KRISHNA INSTITUTE OF LAW

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B.A.LL.B. – 5th SEM

(SUBJECT – JURISPRUDENCE-I)
Jurisprudence
The word “jurisprudence” has been derived from a Latin word
jurisprudential. Which in its widest sense, mean “knowledge of law”. The Latin
word ‘juris’ means law and ‘prudentia’ means skill or knowledge. Thus,
jurisprudence signifies ‘knowledge of law’ and its application. In this sense it
covers the whole body of legal principle in the world.
It is well known that ‘law’ being a dynamic concept; it changes with the
evolution of society under different socio-economic and political conditions .The
rapid changes in modern times have given rise to new problems and issues which
are to be tackled by law through pragmatic approach in interpreting law.
Jurisprudence –Its meaning
Jurisprudence means the general principal upon which actual rules of law are
based. It is concerned with rules of external conduct which persons are constrained
to obey. Therefore, jurisprudence is that science which imparts to us knowledge
about “law”.
For example, there are various branches of law prevalent in a modern State such
as contract ,tort , crime , property ,trusts ,companies, labour relations ,insolvency
etc. and in jurisprudence we have to study the basic principles of each of these
branches and we are not concerned with detailed rules of these law. These have to
be studied in detail when we study those branches of law separately.
This may be illustrated further by the examples of law of crimes.
Jurisprudence examines the general principles of penal liability but it does not
attempt to detail out the essential of each offence. In short, Jurisprudence may be
considered to be the study and systematic arrangement of the general principles of
law.
Definition of Jurisprudence
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According to Ulpian, “Jurisprudence is the knowledge of things, human and divine,

the science of the just and unjust.”
According to Prof. Gray- “Jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the courts and the principles
involved in those rules.” Prof. Gray is of the opinion that jurisprudence deals with
that kind of law which consists of rules enforced by courts while administering
justice. In other words, the laws of the jurists deal with man and seek to regulate
external human conduct in the society.
According to Holland- “Jurisprudence is the formal science of positive law.” The
science is a formal, or analytical, rather than a material one. It is the science of
actual or positive law.
The essential ingredients of his definition of jurisprudence are as under.
1. Formal- According to Holland, “This science is a formal rather than a material
one. It deals more with the form and outer (but fundamental) aspect, rather
than with the matter and contents of law. It concerns itself with basic ideas
and fundamental principles of various systems of law rather than with laws
themselves.’ Therefore, jurisprudence is not a material science, but formal
one.
2. Science- Jurisprudence is a Science and not an art. A systematic and
formulated knowledge is called science. Since the ideas, principles and
conceptions underlying various systems of law are dealt with in jurisprudence
form a systematized branch of learning. So jurisprudence is a science.
3. Positive law- According to Holland, positive law” is a general rule of external
human action enforced by a sovereign political authority.
Criticism of Holland’s definition
1. No Formal science - According to Gray,” jurisprudence is in truth no more a
formal science than physiology. As bones muscles and nerves are the subject-
matter of physiology, so the acts and forbearances of men and the events
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which happen to them are the subject-matter of jurisprudence.

2. It is both Art and Science - Jurisprudence is concerned with means rather
than with ends, though some of its means are ends in themselves. But to say
that jurisprudence is concerned only with forms is to degrade it from the rank
of a science to that of a craft.’
According to Salmond
Salmond. – Salmond defines jurisprudence as the “science of the first principles of
the civil law’’. Thus, ,he points out that jurisprudence deals with a particular species
of law ,namely ,civil law or the law of the state. The civil law consists of rules
applied by courts in the administration of justice. The Juristic laws regulate external
human conduct only and not the inner beliefs of man. They are enforced by courts
of judicial tribunals and carry with them sanction ranging from capital punishment
Salmond supports that jurisprudence is a science, that is a systematic study of basic
principles of individual specific legal systems
Salmond observes that as the ‘science of law’ there may be three kinds of
jurisprudence :
1. Systematic jurisprudence ,which deals with the contents of an actual legal
system as existing at any time whether past or present.
2. Legal history ,which is concerned with the legal system in its process of
historical development.
3. The science of legislation ,the purpose of which is to set forth law as it ought
to be .it deals with the ideal future of the legal system and the purpose which
it may serve.
Dr. Allen has objected to the Salmond’s definition on the ground that he has limited
the scope of jurisprudence to a particular legal system .it is rather too narrow a
view.
According to Salmond - He defined jurisprudence in two different senses-

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 Wider sense- salmond says that in a generic and primary sense

jurisprudence includes the entire body of legal doctrines.
 In a specific sense, it means a particular department of such doctrine
exclusively. He says that in its limited significance it may be called theoretical
jurisprudence.
The word which are used by salmond in his definition may be explained as
under
1. LAW is the body of principles recognized and applied by the state in the
administration of justice. Thus civil law means law made by state, thus civil
law is meant the law of the land as opposed to other bodies.
2. Science- Every law is based on certain fundamental principle and those
principles are common to all legal systems. Jurisprudence thus confirms itself
to a systematic and scientific study of the existing rules of law.
Definition of Austin-
According to Austin, “Jurisprudence is the general science of positive law.” Law is a
command of sovereign and command implies duty and sanction. Laws properly so
called are species of commands. Thus law has three main features:
1. Command
2. Duty
3. Sanction

He preferred to divide jurisprudence into two part,

1. General jurisprudence meant ‘the science concerned with exposition of the
principles of nations which are common to all the system of law’
2. Particular Jurisprudence consisted of the science of any such system of
positive law as now obtained in specifically determined nation.
This classification by Austin has been criticized by his critics as being unscientific
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and impracticable
Jurisprudence Whether ‘a Science ?
1. The meaning and contents of jurisprudence show that it involves an analysis
of law in its various facets. Thus it is a systematic study of the law.
2. Such a study of law totally excludes customary practices and social or moral
fantacies which may dilute the contexts of law. This is the reason why
Positivists insisted that law is a command of the sovereign so as to make legal
system formal quite unaffected by moral values. This methodology and
approach to the study of law has brought it nearer to be reckoned as science.
3. August Compte (1798-1857), the father of modern positivism, confined his
analysis to the observation of rejecting completely the hypothetical
considerations in the study of the jurisprudence.
4. He emphasized on the need for the study of jurisprudence based on concrete
observations and analysis of ascertainable facts which meant examining man-
made law which has actually been laid down by men for as distinct from law
as it ought to be.

5. The beginning of 20th century brought in its wake, a new approach to the
study of law in relation to society which treats law as ‘social engineering’ that
is, an instrument of social change.
Nature of Jurisprudence
Jurisprudence disclose knowledge of general ideas and principles of all legal
system, so it is “eye of the law”. Jurisprudence teaches the proper use of legal terms
and is called “grammar of law”. Every jurist has his own notion of the subject
matter and the proper limit and scope of jurisprudence depends upon his ideology
and the nature of society.
The nature of jurisprudence can be summarized as :
 Jurisprudence helps to find our the philosophical aspects behind laws.
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 It is not created by statute and therefore ,evolves by various writings of jurists

and philosophers .it can set the tone for reforming and reshaping laws.
 It is not for immediate practical application but is not without practical
application.
 It looks into the legal concepts and abstract principal of law .

 It links law with other subject which reflects on rules already known.

 It does not have a set of rules ,is not derived from a single source or authority.

 Jurisprudence supplies an epistemology of law ,a theory as to the possibility of

genuine knowledge of legal sphere
The scope of jurisprudence
The scope of jurisprudence comprises philosophy of law and its object is not to
discover new rule but to reflect on the rules already known. Scope of jurisprudence
also requires a look into the contents of the subject. Sources, legal concepts and
legal theory are said to be main premises of the study of jurisprudence .Under
sources a study is made into customs, legislations, precedents and judicial
interpretations, codification of laws, methods of judicial interpretation and
administration of justice.
A legal concept like possession, rights, liabilities, ownership, obligations legal
personality from the content of jurisprudence .Finally, legal theory seeks to co-
relate law with other disciplines and helps the study of law in its wider sociological
perspectives.
Content of jurisprudence
 Source – features of legal system are found in various sources. Therefore
under this head matter such as custom, legislation as a source of Law, Pro &
Cons of codification of laws, method of judicial interpretation are included.
 Legal concepts- another area which concern Jurisprudence is analysis of legal
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concept such as concept of right, property, ownership etc.

 Legal theory – it is also one of area of Jurisprudence, legal theory mean the
manner in which law is created & enforced in the society. So legal theory co-
relate law with other discipline i.e. ethics, religion, and politics.
Importance of Jurisprudence
There is a general confusion about practical utility of jurisprudence as a subject
and it is often questioned as to what is the need of study of jurisprudence.
1. Removes the complexities of law – Jurisprudence serves to render the
complexities of law more manageable and more rational, and in this way
theory can help to improve practice.
2. Provides solutions to legal problems – It also helps to look around the
society. Law is reflection of society as society keep on changing, law also keep
on changing so jurisprudence has to consider changing value of the society
and Provides solutions to the new legal problems as per society needs.
3. Interprets law- Jurisprudence is the ‘grammar of law’ as it throws light on the
basic ideas and the fundamental principles of law e.g., negligence ,liability etc.
It helps the judges and the lawyers in ascertaining the true meaning of law
passed by the legislatures by providing the rules of interpretation.
4. Provides Technical Instruments : The logical analysis of legal concepts
sharpens the logical technique of the lawyer, and trains students to think
profitably and for themselves .it familiarizes them to face exigencies of human
life boldly and courageously.
5. Helps in legislation – Jurisprudence is helpful to the legislators in the process
of law making as it makes them aware of the various legal precepts and
concepts.
6. Helps study different legal systems :- It enables a lawyers to study foreign
law because the fundamental principles are generally common to all system of
law. Jurisprudence aims to discover the principles regulating the development
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of legal systems with a view to understand the conceptions of different

systems of law.
7. Legal and social development : The value of jurisprudence lies in
examining the consequences of law and its administration on social welfare
and suggesting changes for the betterment of the superstructure of laws.”
8. It explain basic ideas & fundamental principle of law -It help to
understand general principles upon which actual rules of law are based.
9. It helps lawyer to understand meaning of legal words.

10. Jurisprudence explains legal theory of law- Legal Theory seeks to correlate
law with other disciplines such as religion, philosophy, ethics, politics. It is
therefore, necessary that while analysing legal concepts, an effort should also
be made to present them in the background of social developments.
Austin’s Analytic Positivism / Austin’s Imperative Theory of law
Austin is considered to be the ‘father of English Jurisprudence’. He confined his
study only to the positive law and applied analytic method for this purpose .By
positive law, Austin meant ‘laws properly so called’ as distinguished from morals
and other laws which he described as ‘laws improperly so called’ Which lack
force or sanction of the state. Austin described positive law as ‘the aggregate of
rules set by man as politically superior to men as politically inferior subjects.
He attributed four essential attributes of positive law
1. Command
2. sanction
3. duty
4. Sovereignty
It was Austin who for the first time treated jurisprudence as a science of law
concerned with analysis of legal concepts –their exposition, examination and
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comparison in a scientific manner in order to determine their scope and extent in a

given politically organized society.
Austin distinguished positive law from positive morality which is devoid of any
legal sanction. He identifies law with command, duty and sanction.
Austin’s distinction between positive law and positive morality seeks to exclude the
considerations of goodness or badness in the realm of law. In Austin’s positive law
there is no place of ideal or justness in law.
The existence of law is one thing, its merit and demerit another. A law which
actually exist, is a law though we happen to dislike it or though it may vary from the
text by which we regulate our approbation or disapprobation.”
The major thrust in Austinian positive law was therefore on separation of law from
morals. He distinguished science of jurisprudence from ethics.
According to him law is “rule laid for the guidance of intelligent beings by an
intelligent being having power over him”.
He divided law into to two parts:
1. Laws set by god for men

2. Human Laws that is laws made by men for men

Austin’s definition that command of the sovereign, suggests that only legal system
of civilized societies can become the proper subject of jurisprudence because it is
possible only in civilized societies that the sovereign can enforce his commands
with an effective machinery of administration. So Austin’s method can only be
applied in civilized society.
Relationship between Command, Duty and Sanction as per Austin
Command and duty are correlative terms. Whenever a duty lies a command has
been signified and whenever a command is signified a duty is imposed .Command
duty and sanction are inseparable connected terms.

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The power and purpose to inflict penalty for disobedience are the very essence of a
command. The person liable to the evil or penalty is under the duty to obey it. The
evil or penalty for disobedience is called sanction. So every law is a command
,imposing a duty enforced by a sanction.
Austin, however ,accepts that there are three kinds of laws which, though not
commands may be included within the purview of law by way of exception.
They are:-
1. Declaration or Explanatory laws .– These are not commands because they are
already in existence and are passed only to explain the law which is already in
force.
2. Laws of repeal- Austin does not treat such laws as commands because they are
in fact the revocation of a commands
3. Laws of imperfect obligation-They are not treated as command because there
is no sanction attached to them. Austin holds that command to become law, must
be accompanied by duty and sanction for its enforcement.
Austin’s could not separate legislature from judiciary. According to Austin Judges
can’t makes laws, they can interpret and the assumption is that legislature is
superior and judiciary can only execute laws.
Criticism
1. Customs overlooked – Austin’s view that ‘law is the command of sovereign ‘
is not supported by historical evolution of law when customs played a
significant role in regulating human conduct. Further, customs still continue to
be a potent source of law even after the coming in to existence of the state.
2. Permissive character of law ignored – Austin ‘s theory does not take notice
of laws which are of a permissive character and confer privileges e.g. the
Bonus Act,or the law of Wills etc.
3. No place for Judge –made law. – Judge- made law has no place in Austinian
conception of law although the creative function of judiciary as a law making
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agency has been accepted in modern times all over the world.
4. Austin’s Theory treats international law as mere morality.- Austin does
not treat international law as ‘law’ because it lacks sanction .Instead ,he
regards international law as mere positive morality .This view of Austin is
hardly tenable in the present time in view of the increasing role of
international law in achieving world peace.
5. Command over-emphasised – Its 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 ,command aspect of
law has lost its significance in the present democratic set-up where people’s
welfare is the ultimate goal of the state.
6. Inter relation between Law and Morality completely ignored - Perhaps
the greatest shortcoming of the Austin’s theory is that it completely ignores
the relationship between law and morality .Law can never be completely
divorced from ethics or morality which provide strength to it. The legal
concepts such as ‘right’ ,’;wrong’ ,duty ,obligation etc. themselves suggest that
there is some ethical or moral element present in them.
7. Sanction alone is not the means to induce obedience –Austin’s view that it
is sanction alone which induce a person to obey law, is not correct .There are
many other consideration such as fear ,deterrence ,sympathy ,reason etc.
which may induce a person to obey law. The power of the state is only the last
force to secure obedience of law.
8. Indivisibility of sovereignty criticized – While brining out distinction
between positive law and positive morality, Austin opined that the former
was set by a political superior called the sovereign ,According to him ,the
sovereign could not be under a duty because his being under a duty would
implied that there is another sovereign above him.
Kelsen pure theory of law / Grund Norm Theory
Kelsen’s Pure Theory stressed on the fact that his theory is devoid of any element
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from other discipline. He divested law from moral ideal and ethical elements. He
rejected Austin’s definition of law as command of sovereign because it introduces
subjective considerations. In this sense Kelsen is a positivist.
He rejected Austin definition of law that law is command. He also discarded the
notion of justice as essential element of law because many laws, though not just,
may still continue as law. His pure theory is a theory of positive law based on
normative order eliminating extra legal & non legal elements.
According to him a theory of law must be free from ethics, politics, sociology, history
etc, it must in other words be pure. Kelsen’s pure theory of law is also known as
theory of Interpretation.
Feature:-
1. This theory considers law as normative science not natural science.

2. It is concerned with theory of norms. It is not much concerned with

effectiveness of legal system.
3. It is based on positive law.

4. It deal with what law ought to be.

5. It reduces confusion created by supporters of natural law.

Grundnorm Concept
For Kelsen, norm is a rule forbidding or prescribing a certain behavior .Legal order
is a hierarchy of such norm having sanction and jurisprudence is the study of these
norms. Legal norms derives its validity from the external sources.
According to Kelsen , a dynamic system is one in which fresh norm are constantly
being created on the authority of original or basic norm, a grundnorm; a static
system is one which is at rest in that the basic norm determines the content of
those drives from it in additional to imparting validity to them.
Grund norms Definition
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The grundnorm is the presupposition and the other norms get validity from it.
Every country has it own grundnorm from which the other norm being originated
.The grundnorm is the basic norm. Kelsen recognized that the grundnorm need not
be the same in every legal order, but there would always be a gundnorm like a
written constitution or the will of a director .Therefore, the grundnorm is always
adopted to the prevailing state of affairs .it only imparts validity to the constitution
and all other norms derived from it.
Kelson’s Pyramid of Norms
Kelsen ,thus ,considers legal science as a pyramid of norms with grundnorm at
Grundnorms
Basic Norm
the apex. Subordinate norms are controlled by superior norms in hierarchical order
Bye Law
.the basic norm or grundnormSecondary
is independent
Norm of any other norm .The process of
one norm deriving its power from the norm just superior to it until it reaches
Specific Official Action
grundnorm has been called ‘concretisation of legal system ‘by him.
Particular Primary Norm

The basic postulates of Kelson’s Theory are;

1. Law and State are not two different things.

2. There is no distinction between public and private law.

3. There is no difference between natural and justice persons

4. There are no individual rights and legal duties are the sentence Of law .

5. Legal right is merely a duty as viewed by the person entitled to require its
fulfillment.
6. International law is supreme.

Criticism
1. It is devoid of all sociology tenets -It excludes all references of social facts and
felt needs of the society. Thus ,it is devoid of all sociology tenets .Pure science of
law by Kelsen is inadequate from point of view of legal theory.
2. Purity of norms cannot be maintained -For a proper analysis of legal norms
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one will have to go to Grundnorm .In tracing grundnorm by applying test laid
down by kelsen of minimum effectiveness –one will have to look into political
and social facts .it will lead to adulteration in pure theory.
3. No practical significance -since it is based on hypothetical consideration
Kelsen’s theory provided no solutions for the conflicts arising out of ideological
differences.
4. Kelson ignores the purpose of law and his account of legal dynamics is
inadequate. The courts do look into customs and motives of legislature and try to
co-relate it with the social purpose of act to determine its validity.
5. Natural law is ignored by Kelson- It is questioned whether the theory of
hierarchy of legal norms does not imply a recognition of natural law principles
6. His concept of international law is also criticized –It is said that kelson’
primacy of international law over state law is a back door entry permitted by
Kelson’s theory to natural law.
7. He does not look into content of law-He ignores the fact that the enforcing
authority has to follow a certain procedure which would require looking into
content of law. Thus, there is methodological shortcoming .Mere force will not
validate a law.
8. Kelson’s rejection of justice and morality as essential elements of law is also
heavily criticized.
Bentham Theory / Utilitarianism Theory / Pleasure and Plain Theory /
Hedonistic
Jeremy Bentham was born in 1748 and died in 1832 in London. Jeremy Bentham,
the English jurist, and utilitarian philosopher and social reformer, is regarded as the
greatest figure in the history of British Legal positivism. Besides being a jurist he
was reformer and legislation, a moralist, philosopher, and a hedonist who thought of
good (generally as happiness) by reference to which he praised and blamed all
action and activities. He was a leading theorist in Anglo-American philosophy of law
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and one of the founders of utilitarianism.

Principle of Hedonistic:-
Bentham advocates a doctrine of Hedonistic in two forms namely 1.
Psychological Hedonism, which means all human actions are motivated by the
desire to enjoy pleasure or prevent pain, and that is the only rational aim of human
action, 2. Ethical Hedonism, which means rightness or wrongness of an action is
determined by whether the action creates happiness or unhappiness.
The principle of sympathy and antipathy (i.e. the feeling of seamless
acceptance or rejection for the expected results of action) is not enough basis to
identify the moral rightness or wrongness of an action. In Bentham’s theory, an
action conforming to the principle of utility is right or at least not wrong, it ought to
be done, or at least it is not the case that it ought not to be done.
Theory of Utilitarianism:-
Bentham is popularly known for his theory of utilitarianism which has more
emphasis on individualism. According to him the main function of law is to make
free the individual from the bondage and restraint upon his freedom. He adherence
the principle of ‘laissez-faire’, which meant minimum interferences of the state in
the economic activities of the individuals.
Legal Philosophy of Bentham is also known as utilitarian individualism. According
to him the function of law is to emancipate the individual from the bondage and
restraint upon his freedom. Once made free, the individual will himself look after
his freedom.
He was an individualist and also a utilitarian. According to him, the end of
legislation is the greatest happiness of the greatest number. The purpose of law
and thereby the task of government is to bring pleasure which is the consequence
of good and to avoid pain, which is the consequence of evil. Pleasure and pain are
therefore, the ultimate standards on which a law should be judged.

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Concept of Pleasure and Pain:-

Jeremy Bentham started a new era in the history of legal thought. He is called the
Father of a English positivism. Bentham also rejected the natural law theory and
correlated law with sovereignty and utility. He was a critic of natural law
philosophy and called it nothing but a phrase.
In his view, nature has placed mankind under two sovereign masters, namely, pain
pleasure which alone decide as to what man should do or not do.
Basis of Utilitarien
Bentham told that there are different basis for pleasure and pain. These basis are as
follows:
1. Subsistence

2. Abundance

3. Equality, and

4. Security

He pointed that individual liberty, though an important part of security must

sometimes yield to general Security, For him, security and quality form the main
objective of legal regulations.
Meaning of Pleasure and Plain.
The consequence of good and evil are respectively pleasure and plain. He said that
nature has placed mankind under governance of two sovereign master i.e. pleasure
and pain. They alone point out to us what we ought to do and what we should
refrain from doing. The good or evil of an action should be measured by the quality
of plain and pleasure resulting form it.
Pleasures
a. Pleasure of riches
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b. Pleasure of good reputation

c. Pleasure of friendship
d. Pleasure of knowledge
e. Pleasure of social affection
f. Pleasure of relief from pain which might vary with various kinds of pain, and
g. Pleasure of good friendship and social affection.
Pain
a. Pain of privation,
b. Pain of sense including diseases of all kinds,
c. Pain of skill,
d. Pain of enmity,
e. Pain of piety including feat of divine punishment, and
f. Pain of knowledge and imagination.
Sources of Pleasure and Pain
He classified the following sources for pleasures and pain
1. Physical sanction
2. Political sanction
3. Moral sanction
4. Religious sanction
He believed that every law may be considered in the light of 8 different
aspects.
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1. Source of the law : is will of the sovereign which may be consist of laws made
by him or permitting laws made by former sovereign to continue or may
adopt laws to be made in future by subordinate authorities.
2. Subjects who may person or things ; who may be active passive

3. Object (acts, situation , forbearance)- Each law regulates conduct which may
be positive or negative by imposing duties or granting permission depending
on act situations.
4. Extent – Law covers a portion of land on which acts have been done.

5. Aspect (may be directive or sanctional ) Command is only of the aspects of the

will of the sovereign carrying with it the force of law.
6. Force or Sanction which motivates evidence of law. Hence it is for the
regulation of conduct of subjects in society.
7. Remedial State -In order to stop or prevent the evil. They are addressed to
judges with a view to curing the evil or preventing future evil.
8. Expression- Bentham was against judge-made law and sought to minimize
judicial discretion by trying to ensure that laws are complete in expression.
Bentham was a campaigner of reform and insisted that prior to reform there has to
be classification of law as it is. He was a champion of law reform and argued that
there can be no reform in substantive law without reforming the structure through
a process of analysis.
Criticism of Bentham’s theory
1. Bentham’s abstract and doctrinaire rationalism, which prevents him from
seeing man in all his complexity, this led Bentham to an “overestimate of the
powers of the legislator.
2. Bentham’s failure to develop clearly his own conception of the balance
between individual and community interest.

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According to him the interests of an unlimited number of individuals shall be

automatically conducive to the interests of community .But it just gave the
reverse results when actually put to practice.
3. It has been criticized that pleasure and pain cannot alone be used to judge the
law.
4. Bentham emphasized the analysis of law but also proposed the ends the law
should pursue. But after Bentham, the two sides were not taken together.
Some emphasized analysis and some merely the ends.
5. According to him, the aim of legislation was only to remove the shackles from
the individuals freedom, and provide opportunities for self-progress.but the
legislations in later years, were used to restrict the individual’s freedom in
economic matters.
Thus, Bentham’s contribution is considered so great that his period is known as the
‘Benthamite Era’ in the legal history of England .He introduced legal positivism and
treated legal theory as a science of investigation which should be approached
through scientific method of experimenting and reasoning.
Hart’s Theory /
He rejected Austin’s theory of analytical positivism and expounded his legal theory
based on the relationship between law and society .He favoured analytical
approach to law for a better understanding of it.
Hart ‘s Conception of Law
According to Hart , law is a system of two types of rules the union of which provides
key to the science of jurisprudence .These rules ,he called as ‘primary’ and
‘secondary’ rules .
Primary rules - Rejecting Austin’s view that law is a command ,H.L.A Hart
emphasized that primary rules are duty –imposing. The primary rules which
impose duty upon individuals are binding because of the popular acceptance such
as rules of kinship family sentiments etc. These being unofficial rules ,they suffer
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from these major defects namely

Secondary rules confer power and the union of the two is the essence of law.
which are power conferring ,enables the legislators to modify their policies
according to the needs of the society .in fact they seek to remedy the defects of the
primary rules and it is out of the union of these two types of rules that law takes its
birth.
Bringing out the distinction between primary and secondary rules, Eric Colvin,
observed that under the primary rules individuals are required to do or abstain
from doing certain act whether they wish to do so or not .The secondary rules are
in a sense dependent on primary rules themselves ,for they provide that human
beings may by doing or saying certain things ,introduce new rules of
primary type, extinguish or determine their incidence or control their operations.
Rule of Recognition
Professor Hart’s positivism explains the existence of law with reference to the
recognition, binding force of which depends upon its acceptance .The validity of law
is to be tested on the basis of rule of recognition which is similar to Austin’s
conception of sovereign. Rule of recognition is the sole rule in a legal system whose
binding force depend upon its acceptance.
For Ex. Whatever is enacted by British Queen in Parliament is rule of recognition.
Thus it could be seen that H.L.A. Hart ‘s conception of positivism centered
round the following considerations :-
I. He accepted law as a command as advocated by Bentham and his disciple
Austin;
II. He believed that analysis of legal conceptions are worth pursuing as
distinguished from mere sociological and historical inquires.
III. The judicial decisions were to be deduced from pre-determined rules
IV. Moral judgment cannot be defended by rational argument ,evidence or proof;
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and
V. The law as it is actually laid down has to be kept separate from law as it ought
to be.
View of Hart on International Law
International law is described by Hart As problematic, because it may not have all
of the elements of a fully developed legal system. International law may in some
cases lack second rules of recognition.
Hart’s Views on Law and Morality
H.L.A Hart does not denounce the role of natural law in his positivism. Unlike
Austin and Kelson,Hart contends that it is necessary for law and morality to have
certain element of natural law as a logical necessity .Thus morality is implicit in
Hart’s positive law.
1. Hart therefore ,asserts that law and morality are complementary and
supplementary to each other .in his view ,there are four attributes of morality
namely,
 Importance
 Immunity from deliberate change
 Voluntary character of moral offences;
 Forms of moral pressure which separate it from etiquette,custom and other
social rules.
2. Hart observed that a balance has to be drawn between the freedom of
individuals to have intellectual and artistic freedom and the duty of the law to
protect society from depravity and corruption.
3. He accepted that morality is a necessary condition of society and the law has a
function to ensure that morality of society does not disintegrate.
Criticism
1. Ronald Dworkin and Lon.L. Fuller Dworkin denounces Hart’s view of law as a
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union of primary and secondary rules and exclusion of morality from law. He
draw a distinction between rule and principles and point out that a legal system
cannot be conceived merely as an aggregate of rules but it has to be based on
certain solid principles and policies
For example ,no one can take advantage of his own wrong is a well established
principle of law.
2. Rules ,on the other hand ,are applicable in an ‘all –or-nothing fashion’ and their
distinguishing features is ‘reason. Dworkin points out that judges have the
discretion of creating new legal rules when the existing law is silent on a
particular point or does not provide necessary guidance in a particular case-
situation.
3. There is no law than the rules of recognition .He believes that legal system being
an instrument to regulate human conduct must concern itself with both law as “it
is” and “as it ought to be’’ .This in other words means that law cannot be
completely divorced from the concept of morality.
Historical theory of – Sir Henry Maine
Maine made a comparative study of legal institutions of various communities and
laid down a theory of evolution of law. Maine’s contribution to historical
jurisprudence is so great that he is labeled as ‘Social Darwinist’ because he
envisaged a social order wherein the individual is finally liberated from the
feudalistic primitive bondage. He came, to a conclusion that the development of law
and other social institutions has been more or less on an identical pattern in almost
all the ancient societies belonging to Hindus, Roman, Anglo Saxon, Hebrew and
German communities.
Maine’s Views of Development of Law
Units of Status Based primitive Societies- There are four units as per Sir Henry
maine
1. Pater Familias - Most of these communities have a patriarchal pattern with the

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eldest male parent dominating the family, salves and property. This eldest male
is called the Pater Familias. Pater familias is the lowest unit in the primitive
community.
2. Gens - A few families when taken together formed a union of families or Family
Group this is called the Gens.
3. Tribes - Aggregation of families constituting Gens led to formation of tribes.

4. Commonwealth - A collection of tribes formed the community which Maine

called Commonwealth. Servants and slaves did not have any rights while other
members of family had existence only as their status namely son, wife etc. They
did not have any individual existence apart from this status.
Movement of Progressive Societies from Status to Contract
With the passage of time the institution of pater familias withered away and now
the rights and obligations were dependent on individual contracts and free
negotiations between persons.
This led to disintegration of family system and emergence of contractual relations
between individuals These societies were termed as Progressive Societies
individuals gained freedom and status lost its value ,under the laissez faire theory.
Maine says that movement of the progressive societies has hitherto being from
status to contract .Here slaves get more freedom.

Status Contract Status

Reversal Trend from contract to status

With time and industrialization ,urbanization ,modernization ,new problems of
poverty ,unemployment ,etc. cropped up giving rise to inequality ,thus there came a
counter –current a counter of reversal from contract to status during the life time of
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Maine himself .it was seen that the theory lost it hold since it worked mostly in
capitalist countries which have turned socialist.
It was also realized that the contract too ended up forming associations .This
resulted in group bargaining .Social legislations provided minimum wage and work
hours and therefore the individuals were bound by them .The contracts have been
standardized and parties enter into them as a social class not individuals .Thus the
freedom to contract has been curtailed.
Maine’s contribution to historical jurisprudence.
He gave four stages in the development of law:
1. Divine law: This implies the law made by the ruler under divine inspiration
as the inspiration by Themestes in Homeric poems. Themes is the Goddess of
justice and Themestes means the awards pronounced her to be executed by
the king as custodian of justice .
2. Customary Law: Maine says that custom is to society what law is to state.

3. Knowledge of law with the priestly Class: In this stage the authority of the
king to excute and enforce law was usurped by the priest.
4. Codification - This stage marks the end of monopoly of the priestly class
and the law is codified.
Law’s development through Legal Fiction, Equity and Legislation
There are three methods by which the progressive societies develop their laws.
1. Legal Fiction- This means the legal fiction changed the law without changing
the letter of law but according to the changing needs of the society.
2. Equity- This includes principles which appeal to the good conscience of
the human being .Equity aims to remove the defects in the law.
3. Legislation :- It is the most effective ,direct and systematic method of the
introducing reforms.
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Savigny theory / Volksgeist Theory

According to savigny, the nature of any particular system of law was the reflection
of the “spirit of the people who evolved it”. Thus, savigny’s central idea was that law
is an expression of will of the people. It doesn’t come from deliberate legislation
but arises as a gradual development of common consciousness of the nation. To
him, legal system was a part of culture of a people.
He said that if law is made without taking into consideration the past culture &
tradition of community. it will create more confusion rather than solving the
problem because life is not artificial, lifeless device. So it is product of general
consciousness of the people.
Theory of Volksgeist
Volksgeist is the concept of law propounded by Savigny. The term Volksgeist is
made by the two words Volks means people and geist means their common will. It
means the law is a common will of the people (spirit of the people). In a simple
sense, Volksgeist is a general and common perception of the people or the spirit of
the people. The main idea of Savigny behind this theory was that law is an
expression of the will of the people and it doesn’t come from deliberate legislation
and it develops as the consciousness of the nation arises. The core of Volksgeist was
that a legal system of a nation is mainly influenced by the historical culture and
traditions of the people and its growth was located in their acceptance.
Theory of Volksgeist by Savigny can be explained in the following heads:
1. Law prevails basically in society:
According to Savigny, the law is the product of the people’s life living in a particular
society and it is the outcome of a culture of a society. It embodies the whole history
of a nation’s culture and reflects inner convictions that are rooted in society’s
common experience. The Volksgeist gradually drives the law to develop over the
course of history. Thus, according to Savigny, a thorough understanding of the
history of people/society is necessary for studying the law accurately.

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2. Law develops like a language:

Savigny stated that law develops like a language. He said that law is a national
character and develops like a language in the nation, which not only binds people
with beliefs and opinions in a group but also grows with the development of society.
The development of both elements goes hand in hand. It has no different existence,
which follows them but considers as one being. History is proof that law is
developed according to the pre-existing manners in society and approved by the
national character, like language.
3. Law is a continuous and regular process:
Law is a continuous and unbreakable process bound by the common culture and
beliefs of society, not the product of the day. It develops through the regular and
continuous process of society. Customs and usages in society are given common
consent to be followed by the society in the beginning and the people follow them
without any hesitation, insured willingly, and those not follow become solitude in
the society and finally, all have to become common and this the thing takes the
shape of law on the society.
4. Savigny’s opinion on codification of law:
Savigny was against the codification of the law. He thinks that the development of
the law should be on the basis of historical knowledge and not by arbitral
legislation.
5. The initial development of law is natural and later on, it is developed by
jurists:
He stated that in the early stages law develops naturally/spontaneously according
to the internal needs of the people but after people reached a certain level of
civilization, different kinds of national activity developed the law accordingly.
Criticism:
As already discussed, a uniform and precise definition of law are far from reality,
and Savigny’s Volksgeist is not an exception. It has also some criticisms by other
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jurists, which are as follows:

1. Volksgeist not always law:
Dias says that many institutions like slavery have originated not in Volksgeist but in
the convenience of a ruling oligarchy.
2. Not clear who the volk are and whose geist determines the law:
It is also not clear, who the volk are and whose geist determines the law nor it is
clear whether the Volksgeist may have shaped by the law rather than vice-versa.
3. Inconsistency of the theory:
Savigny, on the one hand, emphasized the national character of law but on the other
hand, he recommended the method of Roman Law to be adopted for modern
conditions. Hence there is inconsistency in the theory of Volksgeist.
4. Volksgeist is not an exclusive source of law:
According to Savigny, Volksgeist is the only source of law in society, but it is not
correct. Lord Lloyd also said that Savigny underrated the significance of legislation
for modern society. As far as society is developed the law is also to be developed in
the society by legislation also.
5. Other law influencing factors ignored:
Savigny in his theory ignored other factors that helped to originate law. He totally
ignored the judge’s function to create the law. Paton states that the creative work of
the judges and jurists was treated rather too lightly by Savigny.
6. It was unfortunate that the doctrine of Volksgeist was used by the National
Socialists in Germany for an entirely different purpose which led to the passing
brutal laws against the Jews during the regime of Hitler in Germany.
Conclusion:
As per the above-mentioned matter, it can be said that Savigny in his theory
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deliberately focused on his theory of Volksgeist upon which his research was
depending. In his theory, he says that law is derived from the customs, tradition, and
rules of the community, and the spirit of the people are important in the creation of
the law and the role of the sovereign is very less. He thinks that by deep and careful
study of the customs, the true essence of the law developed.
Sociological school
The main concern of law is to help in social progress. Law studies effect of law and
society on each other. In their view it is wrong to treat law as mere command of god.
The functional role of law & its effect on society constitute the basic philosophy of
sociological jurisprudence. The success of the legal process is measured by the
degree to which it achieved a proper balance between social and individual
interests.
Law is used to encourage social purpose by coercion and reward. So the purpose of
law has to be in tune with the needs of a particular society at a particular time.
He rejected the individualistic concept of law which limit the function of law to the
securing of civil liberty by protecting the right of individuals, So according to
sociological school, law is derived from social facts and depends not on state
authority but on social compulsion. The real source of law is not statutes or cases
but the activities of society itself.
Background/reasons for development of sociological school –
The factors which led to the establishment of sociological school are follows.
1. 19th century witnessed the shift of focus from individual to the society. So
law was also derived from activities of the society
2. Prior to 19th century matters like health, welfare, education were not the
concern of the state but in 19th century state became more concerned with
all aspects of human life & welfare.
3. This implied regulation through law which compelled legal theory to adjust
itself to take account of social interest.
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4. By this time shortcomings of analytical jurist were being felt, so this school
came into picture.
5. Revolution & social unsettlement not only upset social stability but also
provoked anxiety about shortcomings of laws. Sociological jurist wanted to
overcome these shortcomings. so there was rise of sociological school.
6. Historical school indicated that law & social environment in which it was
developed are intimately related. This idea was worked out by the jurists of
the sociological school.
Characteristics-
1. Exponents of sociological school put more emphasis on functional aspect of
law rather that its contents. According to them law cannot be insulated from
social objections & practical problem of life.
2. They consider law is related with other discipline i.e. philosophy. Psychology,
politics and economics & has to be understood in terms of its utility, purpose
& function.
3. Sociological school completely discards the philosophy of analytical school
which lay over emphasis on command aspect of law as also on the weight of
past culture & tradition.
4. Sociological jurist however differ in their approach to perception of law.
Some prefer to adopt study of functional aspect of law while other prefers
defining law in terms of court’s ruling & decisions.
In other words sociological jurisprudence is a multifaceted approach to solve
immediate problems of society with tools which may be legal or extralegal
techniques which promote harmony & balance of interest of society.
Social engineering theory of pound
Roscoe Pound was legal scholar. He laid foundation of sociological jurisprudence.
He talked about the nature of law & he discussed how law should be applied in
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actual situation. He proposed the theory of social engineering where law became
important instrument of crafting the society. For him, law is not only responsible for
change. It is also an instrument of social control.
Law is social engineering. Engineering is applied science. An engineer develops his
tool & technology to produce the finished goods. Same way lawyers & judge are
mainly engineers who try to develop ideas for new law to cater to the changing
demand of the society. They use their experience to make improvements in existing
law & create ground for new laws.
According to him, law in capacity of social engineering should work out the way for
balancing out the competing interest in the society so that friction between the parts
of society can be reduced. Judges have to recognize what are the various interests of
individual, society & state & how these interests can be harmonized
Pound talks about 3 type of int.
1. Private interest – these includes a. Personality – this consist of

 Physical person

 Freedom of will

 honor & regulation

 belief& opinion

2. Domestic relation- such as relation between

 husband & wife

 Parent & children

 Marital life & individual private interest

3. Interest of substance

 Property

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 freedom of industry

 freedom of association

 continuous employment

4. Public interest - these are claims of individual involved in or looked from the
point of view of political life.
 Interest of the state as a juristic person which includes honors of the
state’s personality
 Interest of the state as guardian of social interest such as protection of
natural environment, regulation of public employment & so on.
 Social interest- these are the claims of the social group. These includes
1. Social interest in the general security such as –

 General safety

 General health

 General Law & order

 General peace

2. Social interest in general morals – this cover variety of laws such as those
dealing with prostitutions, gambling etc.
3. Social interest in the conservation of social reasons – such as conservation
ofnatural resources
4. Social Interest in general progress-

• Economic progress

• Political progress

• Cultural progress
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5. Social interest in individual’s life such as-

• Self assertion

• Opportunity

So pound tries to harmonize the different interests to satisfy the maximum

human needs with less conflicts & waste. Some example of Indian cases to show
social interests overrule the individual interest.
Jural Postualtes
There are five Jural Postualtes as per pound-
Jural Postulate I. – In a civilized society men must be able to assume that others
will commit no intentional aggression upon them.
Jural Postulate II – In a civilized society men must be able to assume that they may
control for beneficial purpose what they have discovered to their own use what
they have created by their own labour.
Jural Postulate III – In a civilized society men must be able to assume that those
with whom they deal in general intercourses of the society will act in good faith
Jural Postulate IV – In a civilized society men must be able to assume that those
who engage in some course of conduct will act with due care.
Jural Postulate V– In a civilized society men must be able to assume that others
who maintain things or employ agencies ,harmless in the sphere of their use but
harmful in their normal actions else where ,and having a natural tendency to cross
the boundaries of their proper use will restrain tem and keep them within their
proper bounds.
Criticism
1- Pound’s Theory of social engineering has been criticized for the use of the
term ‘engineering which equates society to a factory like mechanism.

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2- Pound’s emphasis on ‘engineering’ ignores the fact that law evolves and
develops in the society according to social media and wants for which law
may either have approbation or disapprobation.
3- It confines the interpretation of ‘wants and desire’ to only material welfare of
individual’s life completely ignoring the personal freedoms which are equally
important for a happy social living.
4- Doubt has been expressed about the value of classification of interest. Not
only that, the respective value of these interests and their evaluation also
depends on changing political and legal system.

Application of social engineering theory in India can be shown by following

two leading cases
1. Vellore citizen forum v/s union of India – It was held that even if industries
are very important for a country’s progress they are to be held responsible for
causing pollution. They must adopt principles of sustainable development &
balance development.
2. Union carbide corporation v/s union of India- It was held that industries
engaged in hazardous activity should be strictly liable to compensate all who
are harmed by the gas leakage or any other harmful activities.
Leon Duguit (1859-1928):- / Social Solidarity
Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law)
who made a substantial contribution to the sociological jurisprudence in the early
twentieth century. He was much influenced by the Auguste Comte’s theory of law as
a fact which denounced individual rights of men and subordinated them to social
interest and Durkheim’s work “Division of Labour in Society”. In this theory, he
made a distinction between the two kinds of needs of men in society namely:-
1. Common needs of the individuals who are satisfied by mutual assistance,

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2. Diverse needs of individuals who are satisfied by the exchange of services.

Therefore, the division of labour is the pre-eminent fact which Duguit called as
“Social Solidarity”. In his theory, he explained the social cooperation between
individuals for their need and existence.
Social Solidarity:-
Social Solidarity is the feeling of unity. The term ‘Social Solidarity’ represents the
strength, cohesiveness, collective consciousness and viability of the society.
Solidarity is nothing more or less than the fact or interdependence uniting the
members of human society, and particularly the members of a social group by
reason of the community of needs and the division of labour. Law is an instrument
of social solidarity and cohesion. Because man cannot live apart from society, as a
social animal. Law is not a body of rights. The only real right of man in society is to
do his duty. All human being’s activities, organizations should be directed to the end
of ensuring the smoother and fuller working of men with men. This Duguit calls the
principle of social solidarity.
Duguit built his theory on social solidarity upon these two needs of men in society.
He insisted on the necessity of viewing social life as it is actually lived. The most
important fact of the study is the interdependence of man. In the present day
society, man exists by his membership of the society. Each man cannot manufacture
and procure the necessities of life himself. Functions are so specialized that each in
his turn depends on others for necessities. The end of all human activities and
organisation should be to ensure the interdependence of men. This is Duguit’s
Theory Of Social Solidarity.
His Legal Philosophy may be summarized as follows
1. David attack on sovereignty; Minimization of state functions-:
Duguit attacked the myth of state sovereignty. Social solidarity is the touchstone of
judging the activities of individuals and all organisations. State is also a human
organisation and it is in no way different from other organisations. It is simply the
expression of the will of the individuals who govern. Therefore, the state stands in
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no special position of privilege and it can be justified only so long as it fulfills its
duty.
2. No Distinction Between Public And Private Rights
Duguit’s views on state and its functions led him to deny the distinction between
private and public law. According to him both are to serve the same end i.e. ‘Social
Solidarity’. Therefore, there is no difference in their nature.
3. No Private Rights
Another important point in Duguit’s theory is that he denies the existence of private
rights. He says that “the only right which any man can possess is the right to always do
his duty“. Individuals working in any capacity are the parts of the same social
organism and each is to play his part in furtherance of the same end i.e. ‘Social
Solidarity’.
4. His Idea Of Justice Is In Social Terms
Despite defects and weaknesses in Duguit’s theory, his contribution and influence
was great. His approach is very comprehensive and sincere. He shaped a theory of
justice out of the doctrines of sociology.
5. The unity of state is not consistent with the collectivist association.
6. The sole emphasis of Duguit was on interdependence of men as member of the
community.
7. There are three formative laws, namely, respect for property, freedom of
contract and liability for fault which achieve validity when approved by the
people. Public opinion is thus expression of social solidarity.
8. He contemplates gradual withering away of the state and its replacement by
group of association which are engaged in the service of society.
Criticisms of Duguit theory
Duguit’s theory has been criticized on ground various grounds:
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1. ‘Social solidarity’ a Natural Principle

The first weakness of the theory is that though Duguit is a positivist and excludes all
metaphysical consideration from law, his principle of ‘Social Solidarity’ itself is a
natural law ideal. His special emphasis is on the valuation of law on a social plan. He
wants to establish an absolute and uncontestable rule of law. Like natural law
theories, he establishes a standard (social solidarity), to which all positive law must
conform. It is nothing but natural law in a different form. Therefore it has been
rightly observed that Duguit “pushed natural law out through the door and let it
come by the window.”
2. Social Solidarity to be decided by the judges
In Duguit Theory of social solidarity, a question arises as to who is to decide
whether a particular act or rule is furthering the social solidarity or not. Professor
Lakshi says, “government with the help of judges would logically under his system be
the final safeguard insurrection as a part of the rule.“
The prospect of handing the whole matter to the judges may prove dangerous and
may lead to judicial despotism.
3. Social solidarity is a vague expression and interpreted to serve divergent
purposes.
The idea of social solidarity is very vague and analysis would reveal that it is not
free from metaphysical notions which Duguit rejected so strongly. Also his theory
may be subjected to different interpretations to serve divergent purposes.
Some of the example are given below:
 Duguit insistence and identity of interest of various groups in the society and
minimization of conflict was used by the Fascists to suppress trade unions and
other organisations and glorified the state, giving it a towering personality.
 Secondly, the Soviet Jurists used Duguit theory to establish that individuals have
no right. Also, his idea of denial of the distinction between private and public law,

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and minimising state intervention were other points of great attraction to

SovietJurists.ot
4. He confuses ‘is’ with ‘ought’
While defining Law, Duguit confused it with what the law ought to be. According to
his view, “if law does not further the ‘Social Solidarity’ it is no law at all”. He laid
down certain fundamentals to which the law must conform. His definition of law
instead of giving a clear cut picture confuses it as what was done by natural law
theories.
5. He overlooked the growing state activity
Duguit advocated for the minimization of state intervention at a time when state
was growing all important. Though he propounded his main thesis from the
observable facts of social life i.e. growing complexity and interdependence in
society, he overlooked the fact that the social problems of community can be solved
better by state activity.
Conclusion
In the last three decades the jurisprudence has engaged in India at a microcosmic
scale. The need of studying law on the nature of socio-economic reality is the cry of
the day. Legal scholars, judges and jurists all have emphasised the importance of the
relationship of law, society and social changes which are taking place so fast.
Realist theory of law
This school says that law is emanated from judges. Law is what court does and not
what they say. For them judges are law maker.
In other word we can say law is what court has decided in respect of any particular
set of fact, prior to such a decision, opinion of lawyers is only a guess as to what the
court will decide and this cannot be treated law unless the court so decides by its
verdict. This school combines analytical school and sociological school.
Realist school of law is part of sociological approach so it is also called left wing of
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the sociological school But is differs from it as realist school does not study the
social effect of law not it start with social engineering there are 2 trends of the
realist school
1. American realist

2. Scandinavian realist school

Realist school focus on practical aspect of law as it give importance to judge made
law as genuine law & they do not give any importance to laws evolved by legislature
There are 3 reasons for the establishment of realist school
(1) It was established as a reaction against sociological justice which focused only
on social effect of law
(2) It was established to ignore theory of social engineering which say law was
made to remove social evils
(3) It was established to pint out the importance of courts & importance of judges.

Features of realist school of law

(1) There is no certainty about law as it depends upon the fact which are placed
before court for decision
(2) Law is consented with human behavior and conviction of lawyer & judge.
(3) They evaluate law in terms of its effect
(4) They opposed to the value of legal terminology it can suppress uncertainty of
law.
(5) They do not support formal approach to law as court reaches its decision on
emotive rather than logical ground.

Realism in Indian context:- it may be stated that though Indian jurisprudence

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does not formally subscribe to the realist school but relates law to the relation of
social life.
1. In India judges have to take the decision within constitutional framework of
the law, in other words we can say judges in India cannot ignore the existing
legislative enactments.
2. In India Doctrine of precedents which has no place in realism though plays a
significant role in the Indian judicial system as precedents provide guidance to
the judges for making decision.
3. Legislative enactments, precedents, rule of equally justice are indispensable
part of the judicial system in India.
4. Indian law refuse to accept the realist’s view that judge made law is the only
real law & other laws are worthless but at the same time it does not
completely ignore the importance of judges, lawyers in shaping the law.
5. Indian judges do have the liberty of interpreting law in view of social,
economical, political variation in the Indian society.
6. The power of review & doctrine of overruling its earlier decision enable the
Supreme court to consider socio economic contents of law.
American realist school
1. Homes view-

According to homes, law is what court do not what they say, until a court has passed
judgment on certain fact, there is no law, opinion of lawyer is only guess as to what
the court will decide in reaching a decision. He discussed the law from the point of
view of the bad man i.e. the person who was before the curt as an accused.
He simply wanted to know what court will decide in his particular case he is
interested to know whether accused will win or lose and what are the effects of
winning or losing. The concern of the judge is to do justice in the case before him
and if that require a creative interpretation of existing rules, he should certainly
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resort to it.
2. Liewellyn view-

He was professor of law at Columbia University. He said realist school is not a school
but group of thinkers who belong to the sociological jurisprudence. He said that we
have to see actual effect without giving much Importance to formal rules. He focused
on the study of case law.
Features according to him-
 He placed trust on the wisdom of the judiciary which enables judges to
achieve the right legal solution. So that law can promote cause of justice.
 He argued that society endanger faster than law so there is continuous need to
examine how law meet out social problem. We should study the effect of law
on society also.
 He stated that law is not only formal legal rules but we should consider other
influence also which effect the working of the court.
 He stated we should examine how law operates in the society.

 He found no harm in divorcing ‘is from ought’ for the purpose of study in
judicial process.
3. Frank view-

According to him law is not merely collection of rules and that legal uncertainty is
inherent in it. He stated that judges do not make law, they merely discover it, he
stated that law consists of decision and the personal convictions like & dislike
emotions. The temperament of judges has an important bearing on the making of
law and you can never anticipate which way a court will jump because many factors
combine to promote such uncertainty.
Criticism against realism-
1. Critics allege that realist school have completely overlooked the importance of
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rules & legal principles and treated law as an assembly of unconnected court
decision.
2. They wrongfully thought that law evolved only through court decision.

3. It was established to focus on importance of courts & importance of judges.

4. Realists have exaggerated the role of human factor in judicial decisions. There
are a variety of other factors as well which he has to take into consideration
while reaching his decision.
5. This theory is confined to local judicial setting and has no universal
application in other parts of the world.
6. The supporters of realist theory undermine the authority of the precedent and
argue that case law is often made “in Haste.”
Comparison between Scandinavian & American realism
1. American realist school is mainly interested in practical working of judicial
process whereas Scandinavian are more concerned with the critical process.
2. Although Scandinavian say law in terms of observable facts but it is the
American who primary stress the need for factual studies in working out
proper solution for legal problems.
3. Scandinavian remain in the European tradition, whereas American bears
many of the characterization of English philosophy
4. Scandinavian does not give attention to psychological behavior of judges as
the American realists do. However both give more weight to the social effect
of law with focus on judicial decisions
Natural law Theory
In jurisprudence, the term natural law means those rules and principles which are
considered to have emanated from some supreme source , other than the political
authority .Natural law is famously identified with the slogan ‘lexiniusta non estlex
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‘which means an unjust law is not a law. The Natural law theory postulates that law
consists of rules that are in accordance with reason .Natural law is considered
eternal ,unalterable with no formal written code.
It is a law which is inherent in the nature of man and is independent of convention,
legislation or any other institutional devices. Natural law is not a body of actual
enacted or interpreted law enforced by court, it infact a way of looking at things
and a humanistic approach of judges and jurists.
Natural law means those rules and principles which are supposed to have
originated from some supreme source other then any political or worldly authority.
Main Features of Natural Law
1. Natural law is eternal and unalterable
2. Natural law is not made by man, it is only discovered by him 3- Natural law is
not enforced by any external agency.
3. Natural law is not promulgated by legislation, it is an outcome of preaching of
philosophers ,prophets ,saints etc. and thus in a sense ,it is a higher form of
law to which all forms of man-made laws should pay due obedience.
4. Natural law has no formal written Code. Also there is no precise penalty for its
violation nor any specifies reward for abiding by its rules.
5. The central idea behind natural law is that it embodies moral principles which
depend on the nature of the Universe and which can be discovered by natural
reason ,But human law can only be said to be law in so far as it conforms to
those principles.
6. Natural law has an eternal lasting value which is immutable and it has been
generally accepted that any man-made law which runs contrary to natural
law may succeed for the time being but it is likely to fail sooner or later.
7. It has often been used either to defend a change or to maintain status quo
according to the needs of times.
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Historical development of Natural law school

The content of natural law varied from time to time according to the purpose for
which it has been used. Therefore, the evolution and development of natural law
theory has been through various stages which are as under
1. Ancient period

2. Medieval period

3. The period of Renaissance and

4. Decline of Natural Law Theory due to 19th Century Positivism

A. Ancient period
1. Heraclitus was the first Greek Philosopher and first to point out characteristics
oflaw of nature. These are as follows:
 Destiny

 Order

 Reason

According to him, reason is the most essential feature of the natural law. He
believed that there is a definite order between things and they share a relation.
2. Socrates (470-399 BC)- He was a Philosopher. According to him, Virtue is
knowledge & whatever is not virtuous is sin. He divided justice into legal and
natural justice. Legal justice differs from place to place, while natural justice is
uniform in application.
He told that
 Admire of truth & moral values

 Virtue is knowledge & whatever is not virtuous is sin.

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 Human insight supported by human reasoning

3. Plato (427-347 BC)- Plato was a pupil of Socrates and author of the book
“Republic”. According to him, only those persons who are worthy and intelligent
should be the King. He asked for perfect division of labour and held that each man
should mind his own work and not interfere with other work.
4. Aristotle (384-322 BC)- According to him, Man is a part of nature in two ways:

I. He is a part of God’s creation.

II. He possesses insight or active reason by which he can shape his will.
Aristotle defined natural justice as “that which everywhere has the same force
and does not exist by the people thinking this or that.”
According to him
 Natural law is reason unaffected by desires.

 Positive law should be obeyed even if it is devoid of the standard principles of

natural law.
 Natural law is Roman system

 The civil law called as civil was applicable only to Roman citizens & the law
which governed Romans as well as foreigners was jus gentium. Both were
merged as jus natural as roman citizenship was extended to everyone.
B. Medieval Period (12th to mid 14th century in Europe

The period of medieval law is from 12th century to 14th century. It was propagated
by Christian fathers to establish superiority of church over the state. There are two
fundamental principles surrounding the medieval natural law theory:
a. Unity derived from God, involving one faith, one church and one empire.
b. Supremacy of manmade and God-made law as a part of unity of universe.
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(1) Saint Thomas Acquinas was the main philosophy of the Medieval Natural
Law theory.
 He divided law into four categories :

 Law of God or external law

 Law of nature or natural law, revealed through the reason of man.

 Law of Scriptures or Divine Law.

 Human laws (called positive law now)

C. Period of Renaiseance
Also called the modern classical era which is marked by nationalism & emergence
of new ideas in different fields of knowledge. social contract was the basis of the
society. He is known as Father of international law Grotius believed that the
political society rests on a “ social contract”. It is the duty of the sovereign to
safeguard the citizens because the former was given the power only for the purpose
.The sovereign is bound by “natural law” .The law of nature is discoverable by
man’s reason.
He also says that, however ,bad the ruler maybe ,it is the duty of the subject to obey
him. This creates inconsistency in his theory as on one hand, he says that the ruler
is bound by natural law and on the other hand ,he express that he should in no case
be disobeyed.
He deduced a number of principles :
 That the government are equal

 That the government in their foreign relations are perfectly free

 The promise made between the government are of a binding nature because
to fulfill a promise is also a principle of natural law.
(2) Thomas Hobbes (1588-1679)
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Hobbes theory also proceeds from the ‘social contract’ and his theory is based on
the evolution of state .According to Hobbes ,before the social contract man lived in
a chaotic state. He made use of natural law to justify the absolute authority
.According to him ,man’s life in a state of nature was one of fear and selfishness.
The idea of self –preservation and avoiding misery and pain are inherent in his
nature as is also his desire for society . These natural indications induce him to
enter into a contract and surrender his freedom and power to some authority.
He completely denounced the religious and metaphysical character of natural law.
He observed that law is dependent upon sanction of the sovereign. He thus said
that civil law is real law because it is commanded and enforced by sovereign.
According to him
 Prior to ‘social contract’ man lived is chaotic condition of constant fear. He was
solitary, poor nasty Brutal. To secure self protection, men voluntarily entered
into contract & surrendered their freedom to some lightest authority ruler
 His doctrine of absolutism of sovereign law is dependent upon the sanction of
the sovereign.
(3) John locke (1632-1704)
According to Locke the state of nature was a golden age, only the property was
insecure. Man was not miserable and brutish as Hobbes said . It was for the purpose
of protection of property that men entered into social contract .Under this contract
,man surrendered only a part of his rights, namely to maintain order to enforce the
law of nature.
He emphasized protection of the following three inalienable rights:
 Right to property

 Right to life

 Right to liberty

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The government and law should uphold and protect these rights. So long as the
government fulfils this purpose , the laws given by it are valid and binding but
when it ceases to do so ,its laws are no more valid and the government may be
overthrown
It is also said the Lock’s idea of social contract was based on a secular approach to
natural law. His support for individual liberty can be contracted from that of
Hobbes.
According to him
 Right to life, liberty & property remained with him & man only surrendered
the right to maintain order & to enforce law.
 As long as the state fulfils this purpose, its laws are very valid & binding but
when it ceases to do so, the people have a right to revolt against the govt. &
overthrow it.
(4) Jean Rousseau (1712-1778)
Rousseau provided a new interpretation to natural law and social
contract. According to him ,social contract is a hypothetical construction of reason
and not a historical fact .Before this contract, man was happy and free there was
equality amongst men. With the social contract men united for the preservation of
their rights of freedom and equality .For this they surrendered their rights not to a
single individual sovereign ,but to the community to which Rousseau gives the name
– “general will”
According to his theory of general will ,it is the duty of every individual to obey the
‘general will’ of community as in doing so he directly obeys his own will.
Prior to social contract, the life was happy & there was equality. To preserve this
they surrendered their rights not to a single individual i.e. sovereign, but to the
community as general will. His theory is the forerunner of the modern
jurisprudential thought.
(5) Immanuel Kant (1724-1804)
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Kant drew a distinction between natural rights and acquired rights and
recognized that only the former were necessary for the freedom of individual. He
favour separation of power and noted that the function of state should be to protect
law. His categorical imperative theory derived from Rousseau’s theory of General
will. It consists two principle.
 Human right of self-determination
 An action emanating from reason but it does not mean the freedom to do as one
please.
D. Modern Period
Reasons for Decline of natural law in 19th century
1. There were social, economic and political changes. The problems created by the
new changes and developments demanded practical solutions.
2. Modern scepticism preached that there are no absolute and unchangeable
principles.
3. A priori methods of the natural law philosophers were not acceptable in the
emerging age of science.
4. The evil effects of excessive individualism gave way to collectivist outlook.

5. Analytical positivism completely divested law from morality and justice which
destroyed the very foundation of natural law.
Revival of the natural law theory in 20th century(Modern period)
Towards the end of the nineteenth century, the natural law theory revived
because of the following main reasons:
1. There was over emphasis on positivism which failed to satisfy the aspirations
off the people because positive law refuses to accept morality.
2. The pure positivist approach failed to solve the problems created by the
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changed social conditions.

3. The material progress and its effect on the society made the thinkers to look
for some values and standards. This was also strengthened by the world Wars.
Main features of Revived natural Law theory
1. Theories have taken stock of the various approaches to law during the past
and the present centuries.
2. They have sought guidance from contemporary theories.

3. Now natural law is relative

4. It attempts to harmonize the natural law with the variable human ideals.

5. This new approach has been called the ‘Natural law with variable.

(1) Rudolf Stammler (1866-1936)

Stammler was a German professor .He defined law as a “species of will, others –
regarding ,self –authoritative and inviolable .” Law is a species of will because it is
concerned with the ordering of conduct .He believed that it is impossible to frame
legal principles of the law of nature. Thus ,law is the law of nature with variable
content.
He distinguished between the concept of law and the idea of law and justice. He
says that ,”all positive law is an attempt at just law” and this just law ,or justice is a
harmony of wills or purposes within the framework of the social life. The harmony
of wills or purposes varies according to time and place .For the knowledge of wills
and purposes one must come into actual contact with the living social world by this
one can find out what is relatively just and it is this just which the law should
endeavour to attain.
He also said law that is a priori because it is inevitably implied in the idea of
cooperation .In order to achieve justice ,a legislature has to bear in principles of
respect. Principles of respect are that the content of a person’s volition must not
depend upon the arbitrary will of another.
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According to him-
 A just law was the highest expression of man’s social life & aims at
preservation of freedom of individuals.
 Law of nature is to bring unity for the purpose of all peaceful continuity.

(2) Kohler

He defines law as, “the standard of conduct which is consequence of the inner
impulse that urges men towards a reasonable from of life.
He thus, gives a new interpretation top the legal history and says that legal
interpretation should not be materialistic. Taking the requirements of the culture
into consideration, law can serve its purpose better. This would help to know the
true aim of law.
He tried to free the nineteenth century natural law from rigid and a priori approach
and tried to make it relativistic.
In actual fact civilization is changing and progressing and law has to adapt itself
with the constantly advancing culture.
According to him
a. There is no eternal law & the law shapes itself as the society advances morally &
culturally.
b. It has adaptability to meet new challenges of the transient society.

c. It is a law which is inherent in the nature of man & is independent of convention,

legislation or any other institutional devices.
d. There is always humanistic approach of Judges & Jurists. It embodies within it
morality, justice, reason, good conduct, freedom, equality, liberty, ethics.

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