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UNIT - I - KSLU Jurisprudence notes

Jurisprudence (Karnataka State Law University)

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UNIT – I

Meaning and nature of ‘Jurisprudence’ - Purpose and value of Jurisprudence -Schools of Jurisprudence:
Natural law, Imperative Theory, Legal Realism, Historical School, Sociological School.

Intro:
Basing on the above definitions we may define jurisprudence as the study of fundamental legal principles
and is concerned with the normative and not only positive, concerned with ideal and not only with the
actual.
Thus, it may be considered as philosophy of law, essence of law, science of law, dealing with
profound legal principles which influence and change human conduct from time to time.

Meaning and definition of Jurisprudence

The word jurisprudence is derived is derived from the Latin word ‘jurisprudentia’ which means ‘the
knowledge of law’ In Latin ‘jure’ or juris means law or legal and ‘prudentia’ means skill or knowledge.

Ulpain defines jurisprudence as ‘the knowledge of things human and divine the science of the just and
unjust’

Salmond defines jurisprudence as the science of civil law

Austin refers to jurisprudence as the philosophy of positive law

Holland defines jurisprudence as the formal science of positive law

Professor Keeton defines it is a study and systematic arrangement of the general principles of law

In the oxford English dictionary jurisprudence is defined as knowledge of skill in law, a system or body of
law.

The nature jurisprudence

Jurisprudence is the first of ever born social sciences is the base for social sciences like sociology, political
sciences etc. It is not substantive law nor procedural law. Paton says that the nature of jurisprudence cannot
be confined to boundaries because it is wider.

1. Jurisprudence is social science

It conducts study of human concept, society, behavior and different conduct and laws are based on
society and adapted time to time in connection social change so it is a social science.

2. Jurisprudence as a formal science of positive law.

Because there is analytical study. Holland defined Jurisprudence means formal science of positive law.
By the term formal means analytical and positivism in legal theory means a method of examining man
made law which has been made for men. Positive law is made by sovereign, state etc.

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3. Jurisprudence as philosophy of law

From ancient period to nineteenth century law was inseparable part of beliefs, myths, philosophy and
religion. As a philosophy, jurisprudence examines whether the law is as it ought to be. The philosophers
believed that laws are devised by some supernatural power to establish justice and order in a society.
According to Austin Jurisprudence means philosophy of positive law.

4. Jurisprudence as science of civil law

According to Salmond jurisprudence is the science of the first principles of the civil law because
jurisprudence generally deals not with legal system in general but with general principles of a particular
legal system.

5. Jurisprudence as experimental social sciences

In the latter part of the nineteenth and twentieth century jurisprudence began to be studied as a process
of social development, social change and social progress.
This new method of studying law in relation to society viewed that law has to be judged not by
application of Laws but by a test whether law is actually workable in promoting, protecting and
satisfying individuals needs, wants and desires in society.

6. Jurisprudence as science of law

Science is primarily a quest for knowledge. Science is more precise and more concerned with truth.
Jurisprudence being a science of law deals with the abstract principles. Moyle says “the end of
jurisprudence is same as science a complete grasp and systematic penetration of subject matter.

Value/Significance of jurisprudence
Irrespective of the serious and severe criticisms on the value of the subject “Jurisprudence’, it has its
own merits, value, benefits in the legal field.

1. Reflection of Rules:- The Jurisprudence comprises philosophy of law and its object is not to discover
new rules, but to reflect on the rules already known.

2. Analysis:- It analyses of legal concepts. Several times the legal rules overlap with another. E.g. the
legal rules of penal code overlap with torts, contract, family laws, civil etc. Then it analyses them, to
separate them and to show a right path to the lawyers, jurists, administrators, legislators etc.

3. Differentiates : Jurisprudence studies the meaning of the terms. For e.g. ‘Right’ jurisprudence studies
term in the abstract and distinguishes the various kinds of Rights. Similarly it investigates such other
legal concepts as ‘act’, ‘intention’, ‘Negligence’, ‘ownership’, ‘possession’ etc.

4. Clarification: It clarifies the legal position correctly, pinpoints, whenever there arises a situation of
confusion, ambiguous, uncertain in language of the law.

5. Connection with other Disciplines: Laws treat the legal position only. But Jurisprudence concerns with
all other disciplines such as sociology, economic, political, philosophy, physiology, psychology, history

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etc. It is the only subject which can link law with other disciplines and give a wider social context and
aspect.

6. Rational: -Sawer in his ‘Law in Society’ explains the Jurisprudence is more Manageable and more
rational and in this way theory helps to improve practice”.

7. Helpful in practice of law:- Practically by studying ‘Jurisprudence’ a lawyer can develop his
professional skills. He can sharpen his own professional and logical techniques.

8. Helpful to judges to interpret : Jurisprudence helps the judges and lawyers in ascertaining the true
meaning of the laws passed by the legislators by providing the rules of interpretation.

Purpose of jurisprudence

1. To investigate the nature of law

The purpose of jurisprudence is in general attempt to answer the question what is law.
Thus it enquires and investigates the nature of law.

2. To define law
It attempts to define law because every treatise should begin with a short definition. It is true that the
definition of law is necessary as merely preliminary to their further work on jurisprudence.

3. To clarify the all legal concepts

It is also argued that the need to provide definition of law springs from the necessity of clarifying the
most basic of all legal concepts, the law itself.
For it jurisprudence is concerned with analysis of legal concepts. It analyses both theoretical matter and
practical legal significance. In geometry, geometrical concept like circle, triangle, parallel etc likewise in
law we find legal concepts e.g right, owner, possession etc used by the lawyers in legal problems in
practice.

Natural law (law as the dictate of reason)

Intro:
Natural school of law is generally regarded as the law of nature, divine law or the law that is universal and
eternal in nature. It has been given different meanings at different points of time and though it is created by
man, it is found through the nature of an individual. It is mostly influenced by religion. The central idea of
this theory is that there is a higher law based on morality against which the validity of human law can be
measured. There is a belief that there are certain moral laws that cannot go against without losing its moral
or legal character. If legislation is not moral it is not law. There is an essential connection between law and
morality in this school of law.

Characteristics of Natural law

1. Divine origin

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Natural law is law of nature it is unwritten and consists of the principle of ‘ought’. It is reason derived
from God. It is derived from the Supreme source. So can call natural law as eternal, divine, supreme

2. Based on ‘a priori’
It is basically ‘a priori’ method different from empirical method. The ‘a priori’ accepts things or
conclusions in relation to a subject as they are without any need or enquiry or observation while
empirical approach tries to find out the causes and reasons in relation to the subject-matter.

3. It is physical law of nature

It symbolizes physical law of nature based on moral ideals which has universal applicability at all
places and times.

4. Based on principle of justice and morality

Natural law is based on principles of justice and morality. According to this theory law contrary to
principles of natural law cannot be obligatory. Human law which is at variance with natural law is not
really law but merely an abuse of it.

5. Depend on essential nature of the universe

The central notion of this theory is that there exists objective moral principles which depend on the
essential nature of the universe and which may be discovered by natural reason.
The concept of ‘rule of law’ in England and India and ‘due process’ in USA are essentially based on
natural law philosophy.

Differences of natural law from other forms of law

1. Other laws such as common law, constitutional law are all subject to periodical amendments but natural
is eternal
2. All others laws are created, evolved, modifies and altered by man. Natural law discovered by man.
3. While conformity to every other form of law can be brought about by coercion, natural law is not
enforced by an external agency.
4. Any form law that runs contrary to natural law may seemingly succeed for a time, but it is doomed to
fail ultimately. Natural law is a body of higher law.

Theories of natural law

I. Ancient theory natural law

a. Ancient Greek theory

Greeks were the first profounders of Natural Law principle. It were the Greeks who gave conception
of universal law for all mankind under which all are equal and which is binding on people.
 Heraclitus was the first Greek philosopher who found Natural law in the rhythm of events.
 Sophoclus gave an idea of natural law as a divine law which is wise, permanent and all pervading.
 Cicero says Natural law as law of reason by which the world is governed and perceived by the
rational nature of man.

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 Socrates said that like Natural Physical Law there is a Natural or Moral Law. ‘Human Insight’ that
a man has the capacity to distinguish between good and bad and is able to appreciate the moral
values. This human ‘insight’ is the basis to judge the law
 Plato is the profounder of the concept of ideal state. In his book ‘Republic’ he gave importance to
justice and law and harmony of mans inner life and its quality of justice.

 Aristotle said that man is a part of nature in two ways; firstly, he is the part of the creatures of the
God, and secondly, he possesses insight and reason by which he can shape his will. By his reason
man can discover the eternal principle of justice. The man’s reason being the part of the nature, the
law discovered by reason is called ‘natural justice’. Natural Law have emanated from the human
conscience and not from human mind and, therefore, they are far more valuable than the Positive
Law which is an outcome of the human mind.

b. Ancient theory of Romans

Roman Law into three distinct divisions namely ‘Jus civile’, ‘Jus gentium’ and ‘Jus naturale’.
 Jus civile: Civil law called ‘Jus civile’ was applicable only to Roman citizens
 Jus gentium’: the law which governed Roman citizens as well as the foreigners was known as ‘jus
genitum’. It consisted of universal legal principles which conformed to Natural Law or Law of
Reason.
 Jus natural: Both jus civile and jus gentium were merged to be known as ‘Jus naturale’ as Roman
citizenship was extended to everyone except a few categories of persons.

Stoics say Natural law as divine law that means Jus divinum which means command of God imposed on
man.

II. Medieval theory of natural law or dark age

Aquinas

Catholic philosophers and theologians moved away from the orthodox interpretation of natural law and
gave a more logical and systematic theory of natural law. Thomas Aquinas defined law as the obedience of
reason for the common good made by him who has the care of the community and promulgated. He
divided the law into four stages.

1. Law of God
2. Natural law
3. Divine law
4. Human laws

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Natural Law is a part of divine law. It is that part which reveals itself in natural reason. Like his
predecessors, St. Aquinas agreed that Natural Law emanates from ‘reason’ and is applied by human beings
to govern their affairs and relations.According to Aquinas positive law must conform to natural law,
positive law is valid only to the extent to which it is compatible with natural law.

III. The Period of Renaissance

The period of renaissance in the history of 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.

Hugo Grotius (1583 – 1645)

Grotius built his legal theory on ‘social contract’. His view, in brief, is that political society rests on a
‘social contract’. It is the duty of the sovereign to safeguard the citizens because the former was given
power only for that purpose. The sovereign is bound by ‘Natural Law’. The Law of Nature is
discoverable by man’s ‘reason’. He departed from St. Thomas Aquinas scholastic concept of Natural Law
and ‘reason’ but on ‘right reason’, i.e. ‘self-supporting reason’ of man. Now the question may arise:
Should disobey the ruler who did not act in conformity with principles of ‘Natural Law’? Grotius
believed that howsoever bad a ruler may be, it is the duty of the subjects to obey him

Thomas Hobbes (1558 – 1679)

According to Hobbes, prior to ‘social contract’, man lived in chaotic condition of constant fear. The life
in the state of nature was “solitary, poor, nasty, brutish and short”. Therefore, in order to secure self-
protection and avoid misery and pain, men voluntarily entered into contract and surrendered their
freedom to some mightiest authority that could protect their lives and property. Thus Hobbes was a
supporter of absolute power of the ruler and subjects had no rights against the sovereign. Though he
makes a suggestion that the sovereign should be bound by ‘Natural Law’, it is not more than a moral
obligation.

John Locke (1632 – 1704)

According to Locke, the state of nature was a golden age, only the property was insecure. It was for the
purpose of protection of property that men entered into the ‘social contract’. Man, under this contract, did
not surrender all his rights but only a part of them, namely, to maintain order and to enforce the law of
nature. His Natural Rights as the rights to life, liberty and property he retained with himself. The purpose
of government and law is to uphold and protect the Natural Rights. Unlike Hobbes who supported State
authority, Locke pleaded for the individual liberty.

Jean Rousseau (1712 – 1778)

Rousseau pointed out that ‘social contract’ is not a historical fact as contemplated by Hobbes and Locke,
but it is merely a hypothetical conception. Prior to the so called ‘social contract’, the life was happy and
there was equality among men. People united to preserve their rights of freedom and equality and for this
purpose they surrendered their rights not to a single individual, i.e. sovereign, but to the community as a
whole which Rousseau named as ‘general will’. Therefore, it is the duty of every individual to obey the

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‘general will’ because in doing so he directly obeys his own will. The existence of the State is for the
protection of freedom and equality. Rousseau favored people’s sovereignty.

Immanuel Kant (1724 – 1804)

he emphasized that the basis of social contract was ‘reason’ and it was not a historical fact. Kant drew a
distinction between Natural Rights and the Acquired Rights and recognized only the former which were
necessary for the freedom of individual. He favored separation of powers and pointed out that function of
the State should be to protect the law. In essence, Kant held that “an action is right only if it co-exists
with each and every man’s free will according to the universal law”. This he called as “the principle of
Innate Right”. The sole function of the state, according to him, is to ensure observance of law.

IV. Modern age

The 19th century saw the decline of natural law, the natural law theories reflected more or less the great
economic and political changes which had taken place in Europe. The problems created by the new
changes and developments demanded political and concrete solutions. All these factors gave a strong blow
to natural law.

During the end of the 20th century, we saw the revival of natural law theories as Positivist theories failed to
solve the problems created by the changed social conditions and the ideologies of Fascism and also led to
the revival of natural law theories, as at that time during the two world wars, the world witnessed great
destruction of human lives and property and principles of natural law were approached in order to attain
peace.

1. Stammler:-
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.

2. Kohler
He says that there is no eternal law and the law shapes itself as the society advances morality and culturally
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.

3. Hart
Hart points out that there are certain substantive rules which are essential if human beings are to live
continuously together in close proximity
4. Finnis:
For Finnis, ‘Natural’ is the set of principles of practical reasonableness in ordering human life and
human community

Merits

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1. The attractions of natural law theory are self evident. Too often ordinary law falls short of the
ideals. Men have often felt that need of an appeal from positive law to some higher standard and
such a standard provided by natural law.

2. Historically natural law also served as a defense against ethical relativism, which attacked the very
basis of obligatoriness of law. Because there is a difference between occurrences regulated by law
of nature e.g. movement of the sun and those arising out of human choice e.g. customs, fashion etc.
The former is inevitable and obligatory and the latter were arbitrary and contingent and applied to
specific places. However natural law theory pointed that while some laws differed from state to
state some were common to all.

3. Stoic philosophers thought that the distinctive feature of man’s nature is his faculty of reasoning
and this meant that he should live according to the dictates of reason. It meant that natural law
theory was not dependent on human belief in any particular deity or divine being but on human
reasoning.

4. The natural law is independent of beliefs, existence of deity which means all religions have the
same moral truths.

Criticism or demerits
The natural theory faces formidable difficulties
1. Firstly, moral proposition ‘ought’ may not be always deducible from factual proposition ‘is’. There
is a difference between moral laws and scientific laws. Scientific laws describe what generally
occurs e.g. law of gravity and moral or legal laws prescribe how men should behave.
2. Secondly there is no universality of natural law. One society may allow monogamy and another
may allow plurality of marriage or polygamy or another may not insist on marriage.
3. Thirdly, man has so many needs which requires rules conducive to human well being and securing
their fulfillment. E.g. rules for property, rules for protection of life.
4. The settlement of legal disputes is done through tribunals but moral disputes cannot be settled in
tribunals because the moral correctness of judges verdict can always be questioned.
5. When there is a conflict between law and morality the positive lawyers will go one way and natural
law theorists will go a separate way.

Conclusion
This brief survey of the content of ‘Natural Law’ has varied from time to time. It has been used to support
almost any ideology, absolutism, individualism and has inspired revolutions and bloodshed also. It has
greatly influenced the positive law and has modified it. The ‘Natural Law’ principles have been embodied
in legal rules in various legal systems and have become their golden principles.

Law as command of the Sovereign or Imperative theory or Legal Positivism or Analytical school

a. Jeremy Bentham

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Bentham was the founder of analytical theory in England. Bentham was the reformer of law. The
evaluative aspect of law is based on the doctrine of utility. Bentham criticizes natural law and law. He said
natural law is nonsense which contains silly ideas. It is mischievous delusion and imaginary.

He derived jurisprudence into two categories: expository and sensorial.

 Expository means what law is
 Sensorial means what law ought to be

Principle of utility or utilitarian individualism

The main theme of principle of utility is maximum happiness to maximum number. He gave importance to
utility. He said happiness of highest number is necessary. Doctrine of pleasure and pain acquired supreme
place in his theory. His theory is called as utilitarian individualism. He says law is there to emancipate the
individual from the bondage. Once the individual is made free, he will look after his welfare. So law is for
the utility of man.
Bentham is an individualist. He believed function of law is to emancipate or setting free a man or
individual from bondage and restrain from his freedom.
He said right aim of legislation is to carry out the principle of utility. Goal of law is promotion of
greatest happiness to greatest number. So principle of utility prevent evil and procure goods. So the
consequences of Good and evil are pleasure and pain.

Mankind governed by two sovereign masters

 Pleasure
 Pain
Nature is responsible for it. So they tell what ought to do and what ought not to do. Good and evil
measured with quantity of pain and pleasure. The task of government is to promote happiness of society
and to promote enjoyment of pleasure and security from pain. If an individual is happy in the society then
whole society will become happy. He gave four goals of happiness
 Substinence
 Abundance
 Equality
 Security

Conclusion
Unity of law will depend upon the unity of species of act which is the object of it. In the view of
Bentham, customary law could not be complete law. So it is not a law. But he said individual interest must
not be upheld if it goes against community interest and utility is the highest character.

b. John Austin’s theory of command of the sovereign

Intro :

The Imperative Theory of Law was given by John Austin, an American legal philosopher who has been a
huge influence on modern-day understanding of Law. His ideas about Law form the basis of defining and

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understanding law. Austin adopted analytical method which excluded all types of morals and religion from
Law. His school is also called analytical school or imperative school. John Austin is called as father of
Analytical school. He opposed the theory of natural law. His theory is known as command of sovereign.

Definition
Law is aggregate rules set by politically superior men to politically inferior subjects. Law is rules laid
down for the guidance of an intelligent being by a more intelligent being. So according to Austin law is a
command of sovereign followed by sanction in case of disobedience by the subjects.
If the command is disobeyed then the political superior should have the power to punish, those persons
who have disobeyed the law.

Characteristics of command theory

1. Sovereign: Means the political superior person or a determinate person or body of person or intelligent
persons. This may be compared with the king or the head of state in monarchy system and parliament
in democracy system.
2. Command:- There must be some order of the Sovereign. This order may be oral or written. It is an
order of ruler or authority as what to do and what not to do. The Sovereign which is followed by force,
is called command.
3. Duty:- This command must be followed by some persons, it means the political inferior persons who
are under the control of Sovereign, are under a Duty to follow the order of the Sovereign.
4. Sanction:- There must be sanction or the power of force behind the command of Sovereign and if there
is no force or sanction then such command shall not be law. The sovereign must have power to punish
those who do not obey this command.

Legal Positivism
The term Legal Positivism means the attempt to establish Law as a true science. The Imperative theory of
law is based on an understanding of Law which is free of moralistic notions and merely a collection of
empirical rules, and have no divine sanction, but are rules made by humans for humans.

Austin makes a distinction between “What Law is” and “What law should be”. For Austin, the second
question is not the concern of law. Law consists of the body of rules or “commands” which are definite and
objective.

Idea of the Sovereign

According to Imperative theory of law, there are three conditions a person needs to meet to be considered
as Sovereign in a state:

1. The Sovereign’s power must be unlimited and indivisible.

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2. The Sovereign must be clearly located and easily identifiable.

3. The commands of the Sovereign must be considered Law.

The Sovereign must make it his duty to consciously formulate laws, which must be backed by sanction, to
serve as “motives for compliance”. These sanctions must be coercive or alluring so as to make people obey
them. Therefore, while the Sovereign may physically reside in an individual, its functions may be carried
out by proper machinery with a definite hierarchy like the Police, the Judiciary or the Bureaucracy.

The Nature of Imperative Law

Austin divides law into two main categories :- Divine Law and Human Law.

Divine Law is law which has a transcendent source. They are inflexible, absolute and superior to man-
made laws.

Human law is of two kinds: the first one is as a “Command of the Sovereign”, and the second type is
formed through voluntary associations or clubs.

Law, according to Austin, follows the Hobbesian idea of being inherently coercive. He describes law as a
combination of “commands and prohibitions”, which dictates what to do as well as what not to do.

Merits of the Theory

Austin was one of the first philosophers to define law in a concrete, objective way. He established a clear
flow of law between the Sovereign and the people. His theory contained a simple and universal truth, that
law is created and enforced by the state, an idea which still remains relevant. His objective and clear
understanding of Law ensures security, stability and peace.

Criticism
a) Customs ignored:- In state also customs played an important role in the administration of justice. Even
in the modern times the customs play an important role in the formation of law. So we cannot ignore
customs from law.
b) Precedents ignored:- Precedent are ignored from the command theory. Precedent means the decisions
of the court, which are also called as judge made laws. Judge made laws because these laws were not
the command of the Sovereign.
c) Conventions Ignored:-There are certain conventions or methods, which are observed or followed by
the coming generation. These conventions or methods later on take the form of law. The become law

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afterwards by their regular observance. In England the base of English Law is conventions, which is
very popular in the World. So we cannot ignore conventions.
d) International Law Ignored:- Austin did not include international law. But in modern days we cannot
exclude international law from the field of law because it plays an important role in maintaining peace
and society at international level. In other words it is also a form of municipal law of civil law.
e) Command Theory is not suitable:- This theory is not suitable in modern times. It is also an artificial
theory having no sense in the modern world.
f) Only Power Is Not Necessary:- According to the ‘Command Theory’, law can be imposed only with
the help of power, But we have the result of the tyrants or forced rules which were thrown away by the
people of French Revolution, of Panamaeto. Law can be enforced even without power, it they are
suitable to the society.
g) Moral Ignored:- The Command Theory has also excluded morals from the field of law. Blind
obedience to law can make law oppressive and clamp down on the liberty of people. But we have
observed that morals have also an important role in the formation of law. The feelings of society are
based upon morals. So we can’t ignore morals from the field of law.

Conclusion :-In this way he theory of command has been criticized and which is not considered as suitable
in the modern time. But we also can’t ignore the contribution of Austin for giving he meaning of law in a
systematic way. He give the concept of law in scientific manner. This views became the base for the
coming writers, jurists and philosophers. So we can say that Austin contributed a lot in the field of
jurisprudence.

Law as practice of the court or legal Realism

Intro:
By realistic theories of law, I mean theories that: (1) define what law is and how it works in human cultures
without sentimental or moralizing delusions (descriptive adequacy takes precedence over moralizing
sermons); (2) accept that law is rarely sufficient to justify how courts adjudicate all proceedings before
them; and (3) compensate for justice and adjudication within the limits of the statute.

Legal realism

Legal realism is a naturalist philosophy to law. It is of the perspective that jurisprudence should imitate the
natural science methodologies, that is, relying on empirical evidence. Assumptions must be put to the test
by global findings. Legal realism, in fact, states that the law cannot be isolated from its implementation,
and cannot be easily interpreted. This illustrates the importance of recognizing the considerations present in
judicial decision-making by identifying the essence of law in fields such as legal decisions issued by judges
and their deference or rejection to the previous precedent and the doctrine to final judgment.

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Therefore, the law did not reside in an abstract domain with universal laws or values, but rather inseparable
from human behaviour and from the ability with judges to decide the law. To understand legal actors’
decisions and actions, legal realists turned to the ideas of the social sciences to understand the human
relationships and behaviour that culminated in a given legal result.

Legal realism was largely a response to late 19th and early 20th-century legal formalism, which became the
prevailing style through most of the early 20th century. It succeeded in its negative optimism to put
suspicion on formalistic expectations that judges actually do as they meant, such that it is always claimed
that ‘we are just realists now.’ However, realism struggled in its positive aspiration to find a reliable way to
foresee how judges will act than depending on the judges’ explanations.

There are two schools under realism

 American school of realism
 Scandinavian school
 The American realists claim that the law in real life is very different from the law stated in the law
books. The real law, they say, depends on how appellate courts interpret written words and how trial
courts determine the facts in particular cases. There is uncertainty at both ends.
 Scandinavian realism is a movement that started with Axel Hägerström's attempt to find a scientific
theory of law that did not involve metaphysical explanations.

Realists concentrated on decisions of law courts. They contended that law has emanated from the judges.
Like Austin the realists looks on law as the command of the sovereign but here sovereign is not parliament
or king but the judges or the court. Law is what the courts do. Judges are the law matters.
Realists have rejected traditional definition and they said human aspects of the judge and lawyer also had
an impact on courts decision. Realists gave importance to judge made law and they did not recognize law
enacted by the legislature. Law is what the court has decided in respect of any particular facts. Law
depends upon human behavior and conviction of lawyers and judges.

Thus ‘What is law’ according to realists are

 What the courts do
 Decision of law courts which are supreme
 Dogmatic formulation has nothing to do so far as law is concerned

Features of realism
1. No certainty about law because it depends upon set of facts
2. Do not support formal, logical and conceptual approach of law
3. Lives stress on psychological approach for proper understanding of law
4. Opposed to value of legal terminology
5. Prefers to evaluate law in terms of its effects

According to Salmond

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He said law consists of rules recognized and acted on by the courts of justice. But this raises question
about the meaning of the word “court” Will it include administrative tribunals, will the administrative
officer enforce obedience. Secondly statutes are recognized by the courts because they are law. They are
not law simply by virtue of judicial recognition. Salmond replies so long as the legislature and courts
function in harmony, it does not matter whether we say a statute is law because the courts recognize and
apply a statute.

Holmes
When a person wants to secure his own selfish interest he cares little for what is in the statute book. What
he seeks to find out is what the court is like to do if he is found out. What the courts will do cannot be
predicted by the statute book because it is the authority of the court to interpret it. Legislation is concerned
with general and judge with the particular. It is the judge who sees whether the case falls within the
framework of words of statute and if not an extended meaning should be given to them.
The judges upbringing, background, his temperament will have influence on decision he makes. For
example in case of traffic accident sympathy of judge may help to get insurance.

Merits
The theory stated some elements of truth. The distinction that the realists draw between law in the books
and law in practice is a valid one.
While certain elements of legal realism are still viewed as simplistic or obsolete, most legal scholars will
accept that the realists have been fruitful in their core ambition of rejecting “formalistic” or “mechanical”
legal ideas and legal logic. Today it is commonly recognised that law is not and can not be an accurate
science and that it is important to identify what judges actually do when deciding cases, not just what they
say they do as judges (for better or for worse) are always heavily motivated by their political views, moral
interests, human attitudes, and other extra-legal considerations.
Criticism
a. Law is law as soon as it is passed, it does not have wait judicial recognition by the courts before
beoming entitled to the name of law.
b. Stautes are recongised by the courts because they are law and it is not judicial recognition that
makes the law
c. Only a fraction of law suits can give rise to the creation of new law. Law is certain that great
number of disputes never reach courts.
d. Most of the laymen’s activities in private, commercial and industrial life is undertaken without legal
advice. People act according to law as they understand it.

Difference from austin’s theory/ legal positivism

Positivists, unlike the American legal realists, claim that in certain situations the statute gives fairly defined
instructions to their topics and judges, at least in the courts. Niklas Luhmann concludes “We may reduce
positive law to a formula, the law is not only raised (that is, selected) by judgment, but is also true by
decision-making power (thus dependent and variable). Positivists, though, do not say that anybody’s
judgment makes a law valid. According to Hart, the truth of legislation is a question of court customary and
collective processes. As about the legal value of the statute, it is a question of universal values that both
positivists and realists uphold. In this situation, “the force of judgment” has no important function, because

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individual judgments never serve to establish a collective norm of acceptance, so it would be implausible to
believe that moral values are thus determined by somebody.

Law as a system of rules

Natural law regards rule as dictates of reason, positivism regards as decrees of the sovereign and realism
regards as the practice of the courts. None of these theories have been satisfactory. In this theory attempt is
made to analyze law in in terms of rules.

HLA Hart

Hart is one of the great jurists of that time. He belongs to analytical school. His theory about the law
named as ‘concept of Law’. His theory mainly based on primary and secondary rules and also based on the
relationship between law and society. His theory described about two worlds i.e. Pre-legal world and Legal
world.

Definition and meaning: Sir HLA Hart defined Law,” that law is the system of rules, a union of primary
and secondary rules.”

1. Primary rule: Primary rule consists of standard of behavior and obligations we follow in a family,
community, kinship etc. They differ from family to family. They are unofficial, uncertain,
inefficient and static character.
2. Secondary rule: Secondary rule is power conferring For instance legislators which modifies
policies as per the needs of the society. He says morality is the force which is required for
unification of primary and secondary rules.

He means to say that law is the system of rules and these rules are primary which are pre-legal rules and
secondary which are legal rules and the main based of his theory on the relationship between Law and
Society.

Sir HLA Hart theory talks about the two worlds.

Concept of law
Pre-legal world Legal world
No legislature Rule of recognition
No executive Rule of change
No court Rule of ad justice

Pre-Legal World :- This pre legal world belongs to old age. Pre legal world was primitive society. And in
this society there was no legislature which can make the rules. There was no executive also which can
change the rules besides this there was no court also to decide the disputes. In the primitive society there
were three defects,

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 Un-certainty: - Since there was no Parliament in the primitive society it caused the un-certainty in
the law.
 Static character:- In the primitive society there were customs and these customs were not changed.
It means it had static character.
 Inefficiency: - In the primitive society there was no power of Jurisdiction. It means that there were
no courts followed by the people.

Legal World :- This legal world belongs to modern age. According to Sir HLA Hart in the legal world is
the modern society.
 In the modern society there are rules of recognition which means that there is a Parliament/State
Executive. The function of the Executive to change or to amend the rules.
 In modern age there are courts which decides the disputes. Judges applies the earlier laws in
deciding the disputes. These rules/laws are the secondary rules.

Thus we can say that Law is the union of Primary and Secondary rules. In other words it can be said that
the Law is the journey of rules.

Relevancy of HLA Hart’s theory

Sir HLA Hart’s theory “ concept of Law “ is the most important theory of analytical school.
 Because this theory tells us about the relationship between old age and of the modern age. In the old
age there were primitive society which did not have any legislature, executive and court. Therefore
there were only custom and usages which were not allowed to change by any person.
 The theory of ‘concept of law’ tells us about the legal world. In the legal world there is a
legislature which makes the rules and these rules are changed or amended by the executive when it
necessary. There are courts which apply the rules on party. So we can say that in modern age the
law is certain not static in character.
 Sir HLA Hart also gives the place of Morality in his theory because the moral have an important
role in every legal world and these morals are not changed by passing any Act.

Law and morality

Hart did not denounce morality or natural law. But Austin and Kelson never recognized it. For law
and morality certain natural law is necessary. It is logical one. Morality is a force which unites primary and
secondary rules. Law and morality are complementary and supplementary to each other

Criticism
 Dworkin and Fuller criticized the theory of Hart
 His theory based only two rules primary and secondary which are not possible
 Rule of recognition is only discussed not analysed.

Conclusion:- Sir, HLA Hart theory Concept of Law have no conclusion because this theory talks about
both the pre-legal world and the legal world which updates and tells us that how the law is not static. So we
can opined that such best and usable theory needs no conclusion as it has its self conclusion.

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Historical School of Jurisprudence

Intro and Meaning:
With the changing needs and nature of persons, the law should be changed. The historical school follows
the concept of man-made laws. ‘Law is formulated for the people and by the people’ means that the law
should be according to the changing needs of the people. And everyone understand their own need better
than anyone else.

The basic source of the Historical School of Jurisprudence is the habits an custom of people which changes
according to their needs and requirement. It is also called the continental school of Jurisprudence.

Cause for origin of historical school

 The Historical school is just opposite to the Analytical school
 In 18th and 19th century, the concept of individualism came into existence. Due to this concept
there arose revolutions like French revolution, Russian revolution etc. At that time Soveging
montasque, Barke, Hngo were the writers who said that law is the general will of the people or law
is based upon common people and the feelings of the common people.
 The Historical approach to law arose as a reaction against natural law theories Historical approach
derived its in inspiration from the study of Roman law in the condiment.

Montasoque has said, “Law is the creation of climate, local situations and accidents.”.
According to Burke, “ Law is the product of the General process. In this sense it is dynamic organ which
changes and develops according to the suitable circumstances of society.

Characteristics of historical school

1. Law is found and not made. It is self existent.
2. Law is antecedent to the state and it exited even before states came into existence.
3. Law is independent of political authority and enforcement.
4. Law rests on Social pressure.
5. In construing a statute judges should consider the history of legislation in question.
6. The typical law is custom.

7. Emphasis is on comparative method.

8. The Jurisprudents of this school strongly opine that custom is superior than legislation.
9. The Analysis of the first principle is that law is the result of historical reasons and circumstances and
the spirit of the people.
10. According to this school ‘law is found’.
11. According to this school, custom is the formal source of law. Other methods of legal evolution like
legislation and precedent derive their authority from custom.
12. It proceeds to examine the manner, circumstances and factors responsible for the growth of law and
takes account of the social forces operating in the process of the evolution of law.

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Jurists of Historical School of Jurisprudence

Montesquieu

the 1st Jurist to adopt the historical method of understanding the legal institution was Montesquieu. He laid
the foundation of the historical school in France. According to him, it is irrelevant to discuss whether the
law is good or bad because the law depends on social, political and environmental conditions prevailing in
society. He was of the view that law must change according to changing needs of the society.

Savigny and his theory of Volkgeist

Savigny is regarded as the founder of the Historical School. He has given the Volkgeist theory. This theory
of Volkgeist is based on the historical method. It says that 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.

The main features of the Savigny theory

a) General conscious of people as law: He says that law is the general consciousness (Volkgeist) of the
people. It means what the common people think or behave is the base of law. Law shows the general
nature of the common people.

b) Law is found and not made: Law is a product of the people’s life. Law has its source in the general or
common consciousness of the people. Lawyers remain only the mouthpiece of popular consciousness
& their work is to shape the law accordingly

c) Law has a national character: According to this theory, 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 national character.

d) Law is pre historic: it means law is found and is not made. Already existing laws the jurists and the
lawyers make it into a set form. The law in the ancient times was based mainly upon simple rules,
regulation, custom, usages conventions etc. These things were later on developed by the jurists and
lawyers. These things were later on converted into set form of law.

e) Law differs from society to society: Law is based upon the national conditions, situations,
circumstances, custom etc. Law has no universal application. It differs from society to society and state
to state. In the same way the languages differ from society to society and locality to locality.

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f) Law has natural character: Law develops like the language and manners of the society. So law has a
natural character. In ancient society law was not in a set form. With the development of the society, as
the requirements and the necessities of the society increased law develops.

g) Importance of customs: According to Savigny customs are more important than legislation because
customs come before legislation. Custom not only precedes legislation, but it is superior to it. In other
words the customs are the base of legislation.

Criticism of Savigny’s theory of volksgeist

1. Inconsistency in the Theory :- Savigny asserted that the origin of law is in the popular consciousness,
and on the other hand, argued that some of the principles of Roman law were of universal application.
Thus, it is a clear cut inconsistency in his ideas.
2. ‘Volksgeist’ not the Exclusive Sources of law :- There are many technical rules which never existed in
nor has any connection with popular consciousness.

3. Customs not Always Based on Popular Consciousness:- Many customs are adopted due to imitation
and not on the ground of their righteousness. Many customs are originated only for the convenience of
a powerful minority such as slavery Sometimes customs completely opposed to each other exist in
different parts of the same country which cannot be said to be reflecting the spirit of the whole
community.

4. Savigny Ignored Other Factors That Influence Law:- The law relating to trade unions is an outcome
of a long and violent struggle between conflicting interests within a society.

5. Many Things Unexplained :- Legal developments in various countries show some uniformity to
which he paid no heed. i.e. What is national and what is universal.

6. Juristic Pessimism:- Savigny encouraged juristic pessimism. Legislation must accord with popular
consciousness. Such a view will not find favour in modern times. No legal system would like to make
compromise with abuses. People are accustomed to it.

Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical
school was carried forward in England by Sir Henry Maine.

Maine describes the development of law in four stages:

 First stage

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Rulers are believed to be acting under divine inspiration. And the laws are made on the commands of the
rulers. For example, Themistes of ancient Greek. The judgment of the king was considered to be the
judgment of God or some divine body. King was merely an executor of judgments of God, not the law-
maker.

 Second stage

Then the commands of King converted into customary law. The custom prevails in the ruler or majority
class. Customs seems to have succeeded to the right and authorities of the king.

 Third stage

The knowledge & administration of customs goes into the hands of a minority, Due to the weakening of the
lawmaking power of the original law-makers like Priests the knowledge of customs goes into the hands of
a minority class or ordinary class. And the ruler is superseded by a minority who obtain control over the
law.

 Fourth stage

In the fourth and last stage, the law is codified and promulgated.

Static and Progressive Society

Static societies

Societies which does not progress and develop their legal structure after the fourth stage of development of
law are Static society. Static societies don’t progress beyond the era of codes.

Progressive Society

Societies which go on progressing after the fourth stage of development of law are Progressive Societies.
They develop their laws with the help of these instruments:

 Legal Fiction

 Equity

 Legislation

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Georg Friedrich Puchta

Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical school of
Jurisprudence. Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s ideas. His
ideas mainly focused on the situation when conflict arises between general will and individual will. In the
conflict between general will and individual will, the state came into existence.

The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and formulate
laws”. Both State and individual are the sources of law.

Conclusion

Historical School of Jurisprudence describes the origin of law. This school argues that the law was found
not made. The main source of law is Kings Judgment, Customs and habits. Jurists like Montesquieu,
Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the supporter of the Historical School of
Jurisprudence. According to Sir Henry Maine, Montesquieu was the first jurist of Historical school. Sir
Henry Maine was the jurist of English Historical School. He was more logical and accept the concept of
Codification and legislation.

Sociological school or law is social engineering

Introduction
Introduction:- The sociological school is one of he important branches of law. It comes after the Analytical
school and Historical school. Its seeds were found in the historical school. Duguit, Roscopound and Camta
are the supporters of this school. This school is related with society.
According to this school Law and society both are the two sides of the same coin, one cannot exist without
the other. If there is law there should be society and if there is society there should be law. Law is very
necessary for regulating the society.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the Law and society. This school laid
more emphasis on the legal perspective of every problem and every change that take place in society. Law
is a social phenomenon and law has some direct or indirect relation to society. Sociological School of
Jurisprudence focuses on balancing the welfare of state and individual was realized.

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Characteristics of sociological jurisprudence

1. Sociological jurists regard the working of law rather than abstract content of law.
2. They regard law as social institution consciously designed on the basis of experience and need.
3. It emphasis upon social requirements and purposes which law must attend rather than upon irrelevant
commands of sovereign.
4. They emphasise on functional aspects of legal institutions, doctrines and precepts and consider merely
as a tool to subserve varying individuals and social interests
5. They are diverse in their perception of law like some are pragmatists, empiricists or technical etc.

Jurist of the Sociological School of Jurisprudence

Montesquieu (1689-1755)

Montesquieu was the French philosopher and he paved the way of the sociological school of jurisprudence.
He was of the view that the legal process is somehow influenced by the social condition of society. He also
recognized the importance of history as a means for understanding the structure of society. And explained
the importance of studying the history of society before formulating the law for that society.

Eugen Ehrlich (1862-1922)

Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study of law
from the sociological perspective. Ehrlich considered society as a main source of the law. And by society,
he means “association of men”.Ehrlich had written that “Centre of gravity of all legal developments is not
in legislation or judicial decisions but in society itself.”

Leon Duguit and concept of social solidarity

The theory of Duguit under sociological school is a social solidarity. Social solidarity means the
greatness of society. Duguit said that there are mainly two types of needs of the society:- Common Needs
and Adverse Needs.
a. Common Needs :- Which are fulfilled by mutual assistance.
b. Adverse Needs.:- Which are fulfilled by the exchange of services.
No one can live without the help of other. Even a state cannot exist without the help of other state. One
cannot produce all things required for him. So he has to depend upon others. The dependency is called
social solidarity. For this purpose the division of labour is necessary. Division of labour will fulfill all
requirement for the society. This philosophy or views is called social solidarity.

Essentials of Duguit theory of law.

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1. Mutual Inter dependence : In society all persons are depending upon each other. Individual cannot
fulfill his ambitions alone.
2. No difference between state & society: State and society are a group of persons. Main purpose of the
society is to save the people. This responsibility is also lies upon the state. So state does not have a
special status or above status from people. State should make law for the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically superior person. Duguit says that sovereign is
not superior to people. The sovereign of a state lives in people or in the will of people.

Difference between Public and Private law

Duguit says that there is no difference between public law and private law because the aim of both the law
is to develop the social solidarity. Pubic law and private law are meant for people. Public right and private
right or people have only duties and not any right.
There is no difference between public right and private right. According to Duguit there is only one
right that is to serve the people. It means person have only duties not rights.

Criticism of Dugit’s theory

1. The theory of social solidarity is vague:- This theory is not clear for a common person. One
cannot gain anything from this theory so this is vague theory.
2. Who will decide social solidarity :- Duguit has not given the authority that who will explain the
solidarity because Duguit did not recognize sovereignty. We can imagine that Judge will explain
the standard of social solidarity. But there are no guidelines for the Judgess
3. Public law and Private law are not same :- There must be an authority which passes the law. In
Duguit theory there is no place for such authority.
4. Public right and Private right are also not same :- The right of society is public right and the
right of common people is private right.
5. Custom ignored:- Custom is the base of any law but Duguit ignore these customs. In this way the
theory of Duguit is not suitably in modern times.

Conclusion
No doubt Duguit was a sociologist because he gave a lot of development to society. The social solidarity
itself contains the welfare of the people. Duguit said that law should be according to the social solidarity.

Roscoe Pound and his theory of social engineering.

Roscoe Pound is considered to be the,” American Leader” in the field of Sociological

jurisprudence. According to him the goal of law should satisfy a maximum of wants with minimum of
friction.”

The main propositions of Roscoe Pound theory of Social Engineering are as under:-

The aim of social engineering is to build as efficient a structure of society as possible, which requires the
satisfaction of the maximum of wants with minimum of friction ans waste.
According to Pound, law is social engineering.

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He defined law as body of rules, principles, conceptions and standards of conduct and decision as
also the precepts and doctrines of professional rules of art by which the precepts for conduct and decision
are applied and developed and given effect.
He considers law as a means of a developed technique and treats jurisprudence as ‘social
engineering’. Thus jurists like an engineer who develops precepts with his experience, scientific
formulation of experience, logical development of formulations and also inventive skill.

He lays down a method, which a jurist should follow for ‘social engineering’.
 He should study the factual social effects of legal institution and legal doctrines,
 study the means of making legal rules which are more effective in preparation of law-making,
 study of both psychological and philosophical of judicial method,
 should do a sociological study of legal history and the importance of reasonable and just solutions of
individual cases.”

Law as purposive functional and need based

According to Pound jurists, judges ad legislators should adjust to the needs and interests of the community.
Since the society is always changing law should be continually adapted and readapted to the needs of
individual and society. So there should be cooperation between legislators, administrators and jurists. They
should work together to secure social harmony and social justice.

Balancing of interest
By social engineering means a balance between the competing interests in society for the greatest benefit.
Law should procure the greatest good of the largest number in society.

Pound said it is the task of jurists to assist the courts by classifying and expanding on the interests protected
by law. He himself enumerates the various interests, which are to be protected by the law. He classifies
them under three heads: Private Interests (ii) Public Interests (iii) Social Interests
 Private interests:-
a. Personality : they include the physical person, freedom of will, honour and reputation,
privacy, belief and opinion.
b. Domestic relation: private interest also includes parents, children, husband or wife
c. Interests of substances: it also includes property, freedom of industry or contract, freedom of
association, livelihood

 Public interests:-
Main public interests are preservation of the State, State as a guardian of social interests such as
Administration of trusts, charitable endowments, protection of Natural environment, territorial
waters, sea-shores, regulation of public employment and so on.

 Social interests
a. social interest in the general security:- Preservation of peace, general health,
b. social interests in the security of social institution: preserving of Social institutions such as
religion, marriage etc political and Economic institutions, c. interest in preserving general
morals by discouraging gambling, corruption etc.

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d. interests in conservation so social resource i.e. natural resources and protection of defective
and dependents
e. interests in general progress which is to be achived by freedom of education, freedom of
speech and expression, freedom of property, trade and commerce.
f. interest which promotes Human personality by giving opportunity and creating good
condition of life.

It is through the instrumentality of law that these interest are sought to be balanced. Law is device to strike
a balance between varying interests individual, public and social.
To concluding the theory, Pound says that the aim of ‘Social Engineering’ is to build an efficient
structure of the society as far as possible which involves he balancing of competing interests.

Jural Postulates by Roscoe Pound

Roscoe Pound mentioned the five Jural Postulate and mentioned that the interest mentioned in these jural
postulates should be protected and nourished.

Criminal

An interest of protection from any intentional aggression. For Example, Assault, Wrongful restraint,
Battery, etc.

 Law of Patent

An interest of securing his own created property by his own labour and hard work. E.g. agricultural land,
any music or artistic things.

 Contrac

The interest in making the contract and getting of reasonable remedy or compensation when his right
violate

 Torts

Protection against Defamation and unreasonable injury caused by the negligent act of another person.

 Strict Liability

Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury caused by the things of
another person. It is the duty of other people to keep his/her things with his/her boundary and should look
after that thing to avoid injury to other people.

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Criticism
a. Engineering not a happy word : It suggests a mechanical application of the principles to social
needs but really the word engineering is used by Pound metaphorically to indicate the problems
which the law has to face.
b. Classification of interests not useful: Freidmann doubts the value of classification of interests
and the value of such classification.

Conclusion
Sociological School of Jurisprudence studies the relationship between and society. It explains the
interdependence of law and society. One can’t formulate better and effective law without looking and
studying the need and structure of society. For the betterment and harmonious society, we need better and
effective laws. While the Eugen Ehrlich argued that the “Society is the main source of law” and Roscoe
Pound compared the lawyers with Engineers. And argued that the objective of the law is to solve the
conflict between the Individual Interest and State Interest.

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