KAMKUS COLLEGE OF LAW, GZB.

LL.B I Semester
Jurisprudence-I (Legal Theory)
I. (INTRODUCTION)

¾ (Descriptive Questions)
Q.1 Define and explain the meaning of Jurisprudence .Discuss the
nature and scope of Jurisprudence ?
Ans.
JURISPRUDENCE - ITS MEANING, DEFINITION & ITS SCOPE
¾ General
Jurisprudence derivation from Latin word ‘Juriprudentia’,

JURIS PRUDENTIA

of Law Wisdom,/ Knowledge

Wisdom/Knowledge of Law

Jurisprudence
The word “jurisprudence” is derived from a Latin word jurisprudentia, which in its
widest sense, means ‘knowledge of law’ or skill in law. The Latin word ‘Juris’ means
law and “prudential” means skill or knowledge. Thus jurisprudence signifies knowledge
of law and its application. In this sense it covers the whole body of legal principles in
the world. The history of the concept of law reveals that jurisprudence has assumed
different meanings at different times. It is therefore, difficult to attempt a singular
definition of the term. It has a long history of evolution beginning from classical Greek
period to 21st Century modern jurisprudence with numerous changes in its nature in
various stages of its evolution.

 
  

¾ MEANING & DEFINITION OF JURISPRUDENCE :

Meaning of jurisprudence
• Literal Meaning
According to Oxford advanced Learners’ Dictionary “Jurisprudence is the scientific
study of Law”
• Legal Meaning
According to Black’s Law Dictionary;
1. “Jurisprudence is the study of the first principles of the law of nature, the civil
law, and law of nation.”
2. “More modernly, the study of the general or fundamental elements of a
particular legal system, as opposed to its practical and concrete details.”

Jurisprudence, in its limited sense, means elucidation of the general principles upon
which actual rules of law are based. It is concerned with rules of external conduct which
persons are constrained to obey. Therefore, etymologically jurisprudence is that science
which imparts to use knowledge about “law”. The ‘law’ of course is a term of various
connotations; here we use the term ‘law’ in its abstract sense, that is to say, not in the
sense of concrete statutes but in the sense of principles underlying law. Thus, for example,
there are various branches of law prevalent in a modern State such as contract, tort, crime,
property, trusts, companies, labour relations, insolvency etc. and in jurisprudence we have
to study the basic principles of each of these branches and we are not concerned with
detailed rules of these laws. These have to be studied in details when we study those
branches of law separately. This may be illustrated further by the example of law of
crimes. Jurisprudence examines the general principles of penal liability but it does not
attempt to detail out the essentials of each offence. In short, jurisprudence may be
considered to be the study and systematic arrangement of the general principles of Law.

• Ulpian. - Jurisprudence, in its etymological sense means ‘Knowledge of law’

• John Austin.- Austin calls jurisprudence as the “philosophy of positive law”.

• Salmond.- Salmond defines jurisprudence the “science of the first principles of the
civil law”.
• Holland.- Sir Thomas Erskine Holland defines jurisprudence as ‘the formal science of
positive law.
• Gray.- Professor Gray has also defined jurisprudence more or less in the same manner.
He opined that “Jurisprudence is the science of law, the statement and systematic
arrangement of the rules followed by the courts and the principles involved in those
rules”.
• Dr. Allen.- The noted English jurist Dr. Allen has defined jurisprudence as ‘the
scientific synthesis of the essential principles of law’. Though this definition may seem to
be abstract at a glance, it surely takes notice of the widening scope of law in its various
facets.

 
  

• Keeton.- According to Keeton “jurisprudence is the study and scientific synthesis of the
general principles of law” The definition seeks to explain the distinction between public
and private laws.
• Roscoe Pound.- According to Pound, jurisprudence is “The science of law using the
term ‘law’ in the juridical sense, as denoting the body of principles recognized or enforced
by public and regular tribunals in the administration of justice”. He emphasized that there
is an inevitable co-relationship between jurisprudence and other social sciences. Thus he
opined that “jurisprudence, ethics, economics, politics and sociology are distinct enough at
the core, but shade out into each other”. Pound suggested a separate branch of sociological
jurisprudence, which is concerned with the influence of law on society at large. He firmly
believed that behind every issue, there is something social; therefore, in the study of
jurisprudence, the emphasis should be on the relationship between law and society.
Jurisprudence is a subject which materially differs from other branches of law to
be found in a legal syllabus. Most other legal subjects involve a study of legal principles,
which are then to be applied to concrete, practical situations. In jurisprudence, the task at
hand is not to derive laws from authorities, and apply them to given problems; rather, the
concern is to reflect on the nature of legal rules and on the true meaning of legal concepts.
Thus, whereas the law of contracts deals with the rights which one party to a contract has
against the other, in jurisprudence, one studies the underlying meaning of the term ‘right’
and the different kinds of legal rights.

• Holland describes Jurisprudence as “The formal science of positive law”,

• Allen as “The scientific synthesis of the essential principles of law”.

In a general sense, the term “jurisprudence” includes the entire body of legal
doctrines. In this sense, it includes knowledge of the law. But law here means civil law,
the law of the land. Jurisprudence, in this sense, is of three kinds:
1. Legal exposition, the purpose of which is to set forth the contents of an actual legal
system as existing at any time.
2. Legal history, the purpose of which is to set forth the historical process whereby any
legal system came to be what it is or was.
3. The science of legislation, the purpose of which is to set forth the law as it ought to be.
This aspect of jurisprudence deals with the ideal future and purpose of law.
Jurisprudence in the technical sense is different from jurisprudence in the generic sense.
In the technical sense, it is the science of the first principles of the civil law. It deals not
only with the outlines of the law, but also with its ultimate conception.

¾ SCOPE OF JURISPRUDENCE
As stated earlier, the scope of jurisprudence has widened considerably over the years. It is
generally believed that the scope of jurisprudence cannot be circumscribed. Broadly
speaking, jurisprudence includes all concepts of human order and human conduct in State
and Society. In other words, anything that concerns order in the State and Society will
be within the domain of jurisprudence. It includes political, social, economic and cultural

 
  

ideas. It covers the study of man in relation to State and Society”. Radcliffe also held a
similar view and stated that jurisprudence is a part of history, a part of economics and
sociology, a part of ethics and a philosophy of life. Jurisprudence involves certain types
of investigations into law, and an investigation of an abstract, general and theoretical
nature which seeks to lay bare the essential principles of law and legal systems.
Elaborating the point further,
Salmond observes In jurisprudence we are not concerned to derive rules from authority
and apply them to problem; we are concerned rather to reflect on the nature of legal rules,
on the underlying meaning of legal concepts and on the essential features of legal system.

¾ Jurisprudence- New Horizons

In the present century, therefore, the concept of jurisprudence has changes some
emphasizing the historical aspects of the law with wholly different notion of law
depending upon the customs, traditions and usages of each community. Others like
Cardozo, Llewellyn have defined jurisprudence in terms of judicial processes’ The
advancement of knowledge and development of jurisprudential thinking and a new socio-
legal philosophy based on social engineering and judicial activisim has emerged for the
fufilment of desires and the needs of society. It is hardly needs to be stated that the Law
as an instrument of social change and changes according with the values and
expectations of Society.

Q.2 “Jurisprudence is a formal science of Positive law.” Critically

examine the statement of the definition of Jurisprudence given by
Holland?
Ans.
“Jurisprudence is a formal science of Positive law.” ( Holland)
Holland defines jurisprudence as “the formal science of positive law.” It is wrongly
applied to actual systems of law, or to current views of laws, or to suggestions for its
amendment, but is the name of a science. The science is a formal, or analytical, rather
than a material one. It is the science of actual or positive law.
Holland elucidates his statement that jurisprudence is a formal or analytical science as
opposed to material one by observing that it deals rather with the various relations which
are regulated by legal rules than with the rules themselves which regulate those relations.
Where the laws of every country contain a common element having been constructed in
order to effect similar objects and involve the assumption of similar moral phenomena as
everywhere existing, then, according to Holland, a scheme of the purposes, methods and
ideas common to every system of law framed out of the accumulated materials is a
formal science of law, presenting many analogies to grammar, the science of those ideas
of relation which are expressed in all the languages of mankind. As said above,
jurisprudence consists not of a set of rules, the contents or matter of which is of universal

 
  

application. It is concerned with all those topics dealt with in every system of law
however much each may differ from the rest in its mode of dealing with them.
Professor Holland observes that comparative law collects and tabulates the legal
institutions of various countries, and from the results thus prepared, the abstract science
of jurisprudence is enabled to set forth an orderly view of the ideas and methods which
have been variously realized in actual systems. It is, for instance, the office of
comparative law to ascertain what have been at different times and places the period of
prescription, or the requisites of a good marriage. It is for jurisprudence to elucidate the
meaning of prescription, in its relation to ownership and to actions; or to explain the legal
aspect of marriage, and its connection with property and the family. Jurisprudence is,
therefore, no the material source of those portions of the law which various nations have
in common, but the formal science of those relations of mankind which are generally
recognised as having legal consequences.

¾ Holland’s Definition of Jurisprudence:

According to Professor Holland, jurisprudence is a formal or analytical science, as

opposed to material one and deals rather with the various relations which are regulated
by legal rules than with the rules themselves which regulate those relations.
Professor Gray criticises this definition as being too narrow and cryptic. He observes
that an attempt to construct, quite apart from all the matter of law, even the most general
conception of ownership or contract, would be like trying to make bricks not merely
without straw, but without clay as well. According to Prof. Gray, jurisprudence is merely
a formal science, but it is as well a material science. It is a science of legal relations as
well as of legal rules. As to certain practically unchangeable principles of law advo-cated
by Prof. Holland, Prof. Gray observes that the possibility of general jurisprudence as a
science of necessary principles rests on a theory of universe which has, in these days,
been badly shaken, a theory which supposes permanence in social relations the existence
of which is very uncertain. Finally, Prof. Gray observes that jurisprudence stands for the
scientific treatment of law and it is not desirable that its natural mean-ing should be
limited and restricted in the manner it has been done by Prof. Holland. Prof. Gray is
slightly illiberal in his criticism, for Holland has considerably drawn inferences from
matters of law while expounding different principles in his book on Jurisprudence. At any
rate he has not altogether excluded them.
Dr. Edward Jenks objects to Holland’s definition of jurisprudence as a purely formal
science. He observes that it is not a formal science unless the word ‘formal’ are used in a
strained and artificial sense. Ii is true that a jurist can only recognise a law by its form for
it is form which causes the manifold matter of the phenomena to be perceived. But the
jurist, having got the form as it were on the oper-ating table, has to dissect it and ascertain
its meaning. He concludes by observing that to say that jurisprudence is concerned only
with forms, is to degrade it from the rank of science to that of a craft. There is confusion
in the line of argument of Dr. Jenks for he hardly differentiates a formal science with a
formalistic manner of its approach. Jurisprudence, in the view of Prof. Holland, is not
confined to mere forms but deals in a formal or abstract way with those relations of

 
  

mankind which are generally recognised as having legal conse-quences. Ii deals with the
human relations who are governed by rules of law rather than the material rules them.
Holland’s definition of jurisprudence as the formal science of positive law is, therefore,
not open to any serious objection. In the words of Salmond, using the word “science” in
its widest possible sense, as including the systematized knowledge of any subject of
inquiry jurisprudence is a science of civil law. The subject of its inquiry is realigns of
men living in society clothed with a legal character. Such relations of men are governed
by the rules which have actually been imposed by common consent of the organized
commu-nity and enforced by its courts. In this sense, jurisprudence is science of positive
law. It is again a formal science of positive law, inasmuch as it deals with the various
relations which are regulated by legal rules than with, the rules themselves which regulate
those relations. It is not the material science of those portions of the law which various
nations have in common but the formal science of those relations of mankind which are
generally recognised as having legal consequences.

¾ Short Answers Questions

Q.3 Austin divides Jurisprudence into “General and Particular’’ To

what extent Salmond and Holland agree with this division ?
Ans.
¾ Austin's definition :-
Austin defines jurisprudence as "The philosophy of positive law means the laid down by
a political superior for controlling the conduct of those subjects to his authority.
Austin divided the jurisprudence into following.

i) General jurisprudence. ii) Particular jurisprudence.

• GENERAL JURISPRUDENCE :-

General jurisprudence includes such subjects or ends of law as are common to all system.

• PARTICULAR JURISPRUDENCE :-

Particular jurisprudence is the science of any actual system of law or any portion of it.

¾ Criticism on Austin's Definition.

• SALMOND CRITICISM :

The error in Austin's idea of general jurisprudence lies in the fact that he assumes that
unless a legal principal is common to many legal systems, it cannot be dealt within
general jurisprudence. There may be many schools of jurisprudence but not different
kinds of it.

 
  

• HOLLAND'S CRITICISM:

Holland points out that it is only the material which is particular and not the science
itself.

Q.4. Explain the purpose of Jurisprudence?

Ans.
¾ Purpose of Jurisprudence
Salmond- said that Jurisprudence is Science of Law. By law he meant law of the land
or civil law. He divided Jurisprudence into two parts:

1. Generic- This includes the entire body of legal doctrines.

2. Specific- This deals with the particular department or any portion of the doctrines.

‘Specific’ is further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal

system existing at any time, past or the present.

2. Historical- It is concerned with the legal history and its development

3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought
to be. It deals with the ‘ideal’ of the legal system and the purpose for which it exists.

Criticism of Salmond - Critics say that it is not an accurate definition. Salmond only
gave the structure and failed to provide any clarity of thought.

• Keeton- He considered Jurisprudence as the study and systematic arrangement of the

general principles of law. According to him, Jurisprudence deals with the distinction
between Public and Private Laws and considers the contents of principle departments of
law.

• Roscoe Pound- He described Jurisprudence as the science of lawusing the

term ‘law’ in juridical sense as denoting the body of principles recognized or enforced
by public and regular tribunals in the Administration of Justice.

• Dias and Hughes- They believed Jurisprudence as any thought or writing about law
rather than a technical exposition of a branch of law itself.

Q.5 Write a Short note on significance and Utility of the Study of

Jurisprudence ?

Ans.

 
  

¾ Significance and Utility of the Study of Jurisprudence

1. This subject has its own intrinsic interest and value because this is a subject of serious
Scholarship and research; researchers in Jurisprudence contribute to the development of
society by having repercussions in the whole legal, political and social school of
thoughts. One of the tasks of this subject is to construct and elucidate concepts serving to
render the complexities of law more manageable and more rational. It is the belief of this
subject that the theory can help to improve practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal
concepts and it sharpens the logical techniques of the lawyer. The study of jurisprudence
helps to combat the lawyer’s occupational view of formalism which leads to excessive
concentration on legal rules for their own sake and disregard of the social function of the
law.
3. The study of jurisprudence helps to put law in its proper context by considering the
needs of the society and by taking note of the advances in related and relevant disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways and around
them and realize that answers to a new legal problem must be found by a consideration of
present social needs and not in the wisdom of the past.
5. Jurisprudence is the eye of law and the grammar of law because it throws light on basic
ideas and fundamental principles of law. Therefore, by understanding the nature of law,
its concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in
knowing the language, grammar, the basis of treatment and assumptions upon which the
subject rests. Therefore, some logical training is necessary for a lawyer which he can find
from the study of Jurisprudence.
6. It trains the critical faculties of the mind of the students so that they can dictate
fallacies and use accurate legal terminology and expression.
7. It helps a lawyer in his practical work. A lawyer always has to tackle new problems
every day. This he can handle through his knowledge of Jurisprudence which trains his
mind to find alternative legal channels of thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the
laws passed by the legislators by providing the rules of interpretation. Therefore, the
study of jurisprudence should not be confined to the study of positive laws but also must
include normative study i.e. that study should deal with the improvement of law in the
context of prevailing socio-economic and political philosophies of time, place and
circumstances.
9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the lawyer
to bring theory and life into focus, for it concerns human thought in relation to social
existence’.

Q. 6 What are the Contents of Jurisprudence ?

Ans.

 
 

Contents of Jurisprudence: The

contents of jurisprudence are-
1. Sources: It is true that the
basic features of a legal system
are mainly to be found in its
authoritative
sources and the nature and
working of the legal authority
behind these sources. Therefore,
it obviously
forms the contents of
jurisprudence. Subject such as
custom, legislation, precedent as
a source of law,
pros and cons of codification of
laws, methods of judicial

 
 

interpretation and reasoning, an

inquiry into
the administration of justice etc.
are included for study.
2. Legal Concepts:
Jurisprudence includes the
analysis of legal concepts
such as rights, titles
Contents of Jurisprudence: The
contents of jurisprudence are-
1. Sources: It is true that the
basic features of a legal system
are mainly to be found in its
authoritative
sources and the nature and
working of the legal authority

 
 

behind these sources. Therefore,

it obviously
forms the contents of
jurisprudence. Subject such as
custom, legislation, precedent as
a source of law,
pros and cons of codification of
laws, methods of judicial
interpretation and reasoning, an
inquiry into
the administration of justice etc.
are included for study.
2. Legal Concepts:
Jurisprudence includes the
analysis of legal concepts
such as rights, titles
¾ Contents of Jurisprudence:

The contents of jurisprudence are-

 
 

1. Sources : It is true that the basic features of a legal system are mainly to be found in
its authoritative sources and the nature and working of the legal authority behind these
sources. Therefore, it obviously forms the contents of jurisprudence. Subject such as
custom, legislation, precedent as a source of law, pros and cons of codification of laws,
methods of judicial interpretation and reasoning, an inquiry into the administration of
justice etc. are included for study.

2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such

as rights, titles property, ownership, possession, obligations, acts, negligence, legal
personality and the related issues. The study of these abstract legal concepts furnishes a
background for better understanding of (laws in its various forms).

3. Legal Theory: Legal theory is concerned with law as it exists and functions in the
society, and the manner in which law is created and enforced as also the influence of
social opinion and law on each other.

Q. 7 Explain Jurisprudence is the lawyer’s extroversions ?

Ans.
Contents of Jurisprudence: The contents of jurisprudence are-
1. Sources: It is true that the basic features of a legal system are mainly to be found in its
authoritative
sources and the nature and working of the legal authority behind these sources.
Therefore, it obviously
forms the contents of jurisprudence. Subject such as custom, legislation, precedent as a
source of law,
pros and cons of codification of laws, methods of judicial interpretation and reasoning, an
inquiry into
the administration of justice etc. are included for study.
2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such as
rights, title
Contents of Jurisprudence: The contents of jurisprudence are-
1. Sources: It is true that the basic features of a legal system are mainly to be found in its
authoritative
sources and the nature and working of the legal authority behind these sources.
Therefore, it obviously
forms the contents of jurisprudence. Subject such as custom, legislation, precedent as a
source of law,
pros and cons of codification of laws, methods of judicial interpretation and reasoning, an
inquiry into
the administration of justice etc. are included for study.
2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such as
rights, title
¾ Is jurisprudence a lawyer's extroversion ( Julious Stone ) ?

 
 

Jurisprudence has various meanings with subtle but important differences. Originally, the
root of the word simply meant knowledge of law. Yet, from the beginning,
Jurisprudence is a philosophy of law; not just the nuts and bolts of being a lawyer. It
encompasses the history of common law coupled with universal truths that become moral
absolutes within societal realms. Law school is less about actual law practice and more
about how ones mind can be best utilized as a lawyer; a form of boot camp where one is
stripped of other interests and subsequent thought processes for 3 years and the brain
becomes rewired to think with a philosophy commensurate with the practice of law and
the dedication to the client. My mind asks many questions, but the core beliefs that we
are a helping and caregiver profession is firmly rooted. It is possible that you ask: when
juris doctors decide to show off our skills and mingle with others rather than be alone, we
turn to Jurisprudence predominantly? I prefer to learn other philosophies when I mingle,
but I am always willing to answer questions that arise. Usually, questions about law are
about procedure, rather than philosophy. I hope this helps. A lawyer is less concerned
with the theoretical and more interested in the applied field. That is why in the USA the
practitioner’s doctorate, the Juris Doctorate, is the appropriate degree. This is the applied
field, while the academic field is jurisprudence. The jurisprudence (theoretical or
philosophical) degree would be a terminal - research oriented - Jurisprudence Science
Doctor. Extraversion, typically defined, is the act, state, or habit of being predominantly
concerned with and obtaining gratification from what is outside the self.

Definition of EXTRAVERSION. The theoritician is less concerned with how to create a

just disposition and more interested in what it takes to define fairness, justice, and
associated philosophical components. Therein lies the problem, while a lawyer is a
practitioner, which means a technician in the application of the law, the lawyer may not
have or require the pure theoretical focus. It would be the theoretician who would be
better defined as a person who has an Extraversion of the law. The more common
theoritician would be someone like Ronald Dworkin or H.L.A. Hart, both considered
legal philosophers. People from this approach may have a JD, but they are just as likely
to hold the PhD — especially one with a heavy theory and research focus. Think of it like
a certified auto mechanism and professional auto engineer. Both work in automotives, but
in slightly different ways. The mechanic’s focus is on making the vehicle operate better.
The engineer is interested in the design of the part that the mechanic replaces to make the
car better. Once is more practice oriented and the other is more theoretical.

Q. 8 Distinguish between jurisprudence and legal theory?

Ans.

‘Jurisprudence’ is a wider term than ‘legal theory

Both jurisprudence and legal theory are concerned with general nature of law. The
distinction of these terms is illusive as their contents are inseparable, i.e, the distinction
between the two is one of emphasis and of range only rather than of content. The word
‘jurisprudence’ is derived from the latin word ‘jurisprudentia’ which denotes “ the

 
 

knowledge of law”; ‘juris’ meaning ‘law’ and ‘prudentia’ meaning ‘knowledge or

skill’. Many jurists ( for eg: according to salmond, jurisprudence is the science of civil
law and according to Austin, it is the philosophy of positive law)have their own
definition of jurisprudence, however, if i could consolidate their definitions, it may be
defined as the study of fundamental legal principles which influence and change human
conduct from time to time and analysis of legal concepts. The term ’legal theory’ has
been, for the first time, coined by W.FRIEDMANN in 1945 in his work ‘legal
theory’. Legal theory has no definition per se, according to me. Legal theory is
concerned with law as it exists and functions in society and the way in which law is
created and enforced.

Q.9 Write a short note on Jurisprudence and Ethics?

Ans.

Jurisprudence and Ethics- Ethics has been defined as the science of Human
Conduct. It strives for ideal Human Behaviour. This is how Ethics and Jurisprudence are
interconnected:

a. Ideal Moral Code- This could be found in relation to Natural Law.

b. Positive Moral Code- This could be found in relation to Law as the Command of the
Sovereign.

c. Ethics is concerned with good human conduct in the light of public opinion.

d. Jurisprudence is related with Positive Morality in so far as law is the instrument to

assert positive ethics.

e. Jurisprudence believes that Legislations must be based on ethical principles. It is not

to be divorced from Human principles.

f. Ethics believes that No law is good unless it is based on sound principles of human
value.

g. A Jurist should be adept in this science because unless he studies ethics, he won’t be
able to criticize the law.

h. However, Austin disagreed with this relationship.

Q.10 What are the different branches of Jurisprudence ?

 
  

Ans.

¾ Branches of Jurisprudence
Jurisprudence in the U.S. began in the late 1800s, and is broken down into three branches
of study: analytical, sociological, and theoretical.

• Analytical Jurisprudence
The analytical branch of American jurisprudence analyzes the law, defining terms and
putting ideas into words on paper. Analysts of jurisprudence critique entire bodies of law
in an attempt to bring a consistent, logical order to the legal system.

• Sociological Jurisprudence
Sociological jurisprudence evaluates the influence of society on laws themselves, as well
as on the procedural aspects of the legal system. This type of scrutiny compares the law
with other sociological fields of study, including religion, economics, and literature, in an
effort to bring enlightenment by sharing understanding between each sociological field.

• Theoretical Jurisprudence
Studiers of theoretical jurisprudence seek to both raise and answer elemental questions
about the law itself. Theoretical jurisprudence evaluates laws as they relate to ideals,
moral standards, and goals, determining their historical and cultural foundations. The
theoretical branch often targets abstract questions such as:
ƒ How does a judge decide a case?
ƒ Does he simply apply set rules and regulations to the matter, or does he act as a
legislator, deciding each case in favor of the most preferable outcome to the public?
ƒ Should a judge be allowed to be influenced by unwritten moral, religious, and
sociological principles in deciding cases?

------------

 
  

KAMKUS COLLEGE OF LAW, GZB.

LL.B I Sem

Jurisprudence - I
II. (Analytical Schools of Jurisprudence.)

Analytical Positivisms

¾ (Descriptive Questions)
Q 1 Discuss the salient features of the Analytical Schools of
Jurisprudence and indicate its shortcomings. Why it is called
Analytical School?
or
Explain the Austinan concept of Law and compare with Benthem’s
philosophy ?
Ans.
ANALYTICAL POSITIVISM

¾ General

 
  

Analytical Jurisprudence is the general name for the approach to Jurisprudence which
concern itself mainly with classification of legal principles and rules and with analysis of
the concepts, relationships, words and ideas used in legal system such as Person,
Obligation, Right, Duty, Act, etc. It is mainly associated with Positivism, the
approach to law which concerns itself with positive law i.e. legal system and rules
actually in force distinct from ideal systems or law which should be. Analytical
Jurisprudence though fore-shadowed by Thomas Hobbes, is chiefly associated with
Jeremy Bentham and John Austin. It has been extensively developed in England
notably by Markby, Holland, Salmond, Hart etc. in the continent by Hans Kelsen and
U.S.A. mainly by John Chipman Gray, Oliver Wendell Holmes, etc.

• POSITIVISM : The difference in perception between the normative (natural) and

positivist (factual) notions of law in Jurisprudence is mainly a 19th century phenomena.
The normative notion attempts to study law from philosophical, abstract and ideal angel
e.g., with reference to Nature, God, Reason or Conscience – all of which are beyond and
independent of human power, control or authority. It is these ideal notions which explain
what is good or what is evil, or what is right and what is wrong. The positivist
methodology of studying law is essentially antithesis of normative notion of law as it
asserts of being realistic, scientific, investigative and empirical in its approach to law. It
rejects the subjective-cum-moral or a priori tests and claims to be real, logical and
scientific in the study of law as it is rather than as it ought to be. It attempts to apply
purely objective or logical tests for the existence of law on the touch- stone of fact-
situation. A positivist refuses to rely on revealed or assumed hypothetical assumptions of
law. Indeed the positivist approach basically emerged as a revolt against the methodology
of abstract thinking and expressed its dissatisfaction against a system of law dominated
by incoherence, uncertainty, confusion and fallacies. Its basic theme is logic, consistency,
certainty, clarity and above all a strict separation between is and ought the former being
proper subject matter of jurisprudence and latter being rejected outside the realm of
jurisprudence what Bentham described as ‘science of legislation’.
The term ‘positivism’ has many meanings, which are tabulated by Prof. Hart as follows:
i) Laws are commands;
ii) The analysis of legal concepts is –
(a) worth pursuing;
(b) distinct from sociological and
(c) historical inquiries;
Decisions can be deduced logically from predetermined rules without recourse to social
aims, policy or morality;
iii) Moral judgments can’t be established or defended by rationale, argument, evidence or
proof; and
iv) The law as it is actually laid down has to be kept separate from the law that ought to be.
v) Positivism flourishes in stable conditions. The difficulties of maintaining a right
separation between ‘law what is’ and ‘what ought to be’ come to light in turmoil.

¾ JOHN AUSTIN (1790-1859)

 
  

• General
John Austin, who was a Prof. in London University, is the founder of the Analytical
School. He is considered as the father of English Jurisprudence. He was elected to the
chair of Jurisprudence in the University of London in 1826. Then he proceeded to
Germany and devoted some time to the study of Roman Law. Austin, a disciple of
Bentham, is a positivist and concerned with “what law is” and ‘not what law ought to
be’. ‘Positive’ means ‘as it is’.
The first six (6) lectures of Austin were published in 1832 under the title “The Province
of Jurisprudence Determined”, while rest were published posthumously in 1861. He
avoided metaphysical method, which is a German characteristic. The method, which
Austin applied, is called analytical method and he confined his field of study only to
‘positive law’. Therefore, the school founded by him is called by various names-
‘Analytical’, ‘Positivism’, and ‘Analytical Positivism’. Prof. Allen thinks it proper to
call the Austin’s school as “Imperative School” on the basis of its conception of law,
i.e.. ‘Law is Command’.
For Austin, the matter of jurisprudence is “positive law”; “law simply and strictly so
called” or “law set by political superiors to political inferiors”. He believed that
‘Law’ is only an ‘aggregate of laws and defined ‘law’, “As a rule laid down for the
guidance of an intelligent being by an intelligent being having power over him”. To
him law is the command of a sovereign requiring his subjects to do or forbear from doing
something. There is an implied threat of ‘sanction’ if the command is not obeyed.
He distinguished between ‘laws properly so called’ and ‘laws improperly so called’. The
former are general commands addressed to the community at large and enjoined classes
of acts and forbearance. They are divided into laws set by God / divine law / law of God
and laws set by men to men. Laws set by men to men also fell into two categories – the
first consisted of ‘laws set by political superiors to political inferiors’. This was termed
by Austin ‘positive law’ or ‘law simply and strictly so called’ and was, to him, the
subject matter of jurisprudence.

Thus, ‘law properly so- called’ must have three elements –

(i) Command,
(ii) Sanction and
(iii) Sovereign.

The second category consisted of ‘laws set by men to men neither as political superiors
nor in pursuance of rights conferred upon them by such superiors’, e.g., ‘those set by a
master to a servant or the rules of a club. They are still laws properly so called because
they are commands, but he distinguished them from positive law by giving them the term
‘positive morality’.
Analogous to the laws of the latter class are a number of rules to which the name “laws
improperly so called” is given. They are opinions or sentiments of an indeterminate body
of men and laws of fashion or honour. He places international law under this class. In the
same way, there are certain other rules which are called law metaphorically – laws of
nature. They are laws improperly so called.

 
  

‘Positive Law’ (law simply and strictly so called or law set by political superiors to
political inferiors) is the only proper subject matter of jurisprudence. Jurisprudence is the
general science of positive law.
Laws properly so called are species of commands. But being a command, it flows from
a determinate source or emanates from a determinate author. For whenever a command
is expressed of intimated, one party signifies a wish that another shall do or forbear and
the latter is obnoxious to an evil which the former intends to inflict in case the wish is
disregarded. The key to understanding law properly so called lies in duty which is created
by the command of a sovereign. Duty and sanction are co-relative terms – whenever
duty lies, a command has been signified and whenever a command is signified, a duty
is imposed
In a nutshell, by law, Austin means command, sanction and duty (C+S+D), which are
inextricably linked and can’t be separated. There are three kinds of laws, which,
though not command, are still within the province of jurisprudence:

(i) Declaratory of Explanatory Laws: Austin does not regard them as commands because
they are passed only to explain laws already in force, e.g., General Clauses Act.
(ii) Laws to Repeal Laws: These too are not commands but are rather the revocation of a
command. They release from duties imposed by existing laws and are named permissive
laws.
(iii) Laws of Imperfect Obligation: These laws have no sanction attached to them. Thus,
there is a duty, but in case of non-compliance, there is no sanction.

¾ Criticisms of Austin’s Theory:

i) Customs ignored : For Austin, law is the command of sovereign. In the early times, not
the command of superior, but customs regulated the conduct of the people. Even after
coming of State into existence, customs continued to regulate the conduct. Therefore,
customs should also be included in the study of jurisprudence, but he ignored them.
Customs have been in existence since old times. Customs have also be an important
source of law. As per Austin, customs can only be a law if the sovereign accepts them as
law, while customs provide the basis on which the law can be based. Thus, even if the
sovereign does not recognise them as law, customs have always be an important source
of law and can’t be ignored.
Judge-made law: There is no place for judge-made law. In the course of their duty
(while applying precedents and interpreting the law), judges make law. Though an
Austian would say that judges act under the powers delegated to them by the sovereign,
therefore, their acts are the commands of the sovereign. However, in modern times,
judges perform a creative function and Austin’s definition of law does not include it.
ii) Command theory untenable: Command presupposes a commander. No indeterminate
party can command, expressly or tacitly or can receive obedience or submission. The
question is whether he can be discovered, who might be regarded as having commanded
the corpus of law. In democratic system, it is not possible that one person commands.
iii) Sanction is not the only means to induce obedience: As per Austin, it is the sanction
alone which induces the man to obey law, while it is open to criticism from many points

 
  

of view as there are many other considerations such as reasoning, logic, love etc. due to
which people obey.
iv) International Law: Austin put International Law under positive morality as the law of
honour and law of fashion. The so-called law of nations consists of opinions or
sentiments. It, therefore, is no law properly so called. The main ingredient of law lacking
in International Law is sanction, but this alone will not deprive from being called law.
Now-a-days, International Law is playing an important role and thus it can’t be totally
negated. Hence, nobody will accept that International Law is not law. Therefore,
according to Austin, a very important branch of law shall be excluded from the study of
jurisprudence.
v) Relation of Law and Morals Overlooked : To Austin, law isn’t concerned with morals
but this isn’t correct preposition. Law is not an arbitrary command, but it is a growth of
an organic nature. Moreover, law has not grown as a result of blind forces, but it has
been developed consciously and has been directed towards a definite ends. It isn’t
completely devoid of ethical and moral elements. Any law, which is devoid of ethics or
morality can’t withstand the test of time. People don’t accept it whole heartedly because
of it being unethical. Hence, morals have always be an integral part of law.
vi) Other Laws Ignored: Austin does not cover procedural laws, e.g., Civil Procedure
Code, etc. He also does not talk about laws conferring privileges, e.g., Payment of
Bonus Act, Gratuity Act, etc.

¾ Applicability of Austin’s Theory in India:

(1) We don’t have a legally unlimited or indivisible sovereign. Our Constitution is

supreme, though it can be amended, but basic structure can’t be.
(2) Though there is separation of powers, yet sometimes judiciary makes law (Article-
141 – Vishakha’s case and D.K. Basu’s case)
(3) Ordinance making power of the Governor and the President (Article – 123 and 213):
(4) We have quasi-federal system. Though the President has the supreme power, but the
same is exercised by the Prime Minister.
(5) Directive Principles of State Policy (DPSP) are not positive law as per Austin.
Though DPSP are not justifiable, yet they are important as they govern the guidelines
for the society. Thus, the principle of ‘is’ and ‘ought’ fails.

¾ Comparison of Bentham and Austin:

Bentham provided a deeper and more adaptable theory. His concept of sovereignty
was flexible as it avoided indivisibility and illimitability. He was, thus, able to
accommodate the division of authority between organs as in a federation or division
in certain areas as well as restrictions of authority

(i) His concept of law was broader than Austin’s. He avoided the absurdity of “law
properly so called”.
(ii) His sanction was both wider and less important than Austin’s sanction. Laws are
still laws even though supported by moral or religious sanctions or they may be
accompanied by rewards. He, thus, had no need to resort to a sanction by nullity.

 
  

Q.2 Discuss Kelsen’s Pure theory of Law. What are the main points of
criticism of this theory?
Ans.
Kelsen’s Pure Theory of Law

¾ General
Kelsen was a Prof. of Jurisprudence in Vienna University, Austria. He owes his fame
mainly due to his ‘Pure Theory of Law’. According to him, ‘a theory of law must deal
with law as it is actually laid down not as it ought to be’. Kelsen advocated that ‘a
theory of law should be uniform and it should be to all time & in all places. A theory is
something, which has universal application’. In order to make his theory to have
universal application. In order to make his theory to have universal application, he
desisted from including the elements of sociology, politics, economics, history or other
disciplines because they are subject to variation from one place to another & from one
time to another. Thus, he devised a pure theory, which would have the ingredient of only
one discipline, i.e. law & totally devoid of sociology, political science, economics, etc.
He insisted that a theory of law must be free from ethics, politics. Sociology, history etc.
Though their value is not denied, but Kelsen insisted that a theory of law must not have
such considerations. There must be a pure theory of law. It is for this reason that Kelsen
refused to define law as a command of sovereign, as Austin stated, because that
introduces subjective & political considerations. He wished his science to be really
objective. For Kelsen, law is normative and not a natural science based on cause and
effect. It is a norm that directs an official to apply force under certain circumstances.
Thus, his theory of law is a theory of positive law.
Every body of facts has two distinguishable elements:
(i) External manifestation of human conduct that is perceived by our senses.
(ii) The legal meaning of this act, i.e., the meaning conferred upon the act by the
law.
e.g., people assemble in a large room, make speeches, some raise their hands, others
don’t. This is the external manifestation of the fact. Its meaning is that a statute is being
passed, that a law is being created.
Every manifested act is subject to two meanings – subjective and objective meaning,
e.g., somebody makes some dispositions stating in writing what is to happen to his
belongings when he dies. The subjective meaning of this act is a testament. Objectively,
however, it may not be a testament due to non-observance of some legal formalities, etc.

• Difference between Austin and Kelsen:

 
  

(i) The view of Austin is that law is a command backed by a sanction. However, Kelsen
rejects the idea of command as it introduces a psychological element into a theory which
should be pure.
(ii) To Austin, ‘sanction’ is something outside the law which imparts validity to law.
However, Kelsen maintains that the legal ‘ought’ can’t be derived from any fact outside
the law.
(iii) To Austin, only command is a norm, while, to Kelsen, policy, rule, doctrine, standards,
etc. are all norms in addition to the command.

¾ Norm and Ground norm:

Kelsen said that ‘norm’ is a rule forbidding or prescribing certain behavior. In other
words, norm is the meaning of an act of will by which certain behavior is commanded or
permitted or authorized. Legal norms always belong to the realm of the ‘ought’. It is
different from moral norm. The ‘ought’ in the legal norm refers to the sanction to be
applied to contra-legal behavior.
In this process, Kelsen achieved two objectives:
(i) He removed the natural law and moral or ethical criteria from the concept of
positive law; and
(ii) It also enabled him to solve the problem – how a norm can be said to be valid in
case of illegal behavior.
‘Ground norm’ or the basic /fundamental norm is the initial hypothesis upon which the
whole system rests. The ‘Ground norm’ is the justification for the rests of the legal
system. It is essential that it should command a minimum of support. When it ceases to be
the basis of the legal order, it is replaced by some other ‘Ground norm’ which obtains the
support of the people. The Ground norm is the starting point for the philosophy of Kelsen
.A legal order is comprised of norms placed in a hierarchical manner – one norm placed
above another norm and every norm deriving its validity from the norm above it. The
hierarchy takes a pyramid form and symbolizes the legal order. The highest norm in the
hierarchy is called the basic norm or the Ground norm.

¾ Basic Norm / Ground norm:

The function of ‘Ground norm’ is to give objective validity to positive legal order, i.e., it
is the common source for the validity of all norms that belong to legal order. Kelsen
offered no explanation about the source of validity of the ‘Ground norm’. He just
presupposed that the ‘Ground norm’ is valid. Kelsen stated that ‘Ground norm’ need not
be the same in every legal order, but a ‘Ground norm’ of some kind will always be there.
The basic point is that those who are in effective control ought to be obeyed.
The following various features of ‘Ground norm’ will illustrate the reason for its position
in pyramidal structure:
(i) ‘Ground norm’ is not the positive norm or rule of law, but is an extra-legal or non-legal
norm as it is not derived from any higher norm.
(ii) It itself is not valid or invalid; it is an assumption or a jural postulate.
(iii) It only empowers and does not impose sanctions.

 
  

(iv) It validates the rest of the legal system/order.

(v) The pre-supposition of basic norm is based upon effectiveness.
(vi) Basic norm is the pre-supposed starting point of the procedure of creation of norms.
It gives validity to norms, but does not give content to norms.
Kelsen builds his pure science on a philosophical basis. Many philosophers emphasize
that jurisprudence must study the relationship between law and justice, but Kelsen
wished to free the law from the metaphysical mist of justice, material of social science
and natural law. He also refused to follow Austin’s view (law is a command of sovereign)
as it introduces subjective and political considerations in the concept of law. He insisted
that the sole object of the study of jurisprudence is the nature of norms or standards
which are set up by law. Law & state are really the same thing viewed from different
aspects. A legal order becomes a state when it has developed organs for creation,
declaration and enforcement of law. Kelsen specially emphasized that the relation
between state and law are inter-connected and traditional approach can’t continue in the
emerging conditions of the society. But the practical importance of Kelsen’s approach is
that he emphasized that law is a more fundamental notion than that of state. While it is
true that law can’t exist without a legal order that order may take forms other than that of
the state. Hence, Kelsen’s theory is wider and, therefore, more, expectable than that of
Austin.
An important feature of Kelsen’s doctrine is that the state is viewed as a system of human
behavior and an order of compulsions. Thus, only relatively centralised legal orders are
states. Kelsen also applied his theory of pure science of law to the system known as
‘International Law’, but revealed many limitations. The pure theory requires that
‘Grundnorm’ be discovered. What Kelsen said that the ‘Grundnorm’ should command a
minimum of support. There are two possible
‘Grundnorm’ in International. Law –
(i) The supremacy of each system; and
(ii) The supremacy of International Law
Every national legal order can recognize any norm superior to its own Ground norm In
view of Prof. Dias, it may be the principle of ‘pacta sunt servanda’ and with reference to
intl. law, The ‘Grundnorm’ is a pure supposition unlike that of municipal law. Kelsen didn’t
regard the distinction between public and private law. He stated that contract may play as
great a part as public law. To him, law may be made either by a parliament, a judge or a
private citizen. Thus, a contract executes a superior norm and creates a binding obligation.
Kelsen believed that ‘reason’ could derive one form from another, but that reason would
not create an original norm, i.e. ‘Grundnorm’/one which was not derived from another.

¾ Criticisms:

(i) The basic norm is a very troublesome feature of Kelsen’s system. It is not clear what
sort of norm this really is, nor what it does, nor where we can find it (per Lord Lloyd)

 
  

(ii) Kelsen did not explain the existence of the basic norm on which the whole legal
system was founded by him (per Prof. Goodhart)
(iii) As regards the quality of purity, for all purposes, it is dependent on the basic norm.
Since that basic norm itself is the most impure, the subsequent operations must
reproduce that original impurity in the inferior norm, thereby making the whole system
impure.
(iv) The reasons for the validity of a norm can only be the validity of another norm-total
pre-supposition.

¾ Conclusion: Kelsen’s legal theory is an original piece of research, which has

successfully made a vital contribution to jurisprudential thought. His view regarding norms,
right, state, public and private law, have received wide appreciations from various
academicians and jurists. His analysis about legal order is thought-provoking. Being original
and creative piece of research, it was bound to encourage contemporary jurists, eminent
judges and philosophers to react and raise many questions for further clarification and
research. Though Kelsen emerged 1oo years after Austin, due to lack of development of
communication channels, he was totally unaware of Austin’s theory. Hence, Kelsen viewed
positivism from an angle different from that of Austin. Resultantly, it can’t be said that
Kelsen’s Pure Theory of Law is an improvement upon Austin’s Command Theory.
However, complete diversity is not possible within the same discipline and there were
similarities between Kelsen’s and Austin’s approach to the extent that they both:
• took law as it is;
• talked of fact as it exists;
• were positivist;
• were analysist; and
• were imperative thinker;

¾ Short Answers Questions

Q.3 Explain the contributions of Hart ?

Ans.
¾ HART’S CONCEPT OF LAW :

Prof. H.L.A. Hart, a British Philosopher and an eminent jurist, is considered as the
significant exponent of Analytical Positivism. Hart in his vital contribution, “The
Concept of Law” (1961) has expounded his legal theory as a system of rules by exploring
the relationship between law and society. His main objective is to further explain
understanding of law, coercion and morality.
According to Hart, the law is a system of rules. Two types of rules are “Primary and
Secondary”. Hart rejects Austin’s theory that rule is a kind of command and substitutes a
more elaborate and general analysis of what rules are. Hart observed, “Union of these
two types of rules is the most powerful tool, which will lead to proper general analysis

 
 

of the situation created by Austin’s definition of law. Primary rules are those that
impose duty upon individuals and are binding because of practices of acceptance which
people are required to do or abstain from certain actions. In other words Primary rules
impose duties obligations on individuals in primitive community. Due to social control,
such community suffers from three defects – uncertainty, static character and
inefficiency. The stage of primitive community requires proper modification to make the
social structure more effective, efficient and certain. This gives rise to Secondary and
introduction of Secondary rules (power conferring rules enabling legislations to
determinate when the rules have been broken) is described as step forward as important
to society as the invention of the wheel. He emphasized that “Law is a union of Primary
and Secondary rules and, thus, it is born in the society. Under Primary Rules, human
beings are required to do or abstain from certain actions, whether they wish or not.
Secondary rules are in a sense parasitic upon or secondary to Primary rules. While a
Primary rules impose duties, Secondary rules confer powers. While Primary Rules
concerned with the actions which the individuals must or must not undertake, the
Secondary Rules specify the ways in which the Primary Rules may be conclusively
ascertained, introduced, eliminated, varied and the fact of their violation conclusively
determined.
According to Hart, a rule is:
(i) Something, which creates obligation and simultaneously
(ii) A standard by which one can judge whether rule is right or wrong.
Hart’s most-sustained entry into political disputation occurred in 1963,
with the publication of Law, Liberty, and Morality. He wrote in the liberal tradition of
English philosopher and economist John Stuart Mill in arguing that homosexual
intercourse between consenting adults should not be legally proscribed. Invoking and
defending Mill’s “harm principle,” which maintains that no activity can legitimately be
outlawed unless the activity causes nontrivial harm to somebody other than the
participants, Hart submitted that consensual intercourse between adult homosexuals does
not cause any detriment that would suffice to satisfy the harm principle. In particular, the
mere fact that certain sexual practices cause offense to some people who are aware of
their occurrence does not constitute harm of any kind that would render legitimate the
prohibition of those practices.
Other notable works include Essays on Bentham (1982)—during his closing years as an
active scholar, Hart devoted much of his time to editing and interpreting Bentham—
and Essays in Jurisprudence and Philosophy (1983). In several writings in those
volumes, Hart made noteworthy contributions to debates over the nature of rights
and justice. He joined Rawls and American philosopher Robert Nozick in rejecting
utilitarian rationales for sacrificing the vital interests of some individuals in furtherance
of the interests of others, but he likewise assailed the extreme individualism of Nozick’s
libertarian principles of justice. Generally sympathetic to Rawls’s ideas, Hart nonetheless
challenged Rawls’s remarks about the overriding priority of liberty. (Among other things,
he queried Rawls’s unexplained shift from speaking about the priority of liberty to
speaking about the priority of liberties.) What Hart impugned was not really the priority
of certain liberties but instead the claim by Rawls to have derived that priority from a

 
 

situation of pure rational choice—the “original position”—in which each choosing agent
seeks to promote his or her own interests optimally. Hart declared that, instead, the only
tenable basis for Rawls’s prioritization of certain liberties is a liberal ideal of human
personality.
Hart further exhibited his liberal allegiances in his analysis of the nature of
rights. He contended that the holding of a legal right by any person always involves the
vesting of with legal powers to waive or demand the enforcement of the legal duty that is
correlated with the right. Hart adopted this analysis precisely because he believed that
no alternative conception of right holding would capture the role of rights in enabling
individual self-determination. His account of rights, like his other political stances, was
grounded on liberal values.

Q.4 Explain the contributions of Kelsen ?

Ans.
Kelsen’s contribution in the development of Analytical Positivism is a big zero as he
repeats the things of ‘Sovereignty’ of John Austin and the ‘Rule of Recognization’ of
Prof. Hart with the changing phraseology of Grund Norm of his own. The contribution
of Kelsen’s Pure theory of law in the development of Analytical Positivism and its core
reality. Before entering into Kelsen ‘Pure Law Theory’, it would like to put the
differentiation between the natural law school and analytical positivism school. The
natural law school deals with the concept of law of nature. It is about the God made law.
It also says about the value, ethics, morality and supernatural aspect. It also deals with
the idea of reason. Basically natural law school indicates the “ought” proposition. But
the ‘analytical positivism school’ does not concentrate about the “ought” proposition,
value judgement and theological affairs. The analytical positivism school takes the “is”
proposition and tries to establish the scientific temper in a logical manner. According to
Austin, ‘Law is command of Sovereign back by sanction’. It is authority supportive that
sovereignty must be obeyed and must not be challenged. Kelsen, an analytical jurist, in
his ‘Pure Theory of Law says,’ Law is the norm which stipulates sanction. Kelsen’s
‘Pure Theory’ is about the ‘hierarchy of norms. He also says about the normative
behaviour which takes validity from the ‘Ground norm’. In his ‘Pure Theory of Law’
says Kelsen, that law should be kept pure from extra legal affairs.

But Prof. H.L.A. Hart propounded that law is union of ‘Primary and Secondary
Rules’. He also said about the minimum content of morality within the framework of
Analytical School. Kelsen established the normative character of law. On the other hand
Hart gave emphasis on rule. It is core reality that Austin, Kelsen and Hart established the
coercive character of law in different ways. The objective and scope of the topic is very
wide. A set of behavioural norm is in every society. The normative behaviour control
and regulate the human being. The pure theory is free from any extra-legal element
and the sanction is also under the scope of the norms.

Q.5 Explain the contributions of Benthem in Analytical School ?

 
  

Ans.

¾ JEREMY BENTHAM (1748-1832)

He laid down the foundation of positivism in the modern sense of term. He was a
ferment champion of codified law and of reforming English law, which was, according
to him, in utter chaos. He distinguished between ‘expositional jurisprudence (what the
law is) and ‘censorial jurisprudence (what law ought to be) or the art of legislation’.
The main function of the former was ‘to evaluate law’, while that of the later ‘to analyse
law’. In seeking answers to the questions {what is a penal code of laws? /What is a civil
code? }, he had to investigate the nature of law, which led to him into a maze through
which he mapped out a path of laws in general. This was finished more or less in 1782,
but remained unpublished till 1939 when Prof. Everett disinterred it and published under
the title “The Limits of Jurisprudence Defined” in 1945. A revised edition was
published as “Laws in General” in 1970 under the editorship of Prof. H.L.A. Hart.
Bentham gave the ‘Principle of Utility’, which says, “Only those laws are important,
which give maximum happiness to the maximum number of people”. Those laws,
which are not giving maximum pleasure and giving maximum pain to the people, ought
to be removed. He also gave “Hedonistic Calculus, which is the imaginary principle
to judge pleasure and pain of any law”.

¾ Very Short Answers Questions

Q.6 Explain the concept of GrundNorms ?

Ans.

¾ Ground Norm:

‘Ground norm’ or the basic /fundamental norm is the initial hypothesis upon which the
whole system rests. The ‘Ground norm’ is the justification for the rests of the legal
system. It is essential that it should command a minimum of support. When it ceases to be
the basis of the legal order, it is replaced by some other ‘Ground norm’ which obtains the
support of the people. The Ground norm is the starting point for the philosophy of
Kelsen. A legal order is comprised of norms placed in a hierarchical manner – one norm
placed above another norm and every norm deriving its validity from the norm above it.
The hierarchy takes a pyramid form and symbolizes the legal order. The highest norm in
the hierarchy is called the basic norm or the Ground norm.
The function of ‘Ground norm’ is to give objective validity to positive legal order, i.e., it
is the common source for the validity of all norms that belong to legal order. Kelsen
offered no explanation about the source of validity of the ‘Ground norm’. He just
presupposed that the ‘Ground norm’ is valid. Kelsen stated that ‘Ground norm’ need not

 
  

be the same in every legal order, but a ‘Ground norm’ of some kind will always be there.
The basic point is that those who are in effective control ought to be obeyed.
The following various features of ‘Ground norm’ will illustrate the reason for its position
in pyramidal structure:
‘Ground norm’ is not the positive norm or rule of law, but is an extra-legal or non-legal
norm as it is not derived from any higher norm.
1. It itself is not valid or invalid; it is an assumption or a jural postulate.
2. It only empowers and does not impose sanctions.
3. It validates the rest of the legal system/order.
4. The pre-supposition of basic norm is based upon effectiveness.
5. Basic norm is the pre-supposed starting point of the procedure of creation of norms.
6. It gives validity to norms, but does not give content to norms.
Kelsen builds his pure science on a philosophical basis. Many philosophers emphasize
that jurisprudence must study the relationship between law and justice, but Kelsen
wished to free the law from the metaphysical mist of justice, material of social science
and natural law. He also refused to follow Austin’s view (law is a command of sovereign)
as it introduces subjective and political considerations in the concept of law. He insisted
that the sole object of the study of jurisprudence is the nature of norms or standards
which are set up by law. According Kelsen law & state are really the same thing viewed
from different aspects. A legal order becomes a state when it has developed organs for
creation, declaration and enforcement of law. Kelsen specially emphasized that the
relation between state and law are inter-connected and traditional approach can’t continue
in the emerging conditions of the society. But the practical importance of Kelsen’s
approach is that he emphasized that law is a more fundamental notion than that of state.
While it is true that law can’t exist without a legal order that order may take forms other
than that of the state. Hence, Kelsen’s theory is wider and, therefore, more, expectable
than that of Austin. An important feature of Kelsen’s doctrine is that the state is viewed as
a system of human behavior and an order of compulsions. Thus, only relatively
centralised legal orders are states. Kelsen also applied his theory of pure science of law to
the system known as ‘International Law’, but revealed many limitations. The pure theory
requires that ‘Grundnorm’ be discovered. What Kelsen said that the ‘Grundnorm’
should command a minimum of support.
There are two possible ‘Grundnorm’ in Indian. Law –
(i) The supremacy of each system; and
(ii) The supremacy of intl. law.
Every national legal order can recognize any norm superior to its own Groundnorm In
view of Prof. Dias, it may be the principle of ‘pacta sunt servanda’ and with reference to
intl. law, The ‘Grundnorm’ is a pure supposition unlike that of municipal law. Kelsen
didn’t regard the distinction between public and private law. He stated that contract may
play as great a part as public law. To him, law may be made either by a parliament, a
judge or a private citizen. Thus, a contract executes a superior norm and creates a binding

 
  

obligation. Kelsen believed that ‘reason’ could derive one form from another, but that
reason would not create an original norm, i.e. ‘Grundnorm’/one which was not derived
from another

Q.7 What do you mean by Imperative theory of Law?

Ans.
¾ Imperative theory of Law :
The imperative theory of law states that law consists of the general commands that are
issued by a country or other political community to its subjects. It includes general
commands enforced by courts with the sanction of physical force. The followers of
imperative theory believe that if there are rules predating or independent of the country,
then such rules shall closely resemble law or in some instances even substitute it, but they
are not law.

Q.8 Discuss the Hart’s ‘Rule of Recoginition’?

Ans.
¾ EVOLUTION OF RULE OF RECOGNITION:-

H.L.A Hart was considered as one of the great legal positivist in the theory of
analytical postivisit jurisprudence. Analytical jurisprudence has made a systematic
analysis of legal concept by different thinkers during different period. Among the
positivist thinkers Hart is one of them who very efficiently criticizes his earlier positivist
theory with an explicit motive to describe the legal system of a society. In his book
“THE CONCEPT OF LAW”, published in 1961, He has made an attempt to describe
the development of legal system from primitive to evolved legal system. According to
Hart“ law is best understood as the union of primary and secondary rules., the primary
rules are the rules of obligation whereas the secondary rules are dependent upon the
primary rules which allow the creation, extinction and alteration of primary rules.”

¾ RULE OF RECOGNITION
The concept of law according to Hart is a system of rules and the rules are the sole basis
of a legal system. According to hart legal system is nothing but a combination of
primary and secondary rules. Rule of recognition is a kind of secondary rule which
validates a legal system and which is central, foundational and essential to every legal
system. But this view of Hart has been criticised by other legal positivist like Ronald
Dworkin, John Finnis and they have pointed out some lacuna in the hart’s doctrine as
well as they raised some valid questions which is also necessary to be considered. Hart
describes rule of recognition as a foundation of a legal system. The objective is to find
out the rule of recognition exist in a modern legal system? As well as can it be a
foundation of a legal system? To fulfill this objective firstly I deal with the evolution of

 
  

the rule of recognition and then Hart’s opinion regarding this and later on I briefly
discuss the objections raised regarding Hart’s doctrine and finally I make a conclusion
with a modification of that doctrine which may be appilicable in a modern legal system.

---------

KAMKUS COLLEGE OF LAW, GZB.

LL.B I Sem

Jurisprudence - I
III (Historical School of Jurisprudence.)

¾ (Descriptive Questions)

Q1 Discuss the distinctive Characteristics of Historical School of

Jurisprudence. Distinguish clearly between Analytical Jurisprudence
and Historical Jurisprudence?
Ans.
¾ General
The rise of historical School of jurisprudence may be traced to many causes. Firstly- the
reaction against the unhistoric assumption of natural law theorist. Secondly- the attempt
to find the legal system based on reason without reference to past or existing
circumstances was revolutionary in execution. Thirdly- the French conquest under
Napoleon aroused the nationalism of Europe. Fourthly- the French also spread the idea
of codified law and as to reaction of any thing.
In Germany also the historic conception of law was taken up and developed in the
latter part of the eighteenth century by Herder in his work ‘Ideas on the Philosophy of
the History of Human Race’. This heralded the advent in 19th century of German
Historical School represented by forerunners of Savigny, Schelling (1775-1854), and
Hugo (1768-1844) both of whom rejected a natural theory of law and advocated law in
fact, independently of legislation which develops itself as suited to the need and

 
  

circumstances of each community. The essence of law, according to Hugo, is its

observance, acceptance by the people-because its harmony with the paramount
sentiments and practices of the people. Law is not a declaratory of moral principles of
reason or of human nature. It is declaratory of principle of progress and growth
discovered by human experience of administering of justice. As Sir Frederick Pollock
puts it, ‘The historical method is nothing else than the doctrine of evolution applied to
human societies and institutions’.
The term Historical jurisprudence is usually associated with the particular
movement in legal thought of which Savigny and Maine is famous exponent of this
School. However, of the greatest German jurists of Historical School the name of
Friedrich Karl Von Savigny (1770-1861) is remembered conspicuously as the
unrivalled and unchallenged founder of Historical Jurisprudence. He was the
‘Darwin’ of Historical School of Jurisprudence. His last published work appeared only
six years before The Origin of Species (1860) and was still alive when Darwin's work
appeared. The theory of evolution was thus not new which Savigny had already
propounded. Savigny, therefore, ushered the beginning of Historical School-his doctrines
regarding law were represented in his famous pamphlet ‘On the Vocation of Our Age for
Legislation and Jurisprudence 1814’. The ‘Vocation’ appeared at a critical moment in
the history of the German States-the fate of Germany was still uncertain being decided at
the Vienna Congress of 1815. There was uncertainty in Germany about German State
with its legal diversities and the problem of political unification. These and other factors
created a chain of reaction in the minds of German legal philosophers - resulting in the
founding of Historical School.

The factors which led to its growth in Germany and elsewhere may be
summarised below:

1. It was a reaction against the a priori notions of natural law philosophy. The philosvphers
hitherto measured all situations and problems by referring them to an idealised picture of
social order without studying law in relation to social growth and legal development.
2. The natural law thinkers had thought of law which was always the same static and
unchangeable. They failed to see the law which had grown and developed from the past.
3. The natural law philosophers believed in ideal principles of law as revealed by reason. It
did not look to history, traditions, customs, habits and religion as true basis of law.
4. The Historical School was a reaction against the French Revolution which itself was a
product of natural law philosophy - with its gospel of liberty, equality and fraternity of
men and nations. In Germany a movement grew up which was romantic, irrational and
strongly nationalistic in character and which found its expression in art, literature,
history, political theory and law. Nations now started revolting against Nature.

¾ Characteristics of Historical School

1. According to Savigny law was not something which can be made or altered arbitrarily
by law makers. The contents of law are essentially determined by the whole past of a

 
  

people so it cannot be produced ab extra by an action of a wise law giver or by some

inventive or master spirited people.
2. Law of a nation, therefore, according to Savigny, is not the product of reason or
command or will of the Sovereign but the instinctive sense of right possessed by every
race or community. In other words, law is a product of ‘internal silently operating forces’.
3. Law as such is found and not made. It is to be found in popular faith, common
convictions, customs, traits, habits, traditions which in course of time grow into legal
rules.
4. Like the language, the manners and the constitution of a nation, all law is exclusively
determined by the nation’s peculiar character which is otherwise called the Volksgeist or
spirit of the people.
5. Law cannot be universal or general in character. It is always peculiar, particular, limited-
its nature and character depending upon the peculiar, traditions of each people. Law of a
nation, likes its language, manner and Constitution is peculiar to a people. Law grows
with the growth and strengthens with the strength of the people and finally dies as the
nation loses its individuality.
6. Savigny, therefore, favoured customary law over legislations. As such he gives more
importance to jurist than legislator the former representing the national spirit, i.e.,
Volksgeist.
7. Savigny believed in the unbreakable continuity of law - from the past to the present and
future also. A law of a nation cannot be different from its past customs and traditions on
which the existing and even future law can be based.
8. Savigny considered law an inextricable part of society. He viewed law as a part of social
process and development which arises from silent forces which are not directed by
arbitrary and conscious intention but operate in the way of customary law.

¾ Distinguish between Analytical Jurisprudence and Historical

Jurisprudence?

• Historical Jurisprudence
The German Historical School was divided into Romanists and the Germanists. The
Romantists, to whom Savigny also belonged, held that the Volksgeist springs from the
reception of the Roman law. While the Germanists (Karl Friedrich Eichhorn, Jakob
Grimm, Georg Beseler, Otto von Gierke) saw medieval German Law as the expression of
the German Volksgeist. The German Historical School has had considerable influence on
the academic study of law in Germany. Georg Friedrich Puchta and Bernhard
Windscheid continued the Romanist vein founded by Savigny, leading to the so-called
Pandektenwissenschaft which is seen as Begriffs jurisprudenz (conceptual jurisprudence).
Positivists and naturalists tend to converge in the area of historical jurisprudence. Strictly
speaking, history does not completely fall within the definition of either positivism or
natural law. Historical events, like the Civil War, are not legislative enactments, although
they may be the product of governmental policy. Nor do historical events embody eternal
principles of morality, although they may be the product of clashing moral views. Yet,
historical events shape both morality and law. Thus, many positivists and naturalists find
a place for historical jurisprudence in their legal philosophy. Criticism of Historical

 
  

School Many scholars criticise this school of thought. Karl Marx devoted an entire essay
in 1842 titled- "The philosophical manifesto of the historical school of law" to criticize
the historical school of law, calling it the "sole frivolous product" of the eighteenth
century

¾ Analytical jurisprudence

The scope of Analytical jurisprudence can be said as below;

i) Analysis of the legal system and legal concepts such as Right, Duty etc
(ii) Analysis of the relation between civil law and other forms of law.
(iii) Analysis of the legal structure of a state and administration of justice.
(iv) In depth investigation into the actual sources of law.
(v) Investigation of the theory of legislation, precedents and customary law.
(vi) An inquiry into the scientific arrangement of law into distinctdepartments along with
an analysis of distinctions on which the division isbased.
(vii) An investigation of the theory of legal liability in civil and criminal cases.
(viii) An examination of all other relevant legal concepts.
(ix) Worldwide legal education today owes its basis to analytical school of jurisprudence
The Utility or Use of Analytical jurisprudence lies in the fact that Analytical
school of jurisprudence explains in detail the complex legal concepts such as Law‟ itself,
State‟possession‟ etc. It provides analysis of the various legal systems of the world. It
elaborates the structure of a legal 8 system. It provides a logical basis and helps
determine the purpose of law. It provides answer to the question Why is it so?‟ It
separates law from morality. It enables lawyers and judges to interpret law with logic and
efficacy for smooth functioning of a legal system
Analytical jurisprudence was a reaction to the Natural Law Theory which was based
on morality and ethics. The main influence came from the development of science and
scientific approach. Sir Henry Maine termed this school as Analytical school. But it is
John Austin who is considered by many to be the creator of the school of analytical
jurisprudence, as well as, more specifically, the approach to law known as “legal
positivism.” Austin's importance to legal theory lies elsewhere— his theorizing about law
was novel at four different levels of generality. First, he was arguably the first writer to
approach the theory of law analytically (as contrasted with approaches to law more
grounded in history or sociology, or arguments about law that were secondary to more
general moral and political theories). Analytical jurisprudence emphasizes the analysis of
key concepts, including “law,” “(legal) right,” “(legal) duty,” and “legal validity.”

 
  

Though analytical jurisprudence has been challenged by some in recent years (e.g., Leiter
2007a, 2007b), it remains the dominant approach to discussing the nature of law.

¾ Differences between Analytical and Historical School

Historical school in its ideal condition would require an accurate record of the history of
all legal systems as its material whereas analytical school requires only the existing legal
systems. Its aim is to show how a given rule came to be what it is whereas analytical
school answers„ why it is what it is? It uses evolutionary history and hundreds of legal
systems as its subject-matter whereas analytical school examines the available subject-
matter, its structure, and rules in order to reach its principles and theories by analysis.

Q.2 Discuss the contribution of Savigny as a propounder of Historical

jurisprudence?
Ans.
¾ General

• FRIEDRICH KARL VON SAVIGNY, (born February 21,

1779, Frankfurt am Main[Germany]—died October 25, 1861, Berlin, Prussia),
German jurist and legal scholar who was one of the founders of the influential
“historical school” of jurisprudence. He advocated that the meaning and content of
existing bodies of law be analyzed through research into their historical origins and
modes of transformation. Savigny was a descendant of landed nobility who had
emigrated from Lorraine to Germany. He studied at the universities of Göttingen and
Marburg, where he received his degree in 1800 and at once took up his teaching career.
His wealth and social position enabled him to devote all of his considerable talents to
scholarly work. In 1803 he established his reputation with Das Recht des
Besitzes (Treatise on Possession; or, The Jus Possessionis of the Civil Law), a book that
was the beginning of the 19th-century scholarly monograph in jurisprudence.
In 1808 Savigny went to the University of Landshut in Bavaria as a professor of
Roman law, and in 1810 he was invited to the new University of Berlin, where he soon
became one of the most famous and influential members of the faculty. He taught there
for the rest of his career.
Savigny’s jurisprudential perspective was in part inspired by the Romantic
movement, which took the form in Germany of a movement harking back to the simplest
tribal origins of the German people, to their folk songs and tales and to their
distinctive ethos, or Volksgeist (“national spirit”). To the Romantics, the national spirit
thus became the ultimate datum to be explored in its various manifestations. From this
point of view law is not something that can be devised by means of rational formal
legislation but rather originates in the unique spirit of a particular people and is expressed
spontaneously in custom and, much later, in the formal decisions of judges. In Savigny’s
classic words, law

¾ Savingny’s Theory of Volkgeist

 
  

Savigny, a prominent German jurist through his concept of Volksgeist introduced a

new dimension in the legal arena. Savigny, also known as the pioneer of Historical
school of law through his concept of Volksgeist explains the need to understand the
interrelationship between law and people. Law and people cannot be isolated from each
other and this is well explained by Savigny’s concept of Volksgeist.

1. According to Savigny law was not something which can be made or altered arbitrarily by
law makers. The contents of law are essentially determined by the whole past of a people
so it cannot be produced ab extra by an action of a wise law giver or by some inventive
or master spirited people.
2. Law of a nation, therefore, according to Savigny, is not the product of reason or
command or will of the Sovereign but the instinctive sense of right possessed by every
race or community. In other words, law is a product of ‘internal silently operating forces’.
3. Law as such is found and not made. It is to be found in popular faith, common
convictions, customs, traits, habits, traditions which in course of time grow into legal
rules.
4. Like the language, the manners and the constitution of a nation, all law is exclusively
determined by the nation’s peculiar character which is otherwise called the Volksgeist or
spirit of the people.
5. Law cannot be universal or general in character. It is always peculiar, particular, limited-
its nature and character depending upon the peculiar, traditions of each people. Law of a
nation, likes its language, manner and Constitution is peculiar to a people. Law grows
with the growth and strengthens with the strength of the people and finally dies as the
nation loses its individuality.
6. Savigny, therefore, favoured customary law over legislations. As such he gives more
importance to jurist than legislator the former representing the national spirit, i.e.,
Volksgeist.
7. Savigny believed in the unbreakable continuity of law - from the past to the present and
future also. A law of a nation cannot be different from its past customs and traditions on
which the existing and even future law can be based.
8. Savigny considered law an inextricable part of society. He viewed law as a part of social
process and development which arises from silent forces which are not directed by
arbitrary and conscious intention but operate in the way of customary law.

¾ Savigny’sVolkgeist theory-Criticism
1. Savigny while advocating the role of evolution and growth in the development of
law his approach towards law was vitiated in the following manner:
2. He laid excessive emphasis upon the unconcious forces which determine the law of a
nation and ignored the efficacy of legislation as an instrument of deliberate, conscious
and planned social change. In modern developing societies like India legislation is being
created, enacted and used as an important instrument of social change and social reform.
As he underestimated the importance of legislation and took a pessimistic view of human
power for creation of law to bring about social change so he is criticized for his ‘juristic
pessimism’.

 
  

3. Savigny emphasized the national character of law. While advocating national character
of law he entirely rejected the study of German Law and took inspiration from Roman
Law.
4. Volksgeist itself is an abstract idea as indeterminable and vague as the natural law itself.
5. He did not encourage law reform including codification of law.
6. Modern nazism and fascism took inspiration from Savigny's Volksgeist. The idea of a
distinct, superior race, superior culture and higher civilisation led to division of world on
racial basis leading to Second World War. Its crude form is the current Islamic
fundamentalism which is dividing societies, people and States on the basis of religion
only.
7. His theory of law and society postponed the emergence of modern sociological school
because most of the sociologists like Durkheim, Ehrlich, Kohler, Weber, etc. were
confounded by the spell of Savigny’s Volksgeist which postponed the study of scientific
appraisal of society in terms of its ends and goals.
8. However, in the words of Vinogradoff Savigny’s Historical School ‘represented a
powerful social doctrine which had sprung into being in Europe’s struggle against
revolutionary rationalism as embodied in the Constitution of French Republic and
Napoleon’s Empire. Romantic in its appeal to archaic customs and national traditions,
conservative in its legal creed, the first school of historical jurisprudence entered the lists
in support of a conception of law determined by historical antecedents, by a growth of
national psychology hardly less instructive than the evolution of language itself.

Q.3 Discuss the contribution of Sir Henry Maine and explained the
theory of Status to Contract ?
Ans.
¾ General
• English Historical School
The founder of English Historical School of Jurisprudence was Sir Henry Maine
(1822-1888). His important works are Ancient Laws 1861, Village Communities in the
East 9nd West, 1871, Lectures on the Early History of Institutions, 1874; and
Dissertation on Early Law and Custom, 1883. Maine made· significant contribution to
law by indicating that there has been a parallel and alike growth and development of legal
institutions and law in the societies of the East and West up to a certain stage.

¾ Development of Law

1. Themistes (judgments):

The earliest notions connected with the conception of law is contained in the Homeric
words Themis (the Goddess of Justice) and Themistes are the awards pronounced by
judge as divinely dictated to him. Themistes are not laws but judgements or ‘dooms’. The

 
  

king happened to be the administrator of judgments-of course he was not the maker of
law as the Themistes were divinely inspired by Goddess of Justice.

2. Custom :

The next stage was reached when the office of the king or judge was usurped by the
councils of chiefs. The priests became the depositories of law who circumscribed the
king’s power and claimed the sole monopoly of knowledge. Therefore, the priestly class
attempted to preserve the customs of the race or caste intact. Since the art of writing had
not been invented so customs of the community became law for the people who were
united by blood relationship. Thus we notice a particular important phenomena - Maine’s
theory of legal development conception of customs emerging posterior to that Themistes
or judgements.

3. Era of Codes:

From a period of customary law the next stage is the era of early codes following the
discovery and diffusion of the art of writing: Most important codes of the era were
Twelve Tables of Rome. Manu's Code which were mixture of moral, religious and civil
laws. The separation of law from morality and religion is a later development.
However curiously enough law and state became more military and political in the West;
while they became more religious in the East. Codes thus provided a definite, secure and
positive basis of law against the frauds of the priestly class.

• Progressive and Non-Progressive Societies

When primitive law has once been embodied in Codes, there is an end to its spontaneous
development. Hence onward if there are changes in law they are effected deliberately and
from without with a conscious desire for improvement. A new era begins after epoch of
Codes. A distinction between stationary and progressive societies begins to make itself
felt. According to Sir Henry Maine the difference between stationary and progressive
societies is one of the great secrets of history. The stationary condition of the human race
is the rule; the progressive an exception.
In progressive societies social necessities and opinions are in advance of the law. The
law is stable and societies are progressive. The happiness of people depends on the
degree of promptitude with which the gulf is narrowed. The agencies by which law is
brought into harmony with society are three legal fictions, equity and legislation-properly
in that order.

• Legal fiction
A legal fiction signifies any assumption which conceals or affects to conceal the fact that
a rule of law has undergone alteration its letter remaining unchanged its operation being
modified. Legal fictions satisfy the desire for improvement but at the same time they do
not offend the superstition, fear and dislike of change. At a particular stage of social

 
  

development they are invaluable expedients of social progress for overcoming the rigidity
of law.

• Equity
Equity belongs to a more advanced stage than fictions. The interference with the law is
open and avowed. It is a body of law existing by the side of the original civil law,
founded on distinct principles claiming incidentally to supersede the civil law by virtue of
a superior sanctity inherent in those principles.

• Legislation
Legislation is the last instrumentality of social change. It derives its authority from an
external body or persons. Its obligatory form is independent of its principles.

¾ Status to Contract
According to Maine the movement of progressive societies has been uniform in one
respect. In the stationary societies family is the legal unit, the pater familias as its head
and other members-wife, children, slaves, cattles dependent on the head of the family and
subject to his power. Except the head of family no one has the power to enter into
contracts. The relationship between father and other family members are based on status
or position and not on contract. The son, the female, the slave has only status in the
family. In the progressive societies, however; along with legal development there is a
marked change towards the growth of individual rights. There is a disintegration of
family and dissolution of family dependency and the individual becoming the unit of
which civil law takes account. In Western Europe status of slaves was abolished and it
was superseded by contractual relation of master and servant. The tutelage of female and
children also ceased to exist in relation of husband and parents. As compared to primitive
non-progressive societies-the individual in the progressive societies became a free willing
and free thinking one with all powers to enter into contract. From this Maine concluded:
........................ the movement of the progressive societies has hitherto been a movement
from status to contract”.

¾ Maine and Savigny-Comparison

Savigny and Maine stand out as the most important jurists of Historical School of
Jurisprudence who attempted to evolve a new theory of living law based on customs and
traditions of different communities. While both of them~ approach jurisprudence from
evolutionary angle yet there are following marked differences between their respective
approaches:

1. Savigny’s theory ‘volksgeist’ made it impossible for a comparative study of law.

Savigny was confined to the study of German law while Sir Henry Maine for the first
time made a comparative study of Roman, English, Muslim and Hindu jurisprudence

 
  

which provided a corresponding development of law and legal institutions in all the
societies of the East and the West.
2. Savigny was against immediate codification of German Law because lack of political
unification of Germany. Sir Henry Maine was in favour of codification of law for he
himself was a member of the Law Commission appointed by the Government of India
after 1861.
3. Savigny was against natural law. Maine was neither in its favour nor against it.
4. Maine’s theory of law and legal institutions was more realistic, substantial and concrete
than that of Savigny.
5. Savigny was a narrow nationalist while Maine was an internationalist in outlook.
Savigny refused to borrow law from France whereas Maine advocated reception and
adoption of English law in Indian soil.
6. While both of them emphasized law as a social process but their approach towards law
was different. Savigny insisted upon intuitive unconscious forces and processes which
make the law. Maine was more of a pragmatist and sociological in his approach to law.
Maine was not against rationalising of legal development. Savigny was more
romanticist, vague and abstract about the growth of law and its development.

¾ Short Answers Questions

Q.4 Explain the contributions of Savigny ?

Ans.

The greatest German jurists of Historical School the name of Friedrich Karl Von
Savigny (1770-1861) is remembered conspicuously as the unrivalled and unchallenged
founder of Historical Jurisprudence. He was the ‘Darwin’ of Historical School of
Jurisprudence. His last published work appeared only six years before The Origin of
Species (1860) and was still alive when Darwin's work appeared. The theory of evolution
was thus not new which Savigny had already propounded. Savigny, therefore, ushered
the beginning of Historical School-his doctrines regarding law were represented in his
famous pamphlet ‘On the Vocation of Our Age for Legislation and Jurisprudence
1814’. The ‘Vocation’ appeared at a critical moment in the history of the German States-
the fate of Germany was still uncertain being decided at the Vienna Congress of 1815.
There was uncertainty in Germany about German State with its legal diversities and the
problem of political unification. These and other factors created a chain of reaction in the
minds of German legal philosophers - resulting in the founding of Historical School.

¾ Savingy’s Theory of Volksgeist

1. According to Savigny law was not something which can be made or altered arbitrarily by
law makers. The contents of law are essentially determined by the whole past of a people
so it cannot be produced ab extra by an action of a wise law giver or by some inventive
or master spirited people.

 
  

2. Law of a nation, therefore, according to Savigny, is not the product of reason or

command or will of the Sovereign but the instinctive sense of right possessed by every
race or community. In other words, law is a product of ‘internal silently operating
forces’.
3. Law as such is found and not made. It is to be found in popular faith, common
convictions, customs, traits, habits, traditions which in course of time grow into legal
rules.
4. Like the language, the manners and the constitution of anation, all law is exclusively
determined by the nation’s peculiar character which is otherwise called the Volksgeist or
spirit of the people.
5. Law cannot be universal or general in character. It is always peculiar, particular, limited-
its nature and character depending upon the peculiar, traditions of each people. Law of a
nation, likes its language, manner and Constitution is peculiar to a people. Law grows
with the growth and strengthens with the strength of the people and finally dies as the
nation loses its individuality.
6. Savigny, therefore, favoured customary law over legislations. As such he gives more
importance to jurist than legislator the former representing the national spirit, i.e.,
Volksgeist.
7. Savigny believed in the unbreakable continuity of law - from the past to the present and
future also. A law of a nation cannot be different from its past customs and traditions on
which the existing and even future law can be based.
8. Savigny considered law an inextricable part of society. He viewed law as a part of social
process and development which arises from silent forces which are not directed by
arbitrary and conscious intention but operate in the way of customary law.

¾ Savigny-Criticism
Savigny while advocating the role of evolution and growth in the development of law his
approach towards law was vitiated in the following manner:
1. He laid excessive emphasis upon the unconcious forces which determine the law of a
nation and ignored the efficacy of legislation as an instrument of deliberate, conscious
and planned social change. In modern developing societies like India legislation is being
created, enacted and used as an important instrument of social change and social reform.
As he underestimated the importance of legislation and took a pessimistic view of human
power for creation of law to bring about social change so he is criticized for his ‘juristic
pessimism’.
2. Savigny emphasized the national character of law. While advocating national character of
law he entirely rejected the study of German Law and took inspiration from Roman Law.
3. Volksgeist itself is an abstract idea as indeterminable and vague as the natural law itself.
4. He did not encourage law reform including codification of law.
5. Modern nazism and fascism took inspiration from Savigny's Volksgeist. The idea of a
distinct, superior race, superior culture and higher civilisation led to division of world on
racial basis leading to Second World War. Its crude form is the current Islamic
fundamentalism which is dividing societies, people and States on the basis of religion
only.

 
  

6. His theory of law and society postponed the emergence of modern sociological school
because most of the sociologists like Durkheim, Ehrlich, Kohler, Weber, etc. were
confounded by the spell of Savigny’s Volksgeist which postponed the study of scientific
appraisal of society in terms of its ends and goals.

Q.5 Explain the contributions of Maine?

Ans.

The founder of English Historical School of Jurisprudence was Sir Henry Maine
(1822-1888). His important works are Ancient Laws 1861, Village Communities in the
East 9nd West, 1871, Lectures on the Early History of Institutions, 1874; and
Dissertation on Early Law and Custom, 1883. Maine made· significant contribution to
law by indicating that there has been a parallel and alike growth and development of legal
institutions and law in the societies of the East and West up to a certain stage.

¾ Development of Law

1. Themistes (judgments):

The earliest notions connected with the conception of law is contained in the
Homeric words Themis (the Goddess of Justice) and Themistes are the awards
pronounced by judge as divinely dictated to him. Themistes are not laws but judgements
or ‘dooms’. The king happened to be the administrator of judgments-of course he was not
the maker of law as the Themistes were divinely inspired by Goddess of Justice.

2. Custom :

The next stage was reached when the office of the king or judge was usurped by
the councils of chiefs. The priests became the depositories of law who circumscribed the
king’s power and claimed the sole monopoly of knowledge. Therefore, the priestly class
attempted to preserve the customs of the race or caste intact. Since the art of writing had
not been invented so customs of the community became law for the people who were
united by blood relationship. Thus we notice a particular important phenomena - Maine’s
theory of legal development conception of customs emerging posterior to that Themistes
or judgements.

3. Era of Codes:

From a period of customary law the next stage is the era of early codes following
the discovery and diffusion of the art of writing: Most important codes of the era were
Twelve Tables of Rome. Manu's Code which were mixture of moral, religious and civil
laws. The separation of law from morality and religion is a later development. However
curiously enough law and state became more military and political in the West; while
they became more religious in the East. Codes thus provided a definite, secure and
positive basis of law against the frauds of the priestly class.

 
  

• Progressive and Non-Progressive Societies

When primitive law has once been embodied in Codes, there is an end to its spontaneous
development. Hence onward if there are changes in law they are effected deliberately and
from without with a conscious desire for improvement. A new era begins after epoch of
Codes. A distinction between stationary and progressive societies begins to make itself
felt. According to Sir Henry Maine the difference between stationary and progressive
societies is one of the great secrets of history. The stationary condition of the human race
is the rule; the progressive an exception.

In progressive societies social necessities and opinions are in advance of the law. The
law is stable and societies are progressive. The happiness of people depends on the
degree of promptitude with which the gulf is narrowed. The agencies by which law is
brought into harmony with society are three legal fictions, equity and legislation-properly
in that order.

• Legal fiction
A legal fiction signifies any assumption which conceals or affects to conceal the fact that
a rule of law has undergone alteration its letter remaining unchanged its operation being
modified. Legal fictions satisfy the desire for improvement but at the same time they do
not offend the superstition, fear and dislike of change. At a particular stage of social
development they are invaluable expedients of social progress for overcoming the rigidity
of law.

• Equity
Equity belongs to a more advanced stage than fictions. The interference with the law is
open and avowed. It is a body of law existing by the side of the original civil law,
founded on distinct principles claiming incidentally to supersede the civil law by virtue of
a superior sanctity inherent in those principles.

• Legislation
Legislation is the last instrumentality of social change. It derives its authority from an
external body or persons. Its obligatory form is independent of its principles.

¾ Status to Contract

According to Maine the movement of progressive societies has been uniform in one
respect. In the stationary societies family is the legal unit, the pater familias as its head
and other members-wife, children, slaves, cattles dependent on the head of the family and
subject to his power. Except the head of family no one has the power to enter into
contracts. The relationship between father and other family members are based on status

 
  

or position and not on contract. The son, the female, the slave has only status in the
family. In the progressive societies, however; along with legal development there is a
marked change towards the growth of individual rights. There is a disintegration of
family and dissolution of family dependency and the individual becoming the unit of
which civil law takes account. In Western Europe status of slaves was abolished and it
was superseded by contractual relation of master and servant. The tutelage of female and
children also ceased to exist in relation of husband and parents. As compared to primitive
non-progressive societies-the individual in the progressive societies became a free willing
and free thinking one with all powers to enter into contract. From this Maine concluded:
........................ the movement of the progressive societies has hitherto been a movement
from status to contract”.

Q.6 Compare and contrast the theories of Savigny and Maine?

Ans.

¾ Comparative study : Importance of Legislation : A balanced view

Savigny and Maine stand out as the most important jurists of Historical School of
Jurisprudence who attempted to evolve a new theory of living law based on customs and
traditions of different communities. While both of them~ approach jurisprudence from
evolutionary angle yet there are following marked differences between their respective
approaches:

Most of the historical jurists of the Continent confined their studies only to Roman law
but Maine studied the legal systems of various communities and by their analysis laid
down a comprehensive theory of the development of law. On the one hand, differing
from Savigny.. Maine recognised legislation as a veil potent source of law, and on the
other hand, he avoided the excesses of philosophical school of Germany. He used the
study of legal history mostly to understand the past and not to determine the future course
and standards, and in this field he made valuable contributions to legal theory. Though
many of the statements of Maine about primitive societies and the course of
development of ancient law have been falsified by modern researches. Modem
anthropologists have had the advantage of following the trial blazed by Maine and by
others after him with the added advantage of being able to profit from the researches of
fellow workers many directions.

1. Savigny’s theory ‘volksgeist’ made it impossible for a comparative study of law.

Savigny was confined to the study of German law while Sir Henry Maine for the first
time made a comparative study of Roman, English, Muslim and Hindu jurisprudence
which provided a corresponding development of law and legal institutions in all the
societies of the East and the West.
2. Savigny was against immediate codification of German Law because lack of political
unification of Germany. Sir Henry Maine was in favour of codification of law for he
himself was a member of the Law Commission appointed by the Government of India
after 1861.

 
  

3. Savigny was against natural law. Maine was neither in its favour nor against it.
4. Maine’s theory of law and legal institutions was more realistic, substantial and concrete
than that of Savigny.
5. Savigny was a narrow nationalist while Maine was an internationalist in outlook.
Savigny refused to borrow law from France whereas Maine advocated reception and
adoption of English law in Indian soil.
6. While both of them emphasized law as a social process but their approach towards law
was different. Savigny insisted upon intuitive unconscious forces and processes which
make the law. Maine was more of a pragmatist and sociological in his approach to law.
7. Maine was not against rationalising of legal development. Savigny was more
romanticist, vague and abstract about the growth of law and its development.

¾ Very Short Answers Questions

Q.7 Write a short note on Savigny concept of VOLKGEIST?

Ans.
Savigny’s jurisprudential perspective was in part inspired by the Romantic
movement, which took the form in Germany of a movement harking back to the simplest
tribal origins of the German people, to their folk songs and tales and to their
distinctive ethos, or Volksgeist (“national spirit”). To the Romantics, the national spirit
thus became the ultimate datum to be explored in its various manifestations. From this
point of view law is not something that can be devised by means of rational formal
legislation but rather originates in the unique spirit of a particular people and is expressed
spontaneously in custom and, much later, in the formal decisions of judges. In Savigny’s
classic words, law

¾ Savingny’s Theory of Volkgeist

Savigny, a prominent German jurist through his concept of Volksgeist introduced a
new dimension in the legal arena. Savigny, also known as the pioneer of Historical
school of law through his concept of Volksgeist explains the need to understand the
interrelationship between law and people. Law and people cannot be isolated from each
other and this is well explained by Savigny’s concept of Volksgeist.

Q.8 Write a short note on Maine’s Development of Law?

Ans

¾ Development of Law

1. Themistes (judgments):

The earliest notions connected with the conception of law is contained in the Homeric
words Themis (the Goddess of Justice) and Themistes are the awards pronounced by

 
  

judge as divinely dictated to him. Themistes are not laws but judgements or ‘dooms’. The
king happened to be the administrator of judgments-of course he was not the maker of
law as the Themistes were divinely inspired by Goddess of Justice.

2. Custom :

The next stage was reached when the office of the king or judge was usurped by the
councils of chiefs. The priests became the depositories of law who circumscribed the
king’s power and claimed the sole monopoly of knowledge. Therefore, the priestly class
attempted to preserve the customs of the race or caste intact. Since the art of writing had
not been invented so customs of the community became law for the people who were
united by blood relationship. Thus we notice a particular important phenomena - Maine’s
theory of legal development conception of customs emerging posterior to that Themistes
or judgements.

3. Era of Codes:

From a period of customary law the next stage is the era of early codes following the
discovery and diffusion of the art of writing: Most important codes of the era were
Twelve Tables of Rome. Manu's Code which were mixture of moral, religious and civil
laws. The separation of law from morality and religion is a later development. However
curiously enough law and state became more military and political in the West; while
they became more religious in the East. Codes thus provided a definite, secure and
positive basis of law against the frauds of the priestly class.

• Progressive and Non-Progressive Societies

When primitive law has once been embodied in Codes, there is an end to its spontaneous
development. Hence onward if there are changes in law they are effected deliberately and
from without with a conscious desire for improvement. A new era begins after epoch of
Codes. A distinction between stationary and progressive societies begins to make itself
felt. According to Sir Henry Maine the difference between stationary and progressive
societies is one of the great secrets of history. The stationary condition of the human race
is the rule; the progressive an exception.

In progressive societies social necessities and opinions are in advance of the law. The
law is stable and societies are progressive. The happiness of people depends on the
degree of promptitude with which the gulf is narrowed. The agencies by which law is
brought into harmony with society are three legal fictions, equity and legislation-properly
in that order.

• Legal fiction
A legal fiction signifies any assumption which conceals or affects to conceal the fact that
a rule of law has undergone alteration its letter remaining unchanged its operation being
modified. Legal fictions satisfy the desire for improvement but at the same time they do

 
  

not offend the superstition, fear and dislike of change. At a particular stage of social
development they are invaluable expedients of social progress for overcoming the rigidity
of law.

• Equity
Equity belongs to a more advanced stage than fictions. The interference with the law is
open and avowed. It is a body of law existing by the side of the original civil law,
founded on distinct principles claiming incidentally to supersede the civil law by virtue of
a superior sanctity inherent in those principles.

• Legislation
Legislation is the last instrumentality of social change. It derives its authority from an
external body or persons. Its obligatory form is independent of its principles.

Q.9 What is Primitive and Progressive Society?

Ans.

• Progressive and Non-Progressive Societies

When primitive law has once been embodied in Codes, there is an end to its spontaneous
development. Hence onward if there are changes in law they are effected deliberately and
from without with a conscious desire for improvement. A new era begins after epoch of
Codes. A distinction between stationary and progressive societies begins to make itself
felt. According to Sir Henry Maine the difference between stationary and progressive
societies is one of the great secrets of history. The stationary condition of the human race
is the rule; the progressive an exception.

In progressive societies social necessities and opinions are in advance of the law. The
law is stable and societies are progressive. The happiness of people depends on the
degree of promptitude with which the gulf is narrowed. The agencies by which law is
brought into harmony with society are three legal fictions, equity and legislation-properly
in that order.

Q.10 Explain the Maine’s theory that “the movement of the progressive
societies has hitherto been a movement from Status to Contract.”?

Ans.
The movement of the progressive societies has been uniform in one respect. Through all
its course it has been distinguished by the gradual dissolution of family dependency and
the growth of individual obligation in its place. The Individual is steadily substituted for

 
 

the Family, as the unit of which civil laws take account. The advance has been
accomplished at varying rates of celerity, and there are societies not absolutely stationary
in which the collapse of the ancient organisation can only be perceived by careful study
of the phenomena they present. But, whatever its pace, the change has not been subject to
reaction or recoil, and apparent retardations will be found to have been occasioned
through the absorption of archaic ideas and customs from some entirely foreign source.
Nor is it difficult to see what is the tie between man and man which replaces by degrees
those forms of reciprocity in rights and duties which have their origin in the Family. It
is Contract.
Starting, as from one terminus of history, from a condition of society in which all the
relations of Persons are summed up in the relations of Family, we seem to have steadily
moved towards a phase of social order in which all these relations arise from the free
agreement of Individuals. In Western Europe the progress achieved in this direction has
been considerable. Thus the status of the Slave has disappeared - it has been superseded
by the contractual relation of the servant to his mater. The status of the Female under
Tutelage, if the tutelage be understood of persons other than her husband, has also ceased
to exist; from her coming of age to her marriage all the relations she may form are
relations of contract. So too the status of the Son under Power has no true place in law of
modern European societies. If any civil obligation binds together the Parent and the child
of full age, it is one to which only contract gives its legal validity The apparent
exceptions are exceptions of that stamp which illustrate the rule. The child before years
of discretion, the orphan under guardianship, the adjudged lunatic, have all their
capacities and incapacities regulated by the Law of Persons. But why? The reason is
differently expressed in the conventional language of different systems, but in substance
it is stated to the same effect by all. The great majority of Jurists are constant to the
principle that the classes of persons just mentioned are subject to extrinsic control on the
single ground that they do not possess the faculty of forming a judgment on their own
interests; in other words, that they are wanting in the first essential of an engagement by
Contract. The word Status may be usefully employed to construct a formula expressing
the law of progress thus indicated, which, whatever be its value, seems to me to be
sufficiently ascertained. All the forms of Status taken notice of in the Law of Persons
were derived from, and to some extent are still coloured by, the powers and privileges
anciently residing in the Family. If then we employ Status, agreeably with the usage of
the best writers, to signify these personal conditions only, and avoid applying the term to
such conditions as are the immediate or remote result of agreement, we may say that the
movement of the progressive societies has hitherto been a movement from Status to
Contract.

-----------

 
  

KAMKUS COLLEGE OF LAW, GZB.

LL.B I Sem

Jurisprudence - I
IV (Natural Law School &Sociological School )
¾ (Descriptive Questions)

Q.1 Discuss the historical development of Natural Law School ?

Ans.
Natural Law Theory or Law of Nature:

¾ General
The natural law philosophy occupies an important place in the realm of politics, law,
religion and ethics from the earliest times. It has played the role of harmonizing,
synthesizing and promoting peace and justice in different periods and protected public
against injustice, tyranny and misrule. Commending the function of natural law in
liberating people from politico-legal disorder and tracing its evolution,
Blackstone observed:
“The natural law being co-existent with mankind and emanating
from God Himself is superior to all other laws. It is binding over all the globe in all
countries and at all the times and no man made law will be valid if it is contrary to the
law of nature.”
Legal thinkers have expressed divergent views regarding the extent of natural law. The
natural law philosophy dominated in Greece during 5th B.C. when it was believed that it
is something external to man. Sophists called it as an order of things which embodies
reason. Socrates, Plato and Aristotle also accepted that ‘postulates of reason have a
universal force and men are endowed with reason irrespective of race or nationality.
• Concept of Natural Law
The concept of natural law has been differently interpreted by writers at different times.
Some of them contend that natural law consists of ideals which guide legal development
and administration while others charactertises it as quest for perfect law deducible by

 
  

reason. The supporters of natural law theory believe that there is a basic element in law
which prevents a total separation of ‘law as it is’ from the ‘law as it ought to be’
¾ Classes of Natural Law
Natural Law can be studied in four classes:

1. Ancient Theory
2. Medieval Theory
3. Renaissance Theories
4. Modern Theories

1. ANCIENT THEORY

The Greek philosophers, the Sophists, Socrates, Plato and Aristotle touched either in a
purely theoretical or practical manner upon the ethical or political side of the speculation.

• Heraclitus (530-470 B.C.) was the first Greek philosopher who founded natural law
philosophy in the rhythm of events. He took fire as his fundamental physical principle
i.e. bright and dry- and he seems to have regarded this as incessantly struggling with the
dark and moist principle which is opposed to it.
• Socrates (470-399 B.C.) was great inquirer of truth and moral values and not a dogmatist.
For practical reasons he emphasized upon practical morality which he based on scientific
outlook. ‘Virtue’ he said ‘is knowledge’ and “whatever is not knowledge is sin”.
• Plato (427-347 B.C.) expounded his concept of State- the Republic wherein with perfect
division of labour Thus Plato enunciates the doctrine that justice is harmony of man’s
inner life and harmony is the quality of justice and it is achieved by reason and wisdom
over desires. In his ideal State Plato is of the view that it is the intelligent man- the
philosophers who should be the kings.
• Aristotle (385-322 B.C.)
He expanded the theory of natural law and positive law in clearer terms than his
predecessors. The purpose of State, community, law is to enable man to realise good life
that is living according to virtue. It was Aristotle who said, ‘He who bides the law or rule,
may be deemed to bid God and Reason alone rule, but he who bids man rule adds an
element of the best; for desire is a wild beast and passion perverts the minds of the rulers,
even when they are best of men. ‘The law is reason unaffected by desires’ Thus law of
reason embodies the basic principles of justice and morality which were of universal
validity and independent of time and place. For Aristotle says, ‘Of political justice part is
natural, part legal,- natural, that which everywhere has the same force and does not exist
by people’s thinking this or that; legal, that which is originally indifferent, but when it
has been laid down is not indifferent.’

• Sophists (450-400 B.C.)

Beside these philosophers a remarkable group of teachers called Sophists had also
focused on ethical and moral values in order to prepare the young men of Athens to be

 
  

efficient citizens. Instructing them in the duties of citizenship, they found it necessary to
inquire into the basis of political obligation and social morality in general.
Pound rightly observes, that to understand Greek thinking about law we must remember
four points:
a. It is the thinking of philosophers or of Orators, not of jurists;
b. It is influenced by the contrast of politically declared or politically made laws and tribal
ethical custom in what was still an undifferentiated social control;
c. Enected laws were in origin declared custom………;
d. There was a growing sense of law as a conscious product of wisdom………….”

2. Medieval Theory
The period from 12th century to mid-fourteenth century is generally reckoned as the
‘medieval age’ in the European history. This period was dominated by the ecclesiastical
doctrines which the Christian Fathers propagated for establishing the superiority of
Church over the State. They used natural theory to propagate Christianity and to establish
a new legal order and political ideology based on morals and theology. The Christian
Saints especially Ambrose, St. Augustine and Gregory propagated a view that Divine
law was superior to all other laws. According to them, all laws are either Divine or
human. Divine laws are based on nature while human laws on custom. It is the divine
nature of the natural law which makes it binding overruling all other laws. Saint
Augustine pointed out that divine wisdom was revealed in the scriptures. The moral
precepts or Holy Scriptures were in fact the principles of natural law.
According to Gierke, the medieval period Christian theology centered around two
fundamental principles, namely:-

(1) Unity derived from God, involving one faith, one church and one empire; and

(2) The supremacy of law both, divine and- made, as a part of unity of universe.

The main tenets of the natural law theory of the medieval period may briefly be stated as
follows:-

1. The supporters of the theory believed that the institution of slavery, property, state etc.
represented the evil desires because they are not the creation of nature, nevertheless, they
are necessary for preventing or limiting the vicious tendencies of men.

2. The existence of State and society is essential for the development of morals and ethical
values in man. Cicero and Seneca supported this view.

3. Law’ is the greatest binding force both for those who govern and the governed. Thus the
natural law theory accepted the supremacy of law
4. The greatest problem before the medieval legal thinkers and philosophers was the correct
interpretation of law.

They believed in two facets of the human activities, namely

 
  

(i) Worldly and (ii) Godly.

They are radically different from one another and there arises no question of conflict or
clash between the two. State i.e. ruler is supreme in the field of worldly activities whereas
Pope held supreme authority in the realm Godly activities As to the question about the
exact source of legal authority in a developed society, the majority view was that State
and law were the gift of the people who agreed to subdue themselves to their authority.

¾ Natural law – Modern Classical Era

• (The Period of Renaissance):

The natural law of the classical modern era was in essence different in form and spirit
from that of medieval age which was dominated by Church, priests and holy Christian
Saints. After Renaissance and Reformation in the 14th and 15th centuries natural law
ceased to be associated with Church or Divine God. While Renaissance destroyed
medieval feudal order by freeing individual from its clutches, the Reformation re-
interpreted the true spirit of man and his nature on the basis of Aristotlean or Ciceroian
philosophy – especially as propounded by Hugo Grotious, Hobbes, Locke, Rousseau
and Kant.
Thus natural law of modern classical period was marked by its two distinctive Thus the
role of natural law during this period was unpredictable – at times, as can be seen from
the natural law theories of Grotius, Locke and Rousseau, it was of revolutionary
character undermining the existing institutions and at other it was a shield to perpetuate
and bolster status quo as is seen in the natural law theory of Thomas Hobbes.

(1) Hugo Grotius (1583-1645)

The Dutch scholar, statesman, philosopher, jurist and diplomat was the child of
Renaissance and Reformation. He propounded a theory of functional natural law which
became the basis of his pioneering work ‘De jure Belli ac pacis,’ (Laws of War and
Peace 1625). He propagated the principles of international law which he believed to be
applicable on all states which were binding on them both in war and peace. These
common principles among nations which Grotius referred are the natural law

(2) Thomas Hobbes (1588-1679)

Hobbes theory of natural law is to be seen in the context of civil war between Protestants
and Catholics in England during 16th century causing political uncertainty and instability
and so he advocated firm and inflexible application of the laws against disorder and
conflicts. According to Hobbes, prior to ‘social contract’, man lived in chaotic condition
of constraint fear. The life in the state of nature was “solitary, poor, nasty, brutish and
short”. Therefore, in order to secure self- protection and avoid misery and pain, men

 
 

voluntarily entered into contract and surrendered their freedom to some mightiest
authority who could protect their lives and property. This led to the emergence of the
institution of the ‘ruler’ which later assumed the form of the State. Thus Hobbes was
supporter of absolute power of the ruler and subjects had no rights against the sovereign
who had to be obeyed however tyrannical or unworthy he might be. Obviously, church
also had no power or authority over the sovereign.

(1) John Locke (1632-1704):

He therefore, came out with a new interpretation of the social contract rejecting Hobbes´
earlier concept of state of nature. He stated that the life in state of nature was not as
miserable and brutish as depicted by Hobbes, instead it was reasonably good and
enjoyable except that the property was insecure. In order to ensure proper protection of
property, man entered into the ‘social contract’ surrendering only a part of his rights, and
not all the rights as contemplated by Hobbesian theory. Thus the natural rights of man
such as right to life, liberty and property remained with him and only the right to
maintain order and to enforce the law of nature was surrendered by him. The purpose of
the State and law was to uphold and ‘protect the natural rights’ of men. So long as the
State fulfils this purpose, its laws were valid and binding but when it ceases to do so, the
people have a right to revolt against the government and overthrow it.

Jean Jacques Rousseau (1712-1778):

According to Jean Jacques Rousseau, the French philosopher and jurist, the original
freedom, happiness, equality and liberty which existed in primitive societies prior to
social contract was lost in the modern civilization. Hence through De Contract Social a
new form of social organization – the State was formed to assume and guarantee rights,
liberties, freedom and equality. Thus, State and law which were one and the same thing
according to Rousseau were the product of General Will and not of reason as the jurists
in the 17th century proclaimed. According to him sovereign is not only source but the
essence of law, because the sovereign acts only by means of law. The sovereign has no
force other than the legislative power. ‘In short’ he said ‘each given himself to all, gives
himself nobody; and there is not one associate over whom we don’t acquire the same
rights which we concede to him over ourselves, we gain the equivalent of all that we lose,
and none, power the preserve what we have. By this device while the individual
relinquishing his natural rights in return received civil liberties – freedom of speech,
assembly, press, equality. As regards Rousseau’s theory of General Will (volente
generale) it was the ‘will’ of the whole community. It was the ‘general will’ instead of
right reason which became the standard of right, justice and equality. The ‘general will’,
therefore, for all purposes was the will of the majority citizens to which blind obedience
was to be given. It could never be the will of all citizens for such a thing is merely a
wishful thinking. The majority view was accepted on the belief that majority view is right
than minority view. Rousseau himself did not refer ‘general will’ as majority view but he
said that ‘general will’ is always right about the common good and common interest. As
regards his concept of law is concerned in the Chapter on Law, In other words,

 
 

Rousseau’s concept of law, general will, sovereignty, State, etc. are interchangeable
terms.

• Immanuel Kant (1724-1804):

The natural law philosophy and doctrine of social contract was further supported by
Kant and Fichte in eighteenth century. They emphasized that the basis of social contract
was ‘reason’ and it was not a historical fact. Kant drew a distinction between natural
rights and the acquired rights and recognized only the former which were necessary for
the freedom of individual. He favoured separation of powers and pointed out that
function of the State should be to protect the law. Kant’s philosophy destroyed the
foundation of natural law theories towards the end of 18th century which suffered a death
blow at the hands of Bentham in the early 19th century because of his theory of
hedonistic individualism. Kant propounded his famous theory of ‘Categorical
Imperative’ in his classic work entitled ‘Critique of Pure Reason’
Kant’s theory of ‘Categorical Imperative’ was derived from Rousseau’s
theory of ‘General Will’. It embodies two principles:-

(1) The ‘categorical imperative’ expects a man to act in such a way that he is guided by
dictates of his own conscience. Thus it is nothing more than a human right of self-
determination.
(2) The second principle expounded by Kant was the doctrine of ‘autonomy of the will’
which means an action emanating from reason but it does mean the freedom to do so
as one pleases.

In essence, Kant held that, “an action is right only if it co-exist with each and every
man’s free will according to the universal law”. This he called as “the principle of
Innate Right”. The sole function of the State according to him is to ensure observance of
law.

Distinguishing law from morality, Kant replaced the rational foundation by a

metaphysical natural law based on the obligatory force of the legal order. He argued that
law needed no foundation as it stands upon its own basis as a system of precepts imposed
and enforced by the sovereign. Kant believed that “law is the last result of human
wisdom acting upon human experience for the benefit of the public.” Therefore, he
regarded positive law as the product of human wisdom.

Natural Law – Nineteenth Century Positivism

In the 19th century the general environment was not conducive to natural law. The period
witnessed the emergence of Industrial Revolution, great scientific discoveries laissez
faire ideology both in politics and economy which urgently needed a certain, stable and
deterministic legal theory instead of fluid and reflex theories of natural law. Both
industrial innovations and scientific discoveries were based on a posteriori determinate
principles stipulating definite guidance, action and consequences. In legal theory the

 
 

overall hegemony of natural law had been overshadowed by Montesquieu’s ‘Esprit des
Lois’ in which he asserted that laws are the creature of climate, soil, environment, custom
and commerce, etc.

Indeed the cult of ‘scientific study of society’ was carried further by Jeremy Bentham,
James Mill, and John Austin etc. in England as all of them held low opinion and hatred
towards natural law. Jeremy Bentham especially coined epithets for natural law as
confusing, non-sense, abstract, etc. and concluded it as, ‘this formidable non-entity the
law of nature’ or ‘non-sense in silts’. John Austin condemned natural law as ‘ambiguous
and misleading’ ‘laws improperly so-called’ ‘laws by analogy’ denoted by the expression
‘positive morality’.

Reaction against Positivism: (Twentieth Century – Natural Law

Revival) However, both the analytical and historical approaches proved disastrous to
the cause of justice, liberty, freedom and democracy in the 20th century. Too much
insistence on positivism devoid of ideal and moral elements made it barren and soulless
leading to conflicts, injustice no longer suited to the new expectations and aspirations of
the individuals. The historical school with its overemphasis on cultural and racial
character of legal system paved way to Nazism in Germany and Fascism in Italy and
Japan responsible for First and Second World Wars. Simultaneously the perpetuation of
economic disparities within and societies gave rise to acute social and economic tensions
which required urgent solutions. All these factors made it amply clear that Austinian
positivism and Savigny’s ‘Volksgeist’ no longer can fulfil the claims of justice nor
people were willing to accept the separation of between law and morality as sought by
both the schools. Thus a tendency revived among people to seek criteria or standards
outside the governmental organs with which to measure justice and fair play. The revival
of natural law in the 20th and 21st centuries is not wholly in old form.

Rudolf Stammler (1856-1938)

Stammler was a Professor of Roman Law in various Universities and had succeeded
Josef Kohlar as Professor of Law in Berlin University and attained distinction of being a
neo- Kantian. Like Kant he rejected the natural lawyer’s identification of positive law
with just law recognizing clearly that positive law is binding independently of its
goodness or badness and that study of it is a concern of legal science. Like Kant he also
separates justice from the ethical good, the former is concerned only with external
conduct the latter with inner conduct of the individual. However, he differs from Kant’s
fundamental principle of ‘Categorical Imperative’ that a just rule must be capable of
universal application. Foe Kant had stated his ‘Categorical Imperative’ in terms of
conduct of each free-willing individual harmonious with that of all others. For Stammler
it is with the ideal of society that individual conduct must harmonious. The second
departure is in Stammler’s relativism. As early as in 1896 he insisted in his ‘Wirtchaft’
and ‘Recht’ that while the ideal of justice was absolute its application varies constantly
with the time and place what he described as ‘natural law with a changing content’ and
set out on the search for such a ‘relative’ natural law. He ridiculed the efforts of setting
out a body of unchangeable valid rules of universal application and proclaimed that there

 
  

cannot be universal rules because content of such rules is empirically conditioned and
changing with changing times and situation – what he called ‘the natural law with a
variable content’ .

Joseph Kohler (1849-1919)

Joseph Kohler, a disciple of Hegel vehemently protests against materialistic legal
interpretation as that of Ihring. He is like Sir Henry Maine historical and evolutionary
in outlook.
Kohler’s“ A unity of spirit rules mankind and evolutionary forces its way out of
universal substance………….Materialism is dead the philosophy of spirit lives”.
He again says, ‘Mankind constantly progresses in culture in the sense that permanent
cultural values are produced and law becomes a means to serve and advance cultural
values. However, Kohler is convinced of Stammler’s of natural law with variable
content. He says, ‘There is no eternal law. The law that is suitable for one period is not so
for another period, we can only strive every culture with its corresponding system of law.

Q.2 Discuss the meaning, characteristics and development stages of

Sociological Jurisprudence ?
Ans.
¾ GENERAL
Sociological Approach-Nature and Meaning
Sociological approach towards study of law was a reaction and revolt against the
analytical and historical schools both of which regarded law as self-justified and self-
contained system-the former deriving validity of law from the sovereign-the law giver
and the latter from the slow and silently flowing historical and cultural processes and
forces. The sociological approach considers law as a social fact or reality to shape, mould
and change society to sub serve its needs, expectations and goals through law. The
inter-relationship between law and society and the study of community and of social
phenomena, of group or individual interests and their realisation and fulfillment through
law is the paramount concern of law. Of course the Sociological approach to the study of
law is of recent origin.

¾ Characteristics of Sociological School of Jurisprudence :

1. Sociological jurists are concerned more with the working of the law rather than with
the nature of law. They regard law as a body of authoritative guides to decision and of the
judicial and administrative processes rather than abstract content of authoritative
precepts.
2. It considers law as a social institution which can be consciously made and also
changed, modified or retained on the basis of experience. In other words, it synthesizes
both the analytical and historical approach to the study of law:

 
  

3. Sociological jurists lay emphasis upon social purposes and social goals and
expectations which the law sub serves rather upon sanctions and coercive character of
law.
4. Sociological jurists look on legal institutions, doctrines and precepts functionally and
consider the form of legal precepts as a matter of means only to satisfy greatest good of
the greatest number.
The foremost writers who made an attempt to apply scientific methods to
social phenomena was Auguste Comte (1798-1851). He is known as the founder of
sociology as a science. He laid stress upon empirical methods such as observation and
experiment for the study of society. It is the task of sociology to provide methods, tools
and a basis for a purposeful and realistic appraisal of social phenomena which interact in
society. Darwin, Herbert Spencer and Bentham in a way directly or indirectly applied law
to man in society. Particularly Bentham’s theory of utility, i.e., the greatest good of the
greatest number has been utilised by the sociological jurists for legal reform, social
progress and general welfare. It would be useful to dilate upon the contributions made by
important jurists towards the growth and development of the Sociological School of
Jurisprudence.

Q.3 Explain the Theory of Social Solidarity?

Ans.
¾ DUGUIT’S SOCIAL SOLIDARITY THEORY
Leon Duguit (1859 -1928) was another great jurist of sociological jurisprudence in the
continent. He was professor of Constitutional Law at the University of Bordeaux. He
belonged to the age of the collectivist legislation. He developed the theory of social
solidarity at a period when the doctrine of individualism was crumbling in Europe being
replaced by a new philosophy of collectivism. Duguit was influenced by August Comte,
the noted French positivist who had expounded law as a fact and had rejected the theory
of subjective rights. Comte’s notion that ‘the only right which man can possess is the
right always to do his duty’ greatly influenced Duguit’s theory.
Duguit was also influenced by Emile Durkheim’s work ‘Division of Labour in Society’
(1893). Durkheim distinguished between two types of social solidarity, what he calls
mechanical solidarity and organic solidarity. Within early, undeveloped society, men
recognised the need for mutual assistance and the combining of their aptitudes. People
are bound together by the fact that they have shared a common conscience. Cohesion of
a kind existed which is called mechanical solidarity or solidarity by similitude. In such a
society because of the collectivist attitude, individualism would exist only at a low level.
In more advanced societies in which the division of labour was widespread, collectivism
was replaced by individualism. A strong social conscience would produce an organic
solidarity or solidarity by division of labour which reflected the functional
interdependence of men. Law is an index of social solidarity. Because law tends to reflect
different types of social cohesion, different types of solidarity produced their own forms
of law. Duguit propounded a new approach to law based on the interdependence of

 
  

individuals in social life. As life is lived today, social interdependence has become
unavoidable eg. our food, houses, clothes, recreation, entertainment etc Duguit made a
distinction between two kinds of needs of men in society. Firstly, there are common
needs of individuals which are satisfied by mutual assistance. Secondly, there are diverse
needs of individuals which are satisfied by the exchange of services. Therefore, the
division of labour is the most important fact of, social cohesion. He named it ‘social
solidarity’. With the development of free individual activities the social solidarity
develops. This ‘social solidarity’ is a fact and it is necessary for social life.

Q.4 Explain the concept of Pound’s Social Engineering ?

Ans.
Introduction
The relation between the individual, society and the State have been changing and
various theories regarding them have been propounded from time to time. In the
beginning, society was governed by customs which had only social sanction. Then came
the supremacy of the priests. After that, the secular state emerged and dominated all the
institutions. As a reaction, the importance of individual was asserted by thinkers and
philosophers. There were revolutions and political changes. The necessity of balancing
the welfare of the society and individual was realized. Society and human life always go
together. From childhood to till old age, every human being expects that his or her desire
is to be fulfilled for which their arise conflict of desires or claims which comes under the
term “interest”. It is impossible to fulfill all the desires of a human being. So to fulfill the
desires of maximum human being for the welfare of society the concept of Social
Engineering was emerged and which was coined by Roscoe Pound. Social engineering is
based on the theory that laws are created to shape the society and regulate the people’s
behaviour. It is an attempt to control the human conduct through the help of Law.

According to Pound, “Law is social engineering which means a balance between

the competing interests in society,” in which applied science are used for resolving
individual and social problems.

For the purpose of maintaining the legal framework and its proper functioning, certain
interest needs to be considered like individual interests, public and social interests, a
definition of limits within which such interests will be recognized and given effect to, and
the securing of those interest within the limits as defined.

• Theory of Social Engineering

Pound compared the task of the lawyer to the engineers. He stated that the aim of social
engineering is to build a structure of society as possible which requires the fulfillment or
satisfaction of maximum wants with minimum usage of resources. It involves the
balancing of competing interests. He called this theory as the theory of “Social

 
  

Engineering.”Here Pound has used two words i.e. “Social” which means group of
individual forming a society. The second word is “Engineering” which means applied
science carried out by engineers to produce finished products, based on continuous
experimentation and experience to get the finished product by means of an instrument
or device.

• CONCLUSION

It is concluded that law plays an important role in adjusting conflict of interests. Both
the social interest and individual interest co-exist. Both of them have equal priority.
Roscoe Pound has given the idea of Social Engineering for the American Society but this
concept is followed universally for dispute resolution. India also followed the same
concept in establishing a societal welfare. Both Judiciary and Legislators play an
important role in enacting the statutes which fulfill the various desires of human being. In
this to save society is the desires of human being grows and to fulfill their desires new
policies, strategy has been developed.

¾ Very Short Answers Questions

Q.5 Write short note on Ehrlich ‘Living Law’?

Ans.
Eugen Ehrlich – Living law

Professor Eugen Ehrlich of Austria is another sociological jurist who expounded the
organic concept of living law. Ehrlich while following the Savigny’s line of thinking
does not hang on the past but has his views on the present society. The ‘living law’ as
conceived by Ehrlich is the ‘inner order of associations’ that is the law practiced by
society as opposed to law enforced by the State. As volksgeist was the central theme of
Savigny’s theory, the ‘living law of the people’ was the pivot of Ehrlich’s theory.
The central point in Ehrlich’s theory is that ‘the law of a 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.”
The law in the formal sources, like legislation and precedent, does not reflect the actual
life of the people. By reading the Advocates Act one cannot have a full knowledge of the
actual rules of conduct observed by the legal profession. There are many norms followed
by the people and deemed binding on them which are not embodied in the law.State is an
organization of the people, but it is not the only one, there are several others like the
family, the village, the chamber of commerce, the trade union. These organizations also
have norms to regulate the conduct of individuals. They are strictly observed by the
individual because of the social pressure behind them. They also form rules of conduct
and therefore part of ‘the living law of the people’

 
 

Ehrlich says “the law is much wider than legal regulations”. He illustrated the gap
between the formal law (law in legislation and precedent) and the living law (law as it
actually lives or functions in society). A commercial usage comes into practice as a
matter of convenience and usefulness, normally it takes a long time for the court to
declare it in a precedent, and a longer time for legislation to embody it in a statute, very
probably, by that time new usage may have grown in practice. The ‘formal law’ thus lags
far behind the ‘living law’.
Friedmann says that Ehrlich theory relates law more closely to life in the society. It
concerns to present rather than the past, and tries to analyse the social function of law. In
giving too much prominence to social facts, Ehrlich has confused custom as a source of
law with custom as a type of law.
In primitive societies, customs were the laws, but in a modern society, a custom does not
become an enforceable law merely because it is observed in practice. It ignores the fact
that legislation does very often, and case law does at times, impose a new principle which
the society follows thereafter in practice, eg. Prohibition Act, and Donoghue v.
Stevenson. As the Welfare State extends its activities, new legislations are made to cover
all possible aspects of the social life

Q.6 Explain the Pound’s classification of Interests ?

Ans.
Pound classified various interests to be protected by law in three heads:

1. Private Interests / Individual Interest – Individual interests, according to Pound are

claims, or demands or desires from the point of the individual. Individual interests
according to Pound includes:

a. Personality- interest of personality consist of interests in –

• The physical person,

• Freedom of will,
• Honour and reputation,
• Privacy and sensibilities,
• Belief and opinion.

b. Domestic relations – it is important to distinguish between the interest of individuals

in domestic relationships and that of society in such institutions as family and marriage.
Individual interests include those of :

• Parents and Children,

• Husbands and Wives &

 
 

• Marital interests.

c. Interest of substance- this includes

• Interests of property,
• Succession and testamentary disposition,
• Freedom of industry and contract,
• Promised advantages
• Advantageous relations with others,
• Freedom of association, and
• Continuity of employment

2. Public Interest– Public interests according to him are the claims or demands or
desires looked at from the stand point life in politically organized society. The main
public interest according to Roscoe pound are :

a. Interests of state as a juristic person which includes

• Interests of state as a juristic person i.e. protection

• Claims of the politically organized society as a corporation to property acquired

and held for corporate purposes.

b. Interests of State as a guardian of social interest, namely superintendence and

administration of trusts, charitable endowments, protection of natural environment,
territorial waters, sea-shores, regulation of public employment and so on to make use of
thing which are open to public use , this interest seem to overlap with social interests.

3. Social Interest :Social interests are the claim or demands or desires thought of in
terms of social life and generalized as claims of social groups. Social interests are said to
include :

a. Social interest in general security -Social interest in the general security embraces
those branches of the law which relate to

• General safety,
• General health,

• Peace and order,

• Security of acquisitions and
• Security of transactions.

 
  

b. Social interest in the security of social institutions- Social interest in the security of
the social institutions include

• General security of domestic institutions,

• Religious institutions, political institution and
• Economic institutions.

c. Social interest in general morals – Social interest in general morals comprises of

prevention and prohibition of prostitution, drunkenness, gambling, etc.

d. Social interest in conservation of social resources- Social interests in the

conservation of social resources covers conservation of social resources and protection
and training of dependents and defectives, i.e. , conservation of human resources,
protective and education of dependents and defectives, reformation of delinquents,
protection of economically dependents.

e. Social interest in general progress – Social interest in general progress has three
aspects. Economic progress, political progress and cultural progress.

1. Political progress covers free speech and free association, free opinion, free criticisms.
2. Economic progress covers freedom of use and sale of properly , free, trade , free
industry and encouragement of inventions by the grant of patents.
3. Cultural progress covers free science, free letters, encouragements of arts and letters,
encouragements of higher education an learning and aesthetics

f. Social interest in individual life.- Meaning thereby each individual be able to live a human life
according to the individual’s

1. Political life
2. Physical life
3. Cultural
4. Social and
5. Economic life.

Q.7 Explain the Pound’s Jural Postulates ?

Ans.

¾ Jural Postulates of Roscoe Pound

In order to evaluate the conflicting interests in due order of priority, pound suggested
that every society has certain basic assumption upon which its ordering rests, through for

 
  

most of the time they may be implicit rather than expressly formulated. This assumption
may be called as jural postulates of the legal system of that society.

Pound has mentioned five jural postulates as follows-

1. Jural postulate I– in civilised society men must be able to assume that others will commit
no intentional aggression upon them.
2. Jural postulate II– in civilised society men must be able to assume that they may control
for beneficial purposes what they have discovered and appropriated to their own use,
what they have created by their own labour and what they have created by their own
labour and what they have acquired under the existing social and economic order.
3. Jural postulate III – In a civilized society men must be able to assume that those with
whom they deal as a member of the society will act in good faith and hence-
4. Will make good reasonable expectations which their promises or other conduct reasonably
create;
5. Will carry out their undertaking according to the expectations which the moral sentiment
of the community attaches thereto.
6. Will restore specifically or by equivalent what comes to them by mistake, or failure of the
pre-suppositions of a transaction, or other unanticipated situation whereby they receive at
other’s expense what they could not reasonably have expected to receive under the actual
circumstances.
7. Jural postulate IV– in civilized society men must be able to assume that those who
engage in some course of conduct will act with due care not to cast an unreasonable risk of
injury upon others.
8. Jural postulate V-in a civilized society men must be able to assume that others who
maintain things or employ agencies, harmless in the sphere of their use but harmful in
their normal action elsewhere, and having a natural tendency to cross the boundaries of
their proper use will restrain them and keep them within their proper bounds.

Pounds confessed that these jural postulates are not absolute but they have relative value.
These are ideal standards which law should pursue in society they are of a changing
nature and new postulates may emerge if the changes in society so warrant. Thus the jural
postulates by Roscoe pound provide guidelines for civilized life and they also seek to
strike a balance between reality and idealism as also power and social accountability of
men in the community.

-----------

 
 

 
  

KAMKUS COLLEGE OF LAW, GZB

LL.B I Sem

Jurisprudence - I
V Realistic School / Marxist/Economic theory of law.

¾ Descriptive Questions

Q.1 What are the chief exponent of the American Realistic thought
and explain the view of anyone of the thought?
Ans.
¾ American Realist thought ---
American Realist thought is the continuation of Analytical Positivism and Sociological
approach. It is analytical because they are concerned with law as it is and not as it ought
to be. Their ultimate aim is the reform of (aw, but this reform must be. preceded by
understanding of law as it is, Secondly, they view the ‘law in the perspective of
sociological factors. They visualize the effect of social condition on law as well as the
effect of law on society but they are mainly concerned with the making of law. Professor
Stone calls the Realist movement a “gloss” on the sociological approach.The Realist
movement is centered on the judge. Law is what the judges decide, and hence the
approach is essentially empirical. Law, i.e., the decisions of judges is brought by
ascertainable facts, and includes the personality of individual judges, his social
environment, the economic condition, emotions, psychology, etc.Mr. Justice Holmes
said if one wishes to know what law is one Should view it through the eyes of a bad man
who is concerned with what Will happen to him if he does certain things.

According toDias, among the new techniques, which have opened up a new vista in the
study of law; the following are the most important:

1. The Realists have attempted studies of case-law from a point of view which regards the
judgment, not as descriptive or explanatory of the decision but rather as a subsequent
rationalization by the judge in. conventional legal terminology of a decision which he has
already reached.

2. The inquiry into what judges do has opened up further lines of investigation. So the
study of personalities and the psychology of juries and judges has come in.

 
  

3. The Realists also study the different results reached by court within the framework of
the same rule or concept in relation to the variation in the facts of the cases, and the
extent to which courts are influenced in the application of rules by the procedural
machinery which exists for the administration of law.

4. Too much attention traditionally has been devoted to the decision processes in
Appellate Courts. The Realists urge that research should be broadened so as to include
the activities of lower courts and the relation between their work and those of upper
courts.

The seeds of the American Realists movement are traceable to a famous paper of Mr.
Justice Holmes in 1897. He narrates the; novel way of looking at law. “If you wish to
know what law is,” he said, “you must regard it from the point of view of a bad man,
who is only concerned with what will happen to him if he does certain thing.”Judge
Frank divided the Realists into two groups : rule-skeptics and ‘fact-skeptics’.

The rule-skeptics are those who concentrate on Appellate Courts and on the nature and
uses of legal rules.

The fact skeptics are those who concentrate on trial courts and who found the major
cause of legal uncertainty in the uncertainties of fact finding, judge Frank claimed that
the degree of legal uncertainty was far more extensive, in fact, than most legal scholars
were prepared to admit.

Q.2 Discuss the Marxist or Economic approach of law?

Ans.
Marxist Theory of Law
¾ General

By 1927 Pashukanis was rapidly moving into the dominant position within Marxist legal
philosophy and the Soviet legal profession. Simultaneously, he was partly instrumental in
launching the journal The Revolution of the Law which appeared under the auspices of
the Communist Academy. But this same period, which contained both the approaching
end of the New Economic Policy and the apex of the intra-Party debates on
collectivization and industrialization, also witnessed the first serious criticism of his
commodity exchange theory of law. The gist of this criticism – which did not yet assault
the theory as a whole, but only certain of its essential parts – was that Pashukanis had
overextended the concept of commodity exchange as the basis of the legal form. Leading
the criticism was Stuchka himself, the principal Marxist theorist of civil law – the very
source of Pashukanis’ theory. In a constructive manner Stuchka expressed part of his
criticism in the second issue of The Revolution of the Law, in an essay entitled State
and Law in the Period of Socialist Construction. Pashukanis’ essayThe Marxist

 
  

Theory of Law and the Construction of Socialism appeared in the subsequent issue,
and was directed as a reply both to Stuchka and to the swelling criticism of his own
followers in the Communist Academy. In this particular essay Pashukanis seems
successfully to have accommodated himself to the fact that the legal form was
embryonically present in pre-capitalist modes of production. In a later article he more
bluntly admitted that the basic defect of The General Theory of Law and Marxism was
that “... the problem of the transition from one socio-economic formation to another – and
particularly the transition from feudalism to capitalism ... was not posed therein with
historical concreteness”. But in both cases Pashukanis combines a sensitivity to the
pragmatic aspects of socialist construction with a resolute denial that the legal form can
be socialist in either form or content. A Marxist analysis of the problems of a general
theory of law is by no means merely an academic matter. A revolutionary epoch is
differentiated from periods of peaceful, evolutionary development by the fact that it
becomes necessary to formulate all problems in the broadest possible form. Neither
piecemeal concepts nor even a correct approach to one or another particular problem is
sufficient for revolutionary action; instead, a general orientation is required, a correct
general approach which makes possible the solution of a problem in all of its aspects.

¾ Karl Marx and Friedrich Engels

Both of them are considered to be the founders of the greatest social and political
movement which began in 19th century and flourished in 20th century as a political
philosophy in Eastern Europe which is the erstwhile Soviet Union and influenced all the
decolonized colonies of the world. Tenets of their ideology are practised in China’s
Political Philosophy.Marx’s view of state and law was co-terminus with the
understanding of society and social process. Marx’s originality of thought lies in the fact
that he synthesized almost entire philosophical thought from Aristotle to Hegel. The
sociological understanding of the society led Marx to pronounce that the desired system
should be a Communist Society based on rational planning, co-operative production and
equality of distribution and most importantly, liberated from all forms of political and
bureaucratic hierarchy. Marx condemned and rejected the state and money as Bourgeois
concept. He believed that the proletariat has a historical mission of emancipating the
society as a whole. For him, law seemed to be nothing more than a function of economy
without any independent existence.

• Classification of society into various classes:

1. The capitalists
2. The Wage Labourers
3. The land owners

 
 

He said that the conflict between various classes of the society will eventually have to be
resolved. The resolution of the conflict will take place in the shape of a Proletarian
revolution. Once this revolution takes place, it will seize the power of the state and
transform the means of production in the first instance into State property. The
earlierstate of exploitation and representative of class antagonism will be replaced by a
state truly representative of society as a whole which means taking possession of means
of production in the name of society. This would be at the same the last independent act
of the State.

The interference of the State in social relations becomes superfluous in one’s sphere after
a point of time and then ceases off itself. The government of persons is to be replaced by
a different administration that would direct the process of production. However, the
Proletarian revolution in order to reach the stage of Communism shall have to pass
through various stages.

1. Establishment of a Proletarian Dictatorship which is essential to convert the capitalist

modes of production into the Proletariat mode of production.

2. Stage of Nationalization of the property and all the capital modes of production.

3. Stage of Socialism as the property is in common ownership, the society at large shall
be responsible for the production and distribution of goods.
The production of goods in common ownership, the distribution of commodities will
have to follow “from each according to his ability to each according to his needs”.
However, inequalities will remain and hence, the need to distribute the goods will
become inevitable. The ultimate stage is that of Communism and this state he imagined
in his work called “Critique of the Gotha Program”.
He said that the Communist society will have to develop and emerge from capitalist
society and in respects, it is bound to carry with it some marks of capitalist society.
“Accordingly the individual producer will receive back what he gives to society, after
deductions for government, education, and other social charges. He will give society his
individual quota of labour. For example: the social working day consists in the sum total
of individual working days; the individual labour time of the individual producer is the
part of the social working day which he contributes; his share thereof. He will receive
from society a certificate that he has performed so much work (after deducting his work
for social funds), and with this certificate he will draw from the social provision of
articles of consumption as much as a similar quantity of labour costs. The same quantity
of labour as he will give to society in one form he will receive back in another.... The

 
  

right of producers will be proportionate to the work they will perform: the equality will
consist in the application of the same measure: labour." Higher Communist State-
Concept of power and labour gets vanished. After production force increases, then there
will be all round development of individual. This we get from “Communist Manifesto”.
In higher form of communist state after enslaving subordination of the individual to the
division of labour and anti-thesis between mental and physical labour has vanished after
labour has become not only a means of life but life’s prime want, after the productive
forces have also increased with the all-round development of individual. And all the
springs of the co-operative wealth flows more abundantly”.
He further believed that the concept of state is a super structure in a capitalist state to
organize and uphold class oppression. The bureaucracy and the executive in a state are
for the managing common class and struggle waged by the society against each other.
Law is not based on will but once the bourgeois state is overthrown by a proletariat, the
proletariat state would come into existence. This state would be representative of social
will of all the classes. The nexus between safeguarding the private property by a capitalist
state will be replaced by a proletariat state which has nationalized all the private property.
However, it is interesting to note that the state and statecraft remains an important and
integral in the proletarian society.

EvgenyPashukanis

He tried to remove the gloss on law and Marxism as experimented by the Marxist state.
He believed that proletariat law practised in erstwhile Soviet Union needed alternative
general concepts to reinforce Marxist theory of law. He believed that power is collective
will as the ‘rule of law’ realized in the bourgeois society is to the extent that the society is
represented by a market.

Karl Renner
He authored “The institutions of private law and their social functions”. This work of his
utilized the Marxist theory of sociology to develop a separate theory of law. He believed
that the Socialists and Marxists have failed to understand that new society as such
societies have pre-formed in the womb of the old and that is equally true for law as well.
According to him, the process of change from one given order to another is automatic.
Renner confessed that the concept of property in terms of Marx has not remained the
same today. The property whether in socialism and capitalism has not remained an
instrument of exploitation rather the natural forces of change have put property into
various restrictions be it tenants, employees or consumers. However, he also said that the
power of property remains whatsoever the political character of the state may be.

• CONCLUSION

In conclusion, a few remarks are in order with regard to the relationship between state
and law. On this point Comrade Stuchka warns against economism and observes a certain

 
  

lack of understanding in my positions in this connection. I cannot agree that my work

contains any lack of understanding in the sense of a concession to economism or to a
fatalistic distortion of the Marxist teaching on social development. I was making two
points. In the first place, I warned against confusing the real possibilities of state power
and the results actually achieved by it, with what is contained in the laws issued by the
state. For revolutionary periods in particular, it is important to distinguish two different
things mentioned by none other than Stuchka himself, laws which “work” and those
which “do not work”. Further, I asserted that the social division of labour and,
accordingly, the appearance of economic subjects as participants in this exchange, are
facts that are not connected in their origin with state imperatives. This is also a
proposition which would seem to be beyond question. However, these facts contain the
basic and principal prerequisite for a legal relationship. It goes without saying that the
concrete means of a given system of legal relationships are a matter of state power and
the laws issued by it. It would be absurd to deny this, but it would be even more absurd if,
in the course of analysing legal regulation as an historical phenomenon, we reduced
everything to an objective norm, to a rule as such, if we “abolished” subjective rights
without making an effort to give some thought to the real economic facts which are
concealed by this category.

¾ Short Answers Questions

Q.3 Distinguish between Scandavian and American Raelistic School?

Ans

We should, however, note that the so-called legal realists in Scandinavia and in the
United States advocated a naturalist approach to jurisprudence, and, more generally, to
the study of law, already in the 1920's and the 1930's. the Americans and the
Scandinavians alike is to be understood as a commitment to naturalism, conceived of as
the ontological claim that everything is composed of natural entities whose properties
determine all the properties of whatever it is that exists, or as the methodological (or
epistemological) claim that the methods of justification and explanation in philosophy
must, as they say, be continuous with those in the sciences, or as the semantic claim that
scientifically acceptable concepts must be analyzable in terms of natural entities. I also
argue (ii) that the Scandinavians and the Americans were more alike, philosophically and
legally speaking, than one might have thought. For, as we shall see, even though the
Scandinavians were primarily semantic and ontological naturalists, and the Americans
were mainly methodological naturalists, two of the Scandinavians (Lundstedt and Ross)
also embraced methodological naturalism and some of the Americans (Holmes, Cook,
and Cohen) also accepted semantic (and ontological) naturalism; and even though the
Scandinavians were primarily interested in the analysis of fundamental legal concepts,
and the Americans were mainly interested in the study of adjudication, some of the
Americans were also interested in the analysis of fundamental legal concepts.

 
  

Furthermore, I suggest (iii) that the commitments to different types of naturalism on the
part of these thinkers - both individually and collectively - may explain their respective
choice of primary study-object, viz. fundamental legal concepts and adjudication,
respectively. Finally, I argue (iv) that the modest version of conceptual analysis
practiced by the Scandinavians and some of the Americans does not contradict their
naturalism.

Q.4 Explain the new technique in the study of law in the Raelistic
School?

Ans

According to Dias, among the new techniques, which have opened up a new vista in the
study of law; the following are the most important:

1. The Realists have attempted studies of case-law from a point of view which regards the
judgment, not as descriptive or explanatory of the decision but rather as a subsequent
rationalization by the judge in. conventional legal terminology of a decision which he has
already reached.

2. The inquiry into what judges do has opened up further lines of investigation. So the
study of personalities and the psychology of juries and judges has come in.

3. The Realists also study the different results reached by court within the framework of
the same rule or concept in relation to the variation in the facts of the cases, and the
extent to which courts are influenced in the application of rules by the procedural
machinery which exists for the administration of law.

4. Too much attention traditionally has been devoted to the decision processes in
Appellate Courts. The Realists urge that research should be broadened so as to include
the activities of lower courts and the relation between their work and those of upper
courts.

¾ Very Short Answers Questions

Q.5 Write a Short note on Rule – Skeptic and Fact Skeptic ?

Ans.
Judge Frank divided the Realists into two groups : rule-skeptics and ‘fact-skeptics’.

 
 

The rule-skeptics are those who concentrate on Appellate Courts and on the nature and
uses of legal rules.

The fact skeptics are those who concentrate on trial courts and who found the major
cause of legal uncertainty in the uncertainties of fact finding, judge Frank claimed that
the degree of legal uncertainty was far more extensive, in fact, than most legal scholars
were prepared to admit.

Q.6 Explain the Importance of Raelistic School ?

Ans.

According to Dias, among the new techniques, which have opened up a new vista in
the study of law; the following are the most important:

1. The Realists have attempted studies of case-law from a point of view which regards the
judgment, not as descriptive or explanatory of the decision but rather as a subsequent
rationalization by the judge in. conventional legal terminology of a decision which he has
already reached.

2. The inquiry into what judges do has opened up further lines of investigation. So the
study of personalities and the psychology of juries and judges has come in.

3. The Realists also study the different results reached by court within the framework of
the same rule or concept in relation to the variation in the facts of the cases, and the
extent to which courts are influenced in the application of rules by the procedural
machinery which exists for the administration of law.

4. Too much attention traditionally has been devoted to the decision processes in
Appellate Courts. The Realists urge that research should be broadened so as to include
the activities of lower courts and the relation between their work and those of upper
courts.

Q.7 What are the views of Justice Holmes of American Raelistic

thought ?

Ans.

The seeds of the American Realists movement are traceable to a famous paper of Mr.
Justice Holmes in 1897. He narrates the; novel way of looking at law. “If you wish to
know what law is,” he said, “you must regard it from the point of view of a bad man,

 
 

who is only concerned with what will happen to him if he does certain thing.”American
Realist thought is the continuation of Analytical Positivism and Sociological approach.
It is analytical because they are concerned with law as it is and not as it ought to be. Their
ultimate aim is the reform of (aw, but this reform must be. preceded by understanding of
law as it is, Secondly, they view the ‘law in the perspective of sociological factors. They
visualize the effect of social condition on law as well as the effect of law on society but
they are mainly concerned with the making of law. Professor Stone calls the Realist
movement a “gloss” on the sociological approach. The Realist movement is centered
on the judge. Law is what the judges decide, and hence the approach is essentially
empirical. Law, i.e., the decisions of judges is brought by ascertainable facts, and
includes the personality of individual judges, his social environment, the economic
condition, emotions, psychology, etc. Mr. Justice Holmes said if one wishes to know
what law is one Should view it through the eyes of a bad man who is concerned with
what Will happen to him if he does certain things

---------