ST.

THOMAS’ COLLEGE OF LAW

(JURISPRUDENCE-1)

UNIT -1

DEFINITION OF JURISPRUDENCE

-DHANANJAY KUMAR MISHRA

It is very difficult to define term ‘jurisprudence’; However; several attempts have been
made in this context to define the term. Some of the definitions of the term ‘jurisprudence’
given by various eminent jurists as under:

Ulpian: Ulpian a Roman Jurist defines jurisprudence as “the observation of things divine and
human, the science of just and unjust.

• Dr M. J. Sethna: Jurisprudence is a study of fundamental legal principles including

their philosophical, Historical and sociological bases and analysis of legal concepts.
• Austin: Austin was the first jurist to make jurisprudence as a science. He defines
'jurisprudence' as "the philosophy of positive law." He opines that the appropriate
subject to jurisprudence is a positive law (jus positivum) i.e. law as it is (existing law,
written). In other words, jurisprudence is not a moral philosophy but it is a scientific
and systematic study of the existing, actual and positive law has distinguished from
natural, ideal or moral law.

Austin divides jurisprudence into two classes. Viz 'general Jurisprudence and
Particular Jurisprudence. According to him 'General Jurisprudence is the philosophy
of positive law. On the other hand 'particular jurisprudence is the science of any such
system of positive law as now actually obtains or once actually obtained in a
specifically determined nation or specifically determined nations.

• Holland: An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as,
“Jurisprudence is the formal science of positive law” According to him jurisprudence
should only concern itself with the basic principles of concepts underlying in any

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natural system of law. Formal science = Rules of External human conduct enforced
and controlled by a sovereign political authority.
• Gray: According to John Chipman Gray “jurisprudence is the science of law, the
statement and systematic arrangement of the rules followed by the Court and the
principles involved in those rules”, meaning that jurisprudence deals with only that
kind of law which consists of rules enforced by courts while administering justice.
• Salmond: - Jurisprudence as, “the science of the first principles of the civil law.”
Civil law = rules enforced by courts while administering justice. According to
Salmond Jurisprudence can be defined in two senses (1) in the 'Generic Sense'
jurisprudence can be defined as Science of Civil Law' and (2) in the 'Specific sense'
Jurisprudence can be defined as the science of the first principle of civil law.
• H.L.A Hart: A legal system consists of primary and secondary rules. These rules
explain the nature of law and provides key to the science of jurisprudence. By primary
rules he meant rules which impose duty while secondary rules confer powers which
provide for creation or variation of duties by removing defect of primary rules.
• Roscoe Pound: Dean Roscoe Pound defines jurisprudence as "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 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 the society.
• Dr K. C. Allen: Jurisprudence is the scientific synthesis of all the essential principles
of law.
• G.W. Paton: Jurisprudence is a particular method of study, not the law of one
country, but of the general notion of law itself.
• Julius Stone: “Jurisprudence is the lawyer's extraversion.” It is the lawyer's
examination of the precepts, ideals and techniques of the law in the light derived from
present knowledge in disciplines other than the law.

From the above definitions of Jurisprudence, it could be seen that there is no

commonly agreed definition of Jurisprudence. Each Jurist guided by his own
consciences but since the conception of the term law till the beginning of the 20th
century, a new approach to the study of law in relation to society is given. Some

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jurist, therefore, treats law as "social engineering" an instrument to bring social

change or support social change. Thus the function of law is the supplement to social
sciences.

SCOPE OF JURISPRUDENCE

There is no unanimity of opinion regarding the scope of jurisprudence. Different

authorities attribute different meanings and varying premises to law and that causes
difference opinions with regard to the exact limit of the field covered by
jurisprudence. Jurisprudence has been so defined as to cover moral and religious
precepts also and that has created confusion. It goes to the credit to Austin that he
distinguished law from morality and theology and restricted the term to the body of
the rules set and enforced by the sovereign or supreme law making authority within
the realm. Thus the scope of jurisprudence was limited to the study of the concepts of
positive law and ethics and theology fall outside the province of jurisprudence.

There is tendency to widen the scope of jurisprudence and at the present we include
what was previously considered to be beyond the provinces of jurisprudence. The
present view is that scope of jurisprudence cannot be circumcised or regimented. It
includes all concepts of human order and human conduct in state and society.
Anything that concerns order in the state and society falls under the domain
jurisprudence.

• P.B. Mukharji writes that new jurisprudence is “both intellectual and idealistic
abstraction as well as behavioristic study of man in society. It includes political,
social, economic and cultural ideas. It covers the study of man in relation to the state
and society.
• Thurman W. Arnold defines jurisprudence "as the shining but unfulfilled dream of a
world governed by reason. For some, it lies buried in a system, the details of which
they do not know. For some, familiar with the details of the system, it lies in the depth
of an unreal literature. For others, familiar with its literature, it lies in the hope of a
future enlightenment. For all, it is just around the corner”

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The view of Lord Radcliffe is that jurisprudence is a part of history, a part of

economics and sociology, a part of ethics and a philosophy of life.

• Karl Llewellyn observes - " Jurisprudence as big as law-and bigger".

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UTILITY OF JURISPRUDENCE

Julius Stone perfectly defines Jurisprudence. According to him "jurisprudence is lawyers’

extraversion". The knowledge of Jurisprudence sharpens the lawyers own technique of the
logical analysis of legal Concepts. It helps lawyers to set the law in it's proper contours by
considering the needs of the society and by taking note of the advances made in related and
relevant disciplines.

Holland observed that jurisprudence throw light on the basic ideas and the fundamental
principles of law in a given society. Therefore some of the jurists call it “eye of law”
Jurisprudence helps the judges and lawyers in ascertaining true meaning of laws passed by
the legislature by providing the rules of interpretation. To become successful lawyer or judge
jurisprudential background is necessary.

Jurisprudence is also helpful to legislators who play a vital role in the process of law making.
Study of jurisprudence helps them to understand the technicalities of the law and legal
precept. It makes their job easy and interesting.

OBJECTIVE QUESTIONS:

1. Word ‘Juris ’ means

a) Law b) Knowledge C) Command d) Order

2. Who said that ‘jurisprudence’ as the lawyer’s extraversion

a) Prof. HLA Hart b)John Austin c) Roscoe Pound d) Prof. Julius Stone

3. Who said that jurisprudence means the science of law

a) Salmond b) Prof. HLA Hart c) John Austin d) Roscoe Pound

4. Word ‘Prudence’ means

a) Law b) Knowledge C) Command d) Order

-DHANANJAY KUMAR MISHRA

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5. Who said “Jurisprudence is the formal science of positive law”

a) Holland b) Austin c) Salmond d) Allen

UNIT -2

NATURAL LAW SCHOOL

CLASSICAL SCHOOL OF NATURAL LAW

-Dhananjay Kumar Mishra

SOCRATES

It is believed that the Greeks were the first Ancients who discovered the concept of natural
law and developed its essentials. At that time in Greece, there was no political stability which
made jurists think to develop new universal principals that would tackle and control the
arbitrariness and tyranny. The philosophy developed by the Greek thinkers was that if there is
anything universally valid, that is valid by Nature for all men irrespective of time and
country. And nature is something which is outside the control of men.

ARISTOTLE

Aristotle is considered to be the founding father of natural law. In his logic, the whole world
is the product of nature. He divides the life of man into two parts, first, that the man is the
creature which is created by god and second he endowed with active reason by which he is
capable of forming his will. He also says that the principal of natural justice can be
discovered by this reason.

PLATO

Plato’s work was much inspired by subsequent speculation of natural law themes. He opined
that God gave to all men an equal sense of justice and of ethical reverence so that they can
preserve themselves in the struggle of life. He believed that the justice is a harmony of man’s
inner life and it can be achieved by reason and wisdom of man. In his ideal state each
individual is given a particular role according to his capacity.

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CICERO

Cicero believed that the law is the highest reason which derives its authority from Nature. He
opined that there is divine reason inherent in the universe which sometimes can be more or
less identified with the physical ordering of the universe. Man is the highest creation by
virtue of his faculty of reasoning and his welfare is the ultimate purpose of his creation, thus
this reason commands what ought to be done and what ought not be done. It is reason of the
man by which the sense of justice and injustice can be measured.

NATURAL LAW IN MEDIEVAL PERIOD

During the middle ages, the theological and philosophical ideas of catholic church Inspired
by the speculative thoughts and set up their own theory of Natural law. It was the time when
there was no political stability in a world emerging from the dark ages. The struggle was
beginning between the church and the state and there was the need for the church to establish
its supremacy. With a view to establish stability many catholic philosophers and theologians
came up with their theories that were more logical and systematic. Thomas Aquinas was the
most influential writer with the traditional approach to Natural law and his famous work was
the Summa Theologica.

Thomas Aquinas

The core concept of the theory of Thomas Aquinas was the connection between means and
ends. According to him there is a relation in nature of things between a given operation and
its result. There is a tendency to develop in a certain way is inherent in things. Fire burns but
it does not freeze. However, the human mind can appreciate the relation between the means
and ends. He can himself choose a particular end and devise means of achieving and law
consist means of achieving the ends.

He defined law as “an ordinance of reason for the common good made by him who has the
care of the community and promulgated”. Further he divided law into four categories.

• Eternal Law ( Lex aeterna)

• Natural Law (Lex Naturalis)
• Divine Law (Law of Scriptures)
• Human Laws (Lex Humana)

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According to him eternal law as unchangeable law, natural law was that part of eternal law
which can be revealed by reason as he stated that man is a rational animal and he can decide
what is good by reflecting his own impulses and nature. Divine law is eternal law revealed
through scriptures and the church has the authority to interpret it. Human laws are the laws
made by the state with the purpose of safety and wellbeing of the men. However, these laws
must be in conformity with the natural laws.

If the human law is contradictory with natural law then it is unjust law as he gave the phrase
“Lex iniusta non est lex” an unjust law is not a law, and such unjust laws need not to be
followed. Hugo Grotius set up a new dimension of natural law. He states that natural law is
so immutable even it cannot be changed by god that means natural law is independent from
every divine force and it would exist if there were no God. According to him natural law is
depend upon the nature of the man and he called human nature as the grandmother, natural
law the parent and positive law the child. He also emphasized on the sovereign authority
which is formed by the individuals whose nature is to form an intellect desire a peaceful
society and from that are derived the principles of natural law.

THE PERIOD OF RENAISSANCE AND REFORMATION

The period of Renaissance and revolutions in Europe and America pave the way for the
spiritual emancipation for the individuals. Political absolutism needed a legal justification of
its claim over unlimited authority over the people. The legal construction used by the
individuals in the political struggle was that of social contract.

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Hobbes

Hobbes understood natural law not certain ethical principles but the law of nature based on
observation and appreciation of human nature. According to him the chief principle of natural
law was the right of self-preservation. In his state of nature man lived in a chaotic state and
his life was under fear and selfishness. In that state of nature there was perpetual and
devastating warfare which threatened everyone. Under these prevailing circumstances,
natural reason dictated to man the rule of self-preservation for which he tried to escape from
the state of permanent insecurity. Resulted to which they surrendered all their natural rights
to a single person whom they promised to obey unconditionally. The principle of self-
preservation means man has natural desire for security and order. Law of nature can be
discovered by reason which says what a man should do or not to do. During his time the
England was under the civil war and this situation convinced him of a great importance of
state authority which he wanted to be vested in an absolute ruler.

Locke

John Locke’s state of nature was state of peace, goodwill, mutual assistance and preservation
which was contrary to Hobbes’ state of nature. He was in favour of individualism and
therefore According to him, Natural law gives more power to individuals than the
sovereign. According to him individuals’ natural rights are inalienable; among them the
right to property was foremost. In his state of nature men had all the rights which nature
could give them. But they did not have an organisation which could regulate these rights.
According to him the right of private property existed prior to any social contract. With the
purpose of protection of property men entered into a social contract. Under this contract they
surrendered only a part of their rights in order to maintain law and order in society. Some
natural rights like right to property, liberty and life were vested in the individuals.

Rousseau

According to Rousseau social contract is the hypothetical construction of reason. In his state
of nature every individual a free life of a savage. He neither knew right nor wrong and there
was no private property, no jealousy and no competition. There was innocence everywhere.

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However, this state of affairs did not last long. In due course of time people started to think
about their possessions and the differences between the rich and poor came into picture which
became the reason of inequality.

In order to tackle these problems, people entered into a contract in which they surrendered
their rights to the community as a whole. Hence, the right of the individual were the rights of
the community. Rousseau’s emphasise was on the general will of the society and the
sovereign power was bound to do that which was in common good of the society.

In order to tackle these problems, people entered into a contract in which they surrendered
their rights to the community as a whole. Hence, the right of the individual were the rights of
the community. Rousseau’s emphasise was on the general will of the society and the
sovereign power was bound to do that which was in common good of the society.

Decline of Natural Law

In 18th century the social contract theory saw its decline. Natural law theory was reflected by
the economic and political changes which had taken place in Europe. These new changes and
developments required concrete and political solutions. The stupendous growth of natural
science and new political theories gave strength to empirical methods and rejected deductive
methods. There were many historians and philosophers who rejected natural theory by saying
that it was just a myth.

Hume showed that the reason understood in the system of natural law was based on
confusion. And neither values nor justice are inherent in nature. According
to Bentham natural law is nothing but a phrase. He criticised natural law and called it “simple
and rhetorical nonsense”. His view regarding the principle of equality was negative as he
said that “Absolute inequality is absolutely impossible” and absolute liberty is directly
repugnant in any kind of government. Austin was also against natural law theory and
according to him it was ambiguous and misleading. He says that all the natural rights of the
individuals were created and regulated by the state and the state did not originate in a social
contract.

-DHANANJAY KUMAR MISHRA

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UNIT-3

ANALYTICAL SCHOOL OF JURISPRUDENCE

John Austin

John Austin (1790-1859) worked as a lecturer at the University of London. He used the
analytical technique – ‘Law should be rigorously examined and evaluated, and the principle
underlying it should be discovered’ and limited his research to Positive law that is Jus
positivism (‘Law, simply and strictly so-called: Law set by political superiors to political
inferiors’). As a result, he used the terms “analytical,” and “positivism,” to describe the
school he formed, therefore, the Analytical school of jurisprudence is also known as
Analytical Legal Positivism. Being the father of the Analytical school, his lectures got
published under the title, “the Province of Jurisprudence Determined”.

Austin defined law as “a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him”. According to him, ‘proper law’ encompasses
God’s law, Human laws, and Positive laws. Laws by analogy and laws by metaphor are two
types of ‘improperly’ named laws. Austin claims that “Positive morality” comprises laws not
imposed by men (as political superiors) or in the pursuit of a legal right, as well as laws
imposed by analogy, such as fashion laws. He further stated that the improper laws were not
sanctioned by the State.

Law = Command + Sanction + Sovereign

Austin noted that every law, properly referred to as such, must have three elements, namely,
command, sanction, and sovereign authority thereby intending to say that “law is the
mandate of a sovereign, ordering his subjects to do or refrain from specific actions. If the
command is not followed, there is an implied threat of punishment”.

A ‘command’ is a declaration of a specific individual’s or group’s wish that another person

does or refrain from doing anything that would result in evil in the case of disobedience, i.e.
‘sanction.’ As a result, every law is a command that imposes a responsibility and is enforced
by punishment. A command, according to Austin, can be specific (directed to a single
individual or group of people) or universal (issued to the whole community and informing
classes of acts and forbearances, they are often referred to as ‘continuous orders’). A specific
command is effective when the individual or group being commanded obeys it whereas a

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general command is successful when the majority of a political society obeys it on a regular
basis.

According to Austin ‘if a definite human superior not in the habit of obedience to a similar
superior gains habitual obedience from the mass of a given society, that determinate superior
is the sovereign in that society’. As a result, the fact of obedience is the foundation of
sovereignty. The sovereign’s power is unrestricted and indivisible (there is no separation of
powers). The sovereign is not constrained by any legal restrictions or their own laws.

Only the legal systems of civilised nations may become the legitimate subject matter of
jurisprudence, according to Austin’s conception of law as the “command of the sovereign,”
because the sovereign can only execute their orders with an efficient administrative apparatus
in such societies. Customs are not taken into account in Austin’s definition. Austin believes
that there are three types of law that, while not commands, may be included in the scope of
jurisprudence as an exception, namely declaratory or explanatory laws, Laws of repeal and
Laws of imperfect obligation (no sanctions attached). According to him, Constitutional law
derives its force from a public opinion regarding its expediency and morality.

Criticism of Austin’s theory:

1. Austin’s thesis is questioned since punishment isn’t the only way to get people to
obey. The concentration on punishment as a mark of law in Austin’s theory
obscures and distorts the true nature and purpose of law in a community. He
dismisses law as a man-made construct, ignoring its characteristic of organic
growth. As the community accepts the law, it is followed. In modern times, the law
is nothing more than the people’s collective will. Furthermore, the Constitution’s
norms and conventions control the conduct of the people and the State, despite the
fact that they are not enforceable by law. Furthermore, court judgments
(precedents) become binding laws despite the fact that no one has commanded
them.

2. Austin’s difference between positive law and positive morality, according to Justice
Holmes, is to keep notions of virtue and badness out of the sphere of law. According
to Austin’s positive law, there is no place for ideals or justice in law, because “the
existence of law is one thing, its merit and demerit another. A law that actually exists,

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is a law, even if we happen to dislike it or if it differs from the text by which we

regulate our approval or disapproval.” Austin’s approach disregards laws that are
permissive and grant privileges (eg the Bonus Act, Law of Wills). Bryce had observed
that “Austin’s contribution to legal research is so meagre and mired in mistakes, that
his work ought no longer to find a position among those required for students.
3. The concept of command, according to Duguit, is inapplicable to modern
social/welfare law, which does not order individuals but confers advantages, and
which binds the State rather than the person. Law does not only issue instructions, it
sometimes grants rights, such as the right to form a will. As a result, Austin’s legal
idea is manifestly inapplicable in today’s democratic welfare state. In India, for
example, it is impossible to find a single sovereign who can be said to have
unrestricted and absolute power to establish laws. Austin’s idea may be extended to
the highest British Parliament (there is no division of power in England into different
organs of State that is the legislature, executive and judiciary)

4. Prof Hart had remarked to Austin that “however, the explanation of precisely where
and why he is incorrect has proven to be a continual source of enlightenment, for his
faults are frequently the misinterpretation of essential facts for the comprehension of
law and society”. According to him, the Austinian formula specifies one crucial
requirement, namely that if laws impose responsibilities or duties, they must be
‘usually followed.’ However, although necessary, this merely accounts for the legal
system’s “final result.” The overwhelming evidence against Austin should not hide
the reality that law is made up of prescriptions for behaviour, which are frequently
expressed in the imperative form.

Kelsen’s concept of law

Hans Kelsen (1881-1973), a member of the ‘Vienna School’ of legal philosophy, offered a
pure theory of law, that is, a theory-free of social, historical, political, psychological, and
other influences thus omitting everything that is not technically law and logically self-
supporting. The law is a normative (‘law as a coercive order’) rather than natural science, and
it comes with punishments. The test of legality can be found inside the legal system itself. He
described the law as “a set of rules governing human behaviour.” Laws, according to Kelsen,
are ought propositions, or ‘norms’. If X occurs, then Y should occur. As a result, if someone

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steals, the individual should be penalised. Law does not seek to describe what occurs in
reality (‘is’), but rather only prescribes a set of principles. An act of volition has a legal
meaning called a norm. It refers to the act of commanding, permitting, or authorising specific
behaviour.

A norm is valid only because it is derived from or decreed by a higher standard. This requires
a ‘ladder of norms,’ with one norm legitimate based on the validity of another norm. There
are also ‘dependent’ or facilitative norms that do not coerce people (for example, the right to
write a will, the President’s authority and the use of force in self-defence). The so-called
“independent” norms are actually coercive norms. The dependent norms are dependent on
their validity on the independent norms (e.g., Section 299 of the Indian Penal Code,
1860 derives its validity from Section 302). As a result, the legislation does not have an
exclusively commanding or obligatory nature.

The law is a set of behavioural standards that may be traced back to a grund norm, or
fundamental norm, from which they gain their legitimacy. The grund norm must be effective,
that is, people must have trust in it, otherwise, a revolution will occur. There will always be
some type of grund norm in any legal system, whether it is in the shape of a Constitution or a
dictator’s will. The grund norm will be that the ‘Constitution needs to be observed’ when
there is a written Constitution (for eg in India, USA). Where there is no written Constitution
(like in the United Kingdom), the grund norm must be derived from social behaviour. The
grund norm of international law is the concept ‘pacta sunt servanda’ (treaty duties bind
parties).

While the validity of norms issued from it is accounted for by the grund norm, one cannot
account for one’s own validity by referring to another norm. Its validity cannot be objectively
evaluated; rather it must be assumed or pre-supposed. It searches for evidence of its own
legitimacy in areas other than the law. It does, however, confer legality as long as the legal
order is ‘by and large effective.’ It should secure a minimum efficacy, and when it loses the
support of the people, it should be replaced by another grund norm.

No theory of justice can form part of the pure theory of law. Kelsen painted a formal,
scientific, and dynamic picture of the judicial system. He has had a significant impact on
modern legal philosophy. Kelsen’s idea has been vigorously maintained by eminent jurists
such as Stone and Friedmann

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Criticism surrounding Kelsen’s theory

Kelsen’s thesis is criticised because he believes that a legal order is lawful if it is successful,
regardless of whether it is an illegitimate rule enacted by unconstitutional means. This
suggests that law is a system of external coercion, in which individuals are compelled to
follow laws. The effectiveness of a grund norm does not always imply that legislation is
valid. Kelsen does not specify a criterion for determining grund norm’s minimal efficacy.
The grund norm only generates or verifies a legal or tier, but it does not offer content to a
legal order. The courts are responsible for determining the grund norm standard and
determining the legitimacy and efficacy of a legal order. Kelsen’s assumption that all norms
save the grund norm are pure was disputed by Julius Stone. He claimed that other norms that
take their legitimacy from grund norm cannot stay pure when grund norm is a composite of
many social and political variables. He had said that ‘we are invited to forget the illegitimacy
of the ancestor in admiration of the pure blood of the progeny.’

Hart’s concept of law

Professor Hart (1907) is often recognized as the most prominent exponent of British
positivism in the modern era. He criticised Austin’s thesis in his noteworthy work “The
Concept of Law.” Hart observed that “law consists of norms with a broad applicability and
non-optional nature, yet which are susceptible to formalisation, legislation, and
adjudication”. He said that law is a collection of social norms (rules derived from social
pressure) that take on the form of legal regulations. The term ‘law’ refers to a set of “publicly
ascertainable regulations.” According to Hart, the law is the same as a legal system. A ‘legal
rule’ is one that establishes a code of behaviour that is followed with the expectation. The law
establishes a standard of behaviour, not a demand. This norm is followed not just because
there is a sense of duty to do so, but also because others are expected to do so as well. As a
result, even though a person cannot be forced to respect the law, he or she is nevertheless
considered to have a duty to do so. As a result, the law is more concerned with duty than with
coercion. A related concept to a ‘responsibility’ is an obligation.

According to Hart, the concept of duty signifies that a rule is accepted by the people (i.e., it is
internalised) rather than habitually obeyed (as defined by Austin). There is a distinction
between internal and exterior elements of regulations. The former means “having a

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responsibility” (without force), whilst the latter entails “being obligated” (under a
compulsion). According to Hart, Austin’s predictive theory ignored internal features of rules
and only dealt with exterior ones. There are two sorts of rules, according to Hart. The main
rule establishes norms of conduct or imposes obligations (for example, international law),
whereas the secondary rule determines, introduces, eliminates, or modifies the primary rule.
Power-conferring rules, public or private, are the secondary rules (e.g. statutes, constitution).
The ‘rules of recognition,’ which give authoritative criteria for determining main norms of
duty, are developed from these. The ‘ultimate rule of recognition’ is the last requirement for a
legal order’s legality. A legal system’s core is made up of the union of main and subsidiary
rules. A civilisation ruled solely by fundamental laws (i.e., a simple primordial society) is
inefficient, stagnant, and unpredictable. The legal order must be effective, which means that
citizens must follow main norms and authorities must follow secondary regulations. These
two requirements are both essential and sufficient for a legal system to exist.

Hart created a theory of law in which official behaviour plays a fundamental role. Some of
the “puzzles” associated with the concept of legal validity, according to Hart, address the
relationship between the validity and efficacy of legislation. When a rule meets all of the
conditions set out by the rule of recognition, it is considered to be “valid.” When people
follow the rules, they are called to be ‘effective.’ It is not necessary for an ultimate rule of
recognition to be legitimate, but it should not be ignored, i.e. it must be effective (officials
must obey it).

Objective Type Questions

1. Austin’s theory of law can be found in his work titled `Province of Jurisprudence
Determined’, through which he meant to convey the idea that ____________?
(a) the subject matter of jurisprudence was large till then
(b) the applicability of laws differed from province to province
(c) the subject matter of divine laws etc. do not fall within the purview of jurisprudence
(d) the subject matter of divine laws etc. fall within the purview of jurisprudence

2. The chief exponent of Command Theory of Law was:

(a) Salmond

(b) Austin

-DHANANJAY KUMAR MISHRA

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(c) Holland

(d) Paton

3. Who has written the book “Concept of Law”?

a) Bentham

b) Austin

c) Hart

d) Holland

4. Who had propounded the theory of ‘Grund Norm’

a) Holland

b) Kelsen

c) Bentham

d) Ulpian

5. Who said that “law is normative science”

a) Kelsen

b) Oppenheim

c) Hart

d) Salmond

Revival of Natural Law

Western society was completely shattered after the First World War. There was no stability
and the need for an ideal of justice was arisen. Theories of positive law completely failed to
solve new problems created by the changed social conditions which resulted natural law
theory was revived. The emergence of ideologies such as Fascism and Marxism also led to
the revival of natural law theories.

-DHANANJAY KUMAR MISHRA

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This revived natural law is relative not abstract and unchangeable and concerned with
practical problems not abstract ideas. This new theory of natural law deals with various
human ideals. Therefore, it is called “natural law with variable content.

- Unit 4

HISTORICAL SCHOOL OF JURISPRUDENCE

Savigny

Savigny is regarded as a father of the Historical school. He argued that the coherent nature of
the legal system is the usually due to the failure to understand its history and origin.
According to him, the law is “ a product of times the germ of which like the germ of State,
exists in the nature of men as being made for society and which develops from this germ
various forms, according to the environing the influences which play upon it.”

Savigny believes that the law cannot be borrowed from outside. And the main source of law
is the consciousness of the people. He was of the view that the law of the state grows with the
strengthening of the state nationality and law dies or fade away when nationality loosens its
strength in the state. He was of the view that the law of the state grows with the strengthening
of the state nationality and law dies or fade away when nationality loosens its strength in the
state.

Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the
product of general consciousness of the people or will. The concept of Volksgeist was served
as a warning against the hasty legislation and introduce the revolutionary abstract ideas on the
legal system. Unless they support the general will of the people. Basically, Savigny was of
the view that law should not be found from deliberate legislation but should be made and
arises out of the general consciousness of the people. Sir Henry Maine was the founder of the
English Historical School of Law.

-DHANANJAY KUMAR MISHRA

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Savigny’s views of Historical school was carried forward in England by Sir Henry Maine.

• The first work of Maine ‘Ancient Law’ was published in 1861.

• He also wrote Village Communities (1871)

• Early History of Institutions (1875)

• Dissertations of Early Law and Custom (1883)

Maine studied the Indian legal system deeply as he was law member in the Council of the
Governor–General of India b/w 1861 to 1869. Maine’s ideas were incorporated by the best
things in the theories of Savigny and Montesquieu and he avoided what was abstract and
unreal Romanticism.

Maine favored legislation and codification of law, unlike Savigny

Four Stages of development of Law

First Stage

Rulers are believed to be acting under divine inspiration. And the laws are made on the
commands of the rulers. For example, Themistes of ancient Greek. The judgment of the king
was considered to be the judgment of God or some divine body. King was merely an
executor of judgments of God, not the law-maker.

Second Stage

Then the commands of King converted into customary law. The custom prevails in the ruler
or majority class. Customs seems to have succeeded to the right and authorities of the king.

Third Stage

The knowledge & administration of customs goes into the hands of a minority, Due to the
weakening of the lawmaking power of the original law-makers like Priests the knowledge of
customs goes into the hands of a minority class or ordinary class. And the ruler is superseded

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by a minority who obtain control over the law. Fourth Stage- In the fourth and last stage, the
law is codified and promulgated.

Static and Progressive Society

Static Society

Societies which does not progress and develop their legal structure after the fourth stage of
development of law are Static society. Static societies don’t progress beyond the era of
codes.

Progressive Society

Societies which go on progressing after the fourth stage of development of law are
Progressive Societies. They develop their laws with the help of these instruments.

UNIT-5

SOCIOLOGY SCHOOL

The main subject matter of sociology is Society. Sociology is the study of society, human
behavior, and social changes. And jurisprudence is the study of law and legal aspect things.
The Sociological of school of Jurisprudence advocates that the Law and society are related to
each other. This school argues that the law is a social phenomenon because it has a major
impact on society.

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used
by the Comte and he described Sociology as a positive science of social facts. He said that
Society is like an organism and it could progress when it is guided by Scientific Principles.
Thus, he makes great efforts to use the law as a tool by which human society maintains itself
and progresses.

-DHANANJAY KUMAR MISHRA

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Roscoe Pound

Theory of Social Engineering

Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the
Engineers. Engineers are required to use their engineering skill to manufacture new products.
Similarly, social engineers are required to build that type of structure in the society which
provides maximum happiness and minimum friction.

According to Pound, “Law is social engineering which means a balance between the
competing interests in society,” in which applied science is used for resolving individual and
social problems.

Social Engineering is the balancing the conflicting interest of Individual and the state with the
help of law. Law is a body of knowledge with the help of law the large part of Social
engineering is carried on. Law is used to solve the conflicting interest and problems in
society.

He mentioned that everybody has its own individual interest and considered it supreme over
all other interest. The objective of the law is to create a balance between the interests of the
people. For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and
expression’ but on the other side, State put some restriction on this right. And when the
conflict arises between Individual right and State’s restriction, then the law comes to play its
part. And solve the conflict between the interests.

Interest Theory

Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the
overlapping of the interests, he put boundaries and divide the kinds of interests.

These are claims or demands involved from the standpoint of the individual life which
consists of interest of personality, interest in domestic relations and interest of substance

-DHANANJAY KUMAR MISHRA

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Public Interest

These are the claims or desires asserted by the individual from the standpoint of political life
which means every individual in a society has a responsibility towards each other and to
make the use of things which are open to public use. Interest in the preservation of state

Social Interest

These are the claims or demands in terms of social life which means to fulfill all the needs of
society as a whole for the proper functioning and maintenance of it. Interest in the
preservation of general peace, health, security of transaction’s, preserving social institutions
like religion, politics, economic.

Jural Postulate : Roscoe Pound mentioned the five Jural Postulate and mentioned that the
interest mentioned in these jural postulates should be protected and nourished.

Criminal: An interest of protection from any intentional aggression. For Example, Assault,
Wrongful restraint, Battery, etc.

Law of Patent : An interest of securing his own created property by his own labour and hard
work. E.g. agricultural land, any music or artistic things.

Contract: The interest in making the contract and getting of reasonable remedy or
compensation when his right violate.

Totrs: Protection against Defamation and unreasonable injury caused by the negligent act of
another person.

Strict Liability: Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury
caused by the things of another person. It is the duty of other people to keep his/her things
with his/her boundary and should look after that thing to avoid injury to other people.

-DHANANJAY KUMAR MISHRA

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Leon Duguit: Leon Duguit was a French Jurist and leading scholar of Droit Public (Public
Law). He was greatly influenced by the Auguste Comte and Durkheim. He gave the theory
of Social Solidarity which explain the social cooperation between individuals for their need
and existence.

SOCIAL SOLIDARITY

Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength,
cohesiveness, collective consciousness and viability of the society.’ Leon Duguit’s Social
Solidarity explain the interdependence of men on his other fellow men. No one can survive
without the depending on other men. Hence the social interdependence and cooperation are
very important for human existence.

The objective of the law is to promote Social solidarity between individuals. And Leon
Duguit considered that law as bad law which does not promote social solidarity.

Further, he also said that every man had the right and duty to promote social solidarity. For
Example, in India, the codified laws are followed by everyone. Hence, it promotes Social
Solidarity.

UNIT-6

AMERICAN MODERN REALISM

In reality, there is no such thing as a realistic school. ‘Realism’ is a term for a movement in
law that includes both thinking and action, relating to the world as it actually operates. In the
Realist school of jurisprudence, the law is studied in its real workings, rejecting the usual
concept that it is a collection of rules or principles. Rather than being defined by a set of
rules, the law is defined by the judge’s decision.

-DHANANJAY KUMAR MISHRA

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Realists, sarcastically define law as a good reason for a bad man. Simply stated, the bad guy
cares nothing about legal theory and is solely concerned with the practical implications of his
actions. Analytical and social jurisprudence together up the realism school of jurisprudence.

Analytical and sociological schools are combined in the realist school of jurisprudence,
analytical which is the judgment delivered by judges in the court, and sociological because of
the influence of judges-made legislation on society.

John Chipman Gray

John Chipman Gray is regarded as one of the “founding fathers of the realist movement” and
is credited with inventing the term “realist.”

According to Gray, the court, rather than the legislature, is the most significant source of the
law. According to him, a judge’s mentality and bias play a significant impact in his decision-
making. He laid the groundwork for a more critical approach that continued to emphasize the
role of non-logical variables in making judgments. According to Gray, the courts are the ones
who give life to the statue’s words.

Oliver Windell Homles (1841-1934)

He made a point of stressing that the practice of law was a combination of both experience
and logic. Known for his “bad man’s theory,” Holmes saw law from the standpoint of
someone who would commit a crime. As he sees it, the law is for the criminals or the “bad
man”. To evaluate what the law really is, one should go to a bad person’s interpretation of it,
since they will be able to accurately calculate what the laws enable them to do and work
within those bounds. His emphasis was on the practical and empirical aspects of the law. The
primary goal of studying legal history was for him to begin the process of re-evaluating the
value of laws that had been formed through time. There must be a clear separation between
law and ethics. Holmes’ vision of law put both court and professional lawyers at the center of
the legal stage.

-DHANANJAY KUMAR MISHRA

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Jerome N. Frank (1889-1957)

There are two kinds of realists, Frank said. While one group is skeptical of legal standards
ensuring consistency in the law, the other group is skeptical of the establishment of facts
before the trial court. Frank admitted that he belonged to the second group.

Frank focuses on the unpredictability of the legal system. He argues that rules and written law
are based on the false assumption that the law should be clear. He said that judges and
practitioners should recognize the reality that the law is ambiguous and should not rigorously
stick to precedent and defined rules. He emphasized the necessity of lawmaking by
examining the facts of each case in light of the changing societal contexts.

Carl N. Llewellyn (1893-1962)

The term “realism” refers to a shift in legal thinking and practice. When it comes to this
approach, legislation is seen as a tool for achieving social goals, and every aspect of the
system must be examined for its purpose and impact. Society’s view of the world changes
more quickly than the law does. Realists are skeptical of established legal principles and
concepts. It focuses more on what the courts and individuals are really doing. According to
Realism, the law is defined as “a broad prediction of what the court will do.”

UNIT -7
ECONOMIC APPROACH OF LAW

Marxist Economic Approach of Law: Karl Heinrich Marx (1818-1883), more than
proceeding a sophisticated theory of judicial decision making or baffling over the nature of
law, Marxist jurisprudence prepossess an analysis of liberal capitalist commencements of
law. As a section of its general discouragement of bourgeois consciousness, Marxism seeks
to establish the legitimating purposes of law as a contributor to ideological misrepresentation
and as a solidifier of the political status quo. Therefore, there is not so much a Marxist theory
of law as there is a Marxist revealing of law’s alleged unsavory contribution in domination

-DHANANJAY KUMAR MISHRA

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and oppression. This article will cover the concept of Marxist Jurisprudence, assumptions of
Marxist legal theory, and setback.

Marxist Jurisprudenceis a subject that has flourished considerably in law. If we compare

then its quite clear that Marxist analysis of law gives extra weight on the power of economic
influences in society rather than on then the concept of an impartial, neutral Rule of Law.
Marxists consider that the significant forces of a society with those who have authority over
these forces shape the society’s legal system.

Marxist theory of law: In the Marxist theory of law, there are three basic assumptions. The
first one is that law is the product of economic forces. Marx said that the way you work will
shape your law and other institutions. He believed in the ‘two-level model’ in which
‘economy’ was the ‘base’ and law as well as other institutions were in the ‘super-structure’.
Marx was of the opinion that the most important sphere of relations to consider was the
relations of economic production. However, Engels admitted that the various components of
the superstructure, including the institution of the law and other norms, exercise a reciprocal
effect upon the economic basis and may, within certain limits, modify it. It would be easier to
explain their characteristic of religious, political, moral, artistic, and legal principles. His
main argument was that in a capitalist economy, the working classes (or proletarian) were
exploited by the capitalist class (or the bourgeois). The second important doctrine is the
doctrine of the class character of law. According to Marx and Engels, the law is believed to
be the apparatus of the ruling class to maintain its powers over the ruling classes. Law is
characterized as an expression of class will.

The third important doctrine is often recognized as the ‘withering away’ of law in the future
communist society. There are certain debates regarding this doctrine
although. Engels anticipated that the society of the future would substitute (for the
government) the administration of things and that state in such a society would wither away.
The ‘withering away’ phenomenon was explained by Eugene Pashukanis. He argued that
law is a social regulator in a market economy in which independent private producers and
owners of commodities exchange their produce by means of contracts and transactions. He
believed that law was out of place in a socialist society which is characterized by the unity of

-DHANANJAY KUMAR MISHRA

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social purpose. He maintained that legal rules for settling disputes between individuals and
groups will not be needed in a socialist society. Consequently, according to this view, when
classes disappear after the revolution, there is no need for a legal apparatus to continue and
encourage class rule. So, poverty and exploitation, which are seen as the root causes of a
crime, will vanish within the new classless society and people will develop into ‘group
creatures’ having no need for codes and rules so that the need for institutionalized law
vanishes.

2. Summa Theologica is a(n) ________ written by _________

a) Roobert/ Hobbes b) Article/ Aristotle c) Book/Thomas Aquinas d) Book/ St. Joseph

3. The book Leviathan was written by _________

a) Gray b) Hobbes c) Aristotle c) St. Joseph

4. The kind of jurisprudence which deals with the law as it ought to be is known as:

a) Science of Law b) Philosophy of Law c) Soft Law d) Hard Law

5. Who has written the book – “Social Contract”.

a) Hobbes b) Locke c) Rousseau d) Gray

-DHANANJAY KUMAR MISHRA

ST. THOMAS’ COLLEGE OF LAW
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-DHANANJAY KUMAR MISHRA