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Definition of law and schools of jurisprudence

What is law?
Law may be defined as a large body of rules and regulations based mainly on general principles of justice, fair play and convenience, which have been worked out and promulgated by governmental bodies to regulate human activities and define what is, and what is not permissible conduct in various situations. It is a pattern of conduct to which actions do, or ought to conform.

General meaning
  • Law is a set of rules created by state institutions which make laws through the authority of the state. The laws have sanctions which are recognised by the state and enforced by state-authorised bodies.
  • In its judicial sense, 'Law' means a body of rules of conduct, action or behavior of persons, made and enforced by the state.
  • It expresses a rule of human action.
  • It is something that touches our lives on a daily basis, it governs what we can and cannot do, it is used to settle disputes, to punish and to govern the relationships between the parties.
  • Laws play a central role in social, political and economic life.

Schools of jurisprudence
Jurisprudence is the study or philosophy of law. It considers the cause and idea of law. Law has an unpredictable idea. Its comprehension differs from individuals to individuals. Everybody has an alternate perception of the law.

The following are the five schools of jurisprudence:
  1. Analytical school
    The major premise of analytical School of jurisprudence is to deal with law as it exists in the present form.
    Analytical school is known in various names such as:
    • The Austinian school since this methodology is set up by John Austin.
    • The imperative school since it regards law as the direction (command) of the sovereign.
    • The Positivist School because the exponents of this school are concerned neither with the past nor with the future of law but with law as it exists i.e., with law `as it is` (positum), the word positivism was given by august comete.

      Truth be told, it was Austin who propounded the theory of positive law, the establishment of which was laid by Bentham
      One of the fuctions of analytical school is, as the name suggest, analysis or decomposition of law into irreducible elements.

      John Austin
      Austin is known as the father of English Jurisprudence. According to him,
      'Law is a command of sovereign backed by a sanction.'He regards law as the direction of the politically powerful authority backed by a sanction. This means that Law is whatever the Law-Maker (the one with the authority to make laws) says and it supersedes judgements by judges/precedents etc.

      He distinguishes law from morality. He divides law into two parts:
      • Divine law: Law set by God for men
      • Human Law: Laws made by men for men.

        Austin accepts 3 kinds of laws:
        • Declaratory or Explanatory Laws: They are not command but are already in existence and are passed only to explain the law which is already in force.
        • Law of Repeal  Austin does not treat such laws as commands because they are in fact the revocation of a command.
        • Law of Imperfect Obligation  They are not treated as command because there is No sanction attached to them.
      Merits:
      • Simple and clear definition of Law
      • Lays down exact boundaries within which jurisprudence has to work.
      • Austin's positivists approach further laid down the foundation of English jurisprudence.
      • Has an important and Universal Truth  Law is created and enforced by the State.
      Demerits:
      • Customs overlooked: In the early times, not the command of any superior, but customs regulated the conduct of the people. Therefore, customs should also be included in the study of jurisprudence.
      • Permissive character of the law ignored
      • No place for judge made law: Nobody, in modern times, will deny that judges perform a creative function and Austin's definition of law does not include it. · Conventions: Conventions of the constitution, which operate imperatively, though not enforceable by court, shall not be called law, according to Austin's definition, although they are law and are subject matter of a study in jurisprudence. Austin does not treat international law as law because it lacks sanction. Instead, he regards international law as mere positive morality.
      • Rules set by private persons: Austin's view that 'positive law' includes within itself rules set by private persons in pursuance of legal rights is an undue extension because their nature is very vague and indefinite.
      • Sanction is not the only means to induce obedience: According to Austin's view, it is the sanction alone which induces the man to obey law. Lord Bryce has summed up the motives as indolence, deference, sympathy, fear and reason that induces a man to obey law.
      • Command over emphasized: In modern progressive democracies law expression of the general will of the people. Therefore, a command aspect of law has lost its significance in the present democratic setup. This definition cannot be applied to a modern democratic country.
      • Does not cover international law
      • Ignores social factors of law and psychological factors which secure its obedience
      • The interrelationship between law and morality is ignored.
      Bentham
      He defined law as:
      Law is an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power.

      Bentham supported the economic principle of 'laissez faire' which meant interference of the State in the economic activities of individuals.

      · Bentham propounded the principle of utilitarianism. According to this theory, the right aim of legislation is the carrying out of the principle utility. Bentham defined utility as the property or tendency of a thing to prevent some evil or procure some good. According to him, the consequences of good and evil are respectively 'pleasure and pain'.

      Merits
      • His constructive thinking and zeal for legal reform heralded a new era of legal reforms in England
      • He gave new directions for law making and legal research.
      • In the field of jurisprudence, his definition of law and analysis of legal terms inspired many jurists
      • who improved upon it and laid down the foundations of new schools.
      • He gave solutions to problems involving the nature of positive law

      Demerits
      • According to Friedmann, it suffers from two weaknesses:
        At first, in an effort to blend materialism with idealism; Bentham underestimates the need for individual discretion and flexibility in the application of law overestimating the power of legislator. Secondly, this theory fails to balance individual interests with the interests of the community
      • The theory is too abstract.
      • It fails to recognize complexities of human nature.
      • No practical application possible for his theory.
      • Pain and pleasure alone cannot be tested to judge the law.
       
  2. Sociological school
    • The Sociological school of Jurisprudence advocates that the Law and society are related to each other
    • Law is social scenery. This school argues that the law is a social phenomenon because it has a major impact on society. This school laid more emphasis on the legal perspective of every problem and every change that take place in society.
    • Law is a social phenomenon and law has some direct or indirect relation to society. Sociological School of Jurisprudence focuses on balancing the welfare of state and individual was realized.
    • According to this school the socio-economic problem of the present time cannot be solved by means of the existing laws.
    • This school is based on logic, not metaphysical entities or divinities.

    Rosco pound
    Roscoe Pound concentrates more on functional aspect of law. So, his approach may also be known as functional approach. According to him 'The end of law should be to satisfy a maximum of wants with a minimum of friction.' He demands for maximum happiness with less disagreement.

    He has given a theory of 'Social engineering' which means a balance between the competing interests in society. Social means group of individuals forming a society. Engineering means applied science carried out by engineers to produce finished products, based on continuous experimentation and experience to get the finished product by means of an instrument or device. He thinks that jurist should work with a plan and accordingly various interests of society should be protected by law.

    The interest has been classified into three categories:
    • Private Interests  which are as follows:
    • Interests of personality Physical integrity, reputation, freedom of violation and freedom of conscience. For example: law of Torts, law of Contracts, Criminal law.
    • Interest of domestic relations  Marriage, parents and children, maintenance.
    • Interest of substance  Inheritance, occupational freedom, property.
    • Public Interests are:
    • Interest in the preservation of State, Administration of trusts, charitable endowments, territorial waters, natural environment etc.
    • Social Interests
    • Social interests are the claim or demands or desires thought of in terms of social life and generalized as claims of social groups.


    Demerits:
    • Classification of interest is not useful. Since the social interests always change withthe society and to put them into specific order then they will lose their character and importance.
    • This word social engineering is used to indicate the problem that law faces, the objectives that have to be fulfill and the method which it will adopt for the purpose of interest.
    • No ideal scale of values with reference to interest.
    • By the word' engineering' no balance has been made between social needs and interests. Only this theory simply recognizes or approves it.
    • The theory ignores the fact that law evolves and develops in the society according to social needs and wants.
    • The dynamic feature of law is undermined in this theory
    • The conflict between social and individual interests is not considered by him.
    • Prof. Allen criticized him for focusing on wants and desires to fulfill material welfare which might be harmful to personal freedom.
    Merits
    • Has focused on practical implication of law and role of jurists in building a welfare state.
    • Considers working of law rather than its abstract concept.
    • Regard law as a social institution which may be improved by human effort and to discover and effect such improvement.
    • Lay stress upon the social ends of law rather than sanctions.
    • This theory says that legal precepts be used as guides to socially desirable results.
    • His idea of functional law led to the creation of functional school
    • His theories gave the most influential exposition of the American sociological viewpoint.


    Dugit
    The theory of Duguit under sociological school is a social solidarity. Social solidarity means the greatness of society. Duguit said that there are mainly two types of needs of the society:
    1. Common Needs
      Which are fulfilled by mutual assistance.
    2. Adverse Needs.
      Which are fulfilled by the exchange of services. No one can live without the help of other. Even a state cannot exist without the help of other state. One cannot produce So he has to depend upon all things required for him. others. The dependency is called social solidarity. For this purpose the division of labor is necessary. Division of labor will fulfill all requirements for the society. This philosophy or views is called social solidarity.
    Merit
    • He said to procure and to manufacture necessities of life men depends upon society. His theory advocates peace and solidarity
    • He attacks the myth of State sovereignty and compares the State to any other organization.
    • He also mentions the functions to behave in the society are also dependable upon each other. The aim is to safeguard interdependence or to fulfil all necessities and till this end is not achieved aim of the law is not fulfilled
    • The end or the result of all human activities and organization is to ensure interdependence of men which is social solidarity or theory of social fact which means men should live together as formation of law is very essential for community life.
    • He minimizes the functions of the State which leads to a reduction in the role of the legislator in his understanding.


    Demerits
    • Duguit was against State sovereignty. He thinks it is the will of the people that who will govern them. So state is also under a duty to ensure 'social solidarity
    • There was no difference between public law and private law because it will elevate power of State above the rest of the society.
    • Social solidarity is vague because judges will decide whether an 'Act' or 'Rule' is furthering social solidarity which is very dangerous for the judicial system as judges have their known limitation. it may lead to judicial despotism
    • His law confuses with natural law theories because if law does not further 'social solidarity' then it is no law at all.
    • Though Duguit emphasis of interdependence in society but his theory does not perform well due to minimum interference of state because in modern times social problems of modern community can be solved better by state activity
    • His theory may be subject to different interpretations and in the end, would serve the interests and purposes of lawmakers.
    • His use 'is' instead of 'ought' confuses the definition of law with natural law theories.
    • His theories were inconsistent where one side he was claiming that biological evolution has structured the state whereas on the other side he was contradicting it by saying that
      State has no personality of its own.

     
  3. Historical school
    • The historical school of jurists was founded by Friedrich Karl von Savigny (1779-1861
    • Historical School of Jurisprudence describes the origin of law. This school argues that the law was found not made.
    • The Historical School believe that law is made from people according to their changing needs. It believes that law is an outcome of development of the society because it originates from the conventions, customs, religious principle, economic needs of the people. Basic source of historical school is custom.
    • A custom is a traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time. Customs are considered superior to
      legislations in this school. The reasons for the emergence of this school are:
      • It came as a reaction to the natural school of law.
      • It opposes the ideology of the analytical school of jurisprudence.

     
    Friedrich Carl Van Savigny (1779-1861)
    A product of times the germ of which like the germ of State, exists like men as being made for society and which develops from this germ various forms, according to the environing the influences which play upon it.

    Main points of savingny's theory are:
    • That law is a matter of unconscious and organic growth. Therefore, law is found and made. Law is not universal in its nature. Like language, it varies with people and age.
    • Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness.
    • As laws grow 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, therefore the lawyers or the jurists are more important than the legislators.

    Merits
    • This theory is that law is influenced by the culture and character of the people
    • Savigny's theory traced the course of the evolution of law in various societies.
    • Savigny's theory lays the seeds for the development of sociological and evolutionary

    Demerits
    • Inconsistency- One side savigny asserted that the origin of law is in the popular consciousness and on the other hand argued that some of the principles of Roman law were of universal application.
    • Savigny emphasised the national character of law. While advocating national character of law he entirely rejected the study of German law and took inspiration from Roman law.
    • Volksgeist is not the exclusive source of law- Savigny said that popular consciousness is main sources of law it is not true. Because some time an alien legal system is successfully transplanted in another country and sometimes a single personality greatly influences a legal system that is not a popular consciousness.
    • Customs not always based on popular consciousness Many customs and practices have been declared illegal. Charles Allens criticized him for emphasizing the idea of law made by customs as he was of the view that customs are not based on the consciousness of people but for the powerful ruling class.
    • Juristic Pessimism- According to Savigny legislation must accord with popular consciousness but in modern time it is wrong because today's legislation has much power to make law.
    • Many things unexplained- He does not explained many things which developed by certain powerful communities that is in India slavery untouchables etc.
    • He ignored the judge made law- Judges has played an important and creative role in the function of making law but Savigny's theory has taken this role very lightly.


    George Friedrich Puchta
    Puchta was a great jurist as well as student of Savigny his ideas are more logical and improved. He uses the word 'right' in the place of 'law'. According to him men always livedin unity but people are different by their behavior and unequal. This brings out the idea of law. Then state comes into existence. But neither the people nor the state alone is the source of law. All laws come to existence by Volksgeist. Popular consciousness ties the people in one community like common language and religion. According to him customary law is the best expression of national spirit or Volksgeist so custom so custom is superior to legislation.

    Merits
    • His ideas were more logical and improved than Savigny
    • He divided general will from individual will from which conflicts arise.
    • His division and description of conflicts between the general will and individual will made the state, intervention theory logical
    • He gave two-fold aspects of human will and the origin of a state which was absent in Savigny's theory making it rigid.

    Demerits
    • Ignored the historical aspects of legal development.
    • His ideas were not accepted initially due to ambiguity which was later corrected by him.

     
  4. Philosophical school
    According to the philosophical school, also known ethical or natural school, legal philosophy must be based on ethical values so as to motivate people for an upright living. According to this school the purpose of law is maintain social harmony and to maintain to law and order in society and legal restrictions can be justified only if they promote the freedom of individuals in the society.

    The philosophical or moral school concerns itself mainly with the connection of law to specific thoughts which law is intended to accomplish. It tries to explore the reasons for which a particular law has been established.

    This school believes in the law of logic and reason.

    Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). To them, the law is the result of human reason and its motivation is to hoist and praise human identity

    Grotius
    • Founder of international law
    • Grotius, Founder of international law, said that a system of natural law may be derived from the social nature of man.
    • He defined Natural law as

    The dictate of right reason which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity.

    In this way, he built up a system of natural law that should command universal respect by its own inherent moral worth. His definition also states that logical application is backed by moral values.

    Merits
    • emphasized morals to describe righteous conduct in society
    • Built a system of natural law that should command universal respect by its inherent moral worth.
    • Emphasizes on reasons and origin of law on basis of morals.
    • This system of law has been derived from the social nature of man.
    • Agreement of mankind concerning certain rules of conduct is an indication that those rules originated in the right reason.

    Demerits

    · His theory was based on morality but there is a difference between ethics and morality.
    · Ethics are the behavioral pattern of the person whereas morality are the values imbibed in
    him.
    · Beside morality there are other factors social, economical and political patterns of the
    society which are very important for the formation of law.
    · Legislation, customs, precedents etc. are also the other sources which are very important in the formation of law.
    · Hugo said that Natural law deserves universal command which is not possible in modern
    times because now laws are formed by taking state, people and nature into consideration
    and then to make laws according to the need of the society.
    · This definition is dependent on logic/reason, something which varies from person to
    person, hence there wouldn't be uniformity of law.
    · Same goes for moral baseness and necessity as something which may feel morally correct to one may not to the other and vice versa.
     
  5. Realist school
    • Realist School is a type of school which focuses on decisions. It is a branch of sociological approach
    • 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.
    • It also focuses largely on the evaluations of any parts of law in respect to its effect
    • 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.
    • Realists have a pragmatic approach towards understanding jurisprudence and thus it emphasizes the judicial organization more which is responsible for the application of the law.
    • The realist school of law believes that law is real and co-relates law with reality.
    • There are two types of realist school:
      • American Realist: the scholars along with learning from there own experiences, but also observed the judgements and learned from them.
      • Scandinavian Realists: in this, the scholars believed only in their own experience.
    John Chipman Grey:
    According to Grey,
    The Law of the State or of any organized body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of legal rights and duties.

    John is considered as the father of American Realism.
    He, according to him, states that codified laws are immaterial unless they are applied by a judge. He says that law is basically the judgement that the court passes. He implies that body of written rules are lifeless orders and they are infused with life when the judge applies it.

    Merit
    • His theory is relatable to real life
    • Gives a chance for own interpretation by people.
    • Focuses on 'what law is' and not 'what law ought to be'.
    • Observes similar cases in the past as well.

    Demerits
    • Does not take into account the statute law
    • Puts excessive faith on judges.
    • Does not consider that the jugdement may include judges personal bias
    • This definition is not concerned with the nature of law, rather than its purpose and ends.

    Jerome frank
    He is considered one of the most important philosophers of the realist school. He explained by giving an example of the relationship between the certainties of law in men by describing it in terms of a father-son relationship. Like a son gets protection from his father similarly a man gets protection from the law.

    Merits
    • He states that it is not proper for lawyers and judges to stick to the myth of legal certainty in the name of precedents or codification.
    • He points out constructive work that every lawyer and judge needs to do.
    • He gave an emphasize on importance of lawmaking by evaluating facts of each case under changed social circumstances.
    • His view was to maintain balance and to develop law parallel to advancement in society.

    Demerits
    • His approach was not considered useful in terms of the law.
    • Some critics criticized him on using the Freudian approach of psychological development of a child in his theory, calling it the Freudian approach of jurisprudence.
    • He exaggerated the human factor in judicial decisions and focused on the roles lawyers and judges only.
    • The realist approach was based on the American system of the judiciary and thus is not universally applicable.

Immanuel Kant
Law is the sum total of the conditions under which the personal wishes of man can be reconciled with the personal wishes of another man in accordance with a general law of freedom.

Kant's legal philosophy is a theory of what the law ought to be. he distinguished between legal duties and legal rights. He also distinguished between natural rights and acquired rights. He recognized one natural right of the freedom of man in so far as it can coexist with everyone else's freedom under a general law. According to Kant, the function of the State is essentially that of protector and guardian of law. The aim of Kant was a universal world state.

He differentiated between ethics and laws according to him ethics relates to man spontaneous acts whereas laws deal with those acts which the man is compelled to do by the state and society. Ethics deals with inner life or insight or consciousness of the people whereas laws regulate external conduct of the person. He said that legislation could be effective only when it represent united will of the people. According to him justice is relative concept depending on conditions, place, social values etc. in which an action takes place. He said that laws must be metaphysical derived from reason in order to be just.

Merit
  • He recognized one natural right of freedom of a man in co-existence with other's freedom in general law
  • His aim was universal law state.
  • According to him the function of the state is to safeguard law and be the guardian of the law.
  • He states that ethics are the internal consciousness of a person whereas law is the external conduct of a man.
  • Emphasized the united will of people to validate legislation.
Demerits:
  • Since his theory entirely based on 'what law ought to be' he forgot to consider the past and present of the law.
  • He denied the concept of natural law which is very important for the existence of laws.
  • He theory has given theoretical differences between ethics and laws but there is no practical application of them.
  • He has also not given importance to other sources like customs which are considered to be oldest source of law.

Conclusion
Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation, application, and requirement of laws. Jurisprudence is the investigation of theories and methods of insight in regards to the law. It has viable and instructive esteem.


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