Jurisprudence unit 1

Introduction

Jurisprudence is a field of study that deals with the fundamental principles and concepts of law. It
encompasses the study of the sources of law, the relationship between law and other social sciences
and the nature of law itself.

Jurisprudence is the study of the Theory and Philosophy of Law. The subject, in its entirety, differs
from other social sciences. There are several ideas with regards to the meaning of jurisprudence and
its nature. This makes it difficult to define.

Each country has its own idea of jurisprudence shaped by the social and political conditions in which
the development of law took place in that region. Modern jurisprudence is tied to sociology on one
end and philosophy on the other. The ideas of jurisprudence that are popular in major legal systems
throughout the world today have their origins in the West.

Meaning

The term ‘jurisprudence’ has been derived from the Latin term ‘jurisprudentia’ which literally

Translates to ‘knowledge of law’ or ‘skill in law’. The Roman civilization, which is popularly

Known as the bedrock of all human civilizations in the world, started to question the meaning and

Nature of law. Ulpian defined law as the “knowledge of things divine and human”. According to

Him, the law is the science of right and wrong. Several jurists in Europe began to deliberate upon

The meaning of the law.

Definition

Austin :

Austin was the first jurist to make jurisprudence as a science. He defines ‘jurisprudence’ as “the
philosophy of positive law.” He opines that the appropriate subject to jurisprudence is a positive law
i.e. law as it is (existing law). In other words, jurisprudence is not a moral philosophy but it is a
scientific and systematic study of the existing, actual and positive law has distinguished from natural,
ideal or moral law. Austin divides jurisprudence into two classes. Viz ‘general Jurisprudence and
Particular Jurisprudence. According to him ‘General Jurisprudence is the philosophy of positive law.
On the other hand ‘particular jurisprudence is the science of any such system of positive law as now
actually obtains or once actually obtained in a specifically determined nation or specifically
determined nations.

Criticism:

Austin’s definition criticised by Salmond and Holland and other Jurists on the ground that it is not
proper and appropriate to classify as the general Jurisprudence and Particular Jurisprudence.

II) Holland: An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, “ Jurisprudence
is the formal science of positive law’” According to him jurisprudence should only concern itself with
the basic principles of concepts underlying in any natural system of law.

Criticism:
 Many eminent jurists have criticised the definition of Holland that jurisprudence is the formal
science of positive law. It is not free from defects. The question arises what is a formal science?
Holland himself explains that by the term ‘formal’ he means that jurisprudence concerns itself with
human relations which are governed by the rules of law rather than the material rules themselves,
for the latter are the subject of legal exposition, criticism or compilation rather than jurisprudence.

III) Salmond:

Salmond defines Jurisprudence as, “ Jurisprudence is the science of the first principle of the civil
law.” According to Salmond Jurisprudence can be defined in two senses (1) in the ‘Generic Sense’
jurisprudence can be defined as Science of Civil Law’ and (2) in the ‘Specific sense’ Jurisprudence can
be defined as the science of the first principle of civil law. The Civil law consists of rules applied by
Courts in the administration of Justice. Salmond agrees with both Austin and Holland only to the
extent that jurisprudence is ‘a science, a systematic study of basic principles of legal systems.

Criticism :

Salmond’s Definition has been criticised on the ground that he has narrowed down the field of
jurisprudence by saying that it is a science of civil law and hence covers only particular legal system.

IV) Keeton: Keeton Defines jurisprudence as “ the study and systematic arrangement of the general
principles of law.

V) Roscoe pound

Dean Roscoe Pound defines jurisprudence as “ the science of law, using the term law in the
juridical sense, as denoting the body of principles recognised or enforced by public and regular
tribunals in the administration of justic
IX) Gray :

According to John Chipman Gray " jurisprudence is the science of law, the statement and systematic
arrangement of the rules followed by the Court and the principles involved in those rules."

Criticism:
Stone has Criticised Gray's Definition and said that Gray has failed to determine any province of
jurisprudence rather he has reduced jurisprudence to merely a matter of arrangement of rules.

X) Ulpian:

Ulpian a Roman Jurist defines jurisprudence as " Jurisprudence is the knowledge of things divine and
human, the science of just and unjust."

Scope of Jurisprudence

The scope of jurisprudence has widened considerably over the years. Commenting on the scope of
jurisprudence Justice P.B.Mukherjee observed, “Jurisprudence is both an intellectual and idealistic
abstraction as well as the behavioural study of man in society. It includes political, social, economic
and cultural ideas. It covers the study of man in relation to society.”

This makes the distinction between law and jurisprudence amply clear. It, therefore, follows that
jurisprudence comprises the philosophy of law and its object is not to discover new rules but to
reflect on the rules already known.
Whereas, Austin was the only one who tried to limit the scope of jurisprudence. He tried to
segregate morals and theology from the study of

Nature of Jurisprudence:

Law regulates significant aspects of human life. In simple terms, law is a set of regulations which

Are formulated by the state and are binding upon its subjects. Jurisprudence is the science of law.

It has been described as the “grammar of law”. To effectively interpret the law, it is essential to

Understand its origin, nature and meaning. Not only interpretation, but even the legislative process
Requires legislators to keep several factors in mind to ensure that the law that is made is effectively
Enforced and followed by all. Jurisprudence studies the law to facilitate better legislation as well As
interpretation. In doing so, it uses the wisdom provided by other social sciences.According to Paton,
modern jurisprudence is mostly based on social sciences and philosophy since It examines the
historical aspects of law to address the chaos created by conflicting legal systems. Describing
jurisprudence as a “lawyer’s extraversion”, Julius Stone is of the opinion that the

Objective of jurisprudence is to view and examine law from the eyes of disciplines other than law.

Roscoe Pound states that the subjects of jurisprudence, ethics, economics, politics, and sociology

Might be quite distinct at the core, however, at a certain point they overlap with each other. He

Further adds on that it is impossible to understand their respective cores without studying this

Overlapping with other social sciences. According to him, all social sciences must especially co-

Work with jurisprudence. Let us evaluate the interrelation of jurisprudence with other social

Sciences.

Jurisprudence and Sociology

The objective of sociology is to study human actions in a social environment. Its studies humans

As members of social groups. Law is an important element of society. Therefore, sociologists must
Understand law to understand society. However, a sociologist would not look at law in the same

Way as a lawyer. While a lawyer is concerned with the law itself, a sociologist is concerned with

The impact of the law upon society. There is a separate branch of jurisprudence which comprises

Of sociological theories of law. Not only sociologists but lawyers too have to understand the society

To understand the law. For instance, crime is essentially an act of social deviance and to understand

The law of crimes, a basic understanding of the society is required. Earlier, the judges used to decide

Punishments based on popular opinion. However, now the process has become more technical and

Professional in nature with the opinions and studies of criminologists being taken into

Consideration.

According to Paton, it is essential to understand the relationship between law and social interests

Since such a study would lead to a better understanding of the evolution of law. The human factor

In law cannot be entirely neglected. The ideas of jurists like Keeton asserting the necessity of

Studying law as devoid of any social interests is, indeed, compelling but appears to be quite

Impractical.

Jurisprudence and Psychology

Psychology is the science of human mind and behavior. Its objective is to understand the reasons
Behind the way an individual responds to a stimulus. All the social sciences, including

Jurisprudence, study human actions. Psychology occupies a central position among the social

Sciences for it is imperative to understand the human mind before studying human actions. Law

Plays a regulatory role in a man’s life. One cannot regulate without understanding the nature of

That which is to be regulated. Therefore, it is important that a lawmaker understands basic

Psychological concepts. Such an understanding would enable the lawmaker in ensuring that the

Law is not only made but also effectively followed by the people.

It may be argued that jurisprudence is in no way concerned with the workings of a human mind.

However, psychological researchers have greatly contributed to penology and criminology.

The analytical positivists stress upon the importance of sanctions that are imposed by law. Some

Jurists believe that the sanctions are mostly psychological ones.

Jurisprudence and Ethics

Ethics scientifically studies human conduct. It deals with the concept of ideal human conduct. Such

An ideal state is determined by popular opinions of what is good and what is bad. It depends upon

The moral values of the society. Crimes are acts against the society at large which are penalized by
Law. Generally, law does not concern itself with the science of ethics. Sometimes ethics may help

In the determination of whether an act should be criminalized or not. However, it must be noted

That something that is unethical may not be a crime and vice versa. Ethics deals with the values

And beliefs about ideal human conduct. The law deals with the regulation of human conduct. Thus,

A jurist must have a basic understanding of the science of ethics to examine a law.

Austin divorced ethics from jurisprudence. The same has been criticized by many, for, it is believed

That complete separation of ethics from jurisprudence would completely cut out the science of law

From all forms of social contact and reduce it to a “system of rather arid formalism”.

Jurisprudence and Economics

Economics refers to the science of wealth. Both, jurisprudence, and economics aim for the

Betterment of the lives of the people. Economics aims for such betterment through the satisfaction

Of the needs and wants of the people, while jurisprudence, the science of law, aims for the

Betterment of the lives of the people through the enactment of welfare legislations. Wealth forms

An important source of happiness, peace, and fulfilment in an individual’s life. Therefore, to enact

Good welfare legislations, a legislator must be mindful of the fundamental concepts of the science
Of wealth, that is, economics. Moreover, economic factors also lead to crime. Therefore,
anunderstanding of economics is essential to address and prevent crime in society. Law also protects

People from economic exploitation.

The intimate relation between law and economics was first emphasized by Karl Marx. After his

Theory, several jurists began to evaluate the relation between the science of wealth and the science

Of law.

Jurisprudence and History

History studies the events and happenings of the past. One of the important areas of jurisprudence

Is to understand the origin and evolution of law. Thus, the relation between jurisprudence and

History is extremely close. In fact, there is an entire separate historical school of jurisprudence.

Jurisprudence and Political Science

According to Friedmann, jurisprudence is linked to philosophy at one end and to political theory

On the other. The concept of law, as we know it today, originated with the concept of state. Political

Science is the science of the state. The analytical school of jurisprudence considers law as the

Command of the sovereign. This ‘sovereign’ is what is known as the state. The various political

Theories regarding the origin of the state have been used by jurists to formulate theories regarding
The origin, nature and functions of law.

The various social sciences are deeply inter-related. This makes it impossible to study a single

Social science in complete isolation. The primary objective of all social sciences is to study human

Actions and behavior in different forms. Thus, it is important for a legal professional to be mindful

Of the intimate relations that jurisprudence shares with other social sciences.

Natural school of law

Natural school of law is generally regarded as the law of nature, divine law or the law that is
universal and eternal in nature. It has been given different meanings at different points of time and
though it is created by man, it is found through the nature of an individual. It is mostly influenced by
religion. The central idea of this theory is that there is a higher law based on morality against which
the validity of human law can be measured. There is a belief that there are certain moral laws that
cannot go against without losing its moral or legal character. If legislation is not moral it is not law.
There is an essential connection between law and morality in this school of law.

Natural law can be broadly divided into four classes:

Ancient theories

Medieval theories

Renaissance theories

Modern theories

Ancient theriory

Greece

The Greek thinkers developed the idea of natural law and laid down its essential features. At that
time in Greece, there was great political instability and it was thought by many that law is made
only to serve the interest of the strong, but the same situation made some other jurists think in
other ways, they saw this as an opportunity to develop new universal principles that would tackle
and control tyranny and arbitrariness of government.

Socrates view on Natural Law

Socrates believed that as there is natural physical law there is also natural law. In his concept of
natural law man has his own insight which makes him know of the things whether they are good
or bad, it is this insight according to him by which a man is able to inculcate the moral values in
him, the only way to judge the basis of law according to Socrates is man’s insight. Through his
theory, Socrates wanted to ensure peace and stability in the region which was one of the principle
demands of that time.

Aristotle’s view on Natural Law

Aristotle’s concept of natural law is different from that of Socrates, he divides the life of man in 2
parts, first, he says that man is the creature which is created by God and second he posses the
quality of reason by which he can develop his own will. It is this reason through which one can
discover the principle of natural justice. Aristotle is considered to be the founding father of natural
law school and gave this theory a very solid ground so that it could develop naturally.

Rome

Stoics view on Natural Law

Stoics was inspired by Aristotle’s theory and based on Aristotle’s theory developed his own theory of
natural law but made some key changes and made it more ethical. According to him, the world is
governed by reason. Man’s reason is also a part of this world, therefore when he lives according to
reason he lives according to nature or lives naturally. One of the duties of man is to obey the law of
nature as according to Stoics law of nature is binding on everyone and positive law must conform to
the natural law.

Influence of Stoics theory

The theory of Stoics had a great influence upon the jurists during the republican period, as many of
the jurists started paying more attention to natural law. Natural law helped Roman people to
transform their rigid lives into a cosmopolitan one. Sometimes the roman courts also applied the
principle of natural law in order to deal with cases that involved foreign people, in this way natural
law helped in the development of Roman law.

Medieval Theories

Aquinas

Catholic philosophers and theologians moved away from the orthodox interpretation of natural law
and gave a more logical and systematic theory of natural law. Thomas Aquinas defined law as the
obedience of reason for the common good made by him who has the care of the community and
promulgated. He divided the law into four stages.

Law of God

Natural law

Divine law
Human laws

Natural law is that part which reveals itself in natural reason. This is applied by human beings to
govern their affairs and relations. According to Aquinas positive law must conform to natural law,
positive law is valid only to the extent to which it is compatible with natural law.

Merits of Aquinas theory

Thomas Aquinas perfectly blended Aristotle’s theory with that of Christian faith and built a very
elastic and logical theory of natural law. He pleaded for establishing the authority of the church over
the state, according to him, even the sovereign has limited powers. He identified natural law with
reason, gave sanctity to the social and political organization and pleaded hard for preserving social
stability. Catholic modern jurist have built upon the theory of Aquinas but have modified his theory
according to the changing needs and circumstances

Renaissance Theories

This period saw major changes in all aspects of knowledge, this period was marked by the
emergence of new ideas, new branches of knowledge and discoveries of science shattered the
foundation of established values. Secondly, the developments in the field of commerce led to the
emergence of new classes that wanted more protection from the states. It gave birth to the concept
of nationalism. All these factors together overthrew the dominance of the church. New theories
supporting the sovereignty of the state started coming up. The reason was the foundation stone of
all these theories. The natural law theories of this age also have some characteristics. This theory
proceeds with a belief that a social contract is the basis of society.

Under Rousseau, natural law and social contract received a new

interpretation. For him, a social contract is the hypothetical construction of
reason. Before the social contract man lived a happy life, there was equality
amongst men.

Modern theories
Nineteenth Century

The decline of Natural Law theories

The 19th century saw the decline of natural law, the natural law theories reflected more or less the
great economic and political changes which had taken place in Europe. Reason or rationalism was the
spirit of the eighteenth-century thought. The problems created by the new changes and
developments demanded political and concrete solutions. Individualism gave way to collectivistic
outlook, modern sciences and political theories started preaching that there are no absolute and
unchangeable principles. Many historians rejected the social contract theory by saying that it was a
myth. All these factors gave a strong blow to natural law.

Twentieth Century

The revival of Natural law theories

During the end of the 19th century, we saw the revival of natural law theories mainly due to the
following reasons:

It emerged as a reaction against the legal theories which had exaggerated the importance of positive
law.

It was realized that abstract thinking was not completely futile.

Positivist theories failed to solve the problems created by the changed social conditions.

The ideologies of Fascism and also led to the revival of natural law theories, as at that time during
the two world wars, the world witnessed great destruction of human lives and property and
principles of natural law were approached in order to attain peace.

SSchools of jurisprudence

1. Analytical school
The major premise of analytical School of jurisprudence is to deal with law as it exists in
the present form.
Analytical school is known in various names such as:

o The Austinian school since this methodology is set up by John Austin.

o The imperative school since it regards law as the direction (command) of the
sovereign.
o The Positivist School because the exponents of this school are concerned neither
with the past nor with the future of law but with law as it exists i.e., with law `as it
is` (positum), the word positivism was given by august comete.

Truth be told, it was Austin who propounded the theory of positive law, the
establishment of which was laid by Bentham
One of the fuctions of analytical school is, as the name suggest, analysis or
decomposition of law into irreducible elements.

John Austin
Austin is known as the father of English Jurisprudence. According to him,
'Law is a command of sovereign backed by a sanction.'He regards law as the
direction of the politically powerful authority backed by a sanction. This means
that Law is whatever the Law-Maker (the one with the authority to make laws)
says and it supersedes judgements by judges/precedents etc.

He distinguishes law from morality. He divides law into two parts:

▪ Divine law: Law set by God for men

▪ Human Law: Laws made by men for men.

Austin accepts 3 kinds of laws:

 ▪ Declaratory or Explanatory Laws: They are not command but are
already in existence and are passed only to explain the law which is
already in force.
▪ Law of Repeal Austin does not treat such laws as commands
because they are in fact the revocation of a command.
▪ Law of Imperfect Obligation They are not treated as command
because there is No sanction attached to them.

Merits:

▪ Simple and clear definition of Law

▪ Lays down exact boundaries within which jurisprudence has to work.
▪ Austin's positivists approach further laid down the foundation of English
jurisprudence.
▪ Has an important and Universal Truth Law is created and enforced by the
State.

Demerits:

▪ Customs overlooked: In the early times, not the command of any superior,
but customs regulated the conduct of the people. Therefore, customs
should also be included in the study of jurisprudence.
▪ Permissive character of the law ignored
▪ No place for judge made law: Nobody, in modern times, will deny that
judges perform a creative function and Austin's definition of law does not
include it. · Conventions: Conventions of the constitution, which operate
imperatively, though not enforceable by court, shall not be called law,
according to Austin's definition, although they are law and are subject
matter of a study in jurisprudence. Austin does not treat international law
as law because it lacks sanction. Instead, he regards international law as
mere positive morality.
▪ Rules set by private persons: Austin's view that 'positive law' includes
within itself rules set by private persons in pursuance of legal rights is an
undue extension because their nature is very vague and indefinite.
▪ Sanction is not the only means to induce obedience: According to Austin's
view, it is the sanction alone which induces the man to obey law. Lord
Bryce has summed up the motives as indolence, deference, sympathy, fear
and reason that induces a man to obey law.
▪ Command over emphasized: In modern progressive democracies law
expression of the general will of the people. Therefore, a command aspect
of law has lost its significance in the present democratic setup. This
definition cannot be applied to a modern democratic country.
▪ Does not cover international law
▪ Ignores social factors of law and psychological factors which secure its
obedience
▪ The interrelationship between law and morality is ignored.
 Bentham
He defined law as:
Law is an assemblage of signs declarative of a volition conceived or adopted by
the sovereign in a state, concerning the conduct to be observed in a certain case
by a certain person or class of persons, who in the case in question are or are
supposed to be subject to his power.

Bentham supported the economic principle of 'laissez faire' which meant

interference of the State in the economic activities of individuals.

· Bentham propounded the principle of utilitarianism. According to this theory, the

right aim of legislation is the carrying out of the principle utility. Bentham defined
utility as the property or tendency of a thing to prevent some evil or procure
some good. According to him, the consequences of good and evil are respectively
'pleasure and pain'.

Merits

▪ His constructive thinking and zeal for legal reform heralded a new era of
legal reforms in England
▪ He gave new directions for law making and legal research.
▪ In the field of jurisprudence, his definition of law and analysis of legal
terms inspired many jurists
▪ who improved upon it and laid down the foundations of new schools.
▪ He gave solutions to problems involving the nature of positive law

Demerits

▪ According to Friedmann, it suffers from two weaknesses:

At first, in an effort to blend materialism with idealism; Bentham
underestimates the need for individual discretion and flexibility in the
application of law overestimating the power of legislator. Secondly, this
theory fails to balance individual interests with the interests of the
community
▪ The theory is too abstract.
▪ It fails to recognize complexities of human nature.
▪ No practical application possible for his theory.
▪ Pain and pleasure alone cannot be tested to judge the law.

2. Sociological school

o The Sociological school of Jurisprudence advocates that the Law and society are
related to each other
 o Law is social scenery. This school argues that the law is a social phenomenon
because it has a major impact on society. This school laid more emphasis on the
legal perspective of every problem and every change that take place in society.
o 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.
o According to this school the socio-economic problem of the present time cannot
be solved by means of the existing laws.
o This school is based on logic, not metaphysical entities or divinities.

Rosco pound
Roscoe Pound concentrates more on functional aspect of law. So, his approach may also
be known as functional approach. According to him 'The end of law should be to satisfy a
maximum of wants with a minimum of friction.' He demands for maximum happiness
with less disagreement.

He has given a theory of 'Social engineering' which means a balance between the
competing interests in society. Social means group of individuals forming a society.
Engineering means applied science carried out by engineers to produce finished
products, based on continuous experimentation and experience to get the finished
product by means of an instrument or device. He thinks that jurist should work with a
plan and accordingly various interests of society should be protected by law.

The interest has been classified into three categories:

o Private Interests which are as follows:

o Interests of personality Physical integrity, reputation, freedom of violation and
freedom of conscience. For example: law of Torts, law of Contracts, Criminal law.
o Interest of domestic relations Marriage, parents and children, maintenance.
o Interest of substance Inheritance, occupational freedom, property.
o Public Interests are:
o Interest in the preservation of State, Administration of trusts, charitable
endowments, territorial waters, natural environment etc.
o Social Interests
o Social interests are the claim or demands or desires thought of in terms of social
life and generalized as claims of social groups.

Demerits:

o Classification of interest is not useful. Since the social interests always change
withthe society and to put them into specific order then they will lose their
character and importance.
 o This word social engineering is used to indicate the problem that law faces, the
objectives that have to be fulfill and the method which it will adopt for the
purpose of interest.
o No ideal scale of values with reference to interest.
o By the word' engineering' no balance has been made between social needs and
interests. Only this theory simply recognizes or approves it.
o The theory ignores the fact that law evolves and develops in the society according
to social needs and wants.
o The dynamic feature of law is undermined in this theory
o The conflict between social and individual interests is not considered by him.
o Prof. Allen criticized him for focusing on wants and desires to fulfill material
welfare which might be harmful to personal freedom.

Merits

o Has focused on practical implication of law and role of jurists in building a welfare
state.
o Considers working of law rather than its abstract concept.
o Regard law as a social institution which may be improved by human effort and to
discover and effect such improvement.
o Lay stress upon the social ends of law rather than sanctions.
o This theory says that legal precepts be used as guides to socially desirable results.
o His idea of functional law led to the creation of functional school
o His theories gave the most influential exposition of the American sociological
viewpoint.

Dugit
The theory of Duguit under sociological school is a social solidarity. Social solidarity
means the greatness of society. Duguit said that there are mainly two types of needs of
the society:

29. Common Needs

Which are fulfilled by mutual assistance.
30. Adverse Needs.
Which are fulfilled by the exchange of services. No one can live without the help of
other. Even a state cannot exist without the help of other state. One cannot
produce So he has to depend upon all things required for him. others. The
dependency is called social solidarity. For this purpose the division of labor is
necessary. Division of labor will fulfill all requirements for the society. This
philosophy or views is called social solidarity.

Merit
 o He said to procure and to manufacture necessities of life men depends upon
society. His theory advocates peace and solidarity
o He attacks the myth of State sovereignty and compares the State to any other
organization.
o He also mentions the functions to behave in the society are also dependable upon
each other. The aim is to safeguard interdependence or to fulfil all necessities and
till this end is not achieved aim of the law is not fulfilled
o The end or the result of all human activities and organization is to ensure
interdependence of men which is social solidarity or theory of social fact which
means men should live together as formation of law is very essential for
community life.
o He minimizes the functions of the State which leads to a reduction in the role of
the legislator in his understanding.

Demerits

o Duguit was against State sovereignty. He thinks it is the will of the people that
who will govern them. So state is also under a duty to ensure 'social solidarity
o There was no difference between public law and private law because it will elevate
power of State above the rest of the society.
o Social solidarity is vague because judges will decide whether an 'Act' or 'Rule' is
furthering social solidarity which is very dangerous for the judicial system as
judges have their known limitation. it may lead to judicial despotism
o His law confuses with natural law theories because if law does not further 'social
solidarity' then it is no law at all.
o Though Duguit emphasis of interdependence in society but his theory does not
perform well due to minimum interference of state because in modern times
social problems of modern community can be solved better by state activity
o His theory may be subject to different interpretations and in the end, would serve
the interests and purposes of lawmakers.
o His use 'is' instead of 'ought' confuses the definition of law with natural law
theories.
o His theories were inconsistent where one side he was claiming that biological
evolution has structured the state whereas on the other side he was contradicting
it by saying that
State has no personality of its own.

3. Historical school

o The historical school of jurists was founded by Friedrich Karl von Savigny (1779-
1861
 o Historical School of Jurisprudence describes the origin of law. This school argues
that the law was found not made.
o The Historical School believe that law is made from people according to their
changing needs. It believes that law is an outcome of development of the society
because it originates from the conventions, customs, religious principle, economic
needs of the people. Basic source of historical school is custom.
o A custom is a traditional and widely accepted way of behaving or doing something
that is specific to a particular society, place, or time. Customs are considered
superior to
legislations in this school. The reasons for the emergence of this school are:

▪ It came as a reaction to the natural school of law.

▪ It opposes the ideology of the analytical school of jurisprudence.

Friedrich Carl Van Savigny (1779-1861)

A product of times the germ of which like the germ of State, exists like men as being
made for society and which develops from this germ various forms, according to the
environing the influences which play upon it.

Main points of savingny's theory are:

o That law is a matter of unconscious and organic growth. Therefore, law is found
and made. Law is not universal in its nature. Like language, it varies with people
and age.
o Custom not only precedes legislation but it is superior to it. Law should always
conform to the popular consciousness.
o As laws grow into complexity, the common consciousness is represented by
lawyers who
o formulate legal principles. But the lawyers remain only the mouthpiece of popular
consciousness and their work is to shape the law accordingly. Legislation is the
last stage of law-making and, therefore the lawyers or the jurists are more
important than the legislators.

Merits

o This theory is that law is influenced by the culture and character of the people
o Savigny's theory traced the course of the evolution of law in various societies.
o Savigny's theory lays the seeds for the development of sociological and
evolutionary
Demerits

o Inconsistency- One side savigny asserted that the origin of law is in the popular
consciousness and on the other hand argued that some of the principles of
Roman law were of universal application.
o Savigny emphasised the national character of law. While advocating national
character of law he entirely rejected the study of German law and took inspiration
from Roman law.
o Volksgeist is not the exclusive source of law- Savigny said that popular
consciousness is main sources of law it is not true. Because some time an alien
legal system is successfully transplanted in another country and sometimes a
single personality greatly influences a legal system that is not a popular
consciousness.
o Customs not always based on popular consciousness Many customs and practices
have been declared illegal. Charles Allens criticized him for emphasizing the idea
of law made by customs as he was of the view that customs are not based on the
consciousness of people but for the powerful ruling class.
o Juristic Pessimism- According to Savigny legislation must accord with popular
consciousness but in modern time it is wrong because today's legislation has
much power to make law.
o Many things unexplained- He does not explained many things which developed by
certain powerful communities that is in India slavery untouchables etc.
o He ignored the judge made law- Judges has played an important and creative role
in the function of making law but Savigny's theory has taken this role very lightly.

George Friedrich Puchta

Puchta was a great jurist as well as student of Savigny his ideas are more logical and
improved. He uses the word 'right' in the place of 'law'. According to him men always
livedin unity but people are different by their behavior and unequal. This brings out the
idea of law. Then state comes into existence. But neither the people nor the state alone is
the source of law. All laws come to existence by Volksgeist. Popular consciousness ties
the people in one community like common language and religion. According to him
customary law is the best expression of national spirit or Volksgeist so custom so custom
is superior to legislation.

Merits

o His ideas were more logical and improved than Savigny

o He divided general will from individual will from which conflicts arise.
o His division and description of conflicts between the general will and individual
will made the state, intervention theory logical
 o He gave two-fold aspects of human will and the origin of a state which was absent
in Savigny's theory making it rigid.

Demerits

o Ignored the historical aspects of legal development.

o His ideas were not accepted initially due to ambiguity which was later corrected
by him.

4. Philosophical school
According to the philosophical school, also known ethical or natural school, legal
philosophy must be based on ethical values so as to motivate people for an upright living.
According to this school the purpose of law is maintain social harmony and to maintain to
law and order in society and legal restrictions can be justified only if they promote the
freedom of individuals in the society.

The philosophical or moral school concerns itself mainly with the connection of law to
specific thoughts which law is intended to accomplish. It tries to explore the reasons for
which a particular law has been established.

This school believes in the law of logic and reason.

Grotius (1583-1645), Immanuel Kant (1724-1804) and Hegel (1770-1831). To them, the law
is the result of human reason and its motivation is to hoist and praise human identity

Grotius

o Founder of international law

o Grotius, Founder of international law, said that a system of natural law may be
derived from the social nature of man.
o He defined Natural law as

The dictate of right reason which points out that an act, according as it is or is not in
conformity with rational nature, has in it a quality of moral baseness or moral necessity.

In this way, he built up a system of natural law that should command universal respect by
its own inherent moral worth. His definition also states that logical application is backed
by moral values.

Merits
 o emphasized morals to describe righteous conduct in society
o Built a system of natural law that should command universal respect by its
inherent moral worth.
o Emphasizes on reasons and origin of law on basis of morals.
o This system of law has been derived from the social nature of man.
o Agreement of mankind concerning certain rules of conduct is an indication that
those rules originated in the right reason.

Demerits

· His theory was based on morality but there is a difference between ethics and morality.
· Ethics are the behavioral pattern of the person whereas morality are the values imbibed
in
him.
· Beside morality there are other factors social, economical and political patterns of the
society which are very important for the formation of law.
· Legislation, customs, precedents etc. are also the other sources which are very
important in the formation of law.
· Hugo said that Natural law deserves universal command which is not possible in
modern
times because now laws are formed by taking state, people and nature into consideration
and then to make laws according to the need of the society.
· This definition is dependent on logic/reason, something which varies from person to
person, hence there wouldn't be uniformity of law.
· Same goes for moral baseness and necessity as something which may feel morally
correct to one may not to the other and vice versa.

5. Realist school

o Realist School is a type of school which focuses on decisions. It is a branch of

sociological approach
o In actual sense, there is no realistic school. It is known as 'realism' that is actually a
movement which consists of thought and works in law.
o It also focuses largely on the evaluations of any parts of law in respect to its effect
o It also creates a sense of distrust in the traditional legal values and also the
concepts designed so far as they appear to be described what either courts or
common people are actually doing.
o Realists have a pragmatic approach towards understanding jurisprudence and
thus it emphasizes the judicial organization more which is responsible for the
application of the law.
o The realist school of law believes that law is real and co-relates law with reality.
 o There are two types of realist school:

▪ American Realist: the scholars along with learning from there own
experiences, but also observed the judgements and learned from them.
▪ Scandinavian Realists: in this, the scholars believed only in their own
experience.

John Chipman Grey:

According to Grey,
The Law of the State or of any organized body of men is composed of the rules which the
courts, that is the judicial organ of the body lays down for the determination of legal
rights and duties.

John is considered as the father of American Realism.

He, according to him, states that codified laws are immaterial unless they are applied by a
judge. He says that law is basically the judgement that the court passes. He implies that
body of written rules are lifeless orders and they are infused with life when the judge
applies it.

Merit

o His theory is relatable to real life

o Gives a chance for own interpretation by people.
o Focuses on 'what law is' and not 'what law ought to be'.
o Observes similar cases in the past as well.

Demerits

o Does not take into account the statute law

o Puts excessive faith on judges.
o Does not consider that the jugdement may include judges personal bias
o This definition is not concerned with the nature of law, rather than its purpose
and ends.

Jerome frank
He is considered one of the most important philosophers of the realist school. He
explained by giving an example of the relationship between the certainties of law in men
by describing it in terms of a father-son relationship. Like a son gets protection from his
father similarly a man gets protection from the law.

Merits
 o He states that it is not proper for lawyers and judges to stick to the myth of legal
certainty in the name of precedents or codification.
o He points out constructive work that every lawyer and judge needs to do.
o He gave an emphasize on importance of lawmaking by evaluating facts of each
case under changed social circumstances.
o His view was to maintain balance and to develop law parallel to advancement in
society.

Demerits

o His approach was not considered useful in terms of the law.

o Some critics criticized him on using the Freudian approach of psychological
development of a child in his theory, calling it the Freudian approach of
jurisprudence.
o He exaggerated the human factor in judicial decisions and focused on the roles
lawyers and judges only.
o The realist approach was based on the American system of the judiciary and thus
is not universally applicable.

Immanuel Kant
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.

Kant's legal philosophy is a theory of what the law ought to be. he distinguished between legal
duties and legal rights. He also distinguished between natural rights and acquired rights. He
recognized one natural right of the freedom of man in so far as it can coexist with everyone
else's freedom under a general law. According to Kant, the function of the State is essentially that
of protector and guardian of law. The aim of Kant was a universal world state.

He differentiated between ethics and laws according to him ethics relates to man spontaneous
acts whereas laws deal with those acts which the man is compelled to do by the state and
society. Ethics deals with inner life or insight or consciousness of the people whereas laws
regulate external conduct of the person. He said that legislation could be effective only when it
represent united will of the people. According to him justice is relative concept depending on
conditions, place, social values etc. in which an action takes place. He said that laws must be
metaphysical derived from reason in order to be just.

Merit

• He recognized one natural right of freedom of a man in co-existence with other's

freedom in general law
• His aim was universal law state.
 • According to him the function of the state is to safeguard law and be the guardian of the
law.
• He states that ethics are the internal consciousness of a person whereas law is the
external conduct of a man.
• Emphasized the united will of people to validate legislation.

Demerits:

• Since his theory entirely based on 'what law ought to be' he forgot to consider the past
and present of the law.
• He denied the concept of natural law which is very important for the existence of laws.
• He theory has given theoretical differences between ethics and laws but there is no
practical application of them.
• He has also not given importance to other sources like customs which are considered to
be oldest source of law.

Conclusion
Jurisprudence is the scientific study of law. It is a kind of science that investigates the creation,
application, and requirement of laws. Jurisprudence is the investigation of theories and methods of
insight in regards to the law. It has viable and instructive esteem.