2017

1. Write a brief note on the concept of law. How do the various schools reflect the concept?

The problematic nature of developing a conceptual identification of law is due not to the complexity of
the phenomena, but rather to two kinds of erroneous thinking. The first type of erroneous thinking is
the assumption that law is not a concept but a phenomenon that somehow can be objectively and
absolutely defined.

The second type of erroneous thinking which has led to the overly problematic nature of developing a
conceptual identification of law is the insistence that essentially empirical questions about law be
answered by conceptions of law. In other words, some writers fail to distinguish two separate questions
regarding the study of law: 1) what is law? and 2) what is to be asked about law?

Concepts of law are directed toward answering the first question, but not the second. Questions about
law—such as what is the function of law, or how does law develop—are predominantly empirical and
cannot be answered by conceptual analysis.

This concept of law is based on the assumption that part of what we refer to as "law" is one aspect or
part of the phenomenon of culture, and part is one aspect or part of the phenomenon of social
organization (Warriner, 1976). Conceptualizing law in these terms will involve two steps: 1) isolating law
from other related, but different phenomena; and 2) describing law in terms of universal phenomena.
Given the diversity of actors, functions and phenomena which have been subsumed under the concept
"law," it is important to develop a universal classification of elements that should be included in what
we mean by law. The classification should be applicable across cultures.

Law is best conceptualized as an institution. The institution of law is thus composed of normative law, a
body of statements, and legal action, a set of organized activities which express or implement the body
of statements.

This concept of law recognizes the overlapping nature of social phenomena. It identifies the orders of
phenomena which are most interrelated with that set which we label "law." Law, power, ethics, custom
and morality do not exist in reality as separate and distinct sets of phenomena. Rather, they all belong
to the same continuum with imperceptible transitions leading from one to the other (Weber, 1954)

1. The Analytical School:

John Austin may be regarded as the founder of the Analytical School, though he drew his inspiration from Hobbes, and

Bentham, his teacher. To him law is a command given by a superior to an inferior and enforced by material sanctions.

Every positive law is a creation of the sovereign power, which either established it directly or authorised some subordinate

person or body to establish it, and penalties are incurred for its disobedience.
The Analytical School, thus, emphasises that the sovereign is a determinate superior, what the sovereign commands is law,

and disobedience of such commands is accompanied by punishment. Law is the expression of the absolute and unitary

sovereignty of the State.

This conception of law has the attraction of simplicity and consistency. It also seems to accord with the citizen’s everyday

experience. Let us illustrate it. Under the authority of the Constitution, Parliament of India makes the law of income-tax and

provides that disobedience to its commands shall be punished by the fine or imprisonment, or both.

Under the authority given to it by the Municipal Act, the Municipal Committee, say, of Patiala, prohibits the parking of cars

and other vehicles in certain congested areas and ascubes the punishment for violation of its bye-law. Both these cases

answer the Austinian formula.

Austin’s doctrine has been subjected to unsparing attacks. His critics ask, times out of number, how customs can be

reconciled with the theory of command, and where we can a supreme law-giver in primitive society. But both these

objections do not affect the validity of Austin’s position.

Primitive society lies outside his domain. His sovereign is found in an independent political society, that is, the community

which has achieved Statehood and which lives under a duly established and recognised government. To the pre-State

custom, he gives the name of “positive morality.”

With respect to the common law of England, Austin contends that it is a judge-made law and that judges are agents of the

sovereign power acting in its name and subject to any restraints it may impose. What the sovereign power does not forbid,

Austin says, it accepts; what it accepts, it commands.

Sir Henry Maine characterised Austin’s method of assimilating the common law to a command as “a mere artifice of speech”

and a “mere straining of language.” But it is a fact that judges in Britain acted for the King in Norman and Plantagenet times

and that their decisions were effective only as he enforced them.

The Analytical Theory of law can best be appreciated once it is recognised that Austin was a lawyer and his theory is a legal

theory. He discovers in the State a person or body of persons which, in the last resort, has the de jure right to issue

commands and fixes punishment for violation of such commands.

“But he does not claim that legal right is tantamount to actual power, that form and substance are the same.” He is not

oblivious that the electorate, when one exists, does impose limitations on the legal sovereign.

In fact, he points out that “in any State, even when the government is autocratic, the sovereign is restrained by the opinions

of the people and must defer to ‘the principles and maxims’ held by the bulk of them or by the most influential portion.”
The main defect of Austin was, as Sait says, that “he erred in thinking of the influence of masses as negative rather than

positive.” Law must be the expression of the will of the people, if it can adequately serve its purpose.

Moreover, the Analytical School makes law rigid. It is the letter of the law which must be followed and there is nothing to

lubricate its application. It also breeds conservatism, as it does not cater to the needs of the people and the times. Nor does

it run into the past to establish its natural evolution.

Gettell has correctly said that “Analytical jurists tend to regard the law as static rather than progressive, and they are not

interested in its historical evolution. As a result, they have sometimes reached absolute conclusions without examining an

adequate material.”

Introduction

Analytical school is also known as the Austinian school since this approach is established by
John Austin. It is also called as an imperative school because it treats law as command of the
sovereign. Dias terms this approach as “Positivism” as the subject-matter of the school is
positive law.

The analytical school gained prominence in the nineteenth century. The distinctive feature of
eighteenth-century juristic thought was Reason. Individualism became the manifestation of the
cult of reason. Writers like Descartes, Locke, Rousseau, Kant advocated Reason as the last guide
and judge in everything. Bentham breaks away from the spirit of the eighteenth century, rejects
natural law and subjective values and emphasizes utility and propounds the concept of
expository jurisprudence which deals with the law as it is. Austin takes over tins concept of
expository jurisprudence and subjects it to a far more detailed, thorough and searching analysis.
Allen has pointed out that Austin does not revolt against 18th-century individualism but seems to
be quite impervious to it. His approach was secular, positivistic and empirical. In fact, it was
Austin who propounded the theory of positive law, the foundation of which was laid by
Bentham.

BACKGROUND

The Natural law school predominated of the juristic thought up to the beginning of the eighteenth
century. Principles of Natural law were considered supreme and according to some writers, could
override the man-made law. The term Natural law was differently defined and understood by
different writers and no single general acceptable meaning of the term “Natural law” or the
criterion for ascertaining the content of the principles of Natural Law was there. Nature, reason,
supernatural source, justice, utility were some of the bases from which Natural Law was
supposed to be derived. The analytical school was a reaction against the airy assumptions of
natural law.

EXPONENTS OF ANALYTICAL SCHOOL

The prominent exponents of this school are Bentham, Austin, Holland, Salmond, Kelsen, Gray,
Hoffield and Hart.

Bentham

Jeremy Bentham can be said to be the founder of the Analytical school. In one of his books, he
rejected the clinches of natural law and expounded the principle of utility with scientific
precision. He divided jurisprudence into expository and censorial. The former deals with the law
as it is while the latter deals with the law as it ought to be. Bentham’s analysis of censorial
jurisprudence is indicative of the fact that the impact of natural law had not completely
disappeared that’s why he talked of utility as the governing rule. Perhaps, because of this reason,
Bentham is not styled as the father of analytical school. He, however, believes that law is a
product of state and sovereign. Bentham’s concept of law is an imperative one for which he
himself referred the term “mandate”. A law may be defined, said Bentham, as an assemblage of
sin declarative of a violation conceived or adopted by the sovereign in a state concerning the
conduct to be observed in a certain case by a certain person or class of persons who, in the case,
in question are or supposed to be subject to his power.

Austin
In 1832, John Austin’s lectures were published under the title of “the Province of Jurisprudence Determined”. This was the first
systematic and comprehensive treatment on subject which expounded the analytical positivist approach and as a result of this work,
Austin is known as the father of the Analytical School. He limited the scope of jurisprudence and prescribed its boundaries. His approach
was analytical.

Analysis was according to him the principle method of study in jurisprudence. Austin built on the foundation of expository jurisprudence
laid by Bentham and did not concern himself with extra-legal norms. He distinguished between the science of legislation and law from
morals.
To Austin, jurisprudence meant the formal analysis of legal conceptions. He divides jurisprudence into general jurisprudence and
particular jurisprudence. Austin took a legal system as it is that is positive law and resolved it into its fundamental conception. Positive
law is the outcome of state and sovereign and is different from positive morality. The great contrast between positive law and positive
morality, according to Austin, is that the former is set by a political superior whereas the latter is not the offspring of state and sovereign,
hence it is not law. Law cannot be defined by reference to any idea of justice. The science of jurisprudence is only concerned with the
positive laws. According to Austin, analysis of positive law is to be done by the operation of logic on law without consideration of
history of ethical significance. Austin ignored social factors as well as in his analysis of law, he emphasized that by the operation of
logic, it is impossible to find out the universal elements in law for example, notions was common in all mature legal systems.

Austin’s approach, analysis and deduction are, however, applicable to a unitary polity based on parliamentary sovereignty. It does not
have that relevance to legal systems as in India and the United States of America.

Holland
Holland is another supporter of analytical school. He is the follower of Austin. However, he differs from Austin as to the interpretation
of the term positive law. For him, all laws are of not the command of sovereign, rather, he defines law as rules of external human action
enforced by a sovereign political authority.

Salmond
Salmond also belongs to the analytical school but differs from his predecessors in a number of ways.
These are :

1. He gives up the attempt to find the universal elements in law by defining jurisprudence as
science of civil law. According to him, there is nothing like universal element in law because it is
the science of law of the land and is thus conditioned by factors which prevail in a particular
state.
2. He deals with low as it is but law to him is to be defined not in terms of the sovereign but in
terms of courts. Law is something which emanates from courts only.
3. He did not agree with Austin that analysis of law can be done with the help of logic alone. He
points out that the study of jurisprudence which ignores ethical and historical aspects will
become a barren study.
Tenets of analytical School
1. Difference between law as it is and law as ought to be – This is a trait of all positivism thinkers
for example, Bentham’s Law and Morals have same course but different circumference. Austin
does not deny that moral factors work in the creation of law, however, he does not allow any
place to morals in his theory. To him, positive law carries its own standard itself. This approach
has been criticized by Dias, Hughes, Paton, Stone, Fuller, etc.
2. Concentration of positive law – Analytical jurists look exclusively at the positive law. They prefer
to be concerned only with what is the pure fact of law. Representing to themselves the whole
body of legal precepts that obtain in a given system as made at one stroke on a logical plan to
which they conform in every detail, the analytical jurists set out to discover the plan by analysis.
3. Law in terms of and a product of State – Analytical jurist regards law as something made
consciously by lawmakers, whether legislative or judicial. They emphasize not the way in which
the precepts originate with respect to their content but the fact that they get the conscious
stamp of the authority of the state. Thus the most important fact is establishment or
 authoritative recognition by the state, of a rule of law. In this sense law is a product of conscious
and increasingly determinate human will.
4. Logic – For studying law, analytical jurist have mainly taken resort of logic and rejected ethical
elements. There is no value of historical or social factors for jurists of analytical school.
5. Statute – Law is that which is made consciously by the state. Statute law is the main concern of
the school.
Kelson’s pure theory of law
Kelson’s theory of law which is known as pure theory of law implies that law must remain free from Social Sciences like psychology,
sociology or social history. Kelson’s aim was to establish a science of law which will be pure in the sense that it will strictly eschew all
metaphysical, ethical, moral, psychological and sociological elements. His aim goes beyond establishing an autonomous legal science on
positivistic empirical foundations, as he constantly criticized the ideas of justice and the principles of natural law. He altogether excludes
all such factors from the study of law. Kelson defines law as an order of human behaviour.

The specific nature of this order consists –

1. in its being coercive and
2. the fact that this coercive power is derived solely from the sanction attracted to the law itself. His sole object was to
determine what can be theoretically known about the law of any kind at anytime under any conditions.

The essential foundations of Kelson’s system may be summarised as under :

1. The aim of theory of law as of any science is to reduce chaos and multiplicity and to bring unity.
2. Legal theory is science not volition. It is knowledge of what law is, not of what the law ought to
be.
3. Law is a normative not a natural science.
4. Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order.
5. A theory of law is formal, of the way of ordering changing contents in a specific way.
6. The relations of legal theory to a particular system of positive law is that of possible to actual
law.

The most distinguishing feature of Kelson’s theory is the idea of norms. To Kelson, jurisprudence is a knowledge of a hierarchy of
norms. A norm is simply a preposition in hypothetical form. Jurisprudence consists of the examination of the nature and Organisation of
such normative proportions. It includes all norms created in the process of applying some general norm to a specific action. According to
Kelson, a dynamic system is one in which fresh norms are constantly being created on the authority of an original or basic norm, while a
static system is one which is at rest in that the basic norm determines the content of those derived from it in addition to imparting validity
to them.

Criticism

Kelson’s pure theory of law has been criticized by jurists. The main criticisms are as follows :
1. His conception of Grundnorm is vague. Friedman puts it, it is a fiction incapable of being traced
in legal reality. Kelson seems to have given his thesis on the basis of written constitution but
 even in the written constitution Grundnorm is made up of many elements and any one of these
elements alone cannot have the title of Grundnorm.
2. derives its efficacy from some other rule or norm standing behind it but
Every rule of law or norm
the grundnormhas no rule or norm behind it. A grundnorm derives its efficacy from the fact of its
minimum effectiveness.
3. Another important objection of Kelson’s theory is that he has not given any criterion by which the “minimum of
effectiveness” is to be measured. Writers like Friedman, Stone, Stammer have pointed out that in whatever way the
effectiveness is measured, Kelson’s theory has ceased to be pure on this. The minimum of effectiveness cannot be proved
except by an enquiry into political and social facts whereas Kelson has altogether rejected political and social facts.

2. The Historical School:

The Historical School of jurisprudence found its origin in Germany at the beginning of the nineteenth century. Frederick Von

Savigny was its most famous apostle, though not its founder. Sir Henry Maine was another eminent follower and supporter

of this school.

The Historical School regards the people themselves as law-makers through the formation of habit and custom. Its sanction

is not the coercive authority of the State, but a general sense of right of the society. People obey law as a matter of habit

because, in their opinion, it conforms to their standard of right.

Acceptance has, therefore, always been the theory and fact of law. “No rule of law was ever successful or even endured,”

says Zane, “unless it received practical general acceptance among the whole body of people, for the simple reason that

universal human experience has demonstrated that a rule of law not accepted by any considerable portion of the people can

never be enforced.

Whatever the means by which law is recognised, whether it is the legislative enactments by decisions of courts, by

prescripts of rulers, law is in fact law only when it is cheerfully accepted and gladly obeyed by the great mass of the social

body.

Acceptance by the community is needed to breathe life into the edict of the harshest despot. Government may superficially

appear to make law as Hobbes and Austin mistakenly supposed, but it is the acceptance of the rules by society that makes

laws and government.”

The advocates of the Historical School go to the primitive society in order to explain the nature and source of law. The

conduct of the people in the primitive society, they assert, was governed by customary rules, which were rigidly obeyed by

them notwithstanding the absence of any command of the sovereign.

The customs so observed and followed scrupulously by the succeeding generations became the social habit and a pattern

of social behaviour. What governed the conduct of men in primitive times has continued, and will continue, they say, to

govern it at all times and under all conditions.

“Human nature is not likely to undergo a radical change, and, therefore, that to which we give the name of law has been and

still is and forever continue to be custom.” No legally constituted law-making authority, however absolute its power, can

disregard the weight of customs and the pre-existing customs are the standard of laws.

Thus, law, according to the Historical School, is self-created and self-executed. It is not the deliberate creation of the law-

maker, but the result of the slow development of society through centuries.

The function of the State is not to create law, but to realise and enforce it. Legislation can be effective only when it is

reinforced by customs supplementing and clarifying it and the punishments which it prescribes in case of disobedience are

in conformity with the established habits of the people. No legislative authority, whatever be the extent of its legal power, can

make or abrogate customary law.

As Laski has said, “In law there was no part of the field of social fact he (Sultan of Turkey) could not alter: in practice he

survived only by willing not to will those changes which might have proved him the sovereign of Austinian Jurisprudence.”

But the Historical School errs in reducing the element of command to a “metaphor.” They insist that the rulers adjust their

wills to the wills of the ruled and command only in name.

Moreover, the adherents of this School tend to be conservative when they view law less as a matter of deliberate legislation

than as an evolution within the social body. Their reverence for the past stresses legal history rather than the content of law

and what law should really aim at.’

Introduction

Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it originates

from the social custom, conventions religious principles, economic needs and relations of the people.

According to this theory, the law is the product of the forces and influence of the past. Law is based on the general consciousness of

people. The consciousness started from the very beginning of the society. There was no person like sovereign for the creation of law.

Savigny, Sir Henry Maine and Edmund Burke are the renowned jurists of this school.
Savigny is regarded as the founder of the historical school. He has given the Volksgeist theory. According to this theory, the law is based

upon the general will or free will of common people. He says that law grows with the growth of Nations increases with it and dies with

the dissolution of the nations. In this way law is a national character. The consciousness of people.

This theory has some defects. Being conservative in its outlook it relies on past, however, its merit is that it shows that law must change

with the changes in society. It clearly believes that if a law is not according to the will of the people, it will never be obeyed. In this way,

it supplemented the analytical school of law.

Meaning and Importance

This school does not attach much importance to the relation of law to the state but gives importance to the social institutions in which the

law develops itself. While the analytical school pre-supposes the existence of a well developed legal system. The historical school

concentrates on the evolution of law from the primitive legal institutions of the ancient communities. The task of the historical school is

to deal with the general principles governing the origin and development of law and with influence that affects the law.

Historical jurists banished the ethical consideration from jurisprudence and rejected all creative participation of judge and jurist or

lawgivers in the making of law. They viewed the law, not as principles of morals but principles of customary action. Historical school

emerged as a reaction to legal theories propounded by analytical positivists and the natural law philosophers. Vico in Italy, Montesquieu

in France, Burke in England and Hugo and Herder in Germany started a new era in the development of legal theory and viewed the law

as the legacy of past and product of customs and traditions and beliefs prevalent in different communities. They believed that law has

biological growth.

Juristic views

According to Sir Henry Maine, Montesquieu was the 1st jurist who adopted the historical method of pursuing the study of legal

institutions and concluded that “law is the creation of the climate and local situation.” And the law must keep pace with the changing

needs of the society.

Hugo pointed out that law is like the language and habits of the people which forms and develops itself as suited to the circumstances.

The essence of law is in its acceptance, observance, and regulations by the members of the society.

The credit of laying down the foundation of the historical school in France goes to Montesquieu through his classical work ‘Spirit of

Laws’. He held that law should be adapted to suit the people, for whom they are framed, keeping in view the degree of liberty which the

constitution desires to grant to its people. There is nothing like good or bad in law, as it essentially depends on political and social
conditions and environment prevailing in the society. Montesquieu was opposed to natural law and he laid the foundation of comparative

and sociological jurisprudence.

Whereas, Edmund Burke considered the evolution of law as an organic process and an expression of common beliefs, faiths, and

practices of the community as a whole.

Sir Fedrick Pollock aptly remarked that historical method is nothing but the Doctrine of Evolution applied to human institutions and

societies.

Schelling and Hugo supported the view that law is a historical thought which evolved according to customs, traditions, culture, and

sentiments of the people.

Savigny has been the main exponent of this historical interpretation of the law and considered it to be the profounder of the historical

school of jurisprudence. He traced the development of law as an evolutionary process much before Darwin gave the theory of evolution

in the field of biological science. And this is why Dr. Allen described Savigny as ‘Darwinian before Darwin’ for his contribution of

applying the evolutionary principle to the development of the legal system.

Volksgeist as a source of law

Savigny works on the law of possession (Das Recht Des Vestiges) which was published in 1803 is said to be the starting point of
Savigny’s historical jurisprudence. He firmly believed that all law is the proof of common awareness (manifestation of common

consciousness) of the people and it grows with the growth and strengthens with the strength of the people and dies away as the nation

loses its nationality.

According to Savigny and his most popular pupil George Friedrich Puchta firmly believed that law is the product of General

Consciousness of the people and manifestation of their spirit. He stated that a law made without taking into consideration the past

historical culture and traditions of community is likely to create more confusion rather than solving the problem.

The origin of law lies in the popular spirit of the people which Savigny termed as ‘Volksgeist’.

Savigny’s contribution to the historical school may be briefly stated as-

1. Law develops like language-

Law has a national character and it develops like a language and binds people into one whole because of their common faiths, beliefs,

and convictions.
Law grows with the growth of the society and gains its strength from the society itself and finally, it withers away as the nation loses its

nationality.

Law, language, custom, and government have no separate existence from the people who follow them.

2. Early development of law is automatic thereafter jurists develop it-

At the earliest stage law develops automatically according to the internal needs of the community. But after a certain level when it

reaches civilization it has a great role to play.

As a duet role model between the regulator of general national life and as a distinct discipline for study i.e., performing, controlling and

regulating the national activities as well as studying it by specialists as jurists, linguistics, anthropologists, scientists etc. In simple terms,

it can be termed as the political element of law and juristic element and both play a significant role in the development of law.

3. Savigny who opposed the codification of German law-

Savigny was not totally against the codification of the German law on the French pattern at that time because Germany was then divided

into several small states and its laws were primitive, immature and lacked uniformity.

He stated that the German law could be codified when there is a prevalence of one law and one language throughout the country.

Since Volksgeist had not adequately developed at that time, therefore codification would have troubled the evolution and growth of law.

He has considered lawyers and jurists to be the true representatives of the popular consciousness rather than the legislators whose power

has been united to lawmaking only.

4. Law is a continuous and unbreakable process-

Tracking out the evolution of law from Volksgeist, Savigny considered its growth as a continuous and unbreakable process bound by

common culture, traditions, and beliefs.

He wanted German law to be developed on the pattern of Roman law. According to him, the codification of law may hamper its

continuous growth, and when the legal system gets fully developed and established then the codification may take place.

5. Administration for the Roman law-

He has been known for the admiration of Roman law. According to him the Roman law is very systematic and developed on the right

principle of customs and justice and is based upon the Volksgeist of the people.
Hence the German law should be based on the similar pattern of Roman law to evolve as proper law.

Criticisms-

1. Savigny’s Volksgeist helped many nations to promote its ideologies where Nazi twisted it by giving a racial colour. Marxists
used it giving economic interpretations whereas; Italy used it to justify fascism.
2. His attitude towards anti-codification of German law frustrated the growth of German law for several decades.
3. He believes that customs are the best source of law, which is not correct as there are many customs like slavery, anti-woman
custom, labour which are originated to accomplish the selfish interest of those in power.
4. His force on Volksgeist as the only source of law is not true, as he ignores the other major sources of like precedents,
legislation and other external affairs.
Conclusion

Despite the above criticisms, Savigny’s legal theory marked the beginning of the modern jurisprudence. His theory of Volksgeist

interpreted jurisprudence in terms of people’s will as it laid greater emphasis on the relation of law and society. And this theory came as

a revolt against the 18th-century natural law theory and analytical positivism.

The essence of Savigny’s Volksgeist 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.

Savigny’s approach to law gave birth to comparative jurisprudence which has been accepted as one of the most important branches of

legal studies in modern times.

3. The Philosophical School:

The Philosophical School is not concerned with what the actual law of the past and the present is. Their effort is to develop

the idea of justice as an ethical principle and consequently to create an ideal system of law.

In the eighteenth century they put their faith in the law of nature which could be discovered by human reason. In the

nineteenth century they engaged themselves in the metaphysical discussions of the existing law and in attempts to create a

perfect system of law in codes and legislation.

In the twentieth century they devoted themselves to social interests and ideals and to the formulation of theories of social

justice.
The jurists of the Philosophical School have always considered law as an abstraction and based it upon abstract ethical

principles of justice. A law, as such, is removed from objectivity whereas it ought to be definite and precise, capable of

universal application. Idealism must be blended with realism.

Renaissance Period of Natural Law

The period of renaissance in the history of the development of natural law may also be called the modern classical era which is marked

by rationalism and emergence of new ideas in different fields of knowledge. General awakening among the masses coupled with new

discoveries of science during the fourteenth and fifteenth centuries shattered the foundation of established values. That apart, the

tremendous growth of trade and commerce in European countries created new classes in the society which needed greater protection

from the state. The cumulative effect of these developments was that there was a general wave of nationalism and a demand for absolute

sovereignty of the state and supremacy of the positive law overthrowing the dominance of Church. New theories supporting the

sovereignty of state were propounded by rationalist Polito-legal thinkers such as Machiavelli[4], Jean Bodin. As a result of these

developments, temporal authority of the Church and the theological natural law received a serious blow and finally, it dwindled giving

way to natural rights of man and the state. The natural law theories propounded by Grotius, Locke and Rousseau revolutionized the

existing institutions and held that ‘social contract’ was the basis of the society. Hobbes used natural law theory to perpetuate reactionary

movement and justify status quo for the preservation of peace and protection of individuals from perpetual conflict and chaos.

With the Renaissance and the rise of humanism, the natural law became open to rational inquiry free from religious trappings.

There were many philosophers contributed to the evolution of natural law theory.
1. Hugo Grotius: Hugo Grotius(1583–1645) worked as a jurist in the Dutch Republic and laid the foundations for international
law, based on natural law. Grotius removed the natural law from the jurisdiction of moral theologians and made it the business
of lawyers and philosophers, by asserting that by their very nature, natural laws were authoritative in themselves, with or
without faith in God. He held that the moral ethics of natural law applied to all social and rational beings, Christian and non-
Christian alike. Grotius also promoted the concept of “Just War” as a war which was required by natural, national and divine
law under certain circumstances. He developed a series of rules for “right conduct” of war, based on the principle that actions
in a war should “serve the right.” Grotius also wrote De Jure Praedae[5], one chapter of which, defending free access to the
ocean for all nations, was reprinted and widely circulated under the title Mare Liberum.
2. Thomas Hobbes: Thomas Hobbes founded a social contractualist theory of legal positivism. He declared that all men could
agree that what they sought (happiness) was subject to contention, but that a broad consensus could form around what they
feared (violent death at the hands of another, and loss of liberty and personal property). Natural law was defined as the way in
which a rational human being, seeking to survive and prosper, would act. It could be discovered by considering humankind’s
natural rights; previous interpretations had derived natural rights by considering the natural law. In Hobbes’ opinion, the only
way that natural law could prevail was by all men submitting to the commands of a sovereign. The ultimate source of law now
became the sovereign, who was responsible for creating and enforcing laws to govern the bbehaviour of his subjects. Since the
sovereign’s decisions need not be grounded in morality, the result was legal positivism, the concept that law was created by
the state and must therefore be obeyed by the citizens belonging to that state. Jeremy Bentham further developed the theory by
modifying the concept of legal positivism.

In Thomas Hobbes’s treatise Leviathan, natural law is a precept, or general rule, discovered through reason, by which a man is forbidden

to do anything which is destructive of his life, or takes away the means of preserving his life; and forbidden to omit doing anything

which he thinks may preserve his life. Hobbes defines nine Laws of Nature.
 3. John Locke: John Locke (1632–1704) is among the most influential political philosophers of the modern period. In theTwo
Treatises of Government[6], he defended the claim that men are by nature free and equal against claims that God had made all
people naturally subject to a monarch. He argued that people have rights, such as the right to life, liberty, and property that
have a foundation independent of the laws of any particular society. Locke used the claim that men are naturally free and equal
as part of the justification for understanding legitimate political government as the result of a social contract where people in
the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable
enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the
rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new
governments. Locke is thus also important for his defense of the right of revolution. Locke also defends the principle of
majority rule and the separation of legislative and executive powers. In the Letter Concerning Toleration, Locke denied that
coercion should be used to bring people to (what the ruler believes is) the true religion and also denied that churches should
have any coercive power over their members. Locke elaborated on these themes in his later political writings, such as
the Second Letter on Toleration and Third Letter on Toleration.
4. Jean Rousseau: Jean-Jacques Rousseau(1712 – 1778) believed modern man’s enslavement[7] to his own needs was
responsible for all sorts of societal ills, from exploitation and domination of others to poor self-esteem and depression.
Rousseau believed that good government must have the freedom of all its citizens as its most fundamental objective.
The Social Contract in particular is Rousseau’s attempt to imagine the form of government that best affirms the individual
freedom of all its citizens, with certain constraints inherent to a complex, modern, civil society. Rousseau acknowledged that
as long as property and laws exist, people can never be as entirely free in modern society as they are in the state of nature, a
point later echoed by Marx and many other Communist and anarchist social philosophers. Nonetheless, Rousseau strongly
believed in the existence of certain principles of government that, if enacted, can afford the members of society a level of
freedom that at least approximates the freedom enjoyed in the state of nature. In The Social Contract and his other works of
political philosophy, Rousseau is devoted to outlining these principles and how they may be given expression in a functional
modern state.
5. Immanuel Kant: Immanuel Kant(1724-1804) is one of the most influential philosophers in the history of Western philosophy.
His contributions to metaphysics, epistemology, ethics, and aesthetics have had a profound impact on almost every
philosophical movement that followed him. This article focuses on his metaphysics and epistemology in one of his most
important works, The Critique of Pure Reason[8]. A large part of Kant’s work addresses the question “What can we know?”
The answer, if it can be stated simply, is that our knowledge is constrained to mathematics and the science of the natural,
empirical world. It is impossible, Kant argues, to extend knowledge to the supersensible realm of speculative metaphysics.
The reason that knowledge has these constraints, Kant argues, is that the mind plays an active role in constituting the features
of experience and limiting the mind’s access only to the empirical realm of space and time.
Conclusion

Jurisprudence is the study of law. It is a type of science that explores the creation, application, and enforcement of laws. Jurisprudence is

the study of theories and philosophies regarding the law. It has a practical and educational value. There are five schools of jurisprudence.

In the natural law school, there are four periods of evolution of theory. In this, the period of renaissance played a vital role in the

development of natural law theory. It is marked by rationalism and emergence of new ideas in different fields of knowledge. In the

period of the Renaissance there were many philosophers propounded their theories but mainly Hugo Grotius, Thomas Hobbes, John

Locke, Jean Rousseau and Immanuel Kant were propounded natural law theory in the best way. So in the renaissance period, the rise of

humanism the natural law became open to rational inquiry free from religious trappings.

4. The Comparative School:

Another school of jurisprudence, known as the Comparative School, is of modern origin. Its exponents adopt the method of

examining and comparing the legal systems of the past and the present, and arrive at generalisations.

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.

5. The Sociological School:

The Sociological School, the most prominent representative of which are Duguit, Krabbe and Laski, describes the “orthodox”

conception of law as a futile truth. They argue that law is not really made by an organised body of men.

They admit that there are definite agencies in a society issuing commands or making decisions which are normally obeyed

by the bulk of the community. But all such commands or decisions do not deserve to be regarded as laws. Some other

quality is essential to give these rules the character of law.

Law, according to Duguit, is the name for the rules of conduct which men observe while living in society. They obey these

rules of conduct not because they are commands and are accompanied by punishment, but because they are the conditions

of social living. Without obedience to these rules life would not be worth living. All of us are conscious of these rules of life

which enable society to survive.

Every man is, thus, impelled by self-interest to obey them. He knows instinctively or learns from experience what living

together means. Consciousness of this fact accounts for social solidarity and it is the duty of the State to sustain such rules.

Likewise, it is the duty of every individual to observe all such rules as help to realize social solidarity and abstain from all

such acts as are detrimental to its growth.

Laws, in brief “in the fundamental sense, are the rules of conduct which normal men know they must observe in order to

preserve and promote the benefits derived from life in society.”

The sanction of law, Duguit asserts, is primarily psychological, “resting in each individual’s awareness of the social approval

or reprobation of his conduct according to its conformity or non-conformity to the fundamental social rules.”

Krabbe explains law according to the source from which it springs. It is the sum total of all those rules, general or particular,

written or unwritten, “which spring from men’s feeling or sense of right.”

He holds that law is above and, in origin, independent of the State. He rejects the idea of State sovereignty and the only

theory which he is willing to recognize is the sovereignty of law.

Krabbe defines law as “the expression of one of the many judgments of value which we human beings make, by virtue of our

disposition and nature.” Law is, therefore, what is just and good from our standard of value and judgment. It is not a matter

of external legal authority, but an internal human matter.

It is obeyed, because it is just and good and not because of fear of punishment which its disobedience involves. The source

of law, according to Laski, is the individual consenting mind. People obey it as it satisfies their desires.

A good law, in his opinion, “is a law which has, as its results, the maximum possible satisfaction of desire; and no law save a

good law is, except in a formal sense, entitled to obedience as such.” He, thus, puts the source of law where it most truly

belongs—in the individual consenting mind.

Jurists of the Sociological School hold divergent views on many points, but all believe that law is the product of social forces

and should serve social needs. They do not concern themselves with the abstract theories, but judge the law by its results

and find its sanction in the social needs that it serves.

“The legal imperatives of any state”, says Laski, “must always be conceived if they are to be capable of justification, in terms

of the end it seeks to serve; they are, so to say, a permanent essay in the conditional mood.”

Without any reservation, the Sociologists attack the idea of a sovereign State as the creator of law. It is possible, they point

out, to conceive of a State in which there is law and no State, but it is not possible to conceive of a State in which there is no

form of law.

The purpose of law is to serve society and the purpose of the State is to enact and promulgate laws in order to achieve the

socially desirable ends. Gettel has cogently summed up what the different Schools of Jurisprudence claim and explain.

He says, “In contrast to the analytical jurist, who found the sanction of law in the command of the State, to the philosophical

jurists, who found its sanction in its inherent justice, and to the historical jurist, who found its sanction in established habits

and custom, the sociological jurist finds the sanction of law in the social needs and interests that it serves.”

The sociological school considers law as a social phenomenon and examines the law in relation to society.

INTRODUCTION

Comte was the first writer to use the term sociology which he described as a positive science of social facts. Subsequently, writers and

jurists tried to find a link between sociology and law. Gurvitch, for example, said that the meeting point of sociology and law is the

sociology of law. Sociology of law should, however, be distinguished from sociological jurisprudence. The latter primarily studies law
but in doing so it studies its relation with an impact on society; whereas sociology of law primarily studies society and studies law only

peripherally.

The sociological school considers law as a social phenomenon and examines the law in relation to society. The supporters of sociological

jurisprudence linked law with other social science disciplines and treated it as a synthesis of psychology, philosophy, economics,

political science, sociology, etc. Law, according to them, was an applied science employing functional methods of investigation and

analysis for solving the social and individual problems.

Bentham, who was an analytical positivist, had, by expounding the principle of utility, provided indirect support to the sociological

formulation of law. In the nineteenth and twentieth century, the sociological approach was developed and elaborated by the jurists like

Duguit, Ihering, Ehrlich, Roscoe Pound and many others.

BACKGROUND

The factors which led to the establishment of sociological school are as follows :

1. Nineteenth-century witnessed a shift in emphasis from the individual to the society. This happened as a result of the
consequences of the laissez-faire doctrine.
2. The historical school which was a reaction to the intense individualism of the nineteenth century by its emphasis on the
Volkgeist spirit of the people-indicated that law and the social environment in which develops are intimately related. This idea
was worked out by jurists of sociological school.
3. Prior to the nineteenth-century matters like health, welfare, education, etc were not the concern of the state. In the nineteenth
century, state, because of the adverse effects of laissez-faire became more and more concerned with numerous matters
encompassing almost all aspects of life and welfare. This implied regulation through law, which compelled legal theory to
readjust itself so as to take account of social phenomena.
4. It was established as a reaction against too much theorizing in law. By this time, the shortcomings of purely formal analysis
were being felt.
5. Revolutions and social unsettlement provoked chaos about the shortcomings of law. Sociological jurists wanted to overcome
these shortcomings.

These factors led to the growth of the sociological school.

EUGEN EHRLICH

Ehrlich (1862-1922), an eminent jurist of sociological school primarily expounded on the social basis of law. For him, the law is derived

from social facts and depends not on State authority but on social compulsion. Law, he said differs a little from other forms of social

compulsion and the state is merely one among many associations, though admittedly it possesses certain characteristics means of

compulsion. The real source of law is not statutes or reported cases but the activities of society itself. There is a “living law” underlying

the formal rules of the legal system and it is the task of the judges and the jurists to integrate these two types of law. Commercial law, for

instance, as embodied in statutes and cases, involves a constant attempt to try to keep up with commercial usage, for the “centre of legal

gravity lies of law not in legislation, nor in judicial decisions but in the society itself.”
Thus it can be said that Ehrlich suggests for a scientific approach to law which relates the law more closely to the life of society but his

work shows some weaknesses also as he gives no clear criterion by which to distinguish a legal norm from any other social norm.

ROSCOE POUND

Roscoe Pound is regarded as one of the most noted American Sociological jurists of the twentieth century. Kohler’s approach, in fact,

inspired Roscoe Pound the most for propounding the theory of social engineering and the balancing of social interests. Kohler asserts

that all laws are relative and conditioned by the Civilization in which they arise. But the idea of law has to follow the universal idea of

human civilization and the meaning of civilization is the social development of human parts towards their highest possible unfolding.

The evolution of Civilization results from the struggle between the human mind distinguishing itself from nature and the object-matter of

mature. The task of law following the evolution of Civilization is both to maintain existing values and to create new ones for the further

development and unfolding of human powers. Every Civilization has certain rural postulates that is, ideas of rights to be made effective

by legal Institution. Legal materials must be shaped so as to give effect to those postulates and legislators, judges, jurists must mole to

the law in accordance with them. This analysis of Kohler has been incorporated by Roscoe Pound in his exposition about the sociological

school. For Pound, jurisprudence is not so much a social science as a technology and the analogy of Engineering is applied to social

problems. He laid Emphasis to accumulate factual information and statistics and paid little attention to conceptual thinking. He called for

a new functional approach to law based on sound theorizing as to its purpose in a particular age. For Pound, law is the body of

knowledge and experience with the aid of which a large part of social engineering is carried on. It is more than a body of rules; it has

rules, principles, conceptions and Standards for conduct and for decisions but it also has Doctrines and modes of professional thought

and professional rules of Art By which the precepts for conduct and decisions are applied, developed and given effect.

Like an engineer’s formulae, they represent not only experience, scientific formulations but also invented skill in conceiving new devices

and formulating the requirements by means of a developed technique.

Pound has also recognised Ihering’s view of the law as a reconciler of conflicting interests but at the same time has given it certain

distinctive features. For Pound, the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims

go Round as far as possible with the least friction and waste. Pound regards these claims as interests which exist independently of the law

and which are pressing for recognition and security. The law recognises some of these making them effective within defined limits and

pound has attempted to expound and classify the categories of interests which are thus acknowledged in a modern democratic society.

It is however interesting to note that sociological jurisprudence neither begins nor ends with Pounds. Roscoe Pound died in 1964 and

after him, modern jurists have further elaborated or varied Pound’s basic classification of interest and further developed a sociological

approach. Thus, Stone built upon Pound’s classification except for the elimination of the category of public interest as a separate

category. Professor Stone is considered as a representative of modern sociological jurisprudence one of the main faults of classical

sociological jurisprudence. The sociological jurists of the future will generally have to approach his problems through a vast effort at
understanding the wider social context. Stone indicates that, in spite of its difficulties and faults, the Parsonian Social system is the type

of mode to which sociological jurist must aspire. A common malaise in sociological jurisprudence is its prevalent methodology of

working outwards from legal problems to the relevant social science. Instead what is needed is a framework of thought receptive of

social data which will allow us to see the social system as an integrated equilibration of the multitude of operative systems of values and

institution embraced within it.

LEON DUGUIT

Duguit (1859-1928) was a French jurist who made a substantial contribution to the sociological jurisprudence in the early twentieth

century.

He was much Influenced by Auguste Compte’s theory of law as a fact which denounced individual rights of men and subordinated them

to social interest. Compte pleaded that the only right which man can possess is the right always to do his duty. This formed the basis of

Duguit’s legal theory.

Duguit was also influenced by the Durkheim’s work “Division of Labour in Society” which was published in 1893. Durkheim made a

distinction between the two kinds of needs of men in society. Firstly, the common needs of the individuals which are satisfied by mutual

assistance, and secondly, the diverse needs of individuals which are satisfied by exchange of services. Therefore, the division of labour

is the most important fact which Duguit called as “social solidarity.”

JUSTICE HOLMES

Justice Oliver Windell HOLMES considered law as a means to protect and promote the collective group interests as compared with the

individual interests. Thus, he approached law in a pragmatic manner adopting a realistic attitude to analyse its working in the society. He

aptly remarked, “life of law has not been logic, it has been experience” which meant that while determining the law and legal rules by

which men should be governed, the lawyers and Judges must take into consideration the needs of the time, prevalent moral and political

precepts, public policy and the public opinion. Being a Judge of the Supreme Court of America for over thirty years, Holmes was

convinced that Judges can play a significant role in turning law to life’s needs and satisfaction. Through his monumental work, The

Common Law he took sociological jurisprudence across the Atlantic.

BENJAMIN NATHAN CARDOZO

Cardozo (1870-1938), another Judge of the US Supreme Court, also viewed the law in its sociological perspective. He totally rejected the

Austinian concept of logical interpretation of the law and his analytical approach to the judicial process and emphasized on the need to

interpret the law in the light of social necessities and realities of life. He was primarily concerned with two aspects of law, namely – how

the Judges should apply the law for deciding cases before them and how the law grows in society.
According to him, judges cannot keep themselves secluded from social realities and developments in other fields if social sciences which

have a direct bearing on the life of the people. Therefore the law must keep pace with the social developments and shape itself to the

changing needs of society in order to attain the ends of justice and undoubtedly, Judge’s role is crucial in this judicial process. He

remarked, “logic, history, custom, utility and the accepted standards of right conduct are forces which singularly or in combination,

shape the process of law. The judge should get his knowledge as a legislator gets it from experience, study and reflection, from life itself.

BASIC TENETS OF SOCIOLOGICAL SCHOOL

Following are the basic tenets or characteristics of the sociological school.

1. Sociological jurists regard the working of the law rather than the abstract content of the authoritative precepts.
2. Sociological jurists regard the law as a social institution, which may be improved by intelligent effort. Hence it is the task of
the jurists to find out the best means of furthering such efforts.
3. Sociological jurists lay stress upon the social purposes which the law serves rather than upon sanctions.
4. Sociological jurists look on legal institution and doctrines and precepts functionally. They regard the form of legal precepts are
a matter of means only.
5. According to this school, the main function of law is to fulfil the needs if society. Social requirements are accomplished by
law. Law is also a social instrument for maintaining law and order in the society.
SOCIOLOGICAL JURISPRUDENCE: INDIAN POSITION

In the last three decades, sociological jurisprudence has engaged in India on a macrocosmic scale. The need for studying law on the

nature of socio-economic reality is the cry of the day. Legal schoolers, judges, jurists all have emphasized the importance of the

relationship of law, society and social changes which are taking place so fast. A large number of progressive judges of the apex court of

the country like Justice V.R. Krishna Iyer, Y.V. Chandrachaud, P.N. Bhagwati, D.A. Desi, O. Chinappa Reddy, all pleaded vigorously

the adoption of a sociological approach in the interpretation of the law.

It hardly needs to be reiterated that law as an instrument of social engineering in inextricably connected with society, both regulating and

maintaining order and bringing about reform and progress. it effectively addresses the prevalent social problems and their solutions,

through a legal approach. Since the law is a social science, judges would not depend only on abstract principles or rigid legal cannons

alone but on social circumstances, demands and needs of the time.

6. Marxian Concept of Law:

The Marxian concept of law is entirely opposed to the Schools of Jurisprudence hitherto considered. Law, according to

Marx, 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.
It is, on the contrary, merely an expression of the will of the State, the expression of the material form of life in that State,

and in a class society it is the will of the ruling class. According to Vyshinsky, “Marxism-Leninism gives a clear definition (the

only scientific definition) of the essence of law.

It teaches that class relationship (and, consequently, law itself) is rooted in the material conditions of life, and that law is

merely the will of the dominant class elevated into stature.”

In a Capitalist State, the law is only the tool of the State to maintain and safeguard the interests of the capitalist class, a

dominant group in society. In a Socialist State the workers are the ruling class and, thus, law must be the safeguard of the

proletarian State against the enemies of Socialism, and a tool for the construction of a Socialist Society.

There is an element of truth in what Marx says, but it is not the whole truth. 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.

As soon as it achieves its purpose the State “withers away.” We do not accept this conclusion. For us, the State is the life-

breath of human existence and whatever shape a government may take, the State shall ever endure. Its laws hold society

together for the promotion and achievement of the all-round happiness of man.

Realist School

In America, Sociological Jurisprudence has developed an extreme wing under the name of the realist school. They are concerned with

the study of law as it works and functions which means investigating the social factors that make a law on the hand and the social results

on the other. They emphasize more on what the courts may do rather than abstract logical deductions from general rules and on the

inarticulate ideological premises underlying a legal system.

American Realism is not a school of jurisprudence but it is a pedagogy of thought. The prominent jurists of this thought are Holmes,

Gray and Jerome Frank.

2. How can law bring changes to society? What are the challenges of globalization to law?
Globalization is loosely defined as "integration and democratization of the world's culture, economy and infrastructure through trans-national
investment, rapid proliferation of communication and information technologies, and the impact of free-market forces on local, regional and
national economies.

By transforming borders and de-territorializing behavior, globalization raises a host of questions and concerns
fundamental to law. Many commentators argue that international law and national law are no longer adequate
categories for the totality of "law" today, and offer an array of new concepts such as transnational law, global
law, global legal pluralism, etc., to help us understand law in the global space.
The development of the "global society" - also referred to as "globalization" - brings about fundamental
changes not only in the economy, in society, and in politics but also in the law. These changes affect the areas
subject to legal regulation.

Processes such as cross-national communication, international dispersion of production systems, transnational trade, global markets,
mobility of people and businesses, and offshore investment.are subjects of laws that are designed to create a framework
conducive to international exchange and at the same time to minimize risks. Due to the increasing
transnationalization of activities subject to legal regulation, legal questions that transcend borders arise more
and more frequently.

As a result of this increasing need for cross-border regulation, the traditional law of the nation-state is
confronted more and more frequently with "transnational" activities that affect several states, engender legal
decisions that must be enforced in foreign territory, and raise issues that can only be solved on a global level.

Challenges

A. Transnational Applicability and Enforceability of Law (public, private and criminal law)
B. Regulation of Global Challenges
1. Migrant Workers under International Law and the legal issues
2. Legal challenges thrown up by the forces of globalization in field of trade and investment
3. International Law and Migration issues
4. New Types of Criminality in globalization and related legal issues
5. Globalization and human rights - legal issues
6. Global Health and the legal issues

3. How do you correlate law and justice? Discuss it in the context of types of justice.
4. What do you understand by common but differentiated responsibility? How does it apply to
different scenarios, including environment?
5. What reforms to law would you suggest to ensure access to justice? How is poverty related to
denial of access?
6. Discuss in brief the international efforts to combat crimes against humanity and the threat of
terrorism?
7. Write in brief on the role of international economic, labour and trade institutions?
8. What are the specific reforms necessary to UN and WTO to make them more relevant?
9. What has been the Indian judiciary’s response to globalization?
10. How does human rights protection ensure global justice? How far is the place of a sovereign
relevant?