Jurisprudence I Notes

Definition, Nature, Scope & Importance of Jurisprudence

Definition and Meaning

The term Jurisprudence is a Latin term having meaning ‘Knowledge of Law or Skill of Law’
(Juris=Law). (Prudence=Knowledge of Law). It is defined as a study of the fundamental legal
principles including their philosophical, historical, and sociological bases, and, an analysis of legal
concepts. It is a type of investigation into the essential principles of law and the legal systems
(Salmond). It is the science of the first principles of civil law. Legal concepts like contracts, torts or
criminal law consist of a set of rules. It has no such legal authority, and further, it has no practical
application. The jurists have a free approach in their investigations. Further, the method of enquiry in
jurisprudence is different from other legal subjects.

Jurisprudence study about the law and includes the study of the term law, sources of law and legal
terminologies. It has been defined by various authors as follows:-

Salmond:-Jurisprudence is defined as the Science of Law. In science, there is a systematic study of

Nature and in Jurisprudence there is a systematic study of Law.
Austin:- According to this author Jurisprudence is the philosophy of Positive Law. And it governesses
all actions of human being which are illegal and unjustified.
Gray:- According to this author Jurisprudence is the study of legal systems of all the countries.
Duguit :- According to this author Jurisprudence is knowledge of just and unjust. And Human law and
Divine Law or Natural law.

Nature of Jurisprudence
It is Uncodified Law
It is common law in all countries
This law has been developed and not enacted by the Legislative.
It is also called legal theory, there is an actual study of the term law in Jurisprudence.
There is no scope for amendment and it is developing out of legal knowledge of the people.
 Scope of Jurisprudence
There is a wide scope of Jurisprudence and it is related to so many other subjects that can be explained
as follows:

Jurisprudence and economics:-

Economics is the science of wealth. People commit many illegal activities for the sake of wealth and
law tries to control illegal activities and to punish the criminal’s same law is studied in Jurisprudence
and therefore Jurisprudence and economics are correlated.

Jurisprudence and Politics:-

Laws are enacted by political parties. Who are elected by people called as Legislatures. Jurisprudence
study law enacted by political parties who are in power and therefore Jurisprudence is also related with
Political Science.

Jurisprudence and Sociology :-

Sociology is also called as Science of Society. It studies about the development of Society. Law is the
requirement of Society. Which is studied in Jurisprudence and it is related with Sociology.

Jurisprudence and Ethics:- (Ethics means Morality)

Ethics or morality is base of Law. Many Laws have been enacted by considering morality. But it is not
in all the laws. Therefore law and morality are ethics are also correlated.

Importance of Jurisprudence

It is compared with science which shows the importance of Jurisprudence.

It studies the legal systems of all the countries.
It is called as foundation or base of the law and the study of jurisprudence is much important.
It is related to many other subjects which shows the importance
of jurisprudence.
It makes a study of term law and sources of law which is necessary.
It is like a tool in hands of legal expertise which is helpful in the interpretation of the law.

SCHOOLS OF
JURISPRUDENCE
There are four main divisions in schools of jurisprudence, namely

(1) the Philosophical or Natural School

(2) the Analytical (including the comparative),

(3) the Historical, and

(4) the Sociological.

Besides we have the Realist School in the United States.

THE PHILOSOPHICAL SCHOOL OF JURISPRUDENCE

GROTIUS (1583-1645)

Hugo Grotius was a Dutch national and a Republican philosopher. He is regarded as the father of
philosophic al school of jurisprudence. In his famous work 'The Law of War and Peace', Grotius
stated that natural law springs from the social nature of man and the natural law as well as
positive morality, both are based on the nation of righteousness. Natural justice is the justice
indeed with truth. The rules of human conduct emerge from right reason and they receive public
support of the coercive force of the state but the census of public disapprobation. The view of
Grotius was that the agreement of mankind concerning certain rules of conduct is an indication
that those rules originated in right reason.

In detaching the science of law from theology and religion, he prepared the ground for the
secular, rationalistic version of modern natural law. Among the traits characteristic of man, he
pointed out, was an impelling desire for society, that is, for the social life- "not of any and every
sort, but peaceful, and organised according to the measure of his intelligence l, with those who
are of his own kind." He refuted the assumption of the Greek Skeptic Carneades that man was
actuated by nature to seek only his own advantage, believing that there was an inborn sociability
in human beings which enabled them to live peacefully together in society. Whatever conformed
to this social impulse and to the nature of man as a rational social being was right and just;
whatever opposed it by disturbing the social harmony was wrong and unjust. Grotius defined
natural law as "a 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.” Grotius
thereby grounded the natural law on an eternal reason pervading the cosmos, although he
admitted the alternative possibility of a theist foundation.

Grotius pointed out that two methods existed for proving whether something was or was not in
accordance with the law of nature. “Proof a priori consists in demonstrating the necessary
agreement or disagreement of anything with a rational or social nature; proof a posteriori, in
concluding if not with absolute assurance, at least with every probability, that that is according to
the law of nature which is believed to be such among all nations, or among all those that are
more advanced in civilisation.” Grotius added that no conclusion unfavourable to human nature
needed to be drawn from the practices of nations that were savage or inhuman. He agreed with
Aristotle that in order to find out what was natural, we must look to those things which are in a
sound condition, not to those that are corrupted.

Among the chief axioms of natural law enumerated by Grotius are the following: to abstain from
that which belongs to other persons; to restore to another any goods of his which we may have;
to abide by pacts and to fulfill promises made to other persons; to repay any damage done to
another through fault; and to inflict punishment upon men who deserve it. Many of the more
detailed and special rules of the law, in his opinion, represented merely necessary derivations
from these general precepts.

EMMANUEL KANT (1724-1804)

Kant gave modern thinking a new basis which no subsequent philosophy could ignore. The
Copernican Turn' which he gave to philosophy was to replace the psychological and empirical
method by the critical method by an attempt to base the rational character of life and world not
on the observation of facts and matter but on human consciousness itself. Kant, in his Critique of
Pure Reason tried to draw a distinction between form and matter. He observed that the
impression of our senses is the matter of human experience which are brought into order and
shaped by human mind. According to him "the freedom of man act according to his will and the
ethical postulates are mutually co-relative because no ethical postulate is possible without man's
freedom of self determination". Kant calls substance of ethical postulate as “Categorical
Imperative" which is the basis of his moral and legal theory.

JOHANN GOTTLIEB FICHTE (1762-1814)

Transcendental idealism presented itself in a pure and uncompromising form in the philosophy of
Johann Gottlieb Fichte. To him, the starting point and center of all philosophical thinking is and
must be the intelligent human ego. Not only the forms of our cognition, as Kant had taught, but
also the content of our perceptions and sensations, were regarded by Fichte as the product of our
consciousness. “All being, that of the ego as well as that of the non-ego, is a certain modality of
consciousness; and without consciousness there is no being.” The non-ego, that is, the word of
objects, is in Fichte’s view, nothing but a target for human action, a domain for the exertion of
the human will which is able to shape and transform this world. Fichte’s philosophy is one of the
human activism without bounds, and it represents an enthusiastic affirmation of the sovereign
power of human intelligence.

The legal philosophy of Ficthe is deduced from the self consciousness of the reasonable being,
no reasonable being can think himself without ascribing the activity to himself. Freedom is a
necessity of mutual. The sphere of legal relation is that part of mutual personal relations which
regulates the recognition and definitions of the respective spheres of liberty on the basis of free
individuality as the relation between individual and the state. Fichte points out that it is regulated
by three basic principles, namely:-
 ● An individual becomes a member of the state through fulfillment of civic duties.
● The law limits and assures the rights of the individuals.
● Outside his sphere of civic duties, an individual is free and honky responsible to himself.

HEGEL (1770-1831)

Hegel was the most influential thinker of the philosophical school. His system is a necrotic one.
According to him "the state and law both are evolutionary."

The great contribution of Hegel to philosophical school is the development of the idea of
evolution. According to him, the various manifestations of social life, including law are the
product of an evolutionary, dynamic process. This process takes on a dialectical form, revealing
itself in thesis, antithesis and synthesis. The human spirit sets a thesis which becomes current as
the leading idea of a particular historical epoch.

In this historical process, law and the state plays a vital role, according to Hegel. The system of
law, he asserted, is designed to realise the ideal of freedom in its external manifestations. It bears
emphasis, however, that for Hegel freedom did not signify the right of a person to do as he
pleased. A free person, in his view, is one whose mind is in control of his body, one who
subordinates his natural passions, irrational desires, and purely material interests to the superior
demands of his rational and spiritual self. Hegel admonished men to lead a life governed by
reason and pointed out that one of the cardinal postulates of reason was to accord respect to the
personality and rights of other human beings. The law was considered by him as one of the chief
instruments to devise to reinforce and secure such respect.

HISTORICAL SCHOOL OF JURISPRUDENCE

The historical school antedates the work of Kelsen, but the reason for postponing discussion of
the historical thesis is that, in opposition to the doctrine of the pure science of law, the historical
school considered law in direct relationship to the life of the community and thus laid the
foundation on which the modern sociological school has built. The eighteenth century was an
age of rationalism; it was believed possible by arm-chair deliberation to construct a universal and
unchangeable body of laws that would be applicable to all countries, using as a premises the
reasonable nature of man. The historical school in part was a result of the surge of nationalism
that arose at the end of the eighteenth century. Instead of the individual, writers began to
emphasis the spirit of the people, the Volksgesit.
The contribution of the historical school to the problem of the boundaries of jurisprudence is that
law cannot be understood without an appreciation of the social milieu in which it has developed.
The slow evolution of law was stressed and its intimate connection with the particular
characteristics of people. Ever since Savigny wrote, the values which jurisprudence can gain
from a proper use of the historical method have been well recognised, and in England Maine and
Vinogradoff have kept the interest in these problems alive. Writers of legal history such as
Pollock and Maitland or Sir William Holdsworth have provided surveys whose value for the
jurist lies in the clear demonstration of the close connection between the common law and the
social and political history of England.

In particular the historical school destroyed forever the shibboleth of immutable rules of law,
discovered by abstract reason; they demonstrated that just as in the case of the human body,
transplants of legal systems or constitutions may be defeated by the immunological reaction of
the receiving country.
FRIEDRICH CARL VON SAVIGNY (1779-1861)

Savigny was born in Frankfurt in 1779. His interest in Historical studies was kindled at the
university of Marburg and Gottingen and greatly encouraged when he came into contact with
great historians at the University of Berlin. He served university of Berlin as a teacher. He also
acquired a lasting veneration for Roman law. His works, (i) The law of possession. (ii) The
History of Roman law in the middle ages (iii) The system of modern roman law-testify his
genius. He attacked the idea of codification in Germany as he knew the defects of the
contemporary codes. According to him code was not a suitable instrument for the development
of German law at that time. Law is a product of the people's life-it is a manifestation of its spirit.
Law has its source in the general consciousness of the people.

Thus, in the view of Savigny, law, like language, is a product not of an arbitrary and deliberate
will but of a slow, gradual, and organic growth. The law has no separate existence, but is simply
a function of the whole life of a nation. "Law grows with the growth, and strengthens with the
strength of the people, and finally dies away as the nation loses its individuality."

LAW DEVELOPS LIKE LANGUAGE

In all societies, it is found already established like their language, manners and political
organisation. These all are stamped with a national character. They are the natural manifestations
of popular life and by no means product of man's free will. Law, language, customs and
government have no separate existence. The organic evolution of law with the life and character
of the people develops with the ages and in this it resembles language. As in the latter, there can
be no instance of rest; there is always movement and development of law governed by the same
power of internal necessity as simple phenomenon. Law grows with nation, increases with it and
dies at its dissolution and is a characteristic of it.

EARLY DEVELOPMENT OF LAW IS SPONTANEOUS: LATER ON IT IS DEVELOPED BY JURISTS; -

About the development of law, Savigny says that in the earlier stages law develops
spontaneously according to the principle of internal necessity. After the society has reached a
certain stage of civilization, the different sides of national activities, hitherto developing as a
whole, divide in different branches and are taken up by specialists and jurists, linguists and
scientists. In the hands of specialists, these subjects become richer in ideas, more complete and
technical. Law, like other subjects now assumes a double existence, “on the one side a general
national life, on the other the distant science of jurists. The relation of law to the general life of
the people might be called its political elements, its connection with the juristic science, its
technical element. The correlation of these two elements varies with the elements of life of
people but both participate more or less in the development of law.”

LAW IS A CONTINUOUS AND UNBREAKABLE PROCESS: Savigny sees a nation and its state as
organism which takes birth, matures, declines and dies. Law is a vital part of that organism. Law
grows with the growth and strengthens with the strength of the people. It dies away as the nation
loses its nationality. Nations and their law go through three development stages. There are
principles of law which are not found in legislation but are a part of “national conviction”. These
principles are implicitly present in formal symbolic transactions which command the high
respect of the population, form a grammar of the legal system of a young nation and constitute
one of the system’s major characteristics.

THE HISTORY OF ROMAN LAW AS EXAMPLE: - As an example of this process he presents the
history of Roman law, a comparison of its early simple foundations with the complex and
technical law of the Pandects.

PRINCIPAL DOCTRINES OF SAVIGNY'S THEORY

The main proposition of the historical school, as expounded by Savigny and some of his
followers may be summarized as here under;-

1. LAW IS FOUND, NOT MADE:- A pessimistic view has been taken of the power of human
action. The growth of law is essentially an unconscious and organic process. Legislation,
thus, is of subordinate significance as compared to custom, because the statute is always
unyielding and takes less account of the circumstances of the individual cases.

2. Law develops from a few easily gasped legal relations in primitive communities to the
greater complexity of law in modern civilization, popular consciousness can no longer
manifest itself directly, but comes to be represented by lawyers, who formulate the
technical legal principal. But the lawyer remains an organ of popular consciousness,
limited to the task of bringing into shape what he finds as raw material. Legislation
appears at the last stage; the lawyer, therefore, is a more important law making agency.

3. LAWS ARE NOT OF UNIVERSAL APPLICATION:- Each person develops its own legal habits,
as it has its own peculiar language, manners and constitution. Savigny here has insisted
upon the parallel between language and law. Neither is capable of application to other
 people and countries. The Volkgiest manifests itself in the law of the people; it is,
therefore, essential to consider the evolution of Volkgiest by legal historical research.

4. As laws grow into complexity, the common consciousness is represented by lawyers

who 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
legislator.

SUMMARY:

Savigny’s theory can be summarized as follows;

● That law is a matter of unconscious and organic growth. Therefore, law is found and not
made.
● Law is not universal in its nature. Like language, it varies with people and age.
● Custom not only precedes legislation but it is superior to it. Law should always conform
to the popular consciousness.
● As laws grow into complexity, the common consciousness is represented by lawyers who
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.

CRITICISM AGAINST SAVIGNY’S THEORY

Savigny while advocating the role of evolution and growth in the development of law his
approach towards law was vitiated in the following manner;

1. He laid excessive emphasis upon the unconscious forces which determine the law of a
nation and ignored the efficacy of legislation as an instrument of deliberate, conscious
and planned social change. In modern developing societies like India legislation is being
created, enacted and used as an important instrument of social change and social reform.
As he underestimated the importance of legislation and took a pessimistic view of human
 power for creation of law to bring about social change so he is criticised for his juristic
pessimism.
2. 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.
3. Volkgiest itself is an abstract idea as indeterminable and vague as the natural law itself.
4. He did not encourage law reform including codification of law.
5. His theory of law and society postponed the emergence of modern sociological school
because most of the sociologists like Durkheim, Ehrlich, Kohler, Weber, etc. were
confounded by the spell of Savigny’s Volkgiest which postponed the study of scientific
appraisal of society in terms of its ends and goals.

SAVIGNY AND AUSTIN- COMPARISON

It is interesting to note that the two great jurists expounded two different legal theories in
England and Germany somewhat contemporaneously. Besides striking differences there are
some common features in their legal theories: these are;-

1. Both Austin and Savigny are against the rationalism and universalism of the natural law
philosophy.

2. Austin and Savigny's legal philosophy is a reaction and protest against the priori method of the
natural law. Both of them consider law as a scientific or factual reality based on a posteriori
method.

3. Both of them are comparative jurists-Austin basing his law on the study of Roman law and
English law and Savigny propounding his thesis too on the basis of German law and old Roman
law which had been to Germany in sixth century A.D.

4. Both are concerned with the nature of law rather than its functions.
 ANALYTICAL SCHOOL OF

JURISPRUDENCE

Positivism

The French mathematician and philosopher Augste Comte (1798-1857), who may be regarded as
the philosophical founder of modern positivism, distinguished three stages in the evolution of
human thinking. The first stage, in his system, is the theological stage, in which all phenomenons
are explained by reference to supernatural causes and the intervention of a divine being. The
second is the metaphysical stage, in which thought has recourse to ultimate principles and ideas,
which are conceived as existing beneath the surface of things and as constituting the real moving
forces in the evolution of mankind. The third and last stage is the positivistic stage, which rejects
all hypothetical constructions in philosophy, history, and science and confines itself to the
empirical observation and connection of facts under the guidance of methods used in the natural
sciences.

The emergence of the modern state as the more and more exclusive repository of political and
legal power not only produced class of civil servants, intellectuals and others, but it also
demanded more and more organisation of the legal system, a hierarchical structure of legal
authority and the systematization of the increasing mass of legal material. The task of organizing
and systematizing legal system can nonetheless be attributed to one of the vital school of
jurisprudence, namely, analytical’ which set for itself a task of separating the law as ‘it is’ and
the law as it ‘ought to be’.

The separation of law as ‘it is’ and the law as ‘it ought to be’ is the most fundamental
philosophical assumption of legal positivism. It represents a radical departure both from the
scholastic hierarchy of values in which positive law is only an emanation of a higher natural law,
and from the fusion of the philosophy of law and the science of law. Separation of ‘is’ and
‘ought’ does not imply any contempt from the importance of values in law, as is manifest from
the work of Austin, Kelsen and others.

The mission throughout of the analytical jurisprudence has been to isolate from the great mass of
available legal material, the enduring elements which recur endlessly in the concrete legal
phenomenon and to analyse and arrange these elements into an abstract system or classification.
 JEREMY BENTHAM
1748-1832
Jermy Bentham heralded a new era in the history of legal thought in England. He is considered to
be the founder of positivism in the modern sense of the term. It has been rightly said that Austin
owes much to Bentham and on many points his propositions are merely the “Para-phrasing of
Bentham’s theory”. Bentham’s classic work reveals that truly speaking he should be considered
to be the father of analytical positivism and not John Austin as it is commonly believed.

Bentham was the son of a wealthy London Attorney. His gene was of rarest quality. He was a
talented person having the capacity and acumen of a jurist and a logician. Dicey in his book,
“law and Public opinion in 19 th century”, has sketched Bentham’s ideas about individualism, law
and legal reforms which have affected the growth of English law in the positive direction. The
contribution of Bentham, to the English law reforms can be summarized thus-

“He determined in the first place, the principles on which reforms should be based.

Secondly, he determined the method, i.e., the mode of legislation by which reforms should be
carried out in England.”

He defined law as;

“A law may be defined as an assemblage of signs declarative of a violation 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 supposed to be subject to his power:
such volition trusting for its accomplishment to the expection of certain events which it is
intended such declaration should upon occasion be a means of bringing to pass, and the prospect
of which it is intended should act as a motive upon those whose conduct is in question.”

Individualism; Utilitarianism.- Bentham’s legal philosophy is called ‘utilitarian individualism’.

He was an individualist. He said that the function of law is to emancipate the individual from the
bondage and restraint upon his freedom. Once the individual was made free, he himself shall be
looking after his welfare. In this way, he was a supporter of ‘lassiez faire’ principle of
economics. He pleaded for codification and condemned judge-made law and customs etc. he was
a utilitarian also. According to him, the end of legislation is the ‘greatest happiness of the
greatest number.’ He defined utility as the property or tendency of a thing to prevent some evil or
to procure some good.

JOHN AUSTIN

Born in 1790 John Austin served as an army officer for five years until 1812, when he was called
to the bar by the Inner temple in 1818. But ill health and inability to work efficiently and
promptly prevented him from succeeding at the bar. He was elevated to the chair of
jurisprudence in the University of London in 1826. Thereafter he went to Germany to study
Roman law in Heidelberg and Born universities. He was much inspired by the scientific
treatment of Roman law and drew inspiration to introduce the same method to the legal
exposition of law in England. He, however, avoided metaphysical approach to law which was a
peculiar character of law in Germany. His lectures delivered in London University were
published under the title of “The province of Jurisprudence determined”. In his lectures he deals
with the nature of law and its proper bonds. He wrote another book “A Plea for the Constitution”,
it was rather an answer to an essay by Gray “on Parliamentary Government”. But his main
contribution to jurisprudence is his first book and on it rests his personality.

J.S. Mill, who heard his lectures, writes that his lectures left “an indelible impression on those
who heard them.

The method which Austin applied is called analytical method and he confined his field of study
only to the positive law. Therefore the school founded by him is called by various names-
Analytical; positivism, analytical positivism. Some have objected to all the three terms. They say
that the word ‘positivism’ was started by Augste Comte to indicate a particular method of study.
Though this positivism, later on, prepared the way for the 19 th century, legal though, it does not
convey exactly the same sense at both the places. Therefore, the word positivism alone will not
give a complete idea of Austin’s school. In the same way ‘analysis’ also did not remain confined
only to the school, therefore, it alone cannot give a separate identity to the school. Analytical
positivism too may create confusion. The Vienna School in its ‘pure theory of law’ also applies
analytical positive although in many respects they vitally differ from Austin’s school. To avoid
confusion and to give clarity which is the aim of classification, Professor Allen thinks it proper
to call the Austin’s school as ‘imperative school’. This name he gave on the basis of Austin’s
conception of law ‘law is command’.

AUSTIN’S CONCEPTION OF LAW

Austin’s most important contribution to the legal theory was the substitution of the command of
the sovereign i.e., the state, for any ideal of justice in the definition of law.

Law in the common use means and includes things which can’t be properly called ‘law’. Austin
defined law as a rule laid down for the guidance of an intelligent being by an intelligent being
having power over him.

The substitution of the command of the sovereign by Austin led him to write at a time when
England was actually in dire need of vast legislative reforms. There was no school of
jurisprudence which could share in the handiwork, whereas full confidence was reposed in the
power and wisdom of parliament as a legislative assembly. In these circumstances, it was not
strange that he should have adopted sovereignty as his principle to build on this a science of
jurisprudence sufficient to subserve the requirements of the people.

Law is thus, strictly divorced from justice and instead of being based on the ideas of good and
bad, is based on the power of a superior. This inevitably associates Austin with Hobbes and other
theorists of sovereignty, but it was left to Austin to follow up this conception into the
ramifications of a modern legal system.
 AUSTIN’S CLASSIFICATION OF LAW

Austin’s classification of law falls under two heads, namely, laws set by God, and Laws set by
men to men (human laws).

LAWS SET BY GOD: This category of laws is of no real juristic significance in Austin’s system,
compared, for example, with the scholastic teachings which establish an organic relation between
divine and human law.

HUMAN LAWS: Human laws may be divided into two classes-

I. Positive law (laws properly so called):- These are the laws set by political superior as
such or by men not acting as political superior but acting in pursuance of legal rights
conferred by political superiors. Only these laws are the proper subject-matter of
jurisprudence.
II. Other laws: These laws which are not set by political superior or by men in pursuance of
a legal right. In this category are multiple types of rules such as, rules of clubs, law of
fashion, laws of natural science, and the rules of international law. Austin names all these
‘positive morality’.

Contrary to the above, laws properly so called are a species of commands. But being a command,
every law properly so-called flows from a determinate source. Whenever a command is
expressed or intimated, one party signifies a wish that another shall do or forbear; and the later is
obnoxious to an evil which the former intends to inflict in case the wish be disregarded. Every
sanction properly so called is an eventual evil annexed to a command. Every duty properly so
called supposes a command by which it is created….and duty properly so called is obnoxious to
evils of the kind.

The laws properly so-called, with laws improperly so called, may be aptly divided into the
following four kinds-

● The divine laws, or the laws of God; that is to say, the laws which are set by God to his
human creatures.
● Positive laws, or the laws which are simply and strictly so called, and which from the
appropriate matter of general and particular jurisprudence.
 ● Positive morality, rules of positive morality or positive moral rules.
● Laws metaphorical or figurative, or merely metaphorical or figurative.

The science of jurisprudence, according to Austin, is concerned with positive laws or with laws
as considered without regard to their goodness or badness. All positive law is deduced from a
clearly determinable law-giver as sovereign. In other words, every positive law, or every law
simply and strictly so-called, is set by a sovereign or a sovereign body of persons to a member or
members of the independent political society wherein that person or body of persons is sovereign
or supreme.

LAW EMANATES FROM SOVEREIGN

Austin’s most important contribution to legal theory according to Friedmann was his substitution
of the command of sovereign for any ideal justice in the definition of law. The first jurist to make
jurisprudence as a ‘science’ was John Austin who is often described as Father of jurisprudence.

Sovereign defined and analyzed:- While defining a sovereign Austin said, “if a determinate
human superior, not in a habit of obedience to alike superior, receives habitual obedience from
the bulk of a given society, that determinate superior is sovereign in that society and the society
(including the superior) is a society political and independent.

LAW AS A COMMAND

Austin defines command as “if you express or intimate a wish that I shall do or forbear from
some act and if you will visit me with an evil, in case I comply with your wish-it is a command”.
A command is different from other significations of desire, not by the style in which the desire is
signified but by the power and the purpose of the partly commanding to inflict an evil or pain in
case the desire be disregarded. Thus, a command is significance of desire. But a command is
distinguished from other significations of desire by this peculiarity that the party to whom it is
directed is liable to evil from other, in case he complies not with the desire.

SANCTION

Austin said, “Sanction operate upon the desires and that men are obliged to do or forbear through
the desires. For, he is necessarily averse from every evil whatsoever. That every sanction
operates upon the will of the obliged is not true. If the duty be positive, and if he fulfills the duty
out of regard to the sanction, it may be said with propriety that the sanction operates upon his
will. For his desire of avoiding the evil which impends from the law, makes him do and
therefore, will the act which is the object of the command and duty. But if the duty be negative
and if he fulfills the duty out of regard to the sanction, it can scarcely be said with propriety that
the sanction operates upon his will. His desire of avoiding the evil which impends from the law
makes him forbear from the act which the law prohibits. But though he intends the forbearance,
he does not will the act forborne, or he remains in a state of inaction which equally excludes it. In
the former case he does not will the forbearance. In the later case he wills nothing.”

Only General Commands are law:

However, all the commands are not law, it is only the general commands, which obliges to a
course of conduct, is law.

Exceptions:

The general commands are the proper subject of study of jurisprudence. But according to Austin,
there are three kinds of laws which though not commands, are still within the province of
jurisprudence. They are.-

● Declaratory or Explanatory Laws: - Austin does not regard them as commands, because
they are passed only to explain laws already in force.
● Laws to repeal laws: - These too are not commands but are rather the revocation of a
command.
● Laws of imperfect obligation: - These laws have no sanction attached to them.
 CRITICISM AGAINST AUSTIN’S THEORY

Austin’s theory has been criticised by a number of jurists and by some of them very bitterly.
Bryce went to the extent of saying that ‘his contributions to juristic science are so scanty and so
much entangled in error that his nook ought no longer to find a place among those prescribed for
student.’ However, this is an extreme view. The main points of criticism against Austin’s theory
are as follows;

a) CUSTOMS OVERLOOKED:- ‘Law is the command of sovereign’, as Austin says, is not

warranted by historical facts. In the early times, not the command of any superior, but
customs regulated the conduct of the people. Even after the coming of the state into
existence, customs continue to regulate the conduct. Therefore, customs should also be
included in the study of jurisprudence, but Austin ignored them.
b) LAW CONFERRING PRIVILEGES:- The law which is purely of a permissive character and
confers only privileges, as the Wills Act, which lays down the method of drawing a
testamentary document so that it may have legal effect is not covered by Austin’s
definition of law.
c) NO PLACE FOR JUDGE MADE LAW:- Austin ignored them. In Austin’s theory there is no
place for judge-made law. In the course of their duty judges make law. though an
Austinian would say that judges act under the powers delegated to them by the sovereign,
therefore, their acts are the commands of the sovereign, nobody, in modern times, will
deny that judges perform a creative function and Austin’s definition of law does not
include it.
d) 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.
e) 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.
f) 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. It is submitted that it is
not a correct view. Lord Bryce has summed up the motives as indolence, deference,
sympathy, fear and reason that induces a man to obey law. The power of the state is ratio
ultima-the force which is the last resort to secure obedience.
g) COMMAND OVER EMPHASIZED:- The Swedish jurist Olivercrone has denounced Austin’s
theory of law because of its over-emphasis on command as an inevitable constituent of
law. in modern progressive democracies law is nothing but an expression of the general
will of the people. Therefore, a command aspect of law has lost its significance in the
present democratic setup.

SALIENT POINTS OF AUSTIN’S THEORY

Austin’s theory prominently brings out the following four points;

● That every law is a species of command;

● That all positive laws are command of the sovereign either directly or indirectly;
● That every law prescribes a course of conduct; and
● That every law has for its sanction the physical force of the state.
POINTS OF DIFFERENCE BETWEEN ANALYTICAL SCHOOL AND HISTORICAL SCHOOL OF
JURISPRUDENCE:

Analytical School Historical School

1 Law is the creation of state. Law is found and not made. Law is self-
existent.
2 Without a sovereign, there can be no law. Law is an antecedent to the state and exists
even before a state organisation comes
into being.

3 The hall-mark of law is enforcement by Law is independent of political authority

the sovereign. and enforcement. It is enforced by the
sovereign because it is already law; it does
not become law because of enforcement
by the
sovereign.
4 The typical law is statute. The typical law is custom.
5 Judges should confine themselves to a In constructing a statute judges should
purely syllogistic method. consider the history of the legislation in
question.
6 Law rests upon the force of politically Law rests on the social pressure behind the
organised society. rules of conduct which it enjoins.
7 Emphasis is on empirical a priori method. Emphasis is no comparative method.
8 Law is the command of the sovereign. Law is the rule whereby the invisible
border
9
 SIR HENRY MAINE
1822-1888
Maine made a comparative study of legal institution of various communities and laid down a
theory of evolution of law. His method was a great improvement upon historical school and
yielded fruitful results.

Maine mad every valuable contribution to legal philosophy by way of historic comparative
method. He was an erudite scholar of law. He started his career as Regis Professor of civil law in
the University of Cambridge at an early age of twenty five. He was law member in the council of
the Governor General of India between 1861 and 1869. This provided him an opportunity for the
study of Indian legal system. From 1869 to 1877 he occupied the chair of historical and
comparative jurisprudence in Corpus Christi College, Oxford. After that he held the
distinguished post of the master of trinity Hall, Cambridge.

The founder of English historical school of jurisprudence was Maine. His important works are
Ancient Law 1861, Village Communities in the East and West 1871, Lectures on the Early
History of Institution, 1874, and Dissertation on Early law and Custom, 1883. Maine made a
significant contribution to law by indicating that there has been a parallel and alike growth and
development of legal institution and law in the societies of the east and west up to a certain stage.

Maine’s “status to contract” doctrine is by no means his only outstanding contribution to

jurisprudence. He has enriched our knowledge and understanding of legal history in several
aspects. Very interesting, for example, is his theory of law and lawmaking. He believed that in
the earliest period law was created by the personal commands of patriarchal rulers, who were
considered by their subjects to at under divine inspiration. Then followed a period of customary
law, expounded and applied by an aristocracy or small privileged class which claimed a
monopoly of legal knowledge. The third stage was marked by a codification of these customs as
the result of social conflicts. The fourth stage, according to Maine, consists in the codification of
strict archaic law by the help of fiction, equity and legislation; these instrumentalities are
designed to bring the law into harmony with a progressing society. Finally, scientific
jurisprudence weaves all these various forms of law into a consistent and systematic whole. Not
all societies, said Maine, succeed in passing through all these stages, and their legal development
in its particular aspects does not show a uniform line. Maine merely wished to indicate certain
general directions and trends of development in the evolution of law. Modern research has shown
that, on the whole, he has succeeded remarkably well in tracing some of the fundamental lines of
a natural history” of the law.

DEVELOPMENT OF LAW

LAW MADE BY THE RULER UNDER DIVINE INSPIRATION OR DIVINE LAW OR DOOMS OR
THEMESTERS: In the beginning, law originated from themes which meant the Goddess of justice.
It was generally believed that while pronouncing justice the king was acting under the divine
inspiration of Goddess of justice to be executed by the king as custodian of justice under divine
inspiration.

Themesters are the awards pronounced by judges as divinely dictated to him. Themesters are not
laws but judgments or dooms. The king happened to be the administrator of judgments -of course
he was not the maker of law as the themester were divinely inspired by Goddess of justice.

CUSTOMARY LAW: The next stage was reached when the office of the king or judge was inspired
by the councils of chiefs. The priest became the depositories of law who circumscribed the
king’s power and claimed the sole monopoly of knowledge. Therefore, the priestly class
attempted to preserve the customs of the race or caste intact. Since the art of writing had not been
invented so customs of the community became law for the people who were united by blood
relationship. Thus we notice a particular important phenomenon. Maine’s theory of legal
development conception of customs emerging posterior to that themester or judgments.

KNOWLEDGE OF LAW IN THE HANDS OF PRIEST : In the next stage of development of law, the
authority of the king to enforce and execute law inspired by the priestly class claimed themselves
to be learned in law as well as religion. The priestly class claimed that they memorized the rules
of customary law because the art of writing had not developed till then.

ERA OF CODES (CODIFICATION): The era of codification marks the fourth and perhaps the final
stage of development of law. With the discovery of the art of writing, a class of learned men and
jurists came forward to denounce the authority of priests as law givers. They advocated
codification of law to make it accessible and easily knowable. This broke the monopoly of priest
class in matters of administration of law. most important codes of the era were Twelve Tables of
Rome, Manu’s code which were mixture of moral, religion and civil laws, Twelve Tables in
Rome, Solon’s Attic code, Hebrew Code, the Codes of Hammurabi etc.

TYPES OF SOCIETIES

According to Maine, there are two types of societies, Progressive Societies and Static societies

According to Henry Maine, when the primitive law has been embodied in a code, there is an end
to its spontaneous development and such communities or societies which do not progress or go
beyond the fourth stage are called static societies.

Those societies which go beyond the fourth stage as developing their laws, by new methods are
called progressive societies. There are three methods by which progressive societies develop
their laws. They are;

LEGAL FICTION: According to this method, legal fictions, changes the law according to the
changing needs of the society without aiming any change in the latter of law.

Maine defines legal fiction as any assumption which conceals or affects to conceal the fact that a
rule of law has undergone alteration, its letter remaining unchanged, its operation being
modified. Legal fiction satisfies the desire for improvement but at the same time they do not
offend the superstition, fear and dislike of change. At a particular stage of social development
they are invaluable expedients of social progress for overcoming the rigidity of law.

EQUITY: Equity consists of principles which are considered to be invested with a higher
sacredness than those of the positive law.

Equity belongs to a more advanced stage than fictions. The interference with the law is open and
avowed. It is a body of law existing by the side of the original civil law, founded on distinct
principles claiming incidentally to supersede the civil law by virtue of a superior sanctity
inherent in these principles.

LEGISLATION: Legislation is the most effective method of law making, it is considered to be the
most systematic and direct method of introducing reform through new laws. The power of the
legislature to make laws has been widely accepted by the courts and the people all over the
world.

THE SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

Sociology of law is defined in many ways, but its main difference from functional jurisprudence
is that it attempts to create a science of social life as a whole and to cover a great part of general
sociology and political science. The emphasis of the study is on society and law as a mere
manifestation, whereas Pound rather concentrates on law and considers society in relation to it.

Huntington Cairns also attempt to create a legal science with a dominant emphasis on sociology.
He considers that modern jurisprudence is a meaningless and fruitless pursuit of a goal incapable
of achievement.’ Jurisprudence is really an applied science, and no technology has ever
succeeded unless it was based on the findings of a pure science. No universal propositions can be
laid down concerning legal concepts or rules because they differ from race to race. If
jurisprudence wishes to become scientific, it must create a science of society. The basis must be
human behaviour as influenced by, and in relation to, disorder. It is impossible to discover how
law operates unless we have greater knowledge of the factors that cause change in society and
govern its evolution. When this is understood, jurisprudence as a technology can apply these
rules to reach useful results. At present jurists are attempting to build a house before the
foundations have been laid. Montesquieu laid the seeds of the sociological method in
jurisprudence. In his “Esprit des Lois” (Spirit of the laws), published in 1748, Montesquieu used
the historical method. Montesquieu researched into the laws and institutions of all kinds of
human society. He considered that law should be based on historical observations, and not
merely on reason or belief.

.
 LEON DUGIT

The French jurist Leon Dugit was a professor of constitution law in the University of Bordeaux
in France. He made substantial contribution to the sociological jurisprudence in early twentieth
century. Dugit carried forward the belief that scientific progress can be accelerated by individual
behavior in order to satisfy common social needs and interests. Dugit was inspired by Durkheim
who himself had taken inspiration from Comte. Durkheim’s main point, on which Dugit built
upon, was that he made a distinction between two kinds of needs of men in society. Firstly, there
are common needs of individuals which are satisfied by mutual assistance and secondly, there are
diverse needs of individuals which are satisfied by the exchange of services. Therefore, the
division of labour was pre-eminent factor of social cohesion as an indisputable fact beyond
ideology, beyond religious or metaphysical speculation…. The constant realisation of social fact
which is simply inter-dependence of individuals could at least replace ideological quarrels by
observable facts.

Dugit attacked traditional concepts of state, sovereignty and law and sought to fashion a new
approach to these matters from the angle of society. Dugit was much influenced by Augste
Comets ‘Theory of law as a fact” which denounced individual rights of man and subordinated
them to social interest. Completed that “the only right which man can possess is the right always
to do his duty.” This formed the basis of Dugit’s legal theory.

SOCIAL SOLIDARITY

Dugit built his theory on social solidarity. He insisted on the necessity of viewing social life as it
is actually lived. The most important fact of the society is the interdependence of men. In the
present day society, man exists by his membership of the society. Each man cannot manufacture
and pronounce the necessities of life himself. Functions are so specialized that each in his turn
depends on other for his necessities. The end of all human activities and organisations should be
to ensure the interdependence of men. This is Dugit’s theory of social solidarity.
Dugit puts forth in definite and clear term that law arises of the fact of social existence.
Therefore, if man wishes to live and act in society he must act in conformity with the social law
of solidarity. Solidarity is not a rule of conduct; it is a fact- the fundamental fact of all human
society. In other words solidarity is neither a charity nor fraternity. These are moral duties. It is a
fact. It means that in fact men are ‘solidarity’ with one another that is they have common needs
which they can only satisfy in common. That they have different capabilities and different needs
which they can satisfy by exchange of needs and division of labour. This solidarity is mutual
interdependence is the product of social reality of social life. As such it is the duty of one and all
to conform his conduct according to fact of social solidarity. It is a coincidence of purposes and
facts- the unhappiness of one affect all, the happiness of one profits all. He says, man must so act
that he does nothing which may injure social solidarity upon which he depends, and more
positively, he must do all which naturally tends to promote social solidarity.

Dugit’s principle of social solidarity is however not free from criticism. Aware of the growing
complexity of modern social life, Dugit attacks individualism as reflected in the conception of
inalienable individual rights. He also rejects the alternative of strengthening the central power of
the state. Instead he advocates decentralized group environment and the link between the
different groups is to be an objective rule of law, the principle of social solidarity. This savors of
natural law although Dugit emphatically rejects any such metaphysical conception as
incompatible with scientific positivism, yet his idea of social solidarity is a s strong a natural law
ideal as any ever conceived.

EUGEN EHRLICH
1862-1922
While Kohler’s philosophy of law moved on the borderline between sociological jurisprudence
and legal idealism, a thoroughly sociological type of legal theory was propounded by the
Austrian thinker Eugen Ehrlich. Ehrlich was a professor of Roman law at the University of
Czernowits in Austria. Like Savigny, he believed in spontaneous evolution of law but he did not
hang on the past but conceived law in the context of existing society and thus evolved his theory
of living law. According to him, the institution of marriage, domestic life, inheritance,
possession, contract etc., govern the society through living law which dominates the human life.
By living law he meant extra legal controls which regulate social realities of me.

Genuine sociological jurisprudence teaches, in the words of Northrop, that the “positive law
cannot be understood apart from the social norms of the living law.”

The central point of Ehrlich’s thesis is that the law of a community is to be found in social facts
and not in formal sources of law. He says “at present as well as at any other time, the centre of
gravity of legal development lies not in legislation nor in juristic science, nor in judicial
decisions, but in society itself.” Thus living law is the fact which governs life and a proper study
of law requires the study of all the social conditions in which the law functions in the society.

According to Ehrlich there is no substantial difference between formal legal norms and the
norms of customs or usages, because the sanction behind them is the same (that is social
pressure). If a statute is not observed in practice, it is not a part of living law.

Ehrlich meets the facts of growing increasing state activity and a parallel increase of state norms
by distinguishing three types of legal norms. All legal norms regulate in some way the relation
between command and prohibition and the underlying facts of law”. They do so in different
ways;

● The protection may simply be given to legal norms purely based on facts of law such as
by laws of association or corporations, or contracts. Closely connected are norms directly
derived from social facts, such as the remedies for damages, unjust enrichment etc.
● Legal commands or prohibitions (imposed by the state) may create or deny social facts in
the case of expropriation or multiplication of contracts.
● Norms may be entirely detached from social facts, such as imposition of taxes or the
granting of trade concessions and privileges.

His use of the term ‘sociological jurisprudence’ means that law in a society should be made and
administered with the utmost regard to its requirements. To achieve this end, a very close study
of the social conditions of the society, in which the law is to function, is, indispensible.

In view of the Ehrlich, a court trial is an exceptional occurrence in comparison with the
innumerable contracts and transactions which are consummated in the daily life of the
community. Only small morsels of real life come before the officials charged with the
adjudication of disputes.
AUGUST COMTE (1798-1857)

The honour of being the founder of the science of sociology belongs to another French
philosopher August Comte. The legitimate object of scientific study, according to Comte, is
society itself and not any particular institution of government. He stressed the fact that men have
ever been associated in groups and that it was in the social group and not in isolated individuals
that the impulses originated which culminated in the establishment of law and government. He
defiantly rejected the view that society rests upon an individualistic basis and that the individual
is the focal point of law. His philosophy is thus in sharp contracts to the mechanistic philosophy
current before his time.

HANS KELSEN

Kelson was born at Prague in Austria in 1881 and was a Professor of law at the Vienna
University. He was also the judge of the supreme constitutional court of Austria for ten years
during 1920-1930. Thereafter, he shifted to England. He came to United States and worked as
professor of law in several American universities and authored many books. He was emeritus
Professor of Political science in the California University when expounded his ‘Pure theory of
law’ which is considered to be Kelsen’s unique contribution to legal theory.

Kelsen’s pure theory of law is akin to that of Austin’s theory of law, although Kelsen, when he
began to develop his theory was quite unaware of Austin’s work. He nevertheless recognised the
essential identity of his own objectives with Austin’s, namely, to base a theory of law on a
positive legal order or on a comparison of the contents of several legal orders and thus by
confining jurisprudence to a structural analysis of positive law to separate legal science from
philosophy of justice and sociology of law. He wished to free the law from the metaphysical mist
with which it has been covered all times by the speculations on justice or by the doctrine of ‘jus
naturale’. In this sense Kelsen’s theory is called the ‘pure theory of law’. As a theory, thus, it is
exclusively concerned with the accurate definition of its subject matter. It endeavors to answer
the question, what is the law? But not the question, what it ought to be? It is a science and not a
politics of law.
The theory of Kelsen says Dias has represented a development in two different directions. On
one hand, it makes the highest development to date of analytical positivism. On the other hand,
characterised the close of 19th century and the beginning of 20th century. This is not to suggest
that Kelsen reverted to ideology. For Kelsen and his followers any such legal idealism is
unscientific.

An interesting example by which to test Kelsen’s theory is the Unilateral Declaration of

Independence by Rhodesia. The Privy Council, as part of the English legal order, naturally
decided against the validity of the Rhodesian emergency powers which had not been laid down
in accordance with the Grundnorm the court accepted. The Rhodesian courts looked at the
problem in the light of the new legal order created by the declaration of independence and relied
partly on the theory of necessity and of the actualities of politics. In other words, these courts in
effect accepted a new Grundnorm for Rhodesia.

According to Kelsen, a legal order is comprised of norms placed in a hierarchical manner, one
norm placed above another norm and every norm deriving its validity from the norm above it.
The hierarchy takes a pyramid shape and symbolizes the legal order. In this way there comes a
final stage of highest norm which serve basis for all infertile norms, that is known as the basic
norm or Grund Norm. The Grund norm is the basic point of the philosophy of Kelsen. The
legality or validity of all the norms can be tested against the Grund norm. The validity of Grund
norm can't be objectively tested. The Grund norm is the common source for the validity to the
positive legal order or all norms that belong to the legal order. The Grund norm must be
efficacious i.e., it must be obeyed by the people at large. Efficacy is the validity of the Grund
norm.

Basic Norm
(Grundnorm)

Enabling Act (Tertiary Norm)

By Law (Secondary Norm)

Special official Action

Particular Primary Norm
GRUND NORM

The Grund norm is the starting point in a legal system. From this base, a legal system broadens
down in gradation becoming more and more detailed and specific as it progresses. Kelsen calls it
‘general concentrisation’ of ‘Grund norm’ or the basic norm thus focusing the law to specific
situations.

Kelsen’s pure theory of law is based on pyramidal structure of hierarchy of norms which derive
their validity from the basic norm which he termed as Grund norm. Thus, Grund norm as basic
norm determines the content and gives validity to other norms derived from it. Kelsen has no
answer to the question as to whereupon the basic norm derives its validity. He considers it to be a
meta-legal question in which jurist need not to intrude.

The task of legal theory is only to clarify the relation between Grund norm and all other inferior
norms and not to enter into other questions as goodness or badness of Grund norm. This is the
task of political science, or ethics or of religion.

Jullius Stone rightly comments that as Austin's sovereign in a particular society is a mere starting
point for his legal theory, so also basic norm has to be accepted as a hypothetical starting point or
fiction which gives a legal system countenance and a systematic form.

Thus, while all norms derive their validity from the basic norm, the validity of basic norm cannot
be objectively tested, instead, it has got to be presumed or pre-supposed. Kelsen however
considers Grund norm as a fiction rather than a hypothesis.

Kelsen recognised the Grund norm need not to be the same in every legal order, but a Grund
norm of same kind there will always be, whether in the form, e.g., of a written constitution or the
will of a dictator. There appears no reason why there need not to be one Grundnorm. For
example, in England, the whole legal system is traceable to the propositions that the enactments
of the Crown in Parliament and Judicial precedents ought to be treated as ‘law’ with immemorial
custom as a possible third. This is not in contradiction of Kelsen’s theory of law. Kelsen has
firmly said that a system of law cannot be grounded on two conflicting Grundnorm. In England,
obviously, there is no conflict between the authority of the King in Parliament and of judicial
precedents, as the former precedes the latter. The pure theory of law thus operates with this basic
norm as with a hypothesis, but where no such explicit formulation exists, Kelsen is by no means
clear in guiding our search. For him the only task of legal theory is to clarify the relation between
the fundamental and all lower norms, but not to say if this fundamental norm is good or bad. This
is the task of Political science or ethics or of religion.

NORM

To Kelsen, a norm is the meaning of an act of willing by which a certain behaviour is

commanded or permitted or authorized. The meaning of such act of will cannot be described by
the sentiment that the other individual will behave in that way only but he ought to behave in that
way.

ESSENTIALS OF KELSEN’S SYSTEM

The essential foundations of Kelsen’s system maybe enumerated as follows;

● The object of a theory of law, as of any science, is to reduce chaos and multiplicity to
unity.
● Legal theory is a science and not volition. It is knowledge of what the law is and not of
what it ought to be.’
● The law is normative and not a natural science.
● Legal theory is a theory of norms, and is not concerned with the effectiveness of legal
norms.
● A theory of law is formal, a theory of the ordering, changing contents in a specific way.
● The relation of legal theory to a particular system of positive law is that of possible to
actual law.

FEATURES OF KELSEN’S THEORY

● The theory of law must be ideal with the law as it is and not with the law as it ought to
be. i.e., it must concern with the existing law.
● The theory of law is different from the law itself. Law is a mass of heterogeneous rules.
The function of the theory is to distinguish between the different types of the law.
 ● A theory of law must be pure. It must be free from all ambiguities. A theory must explain
all the aspects of law without reference with other subjects like sociology, political
science, economics, history etc., because they are subject to variation from one place to
another and from one time to another. The pure theory which would have the ingredient
of only one discipline, i.e., law.
● Law is a norm, which is a prescription norm, the function of which is to prescribe.
● Law is the hierarchy of the norms, and each norm derives its validity from the superior
norm.
● Finally there comes the highest norm to which all inferior norms derive their validity i.e.,
known as Grund norm.
● Kelsen’s approach is much wider than that of Austin, as Kelsen includes; policy, rule,
doctrine and standards in addition to the commands within the purview of the norm.

CRITICISM AGAINST KELSEN’S THEORY

● NO PRACTICAL SIGNIFICANCE: Sociological jurists criticize it on the ground that it lacks

practical significance. Professor Laski, says, Granted its postulates, I believe the pure
theory to be unanswerable but I believe also that its substance is an exercise in logic and
not in life’. Some see Kelsen as “beating his luminous wings in vain within his ivory
tower.”
● PURITY OF NORMS CANNOT BE MAINTAINED: Although Kelsen’s theory has warmly been
recognised, yet most writers point out that it provides no guidance whatever to a person
in the actual application of the law. The quality of purity claimed by Professor Kelsen for
all norms dependent on the basic norm had always been subject of serious attack. In the
most enchanting language of Jullius stone: “….Since that basic norm itself is obviously
most impure, the very ‘purity’ of the subsequent operations must reproduce that original
impurity in the inferior norms, we are invited to forget the illegitimacy of the ancestor in
admiration of the pure blue-blood of the progeny. Yet the genes are at work down to the
lowliest progeny.”
As absolute purity of any theory of law is a far cry, so Kelsen had to admit his defeat
when it comes to the question of conflicting fundamental norms. The question which is
the valid fundamental norm, his pure theory cannot avoid, for without it the whole
structure would collapse. Similarly, the “minimum of effectiveness” formulae which
Kelsen chose for him is at bottom nothing else but Jellink’s normative Kraft des
Faktischen. How can the minimum of effectiveness be proved except by an inquiry into
 socio-political facts? Writing as late as 1942, he himself suspected if his pure theory of
law is a foundation without which the sociological and evaluative inquiries cannot
proceed. Sociological jurisprudence according to him, presupposes normative
jurisprudence, since until the later has determined what are legal norms, sociological
jurisprudence has no definite province. The truth is, however, something else. It is his
pure theory of law which is important as an instrument until the other approaches to law
provide the hypothesis of the basic norm.
● HIS GRUND NORM VAGUE AND CONFUSING: The first point in Kelsen’s theory which is
greatly criticised is his conception of Grund norm. ‘Grund norm’ is made up of many
elements and any one of these elements alone cannot have the title of Grund norm.
Another criticism against the conception of Grundnorm is from the point of view of the
Historical school. It says that the origin of law is in customs and Volkgiest and not in any
other source, such as ‘Grund norm’. But on this point Kelsen finds in Professor
Friedmann and stone very strong advocates of his view. Friedmann says, “The fact that
the ultimate authority in any given legal order may be a composite one, as in the United
States of America, or Great Britain, does not alter the fact that such an ultimate authority
must exist”. So far as the criticism by the jurists of the Historical School is concerned,
Kelsen is decidedly a positivist and therefore, this criticism does not hold good against
him.
● NATURAL LAW IGNORED: Lauterpacht, an ardent follower of Kelsen, has also from a
different side questioned if the theory of hierarchy of legal norms does not imply a
recognition of natural law principles, despite Kelsen’s blatant warning of natural law
ideology. Many natural law theories do not establish absolute ideals but affirm the
principle of higher norm superior to the positive law. as mankind become legally
organised, natural law rules would become positive norms of a higher order, and the
difference between Kelsen’s theory and those of modern law theories would disappear.
Hagerstorm, too, appears to have unfolded the natural law philosophy concealed in
Kelsen’s assumption of the unconditional authority of the supreme power, or, in verdross,
“constitution of the law of nations” as the formulation on which the principle of
international law (Pacta Sunt Servanda) is supposed to ground.
 THE REALIST MOVEMENT-LEGAL REALISM

Legal realism implies that judicial decisions must conform to socio-economic factors and
questions of policy and values. In America we have the Realist School of jurisprudence. This
school fortifies sociological jurisprudence and recognises law as the result of social influences
and conditions, and regards it as judicial decisions.

OLIVER HOMES
1841-1935
Oliver Holmes is, in a sense, an exponent of the realist school. “Law is what the courts do; it is
not merely what the courts say.” Emphasis is on action. As Holmes would have it, “The life of
the law has not been logic; it has been experience.”

K. N LLEWELLYN

Karl Llewellyn, in his earlier writings was a spokesman for orthodox realist theory. He argued
that the rules of substantive law are for less importance in the catula practice of law than had
hitherto been assumed. “The theory that rules decide cases seems for a century to have fooled,
not only library-ridden recluses, but judges.” He proposed that the focal point of legal research
should be shifted from the study of rules to the observance of the real behaviour of the law
officials, particularly the judges. “What these officials do about disputes is, to my mind, the law
itself.”

This last statement, however, was withdrawn by Llewellyn in 1950. In his more recent writings,
he has placed a somewhat greater stress on the importance of normative generalization in law,
pointing out that the rule part of law is “one hugely developed part” of the institution, but not the
whole of it. He has also, in keeping with the postulates of sociological jurisprudence, sought to
explore the relations and contacts between the law and the other social sciences, coming to the
conclusion that the lawyers as well as the social scientists have thus failed to make an “effective
effort at neighborliness.”

Llewellyn, one of the exponents of the realist movement, has set forth the following points as the
cardinal features of American realism;

● Realism is not so much a new school of jurisprudence as a new methodology in

jurisprudence.
● Realists regard law as dynamic and not as static. They regard law as serving certain social
 ends and study any given cross-section of it to ascertain to what extent these ends are
being served.
● Realists, for the purpose of observation of the functioning of any part of the legal system
accept a ‘divorce of is from ought”. This means that the ethical purposes which,
according to the observer, should underlie the law, are ignored and are not allowed to
blur the vision of the observer.
● Realism emphasises the social effects of laws and of legal decisions.

Another leading realist was Frank (1889-1957) who was known as a “constructive legal sceptic.”
Mr. Justice Cardzo, in his “The Nature of the Judicial Process”, points out that law never is, but
is only about to be. Even existing decisions may be overrules. Law is not something certain- not
what the judges have said, but what they will do.

Marxist School of Jurisprudence

Marxist theory of jurisprudence offers a framework for examining law as a tool of social
subjugation and oppression in capitalist societies. At its core, this theory asserts that law serves
the interests of the ruling class, perpetuating the unequal power dynamics and exploitation
inherent in capitalism.

There are three key beliefs that underpin Marxist legal theories. First and foremost, they argue
that law is a result of economic forces. Secondly, law is seen as a tool used by the ruling class to
maintain their power and control over the lower classes. And finally, these theories predict that
law will eventually lose its importance in a future communist society.

Key Features of Marxist Theory of Jurisprudence:

According to Marxism, society is fundamentally divided into two classes: the bourgeoisie, who
hold the means of production, and the proletariat, who must sell their labour to survive. This
class struggle influences all aspects of society, including the realm of law.
Marxists argue that a society's economic base, which encompasses the mode of production and
relations of production, determines its superstructure, which includes elements such as law,
politics, culture, and ideology. In this framework, law is considered a component of the
superstructure that reflects and reinforces the economic relations of capitalist society.
In capitalist societies, law plays a crucial role in maintaining the existing power structure by
protecting private property, regulating economic transactions, and preserving social order. It
serves to legitimize the power and privilege of the bourgeoisie while oppressing the proletariat.
Marxist jurisprudence places a strong emphasis on the ideological function of law. This means
that legal norms and institutions are used to justify and naturalize capitalist relations, presenting
them as universal and just. In reality, this serves to obscure the systemic exploitation inherent in
capitalism.
Marxists make a distinction between the repressive state apparatus, such as the police and
military, which use coercion to maintain social control, and the ideological state apparatus,
which includes the legal system, education, and media. The latter functions to disseminate
ruling-class ideology and maintain consent through ideology rather than force.
Marxist theorists criticize the concept of formal equality within the legal system, arguing that it
obscures deeper socioeconomic disparities. Despite appearing impartial, laws often
disproportionately benefit the bourgeoisie and perpetuate the exploitation of the proletariat.
The presence of class bias in the legal system is revealed through Marxist analysis, evident in
judicial rulings, legislative actions, and law enforcement practices. Legal standards tend to
safeguard capitalist interests while suppressing challenges to the established order.
Marxist ideology advocates for the transformation of the legal system to serve the needs of the
working class and promote social justice. This may involve legal changes, class-conscious legal
activism, and ultimately the revolutionary overthrow of capitalism.
The role of legal professionals, such as judges, lawyers, and legislators, is critiqued by Marxist
jurisprudence for upholding capitalist hegemony. While some may challenge unjust laws, the
legal profession as a whole operates within the confines of capitalist legality.
Ultimately, Marxist theory envisions a socialist legal system based on the principles of collective
ownership, social equality, and democratic control of the means of production. This necessitates
the elimination of private property, the establishment of proletarian dictatorship, and the creation
of a classless society free from exploitation and oppression.

Illustration:
The Marxist theory of jurisprudence is exemplified by the examination of labour laws in
capitalist societies. According to Marxist scholars, labour laws are often used to uphold the
power of the bourgeoisie, despite their purported purpose of safeguarding workers' rights. These
laws may establish minimum wage requirements and workplace conditions, but they overlook
larger issues such as exploitation, alienation, and unequal power dynamics in the workplace. By
prioritizing formal legal equality over economic justice, labour laws perpetuate the economic
oppression of the working class and justify the capitalist mode of production, exposing the
inherent bias of legal standards in capitalist societies.

Conclusion:
The Marxist approach to jurisprudence presents a critical outlook towards law, recognizing its
significant contribution to the perpetuation of class-based oppression and the preservation of
capitalist dominance. It places a strong emphasis on the impact of economic relations on the
formation of legal principles and frameworks, shedding light on the inherent prejudices and
disparities inherent in the legal system.

While offering valuable insights into the societal and political functions of law, Marxist
jurisprudence has faced criticism for oversimplifying the complexities of legal concepts and
downplaying the potential of legal reforms to address social injustices. Despite its limitations,
Marxist theory remains influential in discussions surrounding law, class conflict, and societal
change.