JURISPRUDENCE

SECTION – A – Meaning of Jurisprudence, Nature, Need and Scope

Introduction –

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
"prudentia" 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.

During the formative era of the common law in England, the term 'jurisprudence' was being
used in a generic sense to include the study of various facets of law. However, in the early
decades of the 19th century with the theories propounded by Bentham and his disciple
Austin, the term 'jurisprudence' acquired a definite meaning. Bentham differentiated between
study of law as 'it is' and 'as it ought to be' and called them 'expositorial' and 'censorial'
jurisprudence respectively.

In short,
- Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in Law.
- Most of our law has been taken from Common Law System.
- Bentham is known as Father of Jurisprudence. Austin (his disciple) took his work
further.

Bentham was the first one to analyse what is law. He divided his study into two parts:

1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.

2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.

Meaning-
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
us knowledge about "law".
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.

Taking 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.

Definition of Jurisprudence-

Ulpian - Jurisprudence, in its etymological sense means 'knowledge of law'.

Cicero defines jurisprudence as the philosophical aspect of knowledge of law.

Salmond defines jurisprudence as the "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- It deals with the particular department or any portion of the doctrines. ‘Specific’
is further divided into three parts:

a. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
b. Historical- It is concerned with the legal history and its development
c. 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.

John Austin calls jurisprudence as the "philosophy of positive law". He was the first jurist to
make jurisprudence as science. By the term "positive law" he meant 'jus positivum', that is
law laid down by a political superior for commanding obedience from his subjects. This has
two aspects attached to it:

1. General Jurisprudence- It includes such subjects or ends of law as are common to all
system.
2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it.
Nature of Jurisprudence

1. It is Uncodified Law.
2. It is common law in all countries.
3. This law has been developed and not enacted by the Legislative.
4. It is also called legal theory, there is an actual study of the term ‘law’ in
Jurisprudence.
5. There is no scope for amendment and it is developing out of legal knowledge of the
people.

Need 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. The study of jurisprudence deals 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’.
Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws
passed.

In short,
 It is compared with science which shows the importance of Jurisprudence.
 It studies the legal systems of all the countries.
 It is called as foundation or base of the law and the study of jurisprudence is much
important.
 It is related to many other subjects which shows the importance of jurisprudence.
 It makes a study of term law and sources of law which is necessary.
 It is like a tool in hands of legal expertise which is helpful in the interpretation of the
law.

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.

Commenting on the scope of jurisprudence~, Justice P. B. Mukherjee observed,

"Jurisprudence is both an intellectual and idealistic abstraction as well as behavioural study of
man in society. 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, 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 observed' "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". This makes the distinction between law and jurisprudence amply
clear. Thus, whereas in law we look for the rule relevant to the given situation, in
jurisprudence we ask, what is for a rule to be legal rule, and what distinguishes law from
morality; etiquette and other related phenomenon. It, therefore, follows that jurisprudence
comprises philosophy of law and its object is not to discover new rule but to reflect on the
rules already known.
 NOTION OF LAW, KINDS OF LAW, LAW & MORALITY –

In notes

LAW & MORALITY

Introduction
For living peacefully in a society an individual follows various norms, conducts, values,
rules, beliefs, etc. which tell how a person should behave in a society. It becomes important
to create the difference between them in order to avoid ambiguity and conflict. One such
deliberate effort is always taken when distinguishing between law and morality. These are
such concepts which on some parts seem inter-related while in some other parts seem
completely different concepts. Many Jurists debated on the same issue of law and morality in
Jurisprudence and as a result, various views arose on the topic.

Law

Black’s Law Dictionary says that law is “A body of rules of action or conduct prescribed by
controlling authority and having binding legal force. That which must be obeyed and
followed by citizens subject to sanctions or legal consequence is a law.”

In simple words, the law is a bunch of rules and regulations formed by the
authority(legislature) and enforced by the executive body which has legal sanctity. And
which the citizens are obliged to follow in order to avoid the legal consequences.

Morality

Morality in simple words is the principles, values, beliefs and behaviour created and carried
forward by the society. They do not have legal sanctity but bind a person to societal
obligations or are dependent upon the conscience of the individual.

Example- Going to the temple and praying to God is morality but is not a legal sanction.

Many of the legislations are devoid of morality while there are also many legislations which
along with law have morality as the base element. For example- a Live-in relationship is legal
but is not in consensus with morality. Whereas, the law against human trafficking has
morality as its element.

Law and Morality in Jurisprudence

Law and morals are the systems which govern the behaviour of individuals in society. Laws
are rules and regulations which are sanctioned by the authority and are compulsory to follow.
While morals are the standards of behaviour that individuals should follow in order to live
peacefully with acceptability but they are not compulsory like law. These two concepts have
a complex relationship which has evolved over time. In ancient times, law and morality were
seen as similar concepts but with time and development, it has been clarified that these two
are different but interdependent concepts.

History of Law and Morality

Because of their budding stage, law and morals were not properly distinguished during
ancient times. Dharma in India was regarded as the Law and morality. Taking the example of
Hindu Law which was primarily derived from the Vedas and smritis, which were actually the
values of people. They signified the identicality between law and morals. However, with the
advent of Mimansa and commentaries, certain principles were put forth based on which
distinction was made between the obligatory rules and the recommendatory rules. The former
are the rules which are mandatory to be followed and are considered law whereas the latter
ones are not mandatory rules but they are considered good for the person if they are followed,
they are the morals.

In the middle age period, the morals of Christianity were considered as the basis of law and
the Bible had great influence over the legal regulations.

Relationship between Law and Morality

1. Moral as the origin of law

In ancient times there was no clear distinction between law and morality. And due to this lack
of distinction, the origin of every law was found in the principles which people thought as
morally correct. In the end, the state selected those morally correct principles and made them
into laws, thus forming similarities between law and morality. For example, It is morally
wrong to commit theft or robbery, the state gave this moral, the form of law. Even though the
distinction between law and morals has been put forth but morals form an integral part of the
law. Most of the laws have some or the other principles of morality.

2. Moral as the test of law

Many Jurists are of the opinion that those laws which do not follow morality must be
removed, as the end purpose of every law is to impart justice and ensure the welfare of the
people.

While making any law it always has to be seen that, whether it is in consonance with moral
values or not, if it doesn’t follow the moral standards it should be removed.

3. Morality as the end of the law

Laws were made to serve the purpose of creating a society having the elements of fairness,
justice and equality. Laws were made for the purpose of providing justice to a person who
suffered from something wrong. And on the other hand, morality provided certain standards
to sustain some order in society with fewer conflicts. In other words, the object of morality is
to remove conflicts from society. Thus, we can see, that the main object of law and morality
is the same making both the concepts related to each other.
Difference between Law and Morality

Although we can see law and Morality in some aspects as interdependent and also identical
concepts. But there are some factors which differentiate these two.

1. It is the external source from which the law is obtained, in simple words law is derived
from the rules and regulations, whereas morality is derived from the individual’s inner self
(internal source) i.e. the individual mind of the person.

2. Laws are focused upon the individual’s conduct for which it entrusts certain standards
whereas morality is concerned with the innate values of the conduct in other words it is
focused upon the motive.

3. Laws don’t change from person to person, it treats everyone the same, whereas morality is
a subjective concept, it differs for every person based on their conscience.

4. Laws are influenced by morality, which means they are created by taking morals into
consideration. Morality, on the other hand, existed way before the laws were formulated.

5. There is punishment for the disobedience of law but in morality, there is no such
punishment for anything done which is wrong morally.

6. Laws are mandatory to be followed as laid down by the sovereign for the people governed
by it. However, morality is rather a personal concept it doesn’t lay down certain mandatory
conduct have to be followed.

7. Laws control the behaviour of a person legally whereas morals control the behaviour of a
person morally.

Philosophies Regarding Law and Morality

The evolution of law was aided by two broad theories of legal positivism (analytical school)
and natural law theory.

The natural law theory states that any law which is unjust and hence infringes the principle of
morality, cannot be considered as law. In this theory, it is inferred that the laws and morality
are deeply interconnected. Natural law gives the idea that Morality in human beings is
derived from nature which took the form of rules and regulations. The Central idea behind
natural law is that it embodies moral principles which depend upon the nature of the universe
and which can be discovered for natural reasons. Jurists who aided this theory of natural law
were Augustine, Thomas Aquinas, Lon Fuller, John Locke and many more.

Legal positivism states that legal entities sans morality. The theory does not deny the impact
of morals on laws but says that the laws are created by men and hence should have a clear
distinction from morality. It emphasises that laws and morality are two different concepts and
laws are the result of sovereign power and not morality. Theorists in support of legal
positivism were John Austin and H.L.A Hart.

Debate between Hart and Fuller

H.L.A Hart
Hart accepted the law as a command. He emphasised the separation of positive law from
morality. He believed that judicial decisions are to be deduced from the pre-determined rules
without recourse to social aims, policies and morality. Rational arguments cannot defend
moral judgements.

According to Hart, the law is a system having two types of rules providing key to the science
of Jurisprudence. These rules are Primary Rules and Secondary Rules. Primary rules impose
duties whereas Secondary Rules give power and the essence of law is in the union of these
two rules.

Primary rules are binding as they impose a duty upon the individuals whereas Secondary
Rules being power conferring, empowers the legislators to formulate or modify policies
according to the needs of the society.

Lon Fuller

Lon Fuller criticized his views of Hart on the separation of law and morality. He believed the
legal system is made for regulating the conduct of human beings and therefore it must have in
law the element of “it is” and “it ought to be”. In other words, it means that law and morality
cannot be divorced from each other. Fuller maintained that law is a product of sustained
purpose and efforts which contains its own implicit morality. He believes that law cannot
fully serve its purpose of imparting justice and preventing misery if they do not conform to
the “internal morality”. According to Fuller, eight conditions forming the internal morality
are-

1. Law should be general

2. It should be publicly promulgated
3. Laws should be prospective in nature (they should apply to future behaviour, not to the past).
4. Laws should be clear and intelligible
5. There should be no contradiction between laws
6. It should be constant
7. There must be the possibility to obey the law
8. The law should be administered in a way that should not diverge from its obvious and
apparent meaning.

These eight principles were highly criticized by Hart. According to him, these principles are
the means of efficiency and are not defining morality.

Analysis of the Debate

Looking at the thoughts of both these theorists we can say that their object was to achieve
justice and order but their ways were different. There are elements which contributes to the
formation of law, therefore the matter cannot be simply put as the relationship between law
and morals, as so many factors influence law, and one of them is moral.

In some aspects of law, we find the element of morality while in some laws morality does not
play many parts for eg, legalising of abortion. We can say that in certain laws, the need for
perfectly differentiating between the law and morality has to be identified while in some laws
the difference between the law and morality can be set aside and certain overlapping between
them can be allowed. But it is always the legal idea which prevails over subjective morality.
Dudley and Stephens Case (1884) 14 QBD 273.
In this case, the principles of law and morality were distinguished while punishing the grave
offence of cannibalism. According to the facts of the case, the accused were the sea men.
Their ship capsized in a storm they along with a boy, about seventeen years of age managed
to float on a wooden plank. They continued to drift for many days without food and drinking
water. When the death of starvation and thirst was imminent, they killed the boy and
continued to eat his flesh for a few days until they were rescued. On being prosecuted for
murder, they pleaded that self-preservation was the utmost necessity and they had no option
except to kill the boy.

Judgement of the court

The court held that in order to save his own life a person cannot sacrifice another person’s
life. And in this case, there was no such evidence which could justify their killing of the boy
and hence they were guilty of murder. Although it was considered morally justifiable, for
saving the life of all of them their action cannot be legally justified. One cannot kill another
person for overcoming the inconvenience of attempting to save his life and claim it
justifiable.

Conclusion
Law has heterogeneous properties it contains various elements which contribute to making
better law and among these, morality is one the element. In ancient times morality and laws
were considered similar concepts but with the development of time, these two concepts were
separated and discussed properly. Debates between the theorists lead to the formation of
different views regarding the relations as well as the distinction between law and morality.
By analysing these two concepts we find that morals in some aspects have an effect on the
laws but they do not override the legal entity as morality is subjective.
 STATE & SOVEREIGNITY

Nature and Function of a State and its relationship with Law

Introduction

The word ‘state’ has been derived from the Latin word ‘status’, which means ‘standing’ i.e.,
position of a person or a body of persons. The state is the highest form of human
association. It is necessary because it comes in to existence out of the basic needs of life. The
most important purpose of state is to make life possible and to protect the life. It is difficult to
give a precise definition of state because different political thinkers and jurists have defined it
in different ways.

Salmond- “State as an association of human beings established for the attainment of certain
ends by certain means”.

Goodhart- “The purpose of State is to maintain peace and order within a particular society.
Therefore, the most essential purpose of state is to make life possible.”

Aristotle – “State is a union of families and villages having for its end, a perfect and self-
sufficing life, by which we mean happy and honourable life”.

Woodrow Wilson - “State denotes a set of people organized for law within a definite
territory”.

Oppenheim- “a State comes into existence when people are settled in a country under its
own sovereign government”.

Dallas- “a State is a body of free persons, united together for the common benefit to enjoy
peaceably what is their own, and to do justice to others”.

Origin & Evolution of the State –

Political thinkers have propounded various theories regarding the origin and evolution of the
state. There are four main theories which explain the origin of the state. They are –

 Divine Theory

Acc. to this theory, the state is the creation of God. This theory was developed in the middle
age in Europe because of the influence of Christianity which regarded king as the
representative of God having divine right to rule.
 Natural Theory

This theory that men is a social being and the instinct of his sociability has given rise to the
origin of the state. Aristotle staunchly supported this theory and therefore, it is also known as
Aristotle’s theory of origin of state. The purpose of the state, according to this theory was to
promote general welfare of its people.

 Social Contract Theory

The theory pre- supposes that the state is a creation of agreement by the people. The people
pay obedience to the authority of the state because they have agreed to do so. Hobbes, Locke
and Rousseau were the three main exponents of the social contract theory of origin of state.

 Evolutionary Theory/Historical Theory

According to this theory, the state is a historical growth and result of a gradual evolution. It is
a continuous development, cannot be referred to any single moment of time, circumstance
and any event, etc. State was originated on the basis of various causes and varying condition.
They are:

- Kinship
- Religion
- Political Consciousness

Essential elements of State –

1. Population - It implies a significant number of human beings living together in a

community. There is no existence of the state without population. Since, the state comes into
existence for the people, population is one of the essential elements of a State. There is no
fixed number of persons to constitute a State, but it must be a considerable number.

2. Territory -Territory is a definite portion of the earth’s surface upon which the population
permanently resides. It is a very important element of state. According to Harold Laski “the
territories of a state are the regions over which it can exercises sovereignty”.

3. Government- The state must have some organisation to wield authority over its people.
Such an organisation is called “Government”. The state administers its will through the
agency of the government which normally has three organs, namely the legislature, the
executive, the judiciary. The legislature enacts the laws, and the executive enforces them. The
judiciary ensures smooth functioning of the legislature and the executive and keeps them
within their limits. There cannot be a state without a government.
4. Sovereignty- Sovereignty of the state implies that it is completely free from any kind of
external control and commands habitual obedience from the people within its territory. It is
the most exclusive element of a state. The sovereignty confers upon the state two things,
namely, (1) internal supremacy and
(2) external independence.
Sovereignty may be defined as supreme and unfettered authority within a state.

Functions of State –

It has been generally accepted that war and administration of justice are the two main
function of the state. Broadly speaking, the primary function of the state is maintenance of
law and order within it define territory. Besides maintenance of law and justice, the state also
has to perform certain secondary functions, namely, legislation and taxation.

Primary Function
As rightly pointed out by Hobbes, the primary functions of the state are to provide adequate
safeguards and defence to its people against external aggression and ensure maintenance of
law and order within the community.
Administration of justice is also one of the primary functions of the state.
These are also called the constitute functions as they are necessary for the very existence of
the state.
Acc. To Friedmann, the primary functions of the state are confined to defence, foreign
affairs, police and currency management.

Secondary Function

These functions are mostly related to welfare activities of the state.

The main secondary functions of the state are legislation and taxation.
It is through a well-regulated scheme of taxation that the state collects its revenue which is
essential for its activities.
The dimension of secondary functions is expending fast in the modern states.
Friedmann has referred to five different secondary functions, which the modern states have
to perform.
The state has to act as ‘Protector’, as ‘Provider’, as an ‘Entrepreneur’, as ‘Economic
Controller’, and as an ‘Arbitrator’.

Inter-relationship Between State and Law –

Three main theories have been propounded in the regard of the view about relationship
between state and law. Acc. to one view, the state is superior to law because it creates law
while the other view holds that law precedes the state. There is yet another view which
suggests that the law and state are the same looked from the point of view of the functions
they perform.

Law as a Product of State

This theory was propounded by John Austin, Thomas Hobbes, Hegel and Jeremy Bentham.
As per this theory, it is the state which makes law. Therefore, state is superior to law.
John Austin stated that ‘law is the command of the sovereign’. Therefore, the
sovereign[state] has the power to enact, amend and repeal the law. However, he himself is not
bound by law.

Law is above the state

Yet another school of jurists thought believed in the supremacy of law and held that law is
above the state.
Harold Laski, Duguit and Sir Ivor Jennings asserted that sovereign is bound by law and he is
not above law.
Krabbe also supports this contention and holds that the ruler cannot change the law by his
mere volition. In fact, law checks the arbitrary exercise of power by the State, i.e., the
executive.

State and Law are one and the same

Kelson opined that in fact law and the state are the two sides of the same coin.
He observed, "when we think of the abstract rules we speak of the law, when we consider
the instructions which the rulers create, we speak of the State".
The foregoing analysis makes it abundantly clear that law and state are intimately inter-
linked. The modern Indian polity also upholds the supremacy of law as a constitutional
mandate. The supremacy of the Constitution, which is the law of the land in India, has been
preserved by the judiciary through the process of judicial review.

The expression 'state' as defined in Art. 12 of the Constitution includes the parliament, the
government of India and the state government, legislatures of states, local bodies and even
the judiciary. The Constitution is supreme and above all these institutions.

Nature and Development of Sovereignty

Introduction

Sovereignty is one of the essential requirements of statehood. Sovereignty is the life and soul
of a state. The term “Sovereignty” is derived from the Latin word “Superanus” which means
supreme or paramount or a supreme authority having no other authority above it. The terms
“Sovereign” and “Sovereignty” were first used by the French Political thinker Jean Bodin in
the 16th- century and later they found their way into English, Italian and German political
literature.

A sovereign state is one which is not subordinate to any other state and is supreme over the
territory under its control. Its commands are necessarily to be obeyed by all men and
associations within its territory.

Definition

Jean Bodin - Sovereignty is the supreme power of the state over its citizens and subjects,
unrestrained by law.

Blackstone- Sovereignty is the supreme, irresistible, absolute and uncontrolled authority in

which the jura summi imperii [right of supreme dominion] resides.

Leon Duguit – Sovereignty is the commanding power of the state. It is the will of the nation
organized in the state. It is a right to give unconditional order to all individuals within the
territory of the state.

Pollock -Sovereignty is that power which is neither temporary nor delegated, nor subject to
particular rules which it cannot alter, nor answerable to any other power or earth.

Hugo Grotius -Sovereignty is the supreme political power vested in him whose acts are not
subject to any other, whose will cannot be over-ridden.

Willoughby - Sovereignty is the supreme will of the state.

Characteristics of the Sovereignty

Sovereignty has the following characteristics:

1. Permanence: Governments may come and go, but the state remains for ever. As the state
is permanent, so is its sovereignty. So long as the State lasts, sovereignty also lasts. The State
and sovereignty cannot be separated from each other. Sovereignty continues or remains
uninterrupted by changes in government in a State. When there is change of government or
ruler, sovereignty shifts to the new government or ruler. But sovereignty as an attribute of the
State continues.
2. Exclusiveness: Another characteristic of sovereignty is exclusiveness. It means that the
State alone possesses supreme power and is legally competent to compel the obedience of its
citizens. In other words, there cannot be more than one sovereign in a state claiming the legal
obedience of the people. Acceptance of more than one supreme and ultimate power would
affect the essential unity of the State.

3. Comprehensiveness: The all-comprehensive and universal character of sovereignty

denotes that within a State, the authority of the sovereign must extend to all persons,
associations and groups existing within the territory of the State. Hence, the commands of the
sovereign are binding on all persons and groups. No one can be exempted or free from the
all-embracing authority of the State.

4. Inalienability: Sovereignty is also inalienable. It cannot be transferred or parted with,

without destroying sovereignty itself. In other words, no sovereign can claim to be sovereign
after transferring its supreme powers to another person.

5. Indivisibility: Sovereignty cannot be divided. The reason is that if sovereignty is divided,

more than one state would exist. Sovereignty is an entire thing- to divide it is to destroy it. It
is the supreme power in a state and we cannot think of two or more states sharing
sovereignty. In a federal state, there is no division of sovereignty as sovereignty rests with the
Federal government.

6. Absoluteness: Sovereignty is absolute and unlimited. This means that neither within the
state nor outside it is there any power which is superior to the sovereign. In other words, there
is no authority outside the state to which a sovereign is obedient or dependent. The state can
enter into any treaty or have relations with any other state it wishes.

Development of Sovereignty

The concept of sovereignty was unknown to ancient world. It is essentially an outcome of

medieval period when there was Renaissance and Reformation in Europe.

The concept of absolute and perpetual power of the state was termed as 'sovereignty' for the
first time by French jurist Jean Bodin in his famous work Republic which appeared in 1577.
He emphasised that the ruler is the ultimate source of all law.

Hobbes' Theory - The theory of sovereignty was further developed by Thomas Hobbes who
observed that sovereign was absolute and his power was inalienable and unlimited. The
power of the sovereign extends to religion and church as well.
Bentham's Theory - Jeremy Bentham, the great law - reformer of England also supported the
absolute power of the sovereign but he justified it on utilitarian principle of hedonism. Acc.
To him, the sovereign had the authority to make laws but they should be in conformity with
the principles of utility. He believed that sovereignty power can be subjected
to certain legal restrictions.

Austinian Theory of Sovereignty - A sovereign is any person or body of persons, whom the
bulk of a political society habitually obeys and who does not himself habitually obeys, some
other persons or persons.

Acc. to John Austin, the sovereign is not accountable to anyone but the whole realm has to
follow whatever the sovereign dictates which are in stark contrast with the idea of democracy
and Indian federalism.

Also, Austin’s theory has mentioned that the powers of the sovereign are indivisible, i.e.,
sovereign will make laws, the sovereign will execute the laws and the sovereign only will
administer the law. This philosophy is also in contravention with the idea of democracy and
the Indian federal structure.

Salmond's Theory of Sovereignty - Like Austin, Salmond also believes that sovereign power
is determinate, that is, in every political society there must be a sovereign authority.

Salmond observed that theory of sovereignty is founded on three fundamental propositions,

namely (1) Essentiality (2) Indivisibility and (3) Illimitability. He regards the first of these
propositions as correct but the other two prepositions are without any solid foundation.

Acc. To Salmond's first proposition, the existence of sovereign power is essential in every
state. It is, however, not necessary that in all cases the entire sovereignty is to be found within
the borders of the state itself, it may be wholly or partly external to the state.

Sovereignty (Indian Perspective)

 The Preamble of the Indian constitution declares India to be a "Sovereign" country,

implying that India has its own supreme law and is not subject to the laws of any
other state or nation.

 Furthermore, India is free of any external interference in its own affairs.

 India regards itself as a sovereign state. It means that India has complete autonomy in
making internal and external decisions.

 It means that India is a supreme power, and no internal or external forces can
challenge the Indian government's authority.

 As a sovereign state, India is immune to any form of foreign meddling in its domestic
affairs.

3. Nature and Kinds of Law and Theories of Justice

Nature of Law
The term law is used in two senses, namely, in abstract and concrete sense. The term 'law'
when used in abstract sense means the system of law, such as the law of India, the law of
defamation, law and justice etc. The law in its concrete sense means a statute, enactment,
ordinance or other exercise of legislative authority.

In the abstract sense, we speak of 'law' or 'the law' whereas in concrete sense, we speak 'a law'
or 'of laws'. Abstract law is 'jus' while concrete law is 'lex'. It is therefore, obvious that 'the
law' and 'a law' are not identical in nature and scope.

Definitions-

Salmond: - According to Salmond “the law may be defined as the body of principles
recognized and applied by the state in the administration of Justice.

Austin: - According to Austin “law is aggregate of rules set by men politically superior or
sovereign to men as politically subject.” Austin says, “A law is command which obliges a
person or persons to a course of conduct.

John Erskine: - Law is the command of a sovereign, containing a common rule of life for his
subjects and obliging them to obedience.

Austin: - “Law is the command of the sovereign.” “It is the command of the superior to an
inferior and force is the sanction behind Law.”

Holland: - “A Law is a general rule of external behaviour enforced by a sovereign political

authority.”

Features of Law –

1. Law is a general rule of human behaviour in the state. It applies to all people of the state.
All are equally subject to the laws of their State. Aliens living in the territory of the State are
also bound by the laws of the state.

2. Law is definite and it is the formulated will of the State. It is a rule made and implemented
by the state.

3. State always acts through Law. Laws are made and enforced by the government of the
State.

4. Law creates binding and authoritative values or decisions or rules for all the people of
state.

5. Sovereignty of State is the basis of law and its binding character.

6. Law is backed by the coercive power of the State. Violations of laws are always punished.

7. The purpose of Law is to provide peace, protection, and security to the people and to
ensure conditions for their all round development. Law also provides protection to the rights
and freedoms of the people.
8. All disputes among the people are settled by the courts on the basis of an interpretation and
application of the laws of the State.
Kinds of Law –

Salmond's Classification of Law

Salmond has given an exhaustive classification of laws. He has referred to nine kinds of laws,
which are as follows:

1. Imperative Law: It means "a rule which prescribes a general course of action imposed by
some authority which enforces it by superior power either by physical force or any other form
of compulsion." 'Austin' was the main exponent of imperative theory of law, which defines
law as a command of the sovereign which persons are obliged to obey. It may be either
divine or human.

2. Physical or Scientific Law : Physical laws are laws of Science which are expressions of
the uniformities of nature. There is perfect uniformity and regularity in these laws and are not
subject to change. For example, law of gravity, law of motion, law of air-pressure etc.

3. Natural or Moral Law : Natural law is based on the principles of right and wrong. It
includes all forms of righteous action. Natural law has also been called universal law or
eternal law. It is also called 'rational law' because it is based on reason. It embodies the
principles of morality and is devoid of any physical compulsion.

4. Conventional Law : According to Salmond, conventional law means, "any rule or system
of rules agreed upon by persons for the regulation of their conduct towards each other. It is a
form of special law. For example, rules of a club or a cooperative society by any voluntary
organisation are instances of a conventional law.

5. Customary Law : There are many customs which have been prevalent in the community
from time immemorial even before the states came into existence. They have assumed the
force of law in course of time.

According to Salmond: any rule of action which is actually observed by men when a custom
is firmly established, it is enforced by the state as law because of its general approval by the
people."

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

7. International Law : The law of nations of the 18th century was named as International
law by Bentham in 1780. It consists of rules which regulate relations between the states inter
se. According to Oppenheim, "International law is the body of customary and conventional
rules which are considered legally binding by civilised states in their inter course with each
other."

8. Prize Law : That portion of International law which regulates the practices of the capture
of ships and cargo in wartime, as applied by courts is called 'prize law'. It is meant for
administering justice between the captors of ships or cargos and the persons interested in the
property seized.

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

Austin's Classification of Law

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

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

Holland classification of law

Holland classified law according to their functions. He classified law into following
categories:

1.Private and Public Law : The province of private law is the adjustment of relations
between person and person, whereas the public law deals with relationship between person
and the state. In case of private law, the parties to a case may either be natural or artificial
persons and the state only acts as an arbiter through its courts. The laws of property,
contracts, corporations, torts, trusts etc are examples of private law. Public law, on the other
hand, seeks to regulate the activities of the state. The important sub-divisions of public law
are:

- Constitutional law
- Administrative law
- Criminal law
- Criminal procedure

2.General and Special Law : The territorial law of a country is called 'General law'. It
consists of all persons, things, acts and events within the territory of a country which are
governed by it. General law consists of those legal rules of which the courts take judicial
notice whereas the special law consists of those legal rules which courts will not recognise
and apply them as a matter of course but which must be specifically proved and brought to
the notice of the courts by the interested parties.

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

4. Antecedent and Remedial Law: Antecedent law relates to independent specific

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

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

The schools of jurisprudence are various theoretical approaches to the study of law that aim
to understand its nature, purpose and function in society. These approaches differ in their
fundamental assumptions about the law, the role of the state, the relationship between law
and morality, law and society and the source of legal authority.

There are five schools of jurisprudence: analytical, positivism, historical, sociological and
realist.

1. Analytical School of Jurisprudence

The Analytical School of Jurisprudence focuses on the present form of law. This school is
referred to by various names, such as the Austinian School, named after John Austin who
established this methodology. It is also known as the Imperative School, as it considers law
as the direction or command of the sovereign and the Positivist School, as its proponents are
only concerned with law as it exists presently and not with its past or future.

The term “positivism” was coined by August Comte. John Austin was responsible for
developing the theory of positive law, which was initially founded by Bentham.

One of the primary functions of the Analytical School is to analyse or decompose the law into
its irreducible elements.

John Austin

John Austin, known as the father of English Jurisprudence, defined law as “a command of the
sovereign backed by a sanction.” According to him, the law is the direction of the politically
powerful authority backed by a sanction, which means that the Law-Maker has the authority
to make laws and it supersedes judgments by judges or precedents. He also distinguished law
from morality and divided law into two parts: divine law and human law.

Types of Laws Recognised by Austin:

Austin recognised three types of laws: declaratory or explanatory laws, laws of repeal and
laws of imperfect obligation.

Merits

Austin’s definition of law is simple and clear, which lays down exact boundaries within
which jurisprudence has to work. His positivist approach further laid down the foundation of
English jurisprudence. He stated an important universal truth that law is created and enforced
by the State.
Demerits

However, his definition of law overlooks customs, which regulated the conduct of the people
in early times. Austin ignores the permissive character of the law and there is no place for
judge-made law. He does not include conventions of the Constitution in his definition of law,
although they are the subject matter of a study in jurisprudence.

Austin also does not treat international law as a law because it lacks sanction. The rules set by
private persons in pursuance of legal rights are included in “positive law,” which is an undue
extension because their nature is vague and indefinite. Austin overemphasises the command
aspect of the law, which cannot be applied to modern democratic countries.

Additionally, Austin’s definition of law does not cover international law and ignores social
factors of law and psychological factors that secure its obedience. It also ignores the
interrelationship between law and morality.

Bentham

Bentham, a prominent English philosopher, defined law as a collection of signs indicating the
will of the sovereign in a state regarding the conduct to be followed by a particular person or
group of people subject to the sovereign’s power. He also supported the concept of laissez-
faire, which advocates for minimal State intervention in individuals’ economic activities.

Principle of Utilitarianism

Bentham proposed the principle of utilitarianism, which states that legislation’s appropriate
aim is to promote the greatest amount of utility. He defined utility as the capacity of a thing
to prevent evil or promote good. Bentham argued that the consequences of an action were
either pleasure or pain.

Merits

 Bentham’s legal reforms thinking and enthusiasm ushered in a new era of legal reforms in
England. He contributed new ideas on law-making and legal research.
 His definition of law and analysis of legal terms inspired many jurists, who improved upon it
and laid the groundwork for new schools.
 Bentham also provided solutions to issues regarding the nature of positive law.

Demerits

 Bentham’s theory has some shortcomings, according to Friedmann.

 Firstly, in his attempt to merge materialism with idealism, Bentham underestimated the
importance of individual discretion and flexibility in law application, overestimating the
power of the legislator.
 Secondly, the theory does not balance individual interests with those of the community.
 Additionally, the theory is too abstract and fails to account for the complexities of human
nature.
 Furthermore, the theory has no practical application and using pain and pleasure as the sole
test for judging law is inadequate.
 2. Sociological School of Jurisprudence

The Sociological School of Jurisprudence emphasises the relationship between law and
society, arguing that law is a social phenomenon with a significant impact on society. This
school maintains that every problem and change that occurs in society should be viewed from
a legal perspective.

Law as a Social Phenomenon

The Sociological School of Jurisprudence posits that law is a social scenery and it directly or
indirectly relates to society. This school’s main focus is to balance the welfare of the state
and the individual and it believes that the present-day socio-economic problems cannot be
solved by existing laws.

Logic-Based Approach

This school’s approach is based on logic and rationality, rather than metaphysical entities or
divinities.

Roscoe Pound

Roscoe Pound is known for his functional approach to law, which emphasises the practical
application of law and its role in creating a better society. According to Pound, the main
objective of law should be to satisfy the maximum number of wants with the minimum
amount of friction. He also developed the theory of social engineering, which seeks to
balance competing interests in society by protecting various interests through the law.

Classification of Interests

Pound’s theory of social engineering classifies interests into three categories: private, public
and social. Private interests include physical integrity, reputation, freedom from violation and
freedom of conscience. Interest in domestic relations involves marriage, parents and children
and maintenance. Interests in substance involve inheritance, occupational freedom and
property.

Public interests include the preservation of the state, administration of trusts, charitable
endowments, territorial waters and the natural environment. Social interests are those that are
thought of in terms of social life and are generalised as claims of social groups.

Merits

 The theory has focused on the practical implications of the law and the role of jurists in
building a welfare state.
 It considers the working of law rather than its abstract concepts.
 It regards law as a social institution that can be improved by human effort and to discover and
effect such improvement.
 It lays stress on the social ends of law rather than sanctions.
 This theory suggests that legal precepts be used as guides to socially desirable results.
  His idea of functional law led to the creation of the functional school.
 His theories gave the most influential exposition of the American sociological viewpoint.

Demerits

 Classification of interests is not useful because social interests always change with society
and putting them into a specific order will cause them to lose their character and importance.
 The term “social engineering” is used to indicate the problem that law faces, the objectives
that have to be fulfilled and the methods which it will adopt for the purpose of interest.
 There is no ideal scale of values with reference to interest.
 The word “engineering” does not provide a balance between social needs and interests, but
only recognises or approves it.
 The theory ignores the fact that law evolves and develops in society according to social needs
and wants.
 The dynamic feature of the law is undermined in this theory.
 The conflict between social and individual interests is not considered by him.
 Professor Allen criticised him for focusing on wants and desires to fulfil material welfare,
which might be harmful to personal freedom.

Duguit’s Theory

Duguit, a sociologist, proposed a theory of social solidarity that emphasises the importance of
interdependence and mutual assistance within a society. According to him, there are two
types of needs in society: common needs, which are fulfilled by mutual assistance and
adverse needs, which are fulfilled by the exchange of services. Social solidarity is necessary
to fulfill these needs and it requires a division of labour to meet all the requirements of the
society.

Merits

 Dugit’s theory advocates for peace and solidarity in society.

 He also challenges the concept of state sovereignty by comparing the state to any other
organisation.
 Dugit argues that the functions of individuals in society depend on each other and the aim of
the law is to safeguard interdependence and fulfil all necessities. He stresses that the end
result of all human activities and organisations should be to ensure social solidarity and the
formation of law is crucial for community life.
 Additionally, his theory minimises the role of the state and the legislator, promoting
interdependence among individuals in society.

Demerits

 Dugit’s theory has some drawbacks.

 He believes that the state’s duty is to ensure social solidarity and is against state sovereignty.
 He sees no difference between public and private law, which may lead to the elevation of state
power above the rest of society.
 The concept of social solidarity is vague and can lead to judicial despotism, as judges will
decide whether an act or rule is furthering social solidarity.
 His theory confuses natural law theories as a law that does not promote social solidarity is not
considered law.
 Dugit’s theory does not perform well due to the minimum interference of the state, as social
problems of modern communities can be solved better by state activity.
  Moreover, his use of “is” instead of “ought” confuses the definition of law with natural law
theories and his theories are inconsistent, with contradictory claims about the structure and
role of the state.

3. Historical School of Jurisprudence

The historical school of jurists, which was founded by Friedrich Karl von Savigny (1779-
1861), is a school of thought that describes the origin of law. According to this school, the
law was found, not made. The historical school believes that law is made by people in
response to their changing needs and that it is an outcome of the development of society. The
law originates from the conventions, customs, religious principles and economic needs of the
people. The basic source of the historical school is custom.

Customs are defined as traditional and widely accepted ways of behaving or doing something
that is specific to a particular society, place or time. In the historical school, customs are
considered superior to legislation. The emergence of this school was due to its opposition to
the ideology of the analytical school of jurisprudence, as well as being a reaction to the
natural school of law.

Friedrich Carl Van Savigny

Friedrich Carl Van Savigny, a prominent legal scholar from the 19th century, believed that
law is a matter of unconscious and organic growth. His theory emphasised the influence of
culture and the character of the people on the evolution of law. Savigny’s theory also traced
the course of the evolution of law in various societies.

Main Points of Savigny’s Theory

 Law is found, not made. It is a matter of unconscious and organic growth. Law is not
universal in its nature and varies with people and age.
 Custom precedes legislation and is superior to it. The law should always conform to the
popular consciousness.
 As laws grow into complexity, the common consciousness is represented by lawyers who
formulate legal principles. Lawyers remain only the mouthpiece of popular consciousness and
their work is to shape the law accordingly. Legislation is the last stage of law-making and
therefore, the lawyers or the jurists are more important than the legislators.

Merits

 Savigny’s theory emphasised the influence of culture and the character of the people on the
evolution of law.
 The theory laid the seeds for the development of sociological and evolutionary jurisprudence.

Demerits

 Savigny’s theory is inconsistent as he argued that the origin of law is in the popular
consciousness, but some of the principles of Roman law were of universal application.
 While advocating for the national character of law, he entirely rejected the study of German
law and took inspiration from Roman law.
 Savigny claimed that popular consciousness is the main source of law, which is not always
true as sometimes an alien legal system is successfully transplanted in another country or a
 single personality greatly influences a legal system that is not based on popular
consciousness.
 Customs are not always based on popular consciousness and many customs and practices
have been declared illegal. Charles Allens criticised him for emphasising the idea of law made
by customs as he was of the view that customs are not based on the consciousness of people
but on the powerful ruling class.
 Savigny’s theory ignored the judge-made law, although judges have played an important and
creative role in making law.
 His theory did not explain many things that developed in certain powerful communities, such
as slavery and untouchability in India.
 Despite its limitations, Savigny’s theory remains significant in the development of legal
thought and continues to influence the study of law.

George Friedrich Puchta

George Friedrich Puchta was a student of Savigny and a significant jurist whose ideas were
more logical and improved. He used the term “right” instead of “law” and believed that men
always lived in unity, but people are different in their behaviour and unequal, which gave rise
to the concept of law.

The state comes into existence as a result, but neither the people nor the state alone is the
source of law. Instead, all laws come into existence through Volksgeist, the spirit of the
people. Popular consciousness unites people into one community, similar to a common
language or religion. According to Puchta, customary law is the best expression of the
national spirit or Volksgeist, making custom superior to legislation.

Merits

 Puchta’s ideas were more logical and improved compared to Savigny’s.

 He distinguished between the general will and individual will, which helped explain conflicts.
 His division and explanation of conflicts between the general will and the individual will
make the state intervention theory more logical.
 He presented a two-fold aspect of human will and the origin of a state, which was absent in
Savigny’s theory, making it rigid.

Demerits

 Puchta ignored the historical aspects of legal development.

 His ideas were initially rejected due to ambiguity, which he later corrected.

4. Philosophical School of Jurisprudence

The Philosophical School, also known as the Ethical School, posits that legal philosophy
should be based on ethical values in order to encourage people to live uprightly. The purpose
of law, according to this school, is to maintain social harmony, preserve law and order in
society and justify legal restrictions only if they promote individual freedom.

The Philosophical or Moral School focuses primarily on the connection between law and the
specific objectives that the law seeks to achieve. It seeks to explore the rationale behind the
establishment of a particular law.
This school upholds the principles of logic and reason.

Prominent figures in this school include Grotius (1583-1645), Immanuel Kant (1724-1804)
and Hegel (1770-1831), who view the law as the product of human reason, aimed at
enhancing and glorifying human identity.

Grotius

Grotius is widely regarded as the founder of international law and he believed that a system
of natural law could be derived from the social nature of man. According to Grotius, natural
law is the dictate of right reason, which indicates whether an act is in conformity with
rational nature and possesses a quality of moral baseness or moral necessity.

Merits

 Grotius emphasised the importance of morals in describing righteous conduct in society and
built a system of natural law that should command universal respect by its inherent moral
worth.
 He also stressed the significance of reasons and the origin of law based on morals.
 According to Grotius, the agreement of mankind concerning certain rules of conduct is an
indication that those rules originated for the right reason.

Demerits

 Grotius’ theory was based on morality and there is a difference between ethics and morality.
Ethics refers to the behavioural patterns of a person, whereas morality refers to the values
imbibed in them.
 Additionally, there are other factors such as social, economic and political patterns of the
society that are crucial in the formation of law. Legislation, customs, precedents, etc., are also
significant sources of law.
 Furthermore, Grotius believed that natural law deserved universal command, which is not
possible in modern times since laws are formed by considering the state, people and nature
and making laws according to the needs of society.
 Grotius’ definition is dependent on logic/reason, which varies from person to person and
hence there wouldn’t be uniformity of law.
 The same goes for moral baseness and necessity since something that may feel morally
correct to one person may not to another and vice versa.

Immanuel Kant

Immanuel Kant, a famous philosopher, described the law as the set of conditions under which
personal desires can be reconciled with the desires of others according to a general law of
freedom. He emphasised the importance of legal duties and legal rights, as well as the
distinction between natural and acquired rights. He believed that the state’s primary function
is to protect and guard the law, with the ultimate aim of establishing a universal world state.

Kant’s View on Ethics and Law

Kant differentiated between ethics and law, arguing that ethics pertains to spontaneous acts of
individuals while law pertains to acts that individuals are compelled to perform by society
and the state. Ethics is concerned with inner life and consciousness, while law regulates
external conduct.

Kant also stressed that legislation is only effective if it represents the united will of the
people. He believed that justice is a relative concept, depending on the conditions, place and
social values in which an action takes place. Kant believed that laws must be metaphysical
and derived from reason in order to be just.

Merits

 Recognised the natural right to freedom of an individual in the presence of others’ freedom
under general law
 Aimed to establish a universal world state
 Emphasised the role of the state in safeguarding and protecting the law
 Differentiated between ethics and laws and highlighted the importance of the united will of
people in legislation.

Demerits

 Focused on what law ought to be and disregarded the past and present of the law
 Denied the significance of natural law in the formation of laws
 Theoretical differences between ethics and laws with little practical application
 Insufficient consideration of other sources of law, such as customs.

5. Realist School of Jurisprudence

The Realist School is a sociological approach that focuses on decisions and evaluations of
law. It challenges traditional legal values and concepts by examining what courts and
common people are actually doing. This movement emphasises the importance of the judicial
organisation in the application of the law. The realist school believes that law is real and co-
relates law with reality.

There are two types of realist schools: the American Realist and the Scandinavian Realist.
The former learned from their own experiences and also observed judgments, while the latter
believed only in their own experiences.

John Chipman Grey

John Chipman Grey considered the father of American Realism, believed that the Law of the
State or any organised body is composed of the rules that the courts lay down for the
determination of legal rights and duties. He emphasised that codified laws are immaterial
unless they are applied by a judge and that law is basically the judgment that the court passes.

Merits

Merits of Grey’s theory include its relatability to real-life situations, a chance for own
interpretation by people and a focus on “what law is” rather than “what law ought to be.” He
also observes similar cases in the past.
Demerits

Grey’s theory has some demerits. He does not take into account the statute law, puts
excessive faith in judges and does not consider that the judgment may include the judge’s
personal bias. Additionally, his definition is not concerned with the nature of law, but rather
its purpose and ends.

Jerome Frank

Jerome Frank is a prominent philosopher of the realist school. In his work, he compared the
relationship between the certainties of law in men to a father-son relationship, where a man
gets protection from the law, just as a son gets protection from his father.

Merits

Frank’s view brings the following merits:

 He emphasises that lawyers and judges should not rely on legal certainty in the name of
precedents or codification.
 He highlights the constructive work that lawyers and judges should do.
 He emphasises the importance of lawmaking by evaluating the facts of each case under
changed social circumstances.
 He advocates maintaining balance and developing the law in parallel with the advancement of
society.

Demerits

However, Frank’s approach also has some demerits, such as:

 Critics have found his approach not useful in terms of the law.
 Some scholars criticised him for using the Freudian approach to the psychological
development of a child in his theory, calling it the Freudian approach of jurisprudence.
 He exaggerated the human factor in judicial decisions and focused only on the roles of
lawyers and judges.
 The realist approach was based on the American system of the judiciary, making it not
universally applicable.

Conclusion

The five schools of jurisprudence are as follows: natural law (analytical), legal positivism,
historical, sociological and realist. These schools of thought provide a framework for
understanding the nature of law, the role of law in society and the principles that underlie
legal systems around the world. Each school has its own unique perspective and approach to
the study of law and each has contributed to the development of modern legal theory in its
own way.
 COMMAND THEORY OF LAW BY JOHN AUSTIN

John Austin ’was the greatest exponent of this School, who is the father of English
Jurisprudence. He was born in 1790. At a very age he entered the army in which he served for
five years. In1826, he appointed to the Chair of jurisprudence in the University of London.
His lectures delivered in London University were published under the volume entitled “The
Province of Jurisprudence Determined”. In his lectures he discusses the nature of law and its
proper bounds. He also discusses the sources of law and presents an analysis of the English
legal system.

Austin defined law as a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him Austin ‘s definition of law: -Austin is the father of
English jurisprudence. he confined his only to the positive law. Austin defined law as “A rule
laid down for the guidance of an intelligent being by an intelligent being having power over
him. He also stated that “Law is the command of the Sovereign”. Austin believed that in the
society, subjects are bound by the command issued by the sovereign from time to time.
Classification of law

According to Austin law are two type –

1) Laws properly so called 2) Laws improperly so called

1) Laws properly so called: –

These laws are commands which are backed by sanctions of the state, are called law properly
so called. Law properly so called is the positive law, which means law “as it is” rather than
law “as it ought to be” with which he is not at all concerned. It is divided in two part.

A) Laws of God B) Human laws

A) Laws of God: -these are the laws which are made by God for men.

B) Human laws: -These are the laws which are made by one human being for other human
beings.
They may be further divided into two parts. a) Positive Laws b) Other Laws

a) Positive Laws: – These are the laws set by political superiors as such, or by men not
acting as political superiors but acting in pursuance of legal rights conferred by political
superiors, only these laws are the proper subject matter of jurisprudence.

b) Other Laws: – Other laws is known as positive Morality, other laws which are not set by
political superiors or by men in pursuance of legal rights. This class includes International
Law.

2) Laws improperly so called

These laws are not commanding and thus, are not backed by sanctions. These laws are not
obligatory. Austin’s Imperative Theory of Law or Analytical Positivism: This theory is
known as Positive theory of law, Command theory, Imperative theory of law. Austin opined
that only positive law is the proper subject matter of the study of jurisprudence. He defined”
the jurisprudence is the philosophy of positive law.

According to Austin, the law is the command of the sovereign imposing a duty which is
enforceable by sanction. The study and analysis of positive law are based upon the law which
is strictly applied by political superiors to political inferiors.

The basic features of Command theory are:

• Command (by political superiors).

• Duty (imposing duty on political inferiors).

• Sanction.

• Sovereignty.

1) Sovereign 2) Command 3) Sanction 4) Duty

1) Sovereign: – Law is the command of a sovereign which obliges a person or persons to a

course of conduct. Sovereign means ,such a person who is superior ,nobody can interfere. He
is the supreme, irresistible, absolute and uncontrolled authority. There are some importance
salient features of sovereignty :-

a) Indivisibility b) Illimitability c) Essentiality d) Inalienability

2) Command :-A command means a wish or desire conceived by a rational being to another
rational being who shall do or forbear .it is an evil to proceed from the former to be incurred
by the latter in case of non -compliance and it is an expression or intimation of will by word
or otherwise Command are two type a) General Command b) Particular or specific Command

a) General Command: – A general command is a law or rule where it is obliges generally to

acts so forbearance of a class. All command is not law, it is only the general command.

b) Particular Command: -It is particular when it obliges to a specific individual act.

3) Sanction: -Sanction is an evil which will be incurred if a command is disobeyed and is the
means by which a command or duty is enforced. It is a wider sense of punishment. A reward
for obeying the command can scarcely be called a sanction.

4) Duty: -when the party commanded and threatened is under an obligation to obey it. It is
called duty. Thus, in Austin’s theory duty and command are co-relative and fear of sanction
is the motive for obedience of such command i.e law .The chief characteristics of positive
law are Sovereign Command ,Duty and Sanctions .

Austin says, “every law is a command imposing a duty enforced by a sanction, however, all
the commands are not law”. It is only the general command which is a law. Austin, though,
accepts that there are three kinds of laws which are not commands but may be included
within the purview of law by way of exception. They are:

1. Declaratory/Explanatory laws: They’re not commands because they are already in

existence and are passed only to explain the law which is already enforced.

2. Law of Repeals: Austin doesn’t treat such laws as commands because they’re in for the
revocation of a command.

3. Law of Imperfect obligations: They’re not treated as commands because there’s no

sanction to them. Austin holds that a command to become law must be accompanied by duty
and sanction for its enforcement.

Criticism:

Austin’s trilogy implicit in the concept of law has invoked criticism.

1. Customs are overlooked/ignored: Customs are always to regulate the conduct of human
beings and therefore, customs should also be included in the study of jurisprudence but
Austin ignored them.

2. Law conferring privileges: The law which is pure of permissive character and confers
wholly privileges such as ‘The Wills Act’ which lays down the method of joining a
testamentary document is not covered by Austin’s definition of law.

3. No place for judge-made law: Austin avoids the creative function of judiciary like applying
of the precedents and in the interpretation of laws.

4. Austin theory treats international law as morality: Austin doesn’t treat international law as
lacking sanction and this view of Austin neglects the increasing role of international law in
achieving world peace.

5. Command Overemphasised: Austin’s theory of law overemphasizes on command and in

modern progressive democracies, the law is nothing but an expression of the general will of
the people, therefore the idea of command doesn’t apply in present systems.

6. The interrelation between law and morality is completely ignored: The greatest
shortcoming of Austin’s theory is that it completely ignores the relationship between law and
morality and law can never be completely divorced from morals and ethics.
7. Sanction alone is not the means to induce obedience: Auston’s theory that it’s the sanction
who alone governs the people or induce the persons to obey the law is not correct. There are
so many other factors like fear (of society), reason (of inner conscience), etc. are helpful to
induce a person to obey the law.

Apart from these criticisms, Austin’s contribution of law has been greatly admired by other
thinkers like Bentham, JS Mill, etc. The merits of Austin’s theory lie in its simplicity and it’s
clear expression of separation law and morality. Thus, we can say that Austin made a great
contribution to the law of Jurisprudence.

LAW AS A MANIFESTATION OF THE SPIRIT OF THE PEOPLE BY SAVIGNY

What is the law?

It is challenging to define in a particular way, or a uniform definition of law is like imagination. A

Uniform definition of law is far from reality because every jurist has defined the law according to
their methods and explained it from different viewpoints. Sources, nature, and concerns are some
elements that impact defining law.

So, to make their concepts, various clear schools were established to understand and define law. In
this article, we will discuss one of the schools known as the Historical school of Jurisprudence,
developed by "Friedrich Carl Von Savigny."

Who was Savigny (Friedrich Carl Von Savigny)?:

Savigny was one of the most respected and influential German jurists of the 19thcentury and known
as the pioneer of the Historical school of law through his concept of Volksgeist (Spirit of people). He
was born on February 21, 1779, in Frankfurt, Germany. He studied at the Universities of Marburg and
Gottingen and obtained a deeper knowledge of Roman law during his lifetime. He worked as a
Professor at The University of Berlin in 1810. He was also appointed as the Prussian Minister of
Justice in 1848.

His major works are:

1. Law of Possession (das recht des bestiges), 1803,

2. The History of Roman law in the Middle ages in six volumes, 1818-31,
3. System of Modern Roman law, 1840-49,
4. Contracts, 1853.4

Theory of Volksgeist (What is Volksgeist?):

Volksgeist is the concept of law propounded by Savigny. The term Volksgeist is made by the two
words Volks means people, and geist means their common will. It means Volksgeist means the law is
a common will of the people (spirit of the people). In a simple sense, Volksgeist is a general and
common perception of the people or the spirit of the people.

The main idea of Savigny behind this theory was that law is an expression of the will of the people,
and it doesn't come from deliberate legislation, and it develops as the consciousness of the nation
arises. The core of Volksgeist was that a legal system of a nation is mainly influenced by the historical
culture and traditions of the people, and its growth was located in their acceptance.

Jurisprudential study of the theory:

As mentioned above, Savigny believed that the evolution of law could only be made by taking into
account past considerations, and without doing that, it creates more confusion rather than solving it.
According to Savigny, the origin of law lies in the Volksgeist. For this, he made a whole new school
known as the Historical school of Jurisprudence.

The theory of Volksgeist by Savigny can be explained in the following heads:

Characteristics:

1. Law prevails basically in society:

According to Savigny, the law is the product of the people's life living in a particular society
and it is the outcome of a culture of a society. It embodies the history of a nation's culture and
reflects inner convictions rooted in society's common experience. The Volksgeist gradually
drives the law to develop throughout history. Thus, according to Savigny, a thorough
understanding of the history of people/society is necessary for studying the law accurately.

2. Law develops like a language:

Savigny stated that law develops like a language. He said that law is a national character and
develops like a language in the nation, which not only binds people with beliefs and opinions
in a group but also grows with the development of society. The development of both elements
goes hand in hand. It has no different existence, which follows them but considers as one
being. History is proof that law is developed according to the pre-existing manners in society
and approved by the national character, like language.

3. Law is a continuous and regular process:

Law is a continuous and unbreakable process bound by society's common culture and beliefs,
not the product of the day. It develops through the regular and continuous process of society.
Customs and usages in society are given common consent to be followed by the society in the
beginning, and the people follow them without any hesitation, insured willingly, and those not
following become solitary in the society and finally, all have to become common. This thing
takes the shape of law in society.

4. Savigny's opinion on codification of law:

Savigny was against the codification of the law. He thinks that the development of the law
should be based on historical knowledge and not arbitral legislation.

5. The initial development of law is natural, and later on, it is developed by jurists:
He stated that in the early stages, the law developed naturally/spontaneously according to the
 internal needs of the people. Still, after people reached a certain level of civilisation, different
kinds of national activity developed the law accordingly.

Criticism:
As already discussed, a uniform and precise definition of law are far from reality, and Savigny's
Volksgeist is no exception.

It also has some criticisms by other jurists, which are as follows:

1. Volksgeist not always law:

Dias says that many institutions like slavery have originated not in Volksgeist but in the
convenience of a ruling oligarchy.
2. Not clear who the volk are and whose geist determines the law: It needs to be clarified who
the volk are and whose geist determines the law, nor it is clear whether the law may have
shaped the Volksgeist rather than vice-versa.

3. Inconsistency of the theory:

Savigny, on the one hand, emphasised the national character of law, but on the other hand, he
recommended the method of Roman Law to be adopted for current conditions. Hence there is
inconsistency in the theory of Volksgeist.

4. Volksgeist is not an exclusive source of law:

According to Savigny, Volksgeist is the only source of law in society, but it needs to be
corrected. As far as society is developed, the law is also to be developed by legislation. Lord
Lloyd also said that Savigny underrated the significance of legislation for modern society.

5. Other law influencing factors ignored:

Savigny, in his theory, ignored other factors that helped to originate law. He totally ignored
the judge's function to create the law. Paton states that the creative work of the judges and
jurists was treated rather too lightly by Savigny.

6. It was unfortunate that the National Socialists used the doctrine of Volksgeist in Germany for
an entirely different purpose which led to the passing of brutal laws against the Jews during
the regime of Hitler in Germany.

Conclusion:
As per the matter mentioned above, it can be said that Savigny, in his theory, deliberately focused on
his theory of Volksgeist upon which his research was dependent. In his theory, he says that law is
derived from the customs, tradition, and rules of the community, and the spirit of the people are
important in the creation of the law, and the role of the sovereign is very less. He thinks that by deep
and careful study of the customs, the true essence of the law developed.

Although Savigny's theory was not sufficient for making law and was criticised by many jurists, as
stated above, despite all these criticisms, Savigny became the founding stone of the beginning of
modern-day jurisprudence.

In the end, we conclude that for better governance of society, the legislators should develop the law
based on the customs and traditions of the people, The sovereignty of the legislation and on any
grounds. Because then only the law can be developed more efficiently and effectively.
 NATURAL LAW THEORY : ORIGIN AND DEVELOPMENT THROUGH TIMES

Natural Law–Its Meaning and Definition

There is no unanimity about the definition and exact meaning of Natural Law. In
jurisprudence the term ‘Natural Law’ means those rules and principles which are supposed to
have originated from some supreme source other than any political or worldly authority. It
symbolizes Physical Law of Nature based on moral ideals which has universal applicability at
all places and terms. It has often been used either to defend a change or to maintain status quo
according to needs and requirement of the time. For example, Locke used Natural Law as an
instrument of change but Hobbes used it to maintain status quo in the society.

The concepts of ‘Rule of Law’ in England and India and ‘due process’ in USA are essentially
based on Natural Law. Natural Law is eternal and unalterable, as having existed from the
commencement of the world, uncreated and immutable.

Natural Law is not made by man; it is only discovered by him. Natural Law is not enforced
by any external agency. Natural Law is not promulgated by legislation; it is an outcome of
preaching of philosophers, prophets, saints etc. and thus in a sense, it is a higher form of law.
Natural Law has no formal written Code. Also, there is neither precise penalty for its
violation
nor any specific reward for abiding by its rules. Natural Law has an eternal lasting value
which
is immutable. Natural Law is also termed as Divine Law, Law of Nature, Law of God, etc.
Divine Law means the command of God imposed upon men.

Natural Law is also the Law of Reason, as being established by that reason by which the
world is governed, and also as being addressed to and perceived by the rational of nature of
man. It is also the Universal or Common Law as being of universal validity, the same in all
places and binding on all peoples. Lastly in modern times we find it termed as “moral law” as
being the expression of the principles of morality. The Natural Law denies the possibility of
any rigid separation of the ‘is’ and ‘ought’ aspect of law and believes that such a separation is
unnecessarily causing confusion in the field of law. The supporters of Natural Law argue that
the notions of ‘justice’, ‘right’ or ‘reason’ have been drawn from the nature of man and the
Law of Nature and, therefore, this aspect cannot be completely eliminated from the purview
of law. It has generally been considered as an ideal source of law with invariant contents.
Development of Natural Law

The content and purpose of this law have constant variation from time to time depending on
its usage and functions. The functions and purpose of its usage along with the needs of the
time and circumstances play a crucial role. Therefore, the evolution and growth of natural law
have been through variation over a period of time.

Ancient Period (Stage 1)

Medieval Period (Stage 2)
Renaissance Period (Stage 3)
Modern Period (Stage 4)

ANCIENT PERIOD –

Natural law existed, even when it was not recognized by the government or state. Natural law
theory has influenced the enactment of common law in England. There are various
proponents of the natural law like Aristotle, Plato, Hobbes, Cicero, etc.

The concept of Natural Law was developed by Greek philosophers around 4th century B.C.
Heraclitus was the first Greek philosopher who pointed at the three main characteristic
features of Law of Nature namely, (i) destiny, (ii) order and (iii) reason. He stated that nature
is not a scattered heap of things but there is a definite relation between the things and a
definite order and rhythm of events. According to him, ‘reason’ is one of the essential
elements of Natural Law.

Socrates said that like Natural Physical Law there is a Natural or Moral Law. ‘Human
Insight’ that a man has the capacity to distinguish between good and bad and is able to
appreciate the moral values. This human ‘insight’ is the basis to judge the law. He pleaded for
the necessity of Natural Law for security and stability of the country, which was one of the
principal needs of the age. His pupil Plato supported the same theory. But it is in Aristotle
that we find a proper and logical elaboration of the theory.

Aristotle-According to him, man is a part of nature in two ways; firstly, he is the part of the
creatures of the God, and secondly, he possesses insight and reason by which he can shape
his will. By his reason man can discover the eternal principle of justice. The man’s reason
being the part of the nature, the law discovered by reason is called ‘natural justice’. Positive
Law should try to incorporate in itself the rules of ‘Natural Law’ but it should be obeyed even
if it is devoid of the standard principle of Natural Law. Aristotle suggested that the ideals of
Natural Law have emanated from the human conscience and not from human mind and,
therefore, they are far more valuable than the Positive Law which is an outcome of the human
mind.

MEDIEVAL PERIOD –

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 propagated a view that Divine law was superior to all other laws.

RENAISSANCE PERIOD –

After Renaissance and Reformation in the 14th and 15th centuries natural law ceased to be
associated with Church or Divine God. 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.

MODERN PERIOD –

 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. 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.
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.

Natural Law in India

Hindu legal system is perhaps the most ancient legal system of the world. They developed a
very logical and comprehensive body of law at very early times. A sense of ‘Justice’ pervades
the whole body of law. According to the Hindu view, Law owes its existence to God. Law is
given in ‘Shruti’ and ‘Smritis’. The king is simply to execute that law and he himself is
bound by it and if goes against this law he should be disobeyed. Puranas are full of instances
where the kings were dethroned and beheaded when they went against the established law.

Indian Constitution and Natural Law

Indian Constitution is based on the pillars of Natural Justice, which is a revised version of
natural law. Although the Constitution does not specifically talk about the principle of natural
justice/law, the provisions are embodied in this sense. Starting from the Preamble, the words
Justice inclusive of social, economic and political and equality of status and though, etc.
prove that natural law principles are there in the Indian Constitution.

Apart from the Preamble, Article 14 ensures equality before the law to all the citizens without
any discrimination of any sort. Then there is an Article 21which guarantee Right to Life and
Liberty, which is also the most comprehensive article of the whole constitution is based on
the premises of natural justice. Article 14, 19 and 21 which is also the golden triangle of the
constitution has drawn inspiration from natural law.

Prominent Indian case-laws –

In Air India v. Nargesh Meerza[1981], the Supreme Court had struck down the Air India and
Indian Airlines regulations on retirement and pregnancy bar on the services of air hostesses as
unconstitutional on the ground that regulations were arbitrary and unreasonable under Article
14 of the Constitution.

In Maneka Gandhi v Union of India[1978], the meaning of life and personal liberty under
Article 21 came up for consideration and the Supreme Court held that the law established by
the state should be just, fair and reasonable.
 LAW AS A MEANS OF SOCIAL ENGINEERING – BY ROSCOE POUND –

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 behavior. 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.

When determining the scope and subject matter of the system, the following things have to be
done:

 Preparation of an inventory of interests, classifying them,

 Selection of the interests which should be legally recognized,
 Demarcation of the limits of securing the interests so selected,
 Consideration of the means whereby laws might secure the interests when those have
been acknowledged and delimited, and
 Evolution of the principles of valuation of interests.

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 fulfilment or
satisfaction of maximum wants with minimum usage of resources with minimum friction. 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 individuals 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.

For facilitating the tasks of social engineering, 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.

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 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.

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 fulfil the various desires of human being. In this tech savvy
society desires of human being grows and to fulfil their desires new policies, strategy has
been developed.