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2010 MODULE V Henry Maines Ancient Law The concept of legal pluralism Here we find that the values that govern our society are different from formal legal institutions. Often these 2 sets of values are contradictory to each other and effective governing is done by the non-formal institutions of the society which possess immediate normative control over the members of the society. These factors led to knowledge functioning of the legal system and legal pluralism came into being. Maine was the pioneer of this type of thinking in law. His thoughts reflect on the working of the society at that point of time. He was influenced by the concept of Darwin came two years before his work came. Maines entire work draws comparison on the working of the society how law evolved and lot of comparison between Hindu and Roman jurisprudence. He looked into the past to find out what was the law in the present. He made comparisons of development of legal cultures in different societies. In his book it is mostly generalization and he has criticized in most of it. He deals with development of courts, family law, natural law and development of legal concepts (property, will, succession, contract, tort) what is law? How it came into being? Through comparison he came to conclusion in the present. First Chapter Early Codes He considers Roman legal system as the most celebrated legal system known to the world. It started with 12 tables which was the first code. Last one was Justinian code and there was 1000 years difference between the 2. He reflects 2 ideas1. Early civilization when the law came into notice it was always entangled with religion and 2. His contention was with regard to the code of Manu: the fraudulent nature of code of Manu and the after effects of the code forced the Hindu civilization as perverted and feeble. Roman legal system: in the infancy of civilization human beings were not able to understand natural forces like air water fire and sun and when they were not able to understand they thought that control was by divine personalities but always in human forms and as such natural forces moral forces also became divine personalities. He takes the example of Greeks e.g. separate goddess names Thames and job was to suggest awards to the kings when they adjudicated disputes of the subjects. Maine praises the origin of monarchy and aristocracy. He says that in every association of persons there always emerges strong personality who is known for his physical strength, courage and honesty and such a person always received admiration and obedience from other members of the group. Therefore in earliest societies such a person became the king. He gave solutions based on principles as given by divine personality and moral ethics. Therefore he comments that it is the divine inspiration behind the principles of law which became the binding force of law to religious practices and rituals.

During the early stages of human civilization it rarely passed the status of pastoral economy and it was a scattered agricultural settlement and therefore petty activities took place which gave rise to regular and predictable pattern of disputes and rarely a dispute was brought that warranted different treatment from earlier disputes. Hence the principles on which the dispute was solved had its application on successive disputes of the same type and therefore we find that he remarks that law has scarcely reached the footing of custom it is rather a habit. He made a comparison of Roman and Hindu society. Roman society is a progressive society whereas Hindu society is a stagnant society. In roman we find the concept of kingship who conquered several areas. There was concept of heredity of king eldest son became the next king. But after Justinian code this group or family of kings became the aristocrats. After this came the idea of kinship when formal legal institutions came into being. They were the part of non-formal governance. Maine says that Hindu society is a stagnant society. There were religious codes and chiefly code of Manu. It was divided into castes superior caste was the Brahmins and they noted down the religious practices but it never represented any practice of law at that point of time. This writing down of Brahmin never represented law and set of rules administered in India. Manu code was drafted for the purposes of creating privileges and benefits to Brahmins and envisages a system whereby those privileges were perpetuated. Code which we find in the Roman legal system gives an insight into law at that point of time but Manu code does not give us such an insight. Therefore, Roman society is a more progressive one as compared to the stagnant Hindu society. 25.3.2010 Speluncean explorers case The judges here belong to different schools of law. So they have different opinions.

29.3.2010 1. Natural law and revival 2. Philosophical school 3. Historical and sociological 4. Positivism analytical, Kelsons pure theory of law, pragmatic theory of positivism ( American and Scandinavian) 5. Utilitarianism

6. Modern political movements (socialist and communist theory i.e. Marxist theory of state) Reference: Lloyd on Jurisprudence, Dias on Jurisprudence and Freidman of Jurisprudence Lloyds view on natural law (NL) Natural law thinking has occupied a pervasive role in realms of ethics, politics and law from the earliest times. At some periods its appeal may have been religious or super natural but in modern times it has formed an important weapon in political and legal ideology. He views natural law as a mere law of selfpreservation or as an operative law of nature constraining man to a certain pattern of behaviour. Earlier it was more of morality and God was attached to it now we use it to justify the existing law and social and economic system that is underlying the same. Dias It has a history dating back centuries BC and the vigour with which it flourishes is a tribute to its vitality. There is no one theory of natural law but several versions of it. The term NL has been understood to mean a variety of things to different people at different times. 3 ideas reflect natural law1. Ideas which guide legal development and administration. 2. It is a basic moral quality of law which prevents total separation of is from the ought. 3. Natural law is the method of discovering perfect law. Natural law figures prominently in solving 2 vital contemporary problems1. Validity of unjust laws 2. Abuse of liberty

Freidman History of natural law is a tale of search of mankind for absolute justice and its failure. Again and again the idea of natural law has appeared in some form or the other as an expression of research for an ideal higher than positive law after having been rejected and derided in the interval- the only thing that has remained constant in the appeal to something higher than positive law. This is regarding the fall of natural law and its revival in 19th century. At different ages natural law has been used to support almost any ideologies however the most important and lasting theories of natural law have been inspired by the ideal of universal order governing all men and the inalienable rights of the individual. In ancient law there are 2 prominent areas 1. Greek 2. Roman

Greek thinkers laid the foundation of natural law and developed its essential features. One of the very early thinkers was Heraclitus. Natural law was found by him in the rhythm of events which he termed as destiny order and reason of the world. Nature is not just substance but a relation and an order of things. This knowledge provided the basis for Greek school of enlightenment or the Sophists . They say that if there is anything universally valid it is that which is valid by nature for all men without distinction of people and the time. What nature determines is justly authorized. Nature came to be opposed to tyranny of man. Nature is something external outside man. Socrates He defined virtue, the fundamental ethical conception and he says that one of the dictates of natural law is that authority and positive law should be obeyed however he did not argue blind adherence to positive law according to him that should be subject to critical evaluation in light of mans insight. Plato He laid the foundation of much of speculations of natural law and its themes. According to him God gave to all men in equal measure a sense of justice and of ethical reverence so that in the struggle of life they may be able to form prominent unions for mutual preservation. In the ideal state of Plato each individual is given the role for which he is best fitted by reason of his capacities. We get to know from his book republic that its a constructive attempt to discover the basis of justice. Administration of justice is given to the philosopher king whose education and wisdom is such there is no necessity to link them up with higher law.

Aristotle He takes a holistic view he sees world as totality comprising the whole of nature. Man is a part of nature in 2 fold sense- on one hand he is a part of matter and creations of God as such he partakes of experiences. Man is also endowed with active reason which distinguishes him from all other parts of nature. He is capable of forming his will in accordance with insight of reason. It is the recognition of human reason as a part of nature which provides the basis for the Stoic conception of law of nature. Based on this Stoics formed their concept of natural law. Stoics Postulates of reason are of universal force. They are binding on men everywhere. Men are endowed with reason irrespective of nationality or race. Greek thinkers influenced the thinking of Romans especially the Stoics. Romans paid highest tribute to natural law.

Roman System

Here it did not remain confined to theoretical discussions. They used natural law to transform their narrow and rigid system to a cosmopolitan system. There was a very constructive influence of natural law. 1. Jus civilis (governed Roman citizens only) 2. Jus gentium (for both citizens and foreigners applied by Roman Magistrate, it represented good sense and universal legal principles and conformity to natural law.) 3. Jus naturali (in future they became one and citizen ship was extended except a few classes of people. Justice as extended taking into account natural law and it applied to all the people) Cicero He wrote that law is the highest reason implanted in nature which commands what ought to be done and forbids the opposite. This reason when firmly fixed and fully developed in the human mind is law. According to Cicero natural law, the universally valid law which is above all human caprice and change of historical life developed both the commands of morality in general and of human society in particular.

Gist of Natural Law: God has given reason to mankind and man should exercise this reason to form stable society but society was growing, so State laws came in. From 5 th century BC onwards state law demanded total obedience. This was countered by Sophists saying that this must conform to reason and logic which was extended to Romans also where they practically applied it by giving justice to nonRoman citizens also. Similarly in India we find the case of Parsis to whom British applied common law. Later the foreigners became a part of the society and the two became one. Only certain classes were avoided. 30.3.2010 Medieval Ages Those years which superseded the end of Rome and Greece (12 th to 14th century). This was dominated by Christian theology. The concept of absolute supremacy of church was there and state was subject to control of church. Church was the epicenter of social, political and economic affairs of state. There were 4 strands of thought on law1. Political society and state were considered as moral epitomes of justice 2. Rule of law was interpreted as highest principle of society binding the rulers and ruled alike. 3. It was between 2 supreme heads the church and the emperor. There developed a rivalry for power of supremacy. 4. Source of legal authority in civil society. Principle of law derived its origin from people.

Aquinas (1226-74) Summa Theologica He divided law into 3 types 1. Eternal law- those laws governing the whole community of universe by divine reason. 2. Natural law- those laws which are derived from eternal law by those who have divine reason of deriving natural law from eternal law. Natural law is merely incomplete and imperfect reflection of dictates of divine reason but it enables man to know some of the principles of eternal law at least. 3. Human law- as human reason has to proceed from precepts of natural law as common indemonstrable principles and these are those laws which human beings arrived through reason. We also have other laws like common good i.e. law must have as its proper object the well-being of the community its happiness and political union. For achieving common good promulgation of law should be the concern of the whole community or that political person whose duty is to take care of common good. Law is a rational ordering of things which concern good promulgated by whoever is in charge of care of community. Therefore from his precepts of natural law it aims towards preservation of human life, knowledge about the truth of god and to live in a society. According to him all actions which concerns the precepts of natural indications, man should avoid ignorance, he must not give offence to other with whom he associates. Aquinas contribution in concept of natural law is unique as it tried to demarcate various types of law in which natural law found prominence and his law which he promulgated is known as Thomsian doctrine which gave importance to human reason responsible for achieving peace and harmony in a given community and world at large and must obey positive law as it is just and reasonable. From his work, we find that he dreamt of government of laws for all mankind and as such natural law became universalized. Comment by Freidman in Legal Theory: St Thomas system upholds the superior authority of charge give the state his due share and at the same time discourages civil revolution by opposing to injustice of oppressive laws the beneficial effects of orders as against disturbances. He thought beyond the ages in which he lived e.g. his thought on law of property. Aquinas says that right to property should not exclusive enjoyment of the possessor of the property but for the common good. Right to property is left by natural law to state as a regulator of social life.

14th century onwards (14th to 18th century) There are a lot of political and social developments. It left behind concept of feudalism and gave rise to municipal states. Renaissance brought revolution in strengthening secular individualistic and liberal force across social political and intellectual life of Europe. Natural law was manifested and theorized in one way or the other depending upon influence which it received from socio political order of the time.

Classical natural law thinkers1. Hobbes 2. Locke 3. Montesquieu Man has the highest potential of achieving the highest good. There were rival groups also Nicolo Machiavelli (1469-1527) he glorified the omnipotence of state and stressed subordination of ethical principles in public life and political state life. He believed in despotic rules. They are supreme and they will be able to suppress the passion, and vices of common men. He was found to be largely correct. It got reflected in the social administration of sovereign- it was absolutism of state. He was supported by Jean Bodin (1530-1597). He went along with Machiavelli by developing the doctrine of national sovereignty which justified absolutism of state. Therefor we saw the rise of protestant revolution in enlightened absolutism in politics and economic mercantilism. Natural law therefore became synonymous with natural rights. By the end of 18th century natural law had matured in developing the concept of individual liberty popular sovereignty democracy and freedom of will of individual.

Hugo Grotius (1538 1645) - he was Dutch jurist known as father of international law. He expounded the interpretation of natural law formulating doctrine of social life of man as his unique characteristic of peace and tranquility with his fellowmen and according to his measure of intelligence with his intelligence of fellowmen with whom he has to live. Therefore he says that natural law is directly proportional to human intelligence and therefore the use of it also. Natural law has nothing to do with laws of god. Natural law is immutable and unchangeable. God cannot change the natural law. Natural law is superior to all laws. It is dictated by reason and any law which is not in conformity with rational nature is either immoral or irrational. Universe is regulated by the law of nature. Pactus sunct servanda respect of promises given and treatise signed. He conceptualized the notion of state as an association of free men joined together for the enjoyment of rights and for their common interest. This association is a result of the contract in which people have transferred their sovereign power to the ruler who has acquired it as private power and whose action under ordinary circumstances is not subject to legal control. However he is bound to observe all the natural law and the laws nature. He brings out a social contract theory. He uses the construct of social contract in 2 fold sense. Social contract is there for justification of absolute duty of obedience of people to the government and internationally to create a basis for legally binding and stable relations amongst the states. He puts forward social contract as an actual fact in the human history and he says that constitution of each state has been preceded by a social contract by means of which each person has chosen the form of government which they considered most suitable for themselves but once the people have transferred their rights to the government or the ruler whether in order to find peace or security or whether to prevent autocratic rule or liberty or prevention against war, they forfeit the right to punish the ruler however bad the government may be. All government is for the sake of the governed he denies this basic principle.

Samuel Pufendorf (1632 1694) He is a German jurist and he based natural law on 2 sides of human nature- to protect personal property and not to disturb the peace of nature. Christian Wolf (1679-1754) He saw in the duty of self-perfection the principle command of natural law. Conditions of such perfection are provided by a benevolent sovereign who promotes peace and security. Natural law is a living force. The thought process of natural law is moving towards absolutism of state.

31.3.2010 Thomas Hobbes (1588-1679) He improved the social contract theory as given by Grotius. His 2 important works are Leviathan Decive, these 2 represent a definite political purpose. He lived during the time of civil war in England. He was convinced with the overwhelming authority of the state. By natural law he understood not certain ethical principles but law of human conduct based on observation and appreciation of human nature and for Hobbes the chief principle of natural law was the right of self-preservation. Therefore he states in his works that in order to secure peace tranquility and avoid war amongst men it is necessary for men to enter into social contract to transfer all their powers and strength to one man or assembly of men to be constituted as leviathan or moral god who has the combined powers of all men to promote peace safety and security. Freidman on Hobbes: Hobbes gives around 19 principles of law out of which 6 are relevant for concept of natural law. 1. Sovereign power or sovereignty is absolute and not subject to any restraint including legal restraint. 2. Civil laws are the extension of sovereign will and natural laws are above civil laws. 3. People should have right to hold and enjoy some property as it is important to achieve peace. This comes under natural law and in social contract there is no distinction between just and unjust laws. 4. The people cannot revolt against unjust and tyrannical laws of sovereign. 5. He rejects any contractual or quasi contractual rights by which the subject can demand fulfillment of certain obligations by the ruler. Therefore his social contract is not a true contract but a logical

fiction. There is only one condition attached to the absolute supremacy of the ruler he discourages civil disobedience. Where resistance is successful, the sovereign ceases to govern. The subjects are thrown back upon their original position and may now transfer their obedience to a new ruler. It is rational and utilitarian which supersedes the irrational and self-destructive lust for power as man pursues it in the state of nature. He believed in securing happiness and property for people in absolute monarchy. But these were not inalienable rights. So, positive law was reduced to commands of the sovereign, whereas law of nature was moral commands which the ruler or the sovereign ought to follow. Thomas Hobbes laid the foundation of analytical positivism.

Locke (1632-1704) Locke was theoretician of the rising middle class who was individualistic and acquisitive and rising middle class avoiding conflict between ethics and profit but the ideals which Locke propounded was more accepted in the following centuries. He restored the medieval concept of natural law in so far as natural law being superior as compared to positive law. He placed man in the centre and vested him with inalienable natural rights and right tot property was the most prominent. Locke uses social contract to justify government majority of which held power in trust with the duty to preserve individual rights whose protection was entrusted to them by individuals. Locke was therefore an opponent of Hobbes who was in favour of absolutism and Locke stood for liberty. His concept of natural law was 2 fold: 1. Men prior to natural law were in a state of nature. Now they have certain important rights which at best are recognised by the law of nature. 2. Men have inalienable rights to be governed by a benevolent legislature who should avoid despotic rule and separate the powers. Thus he prepared the ground for parliamentary democracy. It had great impact of French and American Revolution. Rousseau (1712 1788) He stressed on general will. He says that law of nature or natural law is the general will of the people who came together to form an association called state. However the inalienable rights of individuals may still remain with them. It was the core concept of philosophy of Rousseau. The general will is the core principle both in terms of political thought and preservation of citizens right. The sovereign represents the general will of citizens who are under a social contract organised themselves as state and the state is the expression of individual wills collectively expressed and as such the decisions of the state are sovereign which have to be taken by a majority of individual wills. He did not elaborate much on nature of government but emphasizes that legislative power is supreme because it is people who have constituted the government and law and law not ratified by people is bad. His thoughts had a profound influence in the concept of majority will this is a pre cursor to a concept of adult suffrage and individual right.

1.4.2010 Immanuel Kant In so far as man is a part of reality he is subject to its laws and to that extent he is not free. Reason is the inner consciousness to make him a free moral agent. The ultimate aim of the individual should be a life of free will. It is when this will is exercise according to reason and it is uncontaminated by emotions the free willed individuals can live together. People are morally free when they are able to obey or disobey a moral law. Important feature is autonomy and reasoned will. Freedom of law means freedom from arbitrary subjugation of another. Law is complex totality of conditions under which maximum freedom is possible for all. The sole function of the state is to ensure the observance of law. He saw the importance of rules for social existence and guided for a just and general policy. Society which is unregulated results in violence. Man has an obligation to enter society and avoid doing wrong to others. Such a society has to be regulated by compulsory laws and if those laws are derived by pure reason from the whole idea of social union under law, man will be able to live in peace according to him it has to be rule of law and not of men. His idea of law does not have any relation to actual system of law. It is a pure ideal to serve as a standard of comparison and not a criterion of validity of laws. He considered political power as condition of rendering each mans right effective limiting it at the same time through the idea of legal rights of others. Only universal and collective universal will be armed with absolute power can give security to all this is based on social contract which is not historical fact but idea of reason. There is absolute duty to obey the existing legislative power. Rebellion is not justified and republican and representative state is the ideal state. Law is only just only when it is the whole population who shares it. He puts forward for the freedom of speech. The function of the state was the protector and guardian of that law- this is the idealistic state which put he put forward in his philosophy on natural law.

JB Fitch (1762-1814) He gave practical utility to theory of Kant. He talked about rights of man. His concept of social contract was divided into property and protection contract. It is through property that a citizen becomes a part of the state and if you do not have property you are excluded from legal community. Right to punish is a part of social contract and is based on retaliation. He saw property as an emancipation of personality. This view found much more appeal in succeeding generations. It stressed on right to live and right to work. State has a duty to see to the necessities of life and produced in proportionate quantities and every one should be able to satisfy his needs through work. He conceived of a relation between individual and state in 3 ways1. Individual in fulfilling civic duties become a member of the state. 2. Law limits and assumes rights of individuals 3. Individual is free and only responsible to himself but subject to the fulfilling of civic duties.

Fitch while stressing on individual freedom also recognised social responsibility of individual while exerting his freedom, so far as law and morality and law are concerned he was in agreement with Kant and believed in natural destiny where individual rights are submerged. Therefore he was more practical where he puts in right to life and duties of state etc.

Hegel (1770-1831) He is referred to as a genius of his thoughts. He gives the reference of idea. His philosophy is very comprehensive and ambitious attempt ever undertaken to give a theoretical explanation of the universe. He developed the idea of ideal dialectism. History of civilization does not depend on unfolding of events but there is an objective spirit as standard bearer of reason. What is reasonable is real and what is real is reasonable. Moving spirit of civilization is idea. This is responsible for movement of civilization both in terms of leadership thrown up and also shaping content of law. all social systems are on a move from one state to another first stage is thesis which is from a standpoint of ones observation. By the time the thesis is conceived, antithesis comes into being. Any rule principle or doctrine which is taken at the 1 st starting point would be taken as thesis. But these have a counter point inbuilt in them which is reduced to tangible categories and may become antithesis of them. However this antithesis of the idea of doctrines rules and principles would before becoming concrete and metamorphoses they enter into a synthesis and a new phase of synthesis as an idea would arise and they get further modified and changed. This idea is an endless circle this circle is true human history. He raises a basic question as to how human history should move in such a circle. This is because the idea of freedom is long and arduous. Nations are on a move to achieve this and once they achieve this the young nations will strive to achieve the same. Therefore law and state play an important role in the process of historical unfolding of idea and law is meant to realize the idea of freedom from its external manifestations. He used the metaphor of natural law that man who is free man and has passion and desire for material objects which must be subordinated to spiritual self. Mandate of natural law is that men should lead a life governed by reason and respect the reason of others. State is an ethical universe which is a person of ethical ideas. State is concerned with ethical life of the people in which goods aspirations morality religion etc. they should be given full respect. The state represents the highest of everything which its people recognise for achieving freedom. He categorises right of an individual into 3 1. Property (private property but state has the ultimate control of the property) 2. Contract (capacity of an individual to acquire and dispose off property) 3. Wrong (act or omission which negates the will of another) According to him, rights and duties of citizens as well as the state are fixed and determined by law. Revival of Natural Law Giorgio Del Vicchio He focused on ideas of law as compared to positive law. according to him the ideas of law should correspond to natural law as natural law is the highest law and provides criteria for evaluating positive

law and measure its elements of justice. Natural law is the basic principle which guides legal and human evolution the respect for human autonomy using the Kantian metaphor is the basis of justice which he stresses on. Earlier conceptions like liberty, freedom and religion and conscience has been recognised to a great extent by positive law and which will further impact the evolution of positive law - whatever resistance it gets from future evolution. He differs from Kant though in one respect. State is not only concerned with making and enforcement of law but should concern with social political and economic well being of social life of human beings. Contribution in revival is - search of ideals of reforming positive law lies in natural law as the latter is a part of human nature. 2.4.2010 Jospeh Kohler (1849-1919) He mostly approved Hegels theory of civilisation in unfolding of ideas describing it as a phenomenon of civilization. He reserves the idea of civilisation and seeks to find the principle for the critique of law on the basis of anthropology of civilization. He was much concerned about the past civilization about the idea of individual liberty, also about individual and social interests these ideas are in the totality of legal and political phenomenon they unfold the law of civilization. His most important contribution is that of jural postulates certain principles of rights logically derived or assumed by an expression by a given civilization. These are useful instruments both by critique and by ideal which law maker should conform and these postulates may be used and applied by jurists to develop the legal system. Kohlers contribution is that his theory is in pursuit of seeking ideas of right and justice through postulates of human civilization which would mould the law and determine the content. He uses natural law as a metaphor in ascertaining postulates of civilization there are essentials of critiques and ideals and ways reforming the legal system.. justice must conform to ideal values cherished by the society.

Rudolph Stamler (1856-1938) Stamler holds the concept of law as a ntural phenomenon of all legal systems notwithstanding the concept of law of a given legal system1. Idea of law is task set forth for legal system to pursue the concept of law 2. Law is inviolable and autocratic collective will which he found from all the forms and rules of legal system which he observed. Universally valid concept of law is that it arises out of volition because law is more of ordering human conduct according to relations of means and purposes. Law is a product of sovereignty different from arbitrariness of an individual and law is inviolable volition. Concept of law is somewhere akin to positive law but different from historical approach to law. Idea of law: it is the realisation of justice. Justice postulates harmonizing of individual purposes or interests with that society and according to him such a harmony can only be brought by adjusting individual desires to the aims of community.

1. Just law is the highest universal point in every study of the social life of man. 2. It is the only thing that makes it possible to conceive by means of an absolute valid method of social existence as unitary goal. 3. It shows the way to a union with all other endeavors of a fundamental character which in likewise as right consciousness. He is a pioneer in reviving natural law and puts scientific law in its field. He propounds 4 principles which legislator should keep in mind while drafting a statute1. Concept of a persons volition must not be made subject to arbitrary power of another. 2. Every legal demand can only be maintained in such a way that the person obligated may remain a fellow creature. 3. No person lawfully obligated must be arbitrarily excluded from the community. 4. Every lawful power of decision may exclude the person affected by it from the community only to the extent that the person may remain a fellow creature. This has invited a lot of criticisms because he has divided concept and idea of law as per logic which is not feasible. This is a purely formal distinction. Idea of law is capable of guiding a lawyer therefore this invites criticism. Stamler has put the law on its own feet using Kantian theoretical premise and revived legal idealism.

Leon Duguit (1859-1928) He laid emphasis on duties of natural law whereas Stamler talked about variable nature. He believed that positive law imposes duty both on government and governed. He rejects the notion of natural law almost and natural rights also. He laid the principle of right and law binding on all members of the society. This is the requirement for social interdependence. There are duties and no rights. Taking this analogy he discarded the attributes of sovereignty and restricted it to perform certain social functions the most important being organisation and maintenance of public services. Government officials are under a duty to guarantee a continuous and uninterrupted operation of public services. The most contribution is concept of social solidarity by which he meant that it is a cohesive fact of social existence of every social group to which this solidarity cannot be denied. It leads to the rule of law and this rule of law demands that everyone should contribute to social cohesion or solidarity. It demands that government and governed should not do anything which is incomplete to social solidarity. Therefore no statute or administrative order is valid if it is not in conformity with social solidarity. His contribution is mostly relevant in case of sociological jurisprudence rather than natural law. He rejects the absolutist conception of state power. So it is difficult to bracket him as a natural law lawyer.

John Rawls Theory of Justice He is a political scientist and his writing also reflects moral philosophy and mostly his political thoughts are reflected in his book. He does not walk the line of other thinkers. He starts society as a self-sufficient association of person in relation to each other they recognise rules of conduct and act in accordance with them. These rules also specify cooperation designed for good of those who take part in it. Yet in this association also we find conflict of interests. Therefore he propounds for a term known as social justice hence it is important in the context of natural law. The main idea of theory of justice of Rawls is to carry to a higher level of abstraction the familiar theory of social contract by Hobbes Locke and Rousseau. It is the guiding idea of principles of law: a basic structure. He conceives the basic structure of society as a distribution of primary goods which every rational man wants liberty and opportunity, income and wealth, health and vigour, intelligence and imagination. There form the basic structure of the society. It is required in the association of people who live in the society. There are 2 principles1. Each person is to have an equal right to the most extensive total system of basic liberties compatible with a similar system for all. 2. Social and economic inequalities are to be arranged that they are both to the greatest benefit to the least advantaged consistent with the just saving principle and attached to the offices and positions open to all under conditions of fair equality of opportunity. He talks about priority of liberty and on the priority of justice over efficiency and welfare. To conclude it we may say that Rawls conceded maximisation of liberty subject only to constraints that are essential for protection of liberty itself., liberty for all as basic liberties of social life and distribution of all forms of social goods subject to the exception that inequalities may be permitted if they produce greatest possible benefit for those least well off in a given scheme of inequality, fair equality of opportunity and elimination of inequalities of opportunities based on birth and wealth. He assumes that society is selfsufficient and recognises a binding rule of conduct specifying a system of cooperation.

Clarence Morris (1893) Laws have to be good to achieve justice. Law covers all varieties of law which regulates human conduct. Law means more than statutes and ordinances, it includes both adjudicated decisions in cases and recognition of those legal obligations that exist without governmental promptings this reflects in customs and practices. Conception of justice is inbuilt in law provided law takes into account genuine aspirations of people. Therefore, doing justice through law means the law makers serve the public by advancing its genuine aspirations which are deep seated reasonable and non-exploitative. Law making contrary to them is doomed to be failure. Rationality is the second justification of the law both judicial

and legislative because he stresses on the need of judicial and legislative creativity for effecting public aspirations. Acculturation: conformity with culture. This is emphasized by awareness of the law maker of his responsibility to the environment within which people exist and live. Law maker must keep in mind the environment in which law has to exist and develop. Morris believes that law has to be justified morally socially and technically. He does not assert that just quality is a necessary condition for the continuity of laws.

Jerome Hall (1901) He believed that there are objective and absolute valid ethical values and according to him democracy is part of modern natural law because values incorporated in democratic laws represent most stable policy decision which is indispensable to be implemented by compulsion. He thought of integrated jurisprudence or combined jurisprudence which is a combination of socialist positivist and naturalist description and understanding of value components of legal ordery. He considered law as action i.e. social institution cannot be understood without understanding day to day practices of judges, administrators and law enforcement officials. Therefore according to Hall law is not simply rules precepts and doctrines but is an actual working of such rules precepts and doctrines. Law as action would necessarily include moral principles and ideals. It gave a turning to the value of the jurisprudence. This is remarkable in terms of natural law to determine validity of rule of law. Moral values can be assessed in administration and adjudication but whatever he says he is not very clear on that.

John Finnis Natural Law and Natural Rights He gave a revised and authoritative version of natural law. The principle concern of his theory of natural law is to explore the requirements of practical reasonableness in relation to the good of human beings because they live in community in one another and confronted with problems of justice rights and authority of law and obligation. Therefore he says that the purpose is to identify the principles and limits of rule of law and to trace the ways in which sound laws in all its positivity and mutuality can be derived from unchanging principles i.e. those which have their force from their reasonableness and not from originating acts or circumstances. Whatever he talks of he advocates natural law and rights are the basic virtues which are sine qua non of any community of people who are governed by a system of law and these basic virtues are expressed in such a manner that in ultimate analysis the basic human good are the substratum of communal life. The ruler has to abide by some moral principles in enacting the law and the enforcers of the law are also under an obligation to abide by moral principles. The maintenance of human rights is a fundamental component of common good. Therefore he integrates natural law with analytical jurisprudence. He was the person who blended positive law with natural law.

Lon Fuller (1902-1978) All theories of natural law are in the times and context within which they are written having a common thread reflected in common aim of discovering principles of social order which enable men to attain a satisfactory life in common. Fuller believed that al theories of natural law were moulded to discover a process of moral principles by which men could understand their own needs and in this way they would ultimately achieve the purpose of living in a society for the common good. 8 conditions need to be satisfied for connection between morality and law otherwise the law is a bad law. He also talks about procedural aspect. Natural law is procedural in character and are governed and concerned with the ways in which the rules of governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain whatever it purports to be ( Law and Morality). Fuller was more concerned with the structural and technical character of law and the legal system. Therefore his idea of recognizing natural law in procedural aspect by itself is novel.

Margaret Mead She takes the view of anthropological consideration in natural law. She asserts that it is a universal fact established from the studies of primitive culture that, certain universal rules are always recognised as sacred and ethical without which evolution of human beings could not have been achieved. She defines natural law as those rules of behaviour which have developed from a species.

H.L.A Hart He is a staunch positivist. He has drawn a connection between the positive theory and natural law. There are certain rules of conduct which any social organisation must contain if it has to be viable. Such rules constitute a common element in the law and conventional morality of all societies and such universally recognised principles of conduct which have a basis in elementary truth concerning human beings their natural environment and aims is the minimum content of natural law. He gives 5 truths of minimum human content of natural law (Concept of Law): Human vulnerability Approximate equality Limited resources Limited understanding Strength of will etc.

He is a very categorical in refusing a formal connection between law and morals. Minimum content of natural law is an answer to the positivist who thinks that some natural law content is possible to derive from the positive law.

5.4.2010 Philosophical School Salmond It is the common ground of moral and legal philosophy of ethics and jurisprudence. Its attention is on purpose of law. It is justification of coercive regulation of human conduct by means of legal rules. Chief purpose is the provision of field of free activity for individual without interference from his fellow men. Law is mean by which individual will is harmonized with general will of the community. This school concerns with relation of law with certain ideals which law is meant to achieve. It investigates purpose of law and the measure and manner in which the purpose is fulfilled. It regards the law as neither arbitrary command of ruler or historical necessity but a product of human reason and its purpose is to elevate and enable human personality.

Grotius He defined law as the dictate of right reason which points out that act as it is or as is it not is in conformity with rational nature has in it a quality of moral necessity.

Kant, Fitch and Hegel They are German transcendental idealists. Kant gave a modern thinking and new basis which the subsequent ones couldnt ignore. Nature follows necessity but human mind is free because it can set itself purposes and have a free will. Compulsion is essential to law and a right is characterized by a power to compel. He distinguished between legal rights and duties also natural and acquired rights. It was his aim of a universal world state. He was in favour of establishment of republican constitution based on freedom and equality of state. This was considered as a step towards League of Nations for securing peace. It is of least practical possibility though. Fitch: it is deduced from self-consciousness of a reasonable being and no reasonable being can think himself without ascribing free activity to himself. He talks about relation between law and morality. There is a moral duty to respect liberty of others absolutely legal duty to do so is dependent on reciprocity. Certain elementary rights of the individual must be protected by the state as those are necessary conditions of personal existence. The right to be protected by the state is the right to live and the right to work.

Hegel: both the state and law is the product of evolution. His greatest contribution is the development of evolution. Manifestations of social life including law are product of evolutionary dynamic process. It is criticized however individually taken Kant has not produced a school of thought. His contribution stands between rationalists, natural law thinkers and liberalism. His critical theory of knowledge has been applied to law by neo Kantian jurists like Stamler. For Fitch, his theory gained influence in 20 th century like on Del Visio. They differed in their outlook and conclusions but none of them have eliminated the idea of individual in favour of the state. Both Kant and Fitch that individual was man apart from being citizen and state was bound to conform to the law built up on that foundation. These 3 philosophers their philosophies are mixed with general philosophies of doctrines and mere expression of personal opinions and prejudices. But still Kants definition of law has remained the basis of relation between law and state. Neo Hegelism has been developed e.g. Bosanquet: his view was that real will of the individual was what he would desire if he was morally and intellectually fully developed. The state embodies the purifying intellectual and moral conduct of which the average individual is capable. Association of ethics and morality with law was criticized by historical school. E.g. Savigny: he attacked the view that law could be consciously by human reason embodied in human legislation.

Kohler, Stamler and Del Visio Kohler was influenced by Hegel. He defined law as a standard of conduct which in consequence of inner impulse that urges man towards a reasonable form of life emanates from the whole and forced upon the individual. (as per Philosophy of Law) He stresses on culture of environment where law is to be formulated. Stamler is a neo Kantian. His position is summed up in Theory of Justice. His emphasis was on the need of development of just law in addition to investigations of positive law. a law is just if it conforms to social ideal of bringing about harmony between purposes of individual and the state. The use of a universally valid concept of law is partly philosophical and partly practical. Del Visio developed independently. Law is not only formal but also has a special meaning and implicit faculty of valuation. Law is a phenomenon of nature collected by history 6.4.2010 Historical School It is associated with particular movement in legal thought in which Savigny is the most famous. Salmond The branch of legal philosophy which is termed as historical jurisprudence is the general portion of legal history. It deals with general principles governing origin and development of laws and with the influences that affect the law. It deals with the origin and development of those legal conceptions and principles

which are so essential in their nature as to deserve a place in the philosophy of law. Therefore he concludes that historical jurisprudence is the history of the first principle of conceptions of legal system. Savigny His theory is found from the pamphlet on the vocation of our age for legislation and for jurisprudence published in 1844 we find intimate connection with peoples law. Definition of law- it is a product of times the germ of which like the germ of state exist in the nature of men as being made from society and which develops from the germ into various forms according to the environment, influence which plays upon it. Components of thesis: 1. Law was not a self-contained collection of verbal formulae but a part of the complex of peoples experience and character manifest in the common feeling of inner necessity with which the people regard it and in time the time reflects peoples general development. 2. People do not instinctively remain familiar with law but regard law as literally true only for young people whose law remains simple in conception, narrow in scope and as peoples life become more specialised and artificial so does its law. 3. Positive law lives in the general consciousness of people. It is peoples law. 4. Law was rooted in the past of nation and its sources were popular faith, custom and the common consciousness of people like the language, the constitution and the manner of the people and with all these peculiarities there is a character of a nation and national spirit. In short it is known as volksgeist.

Puchta (1798-1856) He was the only disciple of Savigny he developed on Savigny but it was more logical. He traced development of law by going back to evolution. Idea of law comes due to conflict of interests between individual will and general will. This conflict that automatically forms the state which delimits the spirit of individual and develops into a workable system.

Gierky (1841-1921) He was profoundly interested in the associations. He denied that the recognition of an association of person depends on the state. There can be associations of the community, state is an association, it can also be on territorial basis. He talks of family as an association too.

Henry Maine

He is the founder of English historical school of jurisprudence. He criticizes upon the theory as put forward by Savigny and Volksgeist for the theory not being complete. It does not explain the growth of the legal system as a whole and this was a barrier to scientific comparison and discovery of common principles of social and legal system which has to be rectified. He was much concerned with the nature and development of early law both in its historical context and also understood by the study of underdeveloped societies in the contemporary world. His writings prompted the anthropologists to study primitive societies in terms of law and legal system and the concern of legal anthropology are the exactly same as that of general social scientists coinciding with the sociology of law. He talks of legal anthropology of 20th century focusing on local understanding of law and legal practice. Pessimistic view is taken of human action. Growth of law is an unconscious and organic process. Legislation is subordinate as compared to custom.

Sociology of Law or Sociological School Sociology as a science dates back to writings of Auguste Compte (1798-1875). He distinguished 3 stages evolution of human thinking. He believed that first stage in human thinking is theological stage in which all phenomena are explained by reference to supernatural or divine revelations. Theological stage is followed by metaphysical stage where human thought takes recourse to ultimate principles and ideas considered as beneath of surface of things and continuing the real moving forces in evolution of mankind. 3rd stage is where he rejects hypothetical constructions of philosophy history and science and confines itself to empirical observations and connections of facts and under guidance of methods used in the natural sciences. In these 3 stage he brought in science of sociology as science of social order and progress. According to him the components of sociology can be categorised in terms of social statistics (it is the theory of social order) and social dynamics (theory of social progress). Sociology proceeds from observation to hypothesis and deductions therefrom are checked back with reality.

Herbert Spencer (1820-1903) His thinking was much influenced by Darwins theory of natural selection. He believed that evolution is the key to the understanding of human progress and legal and social development could be left to evolve by a natural selection like biology. His main thesis was that social evolution was a part of biological evolution and as biological evolution is automatic so is social evolution. Therefore society is a structure characterized by cooperation between the parts and the whole and any disturbance of this consensus undermines the equilibrium of the whole system. To conclude, he was against interference by State in economic and social affairs of citizens.

Jhering (1818-1892)

He is the founder of social utilitarianism. He held that it is not enough for jurists to know that law is a development but he must perceive not merely that it has developed and how it has developed but for what purposes it has developed. He emphasized that law is a means to achieve social ends. Jhering insisted that legal rights were conferred by politically organised society to secure interests which had a de facto legal existence and law was something created in or by society whereby individual found a means of securing his interests so far as the society recognised him. Principles of levers of social motion were given by him they are responsible for flow of social activities by people. First 2 principles are those of reward and coercion as they seek to identify the selfish interests of the individual with some larger social interests. Other two levers are duty and love these are manifestation of social ends. Law is sum of the conditions of social life in the widest sense of the term as secured by the power of the state through the means of external compulsion and therefore his theory is known as law as means to an end.

Max Webber (1864-1920) He was the first one to develop a systematic sociology of law. He distinguished rationality and irrationality in law and legal system. The former concerns with free evolution of proof logically deduced from legal norms and transactions and the latter is concerned with the facts of life which are juridically construed to fit the abstract propositions of law propounded by jurists. A legal system exhibited substantive rationality when it is guided by principles of ideology rather than on the law itself. To conclude, Webbers contribution is immense in the sense that he was not concerned about judging the law and the system but understand it. He as a sociologist believed that every sociologist including legal sociologist must concern himself with every organizationally coercive order whether or not he was pleased by its contents or the ends for which it is used by those who has the power to manipulate it.

Emile Durkheim He wrote on punishment, law of contract, sociology which influenced sociologists and anthropologists. He posed the problem in relation between social structure of modern state and emerging laws. Structure of society meant solidarity or cohesion among its members. The complex relations between them are determined by the existing social and economic facts. Durkheims central thesis was that in a society law is an expression of kinds of solidarity uniting its members. It is nothing more than the most stable and precise element in social organisation. Therefore life in general within a society cannot enlarge its scope without legal activity. Law reflects all essential varieties of social solidarity. His contribution to legal sociology rests on his thesis of the relation between types of social structures and types of law. He dismissed the distinction between private and public law and divides the legal rules depending on the type of solidarity into 2 groups- first covers penal laws and second one covers civil commercial procedural administrative and constitutional laws.

Eugene Ehrlich (1862-1922)

He advocated that the centre of gravity of legal development lies not in legislation or juristic science or judicial decisions but in the society itself as a body of obligations kept in force by a specific mechanism of reciprocity and publicity deep within the structure of the society. All the law which are apparently meant to protect interest of individuals groups or society for which criminal law police law and procedural laws have been designed are in reality distribution of power. A decision rendered for the protection of general interest is a decision based solely on expediency. The task of the jurist is to decide a case is technical only whereas content of legal propositions is given by the society. Therefore the real function of juristic science is to record the trends of justice that are found in society and to ascertain what they are. Justice is a social force and it is always a question whether it is potent enough to influence the disinterested persons whose function is to create juristic and statute law. Sociology of law must begin with the ascertainment of the living law and therefore we find that he much stresses on the need of legal investigation of the living law in a similar way as a biologist or anatomist is researching the human body.

Leon Duguit (1859-1928) He propounded a natural law theory with strong sociological overtones. According to him liberty protected by law was the power to do anything which does not injure others. He extended the concept of social solidarity to the extent that rule of law demands that everyone should contribute to the full realisation of social solidarity. The legislation as well as the society should endeavor to the realisation of social solidarity. No statute or administrative order is valid which is not in conformity with the principles of social solidarity and social interdependence. Therefore, to conclude, he believed that social interdependence is a fact of social life and secondly the social function of the law is the realisation of social solidarity. 8.4.2010 Analytical and Positive School Bentham (1748 -1832) His writings were carried to their logical end by Austin. Bentham advocated codification of law and rejected judge-made law. Nature has placed mankind under 2 sovereign masters pleasure and pain. The good of evil should be measured by the quantity of pain and pleasure resulting from it. Utility meant property in any object whether it produces benefit advantage pleasure or happiness or prevent happiness mischief pain and evil whose interest is considered. That party may also be a community in addition to an individual. This according to him is utility. He described community as a fictitious body composed of individual members and interests of community are interests of its members. According to its principles it is the responsibility of the government to promote the happiness of the society by furthering the enjoyment of pleasure and affording security against pain. It is the greatest happiness of the greatest number that is the measure of right and wrong. There are 4 sources of pain and pleasure Physical

Political Moral Religious

Pain and pleasure belong to each of them is capable of giving binding force of any law or rule of conduct and all of them may be termed as sanction. Law may be defined as assemblage of science declarative of volition conceived or adopted by sovereign in a state concerning the conduct to be observed in a certain case by a certain person or a class of persons who in the case in question are supposed to be subject to his powers.

There are 8 ingredients1. Sources: Respect to persons of whose will it is an expression 2. Its quality of its subjects the persons or things to which the law applies 3. Its objects acts as characterized by circumstances 4. Its extent, generality or amplitude of its application 5. The aspects acts and circumstances as its object 6. Its forces (motives producing the effect of law intended) 7. Expression: the science the will of the law is made known 8. Its remedial advantages- certain other laws which may be used as remedy, the mischief- to further the ends of law Sources of law: source of law is the will of the sovereign in a state and by sovereign he meant any person or assemblage of person to whose will a whole political community are supposed to be in a disposition to pay obedience and that in preference to the will of any other person and the sovereign can make law or adopt laws previously issued by former sovereign or subordinate authorities. Only sovereign can therefore make the law. Force of law: force of law depends upon motives and motives are expectations of pain and pleasure and according to him the punishment and reward must be in some manner be announced. People whose conduct is to be regulated must be told in advance. The former legislation a necessary source of law which is the will of the legislator or notice of law for a judge, for the legislator commanding to do an act and judge determining according to his understanding and giving the punishment. Idea of complete law: in theory of legislation he says that function and purpose of law is to provide subsistence to aim in abundance quality and to maintain security for its citizens. He introduces integrality as sine qua non for unity of legal system. By integrality he meant that law should be complete in

expression connection and design. If the will of sovereign is complete then every law is obligated. Law should be unqualified and expressed fully. This is the idea of complete law according to Bentham. He overemphasized the power of legislator and not discretion of individual and flexibility of judges in application of law.

John Austin (1790-1859) He is the founder of English analytical positivist school. Only positive law is law. Positive law means those juridical norms which have been established by the authority of state and analytical positivism is a science of law. Lecture on jurisprudence: published posthumously by his widow. In his theory we find reflection of dominance of sovereign. The matter of jurisprudence is positive law- law simply and strictly so called or set by political superiors for inferiors. Law may be set down as a rule for guidance of an intelligent being by an intelligent being having power over him. His law is based on the power of the superior. Law properly so called was divided into law of god and human beings. He tries to distinguish between positive law and positive morality. He makes a distinction between laws and morals i.e. the law set as men by political superior or men as private person in pursuance of legal rights and those laws which are law of god law of etiquette international law are law of morality. Science of jurisprudence is concerned with science of positive law and science of morals in with positive morality. Science of ethics determines test of science of positive law and morality 2 departments: one relating to positive law (science of legislation) and one with morality (science of morals). Austin elaborates the distinction by referring to evaluation of positive law from the point of view of utility or morality saying that human law may be good or bad from the point of utility or principle of morals. Moral rules are laws properly so called and are distinguishable from other laws by the union of 2 things imperative laws or rules set by mean and they are set by men as political superiors not as private persons in pursuance of legal rights. As such they are not command of sovereign in the character of political superiors and they lack the sanction and do not oblige legally the persons to whom they are addressed. Every law or rule taken with largest significations that can be given properly as a command or law or rule is a species of commands or command which obliges to acts or forbearances of a class is a law or a rule. He does not insist on generality as persons. There law with regard to individual so far as they forbid generally the acts of a class. Customary law: he puts it in the category of positive laws fashioned by judicial decisions upon preexisting customs. Before the custom gets judicial stamp they continue to be merely rules set by opinion of governed or sanction or enforced morality. He was categorical in separating positive law and morality. He was also aware of role of morality in refining or evaluating laws.

Sovereignty: there is a major emphasis on political superior, him being the commander of law and obedience and non-obedience to him are the hallmarks of law as the law is the command of the sovereign backed by sanction. He contemplates that determinate human superior and the members of the society who obey him are subjects of dependence and they are in a state of subjection or dependence and mutual relations between sovereign and the subject are the relations of sovereignty and subjection. To conclude, there cannot be any limitations or restraint on a sovereign and sovereign is incapable of legal limitations. Sovereignty is illimitable indivisible and continuous. It can be under a duty does not hold good both in theory and practice. 9.4.2010 Prof. HLA Hart (1907-1992) Concept of law published in 1961. He dealt with legal perplexities of theory of what is law. he tried to find out rather what is law about and speculated about nature of law. He tried to find out defects in 3 issues1. General feature of all times in the existence of certain kinds of human conduct which are no longer optional and in the sense obligatory conduct which can be distinguished from conduct which is made obligatory pure and simple. He takes up example of gunman and distinguishes thesis of Austin. If he points gun and asks for my purse, otherwise he loses his life and forced to give his purse because he is obliged to do so. First 4 chapters he goes on criticizing the command of the sovereign. He puts stress on obligation. 2. By which conduct may be non-optional and obligatory in relation to moral rules imposing obligations and withdraw certain areas of conduct from the free opinion of the individuals to do so as he likes. He tries to play with language vocabulary of words is important when we try to find relationship between law and language. There are morals due to which conduct may be nonoptional and obligatory. He puts stress on custom which is the source of evolution of morals. Though I am not willing it is a conduct which I am obliged to obey. What is law? A legal system consists of the rules which cannot be doubted and according to him these legal rules have the central core of undisputed meaning for the governance of the community. He puts forward his main theory after this. It is the theory of law as a union of primary and secondary rules. He does not go in the same line as Austin or Bentham. He goes to evolution of community and then comes to modern system. How primary rules developed into secondary rules and how it became adjudication? Rules of obligations are such obligations which generally demand for conformity and this is backed by great social pressure. Such rules are wholly customs. This type of rules which are obligatory they may not be centrally organised system of punishment for the breach of such rules and the social pressure may take the form of a general defused hostile or critical reaction which may stop short of a physical sanction. When the physical sanction becomes usual and prominent forms of pressure even though not closely defined and administered by officials and left to community at large they are the primitive and rudimentary rules of law and these are primary rules of obligation for the reason that they are supported by great social pressure and are highly prized as primary obligation making people to keep promises specifying responsibilities of individual group or society and hence are either obligations or duties. Societies which possess

primary rules of obligation are small communities put together by ties of kinship common sentiment belief living in social stable condition by a regime of unofficial rules. They are pre legal as it would be difficult discern rules as theses societies lack identification or common mark. Therefore first defect is uncertainty. 2 nd defect character of these rules is static since they have not changed with the social circumstances although there is a change from the original position of the society. 3rd defect is the simple form of social life is the inefficiency due to which defused social pressure is there which maintains these rules. Disputes as to whether the admitted rule has or has not been violated is a recurring phenomenon here in absence of definite agency to ascertain violation like courts and tribunals. He provides a remedy to these 3 defects which are characteristics of simple social structure form1. Rule of recognition for uncertainty- it may take huge and variety of forms. For earlier societies it may assume character of written codes inscriptions for removing doubts. In developed legal system rules are complex like legislations, customary practices or judicial decisions. Rules become unified and authoritative having the germ of idea of legal validity. When we remove this inefficiency they become more authoritative. 2. To remedy static quality of regime of primary rules he introduces rule of change and the simplest form of this rule is that which empowers an individual or body of persons to introduce new primary rules for the conduct of life or some class within it or eliminate all rules. These rules can be identified in the making of legislative bodies and the power of these bodies to amend change or vary the laws. These may provide the procedure content and applications and authorities for remedying the static quality of primary rules. They would also explain the expression the rule of succession, title, will etc. 3. Inefficiency- he supplemented it by secondary rules of adjudication which empowers individuals to make authoritative of questions and determine whether on a particular occasion a primary rule has been broken. These rules impose obligations on judges to adjudicate and confer judicial powers and special status on judicial declaration about the breach of obligations. These rules also define concepts such as judges, courts jurisdictions and judgements. Primary rules and secondary rules are centre of legal system. According to him there are 2 minimum conditions necessary and sufficient for the existence of a legal system on one hand those rules of behaviour which are valid according to systems ultimate criteria and validity and must be generally obeyed and on the other hand its rules of recognition specifying criteria of legal validity and its rule of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition has to be satisfied by its private citizens and they may obey for any reason. Second condition also to be satisfied by the officials of the system and they must regard them as common standard of official behaviour and appraise critically their own and each others deviation and lapses. They must accept and observe them from what he calls as internal point of view. The foundation of legal system doesnt depend upon in the habit of obedience to a legally unlimited sovereign but depends upon an ultimate rule of recognition which provides a system of rules with its criteria of validity.

Criticism: union does not explain the whole legal system nor does it explain its parts. There are certain external and internal impacts, social and moral law is there along with economic principles. We do no find these principles on gradual movement on nature of law. It is abstract generalization not related to the actual matrix of the sum total which makes a legal system. 12.4.2010 Kelson (1881-1973) His works are concerned to work out science of law for an era of written constitutions in which fundamental law was basis of legal institutions and law was taken to derive its authority therefrom. A law postulates the state and constitution as the ultimate norm and legislation and custom rest upon the constitution which in the sense of legal logic is the ultimate norm, the final source of legal system. He starts with a distinction between the laws of pure science and laws of lawyers. Laws of pure science are laws which are essentially descriptive of the sequence of cause and effects in the universe. Here he has taken the example of gravitation. If A is there B is also there. Lawyers law belongs to the category of ought to be and not must. If a murder is committed police ought to be there. The highest point of the individual state legal order is the constitution in the material sense the essential function of which is to determine the organs and procedures for setting up of general law to determine legislations and the next stage consist of the general norms set up by the legislation whose function in turn is to determine not only the organs and procedures for the individual norms but also the contents of the latter. Entire legal system is a hierarchy of norms or pyramid of norms and the hierarchy is achieved in both ways. at base there may be multiple norms in shape of legal norms backed by other norms and can be traced to the original norm or basic norm. All norms except basic norm are controlled and dependent on all other norms which are superior to them and ultimately are controlled and dependent on the basic norm or grund norm being the source of all other norms and controlled by it. Thus the entire legal system is a hierarchy of norms. Law is coercive order in the sense that evil is applied to the violator when the sanction is socially organised in the deprivation of possession life health freedom and property. Legal norm and rule of law are to be employed in a descriptive sense. The legal norms enacted by the law created by authorities are prescriptive. Rule of law formulated by science of law are descriptive. Rule of law and nature are having similarities but different in perception. Law of nature connects two facts with one another as condition and consequence, the cause and effect whereas in the rule of law the connection is ought. Justice is an irrational idea representing the subjective predictions and value preferences of an individual or a group, justice cannot be defined. Theory of law cannot be answered scientifically. Joseph Raz His writings are on legal logic and rhetoric. He has written on nature and concept of law and legal system. The problem about the nature of law is that classical exponents of legal philosophy and modern practitioners have concerned themselves with nature of law by confusing philosophical questions and linguistic questions. Instead of law we should use legal1. There is a law logically equivalent to legally 2. If X has a legal duty or a legal right or a legal authority legally this is atransacction

3. If X has a copyright it is equivalent to X has legally a copyright 4. Even if ownership marriage and contract and semi legal still X has acquired ownership legally he has a wife legally etc. 5. In situations where ordinary sentence make legal sentence, e.g. legally X is prohibited to park a car Legally can be used to describe all types of law thought philosophers may not accept this. He examined US system. It is developed by courts theory of adjudication by Dworkin. He says that it is a theory of lawyers perspective. As courts are settling dispute they are crucial for understanding law. issue of authoritative ruling by courts is self-evident and assertive and law consists of authoritative positivist considerations. Theory of adjudication is a moral theory. Decisions arrived in courts cases may be influenced by moral principles. Concept of legal system he is concerned with general legal system, examination of pre suppositions, principles underlying the fact that every law belongs to a legal system. His approach is both historical (he examines from previous analytical standpoint the complete theory of legal system, 4 problems are there. 1. Problem of existence. 2. Problem of identity. 2. Of structure. 4. Of content. Most part has been neglected by most analytical jurists) and analytical. Characteristics of law: 1. Normative it is served and meant to serve a guide for human behaviour 2. Institutionalized its application and modifications are to a large extent performed or regulated by institutions. 3. Coercive obedience to it and applications and internally guaranteed by the use of force Naturally every theory of legal system must be compatible with explanation of these features and every theory of legal system should take account of these features. 3 tests to identify existence of legal system 1. Efficacy 2. Institutional character 3. Source We accept authority as we understand its directive yield benefits. They are meant to bring only if we do rely on them rather than on our own independent judgement of merits of each case. Criticism: it is a social thesis and therefore as a core of legal positivism is reflective of social ordering of normative character as we have seen in the works of Kelson and Bentham. He has not introduced anything new.

Roscoe Pound (1870-1964) theory of social engineering He is a sociological jurist and gave us 8 points1. First and pivotal in the whole programme is to study the actual social effects of legal institutions legal persons and legal doctrines. 2. The programme called for sociological study as an essential prelimiary step in preparation of law making. 3. The programme called for study of means of making legal precepts effective in action. 4. The study of juridical methods i.e. the influence of methods of thought of lawyers and judges. 5. A sociological legal history i.e. study not merely of how doctrines have evolved but study also of what social effects the doctrines of law have produced in the past and how they have produced them. 6. Pound calls for the proposition of recognition of individualized application of legal precepts of reasonable and just solutions of individual cases. 7. He was in favour of establishment of ministry of justice in common law countries. 8. He put forward the proposition that end of juristic study is to make effort to make effective in achieving the purposes of law. He goes on to propound jural postulates i.e. measures of interest to be recognised and secured in society. He gives this while discussing civilisation of law. Law in the sense of legal order for its subject matter relations of individuals so far as they affect others or affect the economic and social order1. In a civilized society men must be able to assume that others will commit no intentional aggression upon them. 2. In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use what they have created by their own labour and what they have acquired under the existing social and economic order. 3. In civilized society men must be assume that those with whom they deal in the general interreaction of society will act in good faith. 4. In a civilized society men must be able to assume that those who engage in some course of conduct will act with due care not to caste an unreasonable risk of injury upon others. 5. In civilised society men must be able to assume that others who maintain things or employ agencies harmless in their normal action elsewhere and having a natural tendency to cross the boundaries of their proper use will restrain them or keep them within the proper boundaries. Theory of interests: this was based on theory of justice by Jhering. He defines interest- as demands or desires or expectations which human beings either individually or collectively seek to satisfy.

He classifies interests. There can be 3 types 1. Individual interests- they are claims or demands or desires involved in and looked at from the standpoint of the individual life immediately as such asserted in the title of individual life. 2. Public interests they are the claims or desires asserted by individuals involved in or looked at from the standpoint of political life. 3. Social interests they are claims or demands or desires even some of the foregoing in the other aspects thought of in terms of social life and generalized as claims of social group.

Individual interest1. Of personality it can be divided into 5 sets of interestsPhysical person Freedom of will Honour and reputation Privacy and sensibilities Belied and opinion

2. Domestic interests 3 types Domestic relation Interest of parent and child Marital interest

3. Of substance 4 subsets Claims to corporeal things Claims to freedom of industry and contract Claims to promised advantages Claims to economically advantageous relations with others

Public Interest 1. Interest of state as a juristic person this includes personality, security of social organisation and dignity of politically organised society.

2. Interest of state as guardian of social interest 3. Right of equality and dignity and right of legislation of sending and receiving diplomatic representatives.

Social Interest 5 types 1. General safety and security 2. Public health 3. Peace and order 4. Security of transactions 5. Security of acquisitions He says that in a complex economically and socially organised society of 20 th centuries of western type, law intervenes in every aspect of social life. Pound has laid down the framework of adjustment of conflicting interests and presented maximum functions of just law. in his work introduction to the philosophy of law remarked that understanding of law today unfolds a picture of satisfying as much of the whole body of human wants with least sacrifices. Law as a social institution to satisfy the social wants the claims demands and expectations involved in the existence of civilised society. American Realism Investigate social factors that make the law and social results too. They emphasise what the courts may do or abstract logical deductions from general rules and on the inarticulate ideological premises underlying the legal system. John Grey (1839-1915) While defining law he said that the real relationship of jurisprudence to law depends not upon what is law treated but how law is treated. Therefore accordingly he stresses that statute with precedent equity and custom are sources of law but law itself is what the persons acting as judicial organs of the state lay down as rule of conduct. To determine rights and duties the judges settle the facts as they exist and also lay down rules according to which they deduce legal consequences from facts. Grey emphasizes the role which judges play in laying down the law because it is the judge who while interpreting the statute custom or equity create law rather than discovering law. the law as expressed in statutes or custom gets meaning and precision only after the judge expresses his opinion. Therefore the judges depend on the sources of law such as statutes judicial precedents opinions of experts custom and public policy and

principles of morality. The law therefore becomes concrete and positive only in the pronouncement of courts. Therefore judge-made law is final and authoritative form of law. Grey is a realist. He suggests that judicial pronouncements of courts are true subject matters of jurisprudence for evaluation and his contribution to American realist thought lies in the fact that judicial decisions often have been responsible for giving not only content but direction to political social and economic thought. Justice Holmes (1841 1935) He is credited to giving full respect to American realist movement. His thinking had immense impact on it. He looked at law from a different perspective. He observed that life of the law has not been logic but experience. The law embodies the story of a nations development through many centuries and it cannot be dealt with as if it contained only in the axioms and corollaries of a book of math. Law must be strictly distinguished from morals for the lawyer is concerned with what law is and not what it ought to be. Holmes definition of law and scope of jurisprudence led to the future development in constructing American realism which focused attention on the empirical factors underlying legal system. Jerome Frank (1889-1957) Law and Modern Mind: he makes 2 groups regarding modern realists- rule skeptics and fact skeptics. Rule skeptics believe that lawyers should be able to predict to their clients the decisions in most lawsuits not yet commenced but legal rules enunciated in courts opinions sometimes called paper rules to often prove unreliable as guides in the prediction of decisions. The facts skeptics also engage in rule skepticism and peer behind paper rules. Fact skeptics are interested in trial courts they too cannot predict future decisions. He observes that conventional description of how the court render decision from the application of legal rule or rules does not describe the picture of judicial law making correctly and fairly specially when testimony of witnesses are to be recorded in trial where chances of making mistake on part of witnesses as to the correctness of what they saw and heard or in their recollection of what they observed may be at variance with reality. The trial judge or jurists also human may have prejudices of an unconscious event to themselves. This may be for or against some lawyers judges or witnesses. These prejudices can even be racial religious political or gender biased. He lays emphasis on understanding the working of lower courts as he believes that points of law emerge from the fact situation at the lower court or lower levels of court hierarchy. The text book approach of law is misleading as the working of court system in by itself uncertain and mistaken. He suggests that instead of taking precedents there is a need in special training in fact finding evaluation of prejudices psychology of witnesses for trial judge and prospective jurists to give effect to empirical analysis of law and legal institutions.

Lleweyn (1883-1962) He took functional approach to law and delineated certain positions relating to American realists and summarized them. The conception of law is in constant state of flux. The conception of law is a means to social ends and not an end in itself so that any part needs to be constantly explained for its purpose and

effect and to be judged in the light of both and of their relation to each other. Conception of society is influx and it is typically faster than law so that probability is always given that any portion of law needs re-examination to determine how far it fits the society and its purposes to serve. For the purpose of the enquiry the jurists should look at what courts and officials citizens do without reference to what they ought to do. There should be a temporary diverse of is and ought for the purposes of study. Jurists must insist on evaluation of any part of law in tern of its effects. My Philosophy of Law: law is a going and necessary institution in the society. He says that the purpose of the law as a going institution has to do law jobs effectively and law as a going institution has to achieves results in life and must be tested by them. He categorises advocacy judging administering as law craft, mediation, teaching policing are crafts of jurisprudence which needs fresh studying. He lists 3 major characteristic of judicial precedents as doing law jobs. The reputation of the opinionwriting judge the principle of broad generalization to bring order and sense in the precedent and policy of prospective consequences of the rule under consideration is consideration which must be taken into account for evaluating a judicial decision. He makes a classification grand style (the courts while appealing to reason not following earlier precedents tend to make an order created by formal generalization and on policy perspective.) and formal style (it is concerned with understanding of rules which decide cases in a formal way, authoritarian and logical in the style courts are not concerned with the social facts whereas grand style is concerned with providing guidance for the future). He makes the fact of law the fact of life and precedents of courts whether law or higher must be read not in the sense of what they have decided but what was bothering and helping the courts. The contribution is significant as he conceives law jobs as inherent in law as an institution. His other contributions in conceiving realism as technology are noteworthy. However his styles do not make any significant contribution to realist movement. His theory has more sociological underpinnings than that of realists. 16.4.2010 Scandinavian Realists They are totally cut off from legal thought of other countries and based on ancient Roman law. Approach to law and legal institutions which they have developed is peculiar and parallel to other countries. Here law is judge-made laws and there is little codification happening here. Law can be explained only in terms of observable facts and the study of such facts which is the science of law is therefore a true science like any other concern with facts and events in the realm of casualty. For them law is nothing but the very life of mankind in organised groups and the conditions which make possible peaceful coexistence of mass of individuals and social groups and the cooperation for other ends than mere existence and propagation. Axel Hegerstorm (1868-1939) He is generally considered as the spiritual father of Scandinavian realists and he has mastered the Roman law and he was essentially a philosophical jurists. Life science according to him is an important tool in

reorganization of society in just the same way as natural science depicts the natural phenomena. Rights, duties property will of the state were all mere wordplay. Legal philosophy according to him is a sociological dispensation based on historical and psychological analysis. He argues that the idea of rights and duties expressed in the imperative form is really about something which the legislature had in mind to be actualized by means of the law. The claims or the assertions of rights and duties are basically what in fact a person claiming a right can obtain from the party who is under an obligation through a process of law. Judge while applying the legal oughts it shall be so is nearly a phrase which does not express any kind of idea but serves as a psychological means of compulsion in certain cases and it is only from ideas that any logical content can be drawn. The ideal content of law is arrived at for psychological associative reasons. So far legislator and legislature is concerned legal enactments concerning rights and duties are powers which fall outside the physical world. Even if the legislature also understands by rights and duties certain social state of affairs which he aims at realizing yet the idea of right and duties are supernatural powers and bonds present and active throughout. The essence of his thesis is the extrapolation of the idea of right and duties as they are ought propositions but their content is something of supernatural power with regard to things and persons. Right and duties have a psychological explanation found in the feelings of strength and power associated with the conviction of possessing a right one fights better if one believes that one has a right on ones side.

K Oliver Crona He carries forward thesis of Hegelstorm. He propounded a view that rules of law are independent imperatives i.e. propositions in imperative form but not issuing like commands, from particular persons. Law is a chain of cause and effect. Any action of law is an imaginary action. So it is independent of any other vital factors. Law and fact: he contends that law is a link in the chain of cause and effect and the binding force of law is a reality merely as an idea in human mind. The rule of law is not a command in the proper sense. Its inner most meaning is to wrench law amongst the facts of the actual world. The commands if there are any are natural facts. State as an organisation cannot issue commands as it is the individual who may issue commands. Independent imperatives are propositions which function independent of person or any command which does not require state to be forward. Law is a fact situation. There is no codification. Law chiefly consists of rules about force and based on independent imperatives he asserts the belief that moral ideas are primary factors that law is inspired by them and justice is represented by rule of law are incorrect as they are not based on facts rather on superstition. Legal language and reality: the purpose of all legal enactments judicial pronouncements contracts and other legal acts is to influence mens behaviour and direct them in a certain way. His contribution to the Scandinavian realism is multi fold by stressing law as a fact is something which is to be observed and

legal conceptions such as command duty legal rights and duties are fantasies of mind. Psychological pressures are the real rules of law. Rules of law are imperatives distinct from command. Luldstedt Legal thinking revisited: natural justice is an external factor for balancing the interests of the parties based on evaluation. Legal concepts such as duty wrongfulness guilt liability and life are operative only in the subjective conscience and could not have objective meaning. To contend that defendant has violated a duty was a judgement of value and thus an expression of feeling. The only realistic significance that can be assigned to such terms was in connection with the coercive legal machinery of the state called into action for the purpose of enforcing a contract and punishing a wrong doer. The idea of law as a means of achieving justice is chimerical. It is not founded in justice but on social needs and pressure. In place of justice he substituted that method of social welfare which is a guiding motive for legal activities. Legal activities are indispensable for the existence of the society. Social welfare as a guiding principle of legal activities is decent food clothing and shelter etc. these are conceivable material comforts as well as protection of spiritual interests. The contribution in developing a value neutral realist theory is remarkable as he stresses that concepts such as rights duties and liabilities are tool off thought issued in deciding cases. Alf Ross His analysis on the concept of varied law on the analogy of a game of chess played by 2 players and onlooker who does not know the rule of the game human social life acquires the character of community life from the very fact that a large no. of individual actions are relevant and have significance in relation to a set common conceptions of rules. Therefore they constitute a significant role bearing the same relation to one another like that of move and counter move. A norm is a directive which stands in relation of correspondence to social facts and norm is said to be directive in the sense of a meaning content only if it corresponds to certain social facts. Legal sanctions are applied according to decisions of courts. The existence of legal norm would have to be derived from an observed regularity in court decision. A norm may be derive from a past decision and it follows from this view that all norms including those of legislations should be viewed as directives to courts. Therefore legal rules are rules about exercise of force and as such are directed to officials. From a psychological point of view there is another set of norms directed towards individuals followed by them and said to be binding. Validity of law lies in predictability of decisions. Valid law means abstract set of normative ideas which serve as a scheme of interpretation for a phenomenon of law in action which again means that these norms are effectively followed. The contribution of Ross to Scandinavian realist thought is multidimensional. Ross is concerned to divest legal validity from all metaphysical niceties and his thrust is that legal norms are valid if courts would enforce and predict them. Norms are essentially addressed to courts rather than private individuals. Natural law philosophy in recognizing relation between law and morals is fallacious. To conclude therefore, Scandinavian realists have developed characteristic approach to law which is unique. There is similarity between them and Roscoe Pound. 17.2.2010 Marxist School

Karl Marx and Engels Marx synthesized the entire philosophical thought from Aristotle to Hegel. The sociological finding or understanding of the society led Marx to pronounce that best society would be communist society based on rationality, equality, distribution and liberated from all forms of political and bureaucratic hierarchy. He rejected the state and money of Bourgeoisie and proletariats have a historical mission for the society as a whole. Law is nothing but a function of economy without any independent existence. All classes are in conflict and this conflict will have to be resolved. This can be resolved with proletariat revolution. Once the revolution takes place it will seize the power of the state and transform the means of production in the first instance in state property. The government of persons in replaced by administration of things and directs the process of production. State is not abolished but it withers away. As the production of goods in common ownership the distribution of commodities has to follow the rule that from each according to his ability to each according to his need. The same amount of labour which a labourer gives to society in one form he receives in another form. Pashukanis He was a soviet jurist. He tried to remove some flaws from the law and Marxism as experimented in Marxist state especially in erstwhile soviet union. Proletarian law as practiced there needs general concepts to reinforce Marxist theory of law. He is critical of bourgeoisie jurisprudence. It is interested to expose abstract generalization which according to him has been raised to the level of heaven. In the bourgeoisie jurisprudence, contract is an abstraction of idea of law and outside the contract the concept of subject and of will are lifeless abstractions. The content of judicial relations is itself determined by the economic relations. Power is the collective will as the rule of law is realized in bourgeoisie society to the extent that this society represents a market. Therefore, retailers, whole-sellers peasant and landowners and even ruined debtor are tied with the end of mutual dependence. Once perfect communism is established national economy will pass into the hands of the state and accordingly conflicts will come to the end but the relevance of law of a different kind will still remain. Karl Renner Though he is not a Marxist of the ideal time but he used the Marxist concepts in developing his thesis of the relationship between the law and economics. Institutions of private law and their social functions: he utilizes Marxist theory of sociology to develop a theory of law. Here he while delineating change of functions and change of norms says that feudal society had organised the property structure in such a manner that new and draconian laws were needed to appropriate the proceeds of labour to others. He remarks that socialists and Marxists have failed to understand that new society is always performed in the womb of the old and i.e. equally true of law. The process of change from one given order to another is automatic. Renner conveys that concept of property in terms of Marx has not remained the same. Property whether in socialism or capitalism has not remained an instrument of exploitation rather the natural forces of change have put property under various restrictions be it in tenants, employees and consumers. The power of property remains whatsoever the political character of the state may be.

To conclude, Marxist theory of state and law, law in the bourgeoisie is a superstructure to maintain the distinction between the classes and is related to economics so that the bourgeoisie. Keep on exploiting the proletariat. Even after establishment of the same, law will be used by an instrument by working class to overthrow capitalist order. State is a necessary superstructure to perpetuate class distinctions in capital mode of productions. Law and state in capitalist societies are important corollaries to exploit the proletariat by the capitalists under force of threat or coercion and bureaucracy is the formal spirit of state to perpetuate in the capitalist order.