ST.

MOTHER TERESA LAW DEGREE COLLEGE

LONAPUR, GOMTI NAGAR, LUCKNOW

L.L.B.(3 YEARS) 1ST SEMESTER COURSE

FACULTY OF LAW

ASSIGNMENT FILE
ON
JURISPRUDENCE

Concept of Law and Schools of Jurisprudence

SUBMITTED TO – SUBMITTED BY –

MISS SHIVANI CHAUDHARY PANKAJ KUMAR JAISWAL

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 Acknowledgement

I would like to thank MISS

SHIVANI CHAUDHARY for his
valuable guidance and help. He
clarified all my queries about
the project without which I would
have not been able to complete
the project. I would also liketo
thank my family for providing all
necessary materials and my
friends for helping me with this
project.

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 Concept of Law and Schools of Jurisprudence

INTRODUCTION

The word ‘jurisprudence’ derived from the Latin word ‘jurisprudentia’ which means
knowledge of law. The Latin word ‘juris’ means law and ‘prudentia’ means skill or
knowledge. Thus the term jurisprudence signifies knowledge of law and its application.
Jurisprudence means the interpretation of the general principles based on which actual rules
of law are recognised. Jurisprudence is concerned with the rules of external conduct which
people are forced to obey. Some of the notable definitions of jurisprudence as expounded by
jurists are as follow:

As per Cicero, “Jurisprudence is the philosophical aspect of knowledge of law.”

According to Salmond, “Jurisprudence is the science of the first principles of civil law.”

According to John Austin, “Jurisprudence is the philosophy of positive law.”

In the views of Holland, “Jurisprudence as the formal science of positive law.”

As per H.L.A. Hart, “Jurisprudence is the science of law in a broader perspective by co-
relating law and morality.”

Rosco Pound defines Jurisprudence as “the science of law denoting the body of principles
recognised or enforced by public and regular tribunals in the administration of justice”.[1]

Law is the subject matter of jurisprudence since the latter deals with the study of law. Austin
thought it is necessary to define law in order to establish the province of jurisprudence. The
history of the concept of law discloses that jurisprudence has dissimilar meanings at different
periods. Therefore it is difficult to attempt a singular definition of the term.

CONCEPT OF LAW

Wherever the concept of law is examined, as it occurs, for example, in mathematics, logic,
and the physical sciences, one surrounded by puzzles and confusion. Laws are acknowledged
to be very queer things; baffling questions about them arise on every side. Nowhere,
however, is the thicket of intellectual difficulties more tangled than it is about the concept of
law in jurisprudence. Some of the main questions that require answers are: (1) what is a law?
(2) What is the legal system? (3) What are the criteria for good laws? (4) Who or what is the
authority behind the law? Many of the troubles and falsehoods which a philosopher of law is
appropriate to encounter, initiated by a tendency to confuse two or more of these questions.
However, even when he avoids that kind of error, the tasks of determining the precise
meaning of these questions and their answers remain formidable ones. H. L. A. Hart,

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Professor of Jurisprudence in the University of Oxford, discusses these and related problems
in his new book[2]. Hart, being a lawyer, is also a fine philosopher: in short, just the man for
the job. Moreover, he has done it exceedingly well. Hart expressed hope that “it may also be
of use to those whose interests are in moral or political philosophy or sociology, rather than in
law” is amply fulfilled. There is an introductory chapter which explains the “persistent
questions” of legal theory, three chapters dealing critically with the views of John Austin,
three in which he expounds his positive theory of the law itself, one concerning justice and
morality, another on the relationship between law and morals, and a concluding chapter
which deals with international law.[3]

Law can be said to be a principle and regulation established in a particular community by an

authority and applicable to its people, whether in the form of legislation or custom and
policies recognised and enforced by State authority. In jurisprudence, law is the subject
matter.

As per Blackstone, a law in its most general and comprehensive sense signifies a rule of action
and is applied indiscriminately to all kind of actions irrespective of gender, caste, language,
race, birth, colour, etc.

According to Salmond, the body of principles recognised and applied by the state in the
administration of justice.[4]

There are different types of law such as general law, private international law, conventional
law, special law, municipal law, customary law, international law, private law, public law,
constitutional law, administrative law, substantive law and procedural law.

The following are said to be the identified sources of law: legislation, custom, precedent,
juristic opinion, international convention.

CONCEPT OF LAW & SCHOOLS OF JURISPRUDENCE

The schools of jurisprudence has defined law in various aspects. Many jurists have attempted
to define the concept of law in clear aspects. The concept of law shall be mentioned in detail
under the following schools of jurisprudence. They are as follows:

Natural Law Theory

Analytical/Positive School of Jurisprudence

Historical School of Jurisprudence

Philosophical/Ethical School of Jurisprudence

Sociological School of Jurisprudence

Marxism School of Jurisprudence

Realist Theory of Law

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3.1. NATURAL LAW THEORY

There is no consensus about the definition and exact meaning of Natural Law. The term
Natural Law in jurisprudence implies those standards and standards which should have started
from some preeminent source other than any political or common specialist. It symbolizes
Physical Law of Nature-dependent on moral standards which has all-inclusive relevance at all
places and terms. It has regularly been utilized either to safeguard a change or to keep up
business as usual as indicated by necessities and prerequisite of the time. For instance, Locke
utilized Natural Law as an instrument of progress, however Hobbes utilized it to keep up the
present state of affairs in the public arena. The ideas of ‘Rule of Law’ in Britain and India and
‘due process’ in USA are built up dependent on Natural Law.

Natural Law is eternal and unchangeable, as having existed from the commencement of the
world. Man does not make natural Law; he only discovers it. Any external agency cannot not
enforce natural law. Natural Law is a law which does not have legislation backing. Basically it
is an outcome of preaching of the philosophers, prophets, saints etc. and thus it is a higher
form of law. Natural Law is also known as Divine Law, Law of Nature, and Law of God. Divine
Law implies the order of God forced upon men. Natural Law is likewise the Law of Reason, as
being built up by that reason by which the world’s governed, and furthermore as being routed
to and seen by the sensible idea of man. It is additionally the widespread or Custom-based
Law as being of universal validity, the equivalent in all spots and authoritative on all people
groups, and not one thing at Athens.

Ultimately in present day times we think that it’s named as “moral law” just like the
declaration of the principles of morality. The Natural Law prevents the probability from
claiming any inflexible partition of the ‘is’ and ‘ought’ part of law and accepts that such a
detachment is pointlessly causing confusion in the field of law. The supporters of Natural Law
contend that the thoughts of ‘justice’, ‘right’ or ‘reason’ have started from the idea of man
and the Law of Nature and, hence this perspective can’t be disposed of from the domain of
law.[5]

3.1.1. Heraclitus

The idea of Natural Law was created by Greek thinkers around fourth century. B.C. Heraclitus
was the primary Greek logician who pointed at the three principle highlights of Law of
Nature, to be specific, (I) destiny, (ii) order and (iii) reason. He expressed that nature is
definitely not a scattered heap of things, however there is a clear connection between the
things and a definite order and rhythm of occasions. As per him, ‘reason’ is one of the basic
components of Natural Law.

3.1.2. Socrates

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Socrates has stated that a man can distinguish between good and bad and can appreciate the
moral values. This human ‘insight’ is the foundation to review the law. He did not deny the
ability of the Positive Law. Socrates pleaded for the necessity of Natural Law for the safety
and stability of the nation, which was one of the major need of the age. His apprentice Plato
supported the same theory. However, it is in Aristotle that we find a proper and logical
elaboration of the theory.

3.1.3. Aristotle

According to Aristotle, man is a part of nature in two means. Firstly, he is a part of the
creatures of God, secondly, he possesses awareness and reason by which he can form his will.
By this reason, man can determine the eternal norm of justice. The man’s reason being the
part of nature, the law discovered by reason is called ‘natural justice’. The Law should be
reformed or amended rather than being broken.

3.1.4. Natural Law and Roman law

The Romans did not confine their study simply to theoretical thoughts but carried it to give an
applied shape by transforming their rigid legal system into a living law. Natural Law
implemented a very constructive influence on the Roman law through separation of Roman
law into three divisions namely ‘Jus civile’, ‘Jusgentium’ and ‘Jus naturale’. Civil law called
‘Jus civile’ applied only to Roman citizens. The law which governed Roman people as well as
foreigners was said to be ‘Jus Gentium’. Jus Gentium is encompassed of the universal legal
doctrines which comply with Natural Law. Later, both these were combined to be known as
‘Jus naturale’.[6]

3.1.5. Natural Law: Indian Scenario

Hindu legal system is perhaps the most ancient legal system of the world. The Hindus
established a logical and comprehensive law at early times. According to the Hindu
understanding, Law owes its existence to God. Law is provided in ‘Shruti’ and ‘Smritis’. The
king is to execute that law, and he is bound by it, and the king is disobeyed if it goes against
this law. The puranas are full of occasions where the kings were dethroned and beheaded
when they went in contradiction of the recognised law.

3.1.6. Medieval Period

The opinions of Thomas Aquinas are regarded as a representative of the fresh theory. His
society opinions are comparable to Aristotle’s opinions. Law is, according to Acquinas, ‘ an
ordinance of reason for the common good produced by him who cared for and proclaimed the
community.’ St. Thomas Aquinas classified laws, namely, (1) Law of God or external law, (2)
Natural Law disclosed through “reason,” (3) Divine Law or Scripture Law, (4) Human Laws
that we now call “Positive Law.” Natural law is component of the law of God. It is that
component that in natural reason shows itself. He considered the power of Church to
interpret Divine Law. Therefore, it also has the power to give judgment on Positive Law’s
goodness.

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3.1.7. Hugo Grotius (1583 – 1645)

In the concept of natural law advocated by Grotius, there is inconsistency. Grotius says a
ruler must follow the ‘ natural law ‘ and, on the other hand, he argues that the ruler should
not be disobeyed. However, it was evident that Grotius feared the stability of political order
and maintenance of international peace which was the need of that particular point of time.

3.1.9. Rudolf Stammler (1856 – 1938)

Stammler described the law as “species of will, other-looking, self-authoritative and

inviolable.” For him, the greatest expression of the social existence of man was a just law
aimed at preserving individual freedom. According to him, the two basic principles needed for
a just legislation were: (1) respect principles, and (2) community engagement principle. The
law of nature, he believes, implies ‘ just law ‘ which harmonizes the aims of society. The aim
of law is not to safeguard one’s will, but to unify everyone’s objectives.

3.1.10. Kohler

Kohler described the law as “the norm of conduct that emanates from the whole and imposes
on the person as a result of the internal impulse that urges people towards a decent type of
life.” He claims there is no eternal law, and in the course of evolution the law forms itself as
society advances morality and culture.

ANALYTICAL/POSITIVE SCHOOL

Legal positivism is seen in legal jurisprudence around the globe as one of the most important
schools of thought. This theory was created around the 18th and 19th centuries by jurists like
John Austin and Jeremy Bentham. Subsequently, influential jurists such as Herbert Lionel
Adolphus Hart and Joseph Raz advanced this school of thought.

The above-mentioned jurists have substantial differences of opinion, but the prevalent
concept that all the above-mentioned jurists have is to analyse law as it is. Therefore, they
have the common objective of helping people understand the law of the land as it is and not
as it ought to be. Therefore, the legal positivist school only aims to identify the law as it is
laid down by a superior body and not how it should have been.[7] The major exponents of this
school are Jeremy Bentham, John Austin, Holland, Salmond and H.L.A Hart.

Jeremy Bentham

Jeremy Bentham is said to be the father of the Analytical school of jurisprudence. Bentham
rejected the natural law and expounded the principle of utility with scientific accuracy. He
partitioned jurisprudence into censorial and expository. The former handles the law as it is,
while the latter handles the law as it ought to be. Analysis of censorial jurisprudence by
Bentham is indicative of the reality that the effect of natural law had not disappeared
entirely. That is why he talked of utility as the governing rule. Bentham believes that law is a
product of state and sovereign. As per Bentham’s concept of law, law is an imperative one for
which he referred the term ‘mandate’. A law may be defined as an association of sin

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declarative of a violation conceived or adopted by the sovereign in a state concerning the
conduct to be observed in a certain case by a certain person or class of persons who, in the
case, in question are or supposed to be subject to his power. [8]

John Austin

John Austin, the father of the Analytical School of Jurisprudence, limited the scope of
jurisprudence and prescribed its boundaries. As per Austin, analysis is the principal technique
of study in jurisprudence. He built on the foundation of expository jurisprudence laid by
Bentham and did not concern himself with extra-legal norms. Austin differentiated the
science of legislation and law from morals. Austin divided Jurisprudence into general
jurisprudence and particular jurisprudence. According to Austin’s opinions, the assessment of
positive law is to be achieved through the operation of logic on law without consideration of
law, and he stressed that it is difficult to figure out the universal components in law through
the operation of logic. Austin’s approach is applicable to a unitary polity based on
parliamentary sovereignty. It does not have the relevance to legal systems as in India and the
USA.

In common use, Austin defines law, means and includes things that cannot correctly be called
‘ law. ‘Austin described law as ‘ a rule laid down by an intelligent being having authority over
him to guide a smart being. Law are of two kinds: Law of God and Human Laws:

This is again divided into two parts: Law of God – Laws set by God for men. Human Laws –
Laws which are set by men for men. Human laws of two types can be split into two groups: 1.
Positive law; these are the rules set by political superiors as such, or by individuals who do
not act as political superiors but act in pursuit of the rules granted by political superiors. Only
these statutes are the appropriate matter of jurisprudence. 2. Other Laws; legislation not
established by political superiors (set by individuals who do not act in the ability or
personality of political superiors) or by individuals pursuing legal rights. The law correctly so-
called the positive law relies on the sovereign political power. Therefore, every law is a
command according to Austin. So correctly so-called laws are a command species.

Commands are of two types: Las or rules and Occasional commands.

A command is a law or guidelines where it usually requires individuals to act or forbear. It is

occasional or particular when it requires action or forbearance from a particular person. Law
is a command that imposes a course of behaviour on an individual or individuals. It needs
significance and can therefore emanate only from a determinable source or author (a person
or individual body). Laws come from superiors, binding and compelling inferiors. Superiors
invested with authority: the power to inflict pain or evil on others and thus force them to
adhere to their commands.

Thomas Erskine Holland

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Holland is another exponent of the Analytical school of jurisprudence. He followed the
footsteps of Austin. He varies from Austin as to how the word positive law is interpreted.
According to Holland, all laws are not sovereign’s command; instead, he describes law as
rules of internal human action enforced by a sovereign political power.

John Salmond

There are differences between the predecessors and Salmond. These difference of opinion
are as follows:

Salmond gives up the attempt to find the universal elements in law by defining jurisprudence
as the science of civil law. As per Salmond there is nothing like universal element in law
because it is the science of the law of the land and is thus conditioned by factors which
prevail in a particular state.

He deals with law as it is but law to Salmond is to be well-defined not in relation to the
sovereign but in terms of the courts. Law is something which originates from courts only.

Salmond did not agree with Austin that analysis of law is done with the assistance of logic
only. According to him the study of jurisprudence which disregards ethical and historical
aspects will become a barren study.

L.A. Hart

According to Hart, the law is a system of two types of rules the union of which provides the
key to the science of jurisprudence. These rules, he called as ‘primary’ and ‘secondary’ rules.
Hart rejects Austin’s view that law is a command and Austin’s command theory failed to
encompass the variety of laws.[9] Hart stated that primary rules are duty imposing while
secondary rules confer power and the union of the two as the essence of law. Hart stated that
primary rules are those who lay down standards of behaviour and are rules of obligation.[10]
The secondary rules are additional to and concern the primary rules in numerous ways. For
instance, they specify the means in which the primary rules may be determined, introduced,
rejected or varied, and the manner in which their violation may be finally determined. Hart
considers legal system is a set of social rules. These rules are social in two senses: first in that
they regulate the conduct of members of societies (they are guides to human conduct and
standards of criticism of such conduct, secondly, in that they derive from human social
practices).[11]

Hans Kelson’s Pure Theory of Law

Kelson’s pure theory of law states that law must remain free from social sciences. Kelson
aimed to establish a science of law which will be pure in the sense that it will strictly abstain
from all metaphysical, ethical, moral, psychological and sociological elements. According to
Kelson law is an order of human behaviour. The theory is summarised as under:

The aim of the theory of law as of any science is to reduce chaos and multiplicity and to bring
unity.

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It is knowledge of what law is not of what the law ought to be.

Law is a normative, not a natural science.

Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order.

A theory of law is formal, of the way of ordering changing contents in a specific way.

The relations of legal theory to a particular system of positive law is that of possible to actual
law.

The theory of Kelson is basically about the concept of norms. For Kelson, an understanding of
a hierarchy of norms is jurisprudence. A norm is merely a hypothetical preposition. Jurists
like Friedman criticise his idea of norms as the concept of grund-norm is vague. A grund norm
derives its efficacy from the fact of its minimum effectiveness. Kelson does not provide the
criteria for minimum of effectiveness measurement.

HISTORICAL SCHOOL

The historical school follows the concept of human-made law. Law is framed for the
individuals and by the individuals ‘ means the law should be in line with people’s evolving
requirements. The Historical School of Jurisprudence’s fundamental source is people’s habits
and customs that change according to their requirements and needs. It’s also called the
Jurisprudence Continental School.

The Historical School believes that, according to their evolving requirements, law is created
by individuals. Habits and customs are the primary sources of the Historical School. Historical
school has emerged as a response against the theories of natural law, according to Dias.[12]
The following are the jurists of the Historical School of Jurisprudence. They are:

Montesquieu

According to Sir Henry Maine, Montesquieu was the first jurist to embrace the historical
method of understanding the legal institution. He laid the foundation for the historical school
in France. According to him, it is irrelevant to discuss whether the law is good or bad,
because the law depends on the social, political and environmental conditions that prevail in
society. Montesquieu discovered “The law generates climate, local situations, accidents or
impostures,” He believed that law had to alter according to society’s evolving requirements.
He has not established any theory or philosophy of the law-society relationship. He proposed
that the law should respond to the location’s requirements and alter according to people’s
time, location, and needs. One of Montesquieu’s best-known works was his book “The Spirit
of Laws.” He reflects his views in political enlightenment concepts in this novel and indicates
how laws are needed to change according to people’s and society’s requirements.

Friedrich Carl Von Savigny

Savigny is the Historical school’s founder. He asserted that the legal system’s consistent
nature is generally due to a lack of understanding of its history and origin. According to him,

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the law is “a result of moments the germ of which, like the germ of the State, remains in the
nature of people as being produced for culture and which grows different types from this
germ, depending on the environment of the factors that perform on it.” Savigny thinks that it
is not possible to borrow the law from outside. Moreover, the main source of law is the
consciousness of the people. He was of the opinion that the law of the state grows with the
strengthening of the nationality of the state and that law dies or fade away when nationality
loses its power in the state.

Volksgeist means “national character”. According to Savignty’sVolksgesit, The law is the

product of the people’s general consciousness. The Volksgeist idea was used as a warning
against the hasty legislation and brought the abstract revolutionary thoughts on the legal
system unless they supported the people’s general will. Savigny believed that law should not
be discovered from intentional legislation, but should be created and arise from people’s
general awareness.

Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’sviews of
Historical school was carried forward in England by Sir Henry Maine.

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

Maine describes development of law:

It is thought that the rulers act under divine inspiration. The laws are also created on the
rulers ‘ instructions. For instance, Themistes of Anicent Greek. The King’s judgement was
regarded as God’s judgement or some divine body. King was just an executor of God’s
decisions, not the legislator. Then King’s orders became customary law. In the ruler or
majority class, the custom prevails. Customs appear to have succeeded the king’s right and
officials.

The understanding and administration of customs comes into the hands of a minority, the
understanding of customs comes into the hands of a minority class or normal class because of
the weakening of the law-making power of the initial lawmakers like Priests. So the ruler is
superseded by a minority who obtain control over the law. In the fourth and last stage, the
law is codified and promulgated.

Georg Friedrich Puchta

Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical
School of Jurisprudence. Puchta’s ideas were more logical and improved than Savigny’s ideas.
He traced the development and evolution of law from the very beginning. His ideas mainly
focused on the situation when conflict arises between the general will and individual will. In

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the conflict between general will and individual will, the state came into existence and find
out the midway to resolve the conflict.

The main concept of Puchta’s ideas was that “neither the people nor the state alone can
make and formulate laws”. Both State and individual are the sources of law. Contributions:

Puchta gave twofold aspects of human will and the origin of the state.

Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and
made them more logical.

PHILOSOPHICAL SCHOOL

The Philosophical School is not concerned with what the actual law of the past and the
present is. Their effort is to develop the idea of justice as an ethical principle and
consequently to create an ideal system of law.

In the eighteenth century, they put their faith in the law of nature which could be discovered
by human reason. In the nineteenth century they engaged themselves in the metaphysical
discussions of the existing law and in attempts to create a perfect system of law in codes and
legislation.

In the twentieth century, they devoted themselves to social interests and ideals and the
formulation of theories of social justice.

The jurists of the Philosophical School have always considered law as an abstraction and
based it upon abstract ethical principles of justice. A law, as such, is removed from
objectivity whereas it ought to be definite and precise, capable of universal application.
Idealism must be mixed with realism. The following are the viewpoints of jurists:

Hugo Grotius

Hugo Grotius worked as a jurist in the Dutch Republic and laid the foundation for
international law, based on natural law. Grotius removed the natural law from the
jurisdiction of moral theologians and made it the business of lawyers and philosophers, by
asserting their very nature, natural laws were authoritative in themselves, with or without
faith in God. He prompted the concept of ‘just war’ as are which was required by natural,
national divine law under certain circumstances. He developed a series of rules for ‘right
conduct’ of war, based on the principle that actions in a war should ‘serve the right’.

Jean Jaques Rousseau

Rousseau thought that the enslavement of modern man to his own requirements was
accountable for all kinds of social ills, from the exploitation and domination of others to poor
self-esteem and depression, Rousseau thought that good government must have as its most
basic goal the liberty of all its people. In specific, the social agreement is Rousseau’s effort to
imagine the type of government that best affirms all its citizens ‘ individual liberty, with
certain limitations inherent in a complicated, contemporary, civil society. Rousseau

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recognized that as long as property and regulations exist, individuals in contemporary culture
can never be as completely free as they are in the state of nature, a point that Marx and
many other communist social philosophers echoed later.

Immanuel Kant

Immanuel Kant is one of the most influential philosophers in the history of western
philosophy. He developed his metaphysical method further and held that ethics and law are
not the same thing. According to Kant, ethics relates to man’s spontaneous acts while law
deals with all those acts to which a man be compelled. Kant states that law regulates man’s
external conduct. He stated that compulsion should be exercise man’s conduct. As per him,
Law is the total of the conditions under which the personal wishes of man be reconciled with
the personal wishes of another man following a general law of freedom. Thus Kant considered
compulsion as an essential element of the law, and a right is nothing but a power to compel.

SOCIOLOGICAL SCHOOL

Auguste Comte (1798-1857) was a French Philosopher. Comte used the word “Sociology” for
the first time and defined sociology as a positive social facts science. He said society is like an
organism, and when it is guided by Scientific Principles it could advance. Thus, he is making
excellent attempts to use the law as an instrument through which human society retains itself
and advances.

Sociological School’s concept is to demonstrate a law-society relationship. This school put

more emphasis on the legal view of every issue and diversity that occurs in society. Law is a
social phenomenon and there is a main or indirect relationship between law and society. The
Sociological School of Jurisprudence focuses on balancing the state benefit and the
realization of the person. The Sociological School of Jurisprudence examines the law-
sociology connection. There are two distinct elements to each request or idea. One is
sociological, and the other is legal.

The sociological method of jurisprudence that resulted from the change in the political shift
from the doctrine of laissez-faire, the industrial and technological revolution and, finally, the
centred historical school. The connection between the law and the social welfare state of the
modern century sought to study law as seeking the social source of law and legal institutions,
to examine law as a specified social phenomenon, and finally to judge law by its social
usefulness.[13]

Montesquieu

Montesquieu was a French philosopher, and he paved the way of the sociological school of
jurisprudence. He was of the view that the social condition of society somehow influences the
legal process. He also acknowledged the significance of history as a means of understanding
society’s composition and clarified the significance of studying society’s history before
formulating law for that particular society.

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In his book ‘ The Spirit of Laws, ‘ he wrote, ‘The features of a country should be determined
by the law, so that they should relate to the climate of each country, the quality of each
soul, its situation and extent, the main occupations of the natives, whether they are
husbandmen, huntsmen or shepherds, the degree of freedom that the constitution will bear
on the religion of the residents, their inclinations, wealth, numbers, trade, customs and
manners.’

Eugen Ehrlich

Eugen Ehrlich is regarded as the sociology of law founder. Sociology of Law is the law study
from the sociological point of view. Ehrlich saw society as the main source of law, and by
society he meant “men’s association.” Ehrlich had written that “the centre of gravity of all
legal developments is not in law or judicial decisions but in society itself.” He asserted that
society is the primary source of law and a stronger source of law than law or judgment.

Rosco Pound

Pound was an American Legal Scholar. His view is that law should be studied in its actual
working and not as it stands in the book. Roscoe Pound gives the theory of Social Engineering
in which he compared lawyers with the Engineers. Engineers are required to use their
engineering skill to manufacture new products. Similarly, social engineers are required to
build that type of structure in the society which provides maximum happiness and minimum
friction.

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

Social Engineering is balancing the conflicting interest of Individual and the state with the
help of law. Law is a body of knowledge with the help of law the large part of Social
engineering is carried on. Law is used to solve the conflicting interest and problems in
society. He mentioned that everybody has its interest and considered it supreme over all
other interest. The objective of the law is to create a balance between the interests of the
people.

Leon Duguit

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

The word ‘ Social Solidarity reflects society’s power, cohesiveness, collective awareness, and
viability. ‘Leon Duguit’s Social Solidarity explains men’s interdependence on his fellow men.
Without relying on other men, no one can survive.

The law’s aim is to encourage social solidarity among people. Leon Duguit therefore regarded
the law to be a bad law that does not encourage social solidarity. He also said that each

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individual had the right and obligation to encourage social solidarity. For example, in India,
everyone follows the codified legislation. It is therefore promoting social solidarity.[14]

MARXISM

Marxist theory of law is mainly related to the doctrines of Karl Marx (1818-1883) and Friedrich
Engels (1820 – 1895). It is historical in part and sociological in part. Marxist theory of law’
differs significantly from other theories and philosophies of law mentioned in the theory of
law. Positivism, in its various forms, is mainly based on current legal institutions on which
and from which an assessment of the law and the legal system can be drawn. The primary
characteristic of the ‘ socialist legal theory ‘ is that a legal system must be based on Karl
Marx’s and his successors ‘ political and economic philosophy.

Karl Marx’s Communist Manifesto, printed in London in 1848, was one of the earliest
documents of great importance in the development of communism in general, and of socialist
legal theory in particular. The Communist Manifesto’s argument is simple and characterized
by the early statement: “The history of all society that exists hitherto is the history of class
struggles.”

Since class struggle lies at the base of social conflict and social and economic development,
the typical stages of a community’s development must be traced out. In a primitive stage of
the exploitation of men by men there is slavery, an institution nowadays universally
condemned.

In rigorous accordance with his carefully developed world outlook, Karl Marx fashioned a
theory of law. The study was, for Marx, a means to an end. The end was society’s
revolutionary transformation. A comprehension of the nature of social phenomena such as
economics, politics, and law would guarantee proper chartering of the route to revolution.
Marx said, “Up till now philosophers have merely interpreted the world, the point, however,
and is to change it”. An understanding of jurisprudence demands more than a static analysis.
According to Marx, it must encompass a study of the nature of law within a society in flux.
There are three doctrines in Marxist jurisprudence: dialectical materialism, financial
manufacturing legislation, and historical materialism.

Law & State

In order to grasp and comprehend the Marxist notion of State and Law, one must first be
acquainted with the Marxist theory of the origins and significance of law and state as
described by Engels in his book Origin of Family, Private Property and State (1884). In the
beginning, according to Engels, there was a classless society in which all people enjoyed the
same position with regard to the means of production; individuals were equal and
independent from each other since the means of production were free and available to all.
They respected rules of behaviour but these rules were not legal rules because they were
based solely on habits and corresponded to present behaviour, neither enforced nor
sanctioned by the use of force.

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Later, by dividing labour and dividing it into classes, primitive society became socially
divided. One of these classes took possession of the means of manufacturing itself,
dispossessing the others that it then started to exploit. In moment, legislation and state were
born at this movement. There is a link between these two concepts for the Marxists. Law is a
human conduct rule that differs from other behavioural laws because it includes coercion that
is the state’s intervention. The State is a social agency that ensures that this principle is
respected either by the threat of the use of force. Without a state there is no law, and
without law there is no state; state and law are two different words that describe the same
thing.

State and law are the outcomes of a particular social financial framework. They are
discovered only at a specific point of their evolution in a certain type of culture. Only when
society is split into social classes, one of which exploits the other or others economically, do
law and the State appear. In such a situation, the ruling class has recourse to law and the
state in order to strengthen and perpetuate its domination.

The law is the instrument which, in the class struggle, safeguards the interests of the ruling
class and maintains social inequality for its profit. It can be defined as that series of social
norms which regulate the dominating relationship of the ruling class to the subjugated class,
in those areas of this relationship which cannot be maintained without recourse to the
oppression wielded by a solidly organised state, and the state itself, is the organization of the
exploiting class in order to protect its own class interests.

Human history is mainly the history of class conflict: in other words, it is the ongoing fight of
one class or another to capture the means of production and thus develop its dictatorship.
History’s turning points are marked by exploited class wins that turn into the exploiting class.
The emergence of a fresh social class reflects a step forward because it corresponds to a
more sophisticated form of production, more in line with technological progress and society’s
overall aspirations. However, society will continue to suffer from a fundamental deficiency as
long as the means of production stay the property of only a few and so long as there are those
who are exploiting and those who are being exploited.

REALIST THEORY OF LAW

The realist’s movement in United States represents the latest branch of sociological
jurisprudence which concentrates on decisions of law courts. The realists contend that law
has emanated from judges; therefore, law is what courts do and not what they say. Realist’s
exponents state that judges are the lawmakers.

However, modern realism differs from sociological school as unlike the latter, they are not
much concerned about the ends of law, but their main attention is on scientific observation
of law, and it is actually functioning. The contention of realists is that judicial decisions are
not based on abstract formal law, but the human aspect of the Judge and the lawyer also has
an impact on court’s decision.

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It was around 1930s that some American jurists notably Holmes, Cardozo and Gray raised their
voice against legal conceptualisation and stressed on the study of law as it operates and
functions. Realists combined analytical positivism and sociological ideologies in their legal
approach law and social institutions. Realists uphold only Judge made law as genuine law, and
they do not give any importance to laws enacted by legislatures. Realists believe that
certainty of law is a myth.

It must be stated that the realist movement in United States owes its origin to pragmatic
approach to law in early decades of twentieth century. The progressive legal thinkers denied
to accept law as an abstract conception and tried to base it on facts and actions.

According to Goodhart, the main characteristic features of realist jurisprudence are as

follows:

Realists think there can be no certainty about the law as its predictability depends on the
collection of facts to be decided by the tribunal.

They do not favour formal, logical, and conceptual legislative strategy.

They lay greater stress on the psychological approach to the proper understanding of law as it
is concerned with human behaviour and convictions of the lawyers and Judges.

The importance of legal terminology is opposed by realists.

They prefer to evaluate any part of the law in terms of its effects.

It presupposes that law is intimately connected with the society, and since society changes
faster than law, there can never be certain about law. There is no place for idealism in law
and therefore, law as it ‘is’ must be completely divorced from law as it ‘ought’ to be.[15]

Oliver Windell Holmes

The noted American Jurist Oliver Windell Holmes discussed law from “the bad man”, i.e., the
person who was before the court as an accused or wrongdoer. The concern of the judge is to
do justice in the case before him, and if that required a creative interpretation of existing
rules, he should certainly resort to it. The judge has to apply the law as he finds it and not to
seek to rectify perceived inadequacies by the use of creative interpretation. Holmes asserted
that where there is a gap in the law, judges are required to take account of precedent but
where this is unclear, he must decide the best way to proceed and the result may be a
decision which is in some way innovative, but the fundamental principles are always part of
the law.[16]

Scandinavian Realism

Besides the American realist movement, a simultaneous wave of realism also developed in
Sweden. There was, however, one material difference between American realism and the
Swedish realistic movement. Pointing out the difference between the two, Dr Allen observed,

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If American realism is ruling skeptic, Scandinavian realism may be described as metaphysical
sceptical.

There is no place for a priori pre-conceptions for which there is no scientific basis. Thus
Scandinavian realists discard from law all a priori notions of natural law, abstract conceptions
and idealism because they are all purely theoretical precepts without any practical utility.
Supporting this contention of Olivecrona, Professor Ross also projected a view that “law in all
its forms is a social reality devoid of doctrinal conceptions like morality, idealism, natural law
and theoretical (metaphysical) conceptions such as right, duty, sovereignty etc. which formed
the core of analytical school of jurisprudence in England.

According to Bodenheimer, Scandinavian Realism differs from the American realist school in
two major aspects, namely, (1) it is more speculative in approach to legal problems and (2) it
does not devote as much attention psychological behaviour of Judges as the American realists
do. However, both adopt an empiricist attitude towards law and life and give more weight to
the social effects of law with emphasis on judicial decisions. For Julius Stone, Realist
movement is a gloss on the sociological approach to jurisprudence.

Karl Olivecrona

Professor Olivecronaemphasised the study of law as a social fact. According to him, law is
nothing but a ‘set of social facts’. He rejected the view that laws are commands or an
expression of the will of the state and argued that they are independent imperatives issued
by constitutional agencies of the state from time to time and they operate in the mind of the
judge while reaching a particular decision. He propagated the view that law is a set of
independent imperative prescribed by law agencies such as Courts, Parliament etc. producing
a set of social facts based on the application of organised force of the State.[17]

CONCLUSION

The concept of law is still a developing area where it can have various abstracts as per the
current scenario. The schools of jurisprudence have provided their views on the concept of
law as per their ideologies and thinking. There are various criticisms for the schools by
different jurists. Thus concept of law is a difficult concept to be explained as to have a clear
definition. Hence the viewpoints of various jurists and their school of thought may be
considered for further development of this area and its practical application.

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