LEGAL THEORY

UNIT 20,21
 MEANING OF LEGAL THEORY

• Legal Theory reveals the manner in which people in different countries at different time have
speculated about some of the problems concerning law.
• Speculations about law - past and present thinkers should be a part of intellectual culture.
• The term Legal theory has been for the first time coined by W. Friedman in 1945 when his
book on legal theory appeared and since then it has become popular.
MEANING OF LEGAL THEORY

• Legal Theory is an evaluative study of law rooted and grounded on ethics, morality and justice
as is in use in USA and the continental countries like France, Germany, Italy, Austria etc for
what is traditionally described as Jurisprudence.
• Legal Theory is a by-product of philosophy, religion, ethics and politics.
• Legal Theory endeavours to answer the question that law cannot be devoid of moral-ethical
content or requirements of justice.
NEED AND SIGNIFICANCE OF STUDYING BASIC THEORIES
OF LAW

• Legal theory aims to provide a backdrop to the legal, moral, philosophical and societal
influences impacting the English legal system.
• By providing this knowledge, the subject matter strives to increase students’ critical awareness
of the challenges and complexities affecting the legal environment.
• Students will analyze and develop a critical approach to abstract arguments.
• These studies will take place alongside assessing authorities and attitudes to explore areas of
law.
• To evaluate these laws from their roots to contemporary considerations regarding their position
in the modern framework.
SCHOOL OF THOUGHT

• The word “jurisprudence’’ is derived from a Latin word jurisprudentia, which means ‘Knowledge of law’. Thus
jurisprudence signifies knowledge of the law and its application, It covers the whole body of legal principles in the
world. 

• SCHOOLS OF JURISPRUDENCE - Following schools of jurisprudence

1. Natural law.
2. Positivist School
3. Historical School
4. Sociological School
5. Realist School.
NATURAL LAW

• It is very difficult to define Natural Law. Jurists of different ages have defined differently to the term
natural law.
• The law is in accordance with nature- true law- moral law - just and good rules to govern human
relations.
• PRINCIPLES OF NATURAL LAW
• a) Rules that can be inferred from logical thinking and human reasoning.
• b) It is the nature of every human being to know from his conscience what is right, good, proper and
therefore lawful.
• Example: The law which intends to legalize abortion contravene morality and thus is not regarded as
valid law from Natural law school point of view.
• c) Natural law is universal - as it is applicable to all people in general no matter where they
live.
• d) Natural law is immutable - cannot be changed by human intervention.
• e) Eternal, remains unchanged over time regardless of historical events, social attitudes and
opinion
• Assuming the continued existence of human nature, it cannot cease to exist.
• NATURAL LAW SCHOOL: OVERLAP THESIS
• All forms of natural law theory subscribe to the Overlap Thesis which asserts that there is
necessary relation between the concepts of law and morality.
• The strongest form of Overlap Thesis underlies the classical naturalism of Aquinas and
Blackstone.
• Blackstone describes the thesis as- “this law of nature, dictated by God himself, is of course
superior in obligation to any other. It is binding over all the globe, in all countries and at all
times: no human laws are of any validity if contrary to this; and such of them as are valid
derive all their force and all their authority, mediately or immediately from this original.” 
NATURAL LAW SCHOOL: PROPONENTS

• Aristotle- Natural law has the same force everywhere and does not exist by people’s
contemplation. It is universal.
• Cicero- Claimed that god is the source of natural law, who gives the natural law its validity. It is
also considered as a “higher” law, meaning that it is superior to any law created by people.
• John Finnis- A set of principles of practical reasonableness in ordering human life and human
continuity.
• St. Thomas Aquinas - Natural Law is the voice of Reason in man which dictates him to
distinguish between good and evil.
POLITICAL PHILOSOPHY

• The ideas of natural justice, equality, human rights and freedom are derived from Natural law.
• Natural law has been used to justify revolutions on the ground that the existing law infringed
individuals’ natural rights. Examples:
In US, the revolution against British colonial rule was based on appeal to the natural rights of all
Americans to life and liberty.
• French revolution also subscribe to the same natural rights especially right of equality.
• Principles of natural justice
• Principle of reasonable man in the law of tort.
• Interpretation of laws by the judges.
CRITICISM AGAINST NATURAL LAW

• Ambiguities of the concept of natural law.

• Positivists argue that whether something is law or not cannot be determined by referring as to
whether it is moral, fair or just.
• People may have different views on what is moral, just and fair.
NATURAL LAW- INDIAN CONTEXT

The most important concepts that India borrowed are:

• 1. No one shall be a judge in his own cause (Nemo debet esee judex in propria sua
causa)
• 2. No one should be condemned unheard (Audi Alteram Partem)
• 3. Our constitution Part III deals with some of the natural laws of fundamental rights.
• 4. Maneka Gandhi v UOI (1978)
• The court held that though the phrase used in Article 21 is “procedure established by
law” instead of “due process of law” however, the procedure must be free from
arbitrariness and irrationality.
CONCLUSION

• Natural law is not man made law. It came from the above (God/Divine).
• It is universal in nature.
• Unalterable.
• Eternal
• Highest law
• Rationality- based on common good Reasonable.
POSITIVIST SCHOOL
ENGLISH/ AUSTINIAN/ ANALYTICAL SCHOOL

• “Positivism” derived from Latin word, “Positium” which means posited.

• Came into existence by early 20th century.
• The philosophy holds that only positive law is law. i.e. juridical norms which have been
established by the authority of the state (sovereign).
• Positive law upholds the notion that the citizen should obey the law. Failure to obey =
punishment.
• Law as it is (actually) - separate from the law that ought to be - clarification of legal
concepts and orderly presentation.
1. JOHN AUSTIN
• The author of The Province of Jurisprudence Determined, and Lectures on Jurisprudence. (1832)
• Positive law is a command laid down by sovereign and enforceable by sanction.
• Features of Law:
• 1. Command
• 2. Sovereign
• 3. Sanction
• Law is made, not based on absolute wisdom.
• Command- a person has no choice to obey or disobey; if he disobeys he will suffer penalty or punishment.
• Sovereign makes the law, people only follow- Austin’s notion of sovereign is if a determinate human
superior not in a habit of obedience to a like superior, receives habitual obedience from the bulk of the
given society, that determinate superior is sovereign in that society.
• Not concerned with whether law is moral, just or unfair
• Thus, all law is positive as it is the expression of the will of supreme authority (sovereign). 
2. HLA HART

• “Positivism and the separation of Law and Morals”.

• Law is a system of rules specifically a systematic union at the center of primary rules and
secondary rules. Hart takes different view from Austin.
• According to him Austin only consider one kind of rule i.e. primary rules that require or
prohibit certain kinds of behavior.
• Austin overlooked the presence of other primary rules that confer upon citizen the power to
create, modify and extinguish rights and obligations in other persons.
• Example: the creation of contract is not a command backed by sanction.
CRITISICM AGAINST POSITIVIST SCHOOL

• No reciprocity- coercive order - one-way projection of authority.

• Not necessarily an expression of the will of the sovereign e.g. Religion, custom.
• Not all laws are commands - e.g. Private laws, administrative laws.
• Absence of morality and justice - Judges when enforcing the law will have to see what law
ought to be and not simply applying what law is.
CONCLUSION

• There are other proponents such as Jeremy Bentham, J.S Mill and Klaus.
• Each proponents have their own interpretation of law. Ultimately, most of the jurists believes
that positivist law has liberal view which separates law and morality. The state is the pinnacle
of law i.e. the law is made by the state and must be habitually obeyed.
SOCIOLOGICAL SCHOOL

• Interpreting the law in the social context, to bring good to the society.
• It started with the idea that it is the purpose of society and social relation which determine the nature,
purpose and functions of law.
• Law is wholly concern with its effect and results on society rather than treating law as will of god or
command of sovereign.
• Books and statutes containing formal rules, legislations and expositions of particular subjects is not
where the real law in society is to be found
• The crux of this school is the idea that law should be studied from the perspective of the society and
the social science method is being utilized to achieve that purpose
• Society needs rules to define and regulate all kinds of social relationship, between individuals
and between groups.
• Society needs rules to control the behavior of its members.
• Hence, it is considered as a form of social control.
• Law is not only about legality and punishment but it is an integral part of the overall social
structures having links and dependencies with other social elements and forces.
• The socio-economic problem of the present time cannot be solved by means of the existing
laws.
• Law is seen as problem solving mechanism
1. ROSCOE POUND
• Laid down the characteristic of sociological jurisprudence as: a) Regard working of law rather than the
abstract content of law. b) Law as a social institution cautiously design on the basis of experiences and
need of the people.
• He introduced the doctrine of social engineering where law and its administration can be an agent of
social change (knowledge of social sciences ).
• Law is an instrument of social engineering. Its function is to maximize the fulfillment of interest of the
community and to provide the smooth-running of the machinery of the society.
• Social Engineering - “Social” means group of individual forming a society. “Engineering” - explained
his concept by explaining the role of engineer/architect and equating it to lawyer’s.
• Just as an engineer chalks up a plan before starting a project so do lawyer’s they must work with a goal
in mind to uplift society
• Purpose of social engineering - construct as efficient a society as possible. Ensures the satisfaction of
the maximum of interests with minimal friction (tension and disagreements) and wastage of resources.
• For a legal enforcement to be effective, the lawyer, jurist and legislator must study the society.
He also espoused the need to have a justice ministry, specifically to study the psychology and
philosophy of judicial matter.
• Role of a lawyer is like an engineer where he aim to build a structure of society in such a way
as to establish the satisfaction of the maximum of wants while minimizing the friction.
• Interest is comprises of demand, desire and expectation. a) Individual interest b) public interest
c) Social interest
2. RUDOLPH VON IHERING

• His most influential work was Der Zweck im Recht (Purpose of Law).
• Law is only an instrument for serving the end needs of the society.
• The purpose of the law is to realize, protect, promote as well as to serve, satisfy and secure the interest of
the society.
• Ihering opined that in every society, there were individual interests as well as group interests. There was
also interests of the society.
• Inevitably, they will conflict.
• For e.g.- right of a person to hold a land. His right to enjoyment of land vs right of the society to build a
road on it? Which one prevails?
• Such conflict will be resolved by giving priority to society – interest of the society is the
paramount as against the interest of individual.
• The state reconciliate the interests by means of sanctions which may take many forms i.e.
economic wants and coercion.
CONTRIBUTIONS OF SOCIOLOGICAL SCHOOL

• It helps us to understand the evolution of law in a better manner.

• Examining the interaction between law and society – law is just not a study of abstract but play
a creative and dynamic functions in society.
• The element of human interest provides greater foundation of identity rather than the logical
structure of the law.
• A study of social interest is essential to the lawyer to enable him to understand legal system.
• The judge and the advocate to interpret law to harmonize conflicting interests.
CRITICISM

• Lawrence Friedman in 1986 writes on the shortcoming of socio-legal studies as follows:

• To many observers, the work done so far amounts to very little; an incoherent or inconclusive
jumble of case studies. There is (it seems) no foundation; some work merely proves the
obvious, some is poorly designed.
• Use of the term ‘engineering’ is criticized on the ground that it equates society to a
factory like mechanism. Society is dynamic whereas a factory is static. Pound’s
emphasis on ‘engineering’ ignores the fact that law evolves and develops in the
society according to social needs and wants.
CONCLUSION

• Law should be studied from the perspective of the society and such study is done by social
science.
• Law is not unique but only one of the social control norms.
• Socio-economic problems of the present time cannot be solved by means of existing laws.
There is thing as ‘social justice’.
HISTORICAL SCHOOL

• As man has a past so does law.

• Historical school is unique for its emphasis of the relevance of
• generations past to the present and the future.
• • Law derives its legitimacy and authority from standards that have
• withstood the test of time.
• • The law is grounded in a form of popular consciousness.
• • Law develops with society and dies with society.
• • Custom is the most important source of law.
1. VON SAVIGNY

• Fredrich Kari Von Savigny is universally recognized as the founder of the historical school
or Jurisprudence.
• In his view, the law was not something that should be made arbitrarily and deliberately by
a law-maker. Law, he said, was a product of internal, silently, operating forces.
• Law, to Savigny, was the like language, which gradually evolves and is shaped by religion,
custom, habits, tradition etc. of the people and thus bears a national imprint and character.
• Volkgeist- “volk”- people & “geist”- Common will; Law is the common will of the people.
• Law grows with the growth and strengthens with the strength of the people, and finally
dies asway as nation loses its nationality.
2. HENRY MAINE

• Comparative studies of legal institutions - primitive as well as progressive societies. - ‘statics’ and
‘progressive’ societies.
• Law develop in four stages:
• 1. First stage- law making by personal command believed to be of divine
• inspiration
• 2. Second stage - commands crystallize into custom.
• 3. Third stage- the ruler is superseded by a minority which obtains control
• over the law
• 4. fourth stage- publication of the law in the form of a code
• The ‘static’ societies do not progress beyond these 4 stages. Whereas the most distinctive feature
of ‘progressive’ societies is that they further develop the law through fiction, equity and legislation.
• MONTESQUIEU
• He held that laws should be adopted to suit the people, for whom they are framed,
keeping in view the degree of liberty which constitution desires to grant to its people.
CRITICISM

• 1. Allen - some customs not the outcome of common consciousness of people. They
are outcome of the interest or convenience of a strong and powerful minority of a
ruling class. - “slavery”.
• 2. Prof. Stone - (Savigny) excessive emphasis upon the unconscious forces which
determine the law Ignored the efficiency of legislation - instrument of deliberate,
conscious and planned social change.
• 3. Prof. Dias- Difficulty lies in precision. National character of law manifests in only
some branches like family law.
LEGAL REALISM

• Part of Sociological approach

• “Realist”- Law in actual working
• Study judgments – forces which influence
• Emphasis on judges - Law decided by judge
• Realism denounces traditional legal rules and concentrate more on what the court actually do in
reaching the final decision.
• Certainty of law is a myth- same case – same law- different judgements
• realism is merely an intellectual movement and not a school of thought or set of theories of law
• Legal realism comprises primarily of two branches, namely, American Legal Realism and
Scandinavian Legal Realism. (Europe, Sweden, Norway, England)
• language of law has not only inherent limitations, but its meaning is imputed by the judges
who decide cases
• There were many factors which influenced the judges in deciding a case in a way it was
decided.
• This was understood to be 'law in action' as opposed to 'law in books’.
• Proponents of this School -
1. Gray
• Placed judge in the centre
• Great influence of personality
2. Justice Holmes
• Law different from morals
• Law as “prediction”- what courts may do
CRITICISM

1. Overall approach of the realists, in general, undermines the importance of statutory

principles and rules.
2. undue amount of importance to litigation and the human factor in law and have been
ignorant of that part of the law which does not even come before the courts for
adjudication purposes.
HANS KELSEN-
PURE THEORY OF LAW

• “pure theory of law”, i.e., a theory free from social, historical, political, psychological
etc. influences (Thus, excluding everything which is strictly not law).
• Legal theory is a science not volition
• Law is a normative science
• A norm is about what ought to be done or not done. human being ought to behave in a
specific way.- person who commits theft ought to be punished is a norm.
• Concept of Grundnorm
• Based on pyramidical structure of hierarchy of norms
• legal norms arise from validation by another valid norm (basic norms) - Grundnorm
• First cause of the legal system beyond which we cannot speculate in a legal sense -
Hypothetical starting point
• Basic norm – not tested presumed - presupposed
CRITICISM

1. Hans Kelsen does not provide any minimum criteria for the concept grundnorm. The
effectiveness of the concept depends upon sociological factors. However, Hans
Kelsen himself rejected sociological factors.
2. In modern world, the concept law has to interact with other social disciplines like
sociology, psychology, economics etc. From that perspective, pure theory of law is
inadequate.