JURISPRUDENCE – I

UNIT – I

MEANING, DEFINITION AND NATURE OF JURISPRUDENCE

MEANING OF JURISPRUDENCE
The term ‘Jurisprudence’ owes its origin to Roman term jurisprudentia. The word
‘Jurisprudence’ is a combination of two Latin words juris + prudentia = jurisprudence which literally
means knowledge of law or the science of law. Jurisprudence attempts to explain the nature of law and
its interactions with the life of the community. The terms ‘Jurisprudence’ and ‘Legal Theory’ have been
often used interchangeably.

EVOLUTION OF JURISPRUDENCE
Jurisprudence is not a creation but a growth over centuries. The evolution of Jurisprudence
may be studied under three periods namely:
1. Pre-Roman Period
2. Roman Period
3. Post Roman Period
The word ‘jurisprudence’ began to acquire a technical significance in England in the early 19 th century.
All communities which reach a certain stage of development create a legal system to protect certain
interests. As the community develops the concept of law becomes more refined, and the interests that
are protected may also change. The first task of jurisprudence is to throw light on the nature of law and
also to study the functional concepts which legal systems develop, and of the social interests which the
law protects. The study of jurisprudence in a wider perspective includes not only the study of the
concepts of law, but also the influence of the social forces upon their development. Thus, jurisprudence
involves the study of general theoretical questions about the nature of law and legal systems, about
their relationship of law to justice and morality, and about the social nature of law. It develops concerns
which properly reflect the social and political concerns of the contemporary period.

DEFINITION OF JURISPRUDENCE

 AUSTIN
“Jurisprudence is the Philosophy of Positive Law.”
Positive Law – the law laid down by a political superior for controlling the conduct of those

subject to his authority. The law pronounced by the political sovereign for controlling the

human conduct. (jus positivum)

 SALMOND
“Jurisprudence is the science of first principles of civil law.”

Jurisprudence deals specifically with the principles of Civil Law only. (the rules applied by the
courts in the administration of justice). It concerns with the general civil concepts like property,
contract, possession, ownership etc. and thus constitutes the basis of a developed civil law.
Jurisprudence regulates the external human conduct which are enforced by courts.
Jurisprudence is different from theology (theologian or religious laws) which derive their

authority from a divine or super-human natural.

  SIR THOMAS ERSKINE HOLLAND
“Jurisprudence is the Formal Science of Positive Law”
The formal science deals with the fundamental principles underlying the positive legal
concepts and notions like property, contract, possession, ownership etc.

Jurisprudence in this view should concern itself with the general portion of legal doctrine and with the
general conceptions of pervading principles that constitute the basis of any mature system of law.
In every system of law there are certain fundamental conceptions and broad principles which serve as
the basis for the concrete details of the law. Specific rules are the appropriate subject-matter of legal

exposition or compilation rather than of juristic science.

Since jurisprudence deals only in a formal and abstract way with the relations of mankind

which are generally recognized as having legal consequences it is called as Formal Science.

GENERAL AND PARTICULAR JURISPRUDENCE

AUSTIN – makes a distinction between ‘general’ and ‘particular’ Jurisprudence.
General Jurisprudence – the science concerned with the exposition of the principles, notions and
distinctions which common to the systems of law, understanding by systems of law etc.

Ex: Basic concepts like property, possession etc.

Particular Jurisprudence – the science of any one of such systems of law. Ex: Ancient Hindu Legal

System, American Legal System etc.

SALMOND – has repudiated the notion of general jurisprudence as conceived by Austin which
carries the misleading suggestion that principles germane to general jurisprudence are such only
because they are common to the mature legal systems .
Salmond concludes that ‘Jurisprudentia generalis’ or general jurisprudence is not the study of legal
systems in general but the study of the general or fundamental elements of a particular legal system.

COMPARATIVE JURISPRUDENCE
The study of similarities and differences that are existing in the basic legal concepts in
different legal systems of different countries. It is a comparative study of systems in all its branches in
two or more legal systems. Comparative Law was recognized as important in the 19th century because
of the works of scholars like Montesquieu, Henry Maine and Kohler. These works studied different legal

systems in order to demonstrate in an historical perspective, the progress of humanity.

Ex: Comparison of ancient Roman Law with ancient Hindu Law, Comparison of American Legal System
with Indian Legal System.

NATURE OF JURISPRUDENCE
Majority of the jurists call Jurisprudence as Social Science and some other jurists call it as a
Formal Science.
There are two different opinions that prevail regarding the nature of Jurisprudence.
 1. JURISPRUDENCE - A SOCIAL SCIENCE
Social Science is the study of human activities from the social and spiritual point of
view. Thus Social Science is different from natural science in the aspect that Natural Science
deals with human biology or physiology, while the Social Science deals with the moral and

social activities of human being. Jurisprudence is classified as a branch of social science

attempting to explore and explain the social and moral rules of human conduct.
2. JURISPRUDENCE - A FORMAL SCIENCE
Sir Holland – Jurisprudence is the formal science of positive law. It is a formal or
analytical study of law.
A formal science is a science dealing with the fundamental principles underlying
certain concrete details. Jurisprudence is a formal science because it deals with the underlying
purposes and principles of certain general basic details like property, ownership, possession,

title, liability etc. common to all material legal systems.

PURPOSES, USES AND VALUES OF JURISPRUDENCE

1. Synthesis and developmental of the fundamental principles and conceptions of law.
2. The objective of Jurisprudence is to give theoretical foundation for law.

3. It aims to universalize the common element existing in one legal system to all other legal
systems.
4. It attempts at providing definitions for many legal terms which enable the lawyers and jurists
to have a clear understanding of the legal concepts. It acts like a grammar to a particular

language by providing clear definitions and explanations to many basic concepts it helps the

legislators for enacting legally correct legislations.

5. Jurisprudence constructs and elucidates legal concepts to make them more rational and thus

help to improve the legal system.

6. Jurisprudence also has educational value. The legal concepts sharpen the lawyer’s logic. [Law –

Logic = zero]
7. The study of Jurisprudence changes the static and formal approach of law, as the concepts in

jurisprudence are changed according to the needs and scientific advancements of the society.
8. Jurisprudence also helps the court in interpreting the true meaning of legislations, customs and

precedents etc.
9. The study of Jurisprudence also helps to suggest changes for the betterment of the existing
laws.

10. Jurisprudence thus introduces reasoning to the study of law and it sets the goal of law for an
ideal order in which justice is assured to all the people in the State.
 JURISPRUDENCE – I
UNIT – II

SCHOOLS OF JURISPRUDENCE

Jurists at various times and places have made their approaches to the study of law from different

angles. They have defined law, determined its sources and nature and discussed its purpose and ends.
This systematic thought about law is termed ‘Legal Theory’ or ‘Legal Philosophy’.
For the sake of clarity and convenience in understanding their viewpoints, legal philosophers have
been divided in to different schools on their basis of their approaches to law. These schools of
jurisprudence help in understanding the evolution of the legal philosophy.

HISTORICAL SCHOOL
The Historical School of Jurisprudence developed in Germany in the 19 th century. Historical

approach to law derived its inspiration from the Roman Law. The study of Roman Law was received in
Germany in the 15th and 16th centuries. Its origin was a result of determined reaction against rationalism,

universalism and individualism of Natural Law. It focused its attention to the physical environment of

law rather than to the abstract ideals. Thus the historical movement in Jurisprudence is called as the
revolt of fact against fancy and idealism. The Historical School attaches importance not to the relation
of law to the State but to the societal institutions in which law exhibits itself.

FOUNDER - SAVIGNY
Other Exponents – VICO (Italy), MONTESQUIEU (France), HENRY MAINE, PUCHTA (Savigny’s disciple)

MAIN PRINCIPLES
 History, traditions, customs, habits and religions are the true basis of law.

 Historical Jurisprudence is the history of the first principles and conceptions of a legal system.
 Historical Jurisprudence deals with the general principles governing the origin and
development of law and also with the influences which affect the law.
 It deals with law as it appears in its various forms at its several stages of development.

 Historical School concentrates its attention to the primitive legal institutions of society which
gives rise to the customary rule that evolves spontaneously by historical necessity and popular

practice. Law is in existence prior to the establishment of the State and thus it existed even
before the State organizations came in to existence.
 Historical Jurisprudence is different from legal history. Legal History traces how a particular
legal system has grown, but Historical Jurisprudence attempts to trace scientifically the history
of first principles and basic concepts of the legal system. Law in direct relationship to the life

and the community.

SAVIGNY’S VOLKSGEIST THEORY
Savigny (1779-1861) (German Jurist) is regarded as Founder of Historical School. He was a

teacher in the University of Berlin. Law is a product of people’s life and it is a manifestation of its spirit.

According to Savigny, law is the manifestation of Volksgeist which means spirit of the people or the
popular consciousness. Customs and usages were the true spirit of the people and law must be
discovered from them. They are the natural manifestations of popular life and by no means product of

man’s free will. The law is like language, develops with the life of people. It is not universal in nature.

Savigny says that in the earlier stages law develops spontaneously according to the principle of internal
necessity. After the society has reached a certain stage of civilization, the different sides of national
activities, hitherto developing as a whole, divide in different branches and are taken up by specialists
and jurists, linguists and scientists. Law, like other subjects now assumes a double science of jurists. The
relation of law to the general life of the people might be called its political elements, its connection
with the juristic science its technical element. The correlation of these two elements varies with
elements of life of people but both participate more or less in the development of law.

MAIN PRINCIPLES
 Law is a matter of unconscious and organic growth. Therefore, law is found and not made.
 Custom not only precedes legislation but it is superior to it. Law should always conform to the

popular consciousness (the national spirit or genius of the people).

 Laws are not of universal application, as each person develops his own legal habits in his own
environment. The task of lawyers who formulate legal principles is to keep a constant vigil and
find out periodically the correct consciousness in the changing habits of people and to shape

the law accordingly.

SIR HENRY MAINE’S HISTORICAL THEORY

Sir Henry Maine (1822-1888) (English Jurist) is considered as Father of Ancient Comparative
Jurisprudence. He started his career as Regius Professor of Civil Law in the University of Cambridge at

an early age of twenty five. He compared the ancient Roman Law and the ancient Hindu Law. He
traced the early developments in law and social institutions. The evolution of contract, society, crimes,
State, law of nature etc. and their further developments with changes are dealt in an elaborate manner
by Sir Henry Maine in his books ‘Ancient Law’, ‘Village Communities’, ‘Early History of Institutions’,

‘Dissertation on Early Law and Customs’

MAIN PRINCIPLES
 The leading ideas of Sir Henry Maine are divisible in to three groups.
 The first relates to the origin, sources and development of law in general. At its origin, law is
entangled is with religion and traces its development to the personal commands and judicial
decisions. Next the customary law expounded by priestly aristocracies.
 The second idea is concerned with the origin and development of society.
 The third is in connection with private law. (evolution of Law of Succession, Private Property)
ANALYTICAL SCHOOL
The jurists of Analytical School consider that the most important aspect of law is its relation to
the State. Law is treated as an imperative or command emanating from the State. This school is also
known as IMPERATIVE SCHOOL. 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 is’ ( Positus). For this reason this school is

termed as POSITIVE SCHOOL.

This school is dominant in England and so is popularly called as the ENGLISH SCHOOL. Its
founder is JHON AUSTIN who was the first occupant of the chair of Jurisprudence in the University of

London. Hence it is also known as the AUSTINIAN SCHOOL.

Analytical School is also called as TELEOLOGICAL SCHOOL.
(ANALYTICAL SCHOOL or IMPERATIVE SCHOOL or POSITIVE SCHOOL or ENGLISH SCHOOL or AUSTINIAN
SCHOOL)

FOUNDER - JHON AUSTIN

Other Exponents – JEREMY BENTHAM, WILLIAM MARKBY, HOLLAND, JOHN SALMOND,
SHELDON AMOS
MAIN PRINCIPLES
 Law is the command of the sovereign.
 The positive school takes it for granted the developed legal system and proceeds logically to

analyse its basic concepts and classify them so as to bring out their relations to one another.
 This concentration on the systematic analysis of legal concepts has given this school the name

of Analytical School of Jurisprudence. The name itself indicates the method as analytical.
 To the analytical jurist the typical law is an arbitrary State command. It ignores the historical

development of law or the ethical significance of law for its validity. The hallmark of law is

enforcement by the sovereign.

 Positive law is a general rule of conduct laid down by a political superior to a political inferior.
Law rests upon the force of politically organized society. (State)

JURISTS OF THE ANALYTICAL SCHOOL

JEREMY BENTHAM
Jeremy Bentham (1748-1832) was the forerunner of the Analytical School in England. He was
opposed to the Natural Law and metaphysical-historical jurisprudence. He analyses legal terms such as

power, right, obligation, property and liberty and attempts to show what in fact they mean in the world

of practice. Bentham’s legal philosophy is called ‘utilitarian individualism’. He was an individualist and a
utilitarian. According to Bentham, ‘the end of legislation is the greatest happiness of the greatest
number’
He defined utility as the property or tendency of a thing to prevent some evil or to procure some

good. The consequences of good and evil are respectively pleasure and pain. (good=pleasure,
evil=pain) By his philosophy of individualist utilitarianism Bentham furnished us with a measuring rod
by which laws may be tested. Bentham on one hand, emphasized the analysis of law, but on other

hand, proposed ends of law.

JOHN AUSTIN
John Austin (1790-1859) was the first Lecturer in Jurisprudence in the University of London. He

is considered as the Father of English Jurisprudence. He was elected to the Chair of Jurisprudence in
the University of London in 1826. His lectures delivered in the London University were published under
the title ‘The Province of Jurisprudence Determined’
MAIN PRINCIPLES
 Positive Law is the subject matter of jurisprudence. Jurisprudence is the general science of
positive law.
 Law is the command of the sovereign. Command implies duty and sanction. Law flows from a
determinate body of authority. Whenever a command is expressed or intimated, one party
signifies a wish that another shall do or forbear.
 The power and purpose to inflict penalty for disobedience are the very essence of command.

The person liable to the evil or penalty is under a duty to obey it. The evil or penalty for
disobedience is called sanction.
 Command, duty and sanction are therefore, inseparably connected terms, that each embraces
the same ideas as the others. So every law is a command, imposing a duty, enforced by a

sanction.

 Austin considered analysis as the chief instrument of jurisprudence.

 Austin’s method is considered as a characteristic of English Jurisprudence.
 The influence of Austin’s theory was great due to its simplicity, consistency and clarity of

exposition.

 It restricts itself to the facts of mature legal systems and treats law as it is.

LEADING EXPONENTS
 Sir William Markby – Judge of the Calcutta High Court (1866-1878) published a book ‘Elements of

Law’
 Sheldon Amos – Judge of the Court of Appeal in Egypt (1835-1886) published ‘Science of Law’
 Sir John Salmond - Judge of the Supreme Court of Newzealand (1862-1924) published
’Jurisprudence or Theory of Law’
 Holland - published ’Elements of Jurisprudence’

AMERICAN EXPONENTS
The Analytical School is represented in America by Prof.Gray, Hohfeld and Kocourck.
It is represented on the Continent by Bierling, Kelsen and Korkunov

PHILOSOPHICAL SCHOOL
The Philosophical School concerns itself chiefly with the relation of law to certain ideals which
law is meant to achieve. It investigates the purpose of law and the measure and manner in which that

purpose is fulfilled. The philosophical jurist regards law neither as the arbitrary command of a ruler nor
as the creation of historical necessity. Law is the product of human reason and its purpose is to elevate
and ennoble human personality.
This school is also known as ETHICAL SCHOOL or METAPHYSICAL SCHOOL.

FOUNDER - HUGO GROTIUS

Other Exponents – IMMANUEL KANT, HEGEL, FICHTE, SCBELLING, KOHLER, STAMMLER, GUEIST
DEL VECCHIO

MAIN PRINCIPLES
 The concept of justice has a philosophical or ethical content and law and justice are more

closely inter-related concepts. Law is only an instrument towards the fulfillment of the objective
of justice.
 The Ethical School of jurisprudence concerns itself with the manner in which the law fulfills its

purpose of attainment of justice.

 The study focus upon the difference between the spheres of law and justice and the ethical

significance of legal conceptions.

 The Philosophical School regards the perfection of human personality as the ultimate objective

of law.

 Ethics deals with the moral considerations affecting man’s conduct and constituting his

criterion of right or wrong, also sets for itself the goal of making man virtuous and so attain
perfection. Ethics is the science of virtue while law belongs to the science of right.

 Ethics aims at the elevation of man’s inner life while law seeks the regulation of his external

conduct.

JURISTS OF THE PHILOSOPHICAL SCHOOL

HUGO GROTIUS
Hugo Grotius (1583-1645) is regarded as Father of Philosophical Jurisprudence. In his famous
work ‘De Jure Belli et Pacis’ (The Law of War and Pace), he shows that a system of Natural Law may be
derived from the social nature of man. According to Grotius, Natural Law is the dictate of right reason.
The agreement of mankind concerning certain rules of conduct is as indication that such rules

originated in right reason. Such general concordance he demonstrates by referring to the utterances of
poets and philosophers, the pronouncements of historians and men of letters and the teaching of the

Roman law. An act 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.

IMMANUEL KANT
The philosophical or meta-physical method was systematically developed by a great German
Philosopher Immanuel Kant. Kant made a clear distinction between law and ethics and held that they

are two different things. According to him ethics relates to man’s spontaneous acts, it deals with the
inner life of the individual while law deals with all those acts to which a man can be compelled, it
regulates only his external conduct. Kant says that it is possible to deduce a single universal practical
principle of law from which all laws may be derived. This feature of man is his ability to will and the

principle which determines this will is called by Kant ‘an imperative’.

Imperatives are of two kinds :-

(a) The hypothetical imperative which presents the necessity of an act as a means towards a
desired end.
(b) The categorical imperative which presents an act as of itself objectively necessary without
reference to any ulterior end.

Kant says that it is the categorical imperative that should govern the human will and it proceeds from
the conception that a person should so act that his rule of conduct, not having any ulterior ends,

permits him to desire that it may become a universal law.

Kant pointed out that law, to be acceptable to people in general should have within it an element of
justness. As regards the function of the State, he asserted that it should confine itself to maintenance of
law and order and administration of justice.

HEGEL
Hegel’s great contribution to philosophical jurisprudence is the development of the idea of
evolution. In his view, all the various manifestations of social life, including law are the product of an
evolutionary, dynamic process. This process operates itself in form of thesis, antithesis and synthesis.

The human spirit sets a thesis which becomes a leading idea of a particular time. In due course of time

against this thesis an anti-thesis is developed and from the ensuing conflict a synthesis develops which,

absorbing elements of both, reconciles them on a higher plane. This process repeats itself time and
again in history. According to this German Philosopher the human spirit achieves cognition of its

personality once it transcends the stage of mere physical sensation.

Kant’s doctrine of freedom of will was extended further by Hegel. According to Hegel, the

purpose of making laws (legal order) is to reconcile the conflicting egos in society which is achieved by
the merger of self-centered consciousness of each ego resulting in to universal consciousness. This

purpose is achieved by the recognition of the freedom of the ego, limited only by the like freedom of
other egos. Legal right is the objective realization of such recognition by the universal will and aims at

securing to each individual an external sphere of freedom, that is of free activity as regards his person
and property.

SOCIOLOGICAL SCHOOL
The Sociological School gained importance in the first decade of 20 th century. The exponents
of this school treat law as a social phenomena. According to them, law is a social function, an

expression of human society concerning the external relations of its individual members. Every legal
institution must be inspired by a social purpose and must change when the social purpose undergoes a
change. The exponents of sociological school lay greater stress on functional aspect of law rather than
on its abstract contents. Auguste Comte – Father of Sociology defined Sociology as the science of

social order and progress. It includes two compartments, social statics and social dynamics. Social
statics is the theory of social order and social dynamics is the theory of social progress.

EXPONENTS – MONTESQUIEU, AUGUSTE COMTE, HERBERT SPENCER, EHRLICH, IHERING,

DUGUIT, ROSCOE POUND, BENZAMIN CARDOZO

MAIN PRINCIPLES
 Law is a social institution essentially inter-linked with the disciplines bearing direct impact on

the society.
 There are inquiries which seek the social origins of laws and legal institutions. They are

concerned with the examination of the impact of laws on various aspects of society.
 There is the attempt to find some social criterion by which the validity of laws can be tested.

 The law of a community is to be found in social facts and not in formal sources of law.

JURISTS OF THE SOCIOLOGICAL SCHOOL

MONTESQUIEU
Montesquieu (1689-1755) is considered to be forerunner of the sociological method. He
belonged to France. He is the first person to recognise and take in to account the influence of the

social conditions on legal process. In his famous work ‘L’Esprit des lois’ (Spirit of Law), he emphasized
that laws of a particular nation should be determined by its inherent national characteristics in relation

to the degree which the constitution to the religion of the inhabitants, to their inclinations, riches,
manners and custom.

AUGUSTE COMTE
Auguste Comte was the first to use the term ‘sociology’ and he is considered to be the founder

of the science of sociology. His method may be called ‘scientific positivism’ because he applied
scientific method to the study of sociology. The society is like any other organism, can progress when it
is guided by scientific principles. These principles should be formulated by observation and experience
of facts and all other metaphysical considerations should be included from its purview.

HERBERT SPENCER
Herbert Spencer gave a scientific exposition to the organic theory of society. Spencer deduced
four sources of law.

(i)divine laws having quasi-religious sanctions

(ii) the injunctions of the past-leaders
(iii) the will of the ruler
(iv) collective opinion of the society
 Prof.Allen has summarized the organic theory of Spencer as ‘the inter-dependence of

organisms, in its sociological aspects means the mutual relation of all members of civilized
society’.

It directed attention to the necessity of considering law in relation to other social phenomena.

EHRLICH
Eugen Ehrlich was born in 1862 at Czerninowitz and he became Professor of Roman Law at the
University of Czernowitz. The central point of Ehrlich’s thesis is that the law of a community is to be
found in social facts and not in formal sources of law. The norms, which govern the social life in fact,
are only partly reflected in the formal law of that society. The source of law is both the modern legal

documents and direct observation of life like customs and usages, domination, possession and

declaration of will. The centre of gravity of legal development lies in the society. Law is more closely
related to life in the society. It concerns the present rather than the past. It tries to analyze the social
function of law.

DUGUIT
Duguit (1859-1928) was a Professor of Constitutional Law in the University of Bordeaux.
According to him the outstanding fact of society is the interdependence of men. No one can live at the

present time without depending upon a far-reaching web of services provided by his fellow men. This

social interdependence is an inescapable fact of human existence. All organization should therefore be

directed towards smoother and fuller co-operation between people. This Duguit called the principle of
‘social solidarity’. Law should help increasing ‘social solidarity’ to facilitate a happy life in the society.
Duguit’s view on State and its functions led him to deny the distinction between private and public law.
Both are to serve same end, i.e. social solidarity.

ROSCOE POUND
The American jurist Roscoe Pound was born in Lincoln, Nebraska. Among the advocates of
Sociological Jurisprudence, Roscoe Pound is an eminent jurist. He served as the Dean of the Law

School of the University of Nebraska and also as the Dean and Professor of Jurisprudence at Harvard
University. His major works are ‘Spirit of the Common Law’, ‘An Introduction to the Philosophy of Law’,
‘Interpretations of Legal History’, ’Law and Morals’

MAIN PRINCIPLES
 Pound concentrated more on functional aspects of law. He stated that the function of law is to
reconcile the conflicting interests of individuals in the community and harmonise their inter-

relations.
  He conceived law as a ‘Social Engineering’ whose main task is to accelerate the process of
social ordering by making all efforts to avoid conflicts of interests of individuals in the society
which involves the balancing of competing interests in society to form law. Pound classified

various interests which are to be protected by the law under three heads – Private interests,
Public interests and social interests.

 The authority before making law must take in to consideration all the above interests, study
the impact of the law on these interests etc.
(a) Private Interests
Private interests to be protected by the law are –

(i) Individual’s interests of personality, namely, interests of physical integrity, reputation,

freedom of volition and freedom of conscience. They are safeguarded by law of crimes,

torts, contracts and constitutional laws.

(ii) The interests of domestic relations of persons such as husband and wife, parent and
children, marital life.
(iii) The interests of property, succession, testamentary disposition, freedom of contractual

relations, association etc.

(b) Public Interests

Public interests to be protected by the law are –
(i) Interests in the preservation of the State such as maintenance of state integrity,

maintenance of just balance of conflicting interest of its people

(ii) State as a guardian of social interests such as administration of trusts, charitable

endowments, protection of natural environment, territorial waters, sea shores, regulation

of public employment etc.
(c) Social Interests

Social interests to be protected by law are –

(i) Interest in the preservation of peace and order and maintaining general security.
(ii) Interest in preserving social institutions like marriage and religious institutions
(iii) Interest in preserving general morals by counter-acting corruption, discouraging gambling
and invalidating transactions repugnant to current morality

(iv) Interest in conserving social resources

(v) Interest in general progress of individual personality which is to be achieved by freedom of

education, freedom of speech and expression, freedom of trade and commerce etc.

UNIT – III

MEANING, DEFINITION AND KINDS OF LAW

MEANING OF LAW
 The term law is defined by various jurists as set of rules to regulate the conduct of the people.
It denotes different kinds of rules and principles.
BLACKSTONE’S DEFINITION
“Law in its most general and comprehensive sense signified a rule of action and is applied

indiscriminately to all kinds of action whether animate, rational, irrational.”

Blackstone defines law in a general and comprehensive sense.
Law in general sense refers to a rule of action.

KINDS OF LAW
Law in its comprehensive sense is generally of the following kinds :-
(1) Imperative law

(2) Physical or Scientific law

(3) Natural or moral law

(4) Conventional law
(5) Customary law

(6) Practical law

(7) General law
(8) Special law

(1) IMPERATIVE LAW

Imperative law means ‘a precept or rule of action imposed upon men by some

Authority which enforces obedience to it.’ (Salmond)

The enforcement may be secured by physical force or by some other means. In an organized society

law tends to become imperative. Not only the rules given by the State but also the rules of other
organisations and association are imperative because there is some kind of sanction behind them.

According to many jurists, only imperative law is the proper subject-matter of jurisprudence. Law of a
nation or civil law (national law) is the command of the sovereign. Thus it is imperative law because

there is sanction behind it by the State.

Austin, Hobbes, Bentham defined law in terms of command.
Austin founded his school called as ‘Imperative School’ (sanction is the corner-stone of law)
The sanction does not only implies punishment, but it also includes all the consequence which the
breach of a rule entails.

(2) PHYSICAL LAW (or) SCIENTIFIC LAW

Physical or scientific law includes uniformities and regularities of nature. It includes
those actions of human beings which are uniform such as sleep. Ex: Law of Gravity, law of magnetic
force etc.
(3) NATURAL LAW
 It has various other names such as Moral Law, Divine Law, Law of God, Universal
or Eternal Law, Law of Reason etc. it signifies the natural principles of right and wrong. The idea of
natural law and justice is based on moral or religious grounds. It is based on the principles of right and

wrong. Justice may be divided in to two kinds – Natural or moral justice, Positive justice
Natural justice – one which is meted out by God or nature

Positive justice – one which is administered by men

Legal justice and natural justice represent two intersecting circles that is justice may be legal but not
natural or it may be natural but not legal or it may be both natural and legal.
Many laws of modern times are formulated on the basis of natural law. These include the law of trust,

law of quasi-contract etc.

Natural law have helped in the development of judicial and legal process during the medieval period.

In this period, natural rights of individuals were given importance. Natural law has given a great
support to international law and gives it a solid ground to stand upon. This doctrine gave a legal
efficacy to International law.
(4) CONVENTIONAL LAW
Conventional law means those rules or set of rules which are the outcome of an
agreement between persons or group of persons. They agree to observe these rules in the regulation

of their conduct towards each other. This agreement is law for the parties to it. Ex: Rules of a club or
voluntary organisations or any society.

International law is conventional law because it consists of those rules and principles to which states
have agreed upon expressly or impliedly and their conduct and relations with each other are governed

and regulated by it.

(5) CUSTOMARY LAW
Customary law means those rules and principles which have been observed in a

particular community in actual practice for a long time. ‘Any rule of action which is actually observed by
men, when a custom is firmly established, it is enforced by the State as law because of their general
approval by the people’. (Salmond)
There is difference of opinion among the jurists about the scope and authority of customs. Some jurists

regard customs as a proper law while according to some other customs are only a source of law.
Ex: Almost whole of Hindu Law of marriage, adoption, succession etc is based upon customs prevalent

in ancient Hindu society.

(6) GENERAL LAW
General Law means territorial law, general or ordinary law of the land. The laws
which have general application throughout the country are general laws. General laws consist of those
legal rules which are recognized by the courts as a matter of course.
(7) SPECIAL LAW
Special laws are certain other bodies of legal rules which are special and exceptional
in their nature.
(8) COMMON LAW
‘Common Law is the total corpus juris Angliae. Common Law was to mean the whole
law of England including equity in early times because at that time equity was not looked upon with
great interest. The origin of common law in England can be traced back to the period of Norman
Conquest in the 12th century. Before that in Anglo-Saxon period there was no common law in England.

Common Law developed as the royal power gradually increased and restricted the powers of the
landlords. In the early 14th century the Court of Chancery was set up to administer justice side by side

with the common law courts.

UNIT – IV

LEGAL THEORIES
NATURAL LAW THEORY

According to Natural Law Theory, the central notion is that there exists objective moral
principles which depend on the essential nature of the universe and which can be discovered by
natural reason, and that ordinary human law is only truly law in so far as it conforms to these principles.
The roots of this theory are found in the philosophies of the ancient Greek philosophers. It is also
responsible for much of the legal and political thinking of the middle ages. This theory arose out of the

celebrated distinction drawn by Greek philosophers between occurrences regulated by laws of nature.

Ex: the growth of plants, the movements of the heavenly bodies and so on.

EVOLUTION OF NATURAL LAW THEORY

The evolution and development of natural law theory may be studied under the following
heads:- (1) Ancient Period
(2) Medieval Period
(3) Period of Renaissance
(4) Modern Period

(1) ANCIENT PERIOD

EXPONENTS – HERACLITUS, SOCRATES, ARISTOTLE
The theory expanded during the ancient period had great influence on the contemporary
Roman Legal System. According to them, the entire universe is governed by ‘reason’. Man’s reason is

part of the universal reason. Therefore he lives naturally according to nature. It is the moral duty of
man to subject himself to the laws of nature. The laws of nature are of universal application and are

binding on all men.

(2) MEDIEVAL PERIOD

EXPONENTS – THOMAS AQUINAS
The period from 12th century to mid 14th century is reckoned as the medieval age in the
European History. It was dominated by the ecclesiastical doctrines which the Christian Fathers
propagated for establishing the superiority of Church over the State. Divine laws are based on nature
while human laws are based on custom.
Thomas Aquinas defined law as “an ordinance of reason for the common good made by him who has
the care for the community and promulgated”.
He divided law in to four categories :-
(i) Law of God
(ii) Natural Law, which is revealed through the reason of man
(iii) Law of scriptures or Divine Law
(iv) Human Laws

(3) PERIOD OF RENAISSANCE

EXPONENTS – HUGO GROTIUS, HOBBES, JOHN LOCKE, ROUSSEAU, IMMANUEL KANT
The period of Renaissance in the history of development of natural law may also be called the
modern classical era which is marked by rationalism and emergence of new ideas in the different fields
of knowledge. New theories supporting the sovereignty of the State were propounded. The natural law
theories propounded by Grotious, Locke and Rousseau revolutionised the existing institutions and held
that social contract was the basis of society.
(4) MODERN PERIOD
EXPONENTS – RUDOLF STAMMLER, KOHLER, PROF.RAWLS, FULLER, FRANCOIS GENY
In the 19th century the natural law theory received a setback. Austin and Bentham propounder
of analytical positivism rejected natural law theory on the ground that it was ambiguous and
misleading. The impact of materialism on the society and the changed socio-political conditions

compelled the 20th century legal thinker to look for some value-oriented ideology which could prevent

general moral degradation of the people.

AUSTINIAN IMPERATIVE THEORY

The main exponent of this theory is John Austin. Therefore this theory is known also known as

Austinian Theory of Law.

Austin – “Every positive law or every law simply and strictly so called is set by a sovereign individual or

sovereign body of individuals to person or persons in a state of subjection to its author.”

Law is the command of the sovereign issued to his subjects to follow a particular course of conduct,

failing which they will be faced with evil consequences namely punishment. Law is the product of
sovereign. Law is made up of general commands issued by the sovereign to the subjects. According to

Austin, the commands of the sovereign are laws to the people and the administrative authorities have

to implement them. The people have to obey such laws. If they fail to obey, they will be punished.

ESSENTIAL INGREDIENTS OF AUSTIN’S DEFINITION

Austin’s definition has three important ingredients viz:
(1) It is a type of command (Command)

(2) It is laid down by a political sovereign (Sovereign)

(3) It is enforceable by a sanction (Punishment or sanction)

COMMAND
A command is the expression of wish or desire by the sovereign to the subjects that they shall
do or not to do a particular act. Austin holds that law is made up of general commands issued to the

subjects. Positive law consists of commands set as general rules of conduct by a sovereign to the

members of the independent political society. A command to be law must be general and not
particular. Law commands general obedience of it. Law is to be obeyed by subjects whether they wish
to obey it or not. The disobedience of law would result in to punishment, which is the sanction behind
law. The commands that comes from the Sovereign or the Supreme authority is law.

SOVEREIGN
The Sovereign is a supreme person or a body of persons in an independent political society.
Austin defines Sovereign as “a determinate human superior not in the habit of obedience to a like
superior, receives habitual obedience from the bulk of a given society; that determinate superior is the
Sovereign in that society.”
The Sovereign of a political society enjoys positive superiority, unlike God who is natural

superior to all. So the laws enacted by the political Sovereign are called Positive Laws. The Sovereign
must have the power to command implies the power to compel obedience. The Sovereign is

indivisible. A country cannot have two Sovereigns. People cannot obey two Sovereigns at a time. So
the totality of the powers must reside with one sovereign.

SANCTION
The evil of punishment which would be the consequence of disobeying the command is called

sanction. Law being a command there are sanctions for its enforcement. A sanction is some evil which
will be inflicted on the subject in case of neglect to obey the command. According to Austin sanction is
an essential ingredient of law which may be termed as the power and purpose of inflicting an evil in
case of disobedience of command.

CONCLUSION
To sum up Austin’s Theory it may be stated that law has its source in sovereign authority and

without a sovereign there can be no law. Every law is a command of the sovereign and is accompanied
by sanction. The command to be treated as a law should oblige to a course of conduct and not merely

to a specific or limited number of acts or forbearances.

SALMOND’S DEFINITION OF LAW

“Law may be defined as the body of principles recognised and applied by the State in the
administration of justice.”
Salmond has defined law in the abstract sense. According to him laws may be made by legislation.
They may also arise out of popular practice. Their legal character however becomes potent only when

they are recognised and applied by a court in administration of justice. It is only the ruling of the court
that has binding force as law. The central idea of juridical theory is not a law or law in the concrete
sense of enacted law, but the law or law sensu abstractu which embraces every rule of law from
whatever source it may arise. Law is the instrument of justice. Salmond’s definition gives great

prominence to judicial action.

PROF.GRAY’S DEFINITION OF LAW

Salmond’s definition of law which is substantially the same as that of Prof.Gray (America) who

says: “The law of the State or any organized body of men is composed of the rules which the courts –
that is, the judicial organs of that body – lay down for the determination of legal rights and duties.”

FUNCTION AND PURPOSE OF LAW

 Law is an instrument of society and the object of law is justice. According to Salmond law is the
collection of those principles which are applied by the State in the administration of justice.
Justice operates at two different levels:

(i) Distributive justice

(ii) Coercive justice

Distributive justice works to ensure a fair division of social benefits and burdens among the members
of a community. It serves to secure a balance or equilibrium among the members of the society. The
task of establishing distributive justice is primarily achieved through Constitution-making and by

legislation.
Examples: Voting is one of the most important democratic right should be fairly distributed,

Taxation one of the most important burdens in justice should be equally and fairly
distributed.
Coercive justice comes in to play when the equilibrium is disturbed. The function of the courts is chiefly
that of applying these rules in its corrective sense. Fair and equal dispensation of justice demands that

all should be equal before the law I.e. the legal rights which each person has to be given equal

protection by the courts.

REALIST THEORY
The Realist School of American jurists is prepared to push Gray’s definition to its logical

conclusion. If a statute is not law because it may be misinterpreted, neither a judicial decision because
it may be overruled.

KELSEN’S PURE THEORY

Henry Kelsen Professor of Law at the University of Vienna in 1911 propounded a theory of law
which is an improvement upon Austin’s theory. Kelsen regards jurisprudence as a normative science as
distinguished from a natural science. In natural sciences laws are statements of the sequence of cause
and effect. In jurisprudence laws do not have a casual connection. They have a normative connection.
Ex: If A is, then B ought to be (if a person commits murder, he ought to be hanged)

The central problem of Kelsen’s pure science of law is the derivation of the norms or ‘ought

propositions’ of juristic science. Kelsen propounded his hypothesis of the grundnorm or fundamental
norm. The grundnorm is not capable of deduction from any principles of the pure science of law. It is
an initial hypothesis and is incapable of logical proof. The primary purpose of the basic norm is to
apportion norm-making competence among the persons in the State, to lay down the procedure for
making norms. The lawness of any particular norm will be tested by considering whether or not

ultimately it is traceable to the grundnorm. The entire hierarchy of norm-making organs and the
process of concretisation of norms is called by Kelsen as the ‘Legal Order’ of a particular State.

Kelsen’s attempt is to propound a logically consistent theory of law which is to be applicable to

any legal system. The test of lawness is to be found within the system of legal norms itself. It has
nothing to do either with social facts or with high principles of justice and hence the theory claims to
be pure. Kelsen’s pure theory of law is a distinct improvement upon Austin’s theory.

CRITICISM
The main weakness of Kelsen ’s pure theory is the admission that the grundnorm is an
unproven hypothesis. If this grundnorm is to differ from country to country depending upon its past

traditions and history, the very concept of Jurisprudentia gneeralis is undermined. This must be

admitted to be a drawback of this theory.

CUSTOM

MEANING OF CUSTOM
Allen – “Custom may be defined as the uniformity of habits or conduct of people under
like circumstances.”
Custom is a rule of action, voluntarily and uniformly followed by the people. In ancient times,
when there was no articulated system of law making, custom is the only law that we can discover.
Custom is a tradition passing on from one generation to another that originally governed human
conduct. This tradition is called is called Custom.
Prof.Holland – “Custom is generally observed course of conduct.”
Illustration
Custom grows just as a track is formed across a grassy land by constant passing of people
over it either internally or by mere accident. Once it is formed, others follow the same track and
thus a path is made. Likewise, a custom once started becomes a course of conduct in a given
society.

 Custom is a particular rule which has existed either actually or presumptively from time
immemorial and has obtained the force of law in a particular locality, although contrary to
or not consistent with the general common law of the realm.
 Custom is authoritative, it stands in place of law, and regulates the conduct of men in the
most important concerns of life.

ESSENTIALS OF VALID CUSTOM

(1) It must be immemorial.
(2) It must be reasonable.
(3) It must have continued without interruption since its immemorial origin.
(4) It must be certain in respect of its nature generally as well as in respect of the locality
where it is alleged to obtain and the persons whom it is alleged to affect.

CUSTOM AS A SOURCE OF LAW

(1) “Viv trita viv tuta” meaning that frequented path is always a reliable path.
(2) Custom is to society what law is to State. In ancient days, custom was the only source for
administration of justice. Many laws now enforced existed as custom in ancient days.
(3) Long continued custom is often rational. Social institutions have to make the national
expectation of the people as law.

KINDS OF CUSTOM
Custom

Legal Conventional

Local General
1. LEGAL CUSTOM
Legal custom is that which is operative per se as binding rule of law, independently of any
agreement on the part of those subject to it. (Salmond) The legal authority of custom is absolute.
Legal customs are of two types viz: (i) Local custom and (ii) General custom
(i)Local Custom
The custom which prevails in some defined locality only and constitutes a source of law for
that place only. In India, local customs may be divided in to two classes viz: (i) Geographical Local
Customs and (ii) Personal Local Customs. These customs are law only for a particular sect or
family.
Ex: Performance of last rites by the elder son of the family under Hindu religion is a Personal Local
Custom under Hindu Law (offering pinda – Sapindha relationship)
(ii)General Custom
The custom which is observed by all the members of a society is a general custom. It should
not be contrary to statute law and law of the land.
2. CONVENTIONAL CUSTOM
Conventional custom is one whose authority is conditional on its acceptance and
incorporation in agreements between the parties to be bound by it. One who makes a contract in
any particular trade or market, the presumption of law is that his intention is to make the contract
in accordance with the established convention or usage of that trade or market. The development
of conventional customs essentially involves three stages.
(1) It must be so well-established as to have attained the notoriety of a usage. The existence
of a usage must be proved on the basis of evidence.
(2) A conventional custom gets recognition through a judicial decision.
(3) The conventional custom is finally accepted as statutory law after its codification.

Conventional customs are of two types viz: (i) General conventional custom and
(ii) Local conventional custom [limited either to a particular place, or to a particular trade or
transaction]

DISTINCTION BETWEEN CUSTOM AND USAGE

(1) A custom is binding irrespective of the consent of the parties to be bound by it. Usages
are binding only when they are not expressly excluded by the terms of the agreement
entered in to by the parties.
(2) Custom to be valid should have existed from time immemorial but this is not so in the
case of usage because if the parties contract with reference to any particular usage of
recent origin, courts can give effect to that usage.
 (3) Custom can override the common law but usage can do so only to the extent to which it
is possible to exclude the common law by specific and express contract between the
parties.

REQUISITES OF A VALID LOCAL CUSTOM

(1) Reasonableness
(2) Conformity with Statute Law
(3) Observance as of right
(4) Immemorial antiquity
(5) Peaceable enjoyment
(6) Certainty
(7) Consistency
(8) Continuity