Pure Theory of law

The pure theory of law is a legal philosophy that defines law as a system of norms created by the
state. It was developed by Hans Kelsen, an Austrian lawyer and philosopher, and is considered a
landmark in the development of modern jurisprudence.

Here are some key ideas of the pure theory of law:

 Law as a norm: Law is a norm, or a prescription that states how people should behave.

 Separation from politics: The pure theory of law rejects the idea that law is influenced by
politics, ethics, or other non-legal factors.

 Coercive order: Law is a coercive order that commands people to behave in a certain way.

 Structural analysis: The pure theory of law uses structural analysis to understand the law as it
is, not as it should be.

 Core legal ideas: The pure theory of law provides a set of core legal ideas, such as "norm,"
"right," "duty," and "sanction".

Advantages of Kelsen's Pure Theory of Law:

Kelsen's pure law is applicable to all legal systems.

 It is an improvement of Austin's theory.

 The presence of Constitutional Law could be explained by Kelsen's Theory.

 According to Kelsen, law need not only be Command.

 According tom Kelsen, there is no distinction between private law and public law.

 As per Kelsen's theory, international law is a law.

 As per Kelsen's theory, customs, legislations, and precedents are all sources of law.

 As per Kelsen's theory, Law and State are similar; State is only the outcome of legal order. So,
State and Law are the same.

Criticisms of Kelsen's Pure Theory of Law

Some individuals have expressed their dislike for this theory, arguing that it appears to be detached
from moral and political considerations. They assert that it oversimplifies the complexities of law and
fails to acknowledge how society and politics influence its functioning.

The pure theory of law is a positivistic theory, which means it recognizes the difference between
norms and assertions. Norms are prescriptions that are valid or non-valid, while assertions describe
an object and are true or false.

The pure theory of law is considered a seminal work of legal philosophy from the 20th century.

In short, the Pure Theory of Law by Hans Kelsen is a way to understand law systematically without
mixing in moral or political ideas. It's based on the idea of a hierarchy of norms, where each law
follows a higher one. But it's also controversial because it leaves out morals and politics. The main
weakness of Kelsen's theory is the Grundnorm which is based on unproved hypothesis.

synthetic jurisprudence
Synthetic jurisprudence is the study of fundamental legal principles, including their historical,
philosophical, scientific, and sociological basis. It also involves: analyzing legal concepts and
reconciling conflicting theories.

Synthetic jurisprudence is necessary because:

 Knowledge is a synthetic whole that cannot be divided into compartments

 Synthesis enables us to reconcile conflicting theories

 It is necessary to determine the truth from all aspects and angles

The synthetic school of jurisprudence was formed in India in 1955 by Dr. M.J. Sethna. Dr. Sethna
believed that jurists should turn their attention to synthetic jurisprudence, and that jurisprudence
should be analytical, historical, comparative, philosophical, and sociological.

American Realism

American realism is a jurisprudence theory that originated in the United States in the 1920s and
1930s. It's based on the idea that law is what judges decide, and that it's influenced by the
psychology of the court. American realism is a combination of sociological and analytical positivist
approaches.

Here are some key aspects of American realism:

 Law is what judges decide

American realism emphasizes the role of judges and the uncertainty of law. It rejects the idea that
written rules and legislation are the only sources of law.

 Law is studied as it is

American realism focuses on studying law as it is, rather than how it ought to be. It seeks to
understand the law through the actions of legal authorities, such as judges, and how they interpret
written laws.

 Sociological factors

American realism considers sociological factors when interpreting law. It's a sociological study of how
law is made, practiced, and interpreted.

 Helps lawyers predict judgments

The study of American realism can help lawyers predict judgments and prepare arguments.

legal status of unborn persons

The legal status of an unborn person depends on whether they are born alive. In general, an unborn
person has no legal standing. However, legal fiction states that an unborn child is considered already
born, which means they can acquire certain rights:

 Property

An unborn child can inherit property, or a property can be transferred to them for their benefit
through a trust.

 Damages

An unborn child can claim damages for injuries sustained while in the womb.

 Criminal procedure
If a female inmate sentenced to death is pregnant, the execution is postponed until the child is born.

The rights of an unborn child are contingent on their birth as a living being. However, some rights
apply to the unborn child, even if they are not entitled to the full protection of Article 21 of the
Indian Constitution.

Define Jurisprudence. Discuss the nature and scope of Jurisprudence in brief.

The term “jurisprudence” comes from the Latin word “juris-prudentia,” which translates to
“knowledge of law” in its broadest sense. Specifically, “juris” means law and “prudentia” means skill
or knowledge. Therefore, jurisprudence refers to the understanding of law and its practical
application.

Jurisprudence is the study and theory of law, particularly the philosophy of law. It involves examining
the fundamental principles and concepts of law, the role and function of law in society and the
methods and techniques used to interpret and apply the law.

Jurisprudence explores the nature of law, legal systems and legal institutions and seeks to
understand the social, political and cultural contexts in which law operates. It is a broad field that
encompasses a range of perspectives, including legal positivism, natural law, legal realism and critical
legal studies. Through the study of jurisprudence, scholars and practitioners seek to develop a
deeper understanding of the law and its role in shaping society.

Definitions of Jurisprudence

Oxford Dictionary defines ‘Jurisprudence’ as the systematic and formulated knowledge or the science
of human law,

Definitions by various jurists

 Ulpian a Roman Jurist defines jurisprudence as ” Jurisprudence is the knowledge of things

divine and human, the science of just and unjust.”

 Cicero defines Jurisprudence as “Jurisprudence is the philosophical aspect of the knowledge

of law”.

 Austin defines Jurisprudence as the “philosophy of positive law”.

 By positive law or jus positivism, he means the law laid down by a political superior for
controlling the conduct of those subject to his authority

 Keeton defines jurisprudence as “Jurisprudence’ is the study and systematic arrangement of

the general principles of law.”

 Jullius Stone defines jurisprudence as a “lawyer’s extraversion.”

 Laski defines jurisprudence as “Jurisprudence’ is an eye of law.”

Nature of Jurisprudence
 Jurisprudence is the study and theory of law and it plays a critical role in shaping our
understanding of the legal system. This field provides insights into the fundamental
principles and concepts of law, including the meaning of rights, duties, possessions, property
and remedies. By examining these concepts, jurisprudence helps us to better understand the
role and function of law in society.
 One of the key aspects of jurisprudence is its focus on the sources of law. This field provides
insights into the various sources of law, including statutory law, common law and
constitutional law. Through the study of jurisprudence, scholars and practitioners seek to
 develop a deeper understanding of how these sources of law interact with each other and
how they influence the development of legal systems over time.
 Another important aspect of jurisprudence is its role in clarifying the concept of law itself.
While the law is often thought of as a set of rules and regulations, jurisprudence helps us to
understand that law is a complex and multifaceted concept that cannot be reduced to a
simple definition. Instead, the law is a dynamic and evolving concept that is shaped by a
range of social, cultural and political factors.
 It is important to note that jurisprudence is not a substantive or procedural law. Rather, it is
an uncodified law that provides a framework for understanding the legal system as a
whole. Jurisprudence serves as the “eye of law,” providing insights into how the law
operates and how it can be used to achieve justice and fairness in society.
Scope of Jurisprudence

Jurisprudence is a field of study that encompasses a wide range of topics and disciplines. It explores
the relationship between law, culture and society and it seeks to understand the fundamental
principles and concepts that underpin the legal system. One of the key aspects of jurisprudence is its
focus on legal logic, which involves the study of legal frameworks, bodies of law and the reasoning
behind legal decisions.

However, the scope of jurisprudence goes beyond just the study of legal logic. It also encompasses
other fields, such as psychology, politics, economics, sociology and ethics. This is because the law is
not created in a vacuum, but rather is shaped by the social, cultural and political context in which it
operates. Therefore, jurisprudence seeks to understand how these various fields intersect with the
law and how they influence the development and application of legal principles.

The study of jurisprudence is also important for understanding the nature of law itself. It explores
questions such as the origin of law, the need for law and the utility of law and seeks to develop a
deeper understanding of how the law operates in practice. This includes studying various legal
systems and traditions and how they have evolved over time.

Justice P.B. Mukherjee noted that jurisprudence is both an intellectual and idealistic abstraction, as
well as a study of human behaviour in society. It encompasses political, social, economic and cultural
ideas and covers the study of individuals in relation to the state and society.

Overall, the scope of jurisprudence is vast and wide-ranging and includes a variety of disciplines and
topics. It is an essential field of study for understanding the legal system and the role of law in society
and it continues to play a critical role in shaping legal theory and practice today.

Difference Between Jurisprudence and Legal Theory

Jurisprudence and legal theory are two related but distinct fields of study. Jurisprudence is a broader
field that encompasses the study of the nature of law and its principles, while legal theory is a subset
of jurisprudence that specifically examines the philosophical content of the law.

As Fitzgerald has pointed out, jurisprudence covers a wider field of study compared to legal theory. It
involves an investigation of abstract, general and theoretical aspects of the law. In contrast, legal
theory seeks to clarify the most fundamental legal concepts and answer the question, “what is law?”.

Legal theory is just one aspect of jurisprudence, which is concerned with the evaluative and
philosophical study of law in terms of its ends, values and goods. It is focused on living law, which is
based on social forces and felt needs and it rejects purely technical, analytical or conceptual
perceptions of the law.

In summary, jurisprudence is a broader field that encompasses legal theory as well as other aspects
of the study of law. Legal theory, on the other hand, is a subset of jurisprudence that specifically
focuses on the philosophical content of the law.
Conclusion

Jurisprudence plays a crucial role in the development of legal systems and societies, as it provides a
theoretical framework for understanding the law and its underlying principles. Through
jurisprudence, we gain knowledge about the basic principles of law and the sources from which they
are derived. It helps us to understand the legal systems of different countries and the cultural, social
and economic factors that shape them.

Furthermore, jurisprudence is not just a theoretical abstraction; it has practical implications as well.
It provides guidance to lawyers, judges and policymakers in making legal decisions that are just and
equitable. Therefore, the study of jurisprudence is essential for anyone who wishes to understand
the law and its role in society.

Overall, jurisprudence is a fascinating and multifaceted field of study that holds much importance in
the vast field of law. It is a subject that requires deep critical thinking and analytical skills, as well as a
broad understanding of the social, political and economic contexts in which the law operates.

what do you understand by customs

In jurisprudence, customs are a set of long-established practices or unwritten rules that have become
obligatory or binding. They are a cultural idea that defines a regular pattern of behaviour that is
considered a characteristic of life in a social system.

A custom, to be valid, must be observed continuously for a very long time without any interruption.
Further, a practice must be supported not only for a very long time, but it must also be supported by
the opinion of the general public and morality. However, every custom need not become law. For
example, the Hindu Marriages Act, 1955 prohibits marriages which are within the prohibited degrees
of relationship. However, the Act still permits marriages within the prohibited degree of the
relationship if there is a proven custom within a certain community.

Custom can simply be explained as those long-established practices or unwritten rules which have
acquired binding or obligatory character.

In ancient societies, the custom was considered as one of the most important sources of law; In fact,
it was considered as the real source of law. With the passage of time and the advent of modern
civilization, the importance of custom as a source of law diminished and other sources such as
judicial precedents and legislation gained importance.

Can Custom be the law: There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is the law. Jurists such as
Austin opposed custom as a law because it did not originate from the will of the sovereign. Jurists
like Savigny consider custom as the main source of law. According to him the real source of law is the
will of the people and not the will of the sovereign. The will of the people has always been reflected
in the custom and traditions of the society. Custom is hence a main source of law.

E.g., In India Saptapadi is an example of customs as a source of law. It is the most important rite of a
Hindu marriage ceremony. The word, Saptapadi means "Seven steps". After tying the Mangalsutra,
the newly-wed couple takes seven steps around the holy fire, which is called Saptapadi. The
customary practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act, 1955.
Kinds of Customs:

Customs can be broadly divided into two classes:

i. Customs without sanction: These kinds of customs are non-obligatory in nature and are
followed because of public opinion.
ii. ii. Customs with sanction: These customs are binding in nature and are enforced by the State.
These customs may further be divided into the following categories:
a.) Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the force of
law. It is recognized and enforced by the courts. Legal custom may be further classified into the
following two types:
• General Customs: These types of customs prevail throughout the territory of the State.
• Local Customs: Local customs are applicable to a part of the State, or a particular region of the
country.
b.) Conventional Customs: Conventional customs are binding on the parties to an agreement.
When two or more persons enter into an agreement related to a trade, it is presumed in law
that they make the contract in accordance with established convention or usage of that trade.
For instance, an agreement between landlord and tenant regarding the payment of the rent will
be governed by convention prevailing in this regard.
Essentials of a valid custom: All customs cannot be accepted as sources of law, nor can all
customs be recognized and enforced by the courts. The jurists and courts have laid down some
essential tests for customs to be recognized as valid sources of law. These tests are summarized
as follows:
1. Antiquity: In order to be legally valid customs should have been in existence for a long time,
even beyond human memory. In England, the year 1189 i.e., the reign of Richard I King of
England has been fixed for the determination of the validity of customs. However, in India, there
is no such time limit for deciding the antiquity of the customs. The only condition is that those
should have been in practice since time immemorial.
2. Continuous: A custom to be valid should have been in continuous practice. It must have been
enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise
doubts about the validity of the same.
3. Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of the
community. It should not have been practised secretly. A custom must be proved to be a matter
of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
4. Reasonableness: A custom must conform to the norms of justice and public utility. A custom,
to be valid, should be based on rationality and reason. If a custom is likely to cause more
inconvenience and mischief than convenience, such a custom will not be valid.
5. Morality: A custom which is immoral or opposed to public policy cannot be a valid custom.
Courts have declared many customs as invalid as they were practised for immoral purpose or
were opposed to public policy. Bombay High Court in the case of Mathura Naikon v. Esu Naekin,
held that, the custom of adopting a girl for immoral purposes is illegal.
6. Status with regard to: In any modern State, when a new legislation is enacted, it is generally
preferred to the custom. Therefore, it is imperative that a custom must not be opposed or
contrary to legislation. Many customs have been abrogated by laws enacted by the legislative
bodies in India. For instance, the customary practice of child marriage has been declared as an
offence. Similarly, adoption laws have been changed by legislation in India.

Importance of custom as a source of law in India:

Custom was the most important source of law in ancient India. Even the British initially adopted the
policy of non-intervention in personal matters of Hindus and Muslims.

After independence and the enactment of the Constitution, the Indian Parliament took many steps
and abrogated many old customary practices by some progressive legislation. Hindu personal laws
were codified and the Hindu Marriage Act, 1955 and the Hindu Adoption Act, 1955, were adopted.
The Constitution of India provided a positive environment for these social changes. After
independence, the importance of custom has definitely diminished as a source of law and judicial
precedent, and legislation has gained a more significant place. A large part of Indian law, especially
personal laws, however, are still governed by the customs i. Hindu Personal Laws ii. Hindu Marriage
Act, 1955 iii. Hindu Succession Act, 1956, iv. Hindu Minority and Guardianship Act. 1956 and v. Hindu
Adoptions and Maintenance Act, 1956

‘Human law contrary to the principles of natural law is not really law at all’

The principle that a human law that is contrary to natural law is not really law at all is a strong natural
law thesis in jurisprudence. This thesis states that a human law that is not in response to compelling
reasons is not properly a law. The phrase "lex iniusta non est lex" which translates to "an unjust law is
no law at all" captures this idea.

In jurisprudence, the main difference between human law and natural law is that human law is
created by societies and can change, while natural law is universal and immutable:

 Human law

Also known as "positive law", this law is created by societies and is based on statute and common
law. Human laws are subject to change and often reflect the prevailing moral and ethical standards of
the time. Examples of human laws include the speed limit for driving and the age at which someone
can legally buy alcohol.

THE NEED FOR HUMAN LAW A few remarks on the need for human law, included in the study of the
relation between the natural law and human law, will be helpful in elucidating Thomas' thought. In
this connection an analogy or comparison with the general need man has for direction, aid, and
encouragement from higher sources may help to develop this concept. In discussing the nature and
extent of sacred doctrine, at the very beginning of the Summa Theologiae Thomas teaches it was
necessary for man's very salvation that a knowledge be revealed by God over and above the purely
philosophical wisdom which is devised by human reason." This is principally true since the fact that
man is directed to God as an end is not naturally known by man. Revelation is necessary to man to
ensure sufficient knowledge on the part of all men to enable them to attain their final end.
"Therefore, in order that the salvation of all men might be brought about more fitly and more surely
it was necessary that they should be taught divine truths by divine revelation. 38 A sacred science,
besides those truths learned through reason, or a revealed science, is a necessary part of God's plan
for man's salvation.

 Natural law

This law is based on moral ideas and is universal in nature. Natural laws are immutable principles
that govern the natural world and are dictated by physics, chemistry, biology, and other
sciences. Natural law is the foundation on which human law should be built, and human law is only
law if it conforms to natural law.

 Natural law theory

This theory originated in the philosophy of Thomas Aquinas in the medieval period. Aquinas believed
that all human laws are derived from natural law, which is a participation in the eternal law of God.

 Natural law as a humanistic approach

Some jurists and judges view natural law as a humanistic approach and a way of looking at things.

 Natural law as a source of rules and principles

Natural law is a set of rules and principles that come from a source that is considered supreme,
rather than from a political authority.

 Natural law as a product of reason

Some jurists believe that natural law is a product of reason.

 Natural law as a source of rights

Natural law can be used to determine rights, such as the right to a just wage or the right to strike.

There are several points of similarity between the need for human law over and above the natural
law and the corresponding need for divine law in addition to the eternal and natural law. Both the
divine positive law of God and the human laws made by man are positive laws and must be
ordinances of reason, proceeding from the reasonable will of God and man respectively. We have
seen that the divine law acts as a supplement to or complement of the eternal law inasmuch as it
deals with an aspect of human life and activity to which our human reason cannot perfectly reach,
namely our supernatural destiny. It also gives particular prescriptions that otherwise could not be
known and adds sanctions. Now the law which man devises for his own government has a similar
role in human affairs over and above the natural law. It first provides directions for man in those
areas of his life that natural law is not able to provide. It gives training in virtue, an important part of
the education of the young that the natural law itself is not able to give. Further, human law spells
out in far more detail just how this virtue is to be exercised. It delineates what activities are right and
just, especially those that lie on the periphery of the natural law where there is little certitude as to
the details of good human life. Just as the divine law makes explicit and certain for man what may be
only implicit and vague as far as the eternal law and natural law are concerned (e.g., how God is to
be worshipped and served), so too human law performs this same valuable function relative to the
natural law, giving more precise and detailed rules governing particular details of his life. Further, as
divine law adds sanction to the eternal law, human law adds the dimension of reward and
punishment to natural law. By force and fear human laws encourage man to the exercise of virtues to
which the natural law alone may not incline him. The divine law by its explicit statements on reward
and punishments adds a new dimension to the eternal law and is a powerful incentive to its
observance. Divine law is needed, then, to enable man to share, as Thomas puts it, more perfectly in
the eternal law. By the divine law we are directed to our supernatural end "in a yet higher way."
Human law enables man to live in conformity with the natural law by a similar process. Inasmuch as
the positive law perfects the natural law by supplementing it and making further determinations of
it, the observance of the positive law enables the citizen to fulfill the precepts of the natural law in a
yet higher way.

The theory of natural law holds that civil laws should be based on morality, ethics, and what is
inherently correct. Some thinkers, such as Mahatma Gandhi and Martin Luther King Jr., supported
the idea that people should obey natural laws over unjust or conflicting human laws.

To define law in terms of what actually takes place in a court of law is to erect a superstructure
without a foundation, to justify practice without a basic norm to ground the practice on and judge it
by. Without a grounding norm there can be no logical basis to determine the difference between a
just law and an unjust one. Nor does it appear that there can be a just authoritative basis giving the
court the power to establish and enforce law in the first place. Perhaps a great deal of the
breakdown of respect for law and order in our society today can be attributed to the separation in
our recent legal practice of law from any basic moral foundation to establish it, guide it, nourish it,
and in general, oversee it. Recent political activity has underscored the need for a moral foundation
to the legal system. A return to a closer harmony between the law and morality, perhaps as
suggested by Thomas Aquinas, is a pressing need for our legal system if it is to survive and fulfill its
divinely appointed function in our governmental system.

The command model of Austin sets the foundation of legal positivism in Jurisprudence

The theory of positivism, also known as legal positivism, is considered to be one of the most
influential schools of thought in the subject of jurisprudence. The emergence of this theory was first
seen in the 18th and 19th centuries and was developed by two well-known philosophers and jurists of
the time, John Austin and Jeremy Bentham. Later, this theory was popularised by many influential
jurists, like Herbert Lionel Adolphus Hart and Joseph Raz. This article briefly explores John Austin’s
Theory of Positivism.

Austin’s theory of positivism is one of the most important contributions to law. The theory sought to
define what law is. He wanted to gain a precise and in-depth understanding of the law and its
fundamental concepts, especially those used for legal reasoning.

Austin chose to exclude all factors that might influence the study of law, which includes concepts
such as history. This allows a person to completely indulge in gaining access to the first principles of
law as they are, without considering whether the law is ‘good’. ‘bad’, or ‘morally worthy.’ This way of
interpreting the law is known as reading ‘Law as it is’ or ‘Positum’ also called ‘Positive Law.’

John Austin continued to emphasize that laws are essentially commands issued by those in power
rather than being based on ideas of justice and morality. He defined law as a rule given by an
authority to guide the behaviour of individuals. His ideas were quite different from the concept of
laws being based on what’s right or wrong.

Austin divided the laws into a few categories. Firstly, he separated laws into those set by God (the
law of God) and those created by humans (human laws). For him, laws that mainly reflected his own
utilitarian beliefs served as the law of God, as he saw them as a principle of utility. When it comes to
human laws, Austin further divides them into two categories proper laws and improper laws.

Proper laws are commands that have been issued by a sovereign to their subordinates or laws
created by individuals who have specific legal rights granted to them. For example, a guardian’s rights
over their ward are proper laws because they come from the authority granting those rights.

On the other hand, improper laws are laws that don’t come from a political sovereign or are not
directly related to man-made legal systems. It includes laws or rules such as ‘rules of a club’, ‘rules for
fashion’, and, to an extent, international law too. Austin referred to this category as “positive
morality.” There’s also a subgroup called “laws by metaphor,” which includes expressions of natural
patterns, like scientific laws.

Austin believed that there are four key elements in positivism, or positive law. These are command,
duty, sanction, and sovereignty. He states that it is a sovereign who makes a command that
imposes a duty, which, if not followed, calls for legal sanction.

Let us understand these features in detail:

1. Sovereign: According to Austin, a sovereign is a political body that has the ultimate authority
and which the people living in its jurisdiction habitually obey. This superior can either be a
single person or a group of individuals. The sovereign is the only source of power and the
creator of laws. It has the power to make laws without any legal or “de jure” limits. However,
there can be practical or “de facto” limits to its power because the effectiveness of its
commands and people’s obedience have territorial limits. The only restrictions on the
sovereign’s power are practical limitations. When applied to a real situation, this concept
means that laws, whether created by a parliament or a similar body, must be followed by the
people, regardless of the nature of the statute.

2. Command: The term command is often referred to as the Command Theory or the
Imperative Theory of Law. This theory defines law as a rule that sets out a general course of
action that has been mandated by an authority that exercises sovereign power. This power
may be exercised through physical force or other forms of compulsion.
 3. Duty: The term duty in this theory represents a legal obligation imposed on the people who
are subjected to the authority or sovereign. Every command that has been given by a
sovereign creates a legal duty for the individual.

4. Legal Sanction: A legal sanction refers to the power the sovereign has to punish and penalize
individuals for not complying with the laws. The fear of facing legal sanctions, as a negative
consequence of disobedience, serves as the primary motivation for people to follow the law
and is an essential part of the theory.

In essence, Austin’s main focus was on comprehending laws as commands that are issued by a
sovereign authority, rather than being based on moral or ethical principles. He believed that the
study of jurisprudence should primarily concern itself with these positive laws and their origins in a
clear, determinable law-giver, such as a sovereign or governing body within a political society.

Criticisms

1. Austin’s view of the sovereign being the creator of laws ignores the fact that the very
foundation of laws lies in the common consciousness of the people and is manifested in
customs. One of the major sources of laws are customs developed in varied cultures around
the world, and this theory overlooks customary law as a whole. Personal laws such as the
Hindu laws or the Muslim laws existed long before the sovereign came into existence.

2. The legal character of a law is evident when it is applied by a court of law in the
administration of justice. Legal sanctions, although created by the “sovereign,” are only used
through the courts. However, courts may sometimes misinterpret a statute or reject a
custom. During this process, the court often establishes precedents or case laws that are
strictly followed in future cases.

3. Austin’s theory does not apply to constitutional law. The sovereign, no matter how powerful
it is, will always come under and be subjected to making laws as per the basic structure of
the constitution. The command of the Constitution and a sovereign cannot have equal
standing because the Constitution is the highest law of the land and it comes before the
state.

4. The definition mainly applies to a monarchical police state that creates laws and has the
authority to harm those who do not comply. In modern times, there are laws and rights for
citizens that empower and enable them. Hence, they cannot be considered commands in
their true sense. For example, the right to vote or not.

5. The most important criticism of this theory lies in the definition of law itself. Law, first and
foremost, is a tool used to achieve justice. Any definition that fails to acknowledge that the
end of the law is justice is considered incomplete.

Conclusion

In summary, John Austin’s theory of legal positivism, particularly his command theory of law, focused
on the idea that laws are commands issued by a sovereign authority and that their validity is
determined solely by their source and the presence of sanctions, without regard for their moral
content. While his theory has been subject to criticism, it played a foundational role in the
development of legal philosophy in the 19th and 20th centuries.

what do you understand by social engineering theory and salient features of Sociological School

Social engineering theory is a manipulation technique that uses psychological manipulation to trick
people into giving away sensitive information or making security mistakes. The goal of social
engineering is to gain control over a computer system or steal personal and financial information.
Social engineering attacks can happen in many ways, including:

 Emails: Emails that appear to be from a trusted coworker requesting sensitive information

 Voicemails: Threatening voicemails that claim to be from the IRS

 Offers: Offers of riches from a foreign potentate

Social engineering attacks are also known as "human hacking" because they exploit human error or
weakness. The term was first used in 1894 by Dutch industrialist J.C. Van Marken.

Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the
Engineers. Engineers are required to use their engineering skill to manufacture new products.
Similarly, social engineers are required to build that type of structure in the society which provides
maximum happiness and minimum friction.

According to Pound, “Law is social engineering which means a balance between the competing
interests in society,” in which applied science is used for resolving individual and social problems. [3]

Social Engineering is the balancing the conflicting interest of Individual and the state with the help of
law. Law is a body of knowledge with the help of law the large part of Social engineering is carried
on. Law is used to solve the conflicting interest and problems in society.

He mentioned that everybody has its own individual interest and considered it supreme over all
other interest. The objective of the law is to create a balance between the interests of the people.
For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and expression’ but on
the other side, State put some restriction on this right. And when the conflict arises between
Individual right and State’s restriction, then the law comes to play its part. And solve the conflict
between the interests.

Society and human life always go together. From childhood to till old age, every human being expects
that his or her desire is to be fulfilled for which their arise conflict of desires or claims which comes
under the term “interest”. It is impossible to fulfill all the desires of a human being. So to fulfill the
desires of maximum human being for the welfare of society the concept of Social Engineering was
emerged and which was coined by Roscoe Pound. Social engineering is based on the theory that laws
are created to shape the society and regulate the people’s behavior. It is an attempt to control the
human conduct through the help of Law.

According to Pound, “Law is social engineering which means a balance between the competing
interests in society,” in which applied science are used for resolving individual and social problems.[2]

For the purpose of maintaining the legal framework and its proper functioning, certain interest needs
to be considered like individual interests, public and social interests, a definition of limits within
which such interests will be recognized and given effect to, and the securing of those interest within
the limits as defined.

When determining the scope and subject matter of the system, the following things have to be done:

• Preparation of an inventory of interests, classifying them,

• Selection of the interests which should be legally recognized,

• Demarcation of the limits of securing the interests so selected,

• Consideration of the means whereby laws might secure the interests when those have been
acknowledged and delimited, and Evolution of the principles of valuation of interests

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

The main subject matter of sociology is Society. Sociology is the study of society, human behavior,
and social changes. And jurisprudence is the study of law and legal aspect of things. The Sociological
school of Jurisprudence advocates that the Law and society are related to each other. This school
argues that the law is a social phenomenon because it has a major impact on society.

August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used by the
Comte and he described Sociology as a positive science of social facts. He said that Society is like an
organism and it could progress when it is guided by Scientific Principles. Thus, he makes great efforts
to use the law as a tool by which human society maintains itself and progresses.

After Comte, many Writers and Jurist tried to connect the society and law together it tried to find a
link between law and sociology.

Meaning of Sociological school of Jurisprudence

The idea of Sociological School is to establish a relation between the Law and society. This school laid
more emphasis on the legal perspective of every problem and every change that take place in
society. Law is a social phenomenon and law has some direct or indirect relation to society.
Sociological School of Jurisprudence focuses on balancing the welfare of state and individual was
realized.

In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of legal
development lies not in legislation, nor in the juristic decision, but in society itself. ”

Sociological School of Jurisprudence studies the relationship between the law and sociology. Every
problem or concept has two different aspects. One is sociological view and other is a legal aspect. For
example Sati.

The Sociological School of Jurisprudence has several salient features, including:

 Focus on law's function

Sociological jurists focus on how law functions, rather than its abstract content. They view law as a
social institution that's created and modified to meet social needs.

 Law's social purpose

Sociological jurists prioritize the social purposes of law over its sanctions and coercive nature. They
believe that law should be aware of the society it operates in and work to fulfill its needs.

 Law's interdependence with society

Sociological jurists view law and society as interdependent. They believe that law should not be
separated from public opinion and wants.

 Law's connection to human experience

Sociological jurists believe that law is based on human experience and designed to meet social
needs.

 Law's connection to other disciplines

Sociological jurists believe that law is connected to other disciplines and has a direct impact on
society.

 Rejection of positivism

Sociological jurists reject positivism, which views law as a system of rules backed by sanctions.

 Synthesis of legal practice and historical approach

Sociological jurists synthesize the analytical method of legal practice with the historical approach to
the study of law.

contribution of Savigny and henry Maine to historical school of jurisprudence:

The Historical School of Jurisprudence is a legal philosophy that emerged in the 19th century,
emphasising the significance of historical and societal context in understanding and shaping legal
systems. This school of thought contends that laws are not abstract, universal principles but are
intricately connected to the customs, traditions and evolving consciousness of a society.

Key figures such as Friedrich Carl von Savigny, Montesquieu and Georg Friedrich Puchta played
pivotal roles in developing this jurisprudential approach. Savigny’s concept of “Volksgeist”
highlighted the collective will of the people in moulding the law, while Montesquieu emphasised the
necessity of adapting laws to changing social and environmental conditions. Puchta refined and
rationalised these ideas.

The Historical School of Jurisprudence acknowledges the value of legislation and codification while
stressing the continuous evolution of laws to meet the needs of a progressing society. It has
significantly enriched our comprehension of law as a dynamic reflection of the human experience
across time, providing valuable insights into the development and transformation of legal systems.

Savigny

Savigny is often credited as the pioneer of the Historical School of Jurisprudence. He argued that the
coherence of a legal system is frequently misunderstood due to a lack of understanding of its history
and origins. According to Savigny, the law is a product of its time, with its origins rooted in human
nature’s predisposition to form societies. It evolves into various forms based on the influences it
encounters.

Savigny believed that the law could not be borrowed from external sources; instead, it primarily
stems from the collective consciousness of the people. He held the view that a state’s law thrives as
its national identity strengthens and withers when national identity weakens within the state.

Friedmann summarised Savigny’s theory on Historical School of Jurisprudence as follows:

Law Grows Like Language: Law, like language, naturally evolves over time.

Not Universally Valid: Law cannot have universal applicability or be constructed solely on rational or
eternal principles.

Sui Generis: Law is unique and has its own national character. It cannot be universally applied and
varies according to the people it governs.

Discovered, Not Made: Law is discovered based on the consciousness, customs and beliefs of the
people.

Savigny’s concept of “Volksgeist” or “national character” implies that law is the result of the general
consciousness and will of the people. It serves as a caution against hasty legislation and the
introduction of radical, abstract ideas into the legal system unless they align with the general will of
the populace.

Savigny essentially advocated that law should not be created through deliberate legislation but
should naturally arise from the collective consciousness of the people.

However, Savigny’s views faced criticism:

Charles Allen: Allen argued against Savigny’s notion that law should be based on customs, asserting
that customs are often driven by the interests of powerful ruling classes rather than the collective
consciousness of the people. For example, the practice of slavery in certain societies was upheld by
powerful classes, not a reflection of common consciousness.

Prof. Stone: Prof. Stone criticised Savigny for neglecting the effectiveness of legislation and planned
legal and social changes. He believed that Savigny placed too much emphasis on the consciousness
of the people. In some cases, effective legislation is necessary to bring about significant social
change, as seen in India’s abolition of Sati and promotion of widow’s remarriage, which were driven
by powerful and effective legislation.

Sir Henry Maine

Sir Henry Maine is recognised as the founder of the English Historical School of Law and he continued
the ideas of the Historical School of Jurisprudence, as established by Savigny and Montesquieu, in
England.

Some of his major works include:

Ancient Law (1861): This was Maine’s first significant work, which explored the development of legal
systems over time.

Village Communities (1871): In this work, Maine delved into the concept of village communities and
their legal and social structures.

Early History of Institutions (1875): This book examined the historical evolution of various
institutions, including legal ones.

Dissertations on Early Law and Custom (1883): Maine’s dissertations further explored the evolution
of early legal systems and customs.

Maine had a deep understanding of the Indian legal system because he served as a law member in
the Council of the Governor-General of India from 1861 to 1869. His ideas incorporated elements
from the theories of Savigny and Montesquieu, while avoiding the abstract and unrealistic aspects of
Romanticism.

Unlike Savigny, Maine favoured legislation and the codification of law. He described the development
of law in four stages:

First Stage: Rulers are believed to act under divine inspiration and laws are made based on their
commands. The king’s judgment is seen as the judgment of God and the king is an executor of divine
judgments rather than a law-maker.

Second Stage: The king’s commands gradually transform into customary law, which prevails among
the ruler or majority class. Custom takes precedence over the king’s authority.

Third Stage: The knowledge and administration of customs shift to a minority class due to the
weakening of the original law-making power. The ruler is replaced by this minority class, which gains
control over the law.

Fourth Stage: In the final stage, the law is codified and officially promulgated.

Maine classified societies into two categories:

Static Societies: These societies do not progress beyond the era of codified laws. They do not evolve
their legal structures further.

Progressive Societies: These societies continue to progress beyond the codification stage. They
develop their legal systems using instruments such as legal fiction, equity and legislation:
Legal Fiction: Legal fiction allows changes in the law to align with societal needs without altering the
letter of the law. However, it can make the law complex and challenging to understand.

Equity: Maine described equity as a set of rules existing alongside the original civil law, founded on
distinct principles. Equity helps to address rigidity and injustice in the legal system.

Legislation: According to Maine, legislation is the most effective and desirable method of legal
change. Laws are enacted officially and become operative through legislation.

Conclusion

The Historical School of Jurisprudence, spearheaded by influential thinkers such as Savigny,

Montesquieu and Puchta, has left an indelible mark on legal philosophy. Historical School of
Jurisprudence emphasises the historical and societal context in which laws develop and evolve. It
asserts that laws are not abstract principles but are deeply rooted in the customs, traditions and
consciousness of the people.

Savigny’s concept of “Volksgeist” underscored the importance of the collective will of the people in
shaping the law. Montesquieu highlighted the need for legal adaptation to changing social and
environmental conditions. Puchta’s contributions refined and rationalised these ideas.

The Historical School of Jurisprudence’s influence extends to recognising the value of legislation and
codification while stressing the ongoing evolution of laws to meet the needs of a progressing society.
In essence, this school has enriched our understanding of law as a dynamic reflection of the human
experience throughout history.

state the essential elements and theories of legal rights jurisprudence, relationship between legal
rights & duty

Historically when most of the world was under monarchy, theory of divine right was followed when
one divine Supreme Being was the source of the rights of individuals. Among other philosophers
John Locke considered rights as inalienable and naturally possessed by every man by birth, in his
opinion every man has three natural rights; right to life, right to liberty and right to estate. It is to a
great extent agreed by philosophers that rights are derived from law and in order to determine the
origin of rights, one must find the origins of law.

According to the Supreme Court of India legal right has been defined in the case of S tate of
Rajasthan v. Union of India AIR (1977) as: “In strict sense, legal rights are correlatives of legal duties
and are defined as interests whom the law protects by imposing corresponding duties on others. But
in a generic sense, the word “right” is used to mean an immunity from the legal power of another,
immunity is exemption from the power of another in the same way as liberty is exemption from the
right of another, immunity, in short, is no subjection.” Legal rights are, clearly, rights which exist
under the rules of legal systems or by virtue of decisions of suitably authoritative bodies within.

MAIN THEORIES Of LEGAL RIGHTS ARE:-

1. Protection theory of right – it is the law which creates, protects and recognizes the rights so
created. Thus, one of the characteristics feature of a legal right is its recognition. It is recognized by a
legal system and is enforced by a legal process. However, this theory is subject to certain
qualifications-

 The law will not always enforce a right, but grant the injured party damages by providing
remedy.

 Sometimes law itself creates a disability in so far as the enforcement of a legal right is
concerned.
  Sometimes a legal system lacks machinery for the enforcement of its decisions.

So, in view of the above difficulties it would be better to define a legal right in terms of recognition
and protection by the legal order.

2. Will theory of right:-“rights are inherent attribute of human will.” The right to self – expression
and self – assertion is a part of individual’s freedom which is inseparable of man and his individuality.
Man would feel helpless in the absence of such natural freedom and liberty. All-natural rights are
essential for the development of man in his life provided, man would not use these rights for illegal
things. Will theory was extended by the doctrine of natural rights, which declared that there were
certain spheres of personal life with which the state could not legally interfere. Supporters of this
theory are Hegal, Kant, Locke and Hume. On the other hand, Duguit criticized that will is not an
essential element in law. He says that there is over emphasis on the right of the individual rather
than on his obligations. He calls this theory of subjective right as a mere physical abstraction.

3. Interest theory of right

There are some jurists who say, that fundamental basis of right is an “interest”. For example- a baby
who is born and is one year old has certain rights according to law because it is known that a person
is given right from the day when he/ she is in their mother’s womb. But it cannot be said that they
have a “will”. What a right protects is not a will or choice, but some interest for the benefit of the
person who holds that right. An interest may be said to be “a claim or want of an individual or group
of individuals which that individual or group wishes to satisfy. According to C.K Allen, “essence of
legal right seems to be not legally guaranteed power by itself, nor legally protected interest by itself,
but the legally guaranteed power to realize an interest”.

So, there are various rights available to a human being since its birth. It is totally dependent on the
humans to how to use that right in respect of his welfare. As we have seen there is 3 kinds of rights
according to jurisprudence. And also, there are various kinds of legal rights upon which person can
take remedy when there is violation of the same. The need of the hour is to educate the people and
inform them about their rights and with the view of the government, it is time when government
should do certain changes in their mechanism so that there can be speedy remedy given to plaintiff.

Legal Duty – It is termed as an obligation which arises out of some law. These are the responsibilities
which ask us to act according to law. Correlation of rights and duties has always been a debatable
topic. There are different theories propounded by different scholars.

relation between Rights and Duties

The two most important views regarding whether the rights and duties are correlated or not are
Salmond’s view and Austin’s view.

According to Salmond “no right can exist without any corresponding duty and vice versa.” He
believed that every duty which is being performed is in respect of a correlated right attached to it.

On the Contrary what Austin has to say is that all the types of duties are not similar and they are
divided between relative and absolute duty. Relative duties are the one which have corresponding
rights whereas Absolute duties are the one which are independent and have no rights correlated to
them. For example, not to commit suicide, is one of your absolute duty, there is no corresponding
right here.

According to Austin there are a bunch of duties which fall under absolute duties. Such as duties to
self, duties to sovereign etc. These are certain duties which are to be followed and have no
corresponding relations with rights. But Austin’s view has been criticized a lot lately. Salmond has
concluded that duties towards self becomes part of criminal law and thus becomes legal duty and
duties to sovereign/state are always corresponding to the rights which are granted to us by the
states.

And The most accepted view regarding rights and duties over the time is that they are necessarily
correlative. They are the two most inevitable components existing together in present day society.

 As we can describe a right as a power or privilege conferred by law which people enjoy and
on the other hand duty is a burden imposed by law which commands obligeance for the
good of society. And in order to enjoy a right properly there is a need for other people to
consider and respect it. Hence in this way we can say that enjoyment of right by one person
grants duty on another person to respect it. Thus they work in corollary. They act as two
phases of a single coin. For example if the state has guaranteed right to life, the

 Rights act as an interest and legal rights become legal interests and these legal interests are
backed by law and in this case a duty is imparted on law to protect these rights.

 The state guarantees certain rights to all of its individuals to promote welfare of the society
and protection of such rights is the state’s duty. Also when state is guaranteeing rights it
becomes a corresponding duty of the citizens to respect the state and do not create
hindrance in the functioning of state. It becomes an individual’s duty to serve the state in his
whole capacity.

understand by Corporate Personality

Corporate personality in Jurisprudence provides a corporation with the status of a legal person
distinct from its shareholders. This concept was solidified in the case of Salomon v. Salomon & Co.
Ltd. (1897), where the House of Lords established that a corporation has a separate legal identity
from its shareholders. This means that the company can own property, enter into contracts and sue
or be sued in its own name.

For a corporate entity to be recognised as having corporate personality, three conditions must
typically be met. Firstly, there must be an organisation formed by individuals with a specific purpose.
Secondly, the entity must have different departments or organs that can carry out corporate
functions. Lastly, the organisation must have a ‘will’ as per legal fiction, meaning it can make
decisions and act in its own right.

One of the key benefits of corporate personality is that it shields shareholders from personal liability
for the company’s actions. Even if a shareholder owns a significant portion of the company’s shares,
they are not personally responsible for the company’s debts or other obligations. Similarly, the
company is not liable for the personal actions of its shareholders.

While shareholders are not agents or trustees of the company, they can collectively make decisions
that represent the company’s ‘will’ in general meetings. However, they cannot directly bind the
company through their individual actions outside of the company’s affairs.

The legal recognition of a corporation as a juristic person occurs upon its incorporation. Once
incorporated, the company has the same rights and obligations as any other legal person. This means
it can engage in activities such as opening bank accounts, entering contracts and being held
accountable for its actions in legal proceedings.

It is important to note that while corporations are considered legal persons, they do not possess all
the rights and liabilities of natural persons. For example, corporations cannot vote or hold public
office. However, they are capable of having rights and liabilities, just like natural persons, once they
are legally recognised as having corporate personality.
Privy Council in the landmark case of The Citizen’s Life Assurance Company v. Brown (1904), where
ruled that corporations can also be held accountable for their actions indicating malicious intent.
Thus, ‘artificial’, ‘juristic’ or ‘legal’ persons such as corporate entities and organisations or
associations of people are capable of having rights and liabilities just as any natural person, once
legally recognised.

Features of Corporate Personality in Jurisprudence

Corporate personality in Jurisprudence grants a corporation a unique legal status separate from its
members, imbuing it with certain distinct features:

 Artificial Personhood: Corporate personality bestows fictitious or artificial personhood upon

corporations, enabling them to operate independently from their shareholders. This allows
corporations to conduct business activities, such as financial transactions, in their own name.

 Rights and Obligations: Upon incorporation, a company acquires a separate legal personality,
distinct from its members and shareholders. This separate identity enables corporations to
possess their own rights and obligations as recognised legal entities.

 Independent Operations: Corporate personality enables companies to function

independently from their shareholders and members. This separation creates a distinct legal
identity, allowing corporations to enter into contracts, own property and engage in legal
proceedings in their own right.

 Collective Will: While corporations have their own legal personality, they require natural
persons to act as their agents or representatives. The collective will of the company is
determined by the natural persons forming it, such as its members and shareholders, who
express their decisions through general meetings and the use of a common seal.

Types of Corporate Personality

Corporate personalities are of two main types: Corporation Aggregate and Corporation Sole.

Corporation Aggregate

This type of corporate personality is more common and involves the association of several individuals
for a common purpose. Corporations aggregate are formed by a group of individuals, known as
members or shareholders, who come together to achieve specific objectives. Examples include
companies, partnerships and associations. In a corporation aggregate, the members collectively own
the corporation and decisions are typically made through voting in general meetings.

Corporation Sole

In contrast, a corporation sole is a less common form of corporate personality that involves a single
individual, such as a monarch, bishop or religious leader, who holds a corporate office. The individual
holds the office in a representative capacity and upon their death or resignation, the office passes to
their successor. Corporation sole is often found in religious institutions, where the officeholder
represents the continuity of the institution’s leadership.

Both types of corporate personality have distinct characteristics and serve different purposes.
Corporation aggregate allows for collective ownership and decision-making, while corporation sole
represents a continuity of leadership within a single individual. Understanding these types of
corporate personality is essential for comprehending the legal framework within which corporations
operate and the rights and obligations associated with each type.

Rights and Duties of Corporate Personality in Jurisprudence

In jurisprudence, corporate personality refers to the legal recognition of a corporation as a separate
legal entity from its owners, with its own rights, duties and liabilities. Understanding the rights and
duties of corporate personality is essential in corporate law and governance. Here are the key
aspects:

Rights of Corporate Personality

 Legal Capacity: Corporations have the legal capacity to enter into contracts, own property
and sue or be sued in their own name. This enables them to engage in various business
activities and transactions.

 Limited Liability: One of the primary benefits of corporate personality is limited liability.
Shareholders are typically not personally liable for the debts and obligations of the
corporation, protecting their personal assets.

 Perpetual Succession: A corporation has perpetual succession, meaning it can continue to

exist even if its shareholders or directors change. This allows for long-term planning and
continuity in business operations.

 Borrowing Powers: Corporations have the power to borrow money, issue bonds or
debentures and raise capital through various financial instruments. This enables them to
fund their operations and expansion.

 Ownership of Property: Corporations can own property, both tangible (such as buildings and
equipment) and intangible (such as intellectual property rights). This allows them to use and
benefit from assets in their business activities.

Duties of Corporate Personality

 Compliance with Laws: Corporations must comply with all relevant laws and regulations
governing their operations. This includes corporate governance, tax laws and industry-
specific regulations.

 Fiduciary Duties: Directors and officers of a corporation have fiduciary duties to act in the
best interests of the company and its shareholders. This includes duties of loyalty, care and
good faith.

 Accountability: Corporations are accountable to their shareholders, board of directors and

other stakeholders. They must maintain accurate financial records and disclose relevant
information to shareholders and regulators.

 Social Responsibility: There is a growing expectation for corporations to act responsibly

towards society and the environment. This includes ethical business practices, corporate
social responsibility initiatives and sustainability efforts.

 Respect for Corporate Form: It is essential for corporations to respect the separate legal
identity of the corporation and not misuse it for personal gain or to evade legal obligations.

Status of Corporate Personality in Jurisprudence

In jurisprudence, the status of corporate personality is well-established and widely recognised.

Corporations are considered legal persons with the capacity to enter into contracts, own property,
sue and be sued and engage in various other legal activities. This recognition allows corporations to
operate as separate entities from their shareholders, with their own rights, duties and liabilities.

The concept of corporate personality is rooted in common law and has been further developed
through statutory laws and judicial decisions. Courts generally uphold the principle of corporate
personality, treating corporations as distinct entities from their owners, directors and officers. This
separation is crucial for ensuring limited liability and providing a framework for corporate
governance.

However, there are instances where courts may pierce the corporate veil, disregarding the separate
legal personality of a corporation. This typically occurs when there is evidence of fraud, wrongdoing
or an abuse of the corporate form to evade legal obligations. Overall, the status of corporate
personality in jurisprudence is well-established, providing a solid legal foundation for the operation
of corporations.

Conclusion

Corporate personality is a fundamental concept in jurisprudence that underpins the operation of

corporations. It provides a framework for corporate governance, protects shareholders from
personal liability and promotes investment and economic growth. While the concept is well-
established, it is subject to evolving legal principles and judicial interpretations, reflecting the
changing nature of corporate law and practice.