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Nature, Sources and Schools of Law under Jurisprudence

By Mohd Aqib Aslam | Views 87844 (author-3992-mohd-aqib-aslam.html)

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It is well known that law being a dynamic concept, it changes with the evolution of society under different
socio-economic and political conditions. The rapid changes in modern times have given rise to new
problems and issues which are to be tackled by law through pragmatic approach in interpreting law.
While doing so, the modern jurisprudence has to take into consideration the social ethos and changing
patterns of the society which immensely widen its scope as a science of law.

Nature of Law
The term law is used in two senses, namely, in abstract and concrete sense. The term 'law' when used in
abstract sense means the system of law, such as the law of India, the law of defamation, law and justice
etc. The law in its concrete sense means a statute, enactment, ordinance or other exercise of legislative
authority.
House for rent in Pune
In the abstract sense, we speak
Find of home
a rental 'law' or
on 'the law' whereas
NoBroker. in concrete
Contact owners directly sense,
& get we speak 'a law' or 'of
laws'. Abstract law is 'jus' while
rental concreteassistance
agreement law is 'lex'. It is therefore, obvious that 'the law' and 'a law' are
not identical in nature and scope.
NoBroker Open
Definitions of Law
According to Austin, "Law emanates and is enforced by the State. He firmly believed that there is a
confluence of command, sanction and sovereignty in law."
According to Hegel, "It is the abstract expression of the general will existing in and for itself."
According to Savigny, "The rule whereby the invisible borderline is fixed within which the being and the
activity of each individual obtains a secure and free space." He said that law grows with the growth of
people, strengthens with the strength of people and finally dies away as the nation loses its nationality.
According to Ihering, law emphasises on two basic elements, namely social control and social purpose.
In his view "Law is the form of gurantee of the conditions of life in society, assured by state's power of
constraint."
According to Friedmann, "The law consists of norms of conduct set for a given community and accepted
by it as binding by an authority equipped with the power to lay down norms of a degree of general
application to enforce them by a variety of sanctions."
According to Duguit, '"Law is essentially a social fact which regulates the conduct of each individual in
the community."
According to Parker, "Law is the body of principles enforced and applied by the state through judicial
authorities by physical force in pursuit of justice."
According to Salmond, "Law as the body of principles, recognised and applied by the State, in the
administration of justice."
Classification of Law by Different Thinkers
Different thinkers like Salmond, Austin and Holland have classified law into the number of categories.

There classification is as follows:

Salmond's Classification of Law
Salmond has given an exhaustive classification of laws. He has referred to nine kinds of laws, which are
as follows:
1. Imperative Law:
It means "a rule which prescribes a general course of action imposed by some authority which
enforces it by superior power either by physical force or any other form of compulsion." 'Austin'
was the main exponent of imperative theory of law, which defines law as a command of the
sovereign which persons are obliged to obey. It may be either divine or human.

The human laws may be of three kinds-civil law, law of positive morality and law of nations which
is also called 'International law'. Civil law consists of commands issued by the State to its subjects
and enforced by its physical power. The law of positive morality consists of rules imposed by
society upon its members and enforced by public ridicule or disapprobation. International law
consists of rules imposed upon State by the society of States and enforced partly by international
option and partly by the threat of war. Imperative law has two essential elements.

Firstly, the command of the sovereign must be general and addressed to a particular person,
secondly, the observance of law must not depend upon the pleasure of people, but it should be
enforced by some authority.

2. Physical or Scientific Law

Physical laws are laws of Science which are expressions of the uniformities of nature. There is
perfect uniformity and regularity in these laws and are not subject to change. For example, law of
gravity, law of motion, law of air-pressure etc.
3. Natural or Moral Law
Natural law is based on the principles of right and wrong. It includes all forms of righteous action.
Natural law has also been called universal law or eternal law. It is also called 'rational law' because
it is based on reason. It embodies the principles of morality and is devoid of any physical
compulsion. Hugo Grotius made use of natural law to formulate International law.

Other writers who based their legal philosophies on natural law principles are Aristotle, Cicero,
Kant, Locke, Pufendorf, etc. Natural law embodies the principles of natural justice of which legal
justice is more or less imperfect expression. Legal justice and natural justice represent two
intersecting circles, i.e. justice may be legal but not natural or moral or it may be moral but not
legal or it may be both legal and moral.

The three consequences of natural law are as follows:

a. It is in a position to render a human law void if it is repugnant to natural law.
b. During medieval period, natural law helped in development of judicial and legal process.
Natural rights of an individual acquired great importance in this period.
c. It has given strength to the international law to develop as a law.

4. Conventional Law
According to Salmond, conventional law means, "any rule or system of rules agreed upon by
persons for the regulation of their conduct towards each other."
It is a form of special law. For example, rules of a club or a co-operative society or any voluntary
organisation are instances of a conventional law. According to some writers, law of nations which
we call as International law is also a kind of conventional law because its principles are expressly or
impliedly agreed upon by the member States.

5. Customary Law
There are many customs which have been prevalent in the community from time immemorial
even before the states came into existence. They have assumed the force of law in course of
time.
According to Salmond:
any rule of action which is actually observed by men when a customs is firmly established, it is
enforced by the state as law because of its general approval by the people."

For example, the whole of Hindu law of marriage, adoption, succession etc is based on customs
prevalent in ancient Hindu society. There is a difference of opinion among jurists about the
authority of custom as a law. Some regard it as a proper Jaw while others treat it simply as a
source of law.

Particularly, the positivists do not accept custom as a proper law but treat it only as a source of
law. But historical jurists like Savigny and Henry Maine have recognised customary law as far more
superior to the law of the State.

6. Practical or Technical Law

Practical laws are rules meant for a particular sphere by human activity. The laws of sanitation and
health, building construction and architecture etc may be included in this category.

7. International Law
The law of nations of the 18th century was named as International law by Bentham in 1780. It
 consists of rules which regulate relations between the states inter se. According to Oppenheim,
"International law is the body of customary and conventional rules which are considered legally
binding by civilised states in their inter course with each other." The Permanent Court of
International Justice (PCIJ) in SS Lotus case defined International law as:
"Principles which are in force between all independent nations."

According to Starke, International law is defined as "Rules of conduct which States feel themselves
bound to observe and therefore do commonly observe in their relations with each other, and
which also includes:
a. the rules of law relating to functioning of international institutions and organisations, their
relations with each other and their relations with states and individuals,
b. certain rules of law relating to individuals so far as the rights and duties of such individuals
are the concerns of the international community.

According to Russel, International law is defined as, "the aggregate of the rules to which the
nations have agreed to their conduct towards one another." Salmond, however, believes that
"International law is essentially a species of conventional law and has its source in International
agreements."

According to Austin, Willoughby and Holland, International law is a mere positive morality. They do
not agree that it is law properly so-called. Austin defines law as a body of rules for human conduct
set and enforced by a sovereign political authority. In the absence of any binding force, the validity
of International law is solely dependent on the voluntary acceptance by the States and therefore, it
cannot be called as 'law' in true sense of the term.

Holland also supports to this view of Austin and observes, "The rules of international law are
voluntary, though habitually observed by every State in its dealings with the rest, can be called 'law'
only by courtesy, Oppenheim defends international law as 'law' and says a Weak law nevertheless
is still a law."

Professor Dias suggests that there is no doubt, that the respect which States pay to international
law is far less than what individuals pay to municipal law, but still it is called 'law' to inspire a sense
of obligation among States to follow it. Therefore, it is 'law', but indeed a weak law.

According to Harold Laski, "States consent to the rules of International law not because they so
choose but really because they have no alternative." In Great Britain, International law is not ipso
facto regarded as a part of the UK law as held by Chief Justice Coleridge in Franconia case.

8. Prize Law
That portion of International law which regulates the practices of the capture of ships and cargo in
wartime, as applied by courts is called 'prize law'. It is meant for administering justice between the
captors of ships or cargos and the persons interested in the property seized. Salmond, however,
disagreed with the view that prize law should be regarded as a branch of International law in strict
sense of the term.

9. Civil Law
The law enforced by the state is called 'civil law'. The force of state is the sanction behind this law.
Civil law is essentially territorial in nature as it applies within the territory of the state concerned.
The term 'civil law' is derived from the Roman word 'jus civile', Austin and Holland prefer to call civil
 law as 'positive law' because it is, enforced by the sovereign political authority. However, Salmond
justifies the term 'civil law' as the law of the land.

Austin's Classification of Law

John Austin has classified law into following categories: Divine Law and Human Law.

Positive moralities which are rules set by non-political superior e.g. international law. Law metaphorically
or figuratively so-called.

Austin regards only divine law and human law as proper law but does not consider positive morality and
figurative law as law in real sense of the term as they lack binding force in the absence of a sanction and
no evil consequences follow in the event of their breach or infringement.

Holland's Classification of Law

Holland classified law according to their functions. He classified law into following categories:
1. Private and Public Law
Statutes are of two kinds, namely, public and private. The distinguishing features of a public act is
that judicial notice is taken about its existence. On the other hand, private is one which does not
fall within the ordinary cognizance of the courts of justice and will not be applied by them unless
specially called to their notice. The province of private law is the adjustment of relations between
person and person, whereas the public law deals with relationship between person and the state.
In case of private law, the parties to a case may either be natural or artificial persons and the state
only acts as an arbiter through its courts. The laws of property, contracts, corporations, torts,
trusts etc are examples of private law. Public law, on the other hand, seeks to regulate the
activities of the state.

The important sub-divisions of public law are:

a. Constitutional law
b. Administrative law
c. Criminal law
d. Criminal procedure.

Broadly speaking, public law deals with the rights and obligations of the state towards its citizens
and vice versa. Private and public law, taken together are called 'municipal law'. In public law, state
is an interested and enforcing party whereas in private law, state is only the enforcing authority.

2. General and Special Law

The territorial law of a country is called 'General law'. It consists of all persons, things, acts and
events within the territory of a country which are governed by it. For example, Indian law of crimes
and law of contracts are the general laws of the country because they have general application
throughout the territory of India. General law consists of those legal rules of which the courts take
judicial notice whereas the special law consists of those legal rules which courts will not recognise
and apply them as a matter of course but which must be specifically proved and brought to the
notice of the courts by the interested parties.

Salmond has rightly pointed out that the true test of distinction between the general law and
special law is judicial notice. Besides the general law, there are certain kinds of special laws which
the court are bound to know. They are called 'jus specile'. The maxim 'ignorantia juris non excusat'
 applies to special laws in the same way as it applies in case of general laws.

The examples of special laws are the Bombay Prohibition Act, The Maharashtra Ownership of
Flats Act, Tamil Nadu Gambling Act, The Calcutta Police Act etc.
There are several kinds of special laws, namely:
a. Local law
b. foreign law
c. conventional law
d. autonomic law
e. martial law
f. International law
g. mercantile law etc.

3. Substantive and Procedural Law

According to Salmond, substantive law is that which defines a right while procedural law
determines the remedies. Procedural law is also called 'law in action' as it governs the process of
litigation. Substantive law is concerned with ends which the administration of justice seeks to
achieve while procedural law deals with the means by which those ends can be achieved. For
example, Law of Contract, Transfer of Property Act, Negotiable Instrument Act, crimes etc. are
substantive laws whereas the civil procedure or criminal procedure is procedural laws."

4. Antecedent and Remedial Law

Antecedent law relates to independent specific enforcement without any resort to any remedial
law. The law relating to specific performance of a contract is the best example of antecedent law.
The remedial law, on the other hand provides for a remedy. For example, law of torts, writs etc.
come within the category of remedial laws.

5. Law in Rem and Law in Personam

Law in rem relates to enforcement of rights which a person has against the whole world or against
the people if general, whereas law in personam deals with enforcement of right available against a
definite person or persons. For example, law of inheritance, succession, ownership etc comprise
the subject matter of law in rem while the law contract, trust etc.

Sources of Law
In the modern Jurisprudence the term 'sources of law' is broadly used in two senses. Sometimes it is
used in the sense of state or the sovereign from which the law derives its force and validity. In other
sense, it is used to denote the causes of law or the contents or matter of which law is composed. Dr C K
Allen asserts that the true sources of law are agencies through which the rules of conduct acquire the
character of law because of their certainty, uniformity and binding force.

According to Fuller, the 'sources of law' includes the material from which the Judge obtains rules for
deciding cases. In this sense, it includes statutes, judicial precedents, customs, opinions of legal experts,
jurists etc.

According to natural law philosophers, the 'law' has a divine origin. It is a gift of God contained in Holy
Books. Vedas and Smritis are sources of law according to Hindu Jurisprudence as they have originated
from the sages. In the same manner, Quran is the word of God and therefore, a positive source of
Muslim law. The Hadis contains the precepts of the Prophet as inspired and suggested by God.
John Austin, the exponent of analytical school of Jurisprudence refers to three different meanings of the
term 'sources of law'.
1. Firstly, the term refers to the authority from where the law emanates, namely, the sovereign.
2. Secondly, it may refer to historical material from which the existence of rules of law may be
known, e.g. the Code of Manu, Commentaries of Yajnavalkya, Code of Justinian.
3. Thirdly, the term sometimes refers to the causes which give the rules of society, the force of law
e.g. legislation, custom, equity, law etc.

Thus, Austin's three meanings, of 'sources of law' may include:

a. direct authority;
b. historical documents; and
c. causes.

Duguit rightly pointed out that law is not derived from any single source and the real basis of law is public
service.

Ehrlich writes, "At present as well as any other time, the centre of gravity of legal development lies not in
legislation, not in juristic science not in judicial decisions, but in society itself."
According to Salmond, "Legal sources are those sources which are recognised as such by the law itself,
while historical sources are those sources which lack formal recognition by the law. The legal sources of
law are authoritative and historical sources are unauthoritative."

Kinds of Sources of Law

Some of the important sources of law are as follows:
1. Custom
The term 'custom' has been defined in the Webster's New International Dictionary as a long
established practice considered as in written law and resting for authority on long consent, a usage
that has, by long continuance has acquired a binding force in law.

According to Herbert Spencer, "'before any definite agency for social control is developed, there
exists a control arising partly from the public opinion of the living and more largely from the public
opinion of the dead."

Thus, it is a tradition passing on from one generation to another that originally governed human
conduct. This tradition is called 'custom'.
According to Salmond, "Custom is to society what law is to the state. Each is the expression and
realisation to the measure of men's insight and ability of the principles of right and justice."

Nature and Origin of Custom

Custom has its origin in the usage or practice of people in doing certain things in a certain way and
one of its characteristics is that it is not consciously formed. Usage developing into customary law
is the oldest form of law making and in its early stages depends for its validity on willingness of
those who generally follow the usage to submit to it.

According to Holland, "Usage is the spontaneous evolution by the people or part of them of rules
of conduct, the existence and general acceptance of which is proved by their regular observance."

According to Savigny the main founder of German historical school, "Custom is essentially a
product of natural forces associated with popular spirit of acceptance by the people. When people
repeat the same action again and again, it assumes the form of 'habit' and when habit continues
to be in practice for a long time, it becomes custom."

Kinds of Custom
It is not necessary that a custom should be practised all over the country. There may be a custom
which is practised authoritatively only in a particular locality. Broadly speaking, there are two kinds
of custom, namely, legal custom and conventional custom.

According to Salmond, a legal custom is one which is operating per se as a binding rule of law,
independently of any agreement on the part of those subject to it. A legal custom is one whose
authority is absolute. A conventional custom is one which operates only indirectly through medium
of agreements, whereby it is accepted and adopted in individual instances as conventional law
between the parties.

Conventional custom is one whose authority is conditional on its acceptance and incorporation in
agreements between the parties bound by it. Usually conventional custom is referred as usage and
legal custom as custom simpliciter. A valid legal custom should have existed from time
immemorial; such antiquity is, however, not needed to support the validity of usage. Conventional
customs are implied, if they are not in conflict with the general law of the land. In case of conflict,
however, such usage may be made applicable by the express agreement between the parties.

Legal customs are of two kinds, namely, local custom and general custom. A local custom is a
usage which has obtained the force of law and is binding within a particular area. In practice, a
plaintiff or defendant relying upon a local custom must plead it and give particulars of it.

Essentials of a Valid Custom

The custom must have existed since time immemorial. The custom must have been continuously
in operation without any interruption. This does not mean that custom should have been
continuously exercised but that at all times, it must have been possible to exercise it lawfully. If it
were legally unenforceable for even a short time it would not be recognised as a valid custom. The
custom must have been exercised peaceably, openly and as of right.

The basis of custom is that it is exercised by consent and any secret or forciable exercise cannot
be with consent. Furthermore, an exercise of a right which depends on the granting of permission
cannot be a valid custom, for clearly, if there had been a right, permission would have been
necessary. The custom must not be unreasonable in the eyes of law. The period for ascertaining
whether a custom is reasonable is the period of its inception.

The element of certainty evinces the existence of a custom therefore, a custom cannot be said to
be in existence from the time immemorial unless its certainty and continuity is proved beyond
doubt. A custom to be legally recognised as a valid custom, must be observed as of right. It means
that custom must have been followed by all concerned without recourse to force and without the
necessity of permission of those who are adversely affected by it.

It must be regarded by those affected by it not merely as an optional rule but as an obligatory or
binding rule of conduct. If a practice is left to individual choice, it cannot be treated as a customary
law. A custom must not be contrary or inconsistent with a legislative enactment.

A legislative enactment can reject a custom and it must necessarily yield where it militates against
 or is inconsistent with enacted law. Allen in his 'law in making' observes, "Age cannot whither an
Act of Parliament and at no time so far as I am aware has it every been admitted that a statute
might become inoperative through obsolescence."

The custom must be consistent with other customs, otherwise they cannot at all be good. It must
not conflict with other established customs. Custom must apply to a definite locality. Local
customs apply only to the things or inhabitants.

2. Precedent
Judicial precedent is another important source of law. It is a distinguishing feature of the English
legal system because most of the common law is unwritten and owes its origin to judicial
precedents. Precedents have a binding force on judicial tribunals for deciding similar cases in
future. A precedent is a statement of law embodied in the decision of a Superior Court, which
decision has to be followed by the court and by courts subordinate to it. As such the theory of
precedent plays a significant and important role in the jurisprudence of every country.

According to Salmond, the doctrine of precedent has two meanings, namely, in a loose sense
precedent includes merely reported case-law which may be cited and followed by the courts, in its
strict sense, precedent means that case-law which not only has a great binding authority but must
also be followed.

Holdsworth supports the doctrine in its loose sense. It is true that in common law countries, new
laws and law reforms have increasingly been brought about through Acts of Parliament, usually
inspired by the policies of the Government of the day, but even then the development of case law
still remains a potent source of law.

A statement of law made by a judge in a case can become binding on later judges and other
subordinate courts and in this way may become the law for everyone to follow. Whether or not a
particular decision, i.e. precedent becomes binding depends on two main factors, namely it must
have been pronounced by a court which is sufficiently senior. It is only the ratio decidendi i.e.
reasoning behind the decision which is binding.

According to Jeremy Bentham, precedent is a Judge-made law while Austin calls it as judiciary's
law. Keeton holds precedents as those judicial pronouncements of the court which carry with them
certain authority having a binding force.

Kinds of Precedents
Broadly speaking, precedent may either be authoritative or persuasive. An authoritative precedent
is one which has a binding force and the judge must follow it whether he approves it or not.
Authoritative precedents are the decisions of superior court of justice which are binding on
subordinate courts.

Persuasive precedent, on the other hand, is one which the judges are under no obligation to
follow, but which they may take into consideration. Thus, authoritative precedents are the legal
sources of law while persuasive precedents are merely historical sources.

Persuasive precedents may be of various kinds, namely:

Foreign judgments, Decision of superior courts to other parts of British Empire, Judgments of the
 Privy Council when sitting as the final court of appeal from the colonies, Judicial dicta, Authoritative
text books and commentaries.

Binding Force of Judicial Precedents

Once a decision is overruled by any subsequent ruling, it loses all its binding authority. But there are
certain other circumstances which also destroy or weaken the binding force of judicial precedents either
partially or totally. They are as follows:
1. Ignorance of Statute:
A precedent is not binding, if it be rendered in ignorance of any statute or any other rule having the
force of statute. It is also not binding, if the court had the knowledge of the existence of the
statute, but it failed to appreciate its relevance to the matter in hand due to negligence or
ignorance.

2. Inconsistency between Earlier Decision of the Court of the Same Rank:

A court is not bound by its own earlier decisions which are conflicting with each other. The conflict
may arise due to inadvertence, ignorance or forgetfulness in not citing earlier decisions before the
court. In such a case the earlier decisions are not binding on the court.

3. Inconsistency between Earlier Decision of Higher Court:

A precedent loses its binding force completely, if it is inconsistent with the decision of a higher
court. Thus, the Court of Appeal in Young v. Bristol Aeroplane Corporation limited, observed that it
is bound to follow its own previous, decisions as well as those of courts of co-ordinate jurisdiction.
However, the court is bound to refuse to follow a decision of its own which, though not expressly
overruled, cannot, in its opinion, stand with a decision of the House of Lords or if it finds that there
is inconsistency between its earlier decision.

4. Decision of Equally Divided Court:

There may be cases where the Judges of Appellate Court are equally divided. In such a case,
practice is to dismiss the appeal and hold that the decision appealed against is correctly decided.
But, this problem does not arise nowadays because Benches are always constituted with uneven
number of judges.

In India, however, where the judges in a Division Bench of a High Court are equally divided, the
practice is to refer the case to a third judge whose decision shall be treated as final unless it is set
aside by the Supreme Court.

5. Precedent Sub Silentio:

A decision is said to be sub silentio when the point of law involved in it is not fully argued or not
perceived by the court. The decision in Gerard v. Worth of Paris Ltd, is a good illustration to explain
a precedent sub silentio.

6. Erroneous Decisions:
The decisions which are founded on misconceived principles or in conflict with the fundamental
principles of law lose their binding force totally.

7. Affirmation or Reversal on a Different Ground:

When a higher court either affirms or reverses the judgment of the lower court on a ground
different from that on which the judgment rests, the original judgment is not deprived of all the
 authority, but the subsequent court may take a view that a particular point which the higher court
did not touch, is rightly decided.

8. Abrogated Decisions:
A decision ceases to be binding, if statute inconsistent with it is subsequently enacted. So, also it
ceases to be binding if it is reversed, overruled or abrogated. If a decision is wrong or irrational, it
may be abrogated by a subsequent enactment or decision of a higher court.

Binding Elements in Precedents

The Ratio Decidendi
Each judge in a case will give his judgment and it is not that every part of the judgment that acts as
judicial precedent. It is therefore important that a judge who is using a case as a precedent should be
able to recognise that part of the previous judgment which is binding upon him. The portion of a
previous judgment that is binding is called the 'ratio decidendi' (the reason for deciding). This consists of
the portion of law which was essential to the judge in coming to his decision. Thus, three shades of
meaning can be attached to the expression 'ratio decidendi', which are as follows:
a. The first is the translation of it, it is the reason for deciding.
b. Secondly, it may mean the rule of law preferred by the judge as the basis of his decision.
c. Thirdly, it may mean 'the rule of law' which others regard as being of binding authority.

Obiter Dicta
Pronouncements of law, which are not part of the ratio decidendi, are called as 'obiter dicta' and they are
not authoritative or binding on subordinate courts. Obiter dicta may be defined as more casual
expressions by the court which carry no weight. In the course of judgments, a judge may make various
observations which are not precisely relevant to the issues before him. For instance, he may illustrate his
reasoning by reference to hypothetical situations.

Whatever said by the court by the way of statements of law which lay down a rule, but which is
unnecessary for the purpose in hand, are called 'obiter dicta'. These dictas have the force of persuasive
authority and are not binding upon the courts. The courts may seek help from them but they are not
bound to follow them. Obiter dicta literally means something said by the judge by the way, which does
not have any binding authority. Goodhart defines obiter dictum as, "A conclusion based on a fact the
existence of which has not been determined by the court."

Legislation
The term 'legislation' is derived from Latin words, legis meaning law and latum which means 'to make' or
'set'. Thus, the word 'legislation' means 'making of law'. The term 'legislation' has been used in different
senses. In its broadest sense, it includes all methods of law-making. However, in its technical sense,
legislation includes every expression of the will of the legislature, whether making law or not.

Thus, ratification of a treaty with a foreign State by an Act of Parliament shall be considered law in this
sense. But in strict sense of the term, legislation means enacted law or statute law passed by the
supreme or subordinate legislature. Jurists have expressed different views about legislation as a source
of law. According to Gray, "Legislation includes formal utterances of the legislative organs of the
society."
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TE Holland has interpreted the term 'legislation' in its widest sense and observed, "The making of general
orders by our judges is as true legislation as carried on by the crown." Blackstone pointed out that the
law that has its source in legislation which may be most accurately termed as enacted law and all other
forms may be distinguished as unenacted law. In England, the former is called statute law while the latter
as common law.

Blackstone prefers to call them written and unwritten law. According to Austin, legislation includes
activities which result into law-making or amending, transforming or inserting new provisions in the
existing law. Thus, there can be no law without a Legislative Act.

Salmond observed that legislation is that source of law which consists in the declaration of legal rules by
a competent authority. According to him, the term 'legislation' as a source of law is used in three
different senses. In its strict sense, it is that source from where the rules of law declared by competent
authority are framed. In its widest sense, legislation includes all methods of law-making. In this sense,
legislation may be either direct or indirect.

Kinds of Legislation
Supreme Legislation:
Supreme legislation is that which proceeds from supreme power of state, which is incapable of being
repealed, annulled or controlled by any other legislative authority. In England, the British Parliament is
Supreme in every sense. However, in India, the Parliament is not supreme because its laws can be
questioned in the court of law, which may declare them ultra vires.

Subordinate Legislation:
Subordinate legislation is that which proceeds from any authority other than the sovereign power, and it
therefore depends for its continued existence and validity on superior authority.

Kinds of Subordinate Legislation

Colonial Legislation: The British colonies and other dependencies were conferred limited power of self-
government in varying degrees by the imperial legislature. The colonies in exercise of this power, enjoyed
limited power of law-making. But, the laws so made by colonial governments could be repealed, altered
or superseded by the imperial legislature, namely the British Parliament. However, after the passing of
the Statute of Westmister of 1931, the self-governing Dominions under the Crown have been given
power to make law independently subject to nominal supremacy of the British Crown.

Executive Legislation: The Parliament delegates its rule-making power to certain departments of the
executive organ of the government. The rules made if pursuance of this delegated power have the force
of law.

Keeton suggests that these species of subordinate legislation have given rise to a vast body of rules
known as administrative law, which is commonly called 'public law' because it describes the nature of the
activity of the executive department of the government in action. In France, it is known as droit
administratif. According to Sir Ivor Jennings, administrative law is defined as, "The law relating to
administration which determines the organisation, powers and duties of administrative authorities in the
State.

Judicial Legislation:In some cases, legislative power of rule-making is delegated to the judiciary and the
superior courts are authorised to make rules for regulation of their own procedure in exercise of this
power. It is also called 'judicial legislation' and it should not be confused with judicial precedents, The
Constitution of India has conferred the power of rule-making to the Supreme Court under Article 145 and
the similar power is conferred on the High Courts under Article 227.

Municipal Legislation: The municipal authorities are allowed within their areas to make bye-laws for
limited purposes such as water-tax, land urban cess, property-tax, town planning, public health,
sanitation etc.

Autonomous Legislation: The state may sometimes allow private entities or bodies, like universities,
corporations, companies etc. to make bye-laws for regulating the conduct of their business. These bye-
laws are framed in exercise of the rule-making power conferred on these bodies by the state. For
example, Railways have their own rules for the conduct of their business.

Schools of Jurisprudence
The important schools of jurisprudence are as follows
Historical School
In historical school, there is a basic presumption that there is a link between the society and law. The law
evolves according to the needs of society. The societal necessities are specific for particular society and
therefore, accordingly the behaviour of society is also specific to that particular society. This behaviour is
based upon particular society. With the variation in necessities of society, the behaviour also varies. It is
found that a particular behaviour has been consistently practiced in society and followed because of
legal compulsion, such a behaviour will be said to have value at customary law.

The historical school approach to law originated in the beginning of 19th century. 'Savigny' is considered
to be its chief exponent. The basis of historical approach lies in Roman law. Montesquieu anticipated
historical school and stated that "laws were creation of climate, local situation, accident or
imposture." Maine calls him the first jurist who proceeded on historical method. Burke warned that
"schemes should not be made for the future without assimilating the lessons of past." According to him,
law is a product of a gradual and organic process. Germany is said to be the cradle of historical school.
Factors Responsible for the Rise of Historical School
It was a reaction against the plea for universality of law as suggested by the natural school. It was a
reaction against the rationalism which suggested that what is relevant is the requirements of the present
and there should be reference to the past. It was a reaction against Thebaut's (of Hiedelberg) proposal
for codification. The historical school suggested that by codifying, law would become static and a law
which is derived from local customs cannot be codified. The Napoleonic conquests in Europe gave rise
to an extreme degree of nationalism. This helped in the growth of historical school.

Savigny's Contribution
Law grows with a nation, increases with it and dies at its dissolution. Law, language, custom and
government have no separate existence. Custom precedes legislation and is superior to, it should
conform to consciousness of people. Law is not of universal application and varies with people and ages.
Lawyers are voices of popular consciousness and their functions are to mould law. Instead of the
individual, emphasis was laid on spirit of people.

Analytical School
The analytical school considers most important aspect of law to be its relation to State. It takes the law
as given by the State, whose authority is unquestionable. As such it is known as imperative school. The
jurists of this school are concerned with analysis of first principles of the law as they exist in the legal
system, For this reason, this school is called the positive school. The school is in England and is referred
to as English school. As the school was founded by Austin, it is also called 'Austinian School'. Bentham
and Austin are considered to be the founders of the analytical or positive school. Though, generally
Austin is said to be 'Father of analytical school'.

The analytical school is positive in its approach to the legal problems of society. Its purpose is to analyse
law without being concerned either with their historical origin or their ethical significance. The emphasis
on the systematic analysis of legal concept has resulted in the school termed as analytical.

The analytical school has made a strict distinction between positive law and ideal law. This school has
analysed the concept of civil law and established its relationship with other forms of law. Positive law is a
general rule of conduct laid down by a political superior to political inferior. Analytical school has taken
into account the legal sources like legislation, judicial precedent and customary law and has investigated
the claim of each of these sources from which law flows. This school also analysed the concept of legal
rights and legal liability, both civil and criminal.

Contribution of Austin
According to Austin, 'Law is a rule laid down for the guidance of an intelligent being by an intelligent being
having power over him." He made a distinction between 'law properly so called' and 'law improperly so
called.' According to him, "Law is the general command of the sovereign backed by sanction."

Types of law as per Austin are as follows

Law set by God or Divine Law
Positive law set by men to men, acting as political superior or in pursuance of rights conferred by political
superior. 'Laws improperly so called' are those laws which are not set by political superiors, but which are
laws by analogy. The central feature of Austin's theory is of course, the notion of law as command of
the sovereign. Anything that is not command is not law. Only general commands are laws and only
commands emanating from sovereign are positive laws.

There are five elements of his definition of positive law expressed as:
 i. wish,
ii. sanctions,
iii. expression of wish
iv. generality and
v. a sovereign.

Types of commands according to Austin are as follows:

General generally to members of a class.
Occasional/Particular A specific act or forbearance.

Bentham, on the other hand, argues that commands are merely one of five methods by which the
sovereign enact, law. In developing his theory of structure of law, he distinguishes between law which
command or prohibit certain conduct and those which permit certain conduct. Regarding laws in general,
Bentham is concerned with distinction between penal and civil laws.

Philosophical School
This school is an offshoot of Historical School in Germany, Friedmann calls it 'Philosophical Historism'.
This school is primarily concerned with the relation of law to certain ideal. The aim of the school is to go
into the purpose of law. The philosophical jurists regarded law neither as a command nor as something
emanating from historical necessity, but as a product of reason.

Thus, it is essentially concerned with the relation between law and justice, the distinction between law
and morality and their contribution to the ends of justice, the maintenance of justice in a society and
fundamental legal concepts and principles which have ethical significance. The aim and purpose of this
school and the science of ethics is basically the same, namely perfection of human personality.

Immanuel Kant (German) in his 'Lectures on Ethics', clearly differentiated between law and ethics.
According to Kant, "Ethics concerns itself with the laws of free action in so far as we cannot be coerced
to it but the strict law concerns itself with free action in so far as we can be compelled to it." Ethics as a
science of human conduct lays down rules relating to ideal human conduct and the elevation of man's
inner life based upon higher and nobler values of life.

According to Salmond, Philosophical jurisprudence is the common ground of moral and legal philosophy
of ethics and jurisprudence. This school concentrates its attention on the purpose of law and the need
for coercive regulation of human conduct by legal rules. Law is the means by which the individual
requirement is subordinated to that of the society at large. Another leading exponent of this school
was Hegel. Apart from building on the Kantian doctrine of freedom of will as being the end of law, Hegel
contributed significantly to philosophical jurisprudence by his development of idea of evolution.

The Sociological School

The fundamental postulate of the sociological school is that we cannot understand what a thing is
unless we study, what it does for example, Law in action. Law is a process of balancing conflicting
interests and securing the satisfaction of the maximum of wants with the minimum of friction. According
to Roscoe Pound, Sociological jurisprudence should ensure that the making, interpretation and
application of laws takes account of social facts. In order to achieve this end, there should be:
A factual study of the social facts of legal administration.
Social investigations as preliminaries to legislation.
A constant study of means for making laws more effective.
Study both psychological and philosophical methods of jurisprudence.
 Sociological study of legal history.
Allowance for the possibility of a just and reasonable solution.
Administration of justice in English speaking countries.
The achievements of the purpose of the various laws.

According to Roscoe Pound, jurisprudence is the science of social engineering. This brings a balance in
conflicting interests in society. In order to assess the word social engineering, he classified various
interests that are to be protected by law, which are as follows:
Individual Interest:

These are claims or demands or desires involved in and looked at from the standpoint of individual life.
They are concerned with.
a. Personality includes interest in physical person, freedom of will, honour and reputation, privacy,
belief and opinion.
b. Domestic Relation:
Property, freedom of industry and contracts, promised advantage, advantageous relations with
others, freedom of association, continuity of employment.
Public Interest: Interest of the State as a juristic person includes, integrity, freedom of action and
honour of State personality, claim of politically organised society as a corporation to property
acquired and held for corporate purposes.

Social Interest: It includes

a. Social interest in the general security relates to general safety, general health, peace and order,
security of acquisition, security of transaction
b. Social interest in security of social institutions like domestic institution, religious institution, political
institution, economic institution.
c. Social interest in general morals like prostitution, gambling, drunkenness.
d. Social interest in conservation of social resources like conservation of natural resources,
protection of and gaining of dependents and defectives.
e. Social interest in individual life.

Important Pioneers of Sociological Thought

Some of the important pioneers of sociological thoughts are as follows
Auguste Comte
First used the term 'Sociology'. Founder of 'Science of Sociology'. 'Organic Theory' Society is like an
organism.

Durkheim
Made a distinction between two kinds of needs in the society namely, common needs and individual
needs. Division of labour. Theory of 'social solidarity'.

Duguit
No distinction between private and public law. No private rights-'The only right which any man can
possess is the right always to do his duty'. State sovereignty declines. Decentralisation increases,
syndicalism increases.
Ehrlich
Law is to be found in social facts and not in formal sources of law. Facts of law:
a. Usage,
b. Domination,
c. Possession.

Centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial
decisions, but in society itself.

Realist School
According to this school, "Law never is, but is always about to be." This school further states that law is
studied for its social effects. Special stress was given upon the legal decisions. Realist school is also
called the 'left wing of the functional school'. Realist school is less concerned with the ends of law, it
concentrates upon the study of law as it is in actual working and its effects. This school originated in
USA. Homes and Gray are greatest exponents of the Realist school. According to Homes, "Law is the
prophecies of what the courts will do infact and nothing more, pretentions are what we mean by the
law." He says that, study of laws on a national system is based on history. The theory is the most
important part of the dogma of law. There is a need for a legal theory. According to Jerome Frank,
'Certainty of law is legal myth. Judges should not stick to principles and precedents, they should evolve
law case by case."

Natural School
Some of the important exponents of Natural School are as follows:
Grotius
He builds his legal theory on 'social contract'. His view is that political society rests on a 'social contract'.
It is the duty of the sovereign to safeguard the citizens because the former was given power only for
that purpose. The sovereign is bound by 'natural law.'

Hobbes
Hobbes' theory also proceeds from the 'social contract'. Before the social contract, man lived in a
Chaotic State. According to him, man's life in a state of nature was one of fear and selfishness. It was
solitary, poor, nasty, brutish and short. The idea of self-preservation and avoiding misery and pain are
inherent in his nature. He desires society also. These natural inclinations induced him to enter into a
contract and surrender his freedom and power to some authority. Hobbes is the supporter of
absolutism. Subject has no rights against the sovereign and the latter, in no case can be disobeyed.

Locke
According to Locke, "the state of nature was a golden age, only the property was insecure. It was for the
purpose of protection of property that men entered into the 'social contract'. Man, under this contract,
did not surrender all his rights but only a part of them, namely, to maintain order and to enforce the law
of nature. His natural rights as the tight to life, liberty and property, he retained with himself. The purpose
of government and law is to uphold and protect the natural rights."

Rousseau
According to him, social contract is not a historical fact, but a hypothetical construction of reason.
Before this contract, man was happy and free and there was equality among men. By the 'social
contract' men united for the preservation of their rights of freedom and equality. For this, they
surrendered their rights not to a single individual sovereign, but to the community to which Rousseau
gives the name of 'general will'. It is the duty of every individual to obey the 'general will' because in doing
so, he directly obeys his own will.

The existence of the State is for the protection of freedom and equality. The State and the laws made by
it both are subject to 'general will' which creates the State.

Stammler
According to Stammler, "All positive law is an attempt at just law" and that is justice law or justice is a
'harmony' of wills or purposes within the framework of the social life. The harmony of wills or purposes
varies according to time and place. Law is valid even if it does not conform to this 'just' but attempt
should be made to being it near its aim. This concept has been called by Stammler as, "natural law with a
variable content."
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