Legal Theory: 1urisprudence

Download as pdf or txt
Download as pdf or txt
You are on page 1of 14
At a glance
Powered by AI
The key takeaways are that the document discusses different schools of jurisprudence including natural law, positive law, historical law and sociological law. It also covers concepts like sources of law, legal principles, state sovereignty and the administration of justice.

The main topics covered in the document include the different parts of jurisprudence (nature, scope, definition, schools of thought), law, state sovereignty and justice, sources of law, and legal concepts. It discusses various jurists and their theories on the nature of law.

According to Kelsen, law should be studied as a 'pure' theoretical concept separate from morality, politics or sociology. He viewed law as a hierarchical system of norms derived from an initial 'ground norm'. Kelsen's theory aims to create an objective, value-free understanding of law as a normative system.

LEGAL THEORY 'OR' 1URISPRUDENCE

INTRODUCTION
LEGAL THEORY OR' JURISPRUDENCE is the study of fundamen
tal legal principles.

The purp0se study is to know what is law and how


of
a legal system
is functioning in a particular country.

For the convenience of students, the subject is divided into 4 parts


as follows.

1. Part-A dealing with different schools of law to


What is Law?
answer the question

2. Part-B dealing with Law, State Sovereignty and Justice to under-


stand the function of legai system in Particular
a
Country
3. Part-C dealing with sources of law to answer the
is law made?"
question "How

4. Part-D
dealing with concepts io know the relevance of understand-
ing some concepts in understanding the law in a proper
y perspective.
The question what is iaw? Leads to
variety of questions like "is mo
rality or ethics law?" What is the relevance of morality in the study of
law? What is the purpose of law? What is the end of law?
In process of
knowing the answer the different jurists in different times and places
approached the problem in different ways. They are Natural (1) Law; (2)
Positive Law; (3) Historical Law; (4) Sociological School out.

Firstly in part-A Nature, Scope, Definition and various Schools


of Jurisprudence are dealt.

Secondly, what is law, state sovereignty and Administration ,of Jus-


5 tice as understood by different jurists in different
periods is dealt in part-B i. e.
Law, State Sovereignty & Adninistration of Justice.

Thirdly, the different sources mainly custom, precedent & Legislation


which are to be understood for the purpose of
identifying what is law and what
is not law, are dealt in Part C i. e. Sources of
Law, understanding some con-
cepts like RIGHTS, PERSONS, POSSESSION, OWNERSHIP,
LIABILITY
PROPERTY etc. the law can be viewed in
,
proper perspective. These con-
cepts are dealt in part d i. e. CONCEPTS.

These topics are dealt in a


simple way to enable the student of law to
get an idea of the subject as the
study of Jurisprudence is an Opportunity for
LEGAL THEORY OA JURISPRUDENCE
2

the Lawyer to bring thery and life into focus, for it concerns human thought in
relation to social exs1epke.

PART A
NATURE, SCOPE AND DEFINITION
QUESTION NO. 1 DEFINE JURISPRUDENCE AND EXPLAIN ITS IMPORTANCE?

OR
JURISPRUDENCE IS TO LAW WHAT GRAMMAR IS TO LANGUAGE.

EXPLAIN AND POINTOUT THE UTILITY OF JURISPRUDENCE TO


A
LAWYER, A JUDGE AND A STUDENT.

Answer:
. NATURE-Jurisprudence is the study of fundamental legal prin-
and ideals, social philosophy
Ciples.It is an experimental study of legal ideas
it is a master science
and political ideology make it a living dynamic discipline.
the development of law and
of legal thought. It is both theoreticai concerning
content of legal system. It
deals with
functional concerning the quality and
teacher,
the ieça community (student,
justice, equality and moraity. helps
It
It
the legal system ofparticular country.
lawyer, judge) much in understanding the concerned too
an opportunity to
broadens the thought arnd gives
direction.
choose a right
"lawyer's extra
words of JULUS STONE is,
Jurisprudence in the
unlimited possibilities to
Jurisprudence telps the lawyer to open
version'". knowl
with human develop:nent and contemporary
develop iaw in keeping who are well
arnd lawyers for that matter the people
edge explosiori. Judges of law wili be in a
better position to inter
extra legal aspects
acquainted with books and the
between the law in
that discrepancy
pret law purposefully so
removec
law in actiun is aitogeiher
LIKE GRAMMAR TO
A
JURISPRUDENCE
IS TO LAW
Thats why SERIOUS IN UN-
PEOPLE WHO ARE
VERY USEFU. TO THE INDI-
LANGUAGE IS INDIVIDUAL,AND
BETWEEN
REGULATOR
DERSTANDING LAW ASA INDIVIDUAL AND STATE.
SOCIETY AND
IND!VIDUAL AND
VIDUAL,
L:GAL t i l : i Y UH iiUDENCE
3

QUESTION NO. 2 JURISFRUDENCE IN ITS SPECIFIC SENSE, AS T4E ORY OF PHI.


LOSOFHY OF LA, S DIVISIBLE INTO THREE BRANCHES tiSTIN
GUISHED AS ANALYTICAL, HISTORICAI AND ETHICAL-SA MOND, EX
PLAIN.

OR
JURISPRUDENCE WHICH HAS BEEN DERIVED FROM THE LATIN WORD
"JURISPRUDENTIA"I. E. . JURIS (LAW) AND PRUDENTIA (KNOWLEDGE)
MEANS THE KNOWLEDGE OF LAW. THEREFORE, IN THIS SENSE AL
THE LAW BOOKS ARE BOOKS OF JURISPRUDENCE COMMENT.

Answer:
the Latin word
Jurisprudence which has been derived trorn
the knowl-
"Jurisprudentia" i. e.. Juris (Law) and prudentia (Knowiedge) means

edge of law or skill of law.

as ihe science ot
ULPAIN, the Roman Jurist defines Jurisprudence
well apply to religion,
just and unjust. This definition is too broad and might
ethics and philosophy
"

HOLAND defines, "Jurisprudence as the formal science of law.


"

as the philosophy of positive law.


AUSTIN defines, "Jurisprudence

as the Science of the First Prin-


SALMOND defines, "Jurisprudence
"
in this sense Jurisprudence is of three kinds.
ciples of the Civil Law.
deals with the contents
1. EXPOSITORY OR,SYSTEMATIC -Which
at any time, whether past or present.
of the actual legal system, as existing

is concerned with a legal system in its


2. LEGAL HISTORY - Which
development.
process of historical

LEGISLATION the purpose of


which is to set
3.THE SCIENCE OF
deais with ideal future or iegal system
for the law as it ought to be. Here ought
and with purposes for which it exists.

between the use of term Jurispru-


SALMOND makes, a distinction bodies
former includes the entire
in the generic and specific sense. The
dence department of
doctrines where as the
later means only a particuiar
of legal called theoretical
is specific sense may be
such doctrines. The Jurisprudence the
SALMOND says that he deals only
general notion of Jurisprudenca.
or
first principles of the Civil Law.
which he defines as the
General Jurisprudence

Jurisprudence into 3 branches. They are


He divided the

Positive;
(1) Analytical er
(2) Histcricai and

(3) Ethical
JURISPRUDENCE
LEGAL THEOAY OR -4-
He further says about his book that it is primarily and essentially a

book on analytical jurisprudence. In the sense all the law books strictly speak-
of UPLAIN's
ing are not books of jurisprudence. But if we view in the light
definition all law books are books of Jurisprudence

SCOPE

According to FRIEDMAN Legal Theory is linked at one end with Phi


losophy and at the other end with political theory even though some illusoryY
distinction between Jurisprudence and Legal theory was drawn, both are gen

erally concerned with nature, purpose and function of law.


STONE says that the scope of Jurisprudence is from CHAOS (Utter
as
Disorder) TO CHAOS. However, the scope of jurisprudence is unde rstood
made? What are the
answering the questions like what is law? How is law
law in a
Concepts relating the concept of law to be understood to understand
towards law as
proper pertective were understood by different approaches
jurists in different periods are-

1. Naturai Law i. e. . Law as phiosophy

2. Positive Law i. e. . Law as Science;

3. Historicai Schooli, e. . Law as History of Society;

4. Socioiogical Schooi i. e. Law as an Experimental Social Science.

Thus the study of Jurisprudence as unending process is pro


base to the law student to develop his own way of looking the
viding
things in order to recognize and practice proper iaw.

SCHOOLS OF JURISPRUDENCE
QUESTION NO. 3 EXPLAIN AND COMPARE DIFFERENT SCHOOLS?

OR
EXAMINE THE CHIANGES IN THE PURPOSE OF LAW FROM 19TH CEN-
TURY TO THE 20TH CENTURY.

Answer:

Before 19th Century, LAW WAS NOT SEPARATED FROM RELI


GION, PHILOSOPHY. NATURE,MYTHS, AND BELIEFS. Hence it was under
stood ASA PRODUCT OF REASON, INSTITUTION
natural law thinkiig of Greeks, Romance, Hindus, the
NATURE. The ancient
Medieval Theoretical
Interpretation of law, the Sixteenth century metaphysical character
LAW ONLY AS IT OUGHT TO BE (IDEAL understood
PRINCIPLE). THIS THOUGHT IS
KNOWN AS NATURAL. LAW. i. e. JURISPRUDENCE AS
AS IT OUGHT TO BE)
PHILOSOPHY (LAW
- LEGAI. TIE:OAY OR JURISPRUDENCE
The
changes in the purposes of iaw from 19h Century to 20th
Century. The 19th Century rejection of melaphysics and rise of
understands law as science. Positivism mmeans a positivism
method of examining man
made law which has
actually been laid down by men for men or osited (1. e.
as it is. Law as OUGHT TO
BE IS NOT CONCERNED OF THIS SCHOOL OF
THOUGHT. The exclusion of morals,
law is ihe
philosophy and politics
in the study
of
significant development of this approach towards law, which is popu-
larly known as POSITIVE LAW OR IMPERAT!VE LAW
AS SCIENCE (Law as it is).
i. e. JURISPRUDENCE

In 19th Century iiself


against natural law as weil as positive law, a
new thought of law was developed by Savigny in Germany and Henry Maine in
England in relation wilh society. This thought is known as HISTORICAL
SCHOOL OF THOUGHT i.e. JURISPRUDENCE AS HISTORY OF
SOCIETY
(Law s it was).

ir the later part o 9h centurr and ih: eil 20h century, the stuoy
of jurisprudence as a prore* nt
social develo,prnent, social change and soial
progress was developed by sociologis. ne STUDY

ING LAW IN ITS FUNCTIONAL ASPECT iiN RELATION WITH SOCIETYIS


KNOWN AS SOCIOLOGICAL SCHOOL OF THOUGHT i.e. JURISPRUDENCE
AS AN EXPERIMENTAL SOCIAL SCIENCE (Law as it does).

We can well understand all these schools through the foliowing table

ATURAL LAW IPhrlo8rt


QUESTION NO. 4 ANALYZE THE CCNCEPT OF NATURAL LAW. TRACE THE DEVELOP-
MENT AND EVOLUTION OF NATURAL LAN.
OR
EXAMINE THE MODERN THEORIES OF NATURAL LAW.

Answer:

CONCEPTS OF NATURAL AWN:


)
The primary purpose of legál theory is to define law. Various Ju-
rists in various times tried to understand law. The different understandings of
law by different people in different times are latelled as schoois. All these
schools of jurisprudence are cancerned with nature of law and its purpose.
The major schools in jurisprudence are Natural Law, Positive Law, Histori
cai School, Socioicgica! Schooi, Realists, Marxian approach to law.

Natural Law known as Higher law or the Law of nature is the oldest
as well as the most modern. It is aiso known as philosophical school.t
provides base in politice, lew, raligion and cocial phiosophy. Natural law in
common sense means the iaw ihat is iargely unwritten and full of prin
ciples of ought (icieal prir.cipie). Ought is revealed by the nature of man or
reason or derived from God. Herce it is a METAPHYSICAL THINKING i. e. .
LEGAL Ti 1EORY OA JURISPRUDENCE
6-
beyond physical thinking and can not be proved scientificaly. It is a prior
concept i. e. , indep endent of experience. According to this theory, there are
certain objective and absolule principlas of morality and justice which are the
basis of law. ths principies can be found by human reason and
commonsennse
THE DEVELOPMENT AND EVOLUTION OF NATURAL 1LAW:

The development of Natural Law is divided into three periods. They


are
1. Ancien: Period.

2. Medievai period; and

3. viOde n perioc or Ciassicai era oi n aiurai taw.

1. ANCIENT PERIOD: Romans, Stoics, Greek, ancient Hindu law


givers tried to undarstand the law in the light of Natural law. The religion.
Mor&ls, Ethics played an important role in ancient pericd in understanding
Natural Law. in this period naturai law was eternal, immutable universal.
Ulpain, Socrates were main naturalists in this period.

2. MEDIEVAL PERIOD: Natural law in Medievai age was dominated


by the theclogical interpretation of Christian church fathers. In order to main
tain stability and peace natural iaw was given religious colour
during pe-this
riod. St. Thomas AQINAS was important naturalist in this period. He under-
stood that natural law was only the imprint of eternal law. The positive law (the
human law) is to be subjected to the natural law as it is the of
foundation al
human law

'To live honourably, to injure no one, to give every man his due re-
spect are his precepts of human law.

3. MODERNTHEORIES OF NATURAL L.AW: MODERN PERIOD: In


modern period, natural law vias more secuiarised, it fournded human reason
as its exciusiva base. The revivai of naturaí law became a theory of natural
rights of man. GioBus, Hobbes, Locke, Rousseau, Kant, Neo Kantians are
important natura' iaw jurists in this period. Kant's categorical imperative
and Stamler's VARIABLE CONTENT NATURAL LAW highly influenced natural
law thinking in classical era.

REV!VAL OF NATURAL LLAW:

Eventhough on the rise of positivism and Historical school of thought,


the natural thinking was eclipsed in 19th
century, the exposure of positive law
weakness in 20th century paved the way for the revival of natural law
thinking.
Fuller and Finnes are 20th century Naturalists. The
positivists like Hart also
recognized the importance of natural law in 20th century.
7 LEGA TH,,OAY UH J JAUSPAUCE'GE
In India MAHATMA CGANDHI who revolted against the British Col-
nial rules is besl example r modern natural
lawthinking
After we got
pendence, the Amarican constitutions Bi'l of Rights which was the outcome of
inde
natural rights theory had its impact on constitution framers in providing Fun-
damental Rights under Indian Constitution. The importance of Naturai Law
thinking was also well recognised in India by the Judiciary. The Natural Justice
principles applied by the Juciciary is the best example for that. For example
Menaka Gandhi Vs Union of India Case (1978)

MERITS AND DEMERITS OF NATURAL LAW:

MERITS: 1. According to Natural Law unjust law is not la


2. The urjustness of positive law can be restricted through naturai
aw by making positive law sutm'ssive to Natural iaw i.e.. Higher Law.

3. The we:akness of positive law ara the meri: oi Natural i.aw.

DEMERITS: Because of a prior nature and uncertainty and ciumsi-


ness in naturai law, the OUGHT MAY NOT ALWAYS BE IN ACCORDANCE
WITH THE FACTUAL PROPOSITION IS.

POSITIVE LAW
QUESTION NO. 5 STATE AND CFTICISE AUSTIN!AN DEFINITION CF LAW.

OR
EXPLAIN THE MERITS AND DEMERITS OF IMPERATIVE THEORY OF
LAW.

Answer:

ANALYTICAL POSITIVISM:

POSITIVIiSM is an approach to law which concerns itselt with posi-


tive law i.e.. Legai Systems and Rules actually in foree distinct from ideal
systems or law which should be. t is mainly associated with Jermy
Bentham, Austin, Hart & kelsen. The positivist (factual) notiors of law in
jurisprudence is mainly a nineteenth century phenomena against normative
notion. it asserts of being FRealistic, Scientific, Investigativa and Empiri
cal in i's approach to law, which are its merits. Thus, law as command of the
sovereign is the main characteristics of positive law. This theory is also
cailed as imperative or Austinan or Analytical theory.
BENTHAM AND UTILITARIANISM:

Bentham's individualistic Utilitarianism is the starting point in the de-


velopent of positive iaw against the weakness of natural law in 19th century.
According to BENTHAM MAXiMUM GOOD TO BE DONE TO MAX!MUM
LEGAL THEORY OR JURISPRUDENCE
8-
PEOPLE WITH MINIMUM FRICTION WHICH IS KNOWN AS HIS PLEASURE
PAIN theory i.e.. Hedonistic calculus.

AUSTIN AND SOVEREIGN COMMAND:

Austin who is considered as the father of


FINED LAW AS COMMAND OF English jurisprudence DE
THE SOVEREIGN
HE
CLASSIFIED LAW AS LAW OF GOD AND HUMAN LAW. HU-
MAN LAWS ARE FURTHER
CLASSIFIED AS POSITIVE LAW AND OTHER
LAWS (PSITIVE MORALITY AND
OTHERS).
According to him, positive law is only law properly so called. Positive
morality is not law as not properly so called.

He understands law, AS
A RULE LAID DOWN FOR THE GUIDANCE
OF AN INTELLIGENT BEING BY AN
OTHER INTELLIGENT BEING ANOTHER
HAVING POWER OVER HIM. i.e. POSITIVE LAW ACCORDING TO HIM IS
THE LAW SET BY POLITICAL SUPERIORS TO
POLITICAL INFERIORS. PO0
LITICAL SUPERIOR IS SOVEREIGN
POLITICAL INFERIOR
IS SUBJECT.

ACCORDING TO HIM LAW IS COMMAND OF THE SOVEREIGN.


HIS COMMAND IMPLIES DUTY AND SANCTION.
THE POWER AND PURPOSE TO INFLICT PENALTY FOR
DIsOBE
DIENCE ARE THE VERY ESSENCE OF A 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.

HE FURTHER CLAsSIFIED THAT ONLY GENERAL


WHICH OBLIGES TO A COURSE OF CONDUCT IS LAW.
COMMAND

Thus he excludes the notions as justice or


morality from his con-
ception of law. His method of jurisprudence is analysis and can be
ap-
plied only in civilized societies.

CRITICISM AGAINST AUSTIN'S THEORY:


.

1. Customs ignored.

2. Law coníerring privileges such as wills are not, covered by his


definition.

3. In Austin theory judge made law has no place.


4. Conventions are not treated as law by Austin. But they are laws. al
the
5. Rules set by private persons are not recognised. @Vc
6. International law is not true law. It is
only a positive morality.
-9 LEGAL THEORY OR JURISPRUDENCE
7. Command is untenable in modern
times
8. Command is artificial.
9. Apart from sanction, other means are also there to induce obedi-
ence.

10. Relation of law and morals is overlooked.


However, Austins theory of law
Thus
opened a new era of approach to law.
analytical positivism is useful in
ascertaining common elements or a
given legal orders and the other
legal orders inunderstanding the law in a
proper perspective.

HISTORICAL SCHOOL
LAW AS HISTORY OF SOCIETY
(AS IT WAS)
QUESTION NO. 6 WHAT IS THE
CONTRIBUTION OF HISTORICAL sCHOOL OF JURISPRU-
DENCE IN THE DEVELOPMENT OF LEGAL THEORY?

OR
EXAMINE THE CONTRIBUTION OF SIR HENRY MAINE TO THE
CAL JURISPRUDENCE? HISTORI
Answer:

Historical School of
Jurisprudence is a reaction against a prior meth-
ods of reasoning of 18th century natural law. It also opposed
propagation of a soulless barren sovereign made, coercive law in positive
law
morals and culture. Against these two which were exclusion of
unhistorical and not having
historical nature, historical school was
LAW IS A LEGACY OF THE PAST, A
developed. According to this school
PRODUCT OF EACH AND EVERY INDl
VIDUAL COMMUNITY OR NATION. SAVIGNY
HENRY JURISTS IN THIS SCH0OL.
(GERMAN JURIST) ARE MAIN

SAVIGNY AND VOLKSGEIST (Nation's


Spirit:
According to savigny Law develops like language and has
character. a national

He opined that source of law is


found and not made. He
Volksgeist (Nations spirit). Law is
opposed codification bitterly.
According to him custom is
superior to
always confirm to the popular corisciousness. legisiation and law should
there in his theory it is a Eventhough weaknesses are
warning against hasty legislation. It sows
evolutionary and sociologica! neories. seeds of
THEOAY OR
JURISPRUDENCE
10-
LEGAL
AND STAGES OR DEVELOPMENT OF LAW:
HENRY MAINE

Maine made very valuable contribution to legal philosophy


by way of
in various states.
historic comparative method. He studied the law as developed
They are:

IStage: Law made by the ruler under divine inspiration.

law)
II Stage:Customarylaw (commands Crystaliseintocustomary
III Stage: Knowledge of law in the hands of priests.

I V Stage: Codification.

ENVISAGED BY MAINE:
STATIC AND PROGRESSIVE SOCIETIES ASs

which do not progress beyond the fourth stage which


The societies
static societies.
cioses the era of spontaneous legal development are
methods are
The societies which go developing their law by new
on
their laws by three meth-
called progressive. Progressive societies develop
Maine calls the static societ
ods: 1) legal fiction, 2) equity and 3) legislation.
as consist of "CONTRACT"
or free
ies as "STATUS" the progressive societies
negotiations of the individuals.

On understanding the development of society by legal fiction, equity


of ev-
and legislation, propounds his important thesis. The movement
Maine status to
has hitherto been a moveimnent from
ery progressive society
be true in his time but no longer holds good
as
contract. Maine thesis might to
to move from contract status.
sometimes at present. Some societies try
Historical school över savigny.
However he improved his theory of

SCHOOL OF JURISPRU-
AND CONTRAST THE HISTORICAL
QUESTION NO. 7 COMPARE
SCHOOL OF JURISPRUDENCE?
DENCE WITH THE ANALYTICAL

Answer:
Difference between ANALYTICAL SCHOOL AND HISTORICAL

SCHOOL

ANALYTICAL SCHOOL HISTORICAL SCHOOL

1. Law is product of the state.


1. Law is found and not madei.e,law
is self existent.

2.Ifthere is no sovereign, there 2. Law is antecedent to the states and


can be no law. (Where there is ists gven in primitive society.
state. There is law). (Where there is society there is law).

3. Law is enforcement by 3. Law is inde pendent of political au


11 LEGAL THEORY OA JURISPAUDENCE
the sovereign. thority and enforcement. It is en
torced by the sovereign becauseit
is already law

4. The typical law is statute. 4. The typical law is custom.

5. Judges only declare law. 5. Judges can consider the history of


legislation and sometirnes make
law.

SOCIOLOGICAL SCHOOL
QUESTION NO. 8 EVALUATE THE MAIN CONTRIBUTIONS OF SOCIOL0GICAL SCHOOL
OF JURISPRUDENCE.

OR
SOCiOLOGICAL SCHOOL IS THE UNIFICATION OF ALL SCHOOLS

COMMENT?
Answe

school is also known as functionai school, because of


Sociological
its functional approach towards law. It is the study of law in 20th century
under the influence of sociological studies. Sociological jurist regard the work-
ing of law rather than content of law. For then1 law is a social institution. Social
requirements and purposes must be attended by law.
Law is an experimental social science i.e. purposive and value ori

ented law (it does).


Jurists like Ihering, Dugit, Holmes, Pound belong to this school. Ameri

can sociological jurisprudence, the guide star to sociological jurisprudence is


dominated by Holmes, Cardojo and Pound.

POUNDIAN LEGAL PHILOSOPHY:

Pound urnderstood that society is with full of conflicting inter-


ests. Law is an adjustment among the conflicting interests. His theory of
law strikes a fine synthesis between liberty and equality and between

freedom and social control.

POUNDS INTERESTS HAS FOLLOWING CHARACTERISTICS:

1. FUNCT:ONAL JURISPRUDENCE: Found looked law as a prag


matist from the point of its ends, affects on society. He is a Pragmatist and
Utilitarian.

2. LAW AS SOCIAL ENGINEERING: Pound social engineering is


understood as need basec, purposive and goal oriented. Just as engineers
minimise friction and waste when dealing with machines similarly jurists ought
OR JURISPRUDENCE
LEGAL THEORY 12
to enable to resolve conflicts in society in the interests of harmony, reform and
progress. This methodology is described by Pound as Social Engineering.

3. LAW AS PURPOSIVE AND NEED BASED: Law should be moul


ded and adjusted to the needs and interests of the community and it keeps on
changing with the changing needs of the society.

4. INTEREST THEORY: The pounds understanding of the society is


it is with full of interests. Individual interests, social interests, State interests
are different and conflicting each other. Law as social engineering adjusts the
conflicting interests According to Pound the law secures the greatest number
of interests with least possible sacrifice of other interests.

For example Fundamental rights under Part-lll of Indian Constitution


are individual interests and directives of Part-1V are socialinterests. When
there is a conflict between them, iaw tries to adjust the conflic.

Court
InMINERWA MILLS VS UNIONOF INDIA1980the Supreme the
(majority) opined the harmonious construction must be made between
two parts. in the same judgement Justice BHAGAVATHI held in his minority
judgement that the individual interest must be sacrificed to social interests.

5. POUNDS JURAL POSTULATES: Pound understood that in every


given society at a particular given time, the society has some achieved goals
and some achievable goals. Achievable goals may be achieved in future which
are identified as jural postulates. Say for exampie at the time of enforcing the
constitution, Fundamental rights were understood as achieved rights which
can be enforceable and Directives are jural postulates which are not enforce-
able for the time being because of the incapability of society.

The Supreme Court recently adopted a method of studying atleast


some directives alongwith fundamental rights. Right to equal pay for equal
work, right to primary education orce achievable goais became achieved goals.

At present the sociological schools approach is very relevant in In-


dian Society.

REALIST SCHOOL
LAW AS PRACTICE OF THE COURT (AS IT DOES
QUESTION NO. 9 ELABORATE THE CONTRIBUTIONS OF REALIST sCHOOL AND ITS THEORY
THAT LAW AS PRACTICE OF THE COURT

Answer:

Theories of legal realism too, like pos itivism look on law as the ex
pression of the will of the state. But see this as thade through the medium of
Courts. According to Realist School Law is understood as practice of the
Court.
-13- LEGAL THEOY OR JURISPRUDENCE
Holmes in the United States, viewed the same bad man
conclusion.
Wnen such a person, wants to secure his own selfish
interest he not
does
care for what is in the statute book or text book. He wants result in favour of
him, i.e. What he wants to find out what the court is likely to do if he is found
Out. Holmes arrived at the conclusion that
prediction of what the court will do
in fact (and nothing more) are what is meant by law. The courts have to de-
cide the laws on
arriving proper Interpretation out of variety of possible inter
pretation to the statute.

Judgebackground, his brought up, his ideology. His conviction, his


temperament iniluence the decision he made which is popularly known as
JURY MATRIX is. Studying Judge.

Thus the conclusion of Realist school is that a statement of lawis


nothing more than a predicion of what the court will decide. Highlighting the
creative nature of judiciai role is the main contribution of Realist School.

KELSEN'S PURE THEORY OF LAW [LAW AS HIERARCHY OF NOR


MATIVE RELATIONS ( AS IT IS)]
QUESTION NO. 10: WHAT ARE THE SALIENT FEATURES OF KELSEN'S PURE
1THEORY OF LAW?

AWser

Kelsen expounded pure theory of law in 20th Century which evoked


world wide interest. His Doctrine of Pure Law excluded all extra legal & non
legal elements.

Kelssens theory of law appears tobe the revivai of original analytical


jurisprudence in 20th Century. Eventhough. Kelsen was unaware of Austin's
theory at the time of propaunding his theory, yetin many respects he rejected
many Austinian concepts and conclusions. Kelsen was also greatly infiuenced
by kant. Kenlsen excluded politics ideology, sociology irom legal science as
he desired to create a' pure unadulterated schemes of law. According to him,
Justice is irrational ideal. In correlating law with force, kelsen accepted with
the view of Austin.

KELSEN'cONCEPT OF LAW

According to kelsen law is a normative Science and not a Natural


Sciençe. The science of law to Kelsen is the knowledge of Hierarchy of Nor
mative Relations.

The
hierarehy uitimately relates back to an initial norm of Initial Hy-
pothesis called grurd norm and from this norm that all interior norms derive
their force. î'his gruna norm can be recognised by The minimum
effective
ness in any society. Britain the ground norm is Crown & Parliament & in U.
In
S. A. it is the constitution. in india
eventhough regarding parliamentary su-
premacy & constitutional supremacy, some doubts were there about the
LEGAL THEORY OA JURISPRUDENCE
-14
Groundnorm of the
Country, the Supreme Court in KESAVANANDA BHARATI
Case in 1973, indirectly decided the
constitution is the
problem of understanding whether the original constitutionGrundnorm. Again the
or the constitution with the was the Groundnorm
subsequent
solved by the Supreme Court in the sameamendment is Groundnorm was re
case and also in
by understanding the original constitution is subsequent cases,
the Grundnorm. For that
pose, the Supreme Court created Basic structure theory. From the above pur
one
can understand the /Original /Norm. The
grundnorm determines
and gives of validity to other ncrms der ived
the content
from it. However, basic norm
(grundnorm) is neither valid nor invalid, its validity
supposed. Thus the legal system was understood by kelsenassumed
must be
as hierarchypre
or
or
pyramid or norms.

CRITICISM AGAINST KELSEN'S PURE


THEOR
2. Ihe purity of the norms can not be maintained. While excluding all
social facts, social justice and felt needs of the people from law his pure theory
of law without a sociological foundation is sterile attempt for defining law.

2. His grundnorm is vague and confusing.


Prof. Laski criticised that kelser struck a blow to prevailing confusion
with confu'sion itself.

HLA HART S CONCEPT(OFLAW


LAW AS SYSTEM OF RULES REcoGNISED (LAW ASITIs)
QUESTION NO. 11 EXPLAIN THE MAIN FEATURES OF HLA HARTS THEORY OF SYSTEM
OF RULES.

Answer:
In 20th Century, Harts concept of law is one of the most important
contributions to analytical jurisprudence as a revolt against the barren charac-
ter of Austinian legal philosophy. His works initiated a renaissance of analyti-
cai jurisprudence in England. In Hart concept of iaw, a system of rules (Pri-

mary & Secondary) and their combination or union explain the nature of law.
The primary rulesare duty imposing rujes and the secondary rules are power

rules. The Supplementation of primary rules with secondary rules


conferring
to legal world.
says Hart is the step from prelegal

recognised union.of primary and sec-


However, his legal system a

without the minimum content of Natural


ondary rules cannot be completed
Thats why Hart can be described as a
Law shared both by law and morals.
positive Naturalist. is lot of debate between Hart & Fuller, a naturalist
(There
Harts minimum content of morality for the recognition of rules and
regarding
Fuller's principles of inner morality). Keeping HLA Hart in view, Lloyd made a
less positivists while compared with old
Comment that today's positivists
are

positivists.

You might also like