, the Rules
of Recognition should be recognised by the legislature
or the judiciary. The Constitution of a country is placed
at the apex position in the hierarchy of Rules of
Recognition. Judicial precedents and legislative
enactments are the other aspects which exist in the
hierarchy of Rules of Recognition.

The Rule of Change: It brings in “amendment” powers

which are meant to bring about necessary changes in
various laws. This is in line with the dynamic changes
happening in the society. A major example is the
amendment provisions contained in the Indian
Constitution.

The Rule of Adjudication: It confers the power to the

judiciary. The judges are vested with the power to
adjudicate the matters of dispute. These rules of
adjudication also contain the significant definitions of
“court, jurisdiction, judge, jurisdiction and
judgment.”
Eg: Writ jurisdiction under Article 32 of the Indian
Constitution.

Hart – Fuller Debate

The Hart–Fuller debate is an exchange between the

American law professor Lon L. Fuller and his English
counterpart H L A Hart. The debate published in
Harvard Law Review in 1958 on morality and law
displayed divide between positivists and natural law
philosopher.
Hart views the law in terms of “as it is”. While Lon L
Fuller, belonging to the Natural School of
Jurisprudence, who wrote the book The Morality of
Law, considers morality as “what ought to be”.
Should morality be enforced by law?
Law and morality are often used overlapping. Law is
defined as “a rule of conduct or action prescribed or
enforced by controlling authority. Morality means “the
quality of being right, honest or acceptable”.
Law creates an obligation as the disobedience of law
would lead to punishment or fines. Morality is more of
a social obligation dictated by the societal
understanding of right and wrong.
Morality is for the good conduct of men for themselves
and other fellow beings. Laws on the other hand are for
the smooth functioning of the society itself. Hart -
Fuller debate revolves around the philosophy of law and
morality.
Hart considered legal system as free-standing. Fuller
was of the view that law should serve a purpose. Hart’s
work was to make the legal positivism more refined
version from that of Austin’s Command Theory. Fuller
had completely rejected this view point of Hart.
Hart defends Austin and Bentham who first
promulgated that “law as it is” and not “what ought to
be.” However, Fuller says laws command our respect
not because they have been made by some authority,
but because they “represent human achievements”.
The Problem of Penumbra: Penumbra means a
looming problem. The problem of penumbra arises
when the words do not clearly define the meaning of the
law or when the meaning seems obsolete. In such
situations, the judges are free to interpret the meaning
of the law.
Fuller accuses Professor Hart of “following the tradition
of his predecessors and treating morals as extralegal
entity.” According to him, when the judges interpret a
law, they should consider ‘what ought to be’ than ‘what
it is’.
This Problem of Penumbra is illustrated by an example
which has been put forward by Hart himself. As per the
law, vehicles were not permitted to enter into a park.
But a bicycle was parked by a person in the park.
A police officer gave a notice of fine to the person for
parking the bicycle there. When this matter went to the
court, the question before the judge was to consider
bicycle as a vehicle or not.
The purpose of this particular law was to keep
motorized vehicle outside the park to keep the pollution
in check. The judge understood the purpose of the law
and therefore ruled that “bicycle ought not to be
included in the definition of vehicle”.
Fuller portrayed this as the perfect example of the
nature of law in terms of ‘what ought to be’ by reaching
out to some external factor. But Hart rejected Fuller’s
view and claimed that this conclusion by the judge had
been inferred from “the total categorization and
harmonisation” of the legal system.
The Morally Bad Law: This is the third component of
the debate in which the questions of morality and law
are involved. This case was called the Grudge Informer
Case.
During the time of Hitler, it was a criminal offence to
insult the Fuehrer. A wife informed the authorities that
her husband was using derogatory remarks against
Hitler. So, the police came and took away her husband
and put him behind the bars.
When the war was over, she was tried and convicted
along with many others. She was not affiliated to the
Nazi Party or to the Stormtroopers. She was just a
civilian who followed the law that was in force at that
time.
For the positivist, the woman was simply following the
law and the law is what it is. She simply was obedient
citizen and she adhered to the command by the
sovereign. So, they objected to her punishment.
But the naturalists think that she “ought not to have”
obeyed such a law by Nazis which was not morally or
consciously right. Her defense and claim for protection
for obeying the law during that time which was
“contrary to all sense of justice” was not accepted by
the court.

3. Historical School of Jurisprudence

The Historical School of Jurisprudence describes the

origin of law. This school argues that the law was found
and not made. The main source of law is Kings’
judgments, customs and habits.

Jurists like Montesquieu, Savigny, Sir Henry Maine,

and Georg Friedrich Puchta were the supporters of the
Historical School of Jurisprudence. Savigny is regarded
as a father of the Historical school.

As per Sir Henry Maine, Montesquieu was the very first

jurist to accept the historical school approach to
comprehending the concept of law. Montesquieu was a
French judicial, thinker, diplomat, and scholar who
studied and interpreted the rules of numerous
civilizations and came to the conclusion that “law is the
invention of the climate, local conditions, accident, or
imposture.” He went on to say that the law, like society,
should be dynamic, changing in response to the
civilization’s needs and demands. He mentioned these
ideas in the book, “The Spirit of Laws.”

The historical school of jurisprudence manifests the

belief that history is the foundation of the knowledge of
contemporary era. Apart from standing in opposition to
the natural law school, the historical school is unique
for its emphasis of the relevance of generations past to
the present and the future. It came as a reaction against
natural law, which relied on reason as the basis of law
and believed that certain principles of universal
application can be rationally derived without taking into
consideration social, historical and other factors.

The historical school also came as a reaction against

analytical positivism which constructed a soul-less
barren sovereign-made-coercive law devoid of moral
and cultural values.
The historical jurisprudence was supported by judges
who considered the importance of history, tradition, and
custom while deciding a legal dispute. It viewed law as
a legacy of the past and product of customs, traditions
and beliefs prevalent in different communities. It also
viewed law as a biological growth, an evolutionary
phenomenon, and not an arbitrary, fanciful and artificial
creation. For them, law is not an abstract set of rules
imposed on society but has deep root in social and
economic factors and the attitudes of its past and
present members of the society.

Savigny’s Volksgeist Theory: Von Savigny,

a prominent German jurist through his concept of
Volksgeist, introduced a new dimension in the legal
arena. Volksgeist theory means “national character”.
According to this theory, the law is the product of
general consciousness or will of the people.

According to Savigny, the law is the result of the

historical process that has been revealed through the
customary laws. As a result, the law is a duplicate of
national spirit rather than a product of established
legislation. Savigny believes that the legal system is a
reflection of national consciousness, which he refers to
as Volksgeist.
Warning against hasty legislation: The concept of
Volksgeist was served as a warning against the hasty
legislation.

Savigny’s central idea was that law is an expression of

the people. It doesn’t come from deliberate legislation
but arises as a gradual development of the spirit and
common consciousness of the nation.

The essence of Savigny’s theory was that a nation’s

legal system is greatly influenced by the historical
culture and traditions of the people, and the growth of
law is to be located in their popular acceptance. Since
law should always conform to the popular
consciousness, custom not only precedes legislation but
is also superior to it.

For him, legal system was a part of culture of a people.

Hence, law wasn’t the result of an arbitrary act of a
legislation but developed as a response to the
impersonal powers to be found in the people’s national
spirit. Hence, laws are not of universal validity or
application. Each people develop its own legal habits.

Savigny insists on the parallel between language and

law. Law is capable of application to other people and
countries. The view of Savigny was that codification
should be preceded by “an organic, progressive and
scientific study of the law” by which he meant a
historical study of law. The law reforms are to wait for
the results of the research done by historians.

Anthropological Approach: The anthropological

investigations into the nature of primitive and
undeveloped systems of law were of modern origin and
might be regarded as a product of the Historical
School. Sir Henry Maine, the founder of English
Historical school of jurisprudence, developed this
thought. His first and most important work ‘Ancient
Law’ was published in 1861.

He went beyond Savigny in understanding law by

making comparative studies of legal institutions
working in primitive as well as progressive societies. In
fact, Maine departed from Savigny in two important
respects. He believed that in the course of legal
evolution, primitive ideas may be discarded by
people. Maine was aware of Roman Law, English
Common Law and Hindu Law. And, he sought to
discover the ideas which these laws had in common by
making comparative studies of different legal systems.

Differences between Static and Progressive Societies:

On the basis of the comparative studies, Maine
distinguished between static and progressive societies.
The early development, both in the case of static and
progressive societies was roughly the same. The early
development, according to Maine, falls into four stages.
The first stage was that of law-making by personal
command, believed to be of divine inspiration. Eg:
Themistes of ancient Greece, and the Dooms of the
Anglo-Saxon kings. The second stage occurred when
those commands crystallized into customs.

In the third stage, the ruler was superseded by a

minority who obtained control over the law Eg: the
pontiffs of ancient Rome. The fourth stage was the
revolt of the majority against the oligarchic monopoly
and the publication of the law in the form of a Code.
Eg: the XII Tables in Rome.

According to Maine, static societies do not progress

beyond these stages of early development. Here, the law
is stable and society is static.

In progressive societies, a general proposition of some

value may be advanced with respect to the agencies by
which law is brought into harmony with society. These
instrumentalities are three in number.

1. Legal fictions
2. Equity
3. Legislation

The characteristic feature of progressive societies is that

they proceed to develop the law by these three
methods. These three instrumentalities constitute a
machinery of change. Change may be enforced
judicially or through legislation. Judicial methods
include use of fictions and equity.

Fiction: Maine defined fiction as ‘any assumption

which conceals or affects to conceal the fact that a rule
of law has undergone alteration while its letters remain
unchanged and its operations get modified. Prof. Fuller
declared the following motivations behind the use of
fictions; policy, emotional conservatism, convenience
and intellectual conservatism.

Fictions need to be distinguished from shifts in the

meaning of words. For example, the word ‘possession’
was originally applied to physical control; then it came
to be applied to situations where there was no physical
control. There was no pretence about the facts of either
situation.

Adoption, on the other hand, is not a shift in meaning,

but name for a pretended fact. Another example for
pretended fact is corporate person.

Equity: In one sense, equity is synonymous with

justice. Maine defined it as “anybody of rules existing
by the side of original civil law, founded on distinct
principles and claiming incidentally to supersede the
civil law in virtue of a superior sanctity inherent in
those principles.

One function of equity is to mitigate in various ways the

effects of the strict law in its application to individual
cases. Another function is to procure a humane and
liberal interpretation of law.

Legislation: As a general inference, Maine believed

that no human institution was permanent. Unlike
Savigny, he favoured legislation and codification. He
believed that with the rapid changes taking place in
society, this was the only efficient way of dealing with
legal problems.

He recognised that the advance of civilization

demanded an increasing use of legislation and he often
contended that the confused state of English law was
due to its pre-eminently judge-made character.
Codification is advanced form of legislative
development.

4. Sociological School of Jurisprudence

The sociological approach to the study of law is the

most important characteristic of our age. Jurists
belonging to this school of thought are concerned more
with the working of law rather than its abstract content.
The Sociological school considers law as a social
phenomenon and examines law in relation to society. It
takes a fundamental functional view of law. “The main
concern of sociological jurists is to study the effect of
law and society on each other. They treat law as an
instrument of social progress.
Many factors led to the establishment of the
Sociological School of Jurisprudence. The 19th century
witnessed a shift of emphasis from the individual to the
society. This happened as a result of the shocking
consequences, resulting from the Laissez faire doctrine.
The Historical School which was a reaction to the
intense individualism of the 19th century by its
emphasis on the Volksgeist spirit of the people –
indicated that law and the social environment in which
it develops are intimately related. This idea inspired the
jurists of sociological school.
Auguste Comte (Scientific Positivism)
August Comte was the first writer to use the term
‘sociology’ which he described as a positive science of
social facts. His method was called Scientific
Positivism. He pleaded for the application of scientific
methods to the science of sociology. According to him,
“society is like an organism and it can progress when it
is guided by scientific principles. These principles
should be formulated by observation and experience of
facts, excluding all metaphysical and other alike
considerations.”
Herbert Spencer (Organic Theory of the Society)
Spencer developed the body analogy (also known as the
organic analogy) to describe how society works. The
various parts are interrelated and also interdependent
and are comprised of different institutions such as the
education system, religion and the family.
Spencer took the theory of evolution one step beyond
biology and applied it to say that societies were
organisms that progressed through changes similar to
that of a living species. It was Spencer's philosophy that
societies (like organisms) would begin simple and then
progress to a more complex form.
Leon Duguit (Theory of Social Solidarity)
Leon Duguit built his theory on social solidarity upon
the two needs of men in society. Firstly, there are
common needs of individuals which are satisfied by
mutual assistance and by putting together their similar
aptitudes. Secondly, there are diverse needs of the
individuals which are satisfied by an exchange of
services each using his own aptitudes to satisfy the
needs of others. This division of labour is the pre-
eminent fact of social cohesion (solidarity by division
of labour for organic solidarity).
The most important fact put forward by him is the
interdependence of man. The end of all human activities
and organizations should be to ensure the
interdependence of men. This is called the Theory of
Social Solidarity propounded by Duguit.
Duguit attacked the myth of State sovereignty. The
State is also a human organization and it is in no way
different from other organizations. Therefore, the state
stands in no special position of privilege and it can be
justified only so long as it fulfills its duty.
Duguit’s story of minimization of State function leads
him to deny any arbitrary power to legislators.
According to him “legislator does not create law, but
merely gives expression to judicial norms formed by the
consciousness of the social group”.
Duguit’s views on State and its functions led him to
deny the distinction between private and public law.
According to him, both are to serve the same end, i.e.,
‘Social Solidarity’. Another important point in Duguit’s
theory is that he denies the existence of private rights.
He says that “the only right which any man can possess
is the right to always do his duty”.
Rudolph Von Ihering (Purpose or Interest Theory)
According to Ihering, the dominant notion to be found
in the exercise of human will is that of ‘purpose’. Law
is a part of human conduct, and in the idea of purpose is
to further and protect the interest of society.
In society, there is an inevitable conflict between the
social interests of a man with each individual’s selfish
interests. To reconcile this conflict, he employs the
method of reward viz., by ensuring that economic wants
are satisfied, and also by coercion.
He divided interest under three broadheads, viz.,
individual, social, and state interest. The success of the
legal process was to be measured by the degree to
which it achieved a proper balance between social and
individual interests. Law, according to him, never
serves the interests of an individual as end in itself, but
only as a means to the good of the society and hence is
a relative concept.
He refuted the individualistic concept of law which
limited the function of law to the securing of civil
liberty by protecting the rights of individuals in
consonance with those of others.
Eugen Ehrlich (Living Law)
Eugen Ehrlich is regarded as the founder of the
Sociological School of Jurisprudence. Sociology of law
is the study of law from the sociological view. Ehrlich
considered society as a principal source of the law. And
by society, he means “association of men”.
Ehrlich’s concept of ‘Living Law’ is that the law of a
community is to be found in social facts and not in
informal sources of law. He says “at present as well as
at any other time, the center of gravity of legal
development lies neither in legislation nor in juristic
science or in judicial decisions, but in society itself.”
Thus, the living law is the fact which governs life. A
proper study of law requires the study of all the social
conditions in which the law functions in the society.
Roscoe Pound (Social Engineering)
Roscoe Pound, the main proponent of sociological
school of jurisprudence, gave the theory of Social
Engineering in which he connected lawyers with the
engineers. Engineers are expected to use their
engineering skills to manufacture new products.
Likewise, social engineers are required to build that
type of structure in the society which provides
maximum happiness and the smallest friction.
According to him, law is social engineering which
means striking of a balance between the competing
interests in society. In other words, law is applied to
solve the conflicting interest and problems in society.
Social Engineering is balancing the different interests of
individuals and the State with the help of law.
Pound had not only listed the interests recognized by
law, but he has also considered the ways by which they
are to be secured. This consists of the device of legal
persons and attribution of claims, duties, liberties,
powers, and immunities. There is also the remedial
machinery behind them, which aims sometimes at
punishment, sometimes at redressal, and sometimes at
prevention.
Pound has also maintained that a balance of interest is
to be brought about in society. He further says that the
class to which an interest belongs and its relative weight
is subject to change from one class to another and from
time to time depending upon political conception
acceptable to society at a particular time.
Classification of interests by Roscoe Pound: He
enumerated the various interests which the law should
seek to protect and classified them into three broad
categories – private interests, public interests and social
interests.

Private interests: Private interests are the desires of an

individual. These include:

(a) individual’s interest of personality, namely, interests

of physical integrity, reputation, freedom of violation
and freedom of conscience. They are safeguarded by
laws of crimes, contracts, torts, constitutional law, etc.

(b) the interests of domestic relations of persons such as

husband and wife and parent and children.

(c) the interest of the property, testamentary disposition,

succession, association, freedom of contractual
relations, etc.

Public interests: Public interests are desires of the

public in a politically organised society. These include:

(a) interest in the preservation of the state as such

(b) state as a guardian of social interests such as

administration of trusts, protection of the natural
environment, regulation of public employment and so
on.

(iii) Social interests: Social interests are the desires of

social groups in terms of social life. These include:

(a) interest in the preservation of peace, security of

transactions, general health etc.

(b) preserving social institutions.

(c) interest preserving general morals by prohibiting

gambling, drunkenness, prostitution etc.

Five Jural Postulates by Roscoe Pound: Men must

be able to assume that others will commit no intentional
aggressions upon them (Criminal Law).
Men must be able to assume that they may control for
beneficial purposes what they have discovered and
appropriated for their own use, what they have created
by their own labor, and what they have acquired under
the existing social and economic order (Intellectual
Property Law).
They must be able to assume that those with whom they
deal in the general intercourse of society will act in
good faith (Contract Law).
They must be able to assume that those who are
engaged in some course of conduct will act with due
care not to cast an unreasonable risk of injury on others
(Tort Law).
They must be able to assume that others who maintain
things likely to get out of hand or to escape and do
damage will restrain them or keep them within their
proper bounds (Strict Liability).

5. Realist School of Jurisprudence

(Legal Realism)
Realist School of Jurisprudence is a philosophy of law
that follows sociological approach. Realists examine
court decisions and take into account the human factors
involved in making those decisions. It is a type of
jurisprudence that focuses on the law as it currently
exists in the real world rather than how it works in the
books. So, it focused primarily on judge behaviour and
how that behaviour affects judicial decision-making
processes.
According to Goodhart, the main characteristic features
of realist jurisprudence are as follows:
1. Realists think there can be no certainty about the
law as its predictability depends on the collection of
facts to be decided by the tribunal.
2. They do not favour formal, logical, and conceptual
legislative strategy.
3. They lay greater stress on the psychological
approach to the proper understanding of law as it is
concerned with human behaviour and convictions of the
lawyers and Judges.
4. The importance of legal terminology is opposed by
realists.
5. They prefer to evaluate any part of the law in terms
of its effects.
American Realism
American realism’s ultimate goal is to reform the legal
system. They want to learn about the law “as it is,”
rather than “as it ought to be.” This is something they
share with positivists. Furthermore, they seek to
comprehend the law by taking sociological factors into
account. They approach the study of law from an
empirical standpoint.
John Chipman Gray is regarded as one of the “mental
forefathers of the realist movement.” Oliver Wendell
Holmes is regarded as “the father of American
Realism”.
Justice Holmes said that law is nothing more than a
prediction. He believes that the life of a lawyer is a
combination of logic and experience. Judges make
decisions based on individual sense of right and wrong.
According to Holmes, the law should be viewed
through the eyes of a bad man. Based on this prediction,
Holmes defined law as “prophecies (ability to predict)
of what the court will do in fact.
Another thinker, belonging to this school, Jerome Frank
refuted the myth that law is consistent, certain, and
invariable. He claimed that judges do not create law,
but rather discover it.
According to Karl N. Llewellyn, realism is a
movement in legal thought and work. The basic
functions of law, according to him, are referred to as
“law-jobs.”
Scandinavian Realism
In contrast to American Realism, the Scandinavian
realists’ approach to law is more abstract and
philosophical. According to this school, law cannot be
explained by physical facts alone and exists by the
psychological effects caused by certain facts. This
school sought to explain how the law changes the
behaviour of people. Axel Hagerstorm is considered to
be the father of this school.
Carl Olivercrona, one of the main thinkers belonging to
this school, claimed that law is nothing more than a
“collection of social facts.” He argued that laws are not
orders or expressions of the state’s will, but rather
“independent imperatives” issued from time to time by
the state’s constitutional agencies. These imperatives
“operate in the minds of the judge” as he makes a
decision.
According to Alf Ross, the predictability of decisions is
what makes a law valid. According to him, valid law is
“the abstract set of normative ideas that serve as a
scheme of interpretation for the phenomena of law in
action.” Because the courts and other legal authorities
who apply the law consider these norms to be socially
binding, they are effectively followed.”

6. Feminist School of Jurisprudence

Feminist jurisprudence is a philosophy of law based on
the political, economic, and social equality of sexes. As
a field of legal scholarship, feminist jurisprudence
began in 1960s. It now holds a significant place in the
United States. Laws affecting employment, divorce
reproductive rights, rape, domestic violence, and sexual
harassment have all benefited from the analysis and
insight of feminist jurisprudence.
The first known use of the term feminist jurisprudence
was in the late 1970s by Ann Scales during the planning
process for Celebration 25, a party and conference held
in 1978 to celebrate the 25th anniversary of the first
woman graduating from Harvard Law School.
Feminists believe that history was written from a male
point of view and does not reflect women's role in
making history and structuring society. Male-written
history has created a bias in the concepts of human
nature, gender potential, and social arrangements.
According to Feminist School, the language, logic, and
structure of the law are male-created and reinforce male
values. By presenting male characteristics as a "norm"
and female characteristics as deviation from the
"norm," the prevailing conceptions of law reinforce and
perpetuate patriarchal power.
Feminists challenge the belief that the biological make-
up of men and women is so different that certain
behaviour can be attributed on the basis of sex. Gender,
feminists say, is created socially and not biologically.
There are four major schools of thought within feminist
jurisprudence.
Liberal feminism asserts that women are just as
rational as men and therefore should have equal
opportunity to make their own choices. They challenge
the assumption of male authority and seek to erase
gender-based distinctions recognized by law thus
enabling women to compete in the marketplace.
Cultural feminism focuses on the differences between
men and women and celebrates those differences. The
goal of this school is to give equal recognition to
women's moral voice of caring and communal values.
Radical feminism focuses on inequality. It asserts that
men, as a class, have dominated women as a class,
creating gender inequality. For radical feminists, gender
is a question of power. They urge women to abandon
traditional approaches that take masculinity as their
reference point. They argue that sexual equality must be
constructed on the basis of women's differences from
men and not be a mere accommodation of those
differences.
Postmodern feminism says that inequality is a social
construct and is a result of patriarchy, hence it requires
feminist reconstruction. The school emphasizes the
process of self-definition and the strategy for raising
awareness and giving voice to the unknown women’s
experiences. Postmodern feminists use deconstruction
to show that laws should not be rigid because they are
made by humans who have biases and thus contribute to
female oppression.

7. Marxist School of Jurisprudence

There are three basic assumptions in the Marxist
theories of law, first, that law is the product of
economic forces; secondly, law is considered to be the
tool of the ruling class to maintain its powers over the
working classes. Finally, law will wither away in the
future communist society.
The Marxian concept of law is entirely opposed to other
Schools of Jurisprudence. According to Carl Marx, law
is intimately associated with the nature of the State.
He does not accept the view that law is the expression
of the will of the people or reflection of the principles
of social justice or the result of habits and customs or
the social needs it serves.
According to him, law is merely an expression of the
will of the State. In a class society it is the will of the
ruling class.
In a Capitalist State, the law is only the tool of the State
to maintain and safeguard the interests of the capitalist
class. The Marxian view of law does not accept other
refinements connected with the State and law.
Moreover, law for Marx is a vehicle for destroying
Capitalism and constructing Socialism.
 8. Comparative School of Jurisprudence

Another school of jurisprudence is Comparative School.

Montesquieu is generally regarded as an early founding
figure of comparative law.
Its exponents adopt the method of examining and
comparing the legal systems of the past and the present,
and arrive at generalisations.
For the purpose of such comparisons, they rely on the
study and observation of the different legal systems of
different time periods in addition to the other social
factors that affect the legal environment of the societies
such as the political, social, economic factors, etc.

They also draw upon other Social Sciences for their

material for proper authentication and reliability.
Although the programme of this school is ambitious and
sufficient headway has been made in our knowledge of
law, much still remains to be done.
Comparisons are, no doubt, valuable aids and they bring
us nearer to the truth. But if law is really to be the
manifestation of the will of the people, it must be in
conformity with the genius of the people concerned. No
wholesale importation from outside can serve the
desired purpose and fulfil the needs.
 9. Critical Legal Studies
Critical Legal Studies (CLS) is a school of critical
theory that developed in the United States during the
1970s. CLS adherents claim that laws are devised to
maintain the status quo of society and thereby codify its
biases against marginalized groups.
The key goals of CLS are the following:
• to demonstrate the ambiguity and possible
preferential outcomes of supposedly impartial and rigid
legal doctrines.
• to publicize historical, social, economic and
psychological results of legal decisions
• to demystify legal analysis and legal culture in
order to impose transparency on legal processes so that
they earn the general support of socially responsible
citizens
Roberto Unger, a key member of CLS, whose influence
had continued to be far-reaching in the decades
following the movement's decline, has written that the
founders of critical legal studies "never meant it to
become an ongoing school of thought or genre of
writing. They wanted to intervene in a particular
circumstance."
That circumstance was the dominant practice of legal
analysis which Unger calls the "method of reasoned
elaboration".