ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW
DISTANCE EDUCATION
LUSAKA
NAME: Imthurn Matambo Chuma

COMPUTER NO.: 22010078

PROGRAM: Bachelor of Laws – LLB IV

ACADEMIC YEAR: 2023

YEAR OF STUDY: 4th Year

COURSE TITLE: Jurisprudence I

COURSE CODE: LL421

SEMESTER: I

ASSIGNMENT NUMBER I

CONTACT LECTURER: Dr. Hamalengwa

DUE DATE: 17th March 2023

EMAIL: imthurnchuma@gmail.com

PHONE NUMBER 0977-768770 / 0977-158238

QUESTION: What are the major schools of

jurisprudence that you are studying
and what are the major differences
between them? In answering this
question you must refer to 10 other
sources outside the Module

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Introduction
The word 'Juris' means 'Law' while the word 'prudential' means knowledge. 1 Vaguely the
word Jurisprudence thusly means 'the knowledge of law'. Jurisprudence exhibits some
issues that need to be resolved. It attempts to scope over law in its totality. It includes a
large variety of supplemental subjects. It embraces matters that may include
psychological, sociological, scientific and economic interpretations of legal phenomena. It
covers probe of a fundamental law like - What is a ‘right’? What is a ‘duty’? and the
essential nature of ‘meaning’.

In this paper, I am focusing on the major schools of jurisprudence that we are studying and
I will highlight their major differences between them. These schools are Natural law
school of thought, the Positive School, Sociological School, Historical School of Thought,
Realist School (Legal Realism) and the Marxist Theories. The objective of this paper is to
explore the significant contrasts of various jurists.

Natural School of Thought

The natural school of thought justify that there is a fundamental connection through
abstract reasoning between law and morality. The commands of law and the demands of
morality don’t ever just happen to overlap at times as a matter of fact. Their overlap is not
just a dependent matter for observational discovery. More precisely it is part of the very
meaning of "law" that it passes a moral test. The natural school of thought can be
understood from the two claims that it is committed to. The first one is that Moral
reasonableness is a logically essential condition for legal acceptability - an unjust or
immoral law being no law at all. The second one is that the moral arrangement is a part of
the natural setup.

The important truths of natural law are that, there are absolute values, and ideals emerging
from those values, which can be used as barometers in a test of the legitimacy of laws.
There subsist in nature sequences which is in accordance with logic and which can be
known by man, so that the norms of human conduct may be looked upon as a ‘law of
nature’.2 Nature, if observed and understood correctly, will provide criteria allowing us to
become aware of universal, eternal and comprehensible values from which we may derive
appropriate value-statements.3 That which is good is in accordance with nature; that which

1
Cavendish Law Series, Jurisprudence, p1
2
L B Curzon, Jurisprudence, p38
3
L B Curzon, Jurisprudence, p38
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is evil is contrary to nature. A law which lacks moral validity is wrong and unjust. Natural
law nullifies numerous presentations of the positive law and stipulates an ideal towards
which the positive laws have a duty to strive.

The intrinsic nature of the doctrine of natural law is established on a conviction that there
are principles of law more powerful than any statute. Nature is considered or
comprehended of as a legislator, the foremost legislator. The other principle of natural law
is that the efficacy of manmade laws are obliged to be checked by association to ‘absolute
values’ and these can be assumed by logic from the monitoring and understanding of
nature. They contend that absolute values are eternal and universal in nature. The natural
school of thought puts it that any law which is in accordance with nature is ‘good’ and that
which is contradictory is ‘evil’. Laws that are wanting of moral validity are ‘unjust and
wrong’. The natural school of thought express diverging views of man’s behaviour that it
is already established and are only discernible by reason and common sense.

The Positive School

The word is derived from ponere, positum=to put. ‘Positive law’ is that which is man-
made, that is formally laid down.4 The positive school is a proposition of law which is
unswervingly in disagreement with the school of natural law. Its contention is that there is
no central conjunction in the midst of law and morals or the law as it is and it ought to be.
In its true sense this positive school is in actual fact a response to the natural law principle.
Positivists have endeavoured to explain law, far from its contents, but based on formal
yardsticks or models that have been laid down.

In the book The Concept of Law (1961), Hart5 itemizes the subsequent common
expressions of the phrase ‘positive school’ as applied to law:

• To explain the concept of law as a command of a superior. This is also

favoured in the explanation by Austin and Bentham.

• To explain the aspect that there is no central conjunction in the midst of

law and morals.

• To note the concept of analysis of legal concepts.

• To suggest the concept of a legal system as a closed logical system.

4
L B Curzon, Jurisprudence, p 87.
5
see Chapter 11
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 • To suggest the theory that moral judgments must not be formulated on
rational argument as a result.

The basic characteristic of legal positivism is that it is an appearance of analytical

jurisprudence. It scrutinizes in detail specific legal orders as well as in most cases puts to
good use in its observations the inductive method. The inductive method is a way or
manner of doing things from observation of specific facts to generalizations involving all
such facts. Legal positivism has nothing to do with, at a time of its investigations, social
policies, morality and issues of ethics. It is only focused primarily with an analysis of
things like legal terms and investigates the analytical collaboration of legal propositions.
Under legal positivism, the seeking for ultimate values is not accepted. Law is looked
upon as source-based. This is to say, the authority of legal norms is interpreted from
sources resolved on by the community’s conventions and rules.

The positivist methodology or directions demands an objective analysis of the formation

of the legal order so as to disclose its establishment. Obligations are investigated,
evaluated and then arranged into ordered groups and there after legal concepts are enacted.
For this reason, the legal positivist endeavors to elucidate issues, say: What are the
functions of law in a given society? What is the law? What is their source? This
methodology dictates the mode of analysis.

In The General Theory of Law and State (1945), Kelsen6 states:

‘Pure theory of law’ is so-called ‘because it only describes the law and attempts to
eliminate from the object of the description everything that is not strictly law: its
aim is to free the science of law from alien elements.’

Hart7 in the Concept of Law (1961):

‘The lawyer will regard this book as an essay in analytical jurisprudence, for it is
concerned with the clarification of the general framework of legal thought, rather
than with the criticism of law or legal policy.’

The methodology put into practical use by the positivist is criticized as a scanty look
around facts without a part of uniting formation of reference. The positivist school
response points out that the look around for facts is dictated by the reason of arrangement

6
see Chapter 12
7
see Chapter 11
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and act of explaining the meaning in order that established universal concepts might
connect to another. In the absence of a rationale of facts there can be no coherent
evaluation of the legal concepts that can form the rationale of argumentation.

The significant addition of legal positivism to jurisprudence is that it has called attention
to the independence of the law. Furthermore it has emphasized the significance of a
learning of law as a subject of its own right. Positivism lays claim to the necessity for
rational investigation of legal developments.

Sociological School

Sociologist draw attentions to human beings are more dependent, on social organisation
than is any other living thing. Because of this institutionalized social norm like law, state,
are of substantial importance in the life of a society and general public at large. The
learning of law in its social surrounding, as a social establishment, is the justification of
the sociological methodology to jurisprudence.

Jhering looks at law as a social device for the normalizing or regulating of purposes and
interests. His doctrine of law is derived from ‘social utilitarianism’. Law’s significance is
communicated by citation to its very purpose, which is social. Law has existence to ensure
the safety of the interests of society as well as of the distinct person by coordinating these
interests. As a result, this leads to reducing the prospect of social conflict. In Law as
Means to an End (1873), Jhering said:

‘Law is the sum of the conditions of social life in the widest sense of that term, as
secured by the power of the State through the means of external compulsion.’

With reference to the study of law, the approach of sociology culminates in a rigorous
investigation of the structure, functions, outcomes and moral principles of a legal system.
This brings about an examination of individuals, institutions, rules, procedures and
doctrines. It is done so that concepts and principles could be tested and legislated or made
into law. Field examination/studies, comparable observation and statistical analysis, are
obliged to be in the work of sociological jurists.

The attribute of the sociological outlook is that law is a social phenomenon mirroring
human needs, performing the function of an organized system, and expressing inward its
basic truths and significant rules of the fundamental values of a society. The unearthing of

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truths forming the law as a social phenomenon exists as the core assignment of
sociological jurisprudence.

The aim of Law in the sociological school is the accomplishment of equilibrium of social
and individual truths and purposes of the society. In effect, the law is the realization of
partnership of the individual and society at hand. Contending issues have to be settled by
the unprejudiced non-discriminatory adjudication of the law. Authorise judges and
legislators attempt to bring interests into orderliness. The legislator keeps in mind the
important purpose of society. At the same time the judge is aware of the factual social
purpose at the back of the law he seeks to enforce.

The greatest importance is that the law focuses on the good of society in its totality. In
seeking to attain that goal, it culminates a unity from a range of different backgrounds.
This allows individuals to become conscious their purposes, and, that being the case,
building a strong social framework. Legal institutions facilitate individuals to unite to the
very quality of their being. Man in partnership with his members within society has for
self-realisation which is greatly increased. The law will be responsible for the institutional
system within which the persons’ life can be enriched and progressive. Therefore Law is
said to be the mediator, the balancer and harmonizer.

Historical School of Thought

In the Historical School of Thought, history is an aid to understanding law. The ‘historical
movement’ in jurisprudence portrays the ideology that an extended understanding of the
past is necessary for an understanding of the present. A study of present legal institutions
and contemporary legal reasoning requires as a necessity an understanding of historical
extraction and systems of development. The jurist Friedrich Carl von Savigny (1799–
1861) a Prussian statesman and historian, remarked law as mirroring people’s historical
background, culture and ‘spirit’. According to him, the very distant past that is no longer
in existence guides the law. The advancement of legal principles is confirmation of
‘silently operating forces’ and no way of the result of intentional decisions.

The Vocation of Our Age for Legislation and Jurisprudence (1814), Savigny’s tract,
documented as a reply to those who demanded the formulation of a civil code for a united
Germany, outlined the fundamental characteristics of his viewpoint:

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 ‘We first enquire of history how law has actually developed among nations of the
nobler races… That which binds a people into one whole is the common conviction
of the people, the kindred consciousness of an inward necessity, excluding all
notion of an accidental and arbitrary origin.’

Savigny affirms:

‘All law is originally formed in the manner in which, in ordinary but not quite
correct language, customary law is said to have been formed: ie, that it is first
developed by custom and popular faith, next by jurisprudence—therefore, by
internal silently operating powers, not by the arbitrary will of a lawgiver.’

The way of life of a people externalize its common state of being aware of and responsive
to one’s surrounding, and from them law grows in an organic, unconscious fashion.

Savigny illustrates that historical research shows that legislation is of subordinate

significance in the advancement of law. The ‘living law’ doesn’t reveal itself from the
arbitrary will of a legislator or commands of a Sovereign. Or rather does it develop
naturally from the complex mixture of intuition, instinct, reason and so forth. ‘Law comes
from the people, not from the State.’

Legislation will turn out to be effectual when it is in orderliness with the citizen’s opinion
and extended ambitions and when it portrays the peoples’ needs. As the law transforms
into more scientific, with the moving forward of civilization, a division of labour takes
place. In the sphere of matters concerning the law, the people will be represented to a
growing extent by specialists called lawyers. The task of lawyers is to articulate and
elaborate legal maxims in an eloquent manner. The belief under the historical school of
thought is that lawyers are fiduciaries or executors for the people.

Realist School (Legal Realism)

American realism was established by Holmes (1841–1935) who was for 30 years a justice
of the US Supreme Court, foundational to his jurisprudential reasoning is the dictum:

‘We must think things, not words, or at least we must consistently translate our words into
the facts for which they stand if we are to keep to the real and the true.’

To a large extent, legal realism is considered as an attempt to end the authority to

formalism. From time to time this school is reasoned as a fundamental faction of
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Sociological School. This school puts it that the evaluation of facts should be the
justification of jurisprudence. This means that jurisprudential concepts ineffectual of
substantiation must be turned down.

Fundamentally, realist jurists conceptualize knowledge of law as relied upon an

examination of law in action. ‘Law is as law does’. According to the realist jurists, Law is
what officials (judges) do. It’s not enough, and can’t be determined from, the regulations
and ordinances through which the particular officials are advised and instructed. Amongst
the elements of the realist methodology is:

• An analysis of the distinct elements of cases.

• Caution of unreasonable and irrelevant elements in judicial ruling.

• assessing of rules of law through an assessment of their realistic consequences.

In the article, Some Realism about Realism (1931), Llewellyn (1893 – 1962) particularizes
the sequent concepts as frequent to the typical realist way to approach:

• Law is not static, and should be considered and investigated as if in flux.

• Law is to be considered as a means to a social end.
• Because society is in a continuous process of change and is often ‘ahead of the
law’ in its attitudes, continuous reexamination and revision of the law is essential.
• ‘Is’ and ‘ought’ must be divorced—if only temporarily—for purposes of legal
study. ‘After the purely scientific problem has been solved…the hour of ideals and
value judgments occurs.’
• Traditional concepts and legal rules cannot provide a full description of what the
courts do.
• Law has to be evaluated in terms of its impact and effects on society.

Basically, the life of the law is in the exposure to involvement with a given situation. The
realistic and pragmatic as well as investigational characteristics of law are essential.

In legal realism, the act of explaining ought not to incorporate moral questions. This is not
withholding the significance of moral values of the society in the constitution of law. The
moral values are in the making adjudged as of pintsize ends in any evaluation of
practicable issues. The jurist must seek to use only words which will communicate legal
concepts unadulterated by extra-legal conceptions.

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The law is, in the matter of a set of facts, a decision of the court on the subject of those
facts. Up to the time the court has given its decision, no law in connection with those
specific facts is in subsistence or reality. In Law and the Modern Mind (1930):

‘No one knows the law about any case or with respect to any given situation,
transaction or event, until there has been a specific decision (judgment, order or
decree) with regard thereto.’

Preceding the passing of the particular decision, the only ‘relevant law’ at hand is a
lawyer’s opinion. This is just an insignificant prediction to what the judge will decide.

Rules are ‘no more law than statutes are law’. Rules are no more than words, and,
whatever the circumstances, the court will decide what rules signify, whether in
accordance with the rules of a statute or inferred in the opinion of some other court. Rules
aren’t to be found at the rationale of a judge’s decisions. The particular decisions may be
decided on before he finds grounds for them. The grounds he gives afterward in time may
be but an explanation or justification of his instinctive feelings.

The realists turn to the courts as fundamental movements to the making of law, and they
make light of the undertaking of the legislature. In realistic School, what the judge says is
law and the legislature is only a source. Statutes only become law when they have passed
through judicial interpretation. The realists are saying that, you do not know the law until
the judge pronounces it. The rules employed by courts in deciding cases are not expression
of states command, or expressions of the common consciousness of the people.

To the realists, a judge has absolute authority to interpret any written or spoken law. He is
truly a law given for all intents and purposes and it is not a person who first wrote or
spoke those words (legislature) who is a law giver. It is for the courts to deduce law from
the rules of law in the text of a statute or from words of statute themselves.

The realists say that, while positivism looks at the law as the expression of the will of the
state, through the legislature, realists look at the law as the expression of the will of the
state through the medium of the courts. For the realists, the sovereign is not parliament but
judges. What courts pronounce is the law, so that at any particular time when you want to
know what the law is, you must go to the courts and not legislature. Statutes in themselves
are dead, until the courts put life in them.

The Marxist Theory

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Marx (1818–1883) studied jurisprudence at German universities. His view of legal theory
was taking into consideration of his own view of the world. His comprehension of
jurisprudence gave rise to the awareness of the class struggle that was within bourgeois
(capitalist) society. To him Jurisprudence mirrored the ambitions and needs of the
commanding class.

As maintained by Max, he said that production is regulated under capitalism by harsh

economic laws. The capitalist class who possess the resources of production appropriate
excessive monetary worth out of the labour of the proletariat who have for nothing other
than their labour power to put up. The answer to a comprehension of capitalism is the
appropriation of surplus value as an accessory to the legal rules which are brought into
existence in order to support that system. During the pressing for profit, the capitalist class
makes more intense the utilization of the proletariat. This leads to issues of overproduction
developing and available markets are exploited more extensively. Society is factionalised
there by leading to economic crisis deepening. The workers impoverishment is intensified.
This result in the workers learning from their struggles and are capable of realise a level of
organisation which entitles them to deal with the capitalist class coupled with to
‘expropriate the expropriators’. Furthermost the passing away or cease to exist of the
bourgeois society, ‘we shall have an association in which the free development of each is
the condition for the free development of all’. A brief summary of Marx’s’ views is
provided on historical materialism in the preface to A Contribution to the Critique of
Political Economy (1859).

As attested by Marx, institutions, Legal rules and jurisprudential theories develop not
consequentially, but in return for needs sanctioned by the ruling group (Capitalists) in
society. Jurisprudence, ethics, religion, art and ethics accomplish assignments which help
in the preservation of social bond and unity. Marx over and above that states that their say
to consider and represent ‘eternal categories’ is absurd or meaningless. They say that
Jurisprudential theories aren’t ‘isolates’. They allude that they can be ascertained
unrivalled within the conditions of economically-resolute correlation. The system of
getting to the bottom of these correlations requires an enlightenment of the historical build
out of classes.

‘Law is sacred to the bourgeois, for it is enacted for his benefit.’ Marx contemplated Law
as a tool of class domination, empowering the members of the aristocracy to have
dominance over the working class. Regulations, Legislations, legal systems, irregardless
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of how beneficial and unprejudiced they appear to be, are practices of guaranteeing the
continuity of the political and economic existing state of affairs.

A ‘neutral’, ‘disinterested’, jurisprudence according to Marx is a fictitious narrative.

Marxist jurists have endeavored to array that back of the doctrine of jurisprudential
movements may be arrived at to be of importance for the fortification and upholding of the
interests of the members of the nobility. Preoccupation with ‘the rights of property and
‘natural rights’, is a disguise for scholarly undertakings intended for the preservation of
an arrangement derived from economic exploitation. Jurists turn out, basically,’ protecting
a ruling class; ‘indulging in rhetoric of self-praise and dogmatism’ ‘hired pugilists’, as
well as trying to preserve practices of class domination.

As maintained by Marx, in view of the fact that law and jurisprudence carry out what is an
obligation by the authoritative proletarian, jurisprudential ideas is biased to ‘legitimize’ the
continuing social arrangement. Marx says that property rights are held in high esteem.
Any efforts by the overworked to merge and better their negotiation situation are doomed
as disruption of ‘natural forces’, and the stopping of labour (strikes) is arrayed as
‘anarchical’. The Marxist examination of ‘legitimization’ is the preferred frame of
jurisprudence that concepts the setting as the outcome of the system of an ‘invisible hand’,
controlling society in the direction of prosperity and freedom.

Within the bounds of capitalist world, the government is solely ‘the executive committee’
of the proletariat who is a bourgeoisie, passing judgment on its advantage and employing a
legal system which is determined from ultimatum of forceful action upon those who
attempt to invalidate the prevailing law. Expressing in other words of Marx’s comrade,
Engels (1820–1895), the State is ‘the form in which the individuals of a ruling class assert
their common interests, and in which the whole civil society of an epoch is epitomized’.

In the wake of socialist revolution, classes will cease to be visible. The State will vanish
steadily. After that the need for a State as well as its legal system of domination will
additionally disappears. During the course of the intervening portion of from capitalism to
socialism, brand new rules of law and a brand new jurisprudence is going to be needed.
The government of individuals is going to submit to the administration of things.
Bourgeois law is going to be put out as no longer in use. The State is going to have faded.

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BIBLIOGRAPHY

BOOKS REFERRED TO:

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Anyangwe, C. (2005). An outline of the study of jurisprudence. Lusaka: UNZA Press for
the School of Law.

Bix, B. (1999). Jurisprudence: theory and context. London: Sweet & Maxwell.

Bodenheimer, E. (2006). Jurisprudence: The Philosophy of Law. New Delhi: Universal

Law Publishing.

Curzon, L.B. (1999). Jurisprudence. London: Cavendish Publishing Limited.

Fitzgerald, P.J. (1999). Salmond on Jurisprudence. Mumbai: N.M. Tripathi Pvt. Ltd.

Fuller, L.L. (2000). The Morality of Law. New Delhi: Universal Law Publishing.

Freeman, M.D.A. (2008). Lloyd’s Introduction to Jurisprudence. London: Sweet &

Maxwell.

Hart, H.L.A. (2002). The Concept of Law. Oxford: Oxford University Press.

Jeffrey, B. (2014). Philosophy of Law - Introducing Jurisprudence. London: Bloomsbury

Publishing.

Kelsen, H. (1949). General theory of law and state. Massachusetts: Harvard University
Press

Marx, K. (2008). A Contribution to the Critique of Political Economy. Moscow: Progress

Publishers.

Paton, G.W. A. (2004). Textbook on Jurisprudence. Oxford: Oxford University Press.

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