Law is a very wide concept and ordinarily does not admit to any one
universally accepted definition. Everybody has an alternate perception of law
and its comprehension can differ from person to person. It can admit to a
certain description but an author has the discretion to map its boundaries for
his discussion and to convey an idea of what law is. For this purpose, we resort
to the study of jurisprudence, which is a hypothesis and investigation of law.
General Jurisprudence can be classified into: (i) Analytic Jurisprudence, and
(ii) Normative Jurisprudence. The former dwells upon the question of ‘What is
Law?’ whilst the latter dwells upon questions like, ‘What is the purpose of
The best answer to these questions can be studied under the five prominent
schools of Jurisprudence:
Analytical School of Jurisprudence Till the beginning of the 18th century, natural law was predominant and its
principles were considered to be supreme. Justice, nature, reason, and
supernatural sources were some of the bases of natural law. The analytical
school of law defined the ‘relation of law with the state’ and was a
reaction against the ideas and principles of the natural law.
It is also known as the Austenian, Imperative or Positive school of law. It
is one of the main schools of jurisprudence and had first gained its
prominence in the 19th century.
The school was propounded by Jeremy Bentham and John Austin; however, Austin
is regarded as the father of the Analytical school of law, he defined law as
“The rules defined for the guidance of intelligent being by another
intelligent being having power over him.”
The analytical school treats the command of the sovereign by sanction and
the subject matter of this school is positive law which is why Dias terms
this approach as ‘Positivism.’ Moreover, the school only focuses on the
present situation as it is the law set by the political superior and does
not concern itself with the past or the future.
Proponents of the Analytical School of Jurisprudence:
- Jeremy Bentham:
John Austin propounded the theory of positive law but the establishment was laid
by Jeremy Bentham, which is why he can be said to be the author of the
analytical school of law. He believed in testing law on the basis of utility
principle and how legal actions should be approved or disapproved based on their
effect on the maximization or minimization of happiness of the people. He
considered people to be governed and ruled by the principles of pleasure and
He claimed that if people had the liberty of choosing what they desire, they
will attain the maximum possible happiness and consequentially deliver the best
possible results to the society and the state, owing to which he propounded the
idea of a ‘Laissez-Faire’ kind of state where the man has complete liberty over
his actions without any hurdles obstructing him.
Moreover, he divided jurisprudence into two kinds:
- Expository Jurisprudence: which deals with the law as it is
- Censorial Jurisprudence: which deals with law as it ought to be
His examination of censorial jurisprudence is indicative of the fact that
natural law has not yet completely disappeared and which is why he proffered
utility as the primary governing principle.
Bentham has provided a vast number of contributions due to which his ear is also
known as the ‘Benthanite Era’ in the legal history of England. Furthermore, his
philosophy that, “Justice is nothing by social happiness or the happiness of the
majority of people” seems like a great moral of ideal for the welfare of states.
He also moved on to introduce legal positivism and treated the study of law as a
science of investigation in itself through scientific methods of reasoning and
Many claim that his approach fails to balance the individual interests of the
people with the collective interests of the society and that the concept of
pleasure and pain cannot be the final test as these two are not the final goals
of laws and legislations. He also faced criticism on his propagation of the
concept of ‘Laissez-Faire’ to provide complete freedom to individuals in the
process of development was not actually correct and that even in later times
legislations were in fact used to restrict individuals in economic matters.
- Hans Kelson:
Kelson gave the ‘Pure Theory of Law’ which suggests that law must remain free
from the influence of all social sciences, such as psychology, sociology etc. he
aimed at establishing a science of law which will be pure in the sense that it
shall shun all ethical, moral, metaphysical, psychological and sociological
elements and factors; he tried to altogether exclude such factors from the study
of law. He too constantly criticized the ideas and principles of natural law.
Kelson defined law as an order of human behaviour and it being coercive in
nature, owing its coercive powers being derived directly from the sanction
attached to it.
Essential Foundations of Kelson’s System:
- Aim of this theory of law, like any science is to reduce chaos and bring
- Legal theory is the knowledge of what law is and not what law ought to
- Law is a normative science and not a natural one
- The theory of norms Is not concerned with the effectiveness of legal
The most distinguishing feature of his pure theory of law was
the ‘Grundnorm’ and the hierarchy of all norms. The grundnorm as the fundamental
norm is the starting point in any legal system from which the legal system
slowly broadens and progresses.
He is considered to be one of the most prominent and important jurists of the
20th century and someone who has had influential effects on many law scholars.
His theory of the grundnorm has been observed to be vague by Freidman and has
been claimed to be fictitious as it is something which cannot be traced into
legal reality. Every norm or law derives its efficacy from some other norm or
law standing behind it but the grundnorm has no rule or norm standing behind
Sociological School of JurisprudenceThe sociological school of jurisprudence treats law as a social wonder and is of
the belief that law is a social capacity and an outflow of human culture which
is concerned with the external relationships of all individuals. They claim law
to be a social organization that when connected with orders bears a direct
effect on the society.
The subject matter of this school is the relation between law and sociology and
how law is a social phenomenon owing to the reason that it has an impact on
society. The main subject matter of sociology is society, study of human
behaviour and social changes whereas jurisprudence is the study of law and legal
aspect of things, all combined together to birth the sociological school of
The school laid a great deal of emphasis on the legal perspective
of every problem and how every problem has a legal as well as a social
perspective. It is during the emergence of this school that the importance of
maintain a balance between individual interests and the overall welfare of the
society was realized.
According to Comte, “Society is like an organism and it could progress when it
is guided by scientific principles.” He made a great effort to use law an
instrument by which human society maintains itself as well as progresses.
- Reasons for the Emergence of the Sociological School of Law:
The school emerged in the late 19th and early 20th century, around the same time
when the “Laissez-Faire’ state was first introduced, following which the
individual interests of the society started to evolve. Laissez-Faire is a policy
of minimum governmental control or interference in the economic affairs of its
individuals and the society at large. It guarantees unrestricted freedom of
individuals in all economic matters. Due to this, the individual interests of
the people gained greater importance against the larger welfare of the entire
The sociological school was a reaction against this policy of Laissez-Faire as
the school advocates a balance between the two factors. It believed in studying
sociology from a legal point of view and as a subdiscipline of sociology which
talks about interdependence of society and law.
Four Functions of Podgorecki:
- Aims to grasp law in its actual working
- Provides expert advice for social engineering
- The school struggles with reality
- The school attempts to shape its studies to make them useful for
- Proponents of the Sociological School of Jurisprudence
- Roscoe Pound:
He was an American legal scholar who claimed that law should be studied as in
its actual working and not as it stands in the textbooks. He also gave the
infamous theory of ‘Social Engineering’ which compares lawyers to engineers who
use their skills to develop and manufacture new products. Similarly, as a social
engineer, it is the duty of the lawyers to build a structure in the society that
provides maximum happiness and minimum possible friction.
According to his interest’s theory, the balancing of all conflicts of interests
is a supreme over all individual interests:
- Individual Interest: These interests are demand from the viewpoint of
individual life, interest such as personality and domestic relationships
- Public Interest: These are asserted by individuals from the viewpoint of
political life and claims that everyone has a responsibility to make use of
resources open to public use within the interest of the preservation of
- Social Interest: These are in terms of social means to fulfil the needs of
the society for better functioning and maintenance.
- Pound’s Jural Postulates: The interests highlighted in these postulates are to
- Criminal: It is the interest of protection from any internal aggression
- Law of Patent: Aims at securing one’s own created property by one’s own labour and hard work
- Law of Contract: Interests in making the contract and getting reasonable
remedy or compensation when his right is violated
- Law of Torts: Interest in protection against defamation and unreasonable
injury caused by the negligent act of another.
- Strict Liability: Duty of other people to keep their things within their
own boundaries and to look after them in order to avoid injury to another
His idea of Social Engineering is followed universally for dispute resolution.
Moreover, Pound has confessed that his postulates are not absolute and have
relative value, but give ideal standards which the law should pursue in the
His use of the term ‘engineers’ for lawyers has been criticized by many,
claiming that it equates society to a factory like mechanism.
- Leon Duguit:
He was a French jurist and a leading jurist of droit public i.e., public law. He
was greatly influenced by Auguste Comte and Emile Durkheim. Duguit proposed the
theory of ‘Social Solidarity’ which explains the cooperation between individuals
needs and their existence. Social Solidarity literally means a feeling of
oneness; it represents strength, cohesiveness, collective consciousness and
viability of the society as well as the interdependence of human beings in a
society. Duguit was of a belief that mean cannot exist without interdependence
and that cooperation is an essential factor in a cohesive society.
He considered any law to be bad law that does not promote social solidarity. He
made the claim that it is a man’s duty as an individual of the society to follow
and promote the approach of social solidarity.
He discarded the traditional theories that considered law to be deriving from
the authority of the monarch or the state. He instead found the basis of law in
the fact that humans are social animals endowed with a universal sense of
instinct of solidarity and social interdependence.
Many consider his theory of social solidarity to be vague and that a deeper
analysis would reveal that it is not very different from the metaphysical
notions that he very strongly rejected. Also, it was criticized how it was the
duty of a judge to decide whether an act or rule is advancing social solidarity
which some claim might deem dangerous as judges have their own limitations and
that such a process might lead to judicial dictatorship.
Realist School of Jurisprudence:The realist school remains unconcerned with the ends of law and only aims to
study the actual working of the law as it is. The school rejects the traditional
definitions of law which regard the written or the enacted law as the only true
and absolute law.
The realist school of jurisprudence talks about the aftermath of the industrial
revolution during which emerged and developed socialization amongst people. The
school is of the belief that in order to ensure justice it is essential to
strike a balance between the overall welfare of the society and personal
liberties of its individuals. According to this school, society is a vital
element in an individual’s life and vice versa.
The realists study the judgements given by the courts of law and consider the
human factor involved in its delivery. They strengthen sociological
jurisprudence as to perceive law as a consequential effect of social impacts and
conditions in the form of judicial decisions.
The jurists of this school claim that judgements of the law are affected by
human emotions and behaviour; they work towards studying the perspective of the
lawyers and judges and the implementation of their thought processes and
mind-sets during the delivery of case judgements.
The realist school is an experience of justice for different people and it
attempts to consider the perspectives of both the parties involved in a case as
well as tries to study their opinion of justice.
The Doctrine of Precedents was first introduced by this school which states
the role of judges in important judgements and cases and how judgements shall
follow a strict hierarchy of the courts, for example: a decision laid down by
the Supreme Court of India shall remain binding on all courts at the lower
- American Realism
John Chipman Gray and Oliver Wendell Holmes are together regarded as the fathers
of American realism. The ultimate aim of this school is to reform the law and
the claim that it cannot be done without understanding the law first. They
attempt to study the law as it is and not as it ought to be, which is something
that they have in common with the Positivists.
The school believes in understanding the law while taking into consideration
the sociological factors involved in it. They undertake an empirical
approach to study the law and draw emphasis on the role of judges in law.
- Proponents of Realistic School of Jurisprudence (American Realists)
- Oliver Wendell Holmes:
Holmes is considered famous for his ‘Bad Man’s Theory’ which looks at law from a
criminal’s perspective. According to him, the law is meant for potential
criminals or the ‘bad men.’ Oliver Holmes rejected all definitions of law based
on morality, ethics and natural law. He claimed that the bad man only cares
about the actions of the courts if he commits an act and that such predictions
regarding the court’s actions against a criminal is what the law really is. His
definition of law as prediction resulted in an increase in the prominence of
litigation and lawyers.
He advocates a complete separation of law and morals and claimed that legal
history is to be studied only in order to analyse the relevance of certain
historical laws on the contemporary laws. His approach towards was empirical and
pragmatic. According to him, “Law is the thing that the courts do; it isn’t
simply what the courts state.” His emphasis is on the activity and the life of
law has not been rational but rather it has been involvement. He stated that law
isn’t just logic or facts but the collected experience to deliver a prudent
He threw light upon the question as to “Why people understand the law?”, to
which he answered that they do so in order to discern between the right and the
His writings on jurisprudence have shaped discussions on the nature of law and
his court opinions have been studied as much for their style as for their
intellectual content. Furthermore, he had a profound effect on the development
of sociological jurisprudence and legal realism.
His jurisprudence eventually led to the conclusion that the judges first
come up with or make legal decisions and then come up with reasons to
explain to them which was widely criticized. Moreover, he paid too much
deference to the power of the state to control individual freedom.
- Jerome Frank:
Frank insisted upon two groups of realists, namely:
- Legal/Rule Sceptic: Realists who were sceptic about legal rules and them
providing uniformity to law
- Fact Sceptic: Realists who were sceptic about the establishment of facts
before the trial courts, in addition to legal rules
He considered himself to be a ‘Constructive Legal Sceptic’ belonging to the
second group of realists. According to him, law involves the application of
rules of law to case facts by the judges. He was sceptic about the accuracy of
those facts being presented to the judge, with the claim that if facts prove to
be wrong then so does the judgement.
He drew emphasis on the uncertainty of law and that precedents and laws are made
under the false belief of them being certain and that lawyers and judges
shouldn’t strictly adhere to them. He claimed that such a dependence on
precedents and laws provides a false sense of security which can prove to be
dangerous and harmful.
He moved on to say that legal certainty is a myth and that there is no certainty
their outcome due to a multitude of constants and variables. In his belief, “Law
is a constructive work in the hands of lawyers and judges,” and that it is their
duty to follow the background and do it independently and without any
He urged judges and legal scholars to acknowledge openly the gaps and the
uncertainties in the law and to think of law pragmatically as a tool for human
He never attempted to develop anything like a coherent theory of adjudication or
a constructive vision for legal reform, although, he also did not entirely deny
the possibility of rational-legal decision-making.
- Scandinavian Realism
Many scholars claim that the jurists belonging to this school have certain
differences amongst themselves. They have abstract and philosophical beliefs and
strongly criticize the metaphysical ideas of law. They play an important role in
rejecting the ideas of the natural school of law. The school overall denotes the
legal philosophies of a group of scholars and denies the possibility of a
science of justice or values.
The school has made the claim that law cannot be explained simply by the facts
alone and it exists by the psychological effects on it caused by certain
factors. The jurists of this school laid emphasis on law as fact and created a
climate conductive to the sociological study of law.
- Proponents of Realistic School of Jurisprudence (Scandinavian Realists)
- Axel Hagerstorm:
He is regarded as the spiritual father of the Scandinavian realists and has
strongly criticized the metaphysical foundations of law. He was a strong
critique of the errors in juristic thought and writing. He believed in
conceptual analysis, as well as historical and psychological but never empirical
unlike the American realists.
Hagerstorm rejected the attempts of various jurists to find the empirical
foundation of rights
He profoundly studied Greek and Roman law in his quest for historical basis of
rights and claimed that “One fights better if one believes that one has right on
He stated that the relation between law and ritual is like that between liquor
and its bottle. He strongly rejected the ideas of good and bad and denied the
existence of such objective values.
Hagerstorm’s importance for the development of his approach to legal philosophy
generally and to international law is widely credited. Moreover, he claimed that
there is no factual continuity, coherence or unity in legal rules other than
what is actually stated by the judges.
He was of the opinion that words such as ‘right’ and ‘duty’ were basically
meaningless as they could not be scientifically verified or proven. He stated
that they may somehow influence or direct individuals but if they could not
stand the factual test, then they were mere fantasies. He also attacked various
other such words claiming that they could not stand up to their scientific
- Karl Olivecrona:
According to Olivecrona, law does not require a specific definition which is why
he sought to investigate law and not its nature because such an examination
would demand certain assumptions to be made and Karl believed in examining facts
rather than making assumptions. He rejected the idea of a binding force behind
law or the binding force of law and claimed that law has a binding force as long
as its valid and that if law loses its validity, it will consequentially lose
its binding force. He stated that such a force is not vested in the will of the
state or the consequences if the law is broken, rather it is present in
He was of the belief that the term ‘right’ is actually hollow and that legal
problems can be solved without using the concept of rights.
He made the claim that law influences morality and not otherwise, and advocated
the correlation of law and morality. He made the claim that the morality of an
individual is from a pre-existing law i.e., his moral compass forms due to the
laws in action from when he was born.
His writings put emphasis on the psychological significance of legal ideas. He
implied that anything can be made of importance by adding a psychological effect
The distinction espoused by Olivecrona between the truth and the correctness of
legal statements is actually considered to be problematic but is not considered
being needed in this legal philosophy. Furthermore, his thoughts on judicial
law-making are somewhat considered being confused.
Philosophical School of JurisprudenceAlso known as the moral school, the philosophical school of law is often wrongly
referred to interchangeably as the natural school of law. Although, it is not
the same as natural law and is only a part of it as it only takes into account
just one pillar or feature of the natural law, which is logic, and ignores the
rest three. It is distinct in its features from that of the natural law as it
states that law is based on reason and that any law which is against reason and
logic, holds no validity. Whereas the natural school of law claims that law
originates through some divine entity and has been prevalent ever since the
The school is mainly concerned with the connection of law to specific thoughts
which the law intends to accomplish and tried to explore the reasons behind why
a particular law has been established. It has made the claim that legal
philosophy must be based on some ethical values in order to motivate and inspire
people to maintain an upright living and a sense of righteousness. Moreover, the
school makes a conscious effort to refer to those moral principles which mould a
man’s conduct and enable him to distinguish between the right and the wrong,
while simultaneously respecting the rights of other individuals in order to
maintain a level of social harmony.
The school believes that laws may be made by the people or the state but
whichever it might be, they have to be built upon the foundation of some reason
or logic in order to uphold their validity in society. The school also states
law as the means to attain ends of justice and is concerned with the manner in
which law fulfils its attainment of justice.
- Proponents of the Philosophical School of Jurisprudence
- Hugo Grotius:
Grotius is regarded as the father of the philosophical school of law as he
demarcated the philosophical school from natural school and one of the first
ones to do so. He dwelled upon the idea of reason and logic as the bases for the
origin of any law not through some divine entity or origin. Prior to his theory,
people strongly associated law to god and the divine. He also stated that
“natural law springs from the social nature of man and the natural law as well
as a positive morality, both are based on the notion of righteousness.”
accredited that humans came into existence, and continue to exist in a society
collectively while maintaining a level of interaction owing only to the social
contract theory, which says that people live together in a society in accordance
with an agreement that establishes moral and political rules of behaviour. He
was of the view that the agreement of mankind concerning certain rules of
conduct is an indication that those rules originate in the right reason.
He also stated that it is the duty of the sovereign who is bound by the
principles of natural law, to protect the people of the state and safeguard
their rights as he has been handed over the power to do so. However, Grotius
also explicitly pointed to the fact that in case the ruler does not remain in
conformity of the principles of natural law and isn’t the perfect or desirable
sovereign capable of safeguarding the people’s rights, it still remains the duty
of the citizens to obey him.
He is also regarded as the father of International law, and he gave the ‘One
Nation Theory’, which means that the whole world is one and is governed not by
force or warfare but by actual laws and mutual agreement to enforce those laws.
He additionally advanced the idea of ‘Just War’ as a war that was required by
natural, national and celestial law in specific situations. He developed a
series of rules for the right conduct of war, based on the principle that
actions in war should serve the right.
He was the first one to demarcate the philosophical school of law from the
natural school of law. Furthermore, he also defended the idea of free access to
the ocean s for all nations which was appreciated by many at the time.
He claimed that it was the duty of the citizens to obey the orders of even a bad
sovereign and such a claim created an inconsistency in his theory as on the one
hand; he is of the view that the ruler is bound by the just principles of
natural law but on the other hand he also claims that in no situation can the
sovereign be disobeyed.
- Immanuel Kant:
According to Kant, “The freedom of man to act according to his will and the
ethical postulates are mutually correlative because no ethical postulate is
possible without man’s freedom of self-determination.” He called the substance
of the ethical postulate ‘categorical imperative,’ which is the basis of his
moral and legal theory.
Kant deeply relied on the concept of ‘united will of the people’ and made the
claim that an individual is required to act in such a manner that the maxim of
your action will become the maxim of a general action of the society. In other
words, he saw the law as an instrument through which the individual will of the
people can be harmonized with the general will of the society.
He was forward looking as he had challenged the 18th-century convention of
social discrimination by creating a system of ethics in which morality is
reason-based and impartial as well as egalitarian.
Hegel argued that Kant’s ethics force humans into an internal conflict between
reason and desire. For Hegel, it is unnatural for humans to suppress their
desire and subordinate it to reason completely.
Historical School of Jurisprudence The historical school of jurisprudence started with Von Savigny in the
19th century, and is primarily concerned with the history and evolution of law
and the entirety of a legal system, while simultaneously examining the evolution
of society and its effect along with consequent changes and advancements of laws
in that particular society. It constitutes the general portion of legal history
and examines the manner of growth of a legal system.
The initial question that the historical school of law focuses on is: How far
have the modern laws been fashioned from the past? The jurists belonging to this
particular school developed their theories based on one mutual basis which
claims that ‘law is found, not made.’ They argue that law is found in the
behavioural pattern of the society, owing to the people’s habits and common
customs, and that law and customs collectively become the law of the state. The
school is of the belief that any particular system of law is nothing but the
reflection of the spirit of the people who developed it.
According to the historical school, the law should be dynamic and should
continue to change and evolve along with the ever-changing needs of society.
- Reasons for the Emergence of the Historical School of Law:
The primary reason for the origin of the historical school of law is that it
rejects the idea of formulation of law by judges or some divine relevance
- Rejects the ideas proposed by the analytical school of law which states
that law is the command of the sovereign. Historical school is of the claim
that formulation of law is by the people’s customs, habits and not by
precedents and interpretations of the judges or legislation.
- Secondly, it is in the opposition of natural law which claims that law
has been present ever since the the inception of society and is given to us
by some divine power or relevance, in disagreement to which the historical
school states that formulation of law is by the people and not some divine
- Proponents of Historical School of Jurisprudence
- Friedrich Carl von Savigny:
Von Savigny was a German Scholar and is regarded as the father of the historical
school of law. He argued that the main source of law is the consciousness of the
people and that it rather originates in the behavioural pattern of the society
and cannot be artificially fashioned or created. He compared law to language and
culture, something which cannot be applied universally and neither can be
created based on a rational or eternal principle as different societies have
different needs everywhere. Based on such an observation, he also noted that
like language and culture, law is born, is found as well as it grows in the
society and will die with the society.
He claimed that state law grows side by side with the strength of the state’s
collective nationality and ceases to exist if or when nationality loses its
charm in the society. He stated that law has its very own national character
which gives rise to the concept of ‘Savigny’s Volksgeist’ which means law is the
general product of people’s consciousness or will. He made the claim that law
should support the will of the people and legislation should not be forced on
the society unless they’re worked upon accordingly with the will of the society.
Von Savigny is considered to be one of the greatest jurists of the 19th century.
Jurists claim that with the publication of many of his early works, modern
jurisprudence was born.
Although, Savigny’s theory of Volksgeist was a revolution and his contributions
were appreciated by many, he ruined the very concept of the theory through
exaggeration and overemphasis. The theory was criticized for its lack of
precision and even though it contains some amount of truth, Savigny took it to
far to develop some of its ideas. The theory in itself has limited applicability
which he rather tried to deem universal. The theory was also criticized as all
the customs cannot be of the common conscience. Many believe that the theory is
a direct product of the growing spirit of nationhood and nationalism prevalent
in Europe during the era.
He was also criticized largely based upon the idea that he overlooked the impact
of almost all other sources of law.
- Sir Henry Maine:
Henry Maine is regarded as the founder of the English Historical School of Law,
he carried forward Von Savigny’s work and views in English. Maine studied the
Indian Legal System in-depth and was a law member in the council of the
Governor-General of India between 1861-1869. Unlike Savigny, he was in favour of
codified laws and legislations.
Maine’s development of law in four stages:
- First Stage: (Law by the Ruler)
Rulers act under the influence of divine inspirations and the laws are made on
the command of the ruler thereafter. Such a judgement was believed and
interpreted to be the judgement of some divine origin. The ruler was not a
lawmaker but rather, he was simply an executor of the will of the god
- Second Stage: (Customary Laws)
The commands of the king are then translated into customary laws which prevail
with the ruler or the majority class.
- Third Stage: (Law under Priests)
The knowledge of the customs soon shifts on to the minority class due to a lack
of power in the hands of the original law-making authority like priests and soon
the minority class supersedes the authority of the kind and obtains control over
- Fourth Stage: (Codification)
In the fourth and final stage, the law is codified and legislated.
Concept of Static and Progressive Society
Status to Contract
- Static: These kinds of societies cease to develop and evolve beyond the
era of codification. They don’t work on progressing the law further after
the final stage.
- Progressive: These are societies that make a conscious effort at
developing and progressing their legal system after the final stage with the
help of instruments like:
- Legal Fiction: It means to change the law with the changing needs of the
people without making any amendments to the written code. Although it makes
the law more inclusive and improves legal order, it makes the law harder to
- Equity: It helps remove rigidity and injustice.
Maine suggested that “Equity is a body of rules existing by the side of the
original civil law and founded on distinct principles.”
- Legislation: It is the most effective and desirable method as laws will
be enacted and will become operative officially.
The society shifts from social status to contractual status where the rights and
obligations of individuals only depend upon the contract based on free
negotiations. All classes like labour, women, former slaves were now all free to
negotiate contracts unlike earlier. Rights in static societies which were
earlier decided on the basis of status will in progressive societies be decided
on an individual basis on the basis of free negotiation.
Maine incorporated the best ideas of Savigny and avoided abstract, unreal
romanticism. He also appreciated codification as well gave importance to all
sorts of legal reforms. Maine also acknowledged various other sources of law
which Von Savigny failed to do.
Many of his ideas on the development of law have been discredited such as the
patriarchal theory and the shift of society from contractual status back to
The schools of Jurisprudence present us with an idea of how the law and society
and the need for law in a society originated. They aid us in understanding the
contributing factors for the establishment of a successful and working society
and the need for consent of its people for the law that they are following.
Written By: Ishikaa Seth,
USLLS, GGSIP University
Greetings, I am Ishikaa Seth! I am a 1st-year law student at the University
School of Law and Legal Studies, GGSIP University.