GOPALDAS JHAMATMAL ADVANI LAW

COLLEGE
BANDRA (W), MUMBAI–400050

ASSIGNMENT

Schools of Jurisprudence

SUBMITTED BY: Manali Nagendra Jain

S.Y.LL.B

ACADEMIC YEAR: 2020–2021

DIVISION: A

ROLL NO: 59

SUBJECT: Jurisprudence

SEMESTER: IV

SUMBITTED TO: Dr. Shilpi Jha

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Introduction
The words jurisprudentia which means knowledge of law. The Latin
word juris means law and prudentia means skill or knowledge. Thus,
the term jurisprudence signifies knowledge of law and its application.
Jurisprudence means the interpretation of the general principles based
on which actual rules of laws are recognized. Jurisprudence is
concerned with the rules of external conduct which people are forced
to obey.
According to Salmond Jurisprudence is the science of the first
principles of civil law.
According to Austin Jurisprudence is the philosophy of positive law.
General jurisprudence can be divided into two categories which include the analytical
jurisprudence and the normative jurisprudence. The analytical jurisprudence talks about the
questions as to what is the law while the normative jurisprudence talks about questions such as
what is the purpose of the law. The best answer of all these questions can be answered under
the five main schools of Jurisprudence which includes:

 Philosophical school or Natural school

 Analytical school
 Historical school
 Sociological school
 Realist school

Object
Jurisprudence is study and knowledge of law. For better understanding and contemplation of
law schools of thoughts were introduced. In this assignment I have done detail research and
analyzed various schools of jurisprudence.

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Schools of Jurisprudence
The school of thought is a principle or body of principles accepted as authoritative and
advocated by one or more scholars belonging to a specific discipline. Schools are groups of
thoughts that are based on broadly same fundamental premise.
The schools of Jurisprudence have defined law in various aspects. Many jurists have attempted
to define the concept of law in clear aspects. The concept of law shall be mentioned in detail
under the following schools of Jurisprudence.
1. Philosophical school or Natural school
2. Analytical school
3. Historical school
4. Sociological school
5. Realist school

1. Philosophical School
Philosophical school or Natural school concerns itself
mainly with the connection of law to specific thoughts
which law is intended to accomplish. It tries to explore the
reason for which a particular law has been established.
According to this school, legal philosophy must be based
on ethical values so as to motivate people for an upright
living. It in a way refers to those principles of morality
which moulds the conduct of a man enabling him to
distinguish between right and wrong and respecting the
rights of others in order to maintain social harmony. It is also known as moral law school.
Belief -'Law is based on Reason'. Any law that is against 'reason' is invalid. Example- Article
13 of the Indian constitution. Laws may be made by the society or by the state bit they are
based upon the strong foundation of 'reason'. Laws should be based upon ethical values so as
to result in maintaining peace and harmony in the society.
This school of Jurisprudence seeks to answer such questions as - What are the principles on
which the existing law is based? Are these principles in keeping with rules of natural justice?
If not, how can the position be improved and so on?

This school of Jurisprudence essentially deals with following matters:

1 The concept of law and hence of justice.
2 The relation between law and justice
3 How justice is maintained in a society through its system of law.
4 The distinction between law and morality and how each can contribute to the ends of justice.
5 The fundamental legal concepts and principles which have ethical significance.

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Prominent Thinkers
 Hugo Grotius (1583 - 1645)
Grotius stated that natural law springs from the social nature of man and the natural law as well
as positive morality, both are based on the nation of righteousness. Natural justice is the justice
indeed with truth. The rules of human conduct emerge from right reason and they receive
support of the coercive force of the state but the census of public disapprobation.
The view of Grotius was that the agreement of mankind concerning certain rules of conduct is
an indication that those rules originated in right reason. Grotius defined natural law as "q dictate
of right reason which points out that an act, according as it is or is not in conformity with
rational nature, has in it a quality of moral baseness or moral necessity.

 Immanuel Kant (1724 - 1804)

According to Kant "the freedom of man act according to his will and the ethical postulates are
mutually co-relative because no ethical postulate is possible without man's freedom of self-
determination." Kant calls substance of ethical postulate as "Categorical Imperative" which is
the basis of his moral and legal theory.
Relied upon the concept of 'united will of the people' law is an instrument through which we
harmonize the individual will with general will. An individual is required to act in such a way
that 'maxim' of your action will become the 'maxim' of general action of the society.

 Hegel (1770 - 1831)

The great contribution of Hegel to Philosophical school is the development of the idea of
evolution. According to him "the state and law both are evolutionary." The various
manifestations of social life, including law are the product of an evolutionary, dynamic process.
As per him, the different appearance of social life, including law are the result of a
developmental, unique procedure. This procedure includes rationalistic structure, uncovering
itself in theory, absolute opposite and blend. The human soul sets a proposition which ends up
present as the main thought of a specific recorded age.

Criticism on Philosophical School

Austin is against the ethical school as according to him, there is no necessary connection
between law and morals judgements, unlike statements of fact, cannot be established or
defended by rational argument, evidence or proof.

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 2. Analytical School
Analytical School is otherwise called the
Austinian school since this methodology is set up
by John Austin. Analytical School was perhaps, a
reaction against the natural law theory that was
based on morality and ethics. During 19th century,
the natural law theory lost its significance mainly
due to the influence of scientific techniques over
social sciences including jurisprudence.
Analytical School is concerned neither with the past nor with the future but with the law as it
exists i.e. law as it is. It undertook the task of separating the law as 'it is' and the law as is
'ought to be' This separation is the most fundamental philosophical assumption of legal
positivism.

Prominent Thinkers
 Bentham (1748 – 1832)
Bentham is the founder of positivism. Like Austin's theory, Bentham advocated an imperative
theory of law in which the key concepts are "sovereignty and command". On one hand,
Austin’s sovereign is assumed as an unlimitable or indivisible entity but Bentham's sovereign
is not like that and he accepts the divided and partial sovereignty with some legal restrictions
imposed on him. Bentham theory is called "Utilitarian Individualism"
Legal system- When a number of persons are supposed to be in a habit of paying obedience to
a person, or an assemblage of persons, of a known and certain description such persons
altogether are said to be in a state of political society.
Bentham's Utilitarianism - Bentham defined law as 'an assemblage of signs, declarative of
volition conceived or adopted by a sovereign in a state which means that law is an expression
of the will of the sovereign in a state. '
Definition has 6 key elements: -
 Collection of signs
 Which indicate an intention or volition?
 Which are conceived of by a sovereign in a state
 Which describe a desired behavior
 Of the people to whom it is directed
 Which provides a motive for those subjects to obey?
Bentham believed that the willingness of the ruled to obey the command of sovereign is based
on the ‘reward’ and ‘punishment’ they will suffer as a result of either obeying or not obeying.
The legal system is nothing more than the collection of individuals that obey a sovereign
issuing commands that are backed by mainly coercion but also some rewards. Unlike natural
law theory, Bentham’s conception of law has no recourse to more ‘lofty’ principles such as

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divine authority or religious based morality or complying with the law because it is ‘rational’
and hence ‘right’ for human flourishing.
According to Bentham, every law may be considered in the light of 8 different aspects: -
 Source- law is the will of the sovereign.
 Subject- person or thing.
 Object- act, situation, forbearance.
 Extent- law covers a portion of land on which act is done.
 Aspect- may be directive or sanctioned.
 Force- to produce the effect.
 Remedial state appendages- something attached with the state
 Expression- of will.

Individualism - Based on the principle of ‘Laissez-Faire’ means minimum interference of the

state in the economic activities of the individual. This should be resulting in the happiness and
welfare of society. According to Bentham, the purpose of the law is to bring pleasure and avoid
pain (Pain and Pleasure theory) and the legislation came to an end on the ‘greatest happiness
of the greatest number.’ According to this theory, the right aim of the legislation is to carry out
the principle of utility. The legislation developed the law on the basis of the utility of
individuals.
Utility – Bentham defines ‘utility’ in two terms: -
 To provide pleasure property/tendency of a thing, to provide some pleasure, benefits,
advantages, happiness.
 To prevent pain, to prevent the happening of mischief, pain, evil or unhappiness.
The utility is based on the greatest number of happiness of the greatest number (maximum
happiness to the maximum number of people). That is why this theory is also known as
“greatest happiness principle”, which means any law is good/bad depends upon general
happiness of the majority of the population.

Criticism
1. According to Friedman; Bentham's theory mainly suffers from two weakness.
 Bentham mingled materialism with ideas.
 fails to balance the individual interest with the interest of the community.

2. other criticisms include that pleasure and pain is not the final test of the adequacy of law or
any legislation
3. Theory states that interest of an unlimited number of individuals shall contribute to the
interest of the community but fails to recognize the inequities.
4. The application of the concept of "Laissez Faire" providing a complete framework for
individual freedom is not totally correct. Legislation is required to restrict individual behavior.

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  John Austin (1790 – 1859)
Austin defined law as a rule laid down for the guidance of an intelligent being by another
intelligent being having power over him. Austin defines law in two parts: Proper Law and
Improper Law. Then again proper law is divided into two parts: Firstly, the law set by God to
man and Secondly, laws made by man for man. Human law is divided into two heads: Positive
Law and Positive Morality. Only Positive laws are the proper subject matter of jurisprudence.
According to Austin, the law is the command of the sovereign imposing a duty which is
enforceable by sanction. The study and analysis of positive law are based upon the law which
is strictly applied by political superiors to political inferiors.
The basic features of Command theory are:
 Command (by political superiors).
 Duty (imposing duty on political inferiors).
 Sanction
 Sovereignty

Exceptions to Austin’s Theory

Austin says, “every law is a command imposing a duty enforced by a sanction, however, all
the commands are not law”. It is only the general command which is a law. Austin, though
accepts that there are three kinds of laws which are not commands but may be included within
the purview of law by way of exception. They are:
a) Declaratory/Explanatory laws: They are not commanding because they are already in
existence and are passed only to explain the law which is already enforced.
b) Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the
revocation of a command.
c) Law of Imperfect obligations: They are not treated as commands because there’s no
sanction to them. Austin holds that a command to become law must be accompanied by duty
and sanction for its enforcement.

Criticism of Austin’s Theory

 Importance of Customs are overlooked
 Laws conferring privileges- Failed to ignore certain laws such as Laws of Succession,
contracts, easements etc. which are not necessarily enforced due to sanction.
 No place for judge-made law.
 Austin theory treats international law as morality- neglects the role of international law.
 Over-emphasis on Command- ignores the role of General will of People in Democratic
set-up.
 Interrelation between law and morality is completely ignored.

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  H.L.A . Hart (1907- 1992)
Hart conceives law as a social phenomenon and it can only be understood and explained by
reference to the actual social practices of a community. According to Hart, Law is a set of rules.
Where there is ‘law’, the human conduct is non-optional or obligatory. Idea of obligation is the
core of a ‘rule’. These obligatory rules are supported by great social pressures, since they are
felt necessary in order to maintain the society.
Hart criticized Austin by using the ‘Gunman’ example. When the gunman asks the banker to
give away the money, the banker is not under an obligation to give the money but is being
obliged to do so. Similarly, if one jumps red-light even if knowing the fact that he won’t be
fined, the obligation to stop won’t go way despite the absence of sanction and the person will
remain under an obligation to follow traffic rules. The obligation to follow rules persists even
in the absence of sanctions. Thus, Hart believed that rules are followed not because of the
sanctions but because of the society’s acceptance of a rule being binding.

Classification of Rules- Primary & Secondary

Primary rules are those rules of law which impose basic duty on individuals. They determine
what people ought and ought not do and thereby create obligations which need to be followed
by the people in a society.
Secondary rules are those rules of law which govern the creation of primary rules. These are
power conferring rules in a way that they check the validity of primary rules. These rules lead
to establishment of judiciary, executive and legislature. These also include certain private rules
such as power to make contracts or other rules determining legal relationship between the
parties.

Limitations of Harts Theory

The biggest drawback of this theory is the problem in identification of these rules.
Another ambiguity is regarding how the rules of recognition are recognized?
Further the theory might fail to address those situations where the rule of recognition has itself
been challenged before the court of law or where rule of recognition failed to validate/generate
a primary rule. Here Prof. Hart describes it as an ‘open texture’ where judges are free to use
their discretion and adjudicate. (refers to a shift in ideology from positivism to realism)

 Hans Kelson (1881-1993)

According to Kelson, law should be uniform. It should be applicable to all times and in all
places. Law must be free from ethics, politics, history, sociology etc. in other words, it must be
pure. According to Kelson law is a normative science and it is not a natural science based on
cause and effect like law of gravitation. Laws of natural science are capable of describing as
‘what it is’ as compared to science of law where law is knowledge of ‘what is ought to be’.
This ‘ought’ to provide a normative character to law.
Law as a normative science

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According to Kelson, jurisprudence is the knowledge of norms. Law is a normative science. A
norm of law is simply a preposition in hypothetical from. A norm of law has a distinct feature.
They are different from Science norm. Example- If ‘A’ commits a theft, he ought to be
punished. For Kelson law is the knowledge of hierarchy of normative relations. Kelson’s Pure
Theory of Law is based on a pyramid structure of hierarchy of norms which derive their validity
from basic norm known as the ‘grundnorm’ Legal system is a hierarchy of norms where each
norm is deriving their validity from its superior norm. The basic norm is the ‘Grundnorm’ as
the Apex granting validity to all other subordinate norms. All subordinate norms are controlled
by their superior norms.

Criticism of Hans Kelson

1 Kelson emphasizes upon the purity of law by keeping it free from ethics, politics, history,
sociology etc. on the other hand it suggests that ‘Grundnorm’ i.e. similar to the Constitution is
ought to be followed. Whereas Constitution of a country is considered to be a sociopolitical-
legal document which then cannot be considered to be ‘pure’.
2 It is not possible to keep law free from ethics and morality.
3 Kelson attempted to change the law into science which based on logic, however, laid over
emphasis on assumptions (hypothetical situations) which take it far from logic

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 3. Historical School
Historical school of Jurisprudence argued that the law
is the exaggerative form of social custom, economic
needs, conventions religious principles, and relations of
the people with society. Law is found not made. This
school did not support the theory propounded by the
natural law thinkers that the origin of law is from
superior authority and have some divine relevance. It
followed the concept of man-made laws. It believed
that ‘Law is formulated for the people and by the people’ means that the law should be
according to the changing needs of the people. It originates from the habits and customs of
people which change over a period of time according to their needs and requirement. Historical
school arose as a reaction against the natural law theories. It also opposes the ideology of the
analytical school of jurisprudence.

Prominent Thinkers
 Montesquieu (1689 – 1755)
Probably the first jurist to adopt the historical method of understanding the legal institution.
Laid the foundation of the historical school in France. According to Montesquieu, 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 believed that “law is the creation of the
climate, local situation, accident or imposture”. He opined that law must change according to
changing needs of the society.

 Von Savigny (1779 – 1861)

Savigny is known as the ‘father’ of the Historical school. According to him ‘Law’ was a
product of “internal, silently-operating forces.” It was deeply rooted in the past of a nation, and
its true sources were popular faith, custom, and “the common consciousness of the people.”
He believed that the law cannot be borrowed from outside. Like the language, the constitution,
and the manners of a people, law was determined above all by the peculiar character of a nation,
by its ‘national spirit’ (Volkgeist).
In all people, certain traditions and customs grow up which by their continuous exercise evolve
into legal rules. Only by a careful study of these traditions and customs, the true content of law
can be found. Law in its proper sense is identical with the opinion of the people in matter of
right and justice. Law is found and not made. Law develops like language which eventually
grows. The organic evolution of law with the life and character of the people develops with the
ages.
Law cannot be of universal validity nor be constructed on the basis of certain rational principles
or eternal principles. Law should not be found from deliberate legislation but should be made
and arises out of the general consciousness of the people. Lawyers are the mouthpiece of
popular consciousness and their work is to shape the law accordingly. Legislation, though is

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the last stage of law making however, the lawyers or the jurists play more significant role than
the legislators.
Criticism on Von Savigny Theory
Charles Allen criticized Savigny’s view that law should be found or based on the customs.
Allen was of the view that customs are not the outcome of common consciousness of people.
But they are the outcome of the interest of a powerful and strong of a ruling class. For example,
slavery which was recognized and prevailed in certain societies by the powerful classes of
society.
Prof. Stone criticized the Savigny and opined that his theory ignored the efficiency of the
legislation and planned law and social change. It over emphasized on the consciousness of
people. For example, In India, the abolition of Sati and widow’s remarriage are brought in to
change because of powerful and effective legislation.

 Sir Henry Maine (1822 – 1888)

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 him.
Maine described development of law in four main stages:
First Stage- 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- 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- the law is codified and promulgated.
Maine further opined that after the fourth stage the societies need to progress in order to further
develop their legal structures. The societies which fail to progress beyond the codes were
termed as ‘static societies’ Whereas ‘progressive societies’ continue to develop their legal
system with the help of principles of equity and legislations. Sir Henry Maine was a string
supporter of ‘codification’ and legislation.
Criticism of Historical School
Many scholars criticize this school of thought Karl Marx devoted an entire in 1842 titled. “The
philosophical manifesto of the historical school of law” to criticize the historical school of law,
calling it the “solve frivolous product” of the eighteenth century.

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 4. Sociological School
Jurists belonging to the sociological school of thought are
concerned more with the working of law rather than its abstract
content. Their principal premise is that the law must be studied
in action & not in textbooks. They are concerned with the study
of law in relation to society. They concentrate on actual social
circumstances which give rise to legal institutions. They insist
that the legal order is a phase of social control and that it can’t
be understood unless taken in its whole setting among social
phenomena. Herbert Spencer, Ihering and Roscoe Pound are
the notable jurists of this school.
Prominent Thinkers
 Herbert Spencer
In his famous work "Principles of Sociology" Spencer traced this theory of the origin of law.
To him, law arises from four sources inherited usages with quasi-religion sanctions, injunctions
of deceased leaders, the will of the predominant man and collective opinion of the community.
For spencer evolution was the key point to the understanding of human progress.

 Rudolf Von Ihering:-

He says that the law is coercion organized in Act from by the state. It is a process to achieve a
proper balance between social and individual interests. It is through two impulses viz coercion
and reward that society compels individuals to subordinate selfish individual interest to social
purposes and general interest.

 Roscoe Pound: -
Pound looks at law as a pragmatist from the point of view of its working, ends, consequences
fruits, and effects on society. He asserts that law is a method or technique for harmonizing
conflicting social interests. His school is known as functional school as it concentrates more
on the functional aspect of law. In modern society, there are various interests and if claims of
these groups are not harmonized, there may be strife and thereby production may suffer. By
social engineering, Pound means a balance between the competing interests in society. In other
words, social engineering is a term used to define the act of balancing of different interests,
i.e., individual interests, public interests and social interests. The aim of social engineering is
to build as efficient a structure of society as possible. Pound says law exists for the benefit of
the society. Any law, which is against the interest of the society, can’t be said to be a law.

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 5. Realist School
The realist thought has evolved as a part of American jurisprudence. They are concerned with
the study of law as it works and functions which means investigating the social factors that
make a law on one 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. Legal realism suggests that judicial decisions
must comply with financial factors and inquiries of strategy and qualities. It is primarily based
on the notion that “law is what the psychology of courts determines.” “It is the aggregate of
the item of judicial and official actions.” “Law is what the judges decide.” Realists define law
not as set of legal propositions but in terms of official actions. It refers to the element of
uncertainty in law and part played by the personal characteristics of the judge. This school
strengthens sociological jurisprudence and perceives law as the consequence of social impacts
and conditions, and sees it as judicial decisions.

Prominent Thinkers
 Jerome N. Frank
"The law and Modern Mind" composed by Frank was published first in 1930 which presents
Franks jurisprudential thought on realism. To Frank Law "Consists of decisions". To most
people legal norms direct the judgment when as to Frank, not the legal norms but judgment
itself is the law. The individual decision then is the law par excellence. Frank observed that a
judge’s decisions are the outcome of his entire life history. The frank his fancily, vocations,
schools, Religion all these factors are influential and all are buried or unknown to everyone
except the judge himself. As a matter of fact, judge is unaware of his prejudices. It is the
personal like, dislike, intuition, temperament. experiences and personal characteristic which
are all important and accepted as "hunching" and mechanistic law, illusory precedents and
sundry myths are left together rest. Frank wants us to study law is action. The courtroom, not
the library should be our laboratory.

 Justice Oliver Homlmes

Oliver Holmes is, in a sense, an exponent of the realist school. “Law is what the courts do; it
is not merely what the courts say.” He puts emphasis on the fact that the life of law was
experience as well as logic. As Holmes would have it, “The life of the law has not been logic;
it has been experience.” He stressed the imperial and pragmatic aspect of law. For him legal
theory was to be studied primarily as first step towards a deliberate reconsideration of the worth
rules developed historically

 Gray
Gray drew a distinction between law and source of law. The former is what the judges decide.
Everything else, including statute are only source of law until interpreted by a court.
Accordingly, even a judicial decision is law only for the parties in the instant dispute and
therefore because a source of law since everything will depend on the interpretation that is put
in a later decision.

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Conclusion
The five schools of jurisprudence had played a very important role in defining law and its
functions, Although the contention of various jurists of the different schools, are different but
the motive behind their theories is to ‘maintain law’ and the only aim of this jurist is how law
can be governed in a better way and justice can be served at large level although the modes of
justice and is different. With the advancement in time, the theories of various jurists change as
Law changes with time even in the Indian Constitution amendments can be done by the
legislature and judges can do the interpretation. The Supreme Court being the third chamber of
the parliament can declare any Law unconstitutional if it is inconsistent with fundamental rights
and these amendments are done when it is required and also new laws are being introduced as
with the emergence of technology as there are crimes being committed by the use of
technology. In order to stop these crimes “Cyber Law” has been introduced which defines the
punishment of cybercrimes. Reforms have also been made in the Indian Penal Code so that the
heinous crimes could be prevented.

Some define Law as a command of the sovereign backed by sanction and some define it as the
greatest binding force both for those who govern and the governed. Some state law is what the
court has decided in respect of any particular set of facts, prior to such a decision, the opinion
of lawyers is only a guess as what the court will decide and this cannot be treated as law unless
the court so decides by its judicial pronouncements while the other state it as the outcome of
the habits and traditions of the people which they follow voluntarily as a member of
community. These habits and customs are acquired through necessity, accident, and other
processes.

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Bibliography

The topic assigned to me is “Schools of Jurisprudence” for this assignment I have referred
various books and website.

Books

 Bare Act
 Prof. S. N. Dhyani 3 Ed RP 2015

Sites Referred

 www.legalservices.com
 Indian Kanoon
 blog.ipleaders.in
 lawcorner.in

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