Legal Method Assignment

Schools of Jurisprudence

Schools Discussed:

A) Philosophical School
B) Analytical School
C) Sociological School
D) Historical School
E) Realist School

Philosophical School
Philosophical school shows the relationship between Law and Reason and it concerns itself with the objective
that law has to achieve, it is more focused on the what purpose law has to serve presently than the definition of
law with the historical or intellectual context.

According to Philosophical school, law is neither a command of the state nor the need of the people nor the
general will of the people but the what gives rise to law is the reason of people, an emphasis is laid on following
natural law or morality in every human being.

Law that is birthed by reason is meant to be just, fair and on top of it all reasonable for the citizens.

Even if the laws are made by a state or sovereign they are still made by men and must follow the natural law or
reason any law passed by the state which goes against reason or natural law will not be considered a law. Law
must be based on ethical values.

The two jurists we will be discussing in context with the Philosophical School are

#1 Hugo Grotius

#2 Jean Jaques Rousseau

 1. Hugo Grotius

Considered as the father of philosophical school, was the first thinkers to differentiate between Divine Law (law
of god or law of nature) and the Law of Reason, he believed that system of law is formed due to the social
nature of man or what he termed: The Right Reason.

The state was defined by Grotius as "a complete association of free men, joined together for the enjoyment of
rights and for their common interest." And in case of abuse of power Hugo supported resistance against the
state.

He is also considered the father of International Law in his book ‘On the Law of War and Peace’, Hugo was the
first to describe a society of states which was not governed by wars or force but was governed and regulated by
actual laws and will and mutual agreement to enforce the said laws between the states.

Pros

 Law's existence rooted in the social nature of man

 Separated law from religion which made room for secularism and a rational version of law
 Supported resistance against the state in exceptional circumstances
 Ruler bound to follow the principles of natural law

Cons

 Once the subjects transferred their legal power to the sovereign, they had no control after that.
 Promoted the concept of ‘just war’ which serves ‘the right’.
 2. Jean Jaques Rousseau

According to Rousseau modern man is enslaved to his own requirements was accountable for all his social ills
that fall upon man, these ills range from exploitation and domination of others to low self-esteem and
depression, Rousseau's notions of an ideal government was that one which keeps the liberty and freedom of its
citizens at its top objectives and protects it.

Rousseau's theory of ‘Social Contract’ is his initiative to imagine a form of government that best guarantees the
individual freedom of its citizens with appropriate level of constraints or limitations, Rousseau thought that as
long as property and regulations exist, individuals in present society can never be as free as in the state of
nature.

Pros

 Men made accountable for hiss social ills.

 Ideal government promoted which supports liberty and freedoms.
 Social contract allowed citizens to transfer their legal power to the state.

Cons

 ‘Appropriate constraints’ not defined.

 Concept of ideal government vague.
 Communist line of thinking which presented property and regulations in a negative light.
 Analytical School
Analytical or positive school is concerned with what law is than what law ought to be it portrays the state as a
necessary evil. The motto of analytical school is “where there is state, there will not be anarchy”; State is a
necessary evil.

This school is based on Analysis and is concentrated on what law actually is and not what ot ought to be and
believes that law is the command of the sovereign or the state.

According to this school the most important sources of law are legislation, judicial precedents and customary
law.

In this work we will be discussing the two of the prominent philosophers of the Analytical school (or Positive
school, Austinian School etc.)

#1 Jeremy Bentham

#2 John Austin
 1. Jeremy Betham

Also known as the Founder of the analytical school and not the father because of his more censorial (what ought
to be) than expository (what actually is) view of the law and his never explicit mentioning the word ‘command’
but alluded the idea of it. Jeremy was an idealist and was more focused on what law must be ideally.

According to him Law was supreme and above the wrong and the right

Law>Rules>Wrong/Right

He gave the concept of lassiez-faire which means let the man be free. In his book ‘Limits of Jurisprudence’ he
emphasized the need of the state to provide the maximum happiness and maximum liberty to the maximum
number of people, He gave a utilitarian formula to test the laws on the basis of Pain and Pleasure (he assumed
that pain and pleasure can be quantified)

His utilitarian Calculus tested the laws on 7 parameters

1. Intensity 5. Duration
2. Purity 6. Certainty

3.Extent 7. Propinquity

4. Fecundity

Pros

 Focuses on maximum happiness and liberty

 Supported lassiez-faire
 Tested law with the utilitarian calculus

Cons

 Lacked a system to enforce laws

 Focuses on censorial rather than expository aspect of law
 His theory fails to balance between individual interest with the interest of the community.
 2. John Austin

Also called the Father of the Analytical School

In his book Province of Jurisprudence;

According to him Law was the ‘command of the sovereign’

His approach to jurisprudence was mainly Analytical and according to him laws were rules laid down.

Laws were rules that were laid down by an intelligent and politically superior authority that has been termed as
the ‘sovereign’ by Austin.

These laws laid down are backed by sanctions on the subjects of the states I.e., the state can ‘command’ the
subjects to do or abstain from doing something and the lack of which will invite sanction from the state.

Sanctions were used by Austin to induce obedience in the citizens

Law = Command + Sovereign + Sanction

(Law equals to command of the sovereign backed by sanctions)

Pros

 Analysis based interpretation of Jurisprudence

 Law making power given to an intelligent politically superior being
 Introduced an obedience inducing mechanism – ‘sanctions’

Cons

 Customs have been ignored in Austin’s theory

 Unlimited power to the ‘sovereign’
 Use of only sanction as an obedience inducing mechanism
 Law has been treated as a fixed artificial part of the society rather than as a growing and evolving part
 No place for Judge made laws (no space given to judiciary for independent interpretation)
 Sociological School
The main idea behind sociological school is to establish a relationship between ‘society’ and ‘law’. Emphasis is
laid on legal problems in this school and on the utilitarian part of the law opposed to its conceptual substance.
Law is in its essence a part of the society and is directly or indirectly connected with the fabric of the society.
Law is viewed as a social phenomenon

August Comte was the first jurist to explicitly mention ‘sociology’ in his works

Sociological School considers law like other social sciences like economics, psychology, philosophy etc. Which
shows the dependence of law on society and its behavior.

The two jurists we will be discussing in the context of Sociological School are

#1 Roscoe Pound

#2 Eugen Ehlrich
 1. Roscoe Pound

Also known as the Father of sociological School, He gave the concept of ‘Social Engineering’ where he
compared lawyers to engineers just like engineers use science to manufacture new structure and products just
like that Social Engineers should build a structure in the society with ‘maximum happiness and minimum
friction’

Social Engineering is the process of balancing the conflicting interests of the individual and the interest of the
state with the help of the law by the social engineers.

According to Pound everyone has their own interests as supreme and it is the duty of the law to strike a balance
between the supreme individual interests and interest of the state.

Pound also gave five Jural postulates to be nourished and protected

a) Criminal Law: Interest of protection from and intentional aggression

b) Law of Patents: Interest of securing his own created property
c) Contract Law: Interest of making enforceable contracts
d) Law of Torts: Interest of protection against unreasonable injury

Strict Liability: Interest of making the responsible be held liable

Pros

 Balance between the individual and state interest

 Jural postulates to be protected for the citizens
 Focus on maximum happiness and minimum liberty

Cons

 Use of the term ‘Engineering’ in “Social Engineering” suggests mechanical and factory like approach to
the society when the two are very different society on one hand is dynamic and always evolving whereas
a factory is mostly stable and stagnant.
 Laws of society are not fixed and universally applicable unlike laws of science which are universally the
same and fixed e.g., law of Gravity (used in engineering)
 2. Eugen Ehrlich

Founder of the sociology of law, sociology of law is the study of law from a sociological perspective.

According to him society (Society =Association of Men) was the main source of law and the Centre of gravity
of all legal developments lies not in the legislations nor in the judiciary but in society itself, he even argued that
society is a better source of law than legislation and judicial precedents.

Ehrlich’s concept of ‘Living Law’ is that law of a community is found in social facts and not in formal sources
of law. Thus, living law is the fact which governs life and a proper study of law requires the study of all the
social conditions in which the law functions in the society

A statute which is habitually disregarded is no part of living. His use of the term ‘sociological jurisprudence’
means that law in a society should be made and administered with the utmost regard to its requirements. To
achieve this end, a very close study of the social conditions of the society, in which the law is to function, is,
indispensable.

Pros

 Law studied from a sociological stand point.

 Laws must be based on social facts

Cons

 Habitually disregarded laws are said to have no place in the living but some habitually disregarded laws
are essential for e.g., Traffic laws etc.
 Societal facts were termed a superior source of laws than legislation and judiciary for e.g. the practice of
sati was prevalent in the society until law cam to forbid the barbaric practice.
 Historical School
This School of law came into being as a response to the Natural school and it clearly opposes the beliefs of the
Analytical school as it failed to acknowledge the needs of the people.

According to this theory of Historical school follows the concept of human made laws, law is what the society
needs and is built on the consciousness of the people living in the society, and moreover the law must not be
static but must evolve with the society and the ever-changing needs of the people in the society. Customs are
considered a major source of law in this school as ‘Customs precedes Law’ in this school. Social Circumstances
give rise to the law and the legal institutions. And that law is and outcome of a long historical development of
the society as it originates from its social customs conventions, relations of the people.

According to this School of Law

Law = Customs + People + History

This equation sums up the concept of Historical School that law is the addition of the ‘Customs’ followed by
the people at that time with the current needs of the ‘People’ and the ‘History’ of the society.

The two jurists that we will be discussing to shed more light on Historical school are

#1 Montesquieu

#2 Friedrich Carl Von Savigny

 1. Montesquieu

Montesquieu was the first to think on the historical lines and laid the foundation of the Historical School,
according to him it was irrelevant to discuss what law is and whether it is good or bad but the only purpose law
has is to fulfill the needs of the society and its people at that time and according to the political, economic and
environmental conditions prevalent in the society. He expressed his views on how law must adapt to the needs
of the people and the society at large in his book ‘The Spirit of Law’.

He believed that Law and society had an evolving relationship and that as society evolves and changes the law
must change with it to cater to the society in which the law is applied and that law must be sensitive to the
location time and needs of the people on which it is being enforced.

Pros

 Society>Law: Society and its customs are supreme and law must continually adapt and evolve
 Society is considered evolving and not stagnant

Cons

 All laws based on prevalent practices: if all laws are based on prevalent practices then how will the
unjust practices be stopped e.g., ‘untouchability’ was a prevalent practice at one time in India but it was
deemed illegal despite of its prevalence in the society at large.
 2. Friedrich Carl Von Savigny

Savigny the Founder of Historical School believed that law is the reflection of the ‘Spirit of the people’.
According to Savigny Law is not an artificial lifeless mechanical device, but is a party of the organism that is
the state. He viewed a Nation or State as an organism which takes Birth then Matures and eventually dies and,
in this organism, Law is a part or an organ of that organism which is the state or Nation.

Savigny had strongly emphasized on the general consciousness of the people and hence he gave the ‘Volkgeist
Theory’ (volk = people, Geist=will/consciousness) which is based on the ‘General will of the People’ and
general genius of the people. Savigny also had strong emphasis on national spirit and believed that no law is
universal and law is very much based on what a nation’s beliefs are, so if a law that might be applicable on
people in India might not be appropriate for people in the USA, Law has a national character of the country and
it cannot be borrowed from outside and consciousness of the citizens is a major source of law

Pros

 General will of the people as source of law

 National character given to law (country specific laws) e.g. A law requires Females in Saudi Arabia
require permission of a Male guardian to travel abroad but such law will not be appropriate for India.
 Law cannot be borrowed from outside
 Law considered as a continuous process
 Nations is viewed as an evolving organism.

Cons

 Lack of precision in the ‘Volkgiest Theory’

 Laws must be based on customs but customs are not based on general consciousness of the people but
they also came from a few intelligent beings
 Ignored efficiency of the legislation and planned law and general consciousness over emphasized
 Realist School
Realist school focuses on the definition of law as what the judge deems the law to be and not what law ought to
be or what it was intended to be.

So According to this school all law is the judgment passed by the judge in court. Judges have been given the
power to make law what it is by the ‘Doctrine of Precedence’

This doctrine states that once a precedent has been passed by a higher court or the hon’ble Supreme court then
all the subordinate courts have to abide by that precedent and this doctrine is what gives the importance of
human factor in the Realist School (human factor of the judge passing the decree).

More emphasis has been laid on the human factors in this school, the human factors of the lawyers and judges ,
the men who actually practice law (lawyers and judges), their human factors, beliefs and life experiences have a
contribution to what law makes out to be in courts.

The Enlighted and well-known jurist that we will be discussing to know more about Realist School of thought
and their views on the same

#1 Oliver Wendall Holmes

#2 John Chipman Gray

 1. Oliver Wendall Holmes

Also known as the father of the American Realist thinking gave the term of ‘Bad Men’ who don’t actually care
about what law is and what it ought to be but only care about the decision that comes out in the courtroom. And
is mainly concerned with what the impact law or legal decision has on the society and the people at large

The metaphysical definition of law does not affect lives of people but the decagons passed on by the judges
does affect the lives of the common people and that too substantially.

According to Oliver - Law = ‘Experience’ + Logic

By ‘Experience’ Oliver meant the personal life experiences of the judges, his personality traits, his beliefs and
mentality played a role in what law actually became in the court.

Pros

 Freedom given to judiciary to openly interpret laws and give precedents

 Emphasis given to logic
 Law viewed as robust and not static
 Emphasis on social impact of law and legal decision

Cons

 Complete discretion to the judges which might result in miscarriage of justice due to personal biases of
the judges
 People concerned with only the decision of the court to achieve their means termed as ‘bad men’ while
 Concentration on mainly litigation (not enough emphasis on law outside the courtroom.
 Strong emphasis on the human factor of law like biases, preconceived notion of the judges (even though
it plays an important role but law isn’t solely dependent on human factors).
 2. John Chipman Gray

An American realist who made a distinction between .aw and its resources, according to him law is what the
judge decides and everything else like the penal codes, statutes are merely words and just sources and are free
for interpretation by the court. He believed that statutes were merely dead words and court put life into these
words and bought them alive and impactful in real life.

He defined the ‘law’ of a state or an association of men as its judicial organs which laid down the legal rights
and duties of the citizens.

So according to Gray law was just the court itself and everything else like the statutes were powerless dead
words without any relevance until and unless acknowledged by the court or ‘the court brings them alive’

Pros

 Practical approach, and not tied down by the metaphysical definition of law but its practical application
in the courts.
 Judges free to interpret ‘the Law’ I.e., the statutes.
 Judicial organs help in actual implementation of rights and duties

Cons

 Underestimated the importance of legal principles and written law

 Acknowledgement of courts essential to bring the laws in action

Made By-

Toyesh Bhardwaj, BBA LL. B

USLLS, GGSIPU