JURISPRUDENCE

The study of jurisprudence started with the Romans. The term Jurisprudence is derived from
Latin word 'Jurisprudentia' which means either "Knowledge of Law" or "Skill of law". The
word "juris" means law and prudentia mean knowledge, science or skill. Thus Jurisprudence
signifies knowledge or science of law and its application. In this sense, Jurisprudence covers
the whole body of general legal principles in the world upon which the actual rules of law are
based. Therefore, it does not mean study of statutes or branches of law like consumer, crime,
tort, property, etc., but the basic principles behind the development of these statutes and
branches of law.

1) Jurisprudence: Meaning:

Jurisprudence in its widest sense means. "knowledge of the law" but in its
limited sense evolution and explanation of general principles upon which actual rules of law
are based. It is mainly concerned with the rules of external conduct which people are
compelled to obey. Therefore sometimes it is said that jurisprudence is that Jurisprudence is
that science which gives us knowledge about "law" but the term law we always use in its
abstract sense i.e. not in the sense of concrete statutes but in the sense of principles
underlying law. Thus, for example, there are various branches of law existing in the modern
legal system such as contract, crime, trust, properties, companies, labour etc. In
jurisprudence, we have to study the basic principles of each of these branches and we are not
concerned with the detailed rules of these laws. We definitely study these laws in detail when
we study those branches of law separately. Jurisprudence examines the general principles of
law, therefore, Jurisprudence may be considered to be the study and systematic arrangements
of the general principles of law or that science which imparts to us knowledge about ‘law’.

2) Definition of Jurisprudence:

It is very difficult to define term 'jurisprudence', However, several attempts have been
made in this context to define the term. Some of the definitions of the term "jurisprudence"
given by various eminent jurists as under -

I) Ulpian:

Ulpian a Roman Jurist defines jurisprudence as " the observation of things divine
and human, the science of just and unjust." Same connotation as DHARMA. Right and
wrong

2) Dr M. J. Sethna:

Jurisprudence is a study of fundamental legal principles including their

philosophical, Historical and sociological bases and analysis of legal concepts.

3) Austin:

Austin was the first jurist to make jurisprudence as a science. He defines

'jurisprudence' as "the philosophy of positive law." He opines that the appropriate subject to
jurisprudence is a positive law (jus positivum) i.e. law as it is (existing law, written). In other
words, jurisprudence is not a moral philosophy but it is a scientific and systematic study of
the existing, actual and positive law has distinguished from natural, ideal or moral law.

Austin divides jurisprudence into two classes. Viz 'general Jurisprudence and
Particular Jurisprudence. According to him 'General Jurisprudence is the philosophy of
positive law. On the other hand 'particular jurisprudence is the science of any such system of
positive law as now actually obtains or once actually obtained in a specifically determined
nation or specifically determined nations.

Criticism:

Austin's definition criticised by Salmond and Holland and other Jurists on the ground
that it is not proper and appropriate to classify as the general Jurisprudence and Particular
Jurisprudence.

4) Holland:

An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, "
Jurisprudence is the formal science of positive law'" According to him jurisprudence should
only concern itself with the basic principles of concepts underlying in any natural system of
law. Formal science = Rules of External human conduct enforced and controlled by a
sovereign political authority.

Criticism:

Many eminent jurists have criticised the definition of Holland that jurisprudence is the
formal science of positive law. It is not free from defects. The question arises what is a
formal science? Holland himself explains that by the term 'formal' he means that
jurisprudence concerns itself with human relations which are governed by the rules of law
rather than the material rules themselves, for the latter are the subject of legal exposition,
criticism or compilation rather than jurisprudence.

5) Gray :

According to John Chipman Gray " jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the Court and the principles involved in
those rules", meaning that jurisprudence deals with only that kind of law which consists of
rules enforced by courts while administering justice.

Criticism:

Stone has Criticised Gray's Definition and said that Gray has failed to determine any
province of jurisprudence rather he has reduced jurisprudence to merely a matter of
arrangement of rules.

6) Salmond:

Salmond defines Jurisprudence as, " the science of the first principles of the civil law."
Civil law = rules enforced by courts while administering justice.
 According to Salmond Jurisprudence can be defined in two senses (1) in the 'Generic
Sense' jurisprudence can be defined as Science of Civil Law' and (2) in the 'Specific sense'
Jurisprudence can be defined as the science of the first principle of civil law.

The Civil law consists of rules applied by Courts in the administration of Justice.
Salmond agrees with both Austin and Holland only to the extent that jurisprudence is 'a
science, a systematic study of basic principles of legal systems and with Gray upholding that
Jurisprudence only deals with jurist’s law.

Criticism :

Salmond's Definition has been criticised on the ground that he has narrowed down the
field of jurisprudence by saying that it is a science of civil law and hence covers only
particular legal system.

7) Keeton:

Keeton Defines jurisprudence as "the study and systematic arrangement of the general
principles of law”.

8) H.L.A Hart:

A legal system consists of primary and secondary rules. These rules explain the
nature of law and provides key to the science of jurisprudence. By primary rules he meant
rules which impose duty while secondary rules confer powers which provide for creation or
variation of duties by removing defect of primary rules.

His view was a reaction against rigid positivism. He viewed Jurisprudence as a

science of law in a broader perspective by co-relating law and morality.

9) Roscoe Pound:

Dean Roscoe Pound defines jurisprudence as "the science of law, using the term law
in the juridical sense, as denoting the body of principles recognised or enforced by public and
regular tribunals in the administration of justice". He believed that behind every issue, there
is something social; therefore, in the study of jurisprudence, the emphasis should be on the
relationship between law and the society.

10) Dr K. C. Allen:

Jurisprudence is the scientific synthesis of all the essential principles of law.

11) G.W. Paton:

Jurisprudence is a particular method of study, not the law of one country,

but of the general notion of law itself.

12) Julius Stone:

 "Jurisprudence is the lawyer's extraversion.” It is the lawyer's examination of the
precepts, ideals and techniques of the law in the light derived from present knowledge in
disciplines other than the law.

From the above definitions of Jurisprudence, it could be seen that there is no

commonly agreed definition of Jurisprudence. Each Jurist guided by his own consciences but
since the conception of the term law till the beginning of the 20th century, a new approach to
the study of law in relation to society is given. Some jurist, therefore, treats law as "social
engineering" an instrument to bring social change or support social change. Thus the function
of law is the supplement to social sciences.

Scope of Jurisprudence
There is no unanimity of opinion regarding the scope of jurisprudence. Different
authorities attribute different meanings and varying premises to law and that causes
difference opinions with regard to the exact limit of the field covered by jurisprudence.
Jurisprudence has been so defined as to cover moral and religious precepts also and that has
created confusion. It goes to the credit to Austin that he distinguished law from morality and
theology and restricted the term to the body of the rules set and enforced by the sovereign or
supreme law making authority within the realm. Thus the scope of jurisprudence was limited
to the study of the concepts of positive law and ethics and theology fall outside the province
of jurisprudence.
There is tendency to widen the scope of jurisprudence and at the present we include
what was previously considered to be beyond the provinces of jurisprudence. The present
view is that scope of jurisprudence can not be circumcised or regimented. It includes all
concepts of human order and human conduct in state and society. Anything that concerns
order in the state and society falls under the domain jurisprudence. P.B. Mukharji writes that
new jurisprudence is " both intellectual and idealistic abstraction as well as behavioristic
study of man in society. It includes political, social, economic and cultural ideas. It covers the
study of man in relation to the state and society."
Thurman W. Arnold defines jurisprudence "as the shining but unfulfilled dream of a
world governed by reason. For some, it lies buried in a system , the details of which they do
not know. for some, familiar with the details of the system, it lies in the depth of an unreal
literature . for others , familiar with its literature , it lies in the hope of a future enlightenment.
for all , it is just around the corner "
The view of lord Radcliffe is that jurisprudence is a part of history, a part of economics and
sociology, a part of ethics and a philosophy of life.
Karl Llewellyn observes - " Jurisprudence as big as law-and bigger".
Utility of Jurisprudence
Julius Stone perfectly defines Jurisprudence. According to him "jurisprudence is lawyers
extraversion". The knowledge of Jurisprudence sharpens the lawyers own technique of the
logical analysis of legal Concepts. It helps lawyers to set the law in it's proper contours by
considering the needs of the society and by taking note of the advances made in related and
relevant disciplines.
Holland observed that jurisprudence throw light on the basic ideas and the fundamental
principles of law in a given society. Therefore some of the jurists call it "eye of law".
Jurisprudence helps the judges and lawyers in ascertaining true meaning of laws passed by
the legislature by providing the rules of interpretation. To become successful lawyer or judge
jurisprudential background is necessary.
Jurisprudence is also helpful to legislators who play a vital role in the process of law
making. Study of jurisprudence helps them to understand the technicalities of the law and
legal precept. It makes their job easy and interesting.

Relationship of jurisprudence with other sciences

● Jurisprudence and sociology:

A French philosopher, August Comte believed that jurisprudence is an integral part of
sociology and that the law cannot be studied in isolation from other social institutions
and must be viewed in its social context. He defined sociology as a positive science
that deals with social facts. In his view, the study of law should be guided by the
principles of social science, and legal systems should be analyzed in terms of their
social functions and their impact on society. Comte emphasized the importance of
understanding the relationship between law and society and believed that legal
institutions and practices are shaped by social, economic, and political factors.

As jurisprudence is concerned with the study of law, it must also take into account the
impact of law on society, including the social, cultural, and economic factors that
shape the development and application of legal systems. This is because the law is
applied to people and adapts to their changing needs. Therefore, jurisprudence deals
with the practical functioning of law in society.

The application of law relies on the social interactions and behaviours of people
within a society. Meaning that without the social interaction of people in society, the
law would remain merely a theoretical concept, devoid of any practical use. For
example, only when the people in the society socially interact with each other and
commit offences or crimes, the law comes into place. Therefore, it is crucial to
understand the changing needs and behaviour patterns of individuals in society in
order to develop laws that effectively regulate and govern their conduct. This is where
sociology comes into play, as it helps to provide insights into social interactions and
behaviours that can help the development and application of the law.

Criminology is an interdisciplinary field that draws from both sociology and law. It
examines the motives, aims, and theories of punishment, as well as the types of
punishment, with the help of sociological insights. In this way, criminology is an
example of how sociology and jurisprudence intersect and inform each other.

● Jurisprudence and economics:

The relationship between economics and jurisprudence was unrecognized for a long
time, but it became apparent to many jurists later. While economics deals with
concepts such as money, wealth distribution, and satisfying people's needs, the law's
purpose is to regulate people's lives through rules and regulations. A good example is
the GST Act which regulates the taxation of various economic activities, such as the
sale of goods and services, import and export of goods, and supply of goods and
services by e-commerce operators.

Money, or the desire for it, can be a motivating factor behind criminal behavior. For
instance, someone may commit theft or fraud in order to obtain money or engage in
cybercrime to steal personal or financial information for monetary gain. The
relationship between economics and jurisprudence can help to understand the reasons
behind such criminal activities and how to effectively regulate and punish them
 through the legal system.

Economic theories such as the law of diminishing marginal utility can be applied in
the legal field to help understand human behavior and decision-making. According to
Alfred Marshall, the law of diminishing marginal utility is defined as "The additional
benefit which a person derives from a given increase in the stock of a thing
diminishes with every increase in the stock that he already has"[1]. For example, this
concept can be used to understand why someone's satisfaction might decrease as his
wants or needs increase. Risk, which is another economic factor can be used to
understand why someone might commit a crime for financial gain even if it means
taking a significant risk. By understanding the underlying economic factors at play,
legal professionals can make more informed decisions and create more effective
policies and regulations.

● Jurisprudence and political science:

Friedman in his book Legal Theory emphasizes the interdisciplinary nature of
jurisprudence. On one end, jurisprudence is connected to philosophy, as legal systems
are built on fundamental principles and values. On the other end, jurisprudence is
linked to political theory, as laws and legal systems are shaped by political institutions
and government policies.

Political science and jurisprudence have a close relationship since legislators, who are
responsible for making and amending laws, are elected by the people for whom the
law is intended to govern. For example, the two houses of parliament, comprising
India's legislative body, are chosen by the people of India, implying that the laws they
enact ultimately reflect the desire and requirements of the people.

They often overlap as they both study the organization and functioning of society and
the state. The state is a political entity responsible for creating and enforcing laws,
maintaining order, protecting individual rights, and providing public goods and
services. Jurisprudence concentrates on law and legal systems, while political science
examines the political system and government. Overall, both fields work towards the
betterment of society and the well-being of its people through governance and
regulation.

They often overlap as they both study the organization and functioning of society and
the state. The state is a political entity responsible for creating and enforcing laws,
maintaining order, protecting individual rights, and providing public goods and
services. Jurisprudence concentrates on law and legal systems, while political science
examines the political system and government. Overall, both fields work towards the
betterment of society and the well-being of its people through governance and
regulation.

Jurisprudence and law :

The relationship between jurisprudence and law is intricate and fundamental, as

jurisprudence is the philosophical and theoretical study of law. Jurisprudence serves as
the foundation upon which legal systems are built and understood. Here are some key
aspects of the relationship between jurisprudence and law:
1. Understanding the Nature of Law: Jurisprudence helps in understanding the
fundamental nature of law. It explores what law is, its characteristics, and what
distinguishes it from other social norms and rules. This understanding is crucial for the
development and functioning of legal systems.

2. Legal Philosophy: Jurisprudence engages in philosophical inquiries about law,

examining the moral and ethical underpinnings of the legal system. It provides a
framework for discussing the values and principles that inform the creation and
application of laws.

3. Interpretation of Laws: Jurisprudence plays a critical role in the interpretation and

application of laws. It offers insights into how legal texts should be understood, how
statutes and precedents are related, and how judges and legal practitioners should
approach the law.

4. Development of Legal Systems: Jurisprudence influences the development and

evolution of legal systems. Legal reforms and changes often have their roots in
jurisprudential discussions about justice, fairness, and the alignment of laws with societal
values.

5. Legal Theory: Jurisprudence provides the theoretical basis for various legal theories
and doctrines. For example, legal positivism, natural law, legal realism, and critical legal
studies are all rooted in jurisprudential concepts and ideas. These theories shape the way
laws are conceived and applied.

6. Legal Education: Jurisprudence is a fundamental component of legal education. Law

students and aspiring legal professionals study jurisprudence to gain a deeper
understanding of the theoretical and philosophical foundations of the legal field.

7. Ethical and Moral Considerations: Jurisprudence addresses the relationship between

law and morality. It helps in exploring questions related to ethics, justice, and the moral
dimensions of legal decisions, which are essential for the development and interpretation
of laws.

8. Legal Systems Comparison: Jurisprudence allows for the comparison of different legal
systems, such as common law and civil law traditions. It helps in understanding the
similarities and differences between legal systems, as well as the reasons behind these
variations.

9. Legal Reform: Jurisprudence can guide legal reform efforts by providing a framework
for evaluating the effectiveness and fairness of existing laws and legal systems. It can also
inform debates about changes to the law.

In essence, jurisprudence is the theoretical and philosophical foundation upon which the
legal system is built. It shapes the way laws are conceptualized, interpreted, and
developed, and it plays a critical role in examining the ethical and moral dimensions of
law. The relationship between jurisprudence and law is one of mutual influence, where
the study of jurisprudence informs the practice and evolution of the law, and the
development and application of laws, in turn, contribute to the ongoing discourse in
jurisprudence.
 Sources of law

In jurisprudence, the sources of law refer to the origins and authorities from which legal
rules and principles are derived. These sources may vary from one legal system to
another, but they generally encompass the following primary categories:

1. Legislation (Statutory Law):

- Legislation is law created by legislative bodies, such as parliaments, congresses, and
local governments. It includes acts, statutes, codes, and ordinances.
- Legislation is a primary source of law in many legal systems and is considered the
highest form of law. It often takes precedence over other sources of law.

2. Case Law (Common Law):

- Case law, also known as common law or judicial precedent, consists of court decisions
and judgments. Judges create legal principles and rules when they make decisions in
individual cases.
- Common law systems, like those in the United Kingdom and the United States,
heavily rely on case law as a source of legal authority. Precedent plays a crucial role in
these systems.

3. Customary Law:
- Customary law is based on established customs and practices within a particular
community or society. These customs are recognized and enforced as legal rules.
- Customary law is prevalent in many traditional and indigenous legal systems,
particularly in regions where formal legal systems are limited.

4. Constitutional Law:
- Constitutional law comprises the fundamental laws and principles set out in a
country's constitution. It defines the structure of government, the distribution of powers,
and fundamental rights and liberties.
- Constitutional law is a foundational source of law in countries with written
constitutions, such as the United States.

5. International Law:
- International law governs the relationships and interactions between countries and
international organizations. It includes treaties, conventions, customary international law,
and the decisions of international courts and tribunals.
- International law is a vital source of law for addressing transnational issues and
disputes between countries.

6. Legal Texts and Legal Commentary:

- Legal texts, such as legal textbooks, commentaries, and scholarly writings, can
provide insights into the interpretation and application of laws. They are secondary
sources that help legal professionals and scholars understand the law.

7. Equity:
- Equity is a system of principles and rules that originated in English law. It is often
used to provide remedies when the strict application of common law would lead to unjust
outcomes. Equitable principles are considered sources of law in common law systems.
8. Religious and Moral Sources:
- In some legal systems, religious texts and moral principles play a significant role in
shaping laws and legal norms. For example, in Islamic law, the Quran and Hadith are
primary sources.

The sources of law can vary by jurisdiction and legal tradition. Some legal systems
primarily rely on one or more of these sources, while others incorporate a combination of
these sources to create a comprehensive legal framework. Understanding the sources of
law is crucial for legal practitioners, scholars, and policymakers to navigate and interpret
the legal landscape in a given jurisdiction.

UNIT 2

2.1 Greek and Roman theory

Greek and Roman legal theory significantly influenced the development of jurisprudence
and continues to shape modern legal thought. These two ancient civilizations contributed
to the conceptualization of law, ethics, and justice, which remain fundamental in
contemporary legal systems.

Greek Legal Theory:

Greek legal thought, as exemplified by philosophers like Plato and Aristotle, focused on
the moral and ethical foundations of law. Plato's "Republic" introduced the idea of
philosopher-kings and a just society governed by reason. He believed that justice was the
highest virtue, and laws should promote the common good and virtue.

Aristotle, in his "Nicomachean Ethics" and "Politics," explored the concept of distributive
and corrective justice. He emphasized the importance of finding a balance between
individual rights and the well-being of the community. His work laid the groundwork for
understanding equity in law.

Roman Legal Theory:

Roman law, particularly the "Corpus Juris Civilis" (Justinian's Code), was instrumental in
shaping modern legal systems. It provided a comprehensive and organized legal
framework. Roman jurisprudence focused on the practical application of laws and the
principle of legal certainty.

The Romans introduced concepts such as "jus civile" (civil law) and "jus gentium" (law
of nations). Jus civile was concerned with Roman citizens, while jus gentium aimed to
provide a legal framework for dealings between Roman citizens and foreigners. These
ideas contributed to the development of international law.

Additionally, the Roman emphasis on "stare decisis" (the principle of following

precedent) laid the foundation for the common law system's reliance on case law and
judicial decisions.
In summary, Greek legal theory focused on the moral and ethical dimensions of law,
emphasizing justice and the common good, while Roman legal theory provided a
practical and organized legal system that influenced the structure and development of
modern legal systems. These ancient traditions continue to shape the jurisprudential
principles underpinning contemporary legal thought and practice, with their emphasis on
justice, equity, and legal certainty.

2.2 philosophical school

Philosophical schools of jurisprudence are various schools of thought that examine the
fundamental principles, concepts, and underlying philosophies of law. These schools of
jurisprudence provide different lenses through which to understand the nature and
purpose of law. Here, we'll explore five of the most influential thinkers associated with
these schools:

1. Natural Law School:

- Key Idea: Natural law theory posits that there are universal, inherent moral principles
that exist independently of human-made laws. It suggests that laws should align with
these moral principles for them to be just and legitimate.
- Key Thinker: Thomas Aquinas (1225-1274) was a prominent natural law philosopher.
He synthesized the works of Aristotle and early Christian thinkers to develop a
comprehensive theory of natural law that remains influential to this day.

2. Legal Positivism:
- Key Idea: Legal positivism argues that the legitimacy of law is derived from its
source, rather than its moral content. In other words, a law is valid if it is created by a
recognized authority, regardless of whether it is morally just.
- Key Thinker: John Austin (1790-1859) is often considered one of the founding figures
of legal positivism. His work laid the foundation for the theory, emphasizing the
importance of a clear, identifiable sovereign authority as the source of law.

3. Utilitarian School:
- Key Idea: The utilitarian school of thought, as introduced by Jeremy Bentham (1748-
1832), focuses on the idea that laws should maximize overall happiness or utility in
society. Laws should be designed to create the greatest good for the greatest number of
people.
- Key Thinker: Jeremy Bentham was a leading figure in this school and developed the
principle of the "greatest happiness of the greatest number" as a fundamental criterion for
evaluating laws and their utility.

4. Historical School:
- Key Idea: The historical school, represented by thinkers like Friedrich Carl von
Savigny (1779-1861), emphasizes the importance of the historical and cultural context in
shaping the development of law. It argues that law should be deeply rooted in the
traditions and history of a society.
- Key Thinker: Friedrich Carl von Savigny was a key proponent of this school and
contributed significantly to the understanding of how law evolves within a given cultural
and historical context.
5. Critical Legal Studies:
- Key Idea: Critical legal studies is a more recent school of thought that challenges
traditional legal concepts and questions the role of law in maintaining power structures
and social inequalities. It looks at law through a critical lens, considering how it can be a
tool for oppression.
- Key Thinker: Critical legal studies doesn't have a single central figure, but it is
associated with various scholars and thinkers who have critiqued the legal system from
different perspectives, including Roberto Unger and Duncan Kennedy.

These philosophical schools of jurisprudence offer different perspectives on the nature

and function of law, ranging from the pursuit of justice and morality (natural law) to the
importance of authority and positivist sources (legal positivism), the utilitarian goal of
maximizing happiness, the influence of history and culture, and the critical examination
of power dynamics within the legal system. These diverse schools have contributed to the
rich and ongoing discourse in jurisprudence, shaping the ways we understand and
interpret law in modern legal systems.

2.3 historical school

The historical school of jurisprudence, also known as the "Historical School," was a
significant movement in the 19th century that sought to understand and analyze law
through a historical and evolutionary lens. This school of thought emphasized the
importance of considering the historical context and development of legal systems to
comprehend their nature and functions. It emerged as a reaction against the formal,
rationalistic, and deductive approaches to law that dominated legal philosophy at the time.

The Historical School of Jurisprudence can be elaborated upon with the contributions of
five of its main thinkers:

1. Friedrich Carl von Savigny (1779-1861):

- Savigny is often considered the father of the Historical School. In his work, "System
of Modern Roman Law," he argued that law is an organic product of a nation's historical,
cultural, and social development. He emphasized the importance of understanding the
"Volksgeist" (spirit of the people) as the basis for law.

2. Gustav Hugo (1764-1844):

- Hugo extended Savigny's ideas by emphasizing the significance of historical
continuity and the evolution of laws. He posited that legal principles should be derived
from the historical development of the legal system and that legal concepts must be
understood in their historical context.

3. Georg Friedrich Puchta (1798-1846):

- Puchta's contributions to the Historical School included an emphasis on the organic
development of law. He believed that law should evolve naturally, reflecting the social,
political, and cultural changes of a society over time. Puchta's ideas influenced the
development of the German Civil Code.

4. Bernhard Windscheid (1817-1892):

 - Windscheid, in his work "The Concept of the Legal Right," focused on the concept of
subjective rights (Rechtsbegriffe) as historically and culturally relative. He argued that
legal rights are not abstract but are defined within specific historical and cultural contexts.

5. Karl Friedrich Eichhorn (1781-1854):

- Eichhorn was one of the earliest proponents of the Historical School. He explored the
historical origins of various legal institutions and argued that laws must be understood in
light of their historical evolution. His work laid the groundwork for later developments in
historical jurisprudence.

Key tenets of the Historical School include the rejection of abstract, universal legal
principles and the assertion that laws should be rooted in the history, culture, and
traditions of a particular society. This school also had a significant influence on the
development of the German Civil Code (Bürgerliches Gesetzbuch or BGB), which
remains an essential part of Germany's legal system.

The Historical School's emphasis on the historical and cultural context of law has left a
lasting legacy in legal scholarship, reminding us of the importance of understanding the
development of legal systems and the role of history and culture in shaping the law. It has
also contributed to the broader field of legal historiography and comparative law, which
continue to be integral to the study and practice of law today.

2.4 Analytical school

The Analytical School of jurisprudence, often associated with legal positivism, is a

significant and influential approach to the study of law that emerged in the 19th and 20th
centuries. It emphasizes the need for a systematic, scientific, and objective analysis of
law. This school of thought prioritizes the separation of law from morality and focuses on
identifying the essential elements of legal rules. Here, we will delve into the Analytical
School of jurisprudence and introduce five main thinkers associated with it.

1. John Austin (1790-1859):

- John Austin is often regarded as the "father" of the Analytical School. His work, "The
Province of Jurisprudence Determined" (1832), sought to provide a comprehensive
analysis of law and its characteristics. Austin emphasized the imperative theory of law,
which posits that a law is a command issued by a sovereign backed by a sanction
(punishment). His separation of law from morality laid the foundation for the legal
positivist tradition.

2. Jeremy Bentham (1748-1832):

- Jeremy Bentham was a utilitarian philosopher and jurist. His writings, including
"Introduction to the Principles of Morals and Legislation" (1789), advocated for the idea
that the primary purpose of law is to promote the greatest happiness of the greatest
number. Bentham's utilitarianism influenced the development of legal positivism, as it
suggested that the morality of laws could be assessed based on their utility and
consequences rather than their inherent goodness.

3. H.L.A. Hart (1907-1992):

- Herbert Lionel Adolphus Hart is a prominent figure in the Analytical School. In his
seminal work, "The Concept of Law" (1961), Hart introduced the idea of the "rule of
recognition," which is a fundamental rule that determines what counts as law in a legal
system. He expanded on the concept of legal positivism by introducing the "internal" and
"external" perspectives, allowing for a more nuanced analysis of legal rules and norms.

4. Joseph Raz (b. 1939):

- Joseph Raz is another influential figure in the Analytical School of jurisprudence. In
his work "The Authority of Law" (1979), he developed the concept of legal positivism,
focusing on the separability thesis (the idea that legal validity is distinct from moral
validity) and the social thesis (the idea that law is a social phenomenon). Raz also
explored the nature of authority and legal principles.

5. Hans Kelsen (1881-1973):

- Hans Kelsen was an Austrian jurist who made significant contributions to the
Analytical School. His "Pure Theory of Law" (1934) introduced a highly structured and
systematic approach to legal theory. Kelsen proposed the idea of a "grundnorm," a
fundamental norm that underlies and validates all other legal norms in a legal system. His
work provided a framework for understanding the hierarchical structure of legal norms.

In summary, the Analytical School of jurisprudence, rooted in legal positivism, is

characterized by its emphasis on the objective analysis of law, the separation of law from
morality, and the quest for scientific rigor in legal theory. The thinkers associated with
this school, including John Austin, Jeremy Bentham, H.L.A. Hart, Joseph Raz, and Hans
Kelsen, have made significant contributions to the development and refinement of legal
positivism and the broader field of jurisprudence.

2.5 sociological approaches

Sociological jurisprudence is a branch of legal theory that examines the relationship

between law and society. It seeks to understand how legal rules and institutions are
influenced by, and in turn, influence social, political, and economic factors. This
approach to jurisprudence emphasizes the need to view law as a dynamic and evolving
product of societal forces, rather than merely a set of static, abstract principles. Several
prominent thinkers have contributed to the development of sociological jurisprudence:

1. Max Weber:
- Max Weber, a German sociologist and philosopher, is often considered one of the
founding figures of sociological jurisprudence. He introduced the concept of "legal
rationalization," which explores how law becomes increasingly formalized and rational as
societies evolve.
- Weber argued that legal systems are shaped by the values, beliefs, and economic
structures of a society. He emphasized the influence of bureaucracy and the legal
profession in shaping legal norms.

2. Émile Durkheim:
- Émile Durkheim, a French sociologist, explored the relationship between law and
social solidarity. He posited that legal norms and institutions serve as a reflection of the
collective conscience of society. Legal rules are shaped by the moral values of the
community.
 - Durkheim's work emphasized the importance of maintaining a balance between
individual rights and societal cohesion. He classified law into two types: repressive law
(punishing deviant behavior) and restitutive law (restoring order and resolving disputes).

3. Karl Marx:
- Karl Marx, a German philosopher and economist, offered a critical perspective on law
in capitalist societies. He argued that law primarily serves the interests of the ruling class,
reinforcing economic inequalities and protecting property rights.
- Marx's approach to sociological jurisprudence underscores the idea that law is a tool
of the capitalist class, used to maintain social order and protect the status quo. Legal rules
are a reflection of the dominant economic forces.

4. Roscoe Pound:
- Roscoe Pound, an American jurist, played a significant role in the development of
sociological jurisprudence in the United States. He introduced the concept of "social
engineering" in law, emphasizing the need for laws to adapt to changing societal needs.
- Pound argued that legal rules should be designed to achieve social goals and promote
social welfare. He believed that law should evolve to address contemporary issues and
challenges.

5. Niklas Luhmann:
- Niklas Luhmann, a German sociologist, advanced the idea of autopoiesis, which posits
that legal systems are self-referential and self-regulating social systems. He viewed law as
an autonomous system that operates independently within society.
- Luhmann's theory highlights the complexity of the legal system, its ability to adapt to
changing circumstances, and its capacity to generate its own norms and rules.

Sociological jurisprudence challenges traditional legal theory by recognizing the dynamic

and multifaceted relationship between law and society. These thinkers have contributed to
a deeper understanding of how legal norms are influenced by societal values, economics,
and power structures. By considering the social context, sociological jurisprudence offers
insights into the development, function, and impact of legal systems, ultimately aiming to
improve the law's responsiveness to the evolving needs of society.

2.6 legal realism

Legal realism is a prominent and influential school of thought in jurisprudence that

emerged in the United States during the early 20th century. It challenges the traditional,
formalistic view of law and posits that the law is not solely determined by statutes,
precedents, or abstract principles but is deeply influenced by social, political, and
economic factors. Legal realists believe that the interpretation and application of the law
are inherently subjective and that judges often make decisions based on their personal
values and societal context.

Key aspects of legal realism include:

1. Judicial Discretion: Legal realists emphasize that judges have significant discretion in
making legal decisions. This discretion is influenced by factors like personal beliefs,
political ideology, and public opinion.
2. Societal Context: Legal realists contend that law cannot be understood in isolation; it
must be viewed within the broader context of societal norms, culture, and economic
conditions.

3. Predictive Value: Legal realism asserts that legal outcomes can be predicted more
accurately by considering the likely behavior of judges and the political and social
climate, rather than relying solely on legal doctrines.

4. Critique of Formalism: Legal realism criticizes formalistic, rule-based approaches to

law, arguing that these approaches fail to account for the complexities of real-world legal
disputes.

Legal realism has left a lasting impact on the study and practice of law. It has led to a
more nuanced understanding of how law operates in practice and has influenced various
legal theories, such as critical legal studies and the law and economics movement. Legal
realism challenges the notion of an objective, neutral judiciary and underscores the
importance of recognizing the subjective and context-dependent nature of legal decision-
making.
2.7 Revival of natural law

The revival of natural law refers to a resurgence of interest in and application of natural
law theory within contemporary legal and moral philosophy. Natural law theory posits
that there are inherent, objective moral principles that should guide the formulation and
evaluation of laws. While natural law theory has ancient origins, it has experienced
periods of decline and resurgence throughout history. Several factors have contributed to
its revival in recent times:

1. Ethical Concerns: The revival of natural law is partly driven by ethical concerns in
modern society. People often seek a moral foundation for legal and political decisions,
especially when faced with complex ethical dilemmas, technological advancements, and
issues related to human rights and environmental ethics.

2. Human Rights: Natural law principles have played a pivotal role in shaping
contemporary human rights discourse. Many international human rights documents and
declarations, such as the Universal Declaration of Human Rights, are grounded in the
belief in inherent human dignity and rights, aligning with natural law principles.

3. Bioethics and Technology: Advances in biotechnology, genetic engineering, and

artificial intelligence have raised ethical questions that natural law theory is seen as well-
suited to address. It provides a framework for evaluating these technologies' ethical
implications in terms of human nature and dignity.

4. Political Philosophy: Natural law theory has influenced discussions in political

philosophy, particularly in debates about the legitimacy of government authority, the
protection of individual rights, and the relationship between law and morality.

5. Legal Theory: In jurisprudence and legal theory, there is a renewed interest in the
relationship between law and morality, particularly regarding issues of justice, legal
interpretation, and the limits of law. Natural law theory offers valuable insights into these
topics.
6. Religious Influence: For many, natural law theory is deeply connected to religious
beliefs. As religious traditions continue to be influential in various societies, so too does
the interest in natural law as a moral and ethical guide.

The revival of natural law has not been without its criticisms and challenges. Critics argue
that natural law theory can be vague, subject to different interpretations, and can
sometimes be used to justify discriminatory practices. Nevertheless, it remains a vital and
evolving part of the discourse on ethics, law, and morality in contemporary society,
serving as a philosophical foundation for discussions of human rights, justice, and ethical
conduct.