Schools of Law

Schools of jurisprudence are theoretical approaches to the study of law that seek to comprehend its
nature, purpose, and function in society. These views differ fundamentally in their beliefs about the law,
the function of the state, the link between law and morality, the relationship between law and society,
and the source of legal power. There are 5 schools of law primarily which discuss and define the law
from various aspects. The aim of the school of law is to elaborate the insight of the reader in their
perspective regarding law so that they can have an idea what LAW stands for.

Natural school Of Law

 The Natural school is also called the ‘Divine’ school of law due to its close relationship with
theology
 It talks about a higher law that is ‘natural’ or ‘divine’, and this determines the fate of the laws
made by people
 This school focused on the ends that law means to achieve, rather than its letter.
 The central idea of this theory is that there is a higher law based on morality against which the
validity of human law can be measured.
 If legislation is not moral it is not law

Statements by various Jurists

Socrates believed that as there is natural physical law there is also natural law. In his concept of
natural law man has his own insight which makes him know of the things whether they are good or
bad,

Aristotle’s concept of natural law is different from that of Socrates, he divides the life of man in 2
parts, first, he says that man is the creature which is created by God and second he posseses the
quality of reason by which he can develop his own will.

Thomas Aquinas defined law as the obedience of reason for the common good made by him who has
the care of the community and promulgated. He divided the law into four stages.
1. Law of God
2. Natural law which is revealed through “reason”
3. Divine law or the Law of Scriptures,
4. Human laws

Thomas Aquinas created a remarkably flexible and logical philosophy of natural law by skillfully
fusing Aristotle's theory with Christian faith. He argued that the church should have supremacy over
the state because even the sovereign has some authority. St. Aquinas agreed that Natural Law
emanates from ‘reason’ and is applied by human beings to govern their affairs and relations

SJCL, BENGALURU
Locke’s Contract It was for the purpose of protection of property that man entered into a social
contract. Under this contract, he did not surrender all his rights, but only a part of them. All these
rights were surrendered in order to maintain order and to enforce the law of nature. The purpose of
government and law is to uphold and protect the Natural Rights. So long as the government fulfils this
purpose, the laws given by it are valid and binding but when it ceases to do that, its laws have no
validity and the government may be overthrown

According to Rousseau man entered into a contract in order to preserve the rights of equality and
freedom, they surrendered their rights not to a single individual but to the community as a whole
which Rousseau calls it as the general will.

In the 19th century, the popularity of Natural Law theories suffered a decline. The ‘Natural Law’
theories reflected, more or less, the great social economic and political changes which had taken place
in Europe

Analytical/Imperative/ Positivist School

The term “positivism” was coined by August Comte. John Austin was responsible for developing the
theory of positive law, which was initially founded by Bentham.
 The Austinian school is named after John Austin, who established this philosophy.
 The imperative school views law as the sovereign's direction (command).
 The Positivist School was named after August Comete because its adherents are concerned
with law as it exists, i.e., with law 'as it is' (positum), rather than with the past or the future of
law.

The purpose of Analytical jurisprudence is to examine the foundational principles of law without
regard to their historical origins, evolution, ethical importance or validity. The importance of Analytical
Jurisprudence arises from the fact that it clarified legal thinking. It purposely excluded any external
components not covered by the legislation.

Statements by various Jurists

Austin is regarded as the father of English law. 'Law is a command of the sovereign supported by a
sanction,' he says.He considers law to be the direction of a politically powerful authority supported by a
punishment. This indicates that law is whatever the Law-Maker (the person with the ability to make
laws) says, and it transcends judicial decisions/precedents, and so on.

SJCL, BENGALURU
Bentham promoted an imperative view of law in which sovereignty and command are key ideas.He
argued for utilitarianism, which said that 'the legitimate objective of any law is the promotion of the
greatest enjoyment of the greatest number.' According to him, the aim of legislation should be to
fulfill these goals: to ensure nourishment, abundance, equality, and security.

Professor Hart (1907) is often regarded as the most famous exponent of British positivism in the
contemporary age. According to Hart, the law is the same as a legal system. A'legal rule' is one that
defines a code of behavior that is expected to be obeyed. The law creates a norm of behavior rather
than a requirement. This standard is followed not just out of a sense of obligation, but also because
others are expected to do so.

Kelson's Pure Law Theory: -Hens Kelson's thesis represents a fascinating resurgence of analytical
jurisprudence. According to Kelson, law is a normative science, not a natural science. This theory is
known as the pure theory of law because it isolates law from politics, sociology, history, economics,
psychology, and ethics, among other things.This technique is commonly referred to as the Vienna
School, after its creator, Hans Kelson. Kelson`s pure theory of law is based on pyramidical structure of
hierarchy of norms of which derive their validity from the basic norm it is called Grundnorm

Sociological School

 The sociological school of thought emerged as a synthesis of several legal perspectives.

 This school's types regard law as a social marvel.
 According to them, the law is a social ability, an outflow of human culture about the
exterior relationships of its particular persons.
 This school's renowned legal advisers include Montesquieu, Auguste Comte, Herbert Spencer,
Duguit, and Rosco Pound.
 This school of thought emphasized the utilitarian aspect of the law over its philosophical
essence. They see the law as a social organization linked to their commands that has a direct
impact on society.

Prior to the nineteenth century, the state was not concerned with issues such as well being, welfare,
and education. Because of the negative effects of free business in the nineteenth century, the state
became increasingly concerned with a variety of concerns including nearly all aspects of life and
welfare. This was one of the reason that led to development of this school of law which is moire
concerned on the social aspects of law rather the history or state

Ehrlich (1862-1922), a well-known legal counsel of the sociological school, defined the social
underpinning of law. For him, the law is derived from social reality and is dependent on social impetus

SJCL, BENGALURU
rather than official expertise. Law, he added, differs slightly from other sorts of social impulse, and the
state is just one of many connections, but it does have special features procedures for impulse.
Roscoe pound saw law as a social engineering,' with its major mission being to hasten the method of
social requesting by attempting every conceivable effort to keep people in the overall public from
irreconcilable conditions.

Realist School

 The Realist school was evolved and given accreditation in the American Jurisprudence. Legal realism
suggests that judicial decisions must comply with financial factors and inquiries of strategy and qualities.
 In a way, Oliver Holmes embodies the pragmatic school. "Law is not just what the courts say; it is what
the courts do." The focus is on action. "The life of the law has not been the rationale; it has been
involvement," as Holmes would have it.
 The Realist school of jurisprudence rejects the conventional wisdom that views the law as a body of rules
or principles and instead studies the law in its actual workings.
 The law is determined by the judge's ruling rather than by a body of regulations.

Realist school of jurisprudence are classified into two types:

American Realist – Scholars not only learned from their own experiences, but they also watched and
absorbed lessons from the judgments of their peers.
Scandinavian Realists – Scholars relied only on their own personal experiences in this area

John Chipman Gray is regarded as one of the "founding fathers of the realist movement," he is
acknowledged with coining the word "realist. Gray contends that the court is the primary source of law
rather than the legislative. He contends that a judge's prejudice and mindset have a big influence on
his choices.

Oliver Wendell Homles made a point of emphasizing that the practice of law required both
experience and reasoning. Holmes, famous for his "bad man's theory," viewed the law through the
eyes of someone who would commit a crime. According to him, the law is for criminals or the "bad
guy." To determine what the law truly is, look to a terrible person's interpretation of it, as they will be
able to precisely assess what the rules allow them to do and operate within those limits.

In contrast to American Realism, Scandinavian Realism takes a more abstract and philosophical
approach to law. It is diametrically opposed to the metaphysical notions of law. Scandinavian realists
were critical in rejecting natural law doctrines.

Drawback of the Realist School of Jurisprudence

 Diminish the importance of legal texts and legal frameworks.

SJCL, BENGALURU
  Contest the legality of the law's obligatory authority.
 No regard is given to customs.
 It has been overstated how important legislation passed by judges is.
 Critics claim that realists have focused too much on litigation and the human side of the law,
and that they are utterly ignorant of the great bulk of the law that never even makes it to
court for decision-making.

Historical School
 The historical school of jurisprudence maintains that as laws are derived from social customs
that demonstrate moral standards, financial needs, and interpersonal relationships, they are
the product of a lengthy historical progress of the public.
 It is believed that Savigny founded the historical school. He presented the notion of Volksgeist.
This view indicates that the freedom of common citizens or the collective will are the sources
of law.
 The moral perspective was eliminated from jurisprudence by historical legal advisors, who also
disapproved of any creative interest from judges, legal experts, or those who really shaped the
law.

Savigny's attempt at the law of ownership , published in 1803 is regarded as the beginning stage of
(Das Recht Des Vestiges)avigny's historical jurisprudence. The origins of law may be found in the
well-known soul of the general populace, dubbed the 'Volksgeist' by Savigny.Law evolves alongside
the growth of the general public and gains quality from the general public itself before withering away
when the country loses its identity. Savigny saw its evolution as a continuous and unbreakable process
tied by its culture, norms, and principles. He required German law to be modeled after Roman law. The
growth of legislation is to be based on their widespread acceptance.

SJCL, BENGALURU