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.
Schools of jurisprudence
- 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
- Laws play a central role in social, political and economic life.
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:
- 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)
- 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
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.
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
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.
- 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
- Has an important and Universal Truth Law is created and enforced
by the State.
- 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
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
- The interrelationship between law and morality is ignored.
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
· 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'.
- 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
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
- 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
- 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.
- 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
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
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
solved by means of the existing laws.
- This school is based on logic, not metaphysical entities or divinities.
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,
- Interest of domestic relations Marriage, parents and children,
- Interest of substance Inheritance, occupational freedom,
- Public Interests are:
- Interest in the preservation of State, Administration of trusts,
endowments, territorial waters, natural environment etc.
- Social Interests
- Social interests are the claim or demands or desires thought of in
social life and generalized as claims of social groups.
- 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
- 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
- Prof. Allen criticized him for focusing on wants and desires to fulfill
material welfare which might be harmful to personal freedom.
- 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
- His idea of functional law led to the creation of functional school
- His theories gave the most influential exposition of the American
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
- Common Needs
Which are fulfilled by mutual assistance.
- 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.
- 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
- 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.
- 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
- 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
State has no personality of its own.
- Historical school
- The historical school of jurists was founded by Friedrich Karl von Savigny
- 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
- 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.
- This theory is that law is influenced by the culture and character of
- Savigny's theory traced the course of the evolution of law in
- Savigny's theory lays the seeds for the development of sociological
- Inconsistency- One side savigny asserted that the origin of law is in
consciousness and on the other hand argued that some of the principles of Roman
were of universal application.
- Savigny emphasised the national character of law. While advocating
of law he entirely rejected the study of German law and took inspiration from
- 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
transplanted in another country and sometimes a single personality greatly
legal system that is not a popular consciousness.
- Customs not always based on popular consciousness Many customs and
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
consciousness but in modern time it is wrong because today's legislation has
to make law.
- Many things unexplained- He does not explained many things which
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.
- 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.
- Ignored the historical aspects of legal development.
- His ideas were not accepted initially due to ambiguity which was later
corrected by him.
- 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
- Founder of international law
- Grotius, Founder of international law, said that a system of natural law may
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
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.
- emphasized morals to describe righteous conduct in society
- Built a system of natural law that should command universal respect by
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.
· 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
· 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
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.
- Realist school
John Chipman Grey:
- 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
- Realists have a pragmatic approach towards understanding jurisprudence
and thus it
emphasizes the judicial organization more which is responsible for the
- The realist school of law believes that law is real and co-relates law
- 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
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.
- 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.
- 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.
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.
- 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
case under changed social circumstances.
- His view was to maintain balance and to develop law parallel to
advancement in society.
- 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
- He exaggerated the human factor in judicial decisions and focused on the
lawyers and judges only.
- The realist approach was based on the American system of the judiciary
thus is not universally applicable.
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
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.
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.
- 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.
- 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.
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.
Award Winning Article Is Written By: Ms.Devika T K
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