According to Salmond - Jurisprudence is the name given to a certain type of investigation into a
law, an investigation of an abstract, general and theoretical nature which
seeks to lay bare the essential principles of law and the legal system
Nature of Jurisprudence
Jurisprudence analyzes legal concepts. It also tries to find out the
essential principles of law. It not only analyzes the rules which are
already known but it also analyzes and sets the foundation of new rules. It
is a result of the thinking of Jurists and philosophers. They are having the
freedom to access, analyze and speculate about the legal system. So, it can
be said as an intellectual exercise which is having no immediate practical
application. It sets the tone for a reformation of the law.
Jurisprudence links laws with other disciplines like psychology, politics,
economics etc. Its scope is always changing. It is not derived from any act
of parliament or state assembly. Lord Tennyson calls it, Lawless subject of
law. Various concepts like Origin of law, need of the law, the utility of
the law are studied by various Jurists. This study of concepts of law is
What is the Significance of Jurisprudence?
Jurisprudence provides solutions for the multidimensional problems of law.
It helps in the overall progress of society. It increases the lawyer's
ability to think logically. It gives philosophy, ethics, and morality in the
lawyer's skills which makes them forward looking. There are many times when
there are gaps in the laws, during those times Judges follow the
Jurisprudence. Jurisprudence is the theoretical basis of the law and without
it; practical application of the law is not possible.
It also helps in the
linking of psychology, sociology, economics, politics and anthropology to
the law. The study of Jurisprudence encourages them to ask critical
questions and apply their knowledge for a wider understanding of the nature
of law and its relevance. The study of Jurisprudence is essential to become
Schools Of Jurisprudence
The word jurisprudence
is derived from the Latin phrase juris prudential.
This means 'knowledge of the law. Jurisprudence is the study of law, or the
philosophy of law. It helps us better understand the creation, application,
and enforcement of laws. The followings are the schools;
Analytical or Imperative School (Positivism)
The analytical school is positive' in its approach to the legal problems in
the society. It concentrates on things as they are, not as they ought to be.
The main concern of the positivists is law that is actually found positum,
and not the ideal law. The most important legal sources are legislation,
judicial precedents and customary law.
This school, dominant in England, lays down the essential elements that go
to make up the whole fabric of law e. g. State sovereignty and the
administration of Justice. The motto of Analytical school is Ubi civitas
ibI lex' i.e. where there is State, there will not be anarchy; State is a
The main proponents of this school are: Bentham, Holland,
Austin, Salmond, etc:
a) Bentham's Concept of Law:
Truly speaking, Bentham (1748-1832), the
founder of Positivism should be considered the Father of analytical
positivism, and not Austin as it is commonly believed (in fact, Austin owes
much to Bentham). He was a champion of codified law (legislation). Bentham's
work was intended to provide the indispensable introduction of a civil code
Bentham distinguished expositorial jurisprudence (i.e. what the law is) from
censorial jurisprudence (i.e. what the law ought to be). His concept of law
is imperative one i.e. law is assemblage of signs, declarations of
volition conceived or adopted by sovereign in a State
While supporting the economic principle of Laissez faire (minimum
interference of State in the economic activities of individuals), he
propounded the principle of utilitarianism: The proper end of every law is the promotion of the
greatest happiness of the greatest number
. He defined utility' as the
property or tendency of a thing to prevent some evil pain or procure some
According to him, the function of law must be to meet these ends i.e. to
provide subsistence, to produce abundance, to favour equality, and to
maintain security. Bentham's doctrine of hedonism or theory of pain and
pleasure has been criticized on the ground that pleasure and pain alone
cannot be the final test of the adequacy of law.
b) Austinian Concept of Law:
John Austin (1790-1859) was a lecturer in
He applied analytical method:
Law should be carefully
studied and analyzed and the principle underlying therein should be found
out and confined his field of study only to the Positive Law (Jus
Law, simply and strictly so called law set by political
superiors to political inferiors. Therefore, the school founded by him is
called by various names, analytical, positivism and analytical positivism.
Austin is considered as the Father of English Jurisprudence
. His lectures
were published under the title The Province of Jurisprudence Determined.
Austin defined law as a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him
. According to him,
so-called proper law includes: Law of God, Human laws and Positive laws.
so called includes: Law by analogy and Laws by metaphor.
According to him, positive morality consists of: Law not set by men (as
political superior) or in pursuance of a legal right, and, laws by analogy
as laws of fashion. The improper laws lacked sanction of the State.
Every law, properly so called, must have three elements of command, sanction
and Sovereign. According to him, law is the command of a sovereign
requiring his subjects to do or forbear from doing certain acts. There is an
implied threat of a sanction if the command is not obeyed.
expression of a wish by a determinate person, or body of persons, that
another person shall do or forbear from doing some act subject to an evil in
the event of disobedience i.e. sanction.
So every law is a command,
imposing a duty, enforced by a sanction. According to him, a command may be
particular addressed to one person or group of persons or general addressed
to the community at large and inform classes of acts and forbearances, they
are also continuing commands'. A particular command is effective when the
commanded person or group obeys; a general command is effective when the
bulk of a political society habitually obeys it.
Austin's notion of sovereign is:
if a determinate human superior not in a
habit of obedience to a like superior, receives habitual obedience from the
bulk of a given society, that determinate superior is sovereign
The basis of sovereignty is, thus, the fact of obedience. The
sovereign's power is unlimited and indivisible (no division of authority).
The sovereign is not bound by any legal limitation or by his own laws.
Austin's definition of law as the command of the sovereign
only the legal systems of the civilized societies can become the proper
subject-matter of Jurisprudence because it is possible only in such
societies that the sovereign can enforce his commands with an effective
machinery of administration.
Austin's definition ignores customs. Austin,
however, accepted that there are three kinds of law which, though not
commands, may be included within the purview of jurisprudence by way of
exception, viz. Declaratory or explanatory laws, Laws of repeal and Laws of
imperfect obligation (no sanctions attached). According to him,
Constitutional law derives its force from the public opinion regarding its
expediency and morality.
Austin's theory is criticized as the sanction is not the only means to
induce obedience. Austin's insistence on sanctions as a mark of law conceals
and distorts the real character and function of law. In a community, he
treats law as artificial and ignores its character of spontaneous growth.
Law is obeyed because of its acceptance by the community. In modern times,
law is nothing but the general will of the people.
Further, customs and
conventions of the Constitution, though not enforceable by law, regulate the
conduct of the people and the State. Still further, judicial decisions (i.e.
precedents) become binding laws, while nobody has commanded these.
According to Justice Holmes, Austin's distinction between positive law and
positive morality seeks to exclude the considerations of goodness or badness
in the realm of law. In Austin's positive law, there is no place for ideal
or justness in law, for he observed, Existence of law is one thing, its
merit and demerit another
. A law which actually exists is a law, though we
happen to dislike it or though it may vary from the text by which we
regulate our approbation or disapprobation.
Austin's theory ignores laws which are of a permissive character and confer
privileges (e.g. the Bonus Act, Law of Wills).
contribution to Juristic science are so scanty and so much entangled in
error that his book ought no longer to find a place among those prescribed
asserted that the notion of command is inapplicable to modern
social or welfare legislations, which do not command people but confer
benefits; and which binds the State itself rather than the individual. Law
do not always commands, but confers privileges also e. g. right to make a
Thus, Austin's concept of law is clearly inapplicable in a modem
democratic welfare State. For instance, in India, it is very difficult to
locate a single determinate sovereign who might be regarded as possessing
unlimited and absolute power to make law. Austin's theory could be applied
to the British parliament which is supreme (there is no division of power in
England into different organs of State i.e. legislature, executive and
judiciary). However, Austin's notion that sovereignty is indivisible is
falsified by federal Constitutions e. g. India, USA, etc. ln a federation,
legislative power is divided between the Union and the member States.
Hart said about Austin:
But the demonstration of precisely where and why
he is wrong has proved to be constant source of illumination; for his errors
are often the misstatement of truths of central importance for the
understanding of law and society.
According to him, the Austinian formula
does designate one necessary condition i.e. where the laws impose
obligations or duties; these should be generally obeyed'. But, though
essential, this accounts only for the end product' of the legal system. The
cumulative evidence against Austin should not, however, obscure the fact
that law does consist of prescriptions of conduct which are usually phrased
in imperative form.
acknowledged Austin as the pioneer of the modern positivist
approach to law. Allen said; For a systematic exposition of the methods of
English jurisprudence we would have to turn to Austin. Austin's theory was
later improved upon by Holland, Salmond and Gray. Holland defined law as
rules of external human action enforced by a political
sovereign: Gray said: If Austin went too far in considering the law as
always proceeding from the State, he conferred a great benefit on
jurisprudence by bringing out clearly that the law is at the mercy of the
State. Dicey draws a distinction between the legal sovereign and political
c) Hart's Concept of Law:
Professor Hart (1907) may be regarded as the
leading contemporary representative of British positivism. He wrote an
influential book The Concept of Law', criticizing Austin's theory.
According to Hart, Law consists of rules which are of broad application and
non-optional character, but which are at the same time amenable to
formalization, legislation and adjudication. He said that law is a system
of social rules (rules sprung from social pressure) which acquire the
character of legal rules. Law is a body of publicly ascertainable rules.
Law, according to Hart, is equivalent to a legal system.
A legal rule
can be defined as one which prescribes a code of conduct,
which is done with the feeling that such conduct is obligatory. Law
prescribes, not a command, but a standard of conduct. This standard is
adhered to, not only because there is a sense of obligation to adhere to it,
but also because there is an expectation that others have same obligation to
adhere to it. Therefore, even a person who cannot be compelled to obey the
law is still reckoned as having an obligation to obey. Thus, law is
concerned with obligation rather than coercion. An obligation is similar to
The idea of obligation according to Hart, means that a rule is accepted by
the people (i e. a rule is internalized) and not (habitually) obeyed (as
conceived by Austin). T here is a difference between internal and external
aspects of rules; the former implies Having an obligation
involved), while the latter implies Being obliged' (under a compulsion).
According to Hart, the predictive theory of Austin excluded internal aspects
of rules and dealt only with external aspects of rules.
According to Hart, there are two types of rules Primary rule lays down
standards of behaviour or impose duties (viz. international law) while the
secondary rule are those by which the primary rules may be ascertained,
introduced, eliminated or varied. The secondary rules are power-conferring
rules public or private (e g. Statutes, Constitution). From these are
derived the rules of recognition' which provide authoritative criteria for
identifying primary rules of obligation.
The Ultimate rule of recognition
is the ultimate criterion of validity of a legal order. The union of the
primary and secondary rules constitutes the core of a legal system. A
society governed by primary rules only (viz. a simple primitive society) is
static, uncertain and inefficient. The legal order must be an effective
legal order i.e. people generally must obey primary rules, and the officials
must observe secondary rules. These two conditions are necessary and
sufficient for the existence of a legal system. Hart views laws as a
one-way projection of authority, from the officials down and constructs a
theory of law which gives the central role to official behaviour.
According to Hart, some of the puzzles
connected with the idea of legal
validity are said to concern the relation between the validity and efficacy
of law. A rule is said to be valid when it satisfies all the criteria
provided by the rule of recognition. A rule is said to be effective' when
it is being obeyed by the people. An ultimate rule of recognition need not
be valid, but it should not be disregarded i.e. it must be efficacious
(officials must obey it).
Hart's theory bridges the age-old conflict between the
theories of law. (Savigny; Ehrlich) emphasizing recognition and social
obedience as the essential characteristics of a legal norm, and those
(Austin, Kelsen) that emphasize law as a coercive order having elements of
authority, command and sanction. Hart's approach is important for its
emphasis on the socially constructive function of law. However, union of
primary and secondary rules cannot explain many aspects of law.
concept of law has been vehemently criticized by some jurists notably,
Ronald Dworkin and Lon Fuller. Dworkin drew a distinction between rules
and remarked that a legal system cannot be conceived merely
as an aggregate of rules but it has to be based on certain solid principles
A principle is standard that is to be observed
because it is a requirement of justice or fairness or some other dimension
of morality. For example, no one can take advantage of his own wrong' is a
well established principle of law. Fuller believed that legal system being
an instrument to regulate human conduct must concern itself with both law as it is and as it ought to be. Thus, law cannot be completely divorced
from the concept of morality.
d) Kelsen's Concept of Law:
Hans Kelsen (1881-1973), belonging to Vienna
of legal thought, proposed a pure theory of law
i.e. a theory
which is free from social, historical, political, psychological, etc.,
influences (thus, excluding everything which is strictly not law) and is
logically self-supporting. The law is normative (law as a coercive order)
and not a natural science; there are sanctions attached to the law itself.
The test of lawness is to be found within the system of legal norms itself.
He defined law as an order of human behaviour
According to Kelsen, laws are ought to propositions i.e. norms', If X
happens, then Y ought to happen. Thus, if a person commits theft, he ought
to be punished. Law does not attempt to describe what actually occurs (is')
but only prescribe certain rules. Norm is a legal meaning attached to an act
of will. It is the meaning of an act by which certain behaviour is commanded
permitted or authorized.
A norm is valid only because it has been derived from or is ordained by
another (superior) norm. This presupposes a hierarchy of norms each norm
being valid on the presupposed validity of some other norm. Further, there
are dependent' norms or facilitative norms which do not coerce people (e.g.
right to make a will, powers of President, judges, use of force in self-defence).
norms are coercive norms. The dependent norms are
dependent for their validity on the independent norms (viz. Section 299 of IPC Act 1860, derives its validity from Sec. 302). Thus law does not have
exclusively a commanding or imperative character.
The law is a system of behavioral norms which can be traced back to some
grundnorm or basic norm from which they derive their existence. The
grundnorm must be classified i.e. people must believe in it, otherwise there
will be a revolution. In every legal system, grundnorm of some kind there
will always be, whether in the form of a Constitution or the will of a
dictator. Where there is a written Constitution (India, USA) the grundnorm
will be that the Constitution ought to be obeyed
. Where there is no
written Constitution (UK) one must look to social behaviour for the grundnorm. Under international law, the grundnorm is the principle
pacta sunt servanda
(Treaty obligations are binding on parties).
While, grundnorm accounts for validity of norms emanating from it, one
cannot account for its own validity by pointing to other norm. Its validity
cannot be objectively tested, instead, it has got to be presumed or
pre-supposed (he, however, considers grundnorm as a fiction rather than a
hypothesis). It looks for its own validity in factors outside law. However,
it imparts validity so long as legal order remains by and large effective
It should secure for itself a minimum of effectiveness' and when it ceases
to derive minimum of support of people it is replaced by some other grundnorm.
Kelsen's theory is criticized, as according to Kelsen a legal order is valid
when it is effective, it does not matter whether it is an illegitimate rule
brought about by unconstitutional means. This means law is a system of
external compulsion i.e., people are forced to comply with laws.
Validity of a law does not necessarily derive from an effective grundnorm.
Kelsen does not give any criterion by which the minimum effectiveness of
grundnorm is to be measured. The grundnorm simply creates or validates a
legal order, but do not provide the content to a legal order. It is for the
courts to determine the criterion of grundnorm, and to decide the validity
and efficacy of a legal order (Madzimbamuto v. Laedner-Burke; State v. Dasso;
Asma Jilani v. Govt. of Punjab
). The effectiveness of grundnorm depends on
Julius Stone criticized Kelsen on the latter's assertion that all the norms
excepting the grundnorm are pure. He asserted that other norms which derive
their authority from grundnorm cannot remain pure when the grundnorm itself
is a combination of various social and political factors. He remarked, We
are invited to forget the illegitimacy of the ancestor in admiration of the
pure blood of the progeny.
No theory of Justice can form part of pure theory of law. However, Kelsen
presented a formal, scientific and dynamic picture of the legal structure.
He has considerably influenced the modern legal thought. The great jurists
like Stone and Friedmann have strongly defended Kelsen's theory.
The coercive elements dominate the theories of Austin, Kelsen and Hart.
Thus, if certain formal criteria are satisfied, any social norm is law
irrespective of us intrinsic worth or quality. Essence of law lies not in
its form but its function. All three excludes morality from law, though they
admit that morals play an important role in the formation of law, but once a
law is made morals play no more roles.
Kelsen's pure theory of law owes to Austin's theory. However, the two differ
in many respects:
- For Austin law is a command of the sovereign. For Kelsen, law is not
the command of a personal sovereign but a hypothetical judgment, which
visits with a sanction for the non-observance of the conduct prescribed
Kelsen denies also the existence of State as an entity distinct from
- In the Austinian sense, a sanction has a moral or psychological basis;
the motivation by fear makes people to submit to law. Kelsen rejected the
idea of command, because it introduces a psychological element into a theory
of law which should, in his view, be pure'. In the Kelsenian sense,
coercive act means forcible deprivation of liberty. There is no idea of fear
involved, because the norms prescribe.
- Although sanction is an essential element of his law, validity of a
rule has nothing to do with its sanction. In the Austinian sense, the
sanction was something outside a law imparting validity to it. While,
according to Kelsen, a sanction is in-built in every legal norm.
- Austin's theory denies to custom the character of law as it
has not been created by the sovereign. Kelsen, however, is able to accommodate
custom within his concept of law viz. popular practice may generate legal
- Austin didn't regarded international law as a positive law. Kelsen, on
the other hand; accepted the primacy of international law over national law.
Philosophical school or Natural law school
The philosophical or ethical school concerns itself chiefly with the
relation of law to certain ideals which law is meant to achieve. It seeks to
investigate the purpose for which a particular law has been enacted. It is
not concerned with its historical or intellectual content. The notable
jurists of this school are Grotius (1583-1645), Immanuel Kant (1724-1804)
and Hegel (1770-1831).
These jurists regard law neither as the arbitrary command of a ruler nor as
the creation of historical necessity. To them, the law is the product of
human reason and its purpose is to elevate and ennoble human personality.
Hugo Grotius (1583–1645) worked as a jurist in the Dutch
Republic and laid the foundations 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 that by their very nature, natural laws were authoritative in
themselves, with or without faith in God.
He held that the moral ethics of
natural law applied to all social and rational beings, Christian and
non-Christian alike. Grotius also promoted the concept of Just War
war which was required by natural, national and divine law under certain
circumstances. He developed a series of rules for right conduct
based on the principle that actions in a war should serve the right.
Grotius also wrote De Jure Praedae one chapter of which, defending free
access to the ocean for all nations, was reprinted and widely circulated
under the title Mare Liberum.
Thomas Hobbes founded a social contractualist theory of legal
positivism. He declared that all men could agree that what they sought
(happiness) was subject to contention, but that a broad consensus could form
around what they feared (violent death at the hands of another, and loss of
liberty and personal property).
Natural law was defined as the way in which
a rational human being, seeking to survive and prosper, would act. It could
be discovered by considering humankind's natural rights; previous
interpretations had derived natural rights by considering the natural law.
In Hobbes' opinion, the only way that natural law could prevail was by all
men submitting to the commands of a sovereign. The ultimate source of law
now became the sovereign, who was responsible for creating and enforcing
laws to govern the bbehaviour of his subjects. Since the sovereign's
decisions need not be grounded in morality, the result was legal positivism,
the concept that law was created by the state and must therefore be obeyed
by the citizens belonging to that state. Jeremy Bentham further developed
the theory by modifying the concept of legal positivism.
In Thomas Hobbes's treatise Leviathan, natural law is a precept, or general
rule, discovered through reason, by which a man is forbidden to do anything
which is destructive of his life, or takes away the means of preserving his
life; and forbidden to omit doing anything which he thinks may preserve his
life. Hobbes defines nine Laws of Nature.
John Locke (1632–1704) is among the most influential political
philosophers of the modern period. In the Two Treatises of Government, he
defended the claim that men are by nature free and equal against claims that
God had made all people naturally subject to a monarch. He argued that
people have rights, such as the right to life, liberty, and property that
have a foundation independent of the laws of any particular society.
used the claim that men are naturally free and equal as part of the
justification for understanding legitimate political government as the
result of a social contract where people in the state of nature
conditionally transfer some of their rights to the government in order to
better ensure the stable, comfortable enjoyment of their lives, liberty, and
property. Since governments exist by the consent of the people in order to
protect the rights of the people and promote the public good, governments
that fail to do so can be resisted and replaced with new governments. Locke
is thus also important for his defense of the right of revolution.
also defends the principle of majority rule and the separation of
legislative and executive powers. In the Letter Concerning Toleration, Locke
denied that coercion should be used to bring people to (what the ruler
believes is) the true religion and also denied that churches should have any
coercive power over their members. Locke elaborated on these themes in his
later political writings, such as the Second Letter on Toleration and Third
Letter on Toleration.
Jean-Jacques Rousseau (1712 – 1778) believed modern man's
enslavement to his own needs was responsible for all sorts of societal ills,
from exploitation and domination of others to poor self-esteem and
depression. Rousseau believed that good government must have the freedom of
all its citizens as its most fundamental objective. The Social Contract in
particular is Rousseau's attempt to imagine the form of government that best
affirms the individual freedom of all its citizens, with certain constraints
inherent to a complex, modern, civil society. Rousseau acknowledged that as
long as property and laws exist, people can never be as entirely free in
modern society as they are in the state of nature, a point later echoed by
Marx and many other Communist and anarchist social philosophers.
Nonetheless, Rousseau strongly believed in the existence of certain
principles of government that, if enacted, can afford the members of society
a level of freedom that at least approximates the freedom enjoyed in the
state of nature. In The Social Contract and his other works of political
philosophy, Rousseau is devoted to outlining these principles and how they
may be given expression in a functional modern state.
Immanuel Kant (1724-1804) is one of the most influential
philosophers in the history of Western philosophy. His contributions to
metaphysics, epistemology, ethics, and aesthetics have had a profound impact
on almost every philosophical movement that followed him. This article
focuses on his metaphysics and epistemology in one of his most important
works, The Critique of Pure Reason.
A large part of Kant's work addresses
the question What can we know?
The answer, if it can be stated simply, is
that our knowledge is constrained to mathematics and the science of the
natural, empirical world. It is impossible, Kant argues, to extend knowledge
to the supersensible realm of speculative metaphysics. The reason that
knowledge has these constraints, Kant argues, is that the mind plays an
active role in constituting the features of experience and limiting the
mind's access only to the empirical realm of space and time.
Law touches actual life so intimately that it is only natural to view
operation of laws in their social setting. The functional approach
(Historical and Sociological Schools) emphasizes actual social circumstances
as give rise to law and legal institutions, and is concerned with man not as
an individual but with man in association.
The historical school emerged as
a reaction to legal theories propounded by analytical positivists (as they
failed to meet the needs of the people) and the natural law thinkers. The
motto of this school is Ubi societas ibi lex i.e. where there is society,
there is law. Sir Fredrik Pollock aptly remarked that historical method is
nothing but the doctrine of evolution applied to human institutions and
The historical school emphasize that the historical factors influenced the
origin, formation and development of laws. Law is found, not made. Laws are
not of universal application, as traditions and customs determine the law.
Laws are rules consisting partly of social habits and partly of experience.
Germany was the cradle of this school and Savigny (1779-1861) its main
exponent. The historical school derived its inspiration from the study of
Roman law. Montesquieu the first jurist of this school in his Espirit des
Lois (Spirit of the Laws) said that all laws should have the basis of
historical observations. Maine described Montesquieu as the first jurist who
proceeded on historical method. Montesquieu emphasized that Laws of a
particular nation should be determined by its national characteristics and
must bear relation to the climate of each country.
According to Hugo, law is the result of the habits and ways of the people
themselves, acquired through necessities, accidents and other
process. Burke considered evolution of law as an organic process and an
expression of common beliefs, faiths and practices of the community as a
Puchta, a supporter of Savigny, opined that neither the State nor the people
alone are a source of law but law comes into existence as a result of
conflict between general and individual will. He laid down the concept of Causa
instrumentalis and Causa principalis of law; both stand respectively for
people and State. According to him, self-interest causes a conflict between
individual will and general will. This brings out the idea of law. Then,
State comes into existence. Neither the people (as the natural unit) nor the
State (as the organic unit) alone is the source of law.
According to Savigny, law is not an artificial lifeless mechanical
. His work on Law of Possession (Das Recht des Bestiges) is said to
be the starting point of his historical jurisprudence. Savigny's view was
that law is closely connected with the People and it closely contained the
germs of future sociological theory.
That is why Savigny is called
Darwinian before Darwin and a sociologist before sociologists
considered the growth of law as a continuous and unbreakable process bound
by common cultural traditions and beliefs. The core of Savigny's thesis is
to be found in his essay On the Vocation
Vom Beruf (1814).
He said that
the nature of any particular system of law was a reflection of the spirit of
the people who evolved it. Law is a product of the people's life Law is the
result of the genius of the people. Law has its source in the general or
common or popular consciousness (Volksgeist) of the people. As law is a
reflection of people's spirit, it can only be understood by tracing their
Law Is the natural manifestation of popular life and by no means product of
man's free will Law, language customs and government have no separate
existence. There is but one force and power in a people and it underlines
all these institutions. The law, like language, develops with the life of
people. He wrote: Law grows with the growth; and strengthens with the
strength of the people, and finally dies away as the nation loses its
nationality. Thus, law has a national character.
He said: the law, like language, grows with the growth of social
consciousness and organization: the law can only be evolutionary and not
. Because law is a matter of unconscious or organic growth
i.e. not made suddenly and deliberately. Any law-making should follow the
course of historical development. Reforms should await the result of the
The legislators should look before they leap into reform.
He thus opposed the codification of law. Savigny was, however, not totally
against codification of laws. He opposed the codification of the German law
on the French (Napoleonic Code) pattern at that time because Germany was
then divided into several smaller States and its law was primitive, immature
and lacked uniformity. He considered Roman law as an inevitable tool for the
development of unified system of Law in Germany.
As law grows into complexity, the common consciousness is represented by
lawyers who formulate legal principles. But the 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 it therefore,
the lawyer or Jurist is more important than the legislator.
weakness of Savigny's approach was that he venerated past institutions
(traditions, customs, etc.) without regard to their suitability to the
present. He said: Custom is the sign of positive law.
was that legislation should conform to existing traditional law, or it is
doomed. This, Savigny's theory tended to hang traditions like fetters upon
the hands of reformative
enterprise.lt discouraged creative activity and
legal reform. R. Pound, thus, criticized Savigny for his juristic
. He said: Savigny's statement was simply to watch the unfolding
of laws from popular consciousness with folded hands.
Prof. Porkunove pointed
out that Savigny's theory does not determine the connection between what is
national and what is universal. Savigny did grasp a valuable truth about the
nature of law, but ruined it by overemphasis. Savngny volksgeist helped many
nations to pervert if for promoting their own ideologies. Thus, Nazi twisted
it by giving a racial colour, the Marxists used it giving economic
interpretation of history and Italy used it to justify fascism. Savigtty's
work was, nevertheless, a salutary corrective to the methods of the
naturalists. It provided great stimulus to the historical study of laws and
The greatest contribution of historical school lay in
posting social pressure behind law in place of moral authority or
sovereign's will, paving way, thereby, for smooth transition of Juridical
thought to sociological school.
Savigny's theory marks the beginning of modern jurisprudence, viz.
sociological approach to law. Ehrlich devised his theory of interest on the
foundation laid by Savigny. Savigny's approach also gave birth to
. Maitland supported Savigny's approach and
pointed out that the course of development of common law in England was
determined by socio-political conditions obtaining in England at that time.
Maine (1822-1888) inaugurated both the comparative and
anthropological approaches to the study of law. Historic-Comparative School
of Jurisprudence belongs to Sir Henry Maine unlike Savigny, he favoured
legislation and codification.
He wrote: Ancient Law Village Communities,
History of Institutions,
etc. He is labeled as Social Darwinist
envisaged a social order wherein the individual is finally liberated from
the feudalistic primitive bondage. He said: The penal law of ancient
communities is not the law of crimes but the law of torts.
According to him, there are four stages of development of law:
- Law made by the commands of the ruler.
- Crystallization of commands into customary law.
- Administration of customs by priests, etc.
- Codification of law.
The societies which do not progress beyond the fourth stage are static
societies. The societies which go on developing law by new methods are
, which develop their law by three methods (Legal
fiction, Equity, and, Legislation). Further, in early societies, both static
and progressive, the legal condition of the individual is determined by
status i.e. his claims, duties etc. are determined by law, the march of
progressive societies witness the disintegration of status and the
determination of the legal condition of the individual by free negotiation
on his part. The movement of progressive societies has hitherto been a
movement from Status to Contract.
According to Maine, most of the ancient communities are founded on
patriarchal pattern wherein the eldest male parent called the paterfamilias
dominated the entire family. With the march of time the institution of pater
familias withered away and now rights and obligations were dependant on
individual contracts and free negotiation between persons.
The freedom of
individual in economic field (Iaissez faire) struck a blow to the notion of
status as the basis of law. Thus, Maine said that movement of progressive
societies has hitherto been from status to contract
. The word hitherto
signifies until them
; thus, he left options open for a change in
future time to come (viz. individuals might have to tight for their rights
and liberties collectively in groups).
The Maine's theory of Status to Contract
does not have much force in the
twentieth century. Vinogradoff asserted that Maine's expression of status to
contract does not hold well in communities following collectivist ideology.
He emphasized that law is not a command of the State but it is an expression
of the general will of the people.
Auguste Comte was the first to use the term Sociology
and by some jurists
he is considered to be the founder of the science of sociology. Comte's
method may be called scientific Positivism
. He pleads for the application
of scientific method to the science of sociology. Society is like an
organism and it can progress when it is guided by scientific principles.
Herbert Spencer gave a scientific exposition of the organic theory of
He applied this evolutionary trend of society to sociology. The
organic theory has been very beautifully summarized by Prof Allen The
inter-dependence of organisms, in its sociological aspect means the mutual
relation of all members of civilized society and the distribution of a sense
of responsibility far wider than can be comprised within the formula Sovereign and Subject
. It directed attention to the necessity of
considering law in relation to other social phenomena.
Duguit was inspired by Durkhiem who himself had taken inspiration from
Comte. Durkhiem main point, on which Duguit built upon, was that he made a
distinction between two kinds of needs of men in society.
- Firstly, there are common needs of individuals which are satisfied
by mutual assistance and
- secondly, there are diverse needs of individuals which are satisfied
by the exchange of services.
Therefore, the division of labour is the most
important fact of social cohesion. He named it social solidarity
development of free individual activities the social solidarity
This social solidarity
is a fact and it is necessary for social life. lhering: The first great sociological jurist is Rudolf Von lhering. His work
may be taken as the starting point for the study of sociological approach to
law. He was a social utilitarian. According to him, the development of law
like its origin is neither spontaneous nor peaceful, it is the result of
constant struggle or conflict with a view to attain peace and order.
The central point in Ehrlich's thesis is that the law of a
community is to be found, in Social facts and not in formal sources of law.
He says, At present as well as at any other time the centre of gravity of
legal development lies not in legislation, nor in juristic science, nor in
judicial decision, but in society itself.
is considered to be the American leader
in the field of
sociological jurisprudence. He comes from Harvard Law School and has a great
academic favour. He is the most systematic writer on sociological
jurisprudence. Pound concentrates more on the functional aspect of law that
is why some writers name his approach as functional school.
Pound's main thesis is that the task of law is social engineering
says, For the purpose of understanding the law of today, I am content with
a picture of satisfying as much of the whole body of human wants as we may
with the least sacrifice. I am content to think of law as a social
institution to satisfy social wants, the claims and demands involved in the
existence of civilized society by giving effect to as much as we may with
least sacrifice, so far as such wants may be satisfied or such claims given
effect to by an ordering of human conduct through politically organized
For the present purpose, I am content to see in legal history the
record of a continually more complete and effective elimination of waste and
precluding of friction in human enjoyment of the goods of existence. In
short, a continually more efficacious social engineering he classifies the
various interests which are to be protected by the law under three heads:
Private interests, Public interests and Social interests.
Private interests: The private interests to be protected by the law are:
- The individual's interests of personality: These include his physical
integrity, reputation, freedom of volition and freedom of conscience. They
are safe-guarded by the Criminal Law, law of Tort, Law of Contract and by
limitation upon the power of Government to interfere in the matter of belief
- Individual's interest in domestic relations: These include marriage,
relations husband and wife, parents and children, and claims to maintenance.
- Interests of substance: These include proprietary rights, inheritance
and testamentary succession, and occupational freedom.
Public interests: The principal public interests are:
- Interests in the preservation of the State as such.
- Interests of the State as the guardian of social interests.
Social interests: The Social interests deserving legal protection are:
- Interest in the preservation of peace and order and maintaining
- Interest in preserving social institutions like marriage and
- Interest in preserving general morals by counteracting corruption,
discouraging gambling and invalidating transactions repugnant to current
- Interest in conserving social resources.
- Interest in general progress which is to be achieved by freedom of
education, freedom of speech and expression, freedom of property, trade,
and of commerce.
- Interest in the promotion of human personality.
In America, Sociological Jurisprudence has developed an extreme wing under
the name of the realist school. They are concerned with the study of law as
it works and functions which means investigating the social factors that
make a law on the hand and the social results on the other. They emphasize
more on what the courts may do rather than abstract logical deductions from
general rules and on the inarticulate ideological premises underlying a
American Realism is not a school of jurisprudence but it is a pedagogy of
thought. The prominent jurists of this thought are Holmes, Gray and Jerome
There are various methods of Jurisprudence which are applied for the study
of law as a whole. There is no school of law which is complete in itself.
Different schools of law give different methods of study of law which
exposes one another to give a better theory of law which can be applied in
different circumstances. Analytical school focused on the law as it is and
overlooked the moral aspect of law. Whereas the Historical school of law
missed the understanding of law as an instrument of social control.
There are different methods for the study of law but their purpose is the
same which is to understand the basic principles of law and legal study.
- Schools Of
- Surbi, Schools Of Jurisprudence, https://www.legalbites.in/schools-of-jurisprudence-notes/.
- Dr. B.N.Tripathi, Jurisprudence Legal theory (Allahabad Law Agency,
Haryana, 18th Edn., 2010).