Ancient Indian Jurisprudence in Mahabharata and

It’s relevance in contemporary Times: A critical

Analysis

(Project Report)

Submitted to:
Dr. KAUMUDHI CHALLA
(Faculty, HNLU Raipur)

Submitted By:
SHANTANU VAISHNAV
Student, B.A.LL. B. (Hons.)
Semester – V, Section – B, Roll No.
142

Hidayatullah National Law University

Uparwara Post, Abhanpur, Atal Nagar – 492002 (C.G.)
 Declaration

I, Shantanu Vaishnav, hereby declare that the project work entitled “Ancient Indian
Jurisprudence in Mahabharata and It’s relevance in contemporary Times: A critical
Analysis” submitted to Hidayatullah National Law University, Raipur is a record of original
work done by me under the able guidance of Dr. Kaumudhi Challa (faculty) of Hidayatullah
National Law University, Raipur.

Shantanu Vaishnav

Semester V, Section B

B.A. LL.B.

Roll No. 142

i
 Certificate
This is to certify that Mr. Shantanu Vaishnav Roll Number- 142, student of Semester- V of
B.A.LL.B.(Hons.), Hidayatullah National Law University, Atal Nagar (Chhattisgarh) has
undergone research of the project work titled “Ancient Indian Jurisprudence in Mahabharata
and It’s relevance in contemporary Times: A critical Analysis” in partial fulfilment of the
subject Jurisprudence. His performance in research work is up to the level.

Place: Atal Nagar

Date: 03.09.2019

..............................
Dr. Kaumudhi Challa.
(Faculty- Jurisprudence)

H.N.L.U., New Raipur, Chhattisgarh

 Acknowledgements
I feel highly elated to work on the topic “Ancient Indian Jurisprudence in Mahabharata and
It’s relevance in contemporary Times: A critical Analysis” because of its relevance in the
understanding the jurisprudential framework of the society and its functioning in the state.

I express my deepest regard and gratitude for our Faculty of Jurisprudence, Dr. Kaumudhi
Challa for her consistent supervision, constant inspiration and invaluable guidance, which have
been of immense help in understanding and carrying out the importance of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Hon’ble Vice Chancellor of the
University for providing extensive database resources in the Library and through Internet.

Shantanu Vaishnav

Semester V, Section B

B.A. LL.B.

Roll No. 142

iii
 Table of Cases

S. NO. CASES CITATION

1. Keshav Mills v. Income Tax Commissioner 1965 AIR 1636

2. Hussainara Khatoon v. State of Bihar 1979 AIR 1369

3. M.C. Mehta v. State of Tamil Nadu AIR 1997 SC 699

4. M.C. Mehta v. Union of India 1987 SCR (1) 819

5. Vishakha v. State of Rajasthan (1997) 6 SCC 241

6. Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715

Table of Abbreviations

S. NO. ABBREVIATIONS FULL FORMS

1. v. Versus
2. Ors. Others
3. AIR All India Reporters
4. SCC Supreme Court Cases
5. SCR Supreme Court Reporters
6. Ed. Edition
7. w.r.t. With Respect To
 Contents

Declaration i
Certificate ii
Acknowledgements ii
Table of Cases iv
Table of Abbreviations iv
Content v
1.Schools of Jurisprudence: An Introduction..........................................................................1
1.1. Introduction.......................................................................................................................1
1.2. Research Methodology.....................................................................................................2
• Statement of Problem......................................................................................................2
• Rationale of study............................................................................................................2
• Objectives.........................................................................................................................2
• Review of Literature........................................................................................................2
• Hypothesis........................................................................................................................3
• Nature of study................................................................................................................3
• Sources of Data................................................................................................................3
• Chapterisation.................................................................................................................3
• Time limit........................................................................................................................4
• Contribution....................................................................................................................4
• Limitation of study.........................................................................................................4
2. Historical School of Jurisprudence.......................................................................................5
2.1. Introduction......................................................................................................................5
2.2. Jurists…............................................................................................................................6
3. Realist School of Jurisprudence..........................................................................................13
3.1. American Realism..........................................................................................................13
3.2. Scandinavian Legal Realism..........................................................................................20
4. Relation between Historical & Realist School of Jurisprudence & their Present
Scenario..................................................................................................................................22
4.1. Relationship between Historical & Realist School of Jurisprudence........................22
4.2. Historical School in the Present Indian Scenario…....................................................24
4.3. Realist School in the Present Indian Scenario.............................................................26
5. Conclusion..............................................................................................................................29
6. Bibliography...........................................................................................................................31
 INTRODUCTION

The classical Natural Law Theory was for a long time associated with God. In order to expand the
reach of the theory, Hugo Grotius, the father of international was the first to delink Natural Law
Theory from God by suggesting that What we have been saying would have a degree of validity even
if we should commode that which cannot be conceded without the utmost wickedness, that there is no
God, or that the affairs of men are of no concern to Him. Interesting, Mahabharata does not place the
agency of dharma on God. As noted above Draupadi in her desperation appeals to dharma of the
kings. None of the participants in the assembly invoke God to answer the query on dharma Indeed in
the famous Krishna-Arjuna dialogue moments before the war, though the most famous verse is to be
intent on the action, not on the fruits of action, as not the compelling argument Arjuna remains
unfazed. Krishna's ultimate argument is that of destiny where Arjuna realizes that he is merely a tool
for what has already been ordained. Reliance upon the argument of destiny may indicate entry of God
through the backdoor However, the final words of Krishna to Arjuna are instructive - Invoking the
criticality of human agency he says This knowledge I have taught is more arcane than any mystery -
consider it completely then act as you choose The ball is back in Arjuna's court.

The philosophy of Mahabharata, is Natural Law theory is acutely empowering It places the agency on
humans. Unlike the formalist Exclusive Legal Positivism it does not believe that law has an authority
and hence there is an obligation to obey law qua law It does not argue that a norm would lose its
authoritativeness if it requires norm subjects to decide what the norm is Clearly a ta does not reflect a
black and white worldview. It takes cognizance of the shades of grey Indeed, grey ubiquitous.
Mahabharata does not intend to fully settle the disputes of “Dharma. The opening verse in Bhagavad-
Gita is “Dharmakshetre kurukshetre” indicating that it is not mere war but “just war” with
humongous moral connotation. However competing claims to the throne on behalf of the Kauravas
and the Pandavas are dubious. Duryodhana refuses to grant the Pandav “even five villages” though
King Dhritarashtra had already divided the Kingdom.

The Pandavas' postulation as heir apparent to the throne is equally unfair as their father Pandu was
younger to Dhritarashtra. As in life so in law there is a constant struggle between competing evils.
The jurisprudence in Mahabharata grapples with choosing between the lesser of the two evils. Should
the Kauravas representing what is wrong with the world be defeated through impure means?
6
Krishna's answer is in affirmative owing to the choice of lesser evil. This is similar to Professor
H.L.A. Hart's remark in the celebrated Hart-Fuller debate that the choice of lesser evil could be in
certain circumstances be preferable.1

The upshot of dharma in Mahabharata is complex. Like Kaushika who chose the dharma of satya
(truth) over ahimsa(non-violence) but was condemned to hell merely because the agency of
interpretation lies with human beings, it does not necessarily guarantee accurate understanding of
critical morality. Perhaps Mahabharata had dharma in mind when it somewhat hubristically stated:
"what is here is found elsewhere; what is not here is nowhere Nevertheless, what is clear from the
Natural Law Theory as well as Mahabharata is that human reason is capable of exploring the truth
called dharma. Slavery and sati may have been part of conventional morality in the past. However, it
is arguable whether they ever constituted critical morality or dharma, Sati and slavery were abolished
not because of a Bhisma like approach of avoidance but owing to society's ability and willingness to
come to grips with reasonableness. The Lady Justice Justitia may be blindfolded but the voyage of
dharma ought to continue

1
Dealing with the case of German woman who sought to get her husband indicted under a Nazi law during Second World
War, Professor H.LA Hart said. There were, of course, two other choices One was to let the woman go unpunished; one
can sympathize with and endorse the view that this might have been a bad thing to do. The other was to face the fact that
if the women were to be punished it must be pursuant to the introduction of a frankly retrospective law and with a full
consciousness of what was sacrificed in securing the punishment in this way H.LA Hart, Positivism and separation of law
and morals,71 HARV. L. REV. 593, 619 (1958)
7
 1.1.Research Methodology

 Statement of Problem

The main problem dealt in this project report is to study the Historical & Realist schools of
Jurisprudence. The project Report further tries to compare the central features of both the
school and their applicability in the present scenario.

 Rationale of the study

The study of schools of jurisprudence is important as it helps lawyers to set the law in it's
proper contours by considering the needs of the society and by taking note of the advances
made in related and relevant disciplines. This study will further helps the judges and lawyers
in ascertaining true meaning of laws passed by the legislature by providing the rules of
interpretation.

 Objectives of the Study

The main objectives of the study are:-

i. To study the Central features of Historical School & Realist School.
ii. To compare the features of both the schools of Jurisprudence.
iii. To examine the features of both the school in the present Indian scenario.

 Review of Literature
i. Fifty Years of Jurisprudence: - by Harvard Law Review, Vol. 51, No. 5, 1938
Fifty Years of Jurisprudence is an article which describes the journey of various school
of jurisprudence and how the different schools were helpful in ascertaining the real
meaning of laws present at that time.
ii. Jurisprudence Explained- by Hijam N.K. Singh, Capital Law Housse, 1999, p.82-
89.

8
 This book explains ‘Codification of Law’ as one of the theories of Historical school. It
highlights on Maine’s theory with reference to Indian jurisprudence by giving example
of codified laws like Civil & Criminal Procedure Code.
iii. Jurisprudence & Legal theory- by V.D. Mahajan, 5th Edn., Eastern Book
Company, 2015, p. 539-45.
This book explains the Realism theory by citing various examples such as Bad Man
theory by Holmes. It further cites views of various jurist of Realist School.
iv. Michael Freeman FBA, Lloyd’s Introduction to Jurisprudence, Sweet & Maxwell,
This book also explains Savigny’s theory and also cites various criticisms of his theory
such as his theory that Law should be found or based on the customs.
 Hypothesis

The idea about the topic is to see that if the central features of both the school of
jurisprudence are similar or dissimilar to each other, and if they are similar or dissimilar, then
how both the school are related to each other.

 Sources of Data-

Data that were used for the completion of this research project are all secondary sources of
data ranging from books, journal, articles and other online sources and as far as case laws are
concerned these cannot be said to be primary sources since they are not first-hand
information or judgment reports but a modified form found in books or journals.

 Nature of the study-

This research project is Doctrinal in nature since it is largely based on secondary & electronic
sources of data and also since there is no field work involved while producing this research
and it largely involves study of various theories and comparison from different books, journal
and other online sources thus not being empirical in nature.

 Chapterisation

This project report has been divided into following chapters-

 Chapter 1- It deals with general introduction along with research methodology referred in the
project report.
Chapter 2- It deals with the Historical School of Jurisprudence.
Chapter 3- It deals with the Realist School of Jurisprudence.
Chapter 4- It deals with the relationship between both the schools of jurisprudence and their
present scenario.

 Time limit

This study has been completed in ten to twelve days from the date of allotment of the research
topic.

 Contribution of the study

The research seeks to empower and enlighten the reader about this two different schools of
jurisprudence. This will further enlighten prospective reader to understand the real and true
meaning of law and can help in interpret different legislations with a different approach, and
how that approach has impacted society in the present scenario.

 Limitation of the study-

This project report covers the Historical & Realist schools of Jurisprudence, and deals with
the comparison of both the schools of Jurisprudence. The report would be limited in its
context to deal with comparison of both the schools only with respect to the central features
of both the school. Also, due to the limitation of time period, the author has restricted his
study of the schools of jurisprudence in present scenario to India only.
 1. The philosophical concept of Dharma

The literal meaning of the term "dharmti" is that which sustains or upholds. This word “dharma”
comes from the Sanskrit root which means “holding” or “stabilishing”. All those laws and are given
the name of dharma which hold society and the individual i.e. which keep him on the right track and
defend him and preserve him. In this it is dharma which is the moral system.

A. According to Mahanarayanopnisdd,

 The stability of the universe and the world is with dharma and it is with dharma hat the
subjects are looked after; dharma removes demerits and everyone’s stability is with dharma.
Thus, dharma has been called supreme.

B. Mahabharata defines dharma as that which does not harm anyone,

C. Lord Krishna says in the Mahabharata,

 Dharma has been made for the good of creation. In this way, the respect of dharma has special
importance in the Indian ethics.

India is a very old country with a great past - rich in its cultural, political and legal heritage. It is India
where for the first time an idealistic and pragmatic legal philosophy evolved based on certain values
spiritual as well as material

A. Dharma
B. Artlia
C. Kama &
D. Moksha
Within the ring of dharma, the life wheel of ancient Hindu moved for the attainment of prosperity
“artha” and for gratification of senses and desires “kamas" with a view to attain spiritual liberation or
salvation “moksha”. The ancient Indian legal philosophers, were not mere dreamers or other worldly
but were universalists, humanists, rationalists and above all moralists who evolved a system of legal
philosophy which was based on their conception of dharma.

The idea of pursharthas is fundamental principle of Indian legal ethics. According to it, the aim of
every person in the world is to attain the four purushartas - dharma, artha, kama and moksha. Kama is
a natural tendency in every person. Wealth is the means of fulfillment of kama and other needs and
the life system of society. Dharma implies the laws or principles on which society is based.
According to the VAISESIKA philosophy, dharma is that which leads to improvement in the world
and to moksha in the next. Dharma or duty, wealth and kama relate to objects of this world. These
are, in brief, called the trivarga duty, wealth and sex indicate respectively ethical legal ideals,
physical means and physical, mental and vital desires or man.

In this way it is man’s duty to fulfill the three. Besides trivargas, moksha is just as important in
human life. At one time the Hindu interpreted trivarga as means to moksha but generally all the four
purusharthas have been stressed.

VATSYAYAN writes, “a man hundred years of age should gain knowledge in childhood, sex
satisfaction in youth and attend to duty and moksha in old age.

MANU states clearly, "some people attribute more importance to duty, some to wealth and some to
sex. Actually, all three are equally important and creditable".

MANU has gone to the extent of saying that man should try for moksha only after he has passed
through the three ashrams to use duty, wealth and sex, and has rid himself of the three rinas because a
person not doing so will find himself in trouble. In this way, it is clear that with regard to the aim of
life, Indian ethics emphasizes an integral approach.
There are many instances in history, of the balance between the society and the individual being lost
due to laying of excessive emphasis upon one aspect of life. Buddhist, Christians, among them St.
PAUL and TARTULIAN and priests o middle ages in Europe laid excessive emphasis on abstention
with the result that there was a strong reaction in the direction of immorality. Vama Margi Buddhists
took women and wine to be an important part of the means. Immorality was conspicuous by its
absence in groups like Choli Margaa. In Europe in the middle ages, the monastries had become
centers of corruption. This reaction was manifested in other directions in the form of cruelty and
violence. Indian ethicists were acquainted with those psychological probabilities. They, thus,
emphasized all the four purusharthas equally. This kept the organization of society and the individual
solid and balanced.

The Hindu mind strove a balance between the two by generating a spirit of selfless
service and duty as important component of dharma.

No Indian ruler could claim with impurity as ALAUDDIN KHILJI of the medieval Indian and Louis
XIV of France did that they were the state. Indeed the ancient Indian law-givers were also clear in
their mind about the limitations of one-mans’ rule. They, therefore, enunciated the doctrine of partial
or limited sovereignty assigned to the king to administer the country without legislative power or rule
making power whatsoever. Hindu thinkers always held law or dharma superior to state or
government. The state was by no means a source of law as has been propounded by a number of
European legal pundits like HOBBES and HEGEL. Indeed, the kingship was a trust and the Indian
kings like ASHOKA and HARSHA looked upon themselves in the light. Moreover, fear of popular
revolt was another deterrent tyrannical or gross misrule. Mahabharat1 sanctions rebellion against a
worthless king.

The Hindu jurist therefore, never depicted state as a “necessary evil”. It was on the other hand
considered necessary for the advancement of dharma. “Human beings can find security only in and
through the state. Without a sovereign authority to establish law and order and maintain peace,
stronger will swallow the weaker in the manner of fish”. It was. therefore, paramount duty of the king
to promote the cause of dharma. If the law and order are not maintained by the king, the
righteousness would soon disappear, unrighteousness would prevail everywhere. None would care for
the code of ethics and exist.
Shantiparva elaborately describes the nature of law, state and their relationship with individuals.

Ramayan, Taitereya Brahman and Mahabharata are also dominated by social, political and legal
philosophy of Hindus which enjoin both upon the king and individuals to follow establish laws
“dharma” without fear or favour with strict control over personal whims and desires.

In Mahabharata, there is a reference to social contract theory wherein king is appointed

by God with the consent of the people and a dandneeti “sanction or punishment” was an
instrument to promote public welfare, protect society and achieve the ends laid down by
the law of dharma. The existence of sabha and samitis were basic to give validity to the
decisions of the king. It is true king exercised absolute powers - administrative and
judicial - but subject to law of dharma or interpreted by Brahmin scholars, rishis
"saints ". The decisions of the rishis were therefore, no less binding and valid for the ing
as the decisions of the supreme court of India in modern times. If the king did not care of
the verdict of the rishis, he would incur wrath of the people and of Gods.
As MANU says, "dharma” when violated verily destroys, dharma when preserved,
preserves, therefore, dharma should not be violated, least the violated dharma destroys us.
Thus, consent of the sovereignty “kingship" of the state was force “danda” whih was to
be used solely for enforcing ordinance t>f dharma. Hindu state was thus subservient to
law or dharma which guided and controlled the state for all practical purposesThus Hindus developed
theory of government and state called Rajadharama. The
arthashastra and dharmashastras give a detailed exposition of rajdharama under which``
 3. Realist School Of Jurisprudence

3.1. American Realism

The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school as a
separate school of jurisprudence. American realism is a combination of the analytical positivism
and sociological approaches. It is positivist in that it first considers the law as it is. On the other
hand, the law as it stands is the product of many factors. In as much as the realists are interested
in sociological and other factors that influence the law. Their concern, however, law rather than
society. Realists don’t give any importance to laws enacted by legislature. And they uphold only
judge-made law as genuine law. A great role of judges’ understanding about law, society and
also their psychology affect any judgment given by them. At the same time, in a same case
applying same law two different judges give the different judgments.

Realism denounces traditional legal rules and concepts and concentrates more on what the courts
actually do in reaching the final decision in the case. In strict sense, realists define law as
generalized prediction of what the courts will do. Realists believe that certainty of law is a myth
and its predictability depends upon the set of facts which are before the court for decision. It
presupposes that law is intimately connected with the society and since the society changes faster
than law so there can never be certainty about law. They do not support formal, logical and
conceptual approach to law. The realist school evaluates any part of law in terms of its effect.
Jerome Frank has stated, “Law is what the court has decided in respect of any particular set of
facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will
decide and this cannot be treated as law unless the Court so decides by its judicial
pronouncement.”[1] The judges’ decisions are the outcome of his entire life history.”

Meaning & Definition of American Realist School:

The insights of legal realism are mainly negative, revealing a deep skepticism about the model of
rules, about any general and abstract theory of the law. Realism was not consolidated into a
definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical
phenomenon’ rather than a ‘school of thought’. American Legal Realism expressed a set of
sometimes self-contradictory tendencies rather than a clear body of tenets or a rigorous set of
methodologies or propositions about legal theory. According to Roscoe Pound, “Realism is the
accurate recording of things as they are, as contrasted with things as they are imagined to be or
wished to be or as one feels they ought to be”. According to Friedman, “Realist school prefers to
evaluate any part of law in terms of its effects”.

Origin & History of American Realist School:

Legal realism is a school of legal philosophy that is generally associated with the culmination of
the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical
legal thought in the United States of America. American Legal Realism is often remembered for
its challenge to the Classical legal claim that orthodox legal institutions provided an autonomous
and self-executing system of legal discourse untainted by politics. The realist school has been
divided into two parts: Scandinavian Realism & American Realism. Both are hostile to
formalism that treats law as a lifeless phenomenon. Both adopt radical empirical methods that
seek to explain law in terms of observable behavior (examining cause and effect) and both are
antagonistic towards metaphysics and values. Scandinavian Realism is existed in Europe,
Sweden, Norway, England and Scandinavian countries. This school of realism was supported by
Axel Hagerstrom, A.V. Lundstedt and Karl Olivecrona.7

Realist thinking was introduced to American jurisprudence by Oliver Wendell Holmes. Oliver
Holmes has been described as the intellectual inspiration and even the spiritual father of the
American realist movement. Holmes was skeptical of the ability of general rules to provide the
solution to particular cases and readily gave credence to the role of extra-legal factors in judicial
decision-making. Holmes gave the first and classic exposition of the courtfocused approach in
1897, sowing the seeds for realism, in a paper called The Path of the Law.

American Realist Movement:

Realism was not consolidated into a definite, coherent theoretical system; it can at best be
described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school of thought’.[5] The
realist movement began in the 19th century in America and gained force during the
administration of President Franklin D. Roosevelt. The realist movement in United States
represents the latest
7
https://www.slideshare.net/vaishnavikanduri9/american-realism-legal-theory
branch of sociological jurisprudence. Which concentrates on the decisions of law courts.
Sometime it is called the ‘left wing of the functional school.’ This movement named as realist
because this approach studies law, as it is in actual working and its effects. Realism was a
movement without a clearly articulated theoretical foundation of its own. Some jurists refuse to
accept realism as a separate school of jurisprudence. According to Llewellyn, “there is no realist
school as such, it is only a movement in thought and work about law.” Realism is the anti-thesis
of idealism. American realism is a combination of the analytical positivism and sociological
approaches. Julius Stone calls the realist movement a ‘gloss’ on the sociological approach.

Basic Features of Realist School:

Realism denounces traditional legal rules and concepts and concentrates more on what the courts
actually do in reaching the final decision in the case. In strict sense, realists define law as
generalized prediction of what the courts will do. There are certain principal features of realistic
jurisprudence as outlined by Karl Llewellyn and Prof. Goodhart:

1. There has to be a conception of law in flux and of the judicial creation of law.
2. Law is a means to social ends; and every part of it has constantly to be examined for its
purpose and effects, and to be judged in the light of both and their relation to each other.
3. Society changes faster than law and so there is a constant need to examine how law meets
contemporary social problems.
4. Realists believe that there can be no certainty about law and its predictability depends
upon the set of facts which are before the court for decision.
5. They do not support formal, logical and conceptual approach to law because the Court
while deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’ ground.
6. They lay greater stress on psychological approach to the proper understanding of law as it
is concerned with human behavior and convictions of the lawyers and judges.
7. Realists are opposed to the value of legal terminology, for they consider it as tacit method
of suppressing uncertainty of law.
8. The realists introduced studies of case law from the point of view which distinguished
between rationalization by a judge in conventional legal terminology of a decision
already reached and the motivations behind the decisions itself.
 9. The realists also study the different results reached by courts within the framework of the
same rule or concept in relation to variations in the facts of the cases, and the extent to
which courts are influenced in their application of rules by the procedural machinery
which exists for the administration of the law.

Main Jurists of American Realist School & Their Theories:

a) Justice Holmes: Bad Man Theory The seeds of realism were sown by Justice Holmes. He
said that Law is not like mathematics. Law is nothing but a prediction. According to him, the life
of law is logic as well as experience. The real nature of the law cannot be explained by formal
deductive logic. Judges make their decisions based on their own sense of what is right. In order
to see what the law is in reality, he adopted the standpoint of a hypothetical ‘Bad man’ facing
trial. Therefore his theory is known as Bad Man Theory. This theory says that a bad man
successfully predicts the actual law than other people. Holmes said that law should be looked
from bad man’s perspective. On the basis of this prediction Holmes defined the law as,
“Prophecies (ability to predict) of what the court will do in fact and nothing more pretentious.”

b) Justice Gray: John Chipman Gray only exhibited limited factors in common with the
realists. His approach was certainly as court-oriented as the realists. For Gray the law was simply
what the court decided. Everything else, including statutes, were simply sources of law. He said,
“The law of the State or of any organized body of men is composed of the rules which the courts,
that is, the judicial organs of that body, lay down for the determination of legal rights and duties.

c) Karl N. Llewellyn: A Law Job Theory: Karl Llewellyn was a professor of law at the
Columbia University. He confessed that there is nothing like realist school instead it is a
particular approach of a group of thinkers belonging to the sociological jurisprudence. According
to Llewellyn realism means a movement in thought and work about law. Karl Llewellyn outlined
the principle features of the realist approach. Which are as follows:

1. There has to be a conception of law in flux and of the judicial creation of law.
2. Society changes faster than law, so there is a constant need to improve the law.
3. There has to be a temporary separation between is and ought for the purpose of study.

Karl Llewellyn described the basic functions of law as ‘law-jobs’. Law is an ‘institution’ which
is necessary in society and which is comprised not only of rules but also contains an ‘ideology
and a
body of pervasive and powerful ideals which are largely unspoken, largely implicit, and which
pass unmentioned in the books’. Law has jobs to do within a society. These are:

i. The disposition of the trouble case: a wrong. A grievance, a dispute. This is the garage-
repair work or the going concern of society with its continuous effect upon the
remarking of the order of society.
ii. The preventive channeling of conduct and expectation so as to avoid trouble, and
together with it, the effective reorientation of conduct and expectations in similar
fashion.
iii. The allocation of authority and the arrangement of procedures which mark action as
being authoritative; which includes all of any constitution and much more.
iv. The positive side of law’s work is the net organization of society as a whole so as to
provide integration, direction and incentive
v. ‘Juristic method’ to use a single slogan to sum up the task of handling the legal materials
and tools and people developed for the other jobs to the end that those materials and
tools and people are kept doing their law-jobs, and doing them better, until they become
a source of revelation of new possibility and achievement.8

d) Jerome Frank: Father’s Symbol Theory: Jerome Frank was initially a practicing lawyer. He
served in the Law Department of the Government for about a decade. In 1941, he was appointed
as a Judge in the United States Circuit Court. He was also a visiting professor of law in Yale Law
School. His classic work, “Law and the modern mind” presents a very close examination of
judicial process and is full of practical illustrations. His thesis is that law is uncertain or certainty
of law is a legal myth. He exploded the myth that law is continuous, uniform, certain and
invariable and asserted that the judges do not make the law, instead they discover it. Frank
observes that a judge’s decisions are the outcome of his entire life history. His friends, his
family, vocations, schools, religion, all these factors are influential.

In this regard Jerome Frank has given the Fathers’ Symbol Theory. The child puts his trust in the
power and wisdom of his father to provide an atmosphere of security. In the adult the counterpart
of this feeling is the trust reposed in the stability and immutability of human institutions. Frank
suggested that the quest for certainty in law is in effect a search for a ‘father symbol’ to provide
8
https://www.slideshare.net/adityakashyap24/jurisprudence-and-legal-realism-in-india
an aura of security, and although he attributed great prominence to this factor. He offered it only
as a ‘partial explanation’ of what he called the ‘basic myth’, and listed fourteen other
explanations as well.

Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty
is inherent in it. Therefore mere technical legal analysis is not enough for understanding as to
how law works. Frank accordingly divided realists into two camps, described as ‘rule skeptics’
and ‘fact skeptics.’ The ‘rule skeptics’ rejected legal rules as providing uniformity in law and
tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology,
economics, politics etc. The ‘rule skeptics’ avoided that criticism by saying that they were not
deriving purposive ‘ought’ but only predictions of judicial behavior analogous to the laws of
science. Frank called this brand of realism the left-wing adherents of a right-wing tradition,
namely, the tradition of trying to find uniformity in rules. The fact ‘fact skeptics’ rejected even
this aspiration towards uniformity. He abandoned all attempts to seek rule-certainty and pointed
to the uncertainty of establishing even the facts in trial courts. It is impossible to predict with any
degree of certainly how fallible a particular witness is likely to be, or how persuasively he will
lie.

Frank divided realists into two camps, described as ‘rule-skeptics’ and ‘fact-skeptics’. The ‘rule-
skeptics’ rejected legal rules as providing uniformity in law, and tried instead to find uniformity
in rules evolved out of psychology, anthropology, sociology, economics, politics etc. Kelson, it
will be remembered, maintained that it is not possible to derive an ‘ought’ from an ‘is’. The
‘rule- skeptics’ avoided that criticism by saying that they were not deriving purposive ‘ought’,
but only predictions of judicial behavior analogous to the laws or science.

Contribution of American Realist School to Jurisprudence:

The main contribution of realists to jurisprudence lies in the fact that they have approached law
in a positive spirit and demonstrated the futility of theoretical concepts of justice and natural law.
Opposing positivist’s view, the realists hold that law is uncertain and indeterminable in nature
therefore, certainty of law is a myth. According to Friedman, realist movement is an attempt to
rationalize and modernize the law- both administration of law and the material for legislative
change, by utilizing scientific method and taking into account the factual realities of social life.
According to Julius Stone, “realist movement is a gloss on the sociological approach to
jurisprudence. He considers realism as a combination of the positivist and the sociological
approach. It is positivist in the sense that it undertakes the study of law as it is and sociological,
because it expects that law should function to meet the ends of society. Thus in his view, realist
school is merely a branch of sociological jurisprudence and a method of scientific and rational
approach to law.9

Criticism of American Realist School:

1. The realist approach to jurisprudence has evoked criticism from many quarters. The
critics allege that the exponents of realist school have completely overlooked the
importance of rules and legal principles and treated law as an assemblage of unconnected
court decisions. Their perception of law rests upon the subjective fantasies and life
experience of the judge who is deciding the case or dispute. Therefore there can’t be
certainty and definiteness about the law. This is indeed overestimating the role of judges
in formulation of the laws. Undoubtedly, judges do contribute to law-making to a certain
extent but it cannot be forgotten that their main function is to interpret the law.
2. Another criticism so often advanced against realists is that they seem to have totally
neglected that part of law which never comes before the court. Therefore it is erroneous
to think that law evolves and develops only through court decisions. In fact a great part of
the law enacted by legislature never comes before the court.
3. The supporters of realist theory undermine the authority of the precedent and argue that
case law is often made ‘in haste’, without regard to wider implications. The courts
generally give decisions on the spot and only rarely take time for consideration. They
have to rely on the evidence and arguments presented to them in court, and do not have
access to wider evidence such as statistical data, economic forecasts, public opinion,
survey etc.
4. Realist school has exaggerated the role of human factor in judicial decisions. It is not
correct to say that judicial pronouncements are the outcome of personality and behavior
of the judges. There are a variety of other factors as well which has to take into
consideration while reaching his decisions.
5. The realist theory is confined to local judicial setting of United States and has no
universal application in other parts of the world like other schools of jurisprudence.
9
https://www.studocu.com/en/document/universiti-teknologi-mara/jurisprudence-ii/lecture-notes/realist-school-
of-thought/3903912/view
 3.2. Scandinavian Legal Realism

Besides the American realist movement, a simultaneous wave of realism also developed in
Sweden which was pioneered by Professor Hagerstorm, Olivecrona, Alf Ross and other
Scandinavian jurists. There was, however, one material difference between the American realism
and the Swedish Realistic movement Pointing out the difference between the two, Dr. Allen
observed, "If American realism is rule skeptic, Scandinavian realism may be described as
metaphysical skeptical According to Alf Ross, legal notions must be interpreted as conceptions
of social reality, that is behaviour of men in society and nothing else'. There is no place for a
priori pre-conceptions for which there is no scientific basis. Professor Olivecrona considered law
as a 'set of social facts'. Thus the Scandinavian realists discard from law all a priori notions of
natural law, abstract conceptions and idealism because they are all purely theoretical precepts
without any practical utility. Supporting this contention of Olivecrona, Professor Ross also
projected a view that law in all its forms is a social reality devoid of doctrinal conceptions like
morality, idealism, nature law and theoretical (metaphysical) conceptions such as right, duty
sovereignty etc which formed the core of analytical school of jurisprudence in England'.10

According to Bodenheimer, Scandinavian realism differs from the American realist school in two
major aspects, namely, (1) it is more speculative in approach to legal problems, and (2) it does
not devote as much attention to psychological behaviour of Judges as the American realists do.
However, both adopt an empiricist attitude towards law and life and give social effects of law
with emphasis on judicial decisions more weight to the. The contribution of Hagerstorm to the
realist school of jurisprudence may briefly be summarised as follows-

Axel Hagerstrom (1868-1939)

Hagerstorm is considered to be the founding father of the Realist movement in Sweden He was a
Professor of Philosophy in the Upsala University and was greatly influenced by the legal
philosophy of his contemporary jurists, particularly that of Olivecrona and Ross. He rejected the
notions of right-duty relationship and the theory of legal obligation because they do not have any
objective basis. For him, these are merely psychological notions. He also denounced the notions
of good or bad as they simply represent the subjective attitude of approbation or disapprobation

10
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1829163
towards certain facts or situations He emphatically stated that idealism in law is a matter of
personal evaluation which cannot be subjected to any scientific process of examination
Therefore, it is futile to probe into the "ought aspect of law and the jurists must confine
themselves to the study of actual functioning of law in the present-day society.

Features of Scandinavian Realism

 Reality can be discovered and analyzed by investigating of the fundamental facts of the
legal system. Metaphysical speculation should be rejected.

 Jurisprudence must be a natural science based on empiricism. Assertions without proof

are non-sense. Hence, Jurisprudential propositions which cannot be verified are
unacceptable.

 Morality is created by law. Law is not created by morality.

 Natural law is an illusion and jurisprudential arguments derived from it are unacceptable.

 Law is determined by social welfare which includes minimum requirements of material

life, security of person, property and freedom of action.

 Law can be understood in terms of psychological responses to groups of stimuli.

 Values such as 'goodness' are no more than the embodiment of reactions expressing
approval of a stimulus.

There Scandinavian realists parcelled American Realist movement while presenting a more
sceptical challenge to legal reasoning and discourse. The approach was simple and they wanted
to get rid of thinking about law of all the mystifying references to abstract concepts and
metaphysical entities.

Friedmann has summarised the contribution of Scandinavian realists jurisprudence and observed
that Swedish realists have demonstrated that any legal order must be conditioned upon certain
scale of values, which can be assessed not in absolute terms but with regard to social needs
changing with time notions and circumstances as the law is directed to certain ends. Unlike the
American realists, the Scandinavians are concerned with the theoretical working of the legal
system as a whole
 4. Relation between Historical & Realist School & their Present
Scenario.

4.1. Relationship between Historical & Realist School of Jurisprudence

Realist school differs from Historical school as according to Savigny laws are found or
discovered, not made. It can’t be made artificially like the invention of an object but Realist
school believes that laws are made by the judges or Juristic persons. Historical school is
"discovered by humans through the use of reason and choosing between good and evil”.

According to Historical School, Law is found on the basis of consciousness, customs and beliefs
of the people but the Realist School has a different view in this aspect as according to it, The
entire emphasis of this school is centered around the judge, the law is what judges decide and as
a central feature of Realist School is “Law is what courts do and not what they say.

One of the basic features of Realism is that Law is a means to social ends, and every part of it
has constantly to be examined for its purpose and effects, and to be judged in the light of both
and their relation to each other. Society changes faster than law and so there is a constant need to
examine how law meets contemporary social problems, and in line with that one of the features
of Historical School by Savigny says that Law is like language which eventually grows. The
realists also introduced studies of case law from the point of view which distinguished between
rationalization by a judge in conventional legal terminology of a decision already reached and
the motivations behind the decisions itself.

Among schools of jurisprudence, the Historical School is like a poor and slightly eccentric
relation. Everyone is polite to it, and no one explicitly disowns it, but no one really takes it
seriously. Some writers mention its contribution to historical scholarship or its role in building up
the intellectual life of nineteenth century German universities. Others have found it a forerunner
of sociological jurisprudence on the one hand and Nazism on the other.

The basic tenet of the school is that law in its essence is not something imposed on a community
from above or from without, but is an inherent part of its ongoing life, an emanation of the spirit
of the people. Savigny, in the little book that is taken as the foundation document of the school,
puts the matter this way:

In the earliest times to which authentic history extends, the law will be found to have
already attained a fixed character, peculiar to the people, like their language,
manners, and constitution. Nay, these phenomena have no separate existence, they
are but the particular faculties and tendencies of an individual people, inseparably
united in nature, and only wearing the semblance of distinct attributes to our view.
That which binds them into one whole is the common conviction of the people, the
kindred consciousness of an inward necessity, excluding all notion of an accidental
and arbitrary origin.
In later works, Savigny was to use the term Volksgeist, spirit of the people, to designate what he
regarded as the source of law. The German word is more evocative than the translation, so
commentators have tended to leave it in place, and I shall do the same.

Of course, the Volksgeist carries a mystique that is not reducible to learning by experience.
Through it law is traced back to a people's sense of its identity and of its own particular ways of
doing things. It is the extravagant sweep that Savigny claims for this mystique that has brought
forth the most telling criticisms to which his Historical School has been subjected by practical-
minded English and American jurists. Here is how John Chipman Gray states the most obvious
objection:

By the law of Massachusetts, a contract by letter is not complete until the answer of
acceptance is received. By the law of New York, it is complete when the answer is
mailed. Is the common consciousness of the people of Massachusetts different on this
point from that of the people of New York?... In truth, not one in a hundred of the
people in either state has the slightest notion on the matter.
Savigny meets this objection by claiming that judges and legal scholars work out the technical
details on behalf of the people. Gray points out that the sophistication and eclecticism of legal
scholars make this argument untenable:11

Furthermore, a lot of twentieth century jurisprudence shows how some law aims at actually
changing public attitudes and what Karl Llewellyn calls "folkways" by deploying incentives and
disincentives. I believe that public attitudes toward both race segregation and abortion have been
changed in this way during my own time. Finally, it has been pointed out that in Egypt in 1883,
Japan in 1898, and Turkey in 1926, longstanding legal traditions were thrown overboard and

11
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1874&context=law_faculty_scholarship
replaced by Civil Codes imported almost verbatim from Europe. There is no indication that these
foreign codes do not serve the ongoing life of the peoples of these countries at least as well as the
traditional legal systems that grew out of their historical consciousness. In fact, they probably
serve the ongoing lives of their women a good deal better

It is possible to present the tenets of the Historical School in a straightforward practical form.
Law is part of the culture of society. Different peoples have different laws just as they have
different styles of clothing and different favorite foods. Legal enactments can nudge the culture
in one direction or another, but if the culture rejects them firmly enough they will fail of their
purpose.

Competing theories, therefore, are not like competing philosophical theories, which all aim at a
unitary truth. So if one philosopher says essence is prior to existence, and another says existence
is prior to essence, we know that at least one of them is wrong. But when Holmes says law is a
prediction of what judges will do in fact, and Hart says law is a system of primary and secondary
rules, " they may both be right or at least partly right. So when I propose a new look at the
Historical School of jurisprudence, I am not suggesting that it should displace any of the other
schools on the market. What I am suggesting is that it provides explanations and critiques in a
number of cases where alternative schools fail to do so.

4.2. Historical School in the Present Indian Scenario

The Indian independence brought in its wake a new era in the development of Indian
jurisprudence with emphasis on justice, equality, liberty individual freedoms and rights The
Preamble to the Constitution along the chapters on fundamental rights, fundamental duties and
directive principles of state policy constitute the core of Indian constitutional philosophy. The
insertion of word secular, unity' and integrity etc. by the Constitution (Forty-second) Amendment
Act 1976 makes India a secular state maintaining complete neutrality in matters of religion. The
Constitution guarantees constitutional freedom of religion to all persons and does not assign
special position to any particular religion. Secularism as a positive concept of all religion implies
complete tolerance, impartiality and equal protection of the interests of all religion.

It is rather unfortunate that secularism is being discriminately misused by vested interests in

time. These vested interests try to woe the people making false promises of conferring
benefits and
advantages to them. It is irony of the fate that the British Rulers adopted the policy of ‘divide and
rule’ to retain their power, but such vested interests are trying to divide many more Indian
communities leading towards disintegration the country only for the sake of retaining power or
attempting to assume power by hook or crook. Expressing serious concern for such an
unwelcome trend, Justice PN Bhagwati, CJI of the Supreme Court in the case of Pradeep Jain v.
Union of India, inter alia observed:

We find today that the integrity of the nation is threatened by divisive forces of
regionalism, linguism, communalism and regional and linguistic and communal
loyalties are gaining ascendancy in national life seeking to destroy national integrity,
………. it is unfortunate that many in public life tend to overlook, sometimes out of
ignorance and sometimes deliberately, with a view to promoting self-interest that
national interest must prevail over any other ulterior considerations. We should not
encourage fissiparous tendencies.
In the ultimate analysis, it may be stated that the modern Indian jurisprudence has a glorious
historical past embedded in the ancient scriptures and Hindu Codes Therefore, historical
approach to the study of modern Indian Law and legal system is relevant even to this day in
order to appreciate its evolution and various phases of development. It is rather disappointing
that there are no legal research worth the name and this area of study has remained more or less
neglected. The American and English legal scientist are engaged in intensive researches in their
respective national laws adopting empirical and comparative methodology in order to make law
answerable to the changing needs of the society. It is high time when Indian jurists should devote
attention to the fundamental research in exploring the untraversed historic value of the Indian
law.

The study of jurisprudence from the historical point of view becomes more important when the
principles of existing laws are brought to bear upon the total combination of actual situation to
find solution to the problem involved. No doubt, the law Courts are bound to apply to each case
the law made by the sovereign, but the applicability of that law has to be determined on equitable
grounds keeping in view the time, place and circumstances of the cases, which can best be
possible by adopting a historical approach to law and relevant legislation.12
12
V.D.Mahajan, Jurisprudence & Legal Theory (5th ed., EBC 2015).
Perhaps the greatest contribution of historical jurisprudence to the development of Indian
jurisprudence lies in the fact that it helped in abolishing the old vestiges of discriminatory and
exploitative laws ensuring people social, economic and political justice by removing their
disabilities and incapacities. The codification of Hindu laws of marriage, divorce, adoption,
succession and guardianship, dowry prohibition, abolition of untouchability, bonded labour
assuring equality of wages for equal work etc. are some of the examples which are illustrative of
this progressive change in Indian society which has historical origin.

4.3. Realist School in the Present Indian Scenario

The legal philosophy of the realist school has not been accepted in the sub-continent for the
obvious reason that the texture of Indian social life is different from that of the American
lifestyle. The recent trends in the public interest litigation widened the scope of judicial activism
to a great extent but the judges have to formulate their decisions when the limits of constitutional
frame of the law by using their interpretative skill. In other words the judges in India cannot
ignore the existing legislative statutes and enactments. They have to confine their judicial
activism within the limits of the statutory law. They are free to overrule the previous decisions on
the ground of inconsistency, incompatibility, vagueness, change of conditions etc. Thus the
Indian legal system, though endows the judges with extensive judicial discretion, does not make
them omnipotent in the matter of formulation of law. The legislative statutes and enactments,
precedents and the rules of equity, justice and good conscience are indispensable part of the
judicial system in India. The constitution of India itself provides ample scope for the judges to
take into consideration the hard realities of socio-economic and cultural life of the Indian people
while dispensing social and economic justice to them.13

In short, it may be reiterated that though Indian jurisprudence does not formally subscribe to the
realist’s legal philosophy, it does lay great stress on the functional aspect of the law and relates
law to the realities of social life. Again, it refuses to accept the realist’s view that Judge-made
law is the only real ‘law’ and other laws are worthless, but at the same time it does not
completely ignore the role of Judges and the lawyers in shaping the law. Thus it would be
correct to say that
13
https://www.academia.edu/5635493/Judicial_Activism_The_Indian_Version_of_American_Realism
the Indian legal system has developed on the pattern of sociological jurisprudence as evinced by
the post-independence socio-economic legislation but it considers doctrine of realism alien to
Indian society which has a different life-style and social milieu.

Undoubtedly, the Indian judges do have the liberty of interpreting law in its contextual and social
setting keeping in view the social, economic, political, cultural, historical and geographical
variations of the Indian society. The power of review and doctrine of overruling its earlier
decisions has enabled the Supreme Court to effectuate the socio-economic contents of the
constitutional mandate through the process of judicial interpretation and use of its inherent
powers. Thus the Apex Court in Bengal Immunity Case overruled its earlier decision in
Dwarkadas v. Sholapur Spinning Co. and observed that “the Court is bound to obey the
Constitution rather than any decision of the Court, if the decision is shown to have been
mistaken”. Justifying its stand, the Court further observed that where a constitutional decision
affects the lives and property of the public and where the Court finds that its earlier decision is
manifestly wrong and injurious to the public interest, it should not hesitate to overrule the same.

Adopting the same approach Justice B.B. Gajendragadkar in Keshav Mills v. Income Tax
Commissioner14, observed that Supreme Court has inherent jurisdiction to reconsider and revise
its earlier decision if it does not serve the interest of the public good.

There are a number of cases where the rules or laws are made by the judiciary. Some of the
following cases where Supreme Court played the role of law-maker are given as below:

In Hussainara Khatoon v. State of Bihar 15, the Supreme Court has held that speedy trial is an
essential and integral part of the fundamental right to life and liberty enshrined in Article 21. In
Bihar a number of under trial prisoners were kept in various jails for several years without trial.
The court ordered that all such prisoners whose names were submitted to the court should be
released forthwith. Since speedy trial is being held to be a fundamental right guaranteed under
Article 21 of the Constitution of India. The Supreme Court considered its constitutional duty to
enforce this right of the accused person.

14
1965 AIR 1636
15
1979 AIR 1369
In Shri Ram Food and Fertilizer case, the Supreme Court directed the company, manufacturing
hazardous and lethal chemicals and gases posing danger to health and life of workmen and
people living in its neighborhood, to take all necessary safety measures before reopening the
plant.

In M.C. Mehta v. State of Tamil Nadu16, it has been held that the children cannot be employed
in match factories which are directly connected with the manufacturing process as it is a
hazardous employment within the meaning of Employment of Children Act 1938. There can,
however, be employment packing process but it should be done in are away from the place of
manufacture to avoid exposure to accident. Every children must be insured for a sum of Rs.
15,000/- and premium to be paid by employer as a condition of service.

Dealing with a case pertaining to water pollution in case of Vellore Citizens Welfare Forum v.
Union of India17, the Supreme Court directed 162 tanneries in Tamil Nadu to be closed because
these were polluting the air and the water around the area where they were operating and the
water had been unworthy for drinking.

In M.C. Mehta v. Union of India18, with a view to preserve environment and control pollution
within the vicinity of tourist resorts of Badkhal and Surajkund the court directed the stoppage of
mining activities within two kilometer radius of these two tourist resorts.

In a significant judgment in Vishakha v. State of Rajasthan 19, the Supreme Court has laid
down exhaustive guidelines for preventive sexual harassment of working women in place of their
work until any legislation is enacted for this purpose.

16
AIR 1997 SC 699
17
AIR 1996 SC 2715
18
1987 SCR (1) 819
19
(1997) 6 SCC 241
 Conclusion
Savigny was the father of Historical school. He argued that Law is like language and have a
national character. Law is not universal. While Puchta improved the ideas of Savigny and argued
that both state and people are equally important and source of law. As we know that American
realism is a combination of the analytical positivism and sociological approaches. Realists define
law as generalized prediction of what the courts will do. Realists believe that certainty of law is a
myth and its predictability depends upon the set of facts which are before the court for decision

In this Article, I have defended the realists' rejection of legal rules and have attempted to render
at least intelligible their decision and prediction theories of law. Rather than being the
embarrassment that the philosophers have made it out to be, realism is, I believe, a respectable
competitor in the jurisprudential marketplace. That does not mean, however, that better
approaches cannot be imagined. The realists share with both natural law theorists and with Hart
(as I have interpreted him) a commitment to a conception of legal rules as giving people
objective reasons for action. It is for this reason that realism denies that these rules exist. But
even if this competitor to legal realism succeeds, its success is itself evidence of legal realism's
importance as a theory of law. For it is only in the light of the realists' sustained attack on legal
rules, traditionally understood, that the plausibility of a nontraditional conception
emerges..American Legal Realism is often remembered for its challenge to the Classical legal
claim that orthodox legal institutions provided an autonomous and self-executing system of legal
discourse untainted by politics.

What I call working jurisprudence has to provide answers to two questions: Why do we have
some laws and not others? And how can I tell good laws from bad? These questions can be
articulated in other ways, but one way or another, they need to express the twofold function of
the enterprise explanation and critique. Competing theories, therefore, are not like competing
philosophical theories, which all aim at a unitary truth. So if one philosopher says essence is
prior to existence, and another says existence is prior to essence, we know that at least one of
them is wrong. But when Holmes says law is a prediction of what judges will do in fact, and Hart
says law is a system of primary and secondary rules, " they may both be right or at least partly
right. So when I propose a new look at the Historical School of jurisprudence, I am not
suggesting that it should displace
any of the other schools on the market. What I am suggesting is that it provides explanations and
critiques in a number of cases where alternative schools fail to do so.
 Bibliography

 Websites
 https://blog.ipleaders.in/
 https://newindialaw.blogspot.com/

 Books
 Hijam N.K Singh, Jurisprudence Explained (Capital Law House, 1999).
 V.D.Mahajan, Jurisprudence & Legal Theory (5th ed., Eastern Book Company 2015).
 Friedmann, Legal Theory (Stevens & Sons Ltd. 1960).
 Michael Freeman FBA, Lloyd’s Introduction to Jurisprudence (Sweet & Maxwell 2009).

 Journals and Documents

 https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1874&context=law_faculty_scholars
hip
 https://www.academia.edu/13945107/The_Explorative_Study_of_the_Realist_School_of_Jurisp
rudence_in_Indian_Context
 https://pdfs.semanticscholar.org/1317/152420a59d066d493f5f564ff6b411aee2bc.pdf