JURISPRUDENTIAL ANALYSIS OF

LAW
-BY KAVITA
 JURISPRUDENCE

• Schools of Thought
• Similar thinking/basis about the understanding of law
Schools of Jurisprudence-
1. Analytical School
2. Historical School
3. Natural School
4. Realist School
5. Sociological School
 ANALYTICAL SCHOOL

• Relation of law with State

• Present as it exists
• Austinian-Teleological-Positive-Imperative
• Favors codification of law (Criminal Law)

Jeremy Bentham- John Austin- HLA Hart- Hans Kelsen

 FOUNDER OF ANALYTICAL SCHOOL-JEREMY
BENTHAM
• Book- Limits of Jurisprudence Defined
• Law- “Assemblage of signs”
• Classified Jurisprudence as-
Expository Jurisprudence (i.e. What the law is)
Censorial Jurisprudence- (i.e. What the law ought to be)
Utilitarian Individualism-
Principle of Utility- ‘Greatest Happiness of Greatest Number’
Theory of Utility- Property or tendency of a thing to prevent some evil or procure some good. Consequences of
good and evil are pleasure and pain.
 FATHER OF ENGLISH JURISPRUDENCE- JOHN
AUSTIN
• Book- ‘Province of Jurisprudence Determined’
• Defined Law as- ‘Rule laid down for the guidance of an intelligent being by
an intelligent being having power for him’
• Law is COMMAND of the SOVEREIGN backed by SANCTION.
 HLA HART AND HANS KELSEN

HLA Hart-
• Book- The Concept of Law
• Defined Law as- ‘Law consists of rules which are of broad application and non-
optional in character’.
• Union of primary and secondary rules provide key to the science of jurisprudence
Hans Kelsen
Pure Theory of Law
 HISTORICAL SCHOOL

Origin and History of Legal System-

• Law is found and not made
• Law is reflection of spirit of people
• Laws are not universal in nature (like language)
Main Proponents-
Savigny, Puchta, Hugo Grotius, Immanuel Kant, Hegel, Burke, Fichte.
Law is like language. It grows with the growth, strengthens with the strength of the people and finally dies away with the dissolution of the state
(nation loses its nationality).
Volkgeist Theory- Nature of any particular system is reflection of the spirit of the people who evolved it and therefore is the manifestation of
common consciousness.
Customs precedes legislation and superior to legislation.
 HENRY MAINE

Henry Maine (Status to Contract)

• In traditional societies, rights and obligations are determined in accordance with social status of an individual.
Progressive societies are moving away from social status to contract.
• Law has a national character so law of one nation cannot be applied to another.
4 Stages of Development of Laws-
• Law made by commands of Ruler
• Crystallization of commands into customary law
• Administration of customs by priests etc.
• Codification of laws
 NATURAL LAW SCHOOL

• There are certain laws which are immutable and eternal.

• These laws are constant body of permanent truths, unaffected by human beliefs and
attitudes. (Also called Moral/Divine law, Law of God, Law of reason)
• Natural law is based on a priori proposition-
- A priori knowledge- knowledge that is acquired independently of any particular
experience (Eternal knowledge)
- A posteriori knowledge- empirical knowledge derived from experience.
 REALIST LAW SCHOOL- JOHN GRAY

• Studies law in Action

• Judgment given by the Judges +
Human Factor of Judges and Lawyers (Political, economic and Personal qualities)- Justice DY Chandrachud- Liberal Ideology (e.g. Art. 377,
Privacy, marriage annulment)
• Realist School- America and Europe
2 Questions arise-
1. Role of Judges in making law
2. Doctrine of Precedent
Art. 141 of Indian Constitution- Stare Decisis
Justice Holmes (US Judge)- “Bad Men”, Law = Experience + Logic
Application of Realism- Personal Interaction/ Case Study Approach/ Basic Structure
 SOCIOLOGICAL LAW SCHOOL

• Law and Sociology

• Law is Social phenomenon- impact on society
• Doctrine of Laissez faire- Individual Interest (Health, education, welfare etc.)
• Major Proponents- Ehlrich, Ihering
• Ehlrich- Society is real source of legal developments.
 ROSCOE POUND

• Social engineering
• Maximum happiness minimum friction (e.g. Art. 19- Freedoms, Reasonable restrictions)
• Balance of conflicting interests
• 5 Jural Postulates (All societies are different, keep growing)
1. Criminal Law- No Aggression
2. Law of Patents- Protection to Creativity/Benefit from it
3. Law of Contract- Fulfilment of promises
4. Law of Torts- restitution
5. Strict Liability