Jurisprudence Unit-2

Chanderprabhu Jain College of Higher Studies
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E-NOTES
Class : B.A.LL.B VI Semester
Paper Code : LLB 302
Subject : Jurisprudence
UNIT-2
HISTORICAL SCHOOL
In this Historical school, the basic presumption is there is a link between the society and law. The
law grows as per 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. As the necessities of society vary, the behavioural so
varies. One it is found that a particular behavior has been consistently practiced in society and
followed because of legal compulsion such a behaviour will be said to have value at customary law.
It is the customary law at which existing law come into the society. Though the basis theories of
Maine, Puchta are not have essentially the same element, essential premise is same.
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 (1689-1755)
 The credit of laying down foundation of Historical School of jurisprudence in France goes to
Montesquieu through his classical work “Spirit of Laws”, published in 1748.
 He was opposed to natural law.
 He laid down the foundation of comparative and sociological jurisprudence. He held that laws
should be adopted to suit the people for whom they are framed keeping in view the degree of
liberty which Constitution desires to grant to its people.
 According to him, law depends upon social conditions prevailing in a society. He held that laws
should be adopted to suit the people for whom they are framed keeping in view the degree of
liberty which Constitution desires to grant to its people.
 According to him, law depends upon social conditions prevailing in a society.
Edmund Bruke (1729-1797)
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 He considered evolution of law as an organic process and an expression of common beliefs,
faiths and practices of the community as a whole.
 He wrote the book Reflections on the Revolution in France published in 1790.
 He highlighted the importance of customs nd traditions in the growth of law.
 He upheld the significance of customs, habits and religions in the evolution of law and
development and denounced the French Revolution for its catastrophic consequences
Gustav Hugo
 He was a German exponent of historical jurisprudence.
 He observed that law is not the result of legislation or it is in no way a command of the sovereign
nor a matter of social contract, but it is the outcome of the habits of the people which they follow
voluntarily as a member of society
Vinogradoff
 According to him law is not a command of state but it is expression of general will of people.
 He was against the theory of Maine‟s expression of status to contract as he was of the opinion
that it does not hold good in communities following collectivist ideology wherein the doctrine of
collective bargaining through organized associations and unions predominates for ushering
economic rights.
 He underlined the need for greeted emphasis on comparative method of the study of law in
modern socialistic patter of societies which envisage the establishment of a welfare state. As,
according to him, comparative process aids in unification of laws and diversities can be
conveniently changed into uniformities. Thus, comparative law process provides a sound
foundation for the enactment of unified laws.
Sir Federick Pollock

 He was an English Jurist who analysed the laws of England during the reign of Henry II and
Henry III and came to conclusion that most of these were based on traditions and customs
prevalent in England from time immemorial.
 Thus, he considered historical legal institutions and customs as important sources of their
development of law and approved comparative method of study of law.
 He did not consider international law as mere positive morality but treated it as a law
proper which was based on mutual relation of states.
F.K. Von savigny

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 Belongs to Germany.
 Founder ofHistorical School.
 He is known as –„Darwinian beforeDarwinian and
 Sociologist beforeSociologist‟ (becausehe believed that law is closely connected with the people
and it closely contained the germs of futuresociological theory)
 A staunch opposer of Thebaut of Heidelberg who advocated codificationof laws.
 A fan of Roman law.
 „Volkgeist‟ (named by Puchta – a disciple of Savigny) - Law is not an artificial lifeless
mechanical device. It is shaped by internally silently operating forces like custom, history,
national spirit. Law has its source in the general or common consciousness of the people. This
common consciousness is known as the volkgeist. The nature of any particular system of law
was the reflection of the spirit of the people. Law is the product of the people‟s life. As law is a
reflection of people‟s spirit, it can be understood by tracing their history.
 Law is not a product of man‟s free will. Law, language, customs and government have no
separate existence. There is but one force and power in the people and it underlines all these
institutions. The law, like language, develops with the life of people.
 Law has a national character. A nation according to Savigny is a community of people linked
together byhistorical, geographical and cultural ties.
 Law is a matter of unconscious and organic growth i.e. it is not made deliberately. Any law
making should therefore, follow the course of historical development. Reforms should await the
result of the Historians‟ work.
 Lawyers are voices of popular consciousness and their function is to mould law. Legislation
is the last stage of law-making and therefore, the lawyer or the jurist is more important than the
legislator.
 Law is not of universal application and varies with people and ages.
 Custom precedes legislation and is superior to it. It should conform to popular consciousness
i.e. volkgeist. Custom may be evidence of law, but its real source lies deeper in the minds of
men.
 Savigny was not totally against codification of laws – he opposed the codification of the
German law on the French pattern at that time because Germany was then divided into several
smaller states and its law was primitive, immature and lacked uniformity. He considered Roman
law as an inevitable tool for the development of unified system of law in Germany.
 Law is the result of the genius of the people.
 Law grows with the growth and strengthens with the strength of the people, and finally dies
away as the nation loses its nationality.
 The law, like language, grows with the growth of social consciousness and organization; the law
can only be evolutionary and not revolutionary.

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 Law is found and not made.
 Law is a product of times the germ of which like the germ of State, exists in the nature of men as
being made for society and which develops from this germ various forms, according to the
environing influenceswhich play upon it.
 That which binds them into one whole is the common conviction of the people, the kindred
consciousness of an inward necessity, excluding all notion of an accidental and arbitrary origin.
 For law, as for language
 There is no moment of absolute cessation; it is subject to the same movement and development as
every other popular tendency…
 There is a nation and a state which is its organism which is born, matures and declines and
dies. Law is a vital part of that organism.
Criticism of Savigny‟s Theory
(1) Inconsistency in the theory– On the one hand, he asserted that the origin of law is in the
popular consciousness, and on the other hand, argued that some of the principles of Roman law
were of universal application. Savigny‟s view of adopting principles of Roman law was
vehemently opposed by Beselor, Eichorn, and Gierke.
(2) Volksgeist not the exclusive source of law– Savigny‟s view that popular consciousness is the
source of all law is not true. Sometimes, an alien legal system is successfully transplanted in
another country.
(3) Customs not always based on popular consciousness – Many customs originated only for the
convenience of a powerful minority, as slavery. Many customs are adopted due to imitation and
not on the ground of their righteousness or any conviction of the community. Sometimes,
customs completely opposed to each other exist in different parts of the same country which
cannot be said to be reflecting the spirit of the whole community.
(4) He ignored other factors that influence law – Another criticism against Savigny is that he was
“so occupied with the source of the law that he almost forgot the stream”. He over looked the
forces and factors which influence and determine the growth of law. The creative function of the
judge has also been ignored in Savigny‟s theory and the contribution of the jurist has been taken
very lightly. Many rules, in modern time, are the result of a conscious effort. For example, the
law relating to trade unions is an outcome of a long and violent struggle between conflicting
interests within a society.

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(5) Many things unexplained- Certain invariable traits, like mode of evolution and development
noticeable in all the legal systems of the world are left unexplained in Savigny‟s theory. Legal
developments in various countries show some uniformity to which he paid no heed. Prof.
Korkunove says: „It does not determine the connection between what is national and what is
universal‟.
(6) Juristic pessimism– According to Pound, Savigny encouraged juristic pessimism‟. According to
his theory, legislation must accord with popular consciousness. Such a view will not find favour
in modern times. No legal system would like to make compromise with abuses only because that
people are accustomed to it. It is rightly said that Savigny‟s theory tended to hang traditions like
fetters upon the hands of reformative enterprise. „It discouraged creative activity and legal
reform‟.
Applicability of Savigny‟s Theory to India
The applicability of Savigny‟s theory to India is limited.
(1) Federal Constitution– In a federal Constitution, there is a division of powers between the
federal (central) and the State Governments and both are independent in their own spheres. The
basis of such distribution of powers is that in matters of national importance in which a uniform
policy is desirable in the interest of the units, authority is entrusted to the Union (Union List) and
matters of local concern remains with the States (State List). Thus, in a federal Constitution, law
lacks a ‘national’ character as envisaged by the Savigny.
India is a federal State. However, it enshrines the principle that inspite of federalism, the „national
interest‟ ought to be paramount. The Indian Constitution mainly federal with unique safeguards for
enforcing national unity and growth. At the time of emergency, it acquires a unitary character, and
the normal distribution of powers between Centre and States undergoes a vital change. The Union
Parliament is empowered to legislate on any subjects mentioned in the State List. During normal
times also, the Parliament has power to legislate in the national interest (Article249).
The Preamble of the Constitution declares India to be a “Sovereign, Socialist, Secular, and
Democratic Republic”. The term ‘democratic’ indicates that the Constitution has established a form
of Government which gets its authority from the will of the people. The rulers are elected by the
people and are responsible to them. Justice, Liberty, Equality and Fraternity which are essential
characteristics of a democracy are declared in the Preamble as the very objectives of the
Constitution. Democracy would indeed be hollow if it fails to generate this spirit of brotherhood
among all sections of the people –feeling that they are all children of the same soil and the same
mother land. It becomes all the more essential in a country like India composed of many races,

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religions, languages and culture. The Preamble declares that the Constitution of India is adopted and
enacted by the people of India and they are the ultimate master of the Republic. Thus, the real power
is in hands of the people of India, both in the Union and in the States.
(2) Source of Indian Constitution – The Preamble indicates the source from which the
Constitution comes, viz., the people of India. However, the framers of Indian Constitution
incorporated various provisions of the Constitutions of world in order to avoid defects
andloopholesthatmightcomeinfutureintheworkingofIndianConstitution.Accordingly,they framed the
Chapter on Fundamental Rights on the model of American Constitution, and adopted the
parliamentary system of Government from the U.K.; they took the idea of Directive Principles from
the Constitution of Ireland, and added elaborate provisions relating to Emergency in the light of the
Constitution of Germany.
Thus, the Constitution of India which is the supreme law of the land has many features borrowed
from other nations, so not fitting properly in the Savigny‟s scheme.
(3) Received common law in India – The process of reception of English law through the agency
of the judiciary continued unabated during the 19th and 20th centuries in India. For example, in the
law of torts, the Indian courts lifted bodily the whole mass of English law, as there was nothing in
India to fall back upon for the courts in this area.
At times, the native law and usage were supplemented, modified and superseded by English Law.
The ancient personal law was found to be too rigid and outdated in the modern socio-economic
conditions of the society. The legislature, however, moved mostly in response to the strong pressure
of reformist section of the Hindus favouring the proposed changes. Thus, laws ameliorating the
condition of Hindu women, getting free Hindu society of some long standing social evils, loosening
the rigidity of joint family system, etc. were introduced. The Hindu Law never recognized any form
of wills, but the British courts introduced this principle into Hindu Law. The concept of restitution
of conjugal rights was introduced and with it the English doctrine of cruelty. The joint family tenure
came to be referred to as „Coparcenary‟.
However, not only such English rules as were suitable to India, but even a few rules of technical
nature, or those which are the product of peculiar conditions in England, were made applicable.
Thus, some rules of English law which were not consistent with the customs, traditions, habits and
institutions of the Indians found their way into the country.
Further, through codification English law was firmly rooted in the Indian soil. As Rankin rightly

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puts it, the English Common Law was transferred to India not so much by reception as by
codification. According to Stokes, the Indian codes are rationalized digests of English law and
practice.
On the whole, codification has been very beneficial to the people in the country. Through
codification, law has become certain, coherent and definite to a very great extent. Gapsin the law
have been filled in. codification of law made the law uniform throughout the country and thus
fostered a kind of legal unity of the country in fundamental laws.
According to the Savigny, a received law can never be effective nor can it acquire national
character. He was also against the codification of law. But the existence of received common law in
India and successful working of codes falsify the Savigny‟s views. Today, the English Law as
assimilated with the fabric of India law and the work of legislation consists of revision,
consolidation and re-enactment of the codes already enacted.
(4) Deliberate legislation making– In India, in modern times, many new doctrines are deliberately
introduced by policy-makers. Such doctrines do not always reflect the popular consciousness of the
country. For example, people hold divergent views on the issue of reservations for backward classes,
uniform civil code, etc.
Further, many laws are the result of a conscious effort. For example, the law relating to woman
(Dowry Prohibition, Sati abolition etc.), lower castes (Untouchability Act), trade unions and
industry, etc. are an outcome of long struggle between conflicting interests within a society.
Abolition of Satipratha, introduction of divorce, the Child Marriage Restraint Act, etc. are some of
the many examples in India where gradual change by legislation have been brought in (social
reforms) even though it meant changes in the age-old customs and traditions (thus contradicting
Savigny‟s views).
(5) Judicial activism– Savigny ignored the creative function of the judges. In India, in recent
times, judicial activism is on the rise. Judge-made law (precedents) or judicial legislation is a
common feature today.
SIR HENRY MAINE

 He was a Professor of Civil Law at the University of Cambridge.
 He was also a law member in the Council of The Governor General of India between 1861 and

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1869.
 He wrote to the books Ancient Law, Village Communities, Early History of Institutions, and
Early Law and Customs.
 Savigny explained the relation between community and the law whereas Maine went a step
further and pointed out the link between the developments of both and purged out many of
Savigny‟s exaggerations.
 Comparative school gave the theory on the basis of comparison between various legal systems.
 Comparative school favoured legislation and codification whereas the historical school was
opposed to it.
The theory –
 There are four stages of the development of law:-
(1) Commands of the ruler under the divine inspiration (Themistes).
(2) Commands crystallize into customary law.
(3) Knowledge and administration of customs goes into the hands of minorities e.g. priests.
(4) Codification: Law gets codified.
Maine says that Static societies do not go beyond 4th stage. But Progressive societies go
beyond the 4th stage. This happens by three methods –
(a) Legal fiction – Letter of law does not change but its operation changes e.g. law of adoption.
Maine is against this as it makes law more complex.
(b) Equity – Inherent ethical superiority changes the law and the principles of ethics start
governing the law.
(c) Legislation – Most desirable method. But should not conflict with deep seated traditions of
the community.
The movement of progressive societies has hitherto been a movement from status to contract:
In the early stages, the legal condition of an individual is determined by his status as determined by
law e.g. caste etc. But in the later stages (Progressive society) status disintegrates and legal
condition is determined by free negotiation on the part of the individual.
Maine defines status as: “A fixed condition due to an individual‟s belonging to a group.” There is no
individual will. He cannot change his status by his own will since family is a unit. (Pater familias)
Contract – Individual becomes important and therefore he can enter into a contract. Since human
will becomes important, therefore individual creates his own status by his own endeavours,
achievements and negotiations.

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Application – Earlier, the change was from status to contract. But now, group bargaining has
become important resulting into collective contract (standardised contracts). Individuals will declines.
As a result, shift is from contract to status now. Therefore, Maine‟s theory does not apply to
totalitarian states.
Dias – The historical School provided the great stimulus to the historical study of law and legal
institution which has in grained a sense of historical outlook in the perspective of lawyers.
The Historical comparative method or the Anthropological method

The origin of this method is owed to Montesquieu. Post, Dahn and Fouillee belong to this school.
The main proponent of this school is Sir Henry Maine (1822-1888). He was a Professor of Civil
Law at the University of Cambridge. He was also a law member in the Council of The Governor
General of India between 1861 and 1869. He wrote to the books Ancient Law,Village
Communities, Early History of Institutions, and Early Law and Customs. The basic differences
between this school and the historical school are:
 This school took a more balanced approach to history. Comparative school used history to know
the past of law and not to decide its future course whereas the historical school used history for
both the purposes.
 Savigny explained the relation between community and the law whereas Maine went a step
further and pointed out the link between the developments of both and purged out many of
Savigny‟s exaggerations.
 Comparative school gave the theory on the basis of comparison between various legal systems.
 Comparative school favoured legislation and codification whereas the historical school was
opposed to it.
The theory–
 There are four stages of the development of law:-
(1) Commands of the ruler under the divine inspiration (The mistes).
(2) Commands crystallise into customary law.
(3) Knowledge and administration of customs goes into the hands of minorities eg priests
(4) Codification: Law gets codified.

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Maine says that Static societies do not go beyond 4th stage. But Progressive societies go
beyond the 4thstage. This happens by three methods–
(a) Legal fiction– Letter of law does not change but its operation changes e.g. law of adoption.
Maine is against this as it makes law more complex.
(b) Equity– Inherent ethical superiority changes the law and the principles of ethics start governing
the law.
(c) Legislation– Most desirable method. But should not conflict with deep seated traditions of the
community.
 The movement of progressive societies has hit her to been a movement from status to contract:
In the early stages, the legal condition of an individual is determined by his status as determined by
law e.g. caste etc. But in the later stages (Progressive society) status disintegrates and legal condition
is determined by free negotiation on the part of the individual.
Maine defines status as: “A fixed condition due to an individual‟s belonging to a group.”There is no
individual will. He cannot change his status by his own will since family is aunt.(Paterfamilias)
Contract –Individual becomes important and therefore he can enter into a contract. Since human
will becomes important, therefore individual creates his own status by his own endeavours,
achievements and negotiations.
Application–Earlier, the change was from status to contract. But now, group bargaining has become
important resulting into collective contract (standardised contracts). Individuals will declines. As a
result, shift is from contract to status now. Therefore, Maine‟s theory does not apply to totalitarian
states.
PUCHTA
 GENERAL WILL & INDIVIDUAL INTEREST
 He started from the origin of human race and traced the development and evolution of law
 In his view, neither the State nor the people alone are a source of law but law comes into
existence as a result of conflict between general and individual will.
 According to him, men by nature always like to live in unity both physical and spiritual. It causes
unanimity among the members of society and constitutes the “general will” of the people.
 But self-interest causes a conflict between individual will and general will.
 The law comes into existence for resolving these conflicts. The state, through the
instrumentality of law restrains the individual from exceeding the limits of his free will. Thus, it

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is the state which regulates human conduct to implement general will sacrificing individual
interests.
 Hence, neither the people (as the natural unit) nor the state (as the organic unit) alone is the
source of law. The first is causa instrumentalis and the second is the causa principalis of law.
 The origin of law is antecedent to the state, but there is no law before the creation of the state.
 He asserted the presence of an organic system from which flows the general will of the people.
The people have themselves formed this organic system i.e. the state, and the general will is seen
through the laws of people.
PHILOSOPHICALSCHOOL
(Kant, Schelling, Hegel, Kohler, Spengler)
 An off shoot of History School in Germany.
 Friedman calls it “Philosophical Historism”.
 It sought for a universal doctrine of history of evolution of the whole world (whereas the
historical theory was limited only to a particular race) and its laws from some universal and
metaphysical source.
 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.
 Relation between ethics and jurisprudence: The aim and purpose of this school and the
science of ethics is basically the same, namely perfection of human personality.
 Ethics does not rely upon compulsion: 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.”
 Common ground of law and ethics- Salmond: Philosophical jurisprudence is the common
ground of moral and legal philosophy of ethics and jurisprudence.
The philosophical 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. Law achieves this harmony by
determining the sphere of individual liberty in the pursuit of individual welfare so as to confine
that liberty within the limits which are consistent with general welfare of mankind.
The immediate object of jurisprudence is to secure liberty to the individual and its ultimate
object is akin to that of ethics i.e. human perfection.

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 Hegel:TheotherleadingexponentofthephilosophicalschoolwasHegel.Apartfrom
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. Hegel‟s
View, law as well as the manifestation of social life is result of an evolutionary process which
takes on dialectical form. The human spirit sets out a thesis which becomes the leading idea of a
particular period in history. In due course this thesis is opposed and an anti thesis develops.
From the resultant clash of idea a synthesis evolves which taking in elements of both, reconciles
the mona higher plane. This process repeats in history itself. Hegel also showed that the idea
offered omper vaded the entire, course of history.
 Hegel talks of individual subjective non-moral will which gets purified and becomes moral
collective will (objective).
 “State and law both are evolutionary products of reason.”
 Theory of rational self-realisation and freedom of man.
 Law and morals are mixed together.
 Jurisprudence is more concerned with the ideal future of law. It was kind of revival of natural
law and therefore it can be said to be a link between old and new thought.
 History and Philosophical schools acted and reacted upon each other and gave birth to new
theories.
 Historical school vs. Philosophical school– According to Historical School, there Will be no
universality of law and according to Philosophical School, there will be universality of law.
 Hegel gave the theory of punishment also.
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 e.g. 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.
 Law as an instrument of social progress.
 Originated by French and German writers from the ideas of communism as well as biological
evolution.
 20thcenturytrends.
 Reaction against positivism because positivist refused to take into account social processes.
 Law is not an isolated fact but apart of social phenomenon.
 Father of sociological jurisprudence is Roscoe Pound.
Ihering:
Ihering was another sociological jurist known for his monumental work „spirit of the law‟. He was

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against the theory of individuals welfare and favours the factor that social interest of society must
have a priority over an individual‟s interest and the purpose of the law is to protect the interest of
society, that is why his theory is known as „Jurisprudence of Interest‟ which emphasizes on the
sociological aspect of Sociological School of Law.
He described the law in following aspects:
1. Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives birth to
law and the role of law is to harmonize the conflicting interests of individuals for the purpose of
protection of interest of society. He gave importance to living law which develops with the
struggles of society.
2. Law as a means to serve Social Purpose: According to him, the ultimate goal of the law is to
serve a social purpose. It is the duty of the state to promote social interests by avoiding various
clashes between social and individual interests. According to him, “law is coercion organized in
a set form by the state”, which means that he justified coercion by the state for the purpose of
social welfare.
3. Law as one of the means to control society: Law alone is not a means to control society, there are
some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the
achievement of pleasure and avoidance of pain but for the society, that‟s the reason that Ihering
theory is also known as the theory of “Social Utilitarianism”. So, according to the Ihering, the
social activities of individuals can be controlled by the state by means of coercion, reward and
duty for achieving social control for the welfare of society. Friedman said that “Ihering was
declared as the father of modern sociological jurisprudence because of his concept of law as one
of the important effective factors to control social organisms.”
Criticism:
 He Points Out Only the Problems, and not the Solution.
 Law Protects 'Will' and not Purpose'.
RoscoePound(USA)
He was one of the most leading and important jurists who developed American sociological
jurisprudence is a systematic manner. His major works are:
 Spirit of the common law.
 An introduction to the philosophy of law.
 Interpretation of legal history.
 Law and morals.
 The formative era of American law.
 Administrative law.

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 Social contract through law.
 The task of law.
 Sociological jurisprudence according to Pound should ensure that the making, interpretation and
application of law stakes account of social facts. Towards achieving this end there should be:
i) A factual study of the social facts of legal administration.
ii) Social investigations as preliminaries to legislation.
iii) A constant study of means for making laws more effective
iv) Study both psychological and philosophical methods of jurisprudence
v) Sociological study of legal history
vi) Allowance for the possibility of a just and reasonable solution.
vii) Administration of justice in English speaking country.
viii) The achievements of the purpose of the various laws.
 The common law still bears the impress of individual rights. So in order to achieve the purpose of
legal order there has to be
a) Recognition of certain interest: Individual, public, social
b) A definition of the limits within which such interests will be legally recognized and given effect.
c) The securing of those interests within the limits defined.
 Law is same as of social control e.g. if a factory is polluting, the court should see various social
interests involved.
 Method of social engineering:
- Jurist must prepare an inventory of social investigation.
- Legal principles and actual social effects.
 According to 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.
A) Individual Interest: These are claims or demands or desires involved in and looked at from the
stand point of individual life. They concern:
i) Personality – includes interest in (a) Physical person (b) freedom of will (c) honour and
reputation (d) Privacy (e) belief and opinion
ii) Domestic Relation – (a) property (b) freedom of industry and contracts (c) promised advantage
(d) advantageous relations with others (e) freedom of association (f) continuity of employment.
B) Public Interest – Interest of the state as a juristic person - includes: (a) integrity, freedom of
action and honour of state personality and (b) claim of politically organized society as a corporation
to property acquired and held for corporate purposes.

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C) Social Interest–
o Social interest in the general security. Those branches of law which relate to- (a) general safety
(b) General health (c) Peace and order (d) Security of acquisition (e) Security of transaction.
o Social interest in security of social institutions: (a) Domestic institution (b) Religious institution
(c) Political institution (d) Economic institution
o Social interest in general morals: prostitution, drunkenness, gambling.
o Social interest in conservation of social resources. (a) Conservation of natural resources
(b) Protection of and gaining of dependants and defectives.
o Social interest in general progress (a) Economic progress (b) Political progress (c)
Cultural progress
o Social interest in individual life.
 Tasks of law
- Satisfaction of maximum human wants and interests.
- Duty of law to make valuation of interests– best interests to be secured.
- Allen calls it: “Experimental Jurisprudence”.
 Jural Postulates– These are the basic assumptions on which the ordering of conflicting interests
rests in every society. In total there are five postulates as per Pound:-
I. Others will commit in intentional aggression upon men. (This relates to Criminal Law).
II. The society will use discoveries etc. for its own use. (This relates to Law of Patents).
III. In their general inter course, men will act in good faith. (This relates to Law of Contract).
IV. Men will take due care of others in their general behaviour. (This relates to Law of Tort).
V. Harmful things will be kept in proper bounds. (This relates to the Rule of Strict Liability).
 How to balance between the interests?

- The various interests are weighed on the same plane.
- If an interest is transferred, it will be transferred only to the social plane. For example–
individual‟s freedom will transform into social freedom.
- New situations will arise to the new problems for which the existing law will not be sufficient.
Therefore, the judges will dispense justice without law.
Criticism:
(1) It only highlights the functional aspect of law and ignores the nature and character of law.
(2) In certa in cases, law pre- exists interests.
(3) Lack of criteria of evaluation.
(4) Misleading, balancing metaphor.
(5) Emphasis edjudicial activism to be greater than legislation. Judiciary has its own limitations.

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(6) Interests cannot be confined in different categories as the value of different interests change.
(7) Applicability to India Harmonising of interests is not always possible, e.g. labour-capital or
landlord-tenant.
Quinney:
- Law is a social product
- Majority interests/ minority interests
- Reservation form inorities in India has, in fact, aggravated the problem
- Fundamental Rights/ Directive Principles of State Policy
(8) Conflict/ Consensual model of society:

Pound‟s theory is relevant only for an ideal society.
Pioneers of Sociological thought Auguste Comte:

 First used the term „sociology‟.
 Founder of science of sociology‟.
 „Organic Theory‟–Society is like an organism.
 Inspired Durkheim who inturn inspired Duguit.
Duguit:
French Jurist influenced by Auguste Compte. Theory of law which denounced individual rights of
man and subordinate them to social interest. Duguit‟s theory was based upon Auguste Compte
statement that “the only right which man can possess is the right towards his duty.”
We can discuss the above statement by the theory of social solidarity (mutual dependence). This
theory was based on the fact that the interdependence of man is the essence of society. Each
individual has his existence in the society as a member of society, and any individual cannot obtain
the essentials of life by himself and he has to depend on others for his needs.
He pointed out that the traditional notions of rights, sovereign, state, public and private law, etc. are
unreal and fiction and law is nothing but a virtue which man obey not by virtue of any higher
principle but because they‟ve to live and survive as a member of society. So, his theory was based on
mutual co-operation and interdependence of individuals and society. So, the purpose of the law is to
serve and accuse the social interdependence which is duly oriented as it accepts to perform their
obligation as a member of the community for proper application of social solidarity. The state exists
for performing the function of promoting social solidarity and not exercise sovereignty.
On the whole, codification has been very beneficial to the people in the country. Through
codification, law has become certain, coherent and definite to a very great extent. Gapsin the laws

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have been filled in. codification of law made the law uniform throughout the country and thus
fostered a kind of legal unity of the country in fundamental laws.
According to the Savigny, a received law can never be effective nor can it acquire national
character. He was also against the codification of law. But the existence of received common law in
India and successful working of codes falsify the Savigny‟s views. Today, the English Law as
assimilated with the fabric of India law and the work of legislation consists of revision,
consolidation and re-enactment of the codes already enacted.
Importance of Duguit‟s theory:

 Over emphasises was given on duties rather than rights.
 The direction towards mutual cooperation among individuals in society.
 Law as an instrument of social solidarity to promote justice.
 Criticism:
 'Social Solidarity' a Natural Principle
 Social Solidarity to be Decided by Judges:
 He Confuses 'is' with 'Ought'
 He Overlooked the Growing State Activity
 Inconsistencies in the Theory: Another weakness of Duguit's theory is its inconsistency at several
places. On the one hand, he expresses faith in the biological evolution of society, and on the other
hand, he vigorously attacks the idea of collective personality. He denied any personality to state
or group distinct from the individuals who constitute it.
Herbert Spencer:
 Above organic theory.
 Allen („Law in the Making‟) on organic theory – “The inter-dependence of organism, in the
social aspect means the mutual relation of all members of civilized society”
Durkheim:
 Made a distinction between kinds of needs in the society– common needs, and individual needs.
 Division of labour.
 Theory of social solidarity”.
Hauriou (and Renard):

 Inspired by Duguit.
 French.

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 „Institutional Theory‟.
Ehrlich:
Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study of
law from the sociological perspective. Ehrlich considered society as a main source of the law. And
by society, he means “association of men”. Ehrlich had written that “Centre of gravity of all legal
developments is not in legislation or judicial decisions but in society itself.” He argued that society
is the main source of law and better source of law than legislation or judicial decision. Law is to be
Found in Social Fact: The central point in Ehrlich's (1882-1992) thesis is that the law of
community is to be found in social facts and not in formal sources of law. He says:" At present as
well as at any other time the centre of gravity of legal development lies not in legislation, nor in
juristic science, nor in judicial decision, but in society itself. 'Living Law' is the Facts that Govern
Social Life: Ehrlich believed in the spontaneous evolution of law in the context of existing society.
According to him, law originates from existing institutions of marriage, domestic life, possession,
contract, inheritance, etc.
India is a federal State. However, it enshrines the principle that inspite of federalism, the „national
interest‟ ought to be paramount. The Indian Constitution mainly federal with unique safeguards for
enforcing national unity and growth. At the time of emergency, it acquires a unitary character, and
the normal distribution of powers between Centre and States undergoes a vital change. The Union
Parliament is empowered to legislate on any subjects mentioned in the State List. During normal
times also, the Parliament has power to legislate in the national interest (Article249).
The Preamble of the Constitution declares India to be a “Sovereign, Socialist, Secular, and
Democratic Republic”. The term ‘democratic’ indicates that the Constitution has established a form
of Government which gets its authority from the will of the people. The rulers are elected by the
people and are responsible to them. Justice, Liberty, Equality and Fraternity which are essential
characteristics of a democracy are declared in the Preamble as the very objectives of the
Constitution. Democracy would indeed be hollow if it fails to generate this spirit of brotherhood
among all sections of the people –feeling that they are all children of the same soil and the
samemotherland.ItbecomesallthemoreessentialinacountrylikeIndiacomposedofmanyraces, religions,
languages and culture. The Preamble declares that the Constitution of India is adopted and enacted
by the people of India and they are the ultimate master of the Republic. Thus, the real powerisin
hands of the people of India, both in the Union and in the States.
They govern society through living laws. By living laws, he means that extra-legal control which
governs/regulate the social relations of man. In his opinion, the centre of gravity of legal
development in the present times or in the past lies neither with the juristic science, nor in judicial
decisions, but in society itself. His living law is the law which dominates social life even though it
has not been known in the form of enactments or decisions of courts. So, the scope of living law is

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under than the statuary law of the state. For example, there may be some enactments enforced in
the sense that courts may apply them in the decisions in any issue but a community may ignore the
enacted laws and lives according to the rules created by their mutual consent, like dowry system in
India.
Criticism:
1. Makes no Distinction Between Legal and Other Social Norms:
Sociological Jurisprudence with Indian Perspective:

Sociological jurisprudence in India can be seen in many laws and enactments in India. In India,
Sociological Jurisprudence has been adopted in the Indian Constitution. Part III of The Constitution
of India solely deals with the Fundamental Rights of the citizen and people of this country wherein
the citizens and the people are provided with certain rights. These rights are provided by
recognizing the public and private interest of the individual. Further, there are several cases
wherein the concept of Sociological Jurisprudence has been mentioned and has been taken into
consideration while delivering the judgment.
In Ashok Kr Gupta & others vs State of Uttar Pradesh, it was held that this court is not bound
to accept an interpretation which retards the progress or impedes social integration.
In the case of Union of India & Anr v Reghubir Singh , the court observed that the aspect of the
social conduct and experiences of the ages has to be considered while determining and framing the
new laws and norms.
In the State of Madras vs Champakam Dorairajan , the Court held that Article 46, being a
directive principle cannot override the fundamental rights.
In N. Adithayan vs Travancore Devaswon Board and Ors, the observed that distinction based
on cast could not be allowed to permeate in the social fabric of the society. Thus, the Court
reaffirmed its stand that discrimination of any sort, amounting to untouchability would not be
tolerated.
The Court in Bandhowa Mukti Morcha vs Union of India, held that the Court should abandon the
Laissez-Faire approach in the judicial process particularly where it involves a question of
enforcement of fundamental rights and forge new tools, devise a new method and adopt new
strategies for the purpose of making fundamental rights meaningful for the large masses of people.


Jurisprudence Unit-2

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Jurisprudence Unit-2

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Chanderprabhu Jain College of Higher Studies

Class : B.A.LL.B VI Semester

Paper Code : LLB 302

Edmund Bruke (1729-1797)

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Sir Federick Pollock

F.K. Von savigny

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Criticism of Savigny‟s Theory

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Applicability of Savigny‟s Theory to India

The applicability of Savigny‟s theory to India is limited.

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SIR HENRY MAINE

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The Historical comparative method or the Anthropological method

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The Sociological School

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 How to balance between the interests?

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(8) Conflict/ Consensual model of society:

Pioneers of Sociological thought Auguste Comte:

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Importance of Duguit‟s theory:

Hauriou (and Renard):

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Sociological Jurisprudence with Indian Perspective:

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