To explain a thing is easier than to define it, to give a definition of law
is comparatively a more difficult task due to many reasons:
First, in all the societies-from primitive to those which have reached the
highest peak of civilization-in one or the other form, there is law. The
difference between the laws of two societies is not only that of the stage of
development but it is in characteristics also.
The term 'law' means and includes
different things in different societies. The corresponding word for the term law in Hindu system is 'Dharma', in Islamic system it is 'Hukum', in Roman it
is 'Jus', in French it is 'Droit' and in German it is 'Richt'. These words
convey different meanings and ideas. Any definition of law which fails to
include all these meanings would not be a good definition.
Second, different definitions of the same thing may be given if it is viewed
from different angles and one angle does not take into consideration the views
from different angles. Thus the definition given by a lawyer, a philosopher and
a theologian would greatly differ. The various schools have defined it on the
basis of its nature, some concentrating mainly on its sources, some in terms of
its effect on the society, some .in terms of its ends or purpose and so on.
Third, as we all know, law is a social science. It grows and develops with the
society. To keep pace with the society, the function and scope of law remains
always changing. Therefore, it is very difficult for a definition of law given
at a particular time to remain valid for all times to come. A definition which
is most satisfactory today might prove narrow and incomplete tomorrow.
It is due to this difficulty that Keeton observes that to attempt to establish
a single satisfactory definition of law is to seek to confine Jurisprudence
within a strait jacket from which it is continually striving to escape.
We will find ‘n’no. of definitions of the very word law, as there is no single
and supreme definition of law and all the definitions are true in their own
Definition Of Law
Etymology of the word law - In old English “Lagu i.e. law, ordinance, rule,
regulation from old norse “lagu
law collective Plural of “Lag
measure, stroke ‘Literally’ something laid down of fixed.
As per the Greek Philosopher Aristotle:
The law is reason, free from passion
. In lay man’s term, law is the set of
rules laid down by a governing authority. According to Britannica, law is 
“the discipline and profession concerned with the customs, practices, and rules
of conduct of a community that are recognized as binding by the community.
Enforcement of the body of rules is through a controlling authority.
As per my understanding Law is the guiding principles in the society which helps
in better cohabitation of people in a sovereign and for management of resources
as per the societal and material needs, which changes as per the requirements of
The core elements of law are as follows:
- Law is a body of rules
- Law is for the guidance or conduct of persons – both human and
- Law is imposed
- Law is enforced by the executive
- The state
- Two basic ideas involved in law:
- To maintain some form of social order in a group
- To compel members of the group to be within that order
- Law is made to serve some purpose which may be social, economic or
- Law is not static, it keeps changing with time
However, we will try to understand the various interpretation of the term Law
by the various
Schools Of Jurisprudence.
- Analytical School
- Historical School
- Sociological school
- Philosophical School
- Realist school
Analytical School Of Jurisprudence
Jurists under this school of law are also known as positivists
who had little to do with vague and abstract notions of natural law. These were
the believers of Analytical or Positive School, who propounded positivism. (The
term 'positivism' was invented by Auguste Comte, a French thinker.)
The exponents of this school are neither concerned with the past nor with the
future of law but with the law as it exists, i.e. with law 'as it is' (Positrum).
Its founder was John Austin and hence it is also called Austinian School.
The purpose of analytical jurisprudence is to analyse the first principles of
law without reference either to their historical origin or development or their
validity. Another purpose is to gain an accurate and intimate understanding of
the fundamental working concepts of all legal reasoning.
The positive law takes law as the command of the sovereign. It puts emphasis on
legislation as the source of law. It regards law as a closed system of pure
facts from which all norms and values are excluded.
- Bought about precision in legal thinking
- Provided us with clear and scientific terminology
- Excluded external considerations which fall outside the scope of law
Law as defined by Austin is the aggregate of the rules set by men as political
superior or sovereign to men as politically subject. In other words, law is
the command of the sovereign, It obliges a certain course of conduct or imposes
a duty and is backed by a sanction. Thus, the command, duty and sanction are the
three elements of law.
- All Law is not a command.
- Law is not a duty, it is rather enabling than restrictive.
- This definition does not cover customs and international law.
- Also his definition ignores the social aspect of law and psychological
factors which secure its obedience.
- It has no universal application.
- This definition lays down precise boundaries within which jurisprudence
is to work.
- This definition completely applies to English law.
Law as per Salmond is that it is body of principles recognised and applied by
State in the administration of justice.In other words, the law consists of rules
recognised and acted on by court of justice. There are two main implications of
this definition. First, that to understand law one should know its purpose.
Second, that to ascertain the true nature of law one should go to the courts and
not to the legislature.
- He confuses justice with law: Law is actually in force whether it is
evil or good, whereas justice is the ideal founded in moral nature of man.
- Law is defined in terms of purpose: Law serves many ends and by
confining it only to pursuit of justice, Salmond has narrowed the field of law.
- Courts not legislation: conventions are not included in this definition
because they are not enforced by Courts. Meaning of courts is not defined.
Certain areas of law, like customs, international law etc. can also not be
incorporated since even these are not enforceable by law.
This definition bought about a change in analytical positivist view.
- It expanded the boundaries of jurisprudence that was narrowed by Austin.
- It gave importance to courts.
- By including its purpose and emphasizing the role of Court in its
enforcement, he gave law a practical shape.
Historical School Of Jurisprudence
According to this theory – the historical school of law, the law is the
result of past forces and past influencers. Moreover, the law is built and grown
on the general consciousness of people. The consciousness, however, starts from
the very beginning of the society.
In addition, some of the factors that affect
this long historical development are as follows:
- Society and social customs.
- Many religious and convention principles.
- Also, the economic needs of society play a crucial role.
- Last but not the lease, the needs, and desires of the citizens.
Historical School of Jurisprudence believes that this law comes from the
changing needs of people in society. Therefore, habits and customs are the main
sources of the Historical School.
Historical school arose as a reaction against the natural law theories. Natural
school of law believes that the law originates from a divine supreme power.
Another term for Natural Law is Eternal law. And it is also believed to be in
existence since the beginning of the world as we know it. Therefore, it closely
associates with the morality, teachings and intention of God. Hence, it is safe
to say that the Indian constitution has significant relevance of the natural law
in its respective publications. On the contrary, historical school of
Jurisprudence focuses on the formation of law by people not by some divine
Historical school of jurisprudence believes that law is an outcome of a long
historical development of the society because it originates from the social
custom, conventions religious principles, economic needs and relations of the
According to this theory, the law is the product of the forces and influence of
the past. Law is based on the general consciousness of people The consciousness
started from the very beginning of the society. There was no person like
sovereign for the creation of law.
- Karl Von Savigny
- Sir Henry Maine
- Georg Friedrich Puchta
- Edmund Burke
Karl Von Savigny
Savigny is regarded as the founder of the historical school during the years
1779–1861. According to Savigny, the central purpose of this school was to
establish that a nation’s customary law is its truly living law. And, moreover,
the task of jurisprudence is only to uncover and expose this law.
He has given the Volksgeist theory. According to this theory, the law is based
upon the general will or free will of common people. He says that law grows with
the growth of Nations increases with it and dies with the dissolution of the
nations. In this way law is a national character. The consciousness of people.
Its merit is that it shows that law must change with the changes in society. It
clearly believes that if a law is not according to the will of the people, it
will never be obeyed. In this way, it supplemented the analytical school of law.
Savigny’s approach to law gave birth to comparative jurisprudence which has been
accepted as one of the most important branches of legal studies in modern times.
Charles Allen criticized Savigny’s view that law should be found or based on the
customs. Allen was of the view that customs are not the outcome of common
consciousness of people. But they are the outcome of the interest of a powerful
and strong of a ruling class. For example, slavery which was recognized and
prevailed in certain societies by the powerful classes of society.
Prof. Stone criticized the Savigny and says that he (Savigny) ignored the
efficiency of the legislation and planned law and social change. And over
emphasized on the consciousness of people. For example, In India, the abolition
of Sati and widow’s remarriage are brought in to change because of powerful and
- Savigny’s Volksgeist helped many nations to promote its ideologies where
Nazi twisted it by giving a racial colour. Marxists used it giving economic
interpretations whereas; Italy used it to justify fascism.
- His attitude towards anti-codification of German law frustrated the
growth of German law for several decades.
- Believes that customs are the best source of law, which is not correct
as there are many customs like slavery, anti-woman custom, labour which are
originated to accomplish the selfish interest of those in power.
- His force on Volksgeist as the only source of law is not true, as he
ignores the other major sources of like precedents, legislation and other
Georg Friedrich Puchta
Puchta was a German Jurist. He was a disciple of Savigny and a great jurist
of Historical school of Jurisprudence. Georg Friedrich 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 general will and individual will. In 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
- Puchta gave twofold aspects of human will and origin of the state.
- Despite some points of distinction Puchta and Savigny, he improved the
views of Savigny and made them more logical.
- In order to achieve a middle ground Puchta merged the original ideas of
Savigny to more general lines, deviating from its founder’s roots.
- The very fact of incorporating the role of state in individual
consciousness is another factor being criticised by our jurists of the same
Sociological School Of Jurisprudence
The Sociological school of Jurisprudence advocates that the Law and society
are related to each other. This school argues that the law is a social
phenomenon because it has a major impact on society. The Sociological school
came out as a reaction against the laissez-faire because sociological school
advocates the balance between the welfare of the state and individual interest.
- Sociological School of Law is emphasis more on the functional aspect of
law rather than its abstract content.
- They consider law as a social institution essentially interlinked with
other scientists and the direct impact of the law on society with its
formation according to social needs.
- Sociological School of Law completely neglects positivism i.e. the
command of sovereign and also historical jurisprudence.
- Sociological jurists describe the perception of the law in different
ways like the functional aspect of law or defining the law in terms of
court’s rulings and decisions with a realistic approach of law.
- Auguste Compte (regarded as founding the father of the sociological
school of law)
- Albert Spencer
- Roscoe Pound
He was one of the most leading and important jurists who developed American
sociological jurisprudence is a systematic manner. He treated law as a means of
affecting social control and his contribution to jurisprudence is great. Roscoe
Pound gave stress on the functional aspect of law. He defines law as containing
the rules, principles, conceptions and standard of conduct as a developed
technique of social engineering. The main function of law is to satisfy the
maximum number of people. Not only this function but also to reconcile the
conflict in the interest of individuals and society.
Roscoe Pound gives the Theory of Social Engineering in which he compared lawyers
with the Engineers. 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.
Roscoe Pound in his Interest Theory mentioned the three kinds of interest.
- Private/Individual Interest
- Public Interest
- Social Interest
To avoid the overlapping of the interests, he put boundaries and divide the
kinds of interests.
According to Roscoe Pound, every society has certain basic assumptions for
proper order and balance in society. These assumptions are implied and not in
expressed form and are called as Jural Postulates of the legal system of that
society. These assumptions of man related to the reference for what they want
from the law or legal system or we can say that it is the expectation of a man
from the law. So, these Jural Postulates are a sort of ideal standards which law
should pursue in society for civilised life and with the changes in society, the
jural postulates may emerge or originate in society.
He has mentioned five kinds
of jural postulates:
- In a civilised society, man must be able to assume that others will not
commit any intentional aggression on him.
- In a civilised society, man must be able to assume that they must
control for beneficial purposes. E.g.- control on whatever they discover or
create by their own labour.
- In a civilised society, man must be able to assume that those with whom
they deal as a number of societies will act in good faith.
- In a civilised society, man must be able to assume that the people will
act with due care and will not cast unreasonable risks of injury on others.
- In a civilised society, man must be able to assume that certain people
must restrain from doing harmful acts under their employment and agencies which
are otherwise harmless to them.
Concept of social engineering and balancing of interest presupposes a fairly
organised and matured types of society, criticised by Stone.
It requires lot of practise, it mechanized the social growth and individuals
desires which is impracticable. Desires are human rights instincts they cannot
be organised as contemplated.
Rudolf Von Ihering
Ihering was another sociological jurist known for his monumental work ‘spirit of
the law’. He favours the factor that social interest of society must have a
priority over an individual’s interest and the purpose of the law is to protect
the interest of society, that is why his theory is known as ‘Jurisprudence of
Interest’ which emphasises on the sociological aspect of Sociological School of
- Law as a result of Constant Struggle: Ihering pointed out that the
social struggle gives birth to law and the role of law is to harmonize the
conflicting interests of individuals for the purpose of protection of interest
of society. He gave importance to living law which develops with the struggles
- Law as a means to serve Social Purpose: According to him, the ultimate
goal of the law is to serve a social purpose. It is the duty of the state to
promote social interests by avoiding various clashes between social and
individual interests. According to him, “law is coercion organised in a set form
by the state, which means that he justified coercion by the state for the
purpose of social welfare.
- Law as one of the means to control society: Law alone is not a means to
control society, there are some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the achievement of pleasure and
avoidance of pain but for the society, that’s the reason that Ihering theory is
also known as the theory of “Social Utilitarianism.
- He has been criticized for lack of a reasonable objective criterion
for selection and evaluation of interest.
- Sociological jurisprudence depends upon the welfare of the society i. e;
question arises when there is no welfare then how can we say that the society is
the welfare society.
Philosophical/ Natural 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 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.
It is interchangeably used with Natural Law school but it is a part of it but
It believes that law had been in existence since beginning and
nothing is man-made. It deals with Divinity as well as Rationality.
However Philosophical School talks about law of logic and the law which is made
by sense and logic and hence it is the subset of Natural Law
- it dwindled offering approach to inherent privileges of man and the
- The natural law hypothesis altered the current organisations and held
that ‘social contract’ was the premise of the general public.
- utilised natural law hypothesis to propagate reactionary development and
legitimise business as usual for the safeguarding of harmony and insurance of
people from never-ending struggle and disarray
- Hugo Grotius
- Immanuel Kant
- John Rawls
He is known as the founder of Philosophical school of jurisprudence as he was
the first person to demarcate philosophical school from natural school, and
first one to talk about. 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 as a war which was
required by natural, national and 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.
- He demarcated philosophical school from natural school
- The implications of this criticism are that there can be no meaningful
doctrine of natural rights, and that rights not only imply duties, but are
essentially false descriptions of actual duties , which are imposed either
by divine fiat or from the law making authority of the state
- Philosophical school has been criticised for being subjective in terms
of giving more preferences to values and ethics which can fall prey to bias at
Thomas Hobbes founded a social contractual 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
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 behaviour 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.
- 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.
- The first law of nature as per Hobbes is that “every man ought to
endeavour peace, as far as he has hope of obtaining it; and when he cannot
obtain it, that he may seek and use all helps and advantages of war. Which
is criticised for devising violent ways of obtaining peace being ironical in its
- All his Laws are criticised for being idealistic and lacking practical
grounds of human nature and behaviour in society.
This school is known as ‘realist’ because it focuses on approach that
studies law as it is in the actual working and its effects ahead. This school
rejects traditional definition of law and also avoids any dogmatic formulation
and fully concentrates on decisions given by the courts.
The thesis of realists
is based on the notion:
Law is what the psychology of courts determines - the
aggregate of the item of judicial and official actions.
“Law is what the judges
. They emphasize the element of uncertainty in law and part played by the
personal characteristics of the judge. Law is defined not as a set of the legal
propositions, but in term of the official action. They say that ‘certainty of
law’ is a myth. They plead for a comprehensive approach and examination of all
the factors that lead to reaching a decision.
In actual sense, there is no realistic school. It is known as ‘realism’ that is
actually a movement which consists of thought and works in law.
Realism means a conceptual thesis on law in chunks and as a means of some social
ends. It is implied in a particular society where changes are seen faster than
It also assumes a type of divorce which is temporary in nature of ‘is’ and
‘ought’ so as to achieve the purpose of a study. It means all the purposes that
are ethical in nature for the observer must underline the law are ignored and
are not at all allowed to blur the vision of observer.
It also creates a sense of distrust in the traditional legal values and also the
concepts designed so far as they appear to be described what either courts or
common people are actually doing.
Lastly, it also focuses largely on the evaluations of any parts of law in
respect to its effect.
There are two types of the Realist School. The first one is the American Realist
School and the second is the Scandinavian Realist School.
American Realist School Chief Exponent:
- Jereme Frank
- Karl Llewellyn
Scandinavian Realist School Chief Exponent:
(Critique of the metaphysical foundation of law. They have put forth a
- Karl Olivercrona
His emphasis on the fact that the life of the low experience, as well as logic,
and his view of the law as predictions of what the court will decide stressed
the empirical and parametric aspect of law. And he said that, if one wishes to
know what the law is, then one should view it through the eyes of a bad man who
is only concerned with what will happen to him if he does certain things.
traditional description of law is that it consists of rules from which
deductions are made. According to Holmes, the law is what courts (or other
officials) do, not what they say. Until a court has pass judgment on certain
facts, there is no law on the subject yet in existence, for opinions of a lawyer
is only a guess as to what the court will decide.
- Holmes is a towering figure in American legal thought for many reasons,
but what the realists drew most from Holmes was his famous prediction theory
of law, his utilitarian approach to legal reasoning, and his realist
insistence that judges, in deciding cases, are not simply deducing legal
conclusions with inexorable, machine-like logic, but are influenced by ideas
of fairness, public policy, and other personal and conventional values.
- Holmes attacks formalist approaches to judicial decision making and
states a pragmatic definition of law:
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law
- Holmes attacks formalist approaches to judicial decision making and
states a pragmatic definition of law:
The prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law. that it is a system of reason that
is a deduction from principles of ethics or admitted axioms or what not,
which may or may not coincide with the decisions
- Hart pointed out that if a law is just a prediction of what courts will
do, a judge pondering the legal merits of a case before him is really
asking, How will I decide this case? As Hart notes, this completely misses
the fact that judges use legal rules to guide their decisions, not as data
to predict their eventual holdings.
- Many critics have claimed that the realists exaggerated the extent to
which law is riddled with gaps, contradictions, and so forth. The fact
that most legal questions have simple, clear-cut answers that no lawyer or
judge would dispute is difficult to square with the realists' strong claims
of pervasive legal indeterminacy.
- Other critics, such as Ronald Dworkin and Lon Fuller, have faulted legal
realists for their attempt sharply to separate law and morality.
According to Llewellyn Realism is not a school but it can be called as a branch
of sociological School.1 It concentrates on the actual working and effect of law
and is, therefore, called the realist school.
- Realism isn’t so much another school of jurisprudence as another
philosophy in jurisprudence.
- Realists see the law as robust and not as static. They view the law as
serving specific social closures and concentrate any given cross-segment of
it to discover to what degree these finishes are being served.
- Realists, with the end goal of perception of working of any piece of the
legal framework, acknowledge aseparation of is from should“. This implies the
moral purposes which, as per the spectator, ought to underlie the law are
overlooked and are not permitted to obscure the vision of the eyewitness.
- Realism accentuates the social impacts of laws and legal decisions.
- The realists and jurists have underestimated the importance of the legal
principles and rules regarding the law. They used to think that law never
was, but always was a puzzle of unconnected decisions.
- Their concentration is ideally on litigation, but the point is there is
a bigger point that never comes in front of the courts.
- These realists and jurists had also launched a serious attack on the
juristic complications and myth of certainty. But, in actual sense we found
out that a huge amount of certainty and bunch of transactions regulated
under this basis.
- They all have put strong emphasis on a factor which is human in nature.
No doubt, it plays quite a huge part but that does not mean that the
judicial determinations are the result of a Judge’s personality.
- This approach of realism of American Jurists is mostly based upon and
actually concerned with their own setting and thus not giving a universal
method. These methods can only be applied at a society where social forces
have played a bigger role in making law as common law systems.
Hägerström is considered to be the founding father of the Scandinavian school of
legal realism . rejected metaphysics in their entirety.
- His opinion was that words such as ‘right’ and ‘duty’ were basically
meaningless as they could not be scientifically verified or proven. They may
have influence or be able to direct a person who obtains such a right or
duty but ultimately, if they could not stand up to a factual test, they were
- Similarly, Hägerström regarded all value judgements as mere emotional
expressions using the form of judgements without being judgments in the proper
sense of the word.
- Hägerström attacked various words and legal concepts in his writings so as
to prove they could not stand up to scientific application.
- Hägerström's critics to characterize his philosophy as value nihilism
- a label that was invented by journalists and later endorsed by some of
Hägerström's less orthodox followers
- Nihilism is the belief that all values are baseless and that nothing can
be known or communicated. It is often associated with extreme pessimism and
a radical skepticism that condemns existence. A true nihilist would believe
in nothing, have no loyalties, and no purpose other than, perhaps, an
impulse to destroy.
A Pupil of Axel, who believed whatever is written legal should be seen a
reference, it should not be used in its entirety and it’s the judges job to take
reference from the written set and apply it accordingly in situations and
- His writings emphasise the psychological significance of legal ideas.
- Olivecrona, has emphasised on a nature which contains an applicability
that is universal in nature.
- He stressed on the importance of a monopoly of force as the fundamental
basis of law.
- He has been criticised for completely disregarding the written laws and
leaving it completely on judge’s discretion as it may then be prone to bias
and can hamper welfare of public in large.
- He is also criticised for exaggerating the role of judges and their
view-points without substantial explanation.
Written By: Teesha
- Jurisprudence and Legal Theory by V. D. Mahajan page 5th edition reprint
2015 chapter XI , page 117
- Britannica, T. Editors of Encyclopaedia (2019, August 27). Law.
Encyclopaedia Britannica. https://www.britannica.com/topic/law
- Jurisprudence and Legal Theory by V. D. Mahajan page 5th edition
reprinted 1993 Chapter II Page no.- 31
- Student at University School of Law and Legal Studies, GGSIPU