The study of jurisprudence started with the Romans.

The term Jurisprudence is derived from Latin word 'Jurisprudentia' which means either

"Knowledge of Law" or "Skill of law".

The word "juris" means law and prudentia mean knowledge, science or skill.
 DEFINITIONS OF JURISPRUDENCE
1. Ulpian (Roman Jurist) “Jurisprudence is the observation of things human and divine, knowledge of just
and unjust.”

2. John Austin- father of modern or English Jurisprudence

✔ “Jurisprudence is the Philosophy of positive law”.
✔ Positive law means law made by sovereign.
✔ first jurist to make jurisprudence as a science.
✔ Divide jurisprudence, (1) General Jurisprudence & (2) Particular Jurisprudence.

3. Salmond “Jurisprudence is the science of the first principles of civil law.” There are two types of
jurisprudence (1) Generic Jurisprudence and (2) Specific Jurisprudence “Jurisprudence is the science of
law. . ..”

True law is the law that exists in politically organised society.

Common law is essentially a Judge Made Law.

4. Arnold:- Jurisprudence as the shinning but unfulfilled dream of a world governed by reason.

5. Radcliffe:- Jurisprudence is a part of history , a part of economics & sociology, a part of ethics & a
philosophy of life.

6. Paton:- Jurisprudence is a particular method of study not of the law of any one country but of the general
notion of law itself.

7. Blackstone:- Jurisprudence is the study of science to be born.

8. Bentham:- Jurisprudence is the analysis of formal structure of law.

9. Keelson:- systematic arrangement of general principles of law.

10. R.W.M. Dias:- the study of Jurisprudence provides an opportunity for the lawyer to bring theory and life
into focus for it concerns human thoughts in relation to social existence.

11. Wurzel:- Jurisprudence was the first of social science to be born.

 12. Holland “Jurisprudence is the formal science of positive law.” Formal Science means ‘it deals not with

concrete details but only with the fundamental (basic) principles underlying them.

13. Dr. Allen “Jurisprudence is the scientific synthesis of the essential principles of law.”

14. Keetan “Jurisprudence is the study and systemic arrangement of the general principles of law.”

15. HLA Hart: Jurisprudence is the scientific study of Union of rules Primary and Secondary Rules. Primary rules
means rules which imposes duty. Secondary Rules means rules which confers powers whereby new duties may
be created and defective duties may be varied or repealed.

16. Julius Stone Jurisprudence is the lawyer’s extraversion.

i. Some Reflections in Jurisprudence

ii. Province & Function of law
iii. Legal System & Lawyers Reasoning in which he define Lawyers Extraversion
iv. Human law & Human Justice
17. Laski: Jurisprudence is eyes of law.

18. E.W. Patterson: Jurisprudence as a body of ordered knowledge which deals with a particular species of law.

Jurisprudence is a social science.

 SCHOOLS OF JURISPRUDENCE
Different approaches to the treatment of jurisprudence are represented by its various schools of thoughts.
Salmond preferred three schools: 1. Analytical (dogmatic), 2. Historical and 3. ethical (legal exposition) School.

SCHOOLS OF JURISPRUDENCE

1. Natural school

2. Philosophical school

3. Historical school

4. Analytical school

5. Realistic school

6. Sociological school
 VARIOUS SCHOOLS OF JURISPRUDENCE
Analytical schools Historical schools Philosophical schools Sociological schools Natural schools Realistic schools

Bentham Edmund Burke Hugo Grotius Montesquieu Ancient period- Karl Llewellyn
Heraclitus Jerome frank
Austin Savigny Kant August Compte Socrates Holmes
Hart Henry Maine Fichte Herbert Spencer Ploto Thurman Arnold
Aristotle
Kelson Vinogradoff Hegael Ihering Cicero
Fedrick Pollok Kohler Erlich Thomas Acquinas
Period of Renaissance-
Stammler Duguit Hugo Grrotius
Francois Geny Francois Geny Hobbes
Locke
Del Vecchio Roscoe Pound Rousseau
Kant
20th Century Revival of
natural law
Stammler
John Rawls
Francois Geny
Jerome Hall
Fuller
 Analytical/ Imperative/Teleological/Positive School

To deal with law as it exists in the present form.

The exponents of analytical school consider that the most important aspect of law is its relation to the state.

The chief exponents-

In England - Bentham, Austin, Holland, Salmond, Sheldon, Amos, Markby

U.S.- Gray, Hohfelf, Kocourck

European Continent – kalson, korkunos

 (a) Jeremy Bentham (1748-1832)
The founder of Analytical Schools or Positivism,
The "Father of Analytical positivism"
He was supporter of codified law (legislation).
Bentham distinguished expositorial jurisprudence (i.e. what the law is) from
censorial jurisprudence (i.e. what the law ought to be).
His concept of law is imperative one i.e. "law is assemblage of signs, declarations of
volition conceived or adopted by sovereign in a State".
He supported the economic principle of Laissez faire (minimum interference of State
in the economic activities of individuals),
he propounded the principle of utilitarianism: 'The proper end of every law is the
promotion of the greatest happiness of the greatest number.'
He defined 'utility' as 'the property or tendency of a thing to prevent some evil ('pain')
or procure some good ('pleasure').
 A right with me is a child of law……a natural right is a son that never had a father.
Legislation has the same center with morals but it has not same circumstances.
J.S. Mill agreed with Bentham’s view regarding utilitarianism- “the happiness of all concerned”

Bentham’s Utilitarianism:-
Pleasure & Pain Theory
Theory of hedonism
Principle of Utility
felicific Calculus
 BENTHAM FAMOUS BOOKS

1. Fragment on Government 1776

2. Introduction to the Principles of Morals
& Legislation in 1789
3. Rationale of Judicial Evidence 1827
4. The Limit of Jurisprudence Defined was
published after his death in 1945.
5. Of Laws in General.
6. Theory of Legislation
Bentham
Austin
 (b) John Austin(1790-1859)
"Father of English Jurisprudence".

John Austin (1790-1859) was a lecturer in London University.

He confined his study only to the Positive Law and applied analytical method for the
purpose.

By Positive law Austin means “Law properly so called as distinguished from morals & other
laws which he described as laws improperly so called.”

Divide jurisprudence, (1) General Jurisprudence & (2) Particular Jurisprudence

According to him, so-called 'proper law' includes: Law of God, Human laws and Positive
laws. The law 'improperly' so-called includes: Laws by analogy and Laws by metaphor.

According to him, "positive morality" consists of: Law not set by men (as political superior)
or in pursuance of a legal right, and, laws by analogy as laws of fashion. The improper laws
lacked sanction of the State.

Austin’s Positive Morality- 1) International law 2) Custom Without Sanction

 Austin’s Imperative Theory of Law- Austin defined law as 'a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him'.
Every law, properly so called, must have three elements of
1. command,
2. sovereign. and
3. Sanction
He confined his study only to the Positive Law - Jus positivism ('Law, simply and strictly so called': 'Law
set by political superiors to political inferiors'). Therefore, the school founded by him is called by various
names 'analytical', 'positivism', 'analytical positivism'.

Allen called Austin’s School as “Imperative”.

Also calls Austin’s as Palm Tree in Jurisprudence.
The concept of Austin’s Sovereignty is influenced by Hobbs.
 Books:-

The Province of Jurisprudence Determined (Based

On Lectures).

‘A Plea for the Constitution’ which was in response

to Prof. Gray work ‘On Parliamentary Government’

Lectures on Jurisprudence or the Philosophy of

Positive law.
Father of Contemporary Positivism

According to Hart there exists Primary and Secondary rules along with the rules
recognizing Human reasoning and Morality.

According to him, Law is a system of two types of rules the union of which provides key
to the science of jurisprudence. These rules are called primary and secondary rules.

Primary rule lays down standards of behavior or impose duties (viz. international law)
while the secondary rule are those by which the primary rules may be ascertained,
introduced, eliminated or varied. The secondary rules are power-conferring rules - public
or private (e.g. Statutes, Constitution).

From these are derived the 'rules of recognition' which provide authoritative criteria
for identifying primary rules of obligation. The 'Ultimate rule of recognition' is the
ultimate criterion of validity of a legal order.
Rule of Recognition- Hart positivism explains the existence of law with reference to the rule of recognition
binding force of which depends upon its acceptance.

Harts View on Law & Morality- Unlike Austin & Kelson, Hart contended that it is necessary for law & morality
to have certain elements of natural law as a logical necessity. Law & morality are complementary &
supplementary to each other.

Hart- where there is law, there human conduct is made in some sense non-optional or obligatory.

Hart describe law as Soft Positivism.

The union of the primary and secondary rules constitutes the core of a legal system. A society governed by primary
rules only (viz. a simple primitive society) is static, uncertain and inefficient. The legal order must be an effective
legal order i.e. people generally must obey primary rules, and the officials must observe secondary rules. These
two conditions are necessary and sufficient for the existence of a legal system. Hart views "laws as a one-way
projection of authority, from the officials down and constructs a theory of law which gives the central role to
official behaviour,"
 Herbert Lionel Adolphus Hart
HLA Hart

Books:-
1. Causation in the Law
2. The Concept of Law was written in criticism of
Austin’s theory
3. Law, Liberty & Morality
4. Morality of the Criminal Law
5. Punishment & Responsibility
6. Definition & Theory in Jurisprudence
To download pdf join channel-
 Hans Keisen (1881-1973)
Born- Austria in 1881
Professor of Law at the Vienna University

Pure Theory of Law- Kelson claimed that his pure theory was applicable to all places & at all
times. It must be free from ethics, politics, sociology, history etc. Though he did not deny the value
of these branches of knowledge.

Law as Normative Science:- The laws of natural science are capable of being accurately
described determined and discovered in the form of “is” (das sein) which is an essential
characteristics of all natural sciences. But the science of law is knowledge of what law “ought to
be”(das sollen). It is the ought character which provides normative character to law.

The Groundnorm Theory-

Kelson refused to separate law from the state & held that “Law is the will of the state” (law & state are the same)
(Law & state are two sides of same coin).

Criticism –

Friedman:- Kalson groundnorm as a fiction incapable of being traced to legal reality.

Julious Sone- It is Difficult to see what the pure theory of law can contribute to a system which it assumes to be
law, but which is derived from a basis norm which it cannot find.
Lauterpacht- By giving precedent International law over municipal law Kelson has allowed back door entry to the
natural law.
Laski- Kelson theory is futile intellectual exercise. It has no practical significance in real life.
1. Austrian Constitution
2. General Theory of Law & State
3. What is Justice
4. Principles of International Law
5. Pure Theory Of Law
6. Introduction to the Problem of Legal theory
 HISTORICAL SCHOOL
How did law come to be.
Purpose of Historian School- The past often explains the present vividly.
“Law as a legacy of the Past & product of custom, traditions and beliefs prevalent in different
communities.”
Allen- the historical movement in jurisprudence maybe called the revolt of fact against the fancy.
Montesquieu - the first jurist of this school - in his Espirit des Lois (Spirit of the Laws) said that all laws
should have the basis of historical observations.
Maine described Montesquieu as the first jurist who proceeded on historical method. Montesquieu
emphasized that, "Laws of a particular nation should be determined by its national characteristics and must
bear relation to the climate of each country."
According to Hugo, law is the result of the habits and ways of the people themselves, acquired through
necessities, accidents and other processes.
• Montesque

• Edmund Burke

• Savigny

• Henry Maine
copy link to watch complete video
• Vinogradoff https://www.youtube.com/watch?v=uC1ZPg
kraLI

• Fedrick Pollok
 Edmund Burke
Reflection on the revolution in France 1790

Highlighted the importance of custom & tradition in

the growth of law.

Evolution of law as an organic process and an

expression of common beliefs faith and practices of
the community as a whole.
 Savigny (1779-1861)
Friedrich Carl Von Savigny was a German jurist.
"Law grows with the growth, and strengthens with the strength of the people, and finally
dies away as the nation loses its nationality".
According to Savigny, law is not an 'artiricial lifeless mechanical device.' His work on Law of
Possession (Das Recht des Bestiges) is said to be the starting point of his historical
jurisprudence. Savigny's view was that law is closely connected with the people and it closely
contained the germs of future sociological theory.
Dr Allen called Savigny as "Darwinian before Darwin and a sociologist before sociologists."
Savigny considered the growth of law as a continuous and unbreakable process bound by
common cultural traditions and beliefs.
Volksgeist as a source of law.
The origin of law lies in the popular spirit of the people which Savigny termed as Volksgeist.
His theory of Volksgeist interpreted jurisprudence in terms of people’s will.
Law is found not made.

Law is the result of the genius of people.

Savigny approach to law also gives birth to comparative jurisprudence.

Law has its source in the general consciousness of the people.

Law is not universal in nature like language it varies with people and ages.

Roscue pound criticize savigny for his Juristic pessimism.

Click on the link to watch complete video-

https://www.youtube.com/watch?v=uC1ZPgkraLI
Complete Jurisprudence for UP PCJ J, UK Judiciary in One Class | Vishal Sir
(youtube.com)
 Books:-

History of Roman Law in Middle Ages

System of Modern Roman Law
Law of Possession (Das Recht des Bestiges)
On the Vocation (Vom Beruf, 1814)
 Puchta (1798-1856)

• Puchta was savigny discipline.

• Neither the state nor the people alone are a source of law but law comes
into existence as a result of conflict between general and individual will.
• Law is an expression of popular activity rather than that of national
interest.
 Sir Henry Maine (1822-1888)
“Social Darwinist”
Historical comparative Method or Anthropological Method
Comparative method of study of law introduces by Maine.
Unlike Savigny, he favoured legislation and codification.
"The penal law of ancient communities is not the law of crimes but the law of torts."
Maine was the law Member of the central Legislative Council in India During 1863-1869 as a
successor of Lord Macaulay.

Status to Contract:- Maine to conclude that Movement of progressive societies has hitherto
been from status to contract.
Reversal of trend from Contract to status.
According to him, there are four stages of development of law: (i) Law made by the
commands of the ruler, (ii) Crystallization of commands into customary law, (iii)
Administration of customs by priests, etc., and, (iv) Codification of law.
Ancient Law

Village Communities

Early history of Institutions

Dissertation on early law & Custom

 Vinogradoff
Vinogradoff emphasized that law is not a command of the State but it is an expression of
the general will of the people.
 Sir Federick Pollack

Pollock did not consider International law as mere positive morality but treated
it as a law proper which was based on mutual relation of the state.
 Philosophical or Ethical School
The aim of the school is go to the purpose of law.

The ethical or philosophical school expounds the first principle of law as it ought to be. It is neither
concerned with the historical past nor with the analytical present but with the future of law as it ought to be.

Law as a product of human reason.

Philosophical School concerned with the theory of Justice in its relation to law.

Law, in order to command respect from the society, must have an element of ethical value so that it may
achieve the ideals for which it was meant.

The ethical or philosophical school considers law, as the means by which individual will is harmonized with
the general will of the community.
Salmond- "Philosophical jurisprudence is the common ground of moral and legal philosophy of ethics and
jurisprudence"

Friedman called philosophical school as "philosophical historism".

The metaphysical methods are employed in this school. The greatest contributors to the philosophical school
were: Bacon, Grotius, Fichte, Hegel, Stammler, and, Kant.
Hugo Grotius
Kant
Fichte
Hegael
Kohler
Stammler
Francois Geny
Del Vecchio
 Hugo Grotious (1583-1645)

Dutch
Father of Philosophical School
De iure belli ac pacis (English: On the Law of War and Peace) is a 1625 book written
by Hugo Grotius on the legal status of war.
Father of International law
He said that the rules of human conduct emerge from right reason and, therefore,
they receive public support of the community.
Natural Justice is the Justice in deed & truth.
Law of reason as natural law.
 Immanuel Kant (1724-1804)
Kant (1724-1804) developed his metaphysical method and held that ethics and law
is not one and the same thing.

Ethics deals with the inner life of the individual; law, on the other hand, regulates
his external conduct.

In his view, "law is the sum total of the conditions under which the personal wishes
of man can be reconciled with the personal wishes of another man in accordance
with a general law of freedom."

His doctrine of "freedom of will' emphasized that legislation could be effective

only when it represents the united will of the people.

Innate right

Transcendental idealism
His concept of 'Categorical Imperative' is the basis of his moral and legal theory.

He stated that 'a man should act in such a way that his maximum actions could be made the maximum of a
general action.' But he distinguished morality from law.

His legal theory is basically modelled on 'what the law ought to be.'

He considered 'compulsion' as an essential element of law and a right is nothing but a power to compel. However,
law should've an element of justness.

He upheld 'freedom of speech' as a pre-requisite of a good government.

1. Critique of Pure Reason

2. Philosophy of Law

3. Perpetual Peace

4. Freedom of will

5. Lectures on Ethics
 Fichte

Fichte deduced the legal theory from the inherent self-consciousness of a

reasonable man.

It is the moral duty of every person to respect the liberty of others. The State
should protect only those rights of individuals which are necessary conditions of
his personal existence.

He justified State's right to punish as a retaliatory measure.

 Hegel (1770-1831)

Georg Wilhelm Friedrich Hegel

German philosopher

Philosophy of Right
Hegel (1770-1831) carried further Kant's doctrine of freedom of will.

In his opinion, the purpose of making of law is to reconcile the conflicting egos in society.
This is achieved by the merger of self centered consciousness of each ego resulting into
universal consciousness.

According to him, various manifestations of social life including law, are the product of an
"evolutionary process" which operates itself in form of thesis, antithesis and synthesis.

State and law both are the evolutionary product of reason.

Hegel has been described as one of the greatest and most dangerous "dilettantes in legal
philosophy."
 Kohler
Book- 'Philosophy of Law‘

Doctrine of Moral Reasoning

Jural postulates which was supported by Roscue Pound in his social reasoning.

Kohler did not agree with the Hegel's view that there is an eternal law of universal

body of legal institutions uniformly suited to all the societies. What may be good for

one society may not be nesserly so far the other. He emphasized that human society

is ever changing and progressing and law is a means to respond favorably to this

changes.
 Rudolf Stammler (1856-1938)

Stammler (a neo-Kantian) held the view that the two legal systems, namely, historical and
philosophical, could work together in fulfillment of the social ideal.

According to him, law is 'just' if it furthers social ideal i.e. harmonizes individual interests
with those of society.

In his 'The Theory of Justice', he wrote: "There is not a single rule of

law the positive content of which can be fixed a priori."

He, however, believed that a theory of 'just' law may well be

developed simultaneously with the theory of analytical positivism
 Del Vecchio

Formal Bases of Law

Del Vecchio believed that human mind could discover rules of justice unaided by positive
law. For him, justice is an ideal concept postulated by the inner conscience of man and a
quest for equal freedom of mankind.
Francois Grey

Gueist

Gustav Radbrunch
Sociological School
R. Pound rightly pointed out, "the sociological jurists look more for the working of law than for its abstract
content."

Roscoe Pound can be said to be the father of sociological jurisprudence in America.

Montesquieu is the forerunner of the sociological method in jurisprudence.

Other noted jurists of this school includes:

Auguste Compte,

Herbert Spencer,

Rudolph Von Ihering,

Ehrlich,

Duguit,

Francois Geny.
 Montesquieu

Montesquieu is the forerunner of the sociological method in jurisprudence.

“The Spirit of law”

 Auguste Compte
Organic Concept of Society

Auguste Compte: He is regarded as the founding father of science of sociology.

He applied scientific methods to the study of socialism which has been termed as 'scientific
positivism'.

According to him, society, like any other organism, can progress when it is guided by scientific
principles.

Further, it is the 'society' and not the 'individual' which should be the focal point of law ('Law as a
Fact').
The only right which man can possess is the right always to do his duty.
 Herbert Spencer

Herbert Spencer: He gave a scientific exposition to the "organic theory of society".

He considered law nothing more than a "hardened custom".

The purpose of law is to resolve the conflicting interests of the individuals in the society.
 Rudolph Von Ihering

Friedman called him “father of Modern sociological jurisprudence.”

Friedman - His system combined Austinian positivism with Bentham
utilitarianism.
'Law is a coercion organized in a set form by the State', 'Law is the guarantee of
the conditions of life of society, assured by the State's power of constraint'.

Ihering legal philosophy is known as “Jurisprudence of interest”

Social Utilitarianism – law is a means to social ends.

Ihreing rejected the idea of a universal law for all times holding that it is no better
than that medical treatment should be the same for all patients.
'The Spirit of Roman Law in the Various Stages of Its Development'.

'Law as a Means to an End‘

The struggle for law

 Eugen Erlich
Book- Living Law
Allen – Erlich theory has been called “Megalomaniac Jurisprudence.”

Eugen Erlich
 Leon Duguit

His theory of "social solidarity" was based on the fact that interdependence of man is the essence of society.

He developed the concept of 'Syndicalism'.

He said: "Law is rule which men possess not by virtue of any high principle whatever good,
interest, or - happiness but by virtue and perforce of facts, because they live in society and can
live in society."

Duguit "pushed natural law out through the door and let it come by window.“

Law consist of duty not rights.

There is no distinction between public law and private law.

He contended that legislators do not make law but merely give expression to judicial norms formulated by the
consciousness of the social group.
 Francois Geny
His sociological approach emphasized 'free scientific research' as a solution to
social problems.

He gave primacy to courts; a judge should try to find out the solution freely and scientifically.

Method & Interpretation of sources of law

Science and techniques of law

 Roscoe Pound
Father of sociological jurisprudence in America
"Iaw is not a set of rules but is a method or technique for harmonizing conflicting social
interests."
The task of law, in his opinion, is to build as effective a structure of society as possible by
satisfying the maximum of wants with the minimum of friction and waste.

"Social Engineering“- "balancing of competing interests" in the society.

Pound suggested "Jural Postulates" - a sort of ideal standards which law should pursue in
society.
Allen described Pound's approach as 'experimental jurisprudence”
Justice Cardozo rightly remarked, "Pound attempted to emphasize the need for judicial
awareness of the social values and interests."

Allen, however, said that, "Pound completely ignored the personal freedoms which are equally
important for a happy social living."
1. Spirit of the Common Law

2. Law and Morals

3. Social Control through Law

4. 'The Task of Law

5. The ideal Elements in law

 Natural school

There are certain laws which are immutable and eternal. Also called Moral/divine/law of reason/law of god.

Natural law is based on a priori proposition. (knowledge that is acquired independently of any experience)

According to Salmond, "natural or moral law means the principles of natural rights and wrongs."

Blackstone observed: "The natural law being co-existing with mankind and emanating from God Himself,
is superior to all other laws. It is binding over all the countries at all times and no man-made law will be valid
if it is contrary to the law of nature."

Natural law theories may be broadly divided into: Ancient theories, Medieval theories, Renaissance theories,
and, Modern theories.
The concept of natural law was developed by Greek philosphers around 4th century bc.
Ancient period-
Heraclitus
Socrates
Ploto
Aristotle
Cicero
Thomas Acquinas
Period of Renaissance-
Hugo Grrotius
Hobbes
Locke
Rousseau
Kant
20th Century Revival of natural law(Modern Period)
Stammler
John Rawls
Francois Geny
Jerome Hall
Fuller
 Ancient Period
Heraclitus 530-470 B.C.
Heraclitus was the first Greek Philospher who pointed at the three main
characteristic of law of nature namely-
1. Destiny
2. Order
3. Reason

According to him Reason is one of the essential element of Natural Law.

 Socrates 470-399 BC
According to Socrates Virtue is knowledge and whatever is not virtuous is sin.
 Plato

Student of Socrates
The Republic- the concept of Ideal state which he
termed as Republic.(Idealism)
 Aristotle (384-322)
Student of Plato.

According to Aristotle, law is either universal or special (written); and, 'perfect

law' is inherent in the nature of man and is immutable, universal and capable of
growth.

He defined natural law as 'reason unaffected by desires.'

It was Aristotle, and not Plato, who founded natural law on reason.

Later, Stoics identified natural law with reason which governs the entire universe
and man being a part of universe, is also governed by reason.

Cicero said: "True law is right reason in agreement with nature."

 St. Thomas Acquinas

St. Thomas Acquinas defined law as "an ordinance of reason for the common good
made by him who has the care of the community and promulgated through
reason.“

Classification of laws
1. Law of God
2. Natural law on reason
3. Divine Law
4. Human Law
 Period of Renaissance 14th -17th Century
Hugo Grotius
Hugo Grotius held that natural law was not merely based on 'reason' but on 'right
reason' i.e. 'self-supporting reason' of man.

He treated "natural law as immutable which cannot be changed by God himself."

He said that natural law is based on the nature of man and his urge to live in peaceful
society.

He considered divine law as the grandmother, natural law the parent and positive law
as the child.
 Hobbes

Hobbe's theory of natural law was based on the natural right of self-preservation of
person and property. In order to secure self-protection in a state of nature, men
voluntarily entered into a 'social contract' and surrendered their freedom to the
'ruler'.

He wrote 'Leviathan'.

Austin's imperative theory of law is essentially an outcome of Hobbe's doctrine of

absolutism of the sovereign.

Natural law is based on the nature of man and on his inward need of living in society.
 John Locke
According to John Locke, man entered into a social contract by which he yielded to the
sovereign not all his rights but only the power to preserve order and enforce the law of
nature.

The individual retained his inalienable right to life, liberty and estate. The moment
sovereign encroached upon the 'natural rights', laws lose their validity and the government
may be overthrown.

Locke famous work

1. Two treaties of government which appeared in 1776 become a model for the American
bill of Rights

2. Civil Government

Unlike Hobbes who supported State authority, Locke pleaded for the individual liberty.
Locke used natural law as an instrument of change but Hobbes use it to maintain status
quo in the society.
 Rousseau
Rousseau pointed out that 'social contract' is not a historical fact as contemplated by
Hobbes and Locke, but is merely a hypothetical conception.

According to him, people united to preserve their rights of freedom and equality and
for that they surrendered their rights to the community as a whole - 'General
Will'.

Thus, while the individual parts with his natural rights, he gets in return civil
liberties. Therefore, he favored people's sovereignty.

His theory is considered to be the forerunner of the modern jurisprudential thought

and legal theory.
 Immanuel Kant

Kant propounded his famous theory of "Categorical Imperative" in his classic work -
'Critique of Pure Reason'.

His theory was derived from Rousseau's theory of General Will, and embodies two
principles:

(i) A man is expected to act in such a way that he is guided by dictates of his own
conscience (human right of self-determination).

(ii) 'Autonomy of will' implying an action emanating from reason. In essence, "an action is
right only if it co-exists with each and every man's free will according to the universal
law." ……………………………………………………………… …Principle of 'Innate Right'.
 20 th Century Revival of Natural law-

Dr. Allen pointed out, "The new natural law is value-loaded and is relativistic and not absolute,
changing………”
The main exponents of the new revived natural law were: R. Stammler, Prof. Rawls, Kohier and
others.
 R. Stammler
R. Stammler defined law as, "Species of will, others-regarding, self-authoritative and
inviolable."

According to him, law of nature means 'just law' which harmonizes the purposes in
the society.

The purpose of law is not to protect the will of one but to unify the purposes of all.

Principle of respect and principle of community participation are the two

fundamental principles of a just law.

"natural law with variable content.”

Theory of Justice

In the realization of Justice the specific content of a rule of positive law will vary
from place to place and from time to time.
 John Rawls

Veil of ignorance
1. A theory of Justice
2. Justice as fairness

The justification for reservation policy in India finds support in

the Rawlism theory of Justice

Equal Justice to All under Law.

John Finnis- Natural law & Natural Rights
Jerome Hall- Integrative Jurisprudence
 Lon Fuller
Fuller is one of the leading supporters of the modern natural law philosophy.

He distinguished 'morality as it is' ('morality of duty') from 'morality as it ought to be'

('morality of aspiration').

He' believed that law is a purposive system, the purpose being to subject human
conduct to the control and guidance of legal rules.

Fuller maintained that law is a product of sustained purpose and efforts which
contains its own implicit morality - "inner morality".

He believes that "Law represents order simpliciter." Thus "good order is law that
corresponds to demand of justice or morality or men's notion of what ought to be.“

Law does not fade away but goes out with the bank.

HLA Hart criticized fuller theory of natural law for it confuses morality with
efficiency.
1. The Law in Quest of Itself

2. The Morality of Law

3. Anatomy of the law

 Realist School
Realists regarded law as emanating from the judges.

Oliver Wendell Holmes is regarded as the spiritual father of Realist School (a branch of sociological approach).

Legal realism is a movement in thought of law; a concept of law.

Salmond regarded law as the practice of the court and propounded the theory of 'legal realism' (Neo-Austinian
view).

Like contemporary positivists, he agreed that law is an expression of the will of the State but as a realist he felt
that it is not the Parliament but the court which expounded law.

Vinogradoff criticized Salmond's definition on the ground that judges/courts apply and enforce the law rather
than defining it.

Realist approach as the left wing of the functional school.

Julius Stone says that realist movement is a gloss on sociological school.

Jerome Frank- Realist believe that certainty of law is a myth.

Dr. Allen- Realist school is a improvised form of the sociological jurisprudence.

-A judge make the law in the sense in which a man chops a tree into a log has in a sense to made the
logs.
Karl Llewllyn- Some Reflection On Realism.

Jerome Frank-
1. Law & the Modern Mind
2. If men where angels
3. Court on Trial

Justice Holmes considered law as a means to protect and promote the collective group interests. He
remarked, "life of law has not been logic, it has been experience." Thus, lawyers and judges must take into
consideration the needs of the time, public policy, etc.

He wrote, 'The Common Law.'

Justice Cardozo in his work 'Nature of Judicial Process` asserted that judges should apply law objectively
keeping in view the prevailing traditions, morals and needs of the society.