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Jurisprudence
UNIT-I Ramesh Arjun
Meaning, Nature, Scope and Utility of Jurisprudence

I
t is difficult to give a universal and uniform definition of jurisprudence. Every
jurist has his own notion of the subject matter and the proper limits of
jurisprudence depend upon his ideology and the nature of society. Moreover,
the growth and development of law in different countries has been under different
social and political conditions. The words used for law in different countries
convey different meanings.
In French, it refers to something like case law. The evolution of society is of a
dynamic nature and hence the difficulty in accepting a definition by all. New
problems and new issues demand new solutions and new interpretations under
changed circumstances. However, scientific inventions have brought the people of
the world closer to each other which helps the universalisation of ideas and
thoughts and the development of a common terminology.
The study of jurisprudence started with the Romans. Juris means Law and
Prudence means Knowledge. The Latin equivalent of jurisprudence is
jurisprudential which means either knowledge of law or skill in law.
Ulpain defines jurisprudence as the knowledge of things divine and human, the
science of the just and unjust.
Austin
The view of Austin is that the science of jurisprudence is concerned with positive
law, with laws strictly so-called.
Salmond
Salmond defines jurisprudence as the science of law. By law he means the law of
the land or civil law.
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Keton
Keton considers jurisprudence as the study and systematic arrangement of the
general principles of law. Jurisprudence considers the elements necessary for the
formation of a valid contract but it does not attempt to enter into a full exposition
of the detailed rules of the law of contract.
Pound
Dean Roscoe Pound defines jurisprudence as the science of law. Jurisprudence is a
study of the fundamental legal principles.
Sir Thomas Erskine Holland defines jurisprudence as the formal science of positive
law.
In view of Julius stone is that jurisprudence is the lawyer’s extraversion. It is the
lawyer’s examination of the precepts, ideals and techniques of the law in the light
derived from present knowledge in disciplines other than the law.
Scope of Jurisprudence
There is no unanimity of opinion regarding the scope of jurisprudence. Different
authorities attribute different meanings and varying premises to law and that causes
difference of opinions with regard to the exact limits of the field covered by
jurisprudence. Jurisprudence has been so defined as to cover moral and religious
precepts also and that has created confusion. It goes to the credit of Austin that he
distinguished law from morality and theology and restricted the term to the body of
rules set and enforced by the sovereign or supreme law-making authority within
the realm. Thus, the scope of jurisprudence was limited to the study of the concepts
of positive law and ethics and theology fall outside the province of jurisprudence.
There is a tendency to widen the scope of jurisprudence and at present we include
what was previously considered to be beyond the province of jurisprudence. The
present view is that the scope of jurisprudence cannot be circumscribed or
regimented.
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 It includes all concepts of human order and human conduct in State and
society.
 Anything that concerns order in the State and society falls under the domain
of jurisprudence.
 P.B. Mukherji writes that new jurisprudence is both an intellectual and
idealistic abstraction as well as behaviouristic study of man in society.
 It includes political, social, economic and cultural ideas. It covers the study
of man in relation to State and society.
W. Arnold defines jurisprudence as the shining but unfulfilled dream of a world
governed by reason. For some, it lies buried in a system, the details of which they
do not know. For some time, familiar with the details of the system, it lies in the
depth of an unreal literature. For others, familiar with its literature, it lies in the
hope of a future enlightenment. For all it is just around the corner.
The view of Lord Redcliffe is that jurisprudence is a part of history, a part of
economics and sociology, a part of ethics and a philosophy of life. Karl Llewellyn
observes jurisprudence is as big as law and bigger.
Significance and Utility of Jurisprudence
It is sometimes said that jurisprudence has no practical utility as it is an abstract
and theoretical subject. Salmond does not agree with this view. Jurisprudence
also has practical value. Progress in science and mathematics has been largely
due to increasing generalization which has unified branches of study previously
distinct, simplified the task of both scientist and mathematician and enabled them
to solve by ne technique a whole variety of different problems. Generality can also
mean improvement in law. The English law relating to negligence has progressed
from a host of individual rules about particular types of situations to a general
principle. One of the tasks of jurisprudence is to construct and elucidate concepts
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serving to render the complexities of law more manageable and more rational. In
this way, theory can help to improve practice.
Jurisprudence also has an educational value. The logical analysis of legal
concepts sharpens the logical technique of the lawyer. The study of jurisprudence
can also help to combat the lawyer’s occupational view of formalism which leads
to excessive concentration on legal rules for their own sake and disregard of the
social function of law. Law is to be put in its proper context by considering the
needs of society and by taking note of the advances in related and relevant
disciplines. A proper grasp of the law of contract may require some understanding
of economics and economic theory, a proper grasp of criminal law, some
knowledge of criminology and psychiatry and a proper grasp of law in general and
some acquaintance with sociology. Jurisprudence can teach the people to look, if
not forward, at least sideways and around them and realize that answers to new
legal problems must be found by a consideration of the present social needs and
not in the wisdom of the past.
Jurisprudence is often said to be the eye of the law. It is the grammar of law. It
throws light on the basis ideas and the fundamental principles of law. To quote
Holland; The ever renewed complexity of human relations calls for an increasing
complexity of legal details, till a merely empirical knowledge of law becomes
impossible.
By understanding the nature of law, its concepts and distinctions, a lawyer can find
out the actual rules of law. It also helps in knowing the language, grammar, the
basis of treatment and assumptions upon which subjects rests.
Some logical training is necessary for a lawyer which he can find from a study
of jurisprudence. Jurisprudence trains the critical faculties of its students so that
they can detect fallacies and use accurate legal terminology and expression. In his
practical work, a lawyer has to tackle new and difficult problems which he can
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handle through his knowledge of jurisprudence which trains his mind into legal
channels of thought. For example, a question may arise whether a certain person is
entitled to certain property by virtue of his adverse possession for more than the
prescribed period of time. His knowledge of jurisprudence will tell him what
constitutes possession and that will help him in tackling the problem before him.
A study of jurisprudence helps legislators by providing them a precise and
unambiguous terminology. It relieves them of the botheration of defining again
and again in each Act certain expressions such as right, duty, possession,
ownership, liability, negligence etc.
The study of jurisprudence enlightens students and helps them in adjusting
themselves in society without causing injuries to the interests of other citizens.
J.G. Phillimore observes: such is the exalted science of jurisprudence, the
knowledge of which sends the students into civil life, full of luminous precepts and
notions, applicable to every exigency of human affairs.
Jurisprudence helps the judges and the lawyers in ascertaining the true
meanings of the laws passed by the legislatures by providing the rules of
interpretation.
According to Dr. M.J. Sethna, the value of jurisprudence lies in examining the
consequences of law and its administration on social welfare and suggesting
changes for the betterment of the superstructure of laws.
The true purpose of the study of jurisprudence should not be confined to the
study of positive law alone but must include normative study. That study
should deal with the improvement of law in the context of prevailing socio-
economic and political philosophies of time, place and circumstances. We agree
with Pound’s theory of the functional attitude, regarding law as social engineering,
the utility of which should be tested every now and then by the jurists who should
improve its quality at every stage. The very vagueness of the concept should serve
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as a challenge to legal thinkers in the country and that should encourage all
lawyers and jurists on an inquiry as to the sense of societal values which should be
nursed and nurtured in order to build a proper legal system which will serve as an
efficient vehicle of socio-economic justice.
Prof. R.W.M. Dias writes that the study of jurisprudence is an opportunity for the
lawyer to bring theory and life into focus for it concerns human thought in relation
to social existence. Teachers of law hope to encourage their pupils to learn how to
think rather than what to know and jurisprudence is peculiarly suited to this end.
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Schools of Jurisprudence
The Analytical School-Law is a Command of Sovereign

A
nalytical school is also known as Imperative, Positive, English or
Austinian school. This school considers, that law originates from the
state. Law and state are directly related to each other. Law is nothing
but command of the sovereign. State’s authority to make law cannot be
challenged, because of this basic assumption this school is termed as imperative
school.
The analytical school is positive in its approach, because the main aim is to study
the positive law only, without considering their historical origin, ethical
significance, moral and ideal of society, etc. Positive law here means law simply
and strictly so called or law set by political superiors to political inferiors, in
other words it implies law that is actually found, as contrasted with what ought to
be. This school also favours codification of laws. Bentham and Austin both are
considered as founder of analytical school, however, Austin is considered as
father of this school.
Jermy Bentham (1748-1832) is the founder of positivist school
Bentham was an individualist. He was against the concept of natural right; he
asserted that rights are always created by the law. The main function of law is to
eradicate hurdles on the freedom of human being. He was supporter of individual
freedom, according to him after achieving his freedom individual would himself
look after his welfare. Thus he seems supporting the concept of lassiez faire that is
let the men free, to which we come across in economics. He was a utilitarian also.
According to him the ultimate end of law is the greatest happiness of greatest
number. He defined utility as property or tendency of a thing to prevent some evil
or procure some good. He attached three conditions to his principle of utility.
1. It should be clear and precise
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2. There should be single and sufficient amount of motivation

3. It should be applicable by means of moral calculus.
Thus his theory is described as utilitarian individualism, the state must nourish not
only the individual freedom but also taken into consideration the concept of utility,
while enacting law. His principles of utility subject everything to two motives.
They are,
(a) pleasure (b) Pain
Law should be judged on those two points. The ultimate purpose of the law is to
bring pleasure and avoid pain. Bentham pleaded for codification of law. He was
not the supporter of the judge made law. He rejected the natural law as well and
put more emphasis on human advantages, pleasure and satisfaction.
Bentham’s theory has been subjected to criticism, specially for giving much
importance to the powers of legislators and unavailability of scope for individual
discretion and flexibility in law. Bentham failed to create balance between
individual interest and social interest. According to him the purpose of the law is to
remove shackles on individual freedom, but some time law has to limit individual
freedom in the social interest. In the current complex nature of state it is hard to
test every law on any given principle. In welfare state, state is obliged to look into
the interest of minority also. There might be need for framing laws concerning
social, economical and educational backward people which may result in imposing
liability or curtailing their beneficial position and thus subjecting them to pain.
Reservation policy in Indian legal system is an example of this. But we can’t deny
that Bentham’s theory introduced an era of legal reform. Legislation has become a
main source of law. Codification of law become an important feature of various
legal system.
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Austin (1790-1859)
Austin is considered as the father of English jurisprudence. John Austin is the
founder of analytical school because of his contribution in the development of this
school. It is also known as austinian school. In the lectures of his book, “the
province of jurisprudence determined” he dealt with nature of law, source of
law, etc. on the basis of Austin’s concept that the law is a command of the
sovereign, the analytical school is also known as imperative school.
According to Austin, law is a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him.
Austin divides the law into two parts.
a. Law properly so called
b. Law improperly so called
Laws proper or properly so called are command laws, laws which are not
commands are laws improper or improperly so called.
1. Austin states that law is the command of the sovereign. Being command
every law properly so called come out from determinate source.
2. Duty and sanction are the soul of Austinian command. Whenever a
command is expressed one party signifies a wish that other shall do or
abstain from doing particular act, in case the other do not fulfill the duties
imposed by the former then he will be subjected to an evil or punishment
(sanction). Thus the determinate body enjoys the power to inflict penalty for
disobedience.
3. Positive laws are laid down by the political superiors for the political
inferiors. Sovereign may lay down the law by himself or may delegate his
power of making laws.
4. Austin theory considers law as the command of the sovereign and point out
the following essential features,
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 Sovereign should be a determinate individual body

 Sovereign should not be in the habit of obedience of like superior
 Sovereign should receive obedience from bulk of a given society
Such determinate superior is sovereign in that society and the society including the
superior is a society political and independent and other members of the society are
subjects and dependent on that superior. The sovereign power is unlimited and
indivisible.
According to Austin analysis is the main instrument of jurisprudence. He states
that this method can be applied only in civilized society because in this concept,
laws are the command of the sovereign and can work in civilized society. For
enforcement of command there is a need of proper and systematic administration.
Criticism of Austin Theory
1. By saying that law is the command of the sovereign, Austin has ignored the
significance of the customary law which regulates as conduct of the people since
ages. Customary laws are based on the general will, Austin regard them as rule of
positive morality and they acquire feature of positive law only.
2. Austin’s theory failed to cover law conferring privileges only as for example law
providing rules for drawing will, etc. thus command implies coercive measure
however these laws are much more of permissive character. Similarly procedural
laws are not command in strict sense.
3. This theory ignores judges made laws as per his theory; they act strictly under
the power conferred on them by the sovereign. In the present scenario judicial
interpretation and precedents are one of the prime sources of law.
4. Austin’s definition of law does not cover conventions of the constitution.
5. Austin calls international law, positive morality and does not consider it law
properly so called because there is no common sovereign whose command is
obligatory on the member states. However current development of international
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law places it in the category of law properly so called. Member nation also
consider international law as binding one, various provisions are there in the
charter of the United Nations providing for sanction against the nation at guilt.
6. Austin states that it is the sanction alone which induces the man to obey the law,
but there are certain other factors like reason, sympathy, consciousness which
may cause a man to follow law.
7. Sovereign’s powers appears the supreme one and as if he is capable of giving
even all kind of arbitrary command. Sovereign appears as something related to
third world, who can ignore the general will. In current scenario it is hard digest
the phenomena of such an absolute, unqualified power and that is also for civilized
society.
8. Austin theory ignores the gradual development of law and treat law as a
rubber band whose expansion rest on sovereign will.
We cannot deny the great contribution of Austin in providing a new approach.
Gray says, if Austin went too far in considering law as always proceeding from the
state, he conferred a great benefit on jurisprudence by bringing out clearly that the
law is at the mercy of the state. Later jurists like salmond and gray further
improved on his theory.
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Natural Law School

Law is a dictate of reason

 There is in fact a true law - namely right reason - which is in accordance
with nature, applies to all men, and is unchangeable and eternal.
 By its commands this law summons men to the performance of their duties.
 By its prohibitions, it restrains them from doing wrong.
 Its commands and prohibitions always influence good men.
"To invalidate this law of human legislation is never morally right, nor is it
permissible ever to restrict its operation, and to annul it is impossible.
"But there will be one law, eternal and unchangeable, binding at all times and
upon all peoples; and there will be, as it were, one common master and ruler of
mankind, namely God, who is the author of this law, its interpreter, and its sponsor.
Natural Law is a code of rules which originates with the divine, nature or reason
in contrast to the laws people make. There is only one Permanent law which is
universally accepted that is natural law.
In ancient Greek we can see, Plato, Aristotle laying the foundation of natural law
theory. Political instability played significant role in development of natural school
The search was for source of law which could prescribe universally applicable
principles and rules separate from political superior.
The source of natural law was found in reason, insight which is carried by man as
part of the nature itself. Natural law movement is an effort of man to free itself
from arbitrary commands and blind obedience to sovereign.
Concept of inalienable rights is recognized in various constitutions. (in Indian
Constitution fundamental right and the theory basic structure support the theory of
general will to not to abrogate basic feature.)
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Renaissance theory
 The natural law theory of renaissance period is mainly based on rationalism
as new ideas flooded in all areas of knowledge.
 Reasoning became the gist of all thoughts.
 Reform at all levels freed people from useless shackles and they could
express what was inherent in the idea of law.
 Renaissance period saw the consequences of new concept of nationalism,
colonialism and demise of theological colour of legal theory.
Grotius (1583-1645)
 Grotius framed his legal theory on the basis of social-contract.
 Social contract creates mutual duties.
 Grotius considers that sovereign is bound by natural law and is bound to its
citizen because he has been given power for that purpose alone.
 For Grotius Natural law emancipates from nothing but right reason and his
theory is free from theological presuppositions.
Hobbes (1588-1679)
 Hobbes also made social contract as base of his theory.
 According to him in bare natural state, man was insecure, his life was poor,
nasty, brutish and short for security and self-preservation he surrendered
before authority.
 This authority gives security in return of absolute obedience from men.
 Hobbes believes in absolute power of sovereign which cannot be disobeyed.
 Even church are also denied any special position before sovereign.
 Thus man’s natural right to safety and security ask for protective authority
from absolute secular sovereign.
 Hobbes also consider that, sovereign is bound by law of nature which
emancipates from reason.
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Locke (1632-1704)
 As per Locke theory in the state of nature only one right of the individual
was insecure and the right was right to own property.
 The social contract was entered in to basically for the purpose of protection
of property.
 Thus man subjected itself to the authority of state for the sole purpose of
protection of property.
Rousseau (1712-1778)
 Rousseau furnishes a very fine dimension to the theory of social contract.
 By this man merges his personality with the community at large and there by
gives rise to general will.
 Rousseau sees man in association, and considers that the purpose of the law
is to further general will.
 As the men merges himself in community for the purpose of protection of
his right to freedom and equality and thereby frame general will,
 The only purpose of every law and government is to give effect to the
general will.
 Rousseau’s declares if a government fails to give effect to the general will it
should be overthrown,
An Overview
 Natural law has often been pictured as an ideal system laid up in heaven of
which positive law can be but an imperfect law.
 Natural law has been envisaged as a mere law of self-preservation, or as an
operative law of nature constraining man to a certain pattern of behavior.
 The term natural law is a guide legal development and administration,
 a basic moral quality in law
 the method of discovering perfect law
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 Natural law theory has tried to meet a paramount needs of successive ages
throughout history.
 It figures prominently in offering help with two vital contemporary problems
like the validity of the unjust law and the abuse of liberty.
 Dr. W. Friedman rightly points out that the history of natural law is a tale of
the search of mankind for absolute justice and its failure.
 With changing social and political conditions, the notions on natural law
have changed.
 The only thing that has remained constant is the appeal to something higher
than positive law.
 The object of that appeal has been the justification of the existing authority
or a revolt against it.
 Natural law was the principal instrument in the transformation of the old
civil law of the Romans.
 It was used as a weapon by both sides in the fight between the Medieval
Church and the German Emperors.
 In the name of natural law, the validity of international law was asserted.
 An appeal was made to natural law to defend individual freedom against
absolutism.
 The judges of the United States appealed to the principles of natural justice
while resisting the attempt of state legislation to modify and restrict the
unfettered economic freedom of the individual.
 Natural law is the ideal of a universal order governing all men and the
inalienable rights of the individual.
 Natural law has provided the foundation for the individualist philosophy of
the American and other modern constitutions.
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Greece
 Greek thinkers laid the basis of natural law and developed its essential
features.
 Nature is not just substance, but a relation, an order of things.
 If there is anything universally valid, it is that which is valid by nature for all
men without distinction of people and time.
 What nature determines is justly authorized.
 It is the order of things which embodies reason.
Socrates
 Socrates reflected upon that one of the dictates of natural law is that
authority and positive law should be obeyed.
 However, he did not argue blind adherence to positive law.
 That should be subjected to the critical evaluation in the light of man’s
insight.
Plato
 Plato laid the foundations for much of subsequent speculation of natural law
themes.
 According to him, Gods gave to all men in equal measure a sense of justice
and of ethical reverence so that in the struggle of life they may be able to
form permanent unions for mutual preservation.
 Aristotle-in his logic, Man, as a part of universal nature, is governed by
reason.
 Reason orders his faculties in such a way that he can fulfill his true nature.
 When man lives according to reason, he lives naturally.
 Thus the law of nature becomes identified with a moral duty.
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The Middle Ages

Acquinas
 St.Thomas Aquinas may be taken as representative of the new theory.
 There was a need for stability in a world emerging from the Dark Ages.
 According to Aquinas, law is nothing else than an ordinance of reason for
the common good, made by him who has the care of the community, and
promulgated.
 That is the eternal law which is nothing else than the plan of the divine
wisdom considered as directing all the acts and motions for the attainment of
the ends.
 There is no need of promulgating natural law to other created things as they
lack the intelligence of man.
 man can decide what is good.
 Aquinas divided laws into four categories like law of god, natural law which
is revealed through the reason of man, divine law or the law of scriptures
and human laws.
 Natural law is a part of divine law.
 It is that part which reveals itself in natural reason.
 It is applied by human beings to govern their affairs and relations.
 The human law or positive law must conform to the law of the scriptures.
 Positive law is valued only to the extent to which it is compatable with
natural law or in conformity with eternal law.
 The church is the authoritative interpreter of the divine law.
 It is the authority to give verdict upon the goodness of positive law also.
 Natural law furnishes principles rather than rules for detailed application.
 Reason becomes the foundation for all human institutions.
 Social life is founded on human nature.
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 Families and the state are necessary for the realization of man’s full potential
and are thus natural institutions.
 If positive law departs from natural law on any point, it is no longer a law
 So far as human laws are founded on reason, there is a duty to obey them.
 If a law is unreasonable and unjust, no such duty arises.
Grotius
 Hugo Grotius (1583-1645) gave classical expression to the new foundations
of natural law as well as the principles of modern international law.
 The nature of human intellect desires a peaceful society and from that are
derived the principles of natural law which are independent of divine
command.
 Natural law is so immutable that it cannot be changed by god himself.
 According to Grotius, natural law is based on the nature of man and his
inward need of living in society.
 Grotius called human nature as the grandmother, natural law the parent and
positive law the child.
 All law is dependent upon sanction.
 To quote him, governments without the sword are but words, and of no
strength to secure a man at all.
 All real law is evil law. It is commanded and enforced by the sovereign.
 There is no distinction between state and society.
 There is no law between sovereign and subjects.
 All social and legal authority is concentrated in the sovereign.
 The church is subordinated to the state. It is just like another corporation.
Decline of natural law theories
The social contract theory did not survive the 18th century.
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Bentham
 Bentham (1748-1832) regarded natural law as nothing but a phrase.
 He mercilessly criticized the idea of natural rights and described them as
simple nonsense;
 About the principle of equality he wrote absolute equality is absolutely
impossible.
 Absolute liberty is directly repugnant in the existence of every kind of
government.
Austin
 John Austin (1790-1859) rejected natural law on the ground that it was
ambiguous and misleading.
 According to him, the science of jurisprudence is concerned with positive
law by which he meant a science of laws.
 Austin view was that all rights were created and regulated by the state.
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Sociological School

Law is a Social Engineering

 Man is a social animal and society is needed to live life, work and enjoy life.
 A group of individuals forms a society.
 Society has become an indispensable condition for human life to develop its
personality.
 Therefore, society and human life always go hand in hand.
 Every human being is also born with certain desires and expectations which
are inherent in nature.
 From childhood to old age, every human being expects his wish to be
fulfilled, for which a conflict of his desires or claim arises, which falls under
the term of interest.
 It is impossible to fulfill all the desires of man.
 Hence the concept of social engineering has come up to fulfill the desire of
maximum human beings for the welfare of society and which was
formulated by Roscoe Pound.
The Concept of Social Engineering
 Social engineering aims to build an efficient structure of society resulting in
the satisfaction of maximum wants with the minimum of friction and waste.
 This involved a rebalancing of competing interests.
 According to pound, sociological jurisprudence should ensure that
lawmaking, interpreting and applying law, take account of social facts.
 Law is the body of knowledge and experience with the aid of which a large
part of social engineering is carried on.
 Like an engineer by his skill discovers new devices and formulates their
requirements by means of a developed technique.
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 Jurisprudence thus becomes a science of social engineering which means a

balance between competing interest in society.
 Pound’s theory that interest is the main subject of law and the act of law is
the satisfaction of human wants and desires.
 It is the function of law to make a valuation of interests.
 All this is nothing more than the social engineering.
Pound classified interests into individual interests, public interests and social
interests.
1. Individual interests
Individual interests are the interests looked from the viewpoint of an individual.
These interests concern the following :
 Personality: It includes interests in physical person, freedom of will, honour
and reputation, privacy, belief and opinion. Our Constitution also guarantees
certain personality rights as fundamental rights. In Aadhar judgment right to
privacy was held implicit in Article 21 of our Constitution.
 Domestic relations: These include interest in parents, children, husband and
wife. Hence we have laws imposing legal obligation to maintain parents,
wife and children.
 Subsistence Interests: These include interests in property, freedom of
industry & contract, freedom of association & continuity of employment.
Again Indian Constitution guarantees freedom of trade, profession, business
and occupation as fundamental right under Article 19(1)(g).
2. Public interests
Public interests according to Pound essentially involves claims of the state as a
politically organized association. The interests of the state as a juristic person
involve the following interests.
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 Interest in integrity & honour of the state’s personality and freedom of

action. Hence we have punishable offences in IPC such as waging of war
against the state, sedition, etc.
3. Social Interests
These are essentially the claims or interests in terms of social life and these are
considered as the interests of social group. These are of following types: • Social
interest in the general society – It includes interest in general safety, general
health peace & order, security of acquisitions and security of transactions.
Hence we have laws such as IPC, Cr. P. C. Epidemics Act, 1897 to protect public
health. • Social interest in security of social institutions – Social institutions
include domestic institutions, political institutions religious institutions and
economic institutions. For example, marriage is an important social institution
& hence laws are there to protect institution of marriage. • Social interest in
general morals- The interest of society also lies in preservation of general
morals and hence laws are enacted to deal with gambling, prostitution, etc. •
Social interest also lies in social progress, social resources and in an indibidual’s
life. Hence laws such as Environment (Protection ) Act, 1986 and other laws have
been enacted.
Pound states following Jural Postulates
Jural Postualte-I. In civilized society men must be able to assume that others will
commit no intentional aggression upon them. (criminal law)
Jural Postulate-II. In civilized society men must be able to assume that they may
control for beneficial purposes what they have discovered and appropriated to their
own use, what they have created by their own labour and what they have acquired
under the existing social and economic order. (law of patents)
 23

Jural Postulate-III. In civilized society men must be able to assume that those
with whom they deal in the general intercourse of society will act in good faith and
hence. (contract)
-will make good, reasonable expectations which their promises or other conduct
reasonably create.
-will carry out their undertakings according to the expectations which the moral
sentiment of the community attaches thereto.
-will restore specifically or by equivalent what comes to them by mistake or failure
of the presuppositions of a transactions, or other unanticipated situation whereby
they receive at another’s expense what they could not reasonably have expected to
receive under the actual circumstances.
Jural Postulate IV-In civilized society men must be able to assume that those who
engage in some course of conduct will act with due care not to case an
unreasonable risk of injury upon others.(law of torts)
Jural Postulate V-In civilized society men must be able to assume that others who
maintain things or employ agencies, harmless in the sphere of their use but harmful
in their normal action elsewhere and having a natural tendency to cross the
boundaries of their proper use, will restrain them or keep them within their proper
bounds. (strict liability)
Critical analysis of pound’s theory
1. Pound is criticized for suggesting application of social engineering using
much more a scientific word to solve social conflicts. It suggest mechanical
application of the theory on social desires and interest which keep on
changing from time to time.
2. Pound defined interest as, claims or wants or desires which men assert de-
facto about which the law must do something if organized society is to
endure. Pound considers interest defacto inspires legislation, but this is not
 24

true always sometime law appears first and then interest enshrined
protected therein is demanded.
3. Pounds theory, ask for maximum gain with least friction and least waste
maximum satisfaction of human wants or expectations with-least sacrifice.
Somewhere this theory gives prime importance to interest of public at
large over individuals interest and if interpreted strictly then may result in
eliminating individual freedom.
4. Rosco pound advocates judicial activism and expects that judge should
themselves evolve yardstick for valuating interest involved in the case. Thus
judiciary is given very wide power and sometime may not be able to
find out effective yardstick because of its own constraints. By the available
pleadings only one cannot do social engineering unless some framework is
done by legislators.
5. Pound says one of the prime duty of the law is to make a selection of
socially most valuable objectives and to secure them. Value of interest may
change from to time, its hard to prepare any strict and efficient
preference chart of various interest.
6. According to pound what we have to do in social control and so in law, is to
reconcile and adjust these desires-wants or expectation. All interest cannot
be reconciled or adjusted. As for example interest of capitalist and
labourers can never be reconciled. Similar is the situation of interest of
minority and majority. For example if we give preference to the interest of
backward classes through reservation in government jobs it hampers not
only the interest of eligible candidates but it hampers interest of public at
large that they be administered by available most eligible and intelligent
mind. All the three interest appears important, in their respective sphere,
social engineering suggest adjustment, however in our system first interest is
 25

prevailing over the other two because reconciliation among three is not
possible. However if we go as per the jural postulates of civilized society
then last interest should have been given preference over the first ofne object
being maximum gain with least friction and least waste.
7. Pound talks about two conflicting issues. Pound has consensus model of
society where every interest can be adjusted or reconciled by using an
ideal/yardstick. Since the inception of society interest even if they are
conflicting take their own position as per recognized principle, if pound is
taking about that kind of static society – then there is no need of invoking
concept of social engineering, as everything is already set in consensus
model of society. If pound is talking of society with vibrant attitude then
basic assumption governing that society will be hard to detect. No rigid
frame or scientific equations can be framed to adjust social interest.
8. According to pound judges should see basic assumptions of society on
which it rest to frame preference chart of various interest. Now these days
basic assumption of society cannot provide golden scale in itself. Basic
assumption of society at large may be declared valueless if adjusted
otherwise by intellectual mind, on various other consideration, which may
not always be widely appreciated.
9. To adjust and reconcile interest pound suggest jural postulates which are
ideal of society and which help in turning law as an instrument in social
development. Jural postulates are based on basic assumption of western
society, these basic assumption are not universal in nature and sometime
legislators are required to nourish the interest which are not supported by
basic assumption f the then society.
10.Classification of interest appears useless. As interests are keep on
changing as per the political and social factors. Similarly their preference
 26

value chart may also get changed. Sometime interest may be of such nature
that it becomes difficult to put that in any strict frame. An individual interest
in progress becomes social interest when we see it under wider frame.
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Historical School of Law

Law is a General Consciousness of the People

 The law does not fall from the sky. It tends to develop as an expression of a
society’s peculiar culture and values.
 History is the foundation of the knowledge of contemporary era.
 History is a record of past events. As man has a past so does law. History is
the relevance of generations past to present and the future.
 Historical jurisprudence is marked by judges who consider history, tradition,
and custom when deciding a legal dispute.
 It views law as a legacy of the past and product of customs, traditions and
beliefs prevalent in different communities.
 It views law as a biological growth, an evolutionary phenomena and not an
arbitrary, fanciful and artificial creation.
 Law is not an abstract set of rules imposed on society but has deep root in
social and economic factors and the attitudes of its past and present members
of the society.
 The essence of law is the acceptance, regulation and observance by the
members of the society.
 Law derives its legitimacy and authority from standards that have withstood
the test of time.
 Law develops with society and dies with society.
 Custom is the most important source of law.

History also sometimes plays a second role in law practice and judicial decision-
making. Namely, lawyers and judges sometimes invoke historical arguments to
support a particular legal or judicial conclusion. As a general matter, lawyers and
judges typically accept certain types or modes of argument as being legitimate
within the legal system.

History often plays a prominent role in constitutional law. Attorneys and judges
will assert that historical evidence reveals that the framers of a constitutional
provision intended to achieve some desire goal.

Hence law was not the result of an arbitrary act of a legislation but developed as a
response to the impersonal powers to found in the people’s national spirit.
 28

 Laws are not of universal validity or application. Each people develop its
own legal habits as it has peculiar habits, practice and beliefs of the people.
 According to Prof Dias historical school emerged as a reaction against
natural law theory.
 Historical school originated in Germany due to political changes brought
about by napoleon wars.
 The source of law is general consciousness of people and cannot be
borrowed from outside.
 Historical jurisprudence is the history of first principles and conceptions of
legal systems.
 According to savigny, a thorough understanding of the history of people is
necessary for studying the law accurately.

Savigny (1779-1861)

For savigny law grows with the growth and strengthens with the strength of the
people and finally does away as the nation loses its nationality. Law is the natural
manifestation of popular life and by no means product of man’s free will.

Savigny’s theory contemplates

1. Law, language and custom have no separate existence

2. Law is the subject matter of an organic evolution
3. Law develops with life and character of the people, just like their language.
4. Internal necessity is the main catalyst for the development of law.
5. Law is the characteristic of a nation.
6. Law does not enjoy any separate existence it not only grow with a nation
and get nourished by the progress of ages but law just like other unit dies at
the dissolution of a nation.
7. Law has a national character, it cannot be of universal application.
8. Law varies with the people and ages, it cannot be static.
9. The main sources of law is general consciousness of the people, (volkgeist).
This gradually evolved general consciousness find its expression in the form
of law. Thus, law cannot be a product of man’s free will.
10.Principle of internal necessity give rise to law spontaneously and it is
developed by the jurists and lawyer. Their work is to mould the legal
 29

principles according to volkgeist. They don’t enjoy discretionary power,

they are guided by the volkgeist for having the ultimate objectives of
volkgeist.
11.Customs are superior to legislation. Popular consciousness is expressed in
custom. Law should not abrogate the custom and legislation must synthesize
the volkgeist.
12.In the light of thesis of historical school judges are important than the
legislators. Legislation is the final step of law making.
13.Savigny opposed the codification of laws according to him codified laws
cannot cover all problems which may arise from time to time, codification
bring the loopholes of law before the society and thereby encourage its
violation and code may sometime bring unacceptable provision for which
there is no volkgeist at all.

Criticism of savigny’s theory

Savigny’s theory can be criticized on the following points

1. Savigny considers the volkgeist as the source of law. It is difficult to
determine the general consciousness and its inclination. General public
opinion differ from one another and mostly they are guided by their self
interest and psychological influence of other’s thinking, it may not be in
the interest of the whole society. It would be absurd if we allow
destructive activities only because phenolmena of volkgeist wants so.
2. General consciousness is not the originator of every kind of custom.
Sometime conflicting custom exist in the same territory. On the other
hand sometime influential part of the society force weak part to follow a
particular rule of conduct, which may not be based on consciousness of
general people.
3. Volkgeist is a complex phenomena. To know the real general
consciousness we would have to see whether enough space was provided
in a particular society to express their will as a group or some foreign
element is giving it a colour of volkgeist. Thus certainty is hard to
discover in volkgeist.
4. Saving talk about organic evolution of law but he could not explain the
mode of such evolution.
 30

5. Popular consciousness is not the only source of law. Sometimes the laws
prevailing in foreign countries are adopted by another nation to get th
benefit of positive aspect of these regulations. For instance problem
requiring instant solution, consciousness does not originate them but
accept them at later stage.
6. Savigny advocated the national character of law, but at the same time
consider some principles of Roman Law having characteristic of
universal application.
7. In the words of Pound, Savigny’s encouraged, juristic pessimism. His
theory discourage the active and creative role of judges and jurist. He
made them the spokes person of volkgeist which desires absence of
application of mind, reasoning, analytical approach, even looking into the
nature of fabricks of consciousness. A blind follower of volkgeist to
mould the clay provided by nation in the form, shape and size as desired
by general consciousness.
8. Legislators are also the agents of general consciousness. This theory does
not recognize man’s free will to enact. Sometime law results from the
violent struggle between the conflicting interest between the subjects of
the nations.

But inspired of this we cannot deny the contribution of Savigny, in giving

significance to the will of the people to be governed in framing rules for their
governance. His theory negativates the concept of absolute sovereign whose
command reasonable or unreasonable is law. It does not embarrass the common
man by dividing community into political superior and political inferior and gives
respectable position to the view of community, this thought itself deserves for
kudos. It gives legal system in very positive, constructive and easy frame work by
saying that law is product of general consciousness and thus make the society
ready to internalize the laws even in absence of enforcement.
 31

Realism-Realist theory

The realist movement is a part of the sociological approach and it is sometimes

called the left wing of the functional school. It differs from the sociological school
as it is little concerned with the ends of law.

 It concentrates on a scientific observation of law in its making and working.

 The movement is called realist as it studies law in its actual working and
rejects the traditional definition of law that it is a body of rules and
principles which are enforced by the courts.
 The advocates of the realist movement concentrate on the decisions given by
law courts.
 They not only study the judgments given by the judges but also the human
factor in the judges and lawyers.
 They study the forces which influence judges in reaching their decisions.
 The American realist movement is a combination of the analytical positivist
and sociological approaches.
 It is positivist in the sense that it regards law as it is and not as it ought to be.
 The ultimate aim is to reform the law, but that cannot be done without
understanding it.
 Law is the product of many factors and therefore the realists are interested in
those sociological factors which influence law.
 They share with the sociologists an interest in the effects of social conditions
of law as well as the effect of law on society.
 They put too much emphasis on judges.
 To them law is what judges decide.
 That is partly due to the fact that judges have played a very important part in
the growth of the American Constitution and law.
 The approach of the realists is essentially empirical.
 Their view is that the decisions of the judges are brought about by
ascertainable facts.

Some of them are the personalities of the individual judges, their social
environments, the economic conditions in which they have been brought up,
business interests, trends and movement of thought, emotions, psychology etc.
 32

The importance of the personal element is not new, but the contribution of the
realists lies in the fact that they have put too much emphasis on it.

While calling American realism a revolt against formalism, Lord Lloyd points out
that in the nineteenth century and at the beginning of the twentieth century,
laiseez faire was the dominant creed in America. (governmental interference in
the economic affairs of the individuals)

However, empirical science and technology were increasingly dominating

American society and with that development arose an intellectual movement.

 That movement in America was associated with the name of Justice Holmes
in Jurisprudence.
 The organization of the judicial system in the United States also played its
part.
 The Supreme Court is the final authority not only to interpret law but also to
decide its validity.
 The judges of the lower courts in the United States are elected and they are
influenced by extraneous considerations (bahya parigananegalu) while
deciding cases.
 The existence of separate state jurisdictions caused a multiplicity of laws and
decisions. (50 states, 50 constitutions)

All these made some jurists concentrate more on courts to know the actual working
of law and to study those factors which determine and influence it.

Gray (1839-1915)

Dr. Friedman considers John Chipman Gray (1839-1915) and Oliver Wendell
Holmes (1841-1935) as the mental fathers of the realist movement.

The illustrations given by Gray, show how political sympathy, economic theory
and other personal qualities of particular judges have settled matters of the gravest
importance for millions of people and hundreds of years.

Justice Holmes (1841-1935)

As a judge of the Supreme Court of America, Holmes played a fundamental part in

bringing about a changed attitude to law.
 33

 He put emphasis on the fact that the life of law was experience as well as
logic.
 He stressed the empirical and pragmatic aspect of law. (practical)
 For him, legal history was to be studied primarily as a first step towards a
deliberate reconsideration of the worth of rules developed historically.
 According to him, law must be strictly distinguished from what it ought to
be.
 Holmes felt that the development of law could be justified scientifically.
 Holmes accepted the possibility of scientific valuation in law.
 His emphasis on what courts may do, rather than on abstract logical
deduction from general rules, focused attention of the empirical factors
which constitute a legal system.
 There was much in the American system which made this new approach
acceptable to American lawyers.
 Holmes reliance on practical social science seemed to point the way to
future progress.

His dissenting judgments in Lochner and Adams cases were on the actual social
needs of the highly industrialized modern society.

Carl N. Llewellyn (1893-1962)

Llewellyn outlines the principal features of the realist approach as follows

1. There has to be a conception of law in flux (stability) and of the judicial

creation of law.
2. Law is a means to social ends and every part of it has constantly to be
examined for its purpose and efforts and judged in the light of both and their
relation to each other.
3. Society changes faster than law and so there is a constant need to examine
how law meets contemporary social problems.
4. There has to be a temporary divorce of “is” and “ought” for purposes of
study. This does not mean that the ideas of justice and telecology are to be
expelled altogether, but they are to be put in one side while investigating
what the law is and how it works. By this divorce, both the processes will be
improved. The realists are vitally interested in the aims and ends of law and
 34

it was with a desire to improve law that the realist movement was started.
Adequate reform has to be preceded by an examination of how the law
operates in actual practice. Such an investigation will be defective if the
ideas of justice are also mixed up during the investigation of facts.
5. The realists distrust the sufficiency of legal rules and concepts as descriptive
of what courts do.
6. The realists do not have trust in the traditional theory that the rules of law
are the principal factors in deciding cases. They have drawn attention to
many other influences which play a decisive role. It is absurd to define law
solely in terms of legal rules.
7. The realists believe in studying the law in narrower categories than has
been the practice in the past. They feel that part of the distortion produced by
viewing the law in terms of legal rules is that rules cover hosts of dissimilar
situations where in practice utterly different considerations apply.
8. The realists insist on the evaluation of any part of the law in terms of its
effects and on the worthwhileness to trying to find these effects.
9. There must be a sustained and programmatic attack on the problems of the
law along the lines indicated above.

Lord Lloyd writes that the realists have done good work in emphasizing both the
essentially flexible attitude of the judiciary towards developing precedent, even
within the four corners of a rigid doctrine of precedent and the operation of
concealed factors in judicial law-making. The realists have played their part in
bringing about a changed outlook and attitude towards the legal system and the
function of the law and the legal profession in society which has made itself felt in
all but the most traditionalist of the law schools of the common law world.