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SCHOOLS OF JURISPRUDENCE

SN JURISTS CONTRIBUTIONS
1 DEFINITIONS OF JURISPRUDENCE
Jurisprudence Jurisprudentia (Latin Word), Juris (Law) + Prudencia (Knowledge)
=Knowledge of law. Jurisprudence is methods by which you can find out
(1) source of law (2) validity of law (3) object of law (4) Functioning of law
(5) effect of law . The expression ‘Law’ in relation to jurisprudence means
fundamental legal principles.
Ulpian “Jurisprudence is the observation of things human and divine, knowledge
of just and unjust.”
John Austin “Jurisprudence is the Philosophy of positive law”. positive law means law
made by sovereign. He was the first jurist to make jurisprudence as a
science. There are two types of jurisprudence,(1) General Jurisprudence &
(2) Particular Jurisprudence.
Salmond “Jurisprudence is the science of the first principle of law.” There are two
types of jurisprudence (1) Generic Jurisprudence and (2) Specific
Jurisprudence
Gray “Jurisprudence is the science of law….”
Holland “Jurisprudence is the formal science of positive law.” Formal Science
means ‘it deals not with concrete details but only with the fundamental
(basic) principles underlying them.
Dr. Allen “Jurisprudence is the scientific synthesis of the essential principles of law.”
Keetan “Jurisprudence is the study and systemic arrangement of the general
principles of law.”
H.L.A.Hart Jurisprudence is the scientific study of Union of rules ( Primary and
Secondary Rules.) Primary rules means rules which imposes duty.
Secondary Rules means rules which confers powers whereby new duties
may be created and defective duties may be varied or repealed.
Julius Stone Jurisprudence is the lawyer’s extraversion.
Laski Jurisprudence is eyes of law.
Patterson Jurisprudence is a social science.
2 KIND OF JURISPRUDENCE
Bentham There are two types of jurisprudence (1)Expository/ Expositorial (What the
law is) (2)Evaluative/Censorial (What the law ought to be)
Austin There are two types of jurisprudence, (1) General Jurisprudence & (2)
Particular Jurisprudence.
Salmond There are two types of jurisprudence (1) Generic Jurisprudence and (2)
Specific Jurisprudence
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3 IMPORTANT POINT
J Austin (1)Law properly so called (Positive law, behind which there is sanction) and
(2) Law improperly so called (Lacking of sanction.)
4 BOOKS
Hugo Grotius De Jure Belli Ec Pacis, ( On the Law of War and Peace ) 1625
Bentham Limits of Jurisprudence Defined, Theories of Legislation, The Introduction
to the Principles of Morals and Legistation
Austin Province of Jurisprudence Determined
Julius Stone Province of Jurisprudence Redetermined, Legal System and Lawyer’s
Reasoning
Ihering Law as a means to an end
Pound Jurisprudence
Hart The Concept of Law
Fuller The Morality of Law
Maine Ancient Law
Friedman Law in Changing Societies
Hohfeld Fundamental Legal Conception
Paton A Text Book of Jurisprudence
Goodhart “Essays in Jurisprudenceand Common Law”
Savigny Das Recht Des Bestizes ( The Law of Possession). System of modern Roman
Law
Buckland Some reflections on Jurisprudence
5 SCHOOL (1) Natural Law School (2) Analytical School (3) Historical School (5)
Sociological School (6) Realistic School
6 NATURAL LAW SCHOOL
(1) Ancient Period Natural Law derived from Greek or Unani thought. Natural law derives its
(2) Medieval Period validity from nature. Nature never commits any discrimination. For
(3) Renaissance Period example, if five people are in ground in day light, sun will shower its light
(4) Modern Period. over all person equally without making any discrimination on the basis of
religion, race, caste, sex or place of birth etc. Natural law is a method to
search humanity. So theme of this school is based on just fair and
reasonableness, uniformity and universality. Law without morality cannot
exist. In this way, it establish check and balance. Rule of Law and due
process of law is based on this School. In India, E.P.Royappa (1974) and
Maneka Gandhi case (1978) are based on philosophy of this School. Human
rights derived from this thought.
(1) ANCIENT (1) Heraclitus (2) Socrates(3) Plato(4) Aristotle (5) Cicero
PERIOD
(1) Heraclitus (530- Reason is one of the essential elements of law. He established base of natural
470 B.C.) law.
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(2) Socrates (469-399 Like natural physical law, there is a natural moral law. Person must obey
B.C.) command of state, if he does not like he should go in another State.
(3) Plato 427-347 Concept of ideal State which he termed as Republic. Only intelligent and
B.C.)Republic(380BC) worthy person must be a king.
(4) Aristotle (384-322 Natural law is a reason free from all passions.
B.C.)
(5) Cicero (106-43 True law is right reason in agreement with nature; it is universal application,
B.C.) unchanging and everlasting..
(2) MEDIEVAL This period was dominated by Church. It was tried to establish superiority
PERIOD of Church. They used natural law theory to propagate Christianity

(6)St. Augustine(345- He provided religious colour to law. During dark period, he explained law
430AD) in new way. He treated nature and God as a source of law.
(7)St. Thomas Classification of law (1) Low of God (2) Natural law which revealed through
Acquinas (Dictates of reason (3) Divine Law(4) Human law which we now called ‘positive law’.
Reasoning (1225- Reason and will in law.
1274)
(3) RENAISSANCE
PERIOD
(8) Hugo Grotius Laws of War and peace (1625), Theory of functional law, Father of
(1583-1645) International Law, “Natural law was not merely based on ‘reason’ but on
‘right’ reason self-supporting reason of man.” He propagated equality of
States and their freedom to regulate internal as well as external relations.
Hobbes(1588-1679) Social Contract theory.
J.Locke(1632-1704)
J.Rousseau(1712- General Will Theory.
1778)
IMMANUAL KANT Book-Critique of Pure Reason. (1) Theory of Categorical Imperative. The
(1724-1804) categorical imperative expects a man to act in such a way that he is guided
by dictated of his own conscious. It is a human right of self-
determination.(2) Doctrine of Autonomy of will-It means an action
emanating from reason but it does not mean the freedom to do so one
pleases.
(4)MODERN
PERIOD.
Stammler “Law is the law of nature with variable content”.
Kohler Inner Impulse- “Law is the standard of conduct which in consequence of
the inner impulse that urges upon men towards a reasonable form of life,
emanates from the whole and is forced upon the individual”.
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L.L.Fuller Natural law theory denies rigid separation of ‘as it is’ and ‘as it ought to
Inner morality of law. be’. Law contains two types of morality-(1) External morality of law (2)
Internal Morality of Law. What is relation between law and morality? He
distinguishes ‘morality as it is’ (Morality of Duty) from ‘morality as it
ought to be’(Morality of aspiration).He further sub-divided ‘moral duty’
into affirmative duty and negative duty(forbearance). ‘Is’ and ‘ought’ both
are inseparable.
According to him, morality of duty includes basic requirements of social
living whereas morality of aspiration means good life of excellence e.g.,
forbearing from indulging into extra-marital sex. Inner morality of law.
H.L.Hart (Mainly Internal structure of natural school. Minimum content of Law. Law and
belongs to analytical morality are complimentary and supplementary of each other.
School)
John Rawls Theory of Justice (1972)
ANALYTICAL Main focus was on the source of law. It came in reaction of natural law
7 SCHOOL school. Main focus was to bring certainty in law. So Jurist of this school
always tried to separate law from morality. That’s why they treated the
sovereign as a source of law and ignored nature, custom and judge made law
as a source of law.
Bentham (Exponent of Principle of Hedonism (Pain and pleasure theory), Individualism
Utilitarianism ) F Utilitarian Theory, Greatest happiness of greatest number.
Austin There can be no law without a legislative act. His views was that typical law
(Command is statute and legislation. He did not approve precedent and custom as a
Theory)Father of source of law. Positive law is the aggregate of rules set by man as politically
English Jurisprudence superior to man as politically inferior subjects. He attributes (1) Sovereign
(2) command (3) duty (4) sovereignty as the four essential attributes of
positive law. “Existence of law is one thing, its merit and demerit
another …..A law which actually exists, is a law, though we happen to
dislike it.” A.K.Gopalan vs. State of Madras, 19 May,1950.
H.L.A.Hart Primary and Secondary Rules. Law and morality are complimentary and
supplementary of each other.
Kelson(Normative Grundnorm Theory/Normative theory/Pyramid of Norms. Pure theory of
Order) law means law is free from ethics , politics, sociology , history , religion etc.
HISTORICAL Historical school came in reaction of Analytical School and Natural school.
8 SCHOOL Historical school vehemently criticized both school and said that without
support of custom and usages, if any law is enacted, it would always invite
revolt. If law is enacted on the basis of custom and usage, it would be
followed by people on their conscience and there would be no need of police
raj. According to this school, main source of law is custom which develops
from conscience of people. Law is found and it is not made.
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Montesquieu(1689- Montesquieu was the first jurist who adopted historical methods perusing
1755) the study of legal institution. “Laws are the creation of climate and local
institutions”. He propounded the doctrine of ‘Separation of Power’.
Edmund Burke(1729- Organic Process. Evolution of law is an organic process and expression of
1797) common belief, faith and practices of the community as a whole.
Savigny (1779- Founder of Historical School. He is called Darwinian before Darwin
1861)(Germany) because he applied evolutionary principle to the development of legal
Founder of Historical system before Darwin. (Darwin., 12 1809- 1882). Volksgeist (Spirit of the
School. Volksgeist People).Law develops like language. Savigny opposed codification of
(Spirit of the People). German law on the basis of French law because at that time Germany was
under control of French Government. He admired Roman Laws. He
propounded national character of law. Books – The Law of Possession,
The History of Roman Laws in Middle Ages, The System of Modern
Roman Laws.

Puchta (1798-1856) “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.”
Sir Henry Maine Social Darwinist. Status , Status to contract , contract to status. There
(1822-1888) Britain are two types of societies (1)Primitive or Static Society(2) Progressive
Father of British Society –(1) In primitive societies ,law developed in four stages (i) Devine
Historical Schoool, Law (ii) Customary Law (iii)Priestly Class as a sole repository of Customary
Main emphasis on law (iv) Codification. After codification, such societies is called static
comparative studies society. (2) Progressive Societies- A society which developed after
of laws. codification is called as progressive society. In this society, law develops in
three following way, (1) Legal fiction,(2)Equity(3)Legislation .
Pater familiar constituted the lowest unit of primitive communities. (1)
Pater familiar.(2) Family group .(3) Gens (4) Formation of tribes (5)
Community (6) Commonwealth
9 PHYLOSOPHICAL/ Hugo Grotius, Immanual Kant( Distinction between ‘Form’ and
ETHICAL SCHOOL ‘Matter’), Hegal, Kohler, Kohler, Stammler
10 SOCIOLOGICAL Main focus of sociological school is on functioning of law. Purpose of law
SCHOOL is to make balance between conflicting interest of individuals and societies.
Bentham propounded individual utilitarian theory while Ihring propounded
social utilitarian theory.There are three main tenets of this school.
Rudolph Von Books- Spirit of law, Law as a means to an end. Father of modern
Ihering(1818- sociological jurisprudence. (1) Law is a result of constant struggle, (2) Law
1892)(Germany) is to serve a social purpose (3) Law alone is not a means to control the
Social Utilitarianism/ society. (4) Social Utilitarianism Social interest of the society must gain
Interest Theory , priority over individual interest. Levers of Social Motion. In India
Supreme court with the help of this school, has decided several cases when
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Social Control Directive Principles of State policy (social interest) prevails over individual
Theory. interest (Fundamental rights but not all FRs).
Eugen Ehrlich (1862- He divided law into two parts (1) Norms of decisions or formal science
1922) Living Law (This types of law are found in form of Statutory law, and Judicial decisions.
It is mainly directions for public authority to regulate their conduct). (2)
Norms of Organization or Living Law (This types of law are found from
inner order of societies. It is extra-legal control which regulate social
relations of men). Living Law is the law which dominates social life even
though it has not been promulgated in the form of enactment or decisions of
the court. Living law is wider in scope than the statutory law enacted by
state. A statute which is habitually disregarded is not the part of living law.
For example, Dowry Prohibition Act, 1961. “Centre of gravity of legal
development in the present time or past, lies neither in juristic science nor
in the judicial decisions, but in society itself.”
Leon Duguit (1859- No right, Only duty. Social Solidarity is combination of two wards, social
1928) Doctrine of and solidarity. Here solidarity means interdependence. Combined meaning
Social Solidarity of social solidarity is that in society every persons are dependent to each
other. It means a single person cannot produce all things whereby he can
fulfil his desire. For example a single person cannot produce wheat,
computer, vehicles etc. In the society, if everyone fulfils his duties, no
questions arise about duty. “Law is a rule which men obey not by virtue of
any higher principle because they have to live as a member of societies.”
“Mutual co-operation and mutual interdependence between individuals,
groups and societies according to the principle of division of labour for the
purpose of social cohesion.
Roscoe Pound (1870- Minimum Investment, Maximum Production. The courts, legislators,
1964) Social administrators and jurists must work with a plan and make an effort to
Engineering means maintain a balance between competing interest in the societies .Three types
balance between of interest-(1) Private Interests (2) Public Interests (3) Social Interest. In
competing interest in order to evaluate the conflicting interests in due order of priority, every
the societies. “We can society has some basic assumptions and according to that assumptions,
not understand what a interest is given priority. He propounded five assumptions (Jural
thing is unless we Postulates) which is given preference – (1) Jural Postulate, Security (2)
study what it does”. Jural Postulate-Enjoyment of own labour. (3) Jural Postulate Other will
Jural Postulate. perform the contract in good faith (4) Jural Postulate-To perform his work
in such a way as not to cause harm to other person (5) Jural Postulate- Other
will enjoy a things which are harmful for other in such a ways that it does
not cause harm to the other person for example scape of dangerous things
(strict liability).
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11 MARXIST THEORY
Karl Marx Law is an instruments used by economically ruling class to keep
subordinate class in subjection. It is a means to exploit weaker class.
12 REALISTIC It is a branch of Sociological school. It declares that by observing conduct
SCHOOL (Judges of Judges, their previous decision, family background, status of parties, and
make laws) advocate, judgment can be predicted.
Karl Llewellyn(1893- “The traditional outlook that the rules decide cases and therefore , they
1862) Law Books should be looked into the law books has become outdated and now the focal
Outdated point of attention should be the behaviour and thinking of the deciding
judges or the court. Hence , there is need to shift the emphasis from
precedent to the study of case-law.”
Jerome Frank(1889- Book-Law and Modern mind, “Judges do not make law, but instead
1957) they discover it.” Personality of judges and his past experience play a
dominant role in molding the law and giving it a concrete shape.
Gray Judges alone make the law. Judges are truly giver.
13 IMPORTANT MAXIMS
Per Incuriam Per incuriam literally means “Through lack of care”. It refers to a judgment
which has been decide by ignoring statutory provisions or earlier judgment
which would have been considered.
Ratio Decidendi Reason of Decision
Obiter Dicta Something said by the judge by way, which does not have any binding
authority. Goodhart “A conclusion based on a fact the existence of which
has not been determined by the court.” In the Course of judgment, 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. CBI is a caged parrot during the hearing of Coal
Scam Case, 08 May,2013. S.R.Bommai Case, the Court said that Articles
15, 16, &25 are basic structure. These are obiter dicta. Because questions
regarding these Articles were not involved. Ratio of the case is that
secularism is a part of basic structure of the Constitution.
Doctrine of Stare “Let the decision stand in its rightful place.” There are two types of
Decisis precedent , namely (1) Authoritative, Binding over subordinate Courts, e.g.,
Decision of Supreme Court is binding over all courts.(2) Persuasive ( It is
not binding , but it must be taken into consideration , e.g., decision of one
High Court for another High Court ..