Jurisprudence LLB 301

JURISPRUDENCE
LLB- 3rd Semester Notes
Paper Code: LLB-301

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Contents
Unit-I ..................................................................................................................................................... 2
Jurisprudence.................................................................................................................................... 2
Natural Law School ......................................................................................................................... 18
Unit-II .................................................................................................................................................. 35
Analytical Legal Positivism .............................................................................................................. 35
'Kelsen's Pure theory of law' ........................................................................................................... 46
Unit-III ................................................................................................................................................. 56
Historical School ............................................................................................................................. 56
Sociological School .......................................................................................................................... 64
UNIT-IV ............................................................................................................................................... 73
Realist school .................................................................................................................................. 73
Law and morality ............................................................................................................................ 86
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Unit-I
Jurisprudence
1. “Modern jurisprudence trenches deeply on the field of Social

Science and of Philosophy.”
In the above statement, discuss the nature, scope and utility of the
study of Jurisprudence. 25
Or
Explain the nature of jurisprudence. Also discuss the utility of study
of jurisprudence. 12½+.12½=25
Ans.-
According to Paton, modern jurisprudence is mostly based on social sciences and

philosophy since it examines the historical aspects of law to address the chaos
created by conflicting legal systems. Describing jurisprudence as a “lawyer’s
extraversion”, Julius Stone is of the opinion that the objective of jurisprudence is
to view and examine law from the eyes of disciplines other than law. Roscoe
Pound states that the subjects of jurisprudence, ethics, economics, politics and
sociology might be quite distinct at the core, however, at a certain point they
overlap with each other. He further adds on that it is impossible to understand
their respective cores without studying this particular overlapping with other
social sciences. According to him, all social sciences must especially co-work with
jurisprudence.
Nature of Jurisprudence
Law can never be static. Law has to keep changing according to the
developments in society. In the same manner, the scope of the law also cannot be
static.
The views of Austin and Salmond on the study and nature of law – Austin says
that law is the aggregate of the rules set by men as political superiors or
sovereign to men as politically subject. According to him, Law is the command of
the sovereign. He further said that there are three elements in law-
a) command
b) duty
c) sanction
But, Salmond defined law as the body of principles and applied by the State in
the administration of justice.
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Holland regarded jurisprudence as the formal science of favorable laws. He

called the law an analytical science and not a material science.
Scope of Jurisprudence
Jurisprudence is a broad subject, and its utility cannot be undermined. It has a

far-reaching scope –
The researches in jurisprudence contribute to the development of society by

having implications in the legal, political and social school of thoughts.
Jurisprudence also contains educational value. It aids in the logical analysis of

the legal concepts, and it sharpens the logical techniques of lawyers.
The discipline of jurisprudence helps to understand the law in its proper context
by considering the needs of the society and taking note of the advances in its
related fields.
It can teach to look for answers to a new legal problem that can be found by a
consideration of present social needs and not in the wisdom of the past.
Jurisprudence throws light on the basic ideas and fundamentals of law. It helps
to understand the nature of the law, its concepts, utility, etc. It helps understand
the law from the grass-root level in a logical way
Utility and Importance of Jurisprudence
Many times it is said that jurisprudence being an abstract and theoretical

subject, has no use in the day-to-day world. It only contains theories to study and
adopt with no practical implications. But it is not correct or appropriate to make
such a statement. Its utilities are as under:
1. Salmond attracted everyone’s attention to the fact that jurisprudence has its
inherent interests like other subjects of law. For so long, the research work done
on jurisprudence may have their effect on contemporary socio-political thought or
idea.
2. Jurisprudence also has its practical applicability in one way or the other in the
field of law. It helps advocates in practice to apply and adopt different legal
theories whenever required.
3. It is considered as a secondary or subsidiary subject but has a high value in

educational institutions. Jurisprudence is an essential subject for the study of
law. The logical analysis by jurists of legal concepts and theories broadens the
outlook of advocates and sharpens their sensible technique to look a case
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effectively. It helps lawyers overlook their rigidness and formal nature and
trains them to work and focus on social realities.
4. Holland observed, “the ever-renewed complexity of human relations call for

the increasing complexity of legal details, till a merely empirical knowledge of
law becomes impossible.” From this, we can derive that jurisprudence throws
light on the basic ideas and the fundamental principles of law in society. This is
the reason it is considered as “the eye of law.”
5. The study of jurisprudence helps students, interns, and all practicing

advocates in developing the correct thinking and prepares them for an honest life
ahead. The knowledge of law also helps them to face every necessity related to
human affairs boldly and courageously.
2. “Jurisprudence in indispensably related with other social sciences.”

Critically examine this statement in the light of development of
jurisprudence.
Ans.-
Relation of Jurisprudence with other social sciences
Jurisprudence is studying law, law is regulating the conduct of individuals and

individuals are living and forming societies. Therefore, law is an important social
phenomenon which is making jurisprudence as a Social Science.
However, there are several other Social Science, like Ethics, Political Science,
Sociology, Psychology etc. Now, it is logical that these social science should be
interlinked with each other at some point.
Moreover, these social sciences could not studied in isolation. In other words,
none of these sciences can be understand with having a fair knowledge of others.
Jurisprudence, being a social science is, in fact, related with other social sciences.
Jurisprudence and Sociology
Jurisprudence is the study of law and sociology is the study of society and it is
also discusses law but from a different stand-point. Therefore there is a link
between jurisprudence and sociology.
Jurisprudence is concerned with legal rules that actually exists, however,

sociology is studying the effectiveness of those legal rules and their impacts on
society.
Jurisprudence and Politics

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Politics studies the principles responsible for the governmental organization.

Whereas, jurisprudence is analyzing those principles.
Moreover, in a political society there exist rules for the regulation of human
being conduct which are the subject-matter of jurisprudence. Hence, there is a
close connection between the two.
Jurisprudence and Ethics
Ethics is the science of human conduct. It projects an ideal human behavior, in

the light of which it suggests a course of conduct for individuals living in
societies. Whereas, jurisprudence is discussing the imperative rules, actually
existing in the societies. However, those rules are also connected with the
behavior of human beings in societies.
Therefore, both of the science are interrelated.
Due to the close relationship and interdependency of these sciences, there

emerged a branch of jurisprudence known as Ethical Jurisprudence, discussing
the ideal human behavior or which is the study of law as it ought to be.
Jurisprudence and Psychology
Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is

discussing law.
Law is aimed to be followed by individuals, and individuals can only follow law if
they intend to follow.
Therefore, intention is the very basic element behind every law, and particularly
in criminal law the concept of mens rea is having immense importance.
Therefore, jurisprudence and psychology both are closely inter-related human
sciences.
Jurisprudence and Economics
Economics is the science of wealth and jurisprudence is the science of law.
Economics studies the production and distribution of wealth and law is

responsible for establishing a fair distribution of wealth through rules.
Moreover, studies show that economic factors are responsible for the increasing
rate of criminal activities, which again brings the two in close relation with each
other.
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Furthermore, economics aims at improvement of the standards of human lives

whereas, this could not possible if a peaceful environment is not available which
is possible through the application of laws.
Therefore, there is a close relationship between the two.
Jurisprudence and History
History is the scientific narration of the past events, whereas, jurisprudence is

the science of law.
Law has not come into existence overnight, as a matter of fact, it has developed
through ages.
History helps jurisprudence in digging out the origin and evolution of different
legal rules.
Owing to its importance, there developed a separate branch of jurisprudence,

known as Historical Jurisprudence. Therefore, it may concluded that there is a
close relation between jurisprudence and history.
3. Jurisprudence is a certain type of investigation into law, an

investigation of an abstract general and theoretical nature which
seeks to lay bare the essentials of law and legal systems. In the light
of the above, discuss the nature and scope of jurisprudence.
Ans.-
Scope of Jurisprudence
Jurisprudence is the name given to a certain type of investigation into Law, an

investigation of an abstract, general and theoretical nature which seeks to lay
bare the essential principles of law and legal system. Jurisprudence by contrast
does not constitute a set of rules, is not derived from authority and is without
practical application. The method of inquiry apt for jurisprudence will not
necessarily be used in the study and practice of ordinary or typical legal subjects.
In Jurisprudence we are concerned with reflecting on the nature of legal rules,
on the underlying meaning of legal concepts and on the essential features of legal
systems. Thus in 'Law' we Iook for the rules relevant to the given situation
whereas in 'Jurisprudence , we ask what it is for a rule to be a legal rule and
what distinguishes 'Law' from 'morality’,’ etiquette’ and other related
phenomena. Another branch of jurisprudence consists of the analysis of legal
concept. The Law of torts and contracts is concerned with different rights which
one person may have against another. Jurisprudence on the other hand, studies
the meaning of the term "right" in the abstract and seeks to distinguish the
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various kinds of rights which are in theory possible under a legal system. As to
the precise scope of jurisprudence there is no unanimity of opinions. The
controversy is accentuated by the fact that the different authorities attribute
different meanings and varying premises to law. However, it is in the nineteenth
century the field of jurisprudence has been widened because of what Holmes
spoke felt necessities of the people. In the modern age jurisprudence has been
treated as a science of social control of human conduct. This idea invariably
widened the scope of -this subject. Hence for an integrated understanding of
jurisprudence it is essential to understand jurisprudence from all angles. There
are mainly four views on this subject which are popularly known as schools of
legal theory. These are-
(1) Philosophical,
(2) Analytical,
(3) Historical, and
(4) Sociological.
Philosophical Jurisprudence-Exponents of this school of jurisprudence were

mainly concerned with the relations of law to some set of idea or ideals outside
the law. Among Such ideals are- that the purpose of society is to make men
virtuous and such is the purpose of law that the end of the law is to maintain
Justice in society, that legal restrictions can be Justified only in so far as they
promote the freedom of individual in society (Kant), that the end of law is to
promote the greatest happiness of the greatest number (Bentham)." In short, this
school is primarily concerned with principles of ultimate right and wrong.
Analytical Jurisprudence.-Those thinkers of jurisprudence who regard law as

a command emanating from tl1e governn1ent or from the State as the political
organisation of a society and who treat the relation of law to the State as its most
important aspect, may be grouped: in the analytical school of jurisprudence.
They are mainly concerned with the definition of law. In fact the purpose of
analytical jurisprudence is to analyse without reference either to their historical
origin and development or to their ethical significance or validity of the first
principles of the law. John Austin is the leading exponent of this school.
Historical Jurisprudence.- Writers of Historical Jurisprudence take the social

institutions at a time sequence with primacy given to the primitive legal
institutions of society. The German Historical School of Savigny and Puchta
developed a conception of the origin and growth of law on the analogy of
language. The historical school gave a theoretical justification for those vast
studies of legal history which in Europe England and even America were
consummate during the nineteenth century.
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Sociological Jurisprudence:-The sociological jurisprudence is chiefly

concerned with the relations of law to contemporary social institutions. It is still
in the making. Jurists like, Pound, Ihering Enrlich have adopted this method for
the study of legal philosophy. According to these jurists, the essential
characteristic of law is that it shall prevail, that it shall actually represent the
common interactions of men in their daily life.
This classification of jurisprudence provides a rough classification of ideas and it

is not proper to limit the scope of jurisprudence on the basis of this classification.
With the changes in the social, political and economic outlook and with the
changes in the conditions of individual and national life much may come under
the province of this science of law, namely, jurisprudence. Thus, we can say that
whatever the nature of law or the working of authority, or the analysis of legal
concepts, jurisprudence should not confine itself to logic. Legal theory is
concerned with law as it exists and functions in the society. The way in which
law is created and enforced, the influence of social opinions, the effectiveness of
law and the part played by sanctions are all points where jurisprudence meets
other disciplines such as sociology, psychology and so forth. One task of
jurisprudence is to link law with other disciplines and to help to locate it within
its wider social context. So, in analysing legal concepts, we must try to present
them against a background of social development and changing economic and
political attitude.
4. Define Jurisprudence. Discuss the nature and scope of

Jurisprudence. 12+8+5=25
Or
Define Jurisprudence. Discuss its nature and scope. Also, highlight
some of the difficulties in defining Jurisprudence. 12+8+5=25
Ans.-
What is Jurisprudence?
There is no universal or uniform definition of Jurisprudence since people have

different ideologies and notions throughout the world. It is a very vast subject.
When an author talks about political conditions of his society, it reflects that
condition of law prevailing at that time in that particular society. It is believed
that Romans were the first who started to study what is law.
Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in

Law. -Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.

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Bentham was the first one to analyze what is law. He divided his study into two
parts:
1. Examination of Law as it is- Expositorial Approach- Command of

Sovereign.
2. Examination of Law as it ought to be- Censorial Approach- Morality of
Law.
However, Austin stuck to the idea that law is command of sovereign. The
structure of English Legal System remained with the formal analysis of law
(Expositorial) and never became what it ought to be (Censorial).
J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s

extraversion. He further said that it is a lawyer’s examination of the percept,
ideas and techniques of law in the light derived from present knowledge in
disciplines other than the law.
Thus, we see that there can be no goodness or badness in law. Law is made by
the State so there could be nothing good or bad about it. Jurisprudence is
nothing but the science of law.
Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes
Austin- He said that “Science of Jurisprudence is concerned with Positive Laws

that is laws strictly so called. It has nothing to do with the goodness or badness
of law.
This has two aspects attached to it:
1. General Jurisprudence- It includes such subjects or ends of law as are

common to all system.
2. Particular Jurisprudence- It is the science of any actual system of law or any
portion of it.
Basically, in essence they are same but in scope they are different.
Salmond’s Criticism of Austin

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He said that for a concept to fall within the category of ‘General Jurisprudence’,
it should be common in various systems of law. This is not always true as there
could be concepts that fall in neither of the two categories.
Holland’s Criticism of Austin
He said that it is only the material which is particular and not the science itself.
Holland’s Definition- Jurisprudence means the formal science of positive

laws. It is an analytical science rather than a material science.
1. He defined the term positive law. He said that Positive Law means the
general rule of external human action enforced by a sovereign political
authority.
2. We can see that, he simply added the word ‘formal’ in Austin’s definition.
Formal here means that we study only the form and not the essence. We
study only the external features and do not go into the intricacies of the
subject. According to him, how positive law is applied and how it is
particular is not the concern of Jurisprudence.
3. The reason for using the word ‘Formal Science’ is that it describes only the
form or the external sight of the subject and not its internal contents.
According to Holland, Jurisprudence is not concerned with the actual
material contents of law but only with its fundamental conceptions.
Therefore, Jurisprudence is a Formal Science.
4. This definition has been criticized by Gray and Dr. Jenks. According to
them, Jurisprudence is a formal science because it is concerned with the
form, conditions, social life, human relations that have grown up in the
society and to which society attaches legal significance.
5. Holland said that Jurisprudence is a science because it is a systematized
and properly coordinate knowledge of the subject of intellectual enquiry. The
term positive law confines the enquiry to these social relations which are
regulated by the rules imposed by the States and enforced by the Courts of
law. Therefore, it is a formal science of positive law.
6. Formal as a prefix indicates that the science deals only with the purposes,
methods and ideas on the basis of the legal system as distinct from material
science which deals only with the concrete details of law
7. This definition has been criticized on the ground that this definition is
concerned only with the form and not the intricacies.
Salmond- He said that Jurisprudence is Science of Law. By law he meant law of

the land or civil law. He divided Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines.

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2. Specific- This deals with the particular department or any portion of the
doctrines. ‘Specific’ is further divided into three parts:
1. Analytical, Expository or Systematic- It deals with the contents of an
actual legal system existing at any time, past or the present.
2. Historical-
It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws
as it ought to be. It deals with the ‘ideal’ of the legal system and the purpose
for which it exists.
Criticism of Salmond- Critics says that it is not an accurate definition.

Salmond only gave the structure and failed to provide any clarity of thought.
Keeton- He considered Jurisprudence as the study and systematic

arrangement of the
general principles of law. According to him, Jurisprudence deals with the

distinction between Public and Private Laws and considers the contents of
principle departments of law.
Roscoe Pound- He described Jurisprudence as the science of law using the

term ‘law’ in juridical sense as denoting the body of principles recognized or
enforced by public and regular tribunals in the Administration of Justice.
Dias and Hughes- They believed Jurisprudence as any thought or writing

about law rather than a technical exposition of a branch of law itself.
Conclusion- Thus, we can safely say that Jurisprudence is the study of

fundamental legal principles.
Scope of Jurisprudence-
After reading all the above mentioned definitions, we would find that Austin was
the only one who tried to limit the scope of jurisprudence. He tried to segregate
morals and theology from the study of jurisprudence.
However, the study of jurisprudence cannot be circumscribed because it includes

all human conduct in the State and the Society.
Approaches to the study of Jurisprudence-
There are two ways
1. Empirical-Facts to Generalization.
2. A Priori- Start with Generalization in light of which the facts are examined.
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Significance and Need of the Study of Jurisprudence
1. This subject has its own intrinsic interest and value because this is a subject
of serious scholarship and research; researchers in Jurisprudence contribute
to the development of society by having repercussions in the whole legal,
political and social school of thoughts. One of the tasks of this subject is to
construct and elucidate concepts serving to render the complexities of law
more manageable and more rational. It is the belief of this subject that the
theory can help to improve practice.
2. Jurisprudence also has an educational value. It helps in the logical analysis of
the legal concepts and it sharpens the logical techniques of the lawyer. The
study of jurisprudence helps to combat the lawyer’s occupational view of
formalism which leads to excessive concentration on legal rules for their own
sake and disregard of the social function of the law.
3. The study of jurisprudence helps to put law in its proper context by
considering the needs of the society and by taking note of the advances in
related and relevant disciplines.
4. Jurisprudence can teach the people to look if not forward, at least sideways
and around them and realize that answers to a new legal problem must be
found by a consideration of present social needs and not in the wisdom of the
past.
5. Jurisprudence is the eye of law and the grammar of law because it throws
light on basic ideas and fundamental principles of law. Therefore, by
understanding the nature of law, its concepts and distinctions, a lawyer can
find out the actual rule of law. It also helps in knowing the language,
grammar, the basis of treatment and assumptions upon which the subject
rests. Therefore, some logical training is necessary for a lawyer which he can
find from the study of Jurisprudence.
6. It trains the critical faculties of the mind of the students so that they can
dictate fallacies and use accurate legal terminology and expression.
7. It helps a lawyer in his practical work. A lawyer always has to tackle new
problems every day. This he can handle through his knowledge of
Jurisprudence which trains his mind to find alternative legal channels of
thought.
8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning
of the laws passed by the legislators by providing the rules of interpretation.
Therefore, the study of jurisprudence should not be confined to the study of
positive laws but also must include normative study i.e. that study should
deal with the improvement of law in the context of prevailing socio-
economic and political philosophies of time, place and circumstances.
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9. Professor Dias said that ‘the study of jurisprudence is an opportunity for the
lawyer to bring theory and life into focus, for it concerns human thought in
relation to social existence’.
5. "Jurisprudence is the first of the social sciences to be born."
Elucidate the above statement referring to various definitions given
by renowned jurists. 25
Ans.-
Jurisprudence is the study of fundamental legal principles, that may be
a) philosophical
b) scientific
c) historical.
The law civil, criminal, constitutional, administrative, military must have some
foundation. What is based on wisdom is profound and lasting; what is based on
justice will be respected for ages; what bespeaks of truth will withstand all
obstacles. But what is based on no higher than convenience will not endure long;
what suits only particular class or section of the citizens will surely breed
dissatisfaction, antagonism and lack of peace; what is unjust is bad law and will
not be respected though it may have to be obeyed.
In French, jurisprudence is called ‘La Philosophie De Droit’, that is the

philosophy of rights, that is of law-in the abstract sense of the term ‘law’; in
Germany we have the term “Rechtsphilosophie” that is the philosophy of rights,
that is of law in the abstract sense,; in India we may well have the term Vidhi
Shastra that is the knowledge of law, in the abstract sense of the term ‘law’.
The word jurisprudence is not generally used in other languages in the English
sense. In French, it refers to something like ‘case law’. The evolution of society is
of a dynamic nature and hence the difficulty in accepting a definition by all. New
problems and new issues demand new solutions and new interpretations under
changed circumstances. However, scientific inventions have brought the people
of the world closer to each other which help the universal ion of ideas and
thoughts and the development of a common terminology. In spite of difficulties,
an approach which may enable the reader to have an idea of the subject and to
grasp the fundamentals is always possible.
Wurzel has said that jurisprudence was the first of the social sciences to be born.
Its province has been determined and re-determined because the nature of the
subject is such that no description of its scope can be regarded as final.
The Greeks did not develop any systematic science of legal relations. For the
Greeks, jurisprudence, generally speaking, was a branch of theology with natural
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law as its basis. The Romans also gave a vague and wide meaning to the term
‘jurisprudence.’ Ulpian termed jurisprudence as observation of things or divine,
the knowledge of the just and unjust. Thus, at that time was mixed up with
theology. For St. Thomas Acquinas jurisprudence became a branch of theology. It
was as a result of the reformation and renaissance that the process of separation
of jurisprudence from theology was initiated. Kant formulated the idea of legal
justice and undermined the eighteenth century law of nature school by showing
that it was not possible to do by pure reason what that sought to do. Bentham
strengthened the trend and free jurisprudence from theology; he did speak of
expository and censorial jurisprudence. He said that law is binding on man so far
as temporal sanction can make it effective, even if it is contrary to the law of
God.
In England, the expression had been in use throughout the early formative
period of common law, but as meaning little more than the study of or skill in the
law. It was not until the time of Bentham and his followers like Austin in the
early part of 19th century that the term began to acquire a technical meaning
and significant among English lawyers.
By the end of the 19th century, changing human affairs had brought about an
ever increasing preoccupation with conflicting ideologies and troubled social
conditions which resulted in a decisive shift in outlook. As a result to this
change, jurisprudence today is envisaged in an immeasurably broader and more
sweeping sense than that in which Austin understood it.
Sometimes terms like medical jurisprudence, architectural engineering

jurisprudence and environment jurisprudence etc. are used. When used in this
sense, the phrase refers to treatise dealing with that part of knowledge which is
useful in applying legal doctrines or principles applicable to or useful for medico-
legal cases or architectural or engineering or environment cases.
Introduction. Sec. 1. Jurisprudence And Other Social Sciences
Jurisprudence was the first of the social sciences to be born. Of all men, judges
and legislators were the first that found themselves compelled to seek a clear
and conscious knowledge of the principles according to which human beings live
together. Such knowledge of the foundations of society was first acquired by
learning to distinguish right and wrong. This preceded by a long way any merely
theoretical curiosity and was produced by the necessities of life. As soon as the
unconscious and unorganized coercion of custom was no longer sufficient to
regulate the acts of individuals because, having arrived at greater intellectual
independence they began to have doubts about following their impulses as
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before,3 law arose in order to avoid, or mediate between, conflicts of will,4 and
became the embodiment of the rules necessary for the regulation of human
conduct so far as they entered into the consciousness of men.
2 Cf. Code Civil, art. iv; also, Menger, "System des osterreichischen
Zivilprozesses," Sec. 11, note 2.
At first this conscious knowledge of social principles, taking the form of knowing
the law, was limited to a few subject-matters, first of all to economic needs. Next
the preservation of life and health was included,5 further, the protection of the
State and its established order; last of all came ethical requirements. In a one-
sided manner, the object aimed at was at first merely mediation between the
conflicting wills of parties. Thus primitive law was crude, imperfect, and clinging
to mere externals.6 The most obvious things only were taken hold of. As the
comprehension of law advanced, however, it became necessary to go beyond
considering merely the external form assumed by conflicts of human wills,
3 Vierkandt, "Natur und Kult.urvolker."
4 Roscher, "System der Volkswirtschaft," vol. 1, section 16. 5 Wundt, "Ethik."
6 Comp. Jhering, "Geist des romischen Rechts," on the discrepancy between the
law as it really was and as it was formulated. - For example: the evolution of
traffic by barter gradually reduces the custom of lengthy higgling, which in the
Orient even to-day sometimes takes days. Now what an awkward way of
formulating this social tendency is the old Athenian statute prohibiting hawkers
in the marketplace from sitting down. Or another: incapable of comprehending
the true socially obnoxious element in robbery or murder, old Germanic laws
punish "lying in wait along the highway." else the legal rules would have failed
to be even approximately in accord with the real world and the causal connection
of occurrences, which are often so well concealed. Consequently the law began to
pay attention to very different phenomena of psychological and social life, and
recognized gradually that these had a close connection with those conflicts of
human wills. Thus the law began to examine, long before any later and
independent sciences, created by purely theoretical interests, took up the study
of such matters, a large number of phenomena: logical and psychological ones,
such as will, purpose, intention, declaration, error, coercion, passion; economic
ones, like estate, value, price, utility; linguistic ones, like sentences, meanings;
ethical phenomena, such as liberty, personality, honesty; political ones, like
order, public authority, etc. During the early stages of the development of law
popular notions were exclusively available for the necessary knowledge
regarding these things, and all too often law had to work with mere substitutes
for real knowledge, in the form of conceptions not thought out but obscurely felt.
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For centuries, if not for thousands of years, the law had to get along with these
as best it could.
It was but late, after law had developed into a scientific form of jurisprudence,
that a succession of other social sciences arose: such are politics, ethics,
economics, logic, individual and social psychology, philology, the history of
civilization, statistics, etc., and finally the most generalized of all these sciences,
sociology. Some of these branches of knowledge did not arise until quite recently,
while others were but lately made really fertile by a more elaborate division of
labor or the invention of new methods of work.7 Each of them treats from a
different point of view subject-matters which either are identical with those of
jurisprudence8 or are closely connected with the latter and mutually interact
with them. It is necessary for the science of law to keep in constant touch with
these sciences, else it cannot supply the needs of life and will fall behind more
and more. The rapid development of the other social sciences frequently proves
false to-day what yesterday was universally held to be true. Is it possible, for
instance, to retain in its entire extent a theory of criminal guilt built up on the
belief in individual freedom of the will, if the hypotheses of Lombroso regarding
born criminals should be substantiated, or in the face of the statistical results
that throw light on the dependence of the frequency and nature of crimes upon
certain conditions of environment?9 Must not these things affect both the courts
and the legislature? It is the business of legal science constantly to assimilate the
results of investigations in other scientific fields, to appropriate new truths
regarding the interaction of social phenomena, and to make use of the clarified
conceptions of other sciences. The preparatory work is in part done by these
sciences themselves. Within the complex of facts with which they deal law takes
up so much room that they cannot fail to look at it from their peculiar points of
view and to try their methods and results upon it. Yet, all these sciences, even
apart from the fact that they and the lawyer lack common points of departure
and convergence, treat of law only in its most general aspects. In the formation of
law they proceed at most as far as the creation of the various legal institutions
and principles; the application of law and its technical formulation are, however,
the peculiar domains of jurisprudence and are naturally never entered upon by
those other sciences. Thus the latter remain at the gate of legal science proper.
Jurisprudence itself must go to work and make their fruits available for the
administration of justice.
7 I call to mind comparative etymology, the study of the forms of landholding, or

statistics as a scientific method.
8 The law of private property deals with phenomena almost identical with the
subject-matter of economics; similarly, public law has nearly the same subject-
matter as political science.
17
9 How profoundly these new ideas have affected all schools of penology, became
very evident from the discussions and proposals at the Congress of German
Jurists in the year 1902.
This need has not hitherto been supplied with clear consciousness of purpose. It
is true that in legal history it is customary to keep in touch with other historical
sciences even when treating of the administration of law, in accordance with the
actually existing connection between legal and other social phenomena.10 It is
different, however, in practice, regarding the examination of the living law. Here
one usually turns for comparison merely to other legal branches, dealing with
matters separated in time or space, but hardly ever considers the points of view
or the results of other social sciences. Yet this.is indispensable for jurisprudence,
if one does not confine its task to merely knowing legal principles as they stand,
but wishes to understand also the reasons for their development, their
psychological character, and especially their functions, which can never be
separated from the social reaction upon them.11 For it is impossible to
understand one aspect of social life without knowing its connection with other
aspects.12
10 Social conditions in which customary law prevails are generally of the

greatest interest for historical research. At this stage legislation and
administration of justice are not very strictly distinguished.
11 For instance, the reason why, in the Civil Law as formerly in force in parts of
Germany, women were permitted to waive the provisions of the
"Senatusconsultum Vellejanum," according to which they could not be sureties,
becomes very much clearer when we remember that in consequence of the
development of the credit system this compulsory disability, which originally was
intended to benefit women, had become a troublesome obstacle to their capacity
of doing business. It was similar with regard to the prohibition of taking interest.
12 Roscher, "Volkswirtschaft," section 18.
To be sure, the transference here contemplated is far more difficult than, for
example, the science of comparative law, because here we have not a question of
comparing similarities and dissimilarities, but rather of finding hidden
connections between phenomena that are apparently quite heterogeneous.
However, the principal obstacle to the conscious introduction of new points of

view in the application of law is found in certain common notions, certain
traditional methods, which lawyers employ half unconsciously rather than with
complete comprehension of their nature. These grew up at a time when the law
still stood by itself and was simply the crystallization of popular notions; but
they are clung to instinctively, and taken altogether they constitute the peculiar
18
character of specifically legal ways of thinking. In part they are deeply founded
upon the peculiar objects of legal thought, and are the products of a course of
historical development. In part, however, they are nothing but the residue of
ideas long abandoned, which are habitually handed on like current coin without
being looked at or examined. Thereby they produce among legal thinkers a
certain feeling of self-sufficiency that prevents the growth of a desire for further
investigation, so that legal thinking is apt to be content when relatively brief
progress has been made. The desire to question further stops when certain
apparent explanations have been reached. These are characteristics which,
according to Comte, are peculiar to the metaphysical stage in the development of
a science.
It is the purpose of these inquiries to throw a little light upon these semi-obscure
regions of thought peculiar to our special science.
Natural Law School
6. Write an essay on revival of natural law school in the 20th century

with reference to the contribution of Lon Fuller. 25
Ans.-
Twentieth Century:
The revival of Natural law theories
During the end of the 19th century, we saw the revival of natural law theories
mainly for the following reasons:
a. It emerged as a backlash against legal theories that exaggerated the

importance of positive law.
b. It was felt that abstract thinking was not completely redundant.
c. Positivist theories failed to solve problems created by changed social
conditions.
d. It also led to the revival of the ideologies of fascism and natural law
theories, because at that time during the two world wars, the world
witnessed the great destruction of human life and property and the
principles of natural law were approached to achieve peace.
LOAN FULLER
The Procedural Naturalism of Lon L. Fuller
Like Finnis, Lon Fuller (1964) rejects the conceptual naturalist idea that there
are necessary substantivemoral constraints on the content of law. But Fuller,
19
unlike Finnis, believes that law is necessarily subject to a procedural morality.

On Fuller's view, human activity is necessarily goal-oriented or purposive in the
sense that people engage in a particular activity because it helps them to achieve
some end. Insofar as human activity is essentially purposive, according to Fuller,
particular human activities can be understood only in terms that make reference
to their purposes and ends. Thus, since lawmaking is essentially purposive
activity, it can be understood only in terms that explicitly acknowledge its
essential values and purposes:
The only formula that might be called a definition of law offered in these
writings is by now thoroughly familiar: law is the enterprise of subjecting human
conduct to the governance of rules. Unlike most modern theories of law, this view
treats law as an activity and regards a legal system as the product of a sustained
purposive effort (Fuller 1964, 106).
To the extent that a definition of law can be given, then, it must include the idea
that law's essential function is to "achiev[e] [social] order through subjecting
people's conduct to the guidance of general rules by which they may themselves
orient their behavior" (Fuller 1965, 657).
Fuller's functionalist conception of law implies that nothing can count as law
unless it is capable of performing law's essential function of guiding behavior.
And to be capable of performing this function, a system of rules must satisfy the
following principles:
(P1) the rules must be expressed in general terms;
(P2) the rules must be publicly promulgated;
(P3) the rules must be prospective in effect;
(P4) the rules must be expressed in understandable terms;
(P5) the rules must be consistent with one another;
(P6) the rules must not require conduct beyond the powers of the affected
parties;
(P7) the rules must not be changed so frequently that the subject cannot rely on
them; and
(P8) the rules must be administered in a manner consistent with their wording.
On Fuller's view, no system of rules that fails minimally to satisfy these

principles of legality can achieve law's essential purpose of achieving social order
through the use of rules that guide behavior. A system of rules that fails to
20
satisfy (P2) or (P4), for example, cannot guide behavior because people will not
be able to determine what the rules require. Accordingly, Fuller concludes that
his eight principles are "internal" to law in the sense that they are built into the
existence conditions for law.
These internal principles constitute a morality, according to Fuller, because law

necessarily has positive moral value in two respects: (1) law conduces to a state
of social order and (2) does so by respecting human autonomy because rules
guide behavior. Since no system of rules can achieve these morally valuable
objectives without minimally complying with the principles of legality, it follows,
on Fuller's view, that they constitute a morality. Since these moral principles are
built into the existence conditions for law, they are internal and hence represent
a conceptual connection between law and morality. Thus, like the classical
naturalists and unlike Finnis, Fuller subscribes to the strongest form of the
Overlap Thesis, which makes him a conceptual naturalist.
Nevertheless, Fuller's conceptual naturalism is fundamentally different from

that of classical naturalism. First, Fuller rejects the classical naturalist view
that there are necessary moral constraints on the content of law, holding instead
that there are necessary moral constraints on the procedural mechanisms by
which law is made and administered: "What I have called the internal morality
of law is ... a procedural version of natural law ... [in the sense that it is]
concerned, not with the substantive aims of legal rules, but with the ways in
which a system of rules for governing human conduct must be constructed and
administered if it is to be efficacious and at the same time remain what it
purports to be" (Fuller 1964, 96- 97).
Second, Fuller identifies the conceptual connection between law and morality at
a higher level of abstraction than the classical naturalists. The classical
naturalists view morality as providing substantive constraints on the content of
individual laws; an unjust norm, on this view, is conceptually disqualified from
being legally valid. In contrast, Fuller views morality as providing a constraint
on the existence of a legal system: "A total failure in any one of these eight
directions does not simply result in a bad system of law; it results in something
that is not properly called a legal system at all" (Fuller 1964, 39).
Fuller's procedural naturalism is vulnerable to a number of objections. H.L.A.

Hart, for example, denies Fuller's claim that the principles of legality constitute
an internal morality; according to Hart, Fuller confuses the notions of morality
and efficacy:
[T]he author's insistence on classifying these principles of legality as a "morality"

is a source of confusion both for him and his readers.... [T]he crucial objection to
the designation of these principles of good legal craftsmanship as morality, in
21
spite of the qualification "inner," is that it perpetrates a confusion between two

notions that it is vital to hold apart: the notions of purposive activity and
morality. Poisoning is no doubt a purposive activity, and reflections on its
purpose may show that it has its internal principles. ("Avoid poisons however
lethal if they cause the victim to vomit"....) But to call these principles of the
poisoner's art "the morality of poisoning" would simply blur the distinction
between the notion of efficiency for a purpose and those final judgments about
activities and purposes with which morality in its various forms is concerned
(Hart 1965, 1285-86).
On Hart's view, all actions, including virtuous acts like lawmaking and
impermissible acts like poisoning, have their own internal standards of efficacy.
But insofar as such standards of efficacy conflict with morality, as they do in the
case of poisoning, it follows that they are distinct from moral standards. Thus,
while Hart concedes that something like Fuller's eight principles are built into
the existence conditions for law, he concludes they do not constitute a conceptual
connection between law and morality.
Unfortunately, Hart overlooks the fact that most of Fuller's eight principles
double as moral ideals of fairness. For example, public promulgation in
understandable terms may be a necessary condition for efficacy, but it is also a
moral ideal; it is morally objectionable for a state to enforce rules that have not
been publicly promulgated in terms reasonably calculated to give notice of what
is required. Similarly, we take it for granted that it is wrong for a state to enact
retroactive rules, inconsistent rules, and rules that require what is impossible.
Poisoning may have its internal standards of efficacy, but such standards are
distinguishable from the principles of legality in that they conflict with moral
ideals.
Nevertheless, Fuller's principles operate internally, not as moral ideals, but

merely as principles of efficacy. As Fuller would likely acknowledge, the
existence of a legal system is consistent with considerable divergence from the
principles of legality. Legal standards, for example, are necessarily promulgated
in general terms that inevitably give rise to problems of vagueness. And officials
all too often fail to administer the laws in a fair and even-handed manner even
in the best of legal systems.
7. Explain the theories of Natural Law School. Also, discuss revival of

Natural Law School in 20th Century.
Ans.-
22
8. “The Natural Law theories reflect a perpetual quest for absolute

justice. It has been an appeal to absolute justice, authority and rules
higher than positive law.” Discuss the characteristic features of
Natural Law with its decline and revival in 19th Century.
Ans.-
Modern theories:
Nineteenth-Century:
The decline of Natural Law theories:
The 19th century saw the decline of natural law, the natural law theories
reflected more or less the great economic and political changes which had taken
place in Europe. Reason or rationalism was the spirit of eighteenth-century
thought. The problems created by new changes and developments demanded
political and concrete solutions. Individualism gave rise to a collective view,
modern science and political theories began to propagate that there are no
absolute and immutable principles. Many historians rejected the social contract
theory, saying it was a myth. All these factors gave natural law a strong shock.
Twentieth Century:
mainly for the following reasons: a. It emerged as a backlash against legal
theories that exaggerated the importance of positive law. b. It was felt that
abstract thinking was not completely redundant. c. Positivist theories failed to
solve problems created by changed social conditions. d. It also led to the revival
of the ideologies of fascism and natural law theories, because at that time during
the two world wars, the world witnessed the great destruction of human life and
property and the principles of natural law were approached to achieve peace.
9. Write notes on the following:

(a) Characteristic features of natural Law School
Ans-.
Natural Law---its meaning and Definition
There is no unanimity about the definition and exact meaning of natural law and
the term ‘natural law theory’ has been interpreted differently at different times
23
depending upon the needs of the developing legal thoughts. But the greatest
attributes of the natural law theory is its adaptability to meet new challenges of
the transient society.
The exponents of natural law philosophy conceive that it is a law which is

inherent in the nature of man and its independent of convention, legislation or
any other institutional devices.
Dias and Hughes describe natural law as a law which derives its validity from its
own inherent values, differentiated by its living and organic properties, from the
law promulgated in advance by the Sate or its agencies.
According to Cohen, natural law is not a body of actual enacted or interpreted

law enforced by courts, it is in fact a way of looking at things and a humanistic
approach of judges and jurists. It embodies within it a host of ideals such as
morality, justice, reason good conduct, freedom equality, liberty, ethics and so on.
Main Characteristics of Natural Law:-
The phrase ‘natural law’ has a flexible meaning. It has been interpreted to mean
different things in course of its evolutionary history. However, it has generally
been considered as an Inderal source of law with invariant contents. The chief
characteristics features of natural law may be briefly stated as follows:-
1. It is basically apriori method different from empirical method, the forms,

accepts things or conclusions in relation to a subject as they are without any
need or enquiry or observation while empirical or a posteriori approach tries
too find out the causes and reasons in relation to subject matter.
2. It symbolizes physical law of nature based on moral ideals which has
universal applicability at all places and terms.
3. It has often been used either to defend a change or to maintain status quo
according to needs and requirement of the time. For example, Locke used
natural law as an instrument of change but Hobbes used it to maintain
status quoin the society.
4. The concepts of ‘Rule of Law’ England and India ‘due process’ in USA are
essentially based on the natural law philosophy.
(b) Decline and revival of Natural Law School
Ans.-
Decline OF NATURAL LAW
24

REVIVAL OF NATURAL LAW
Three revivals of natural law can be identified: one at the beginning of the
20th century, one provoked by World War II, and one proper to contemporary
constitutionalism beginning in the last two decades of the 20th century. All three
belong to the so-called short century, but we need to realize that the same label
encompasses a broad spectrum of different cultural phenomena and
philosophical trends. If there are three rebirths, it means that there have been as
many deaths or crises (see Bobbio 1965, 180) and consequent returns of legal
positivism (cf. LangHinrichsen 1954).
1) The revival of natural law in the early 20th century was in reality brought
about by a dissatisfaction with 19th-century legal positivism, which in general
had pursued the objective of rigorously separating out the legal sphere, unduly
neglecting moral ideals and the social bases of law.
2) The revival of natural law after World War II was obviously prompted by the
fact that evident and serious violations of human dignity had been permitted or
at least not prevented by positive law, so it was felt necessary to avoid that from
happening again.
3) The revival of natural law at the end of the 20th century was provoked by the
greater role the question of human rights assumed within constitutional regimes
, with the consequent transformation of the very way of conceiving positive law.
10. Write an exhaustive note on Natural law School of Jurisprudence its

theories.
Or
Critically examine the role of natural law school in the development of

the jurisprudence.
Ans.-
Introduction:
Natural law thinking has played a wide role in the fields of ethics, politics and
law since ancient times. As seen by many jurists, it is essentially a claim to
believe in a standard of values.
25
Jurists of different ages gave different meanings to the term natural law.
For the Stoics, this is the divine law (Jus divindum) —the command of God
imposed on men. For Cicero, natural law is the rule of reason, because it is
established by the reason by which the world is controlled and addressed and
perceived by the rational nature of men. For Aristotle and Thomasius it is also in
a sense of expression the unwritten law (jus non scriptum), as written not on
Brazen tablets or stone pillar, but entirely with the finger of nature in men's
hearts. It is also universal or common law (jus commune, jus gentium) as
universal legitimacy, equal in all places and binding on all people and not one
thing in one place and in another place, just as civil law states. . For Hookes, this
is the Eternal Law, as has existed since the beginning of the world, uncreated
and unchanging, while for modern-day jurists natural law consists primarily of
the principles of morality.
Theories of Natural law:
Natural law can be broadly divided into four classes: 1. Ancient theory 2.
Medieval theory 3. Doctrine of renaissance 4. Modern theory
1. Ancient theory
Greece:
Greeks were the first profounder of natural law principles. Greek thinkers
developed the idea of natural law and determined its essential characteristics.
In Greece at the time, there was great political instability. Two trends of thought
existed among Greek think. Firstly, it was thought by many that the law was
designed only to serve the interests of the law maker or strong and the only
reason for obedience to law was the self- interest of the subject. But, secondly,
that same situation forced some other jurists to think in other ways, they called
it seen as an opportunity to developing new universal principles that will deal
with and control the tyranny and arbitrariness of government and which could
give it stability.
Socrates, Plato, Aristotle and Zeno, all belong to this school of thought.
Socrates' perspective on natural law:
Socrates believed that just as natural physical law is, so is natural law. In his
concept of natural law, man has his own insight, which tells him about those
things, whether good or bad, it is according to that insight that man is able to
develop moral values in himself, the only way to judge the basis of law according
to Socrates is the “insight of man”. Through his doctrine, Socrates wanted to
ensure peace and stability in the region which was one of the major demands of
the time.
26
Rome:
Stoics view on natural law:
Stoics was inspired by Aristotle's theory and developed his theory of natural law
based on Aristotle's theory but made some important changes and made it more
ethical. According to him, the world operates because of reason. Man's reason is
also a part of this world, so when he lives according to reason, he lives according
to nature or lives naturally. One of the duties of man is to follow the law of
nature as per the Stoic law of nature is binding for all and the positive law must
conform to the natural law.
Effect of Stoics theory:
Stoics theory had a great influence on jurists during the republican period, as
many jurists began to pay more attention to natural law. Natural law helped the
Roman people transform their rigid lives into a cosmopolitan one. Sometimes the
Courts of Rome also applied the principle of natural law to deal with matters
involving foreigners, in a way that natural law helped the development of Roman
law.
Roman Jurists classified law of Rome into three broad categories:
Among the ancient Roman jurists, three divisions of law were found: 'jus civile';
'jus gentium'; and 'jus naturale'. Roman civil law or 'jus civile' was only for
Roman citizens, but on the 'natural law' principle Roman magistrates applied
rules which were common with foreign law to foreign citizens also. The body of
law which developed in this way was also called; 'jus gentium' and it became
part of Roman law. It represented well-meaning and universal legal principles
and, therefore, conformed to 'natural law'.
Later, 'jus civile' and 'jus gentium' became one when Roman citizenship was
extended to all except a few. But even then there was a concept of natural law
that did not undergo new change because slaves were still deprived of the
benefits of the new law.
Roman lawyers did not trouble themselves with the problem of conflict between
'positive law' and 'natural law'. Although there were some jurists who considered
'natural law' to be 'superior to positive law' and suggested that affirmative law
might be disregarded in case of conflict between the two, most jurists did not
enter into this question.
2. Medieval Theories:
Aquinas:
27
Catholic philosophers and theologians moved away from orthodox

interpretations of natural law and gave a more logical and systematic theory of
natural law. Thomas Aquinas defined the law as obedience to the cause of the
general good that he did, which the community cared for and promulgated. He
divided the law into four stages. 1) Law of God 2) Natural law 3) Divine law
4) Human laws
Natural law is the part that manifests itself for natural reasons. It is
applied by humans to conduct their affairs and relationships. According to
Aquinas positive law must conform to natural law, positive law is valid only to
the extent that it is compatible with natural law.
Merits of Aquinas theory:
Thomas Aquinas completely mixed Aristotle's theory with that of Christian faith
and created a very elastic and logical theory of natural law. He pleaded for the
establishment of the Church's authority over the state, according to him, even
the sovereign has limited powers. He identified natural law with reason,
sanctified social and political organization, and worked hard to preserve social
stability. Catholic modern jurists have built on Aquinas's doctrine but modified
his doctrine according to changing needs and circumstances.
3. Renaissance Theories:
This period saw major changes in all aspects of knowledge, this period breaking
the foundations of values marked by the emergence of new ideas, new branches
of knowledge and discoveries of science. Secondly, due to development in the field
of commerce, new classes emerged which wanted more protection from the
states. This gave rise to the concept of nationalism. All these factors combined to
overthrow the dominance of the church. New theories supporting the sovereignty
of the state began to emerge. The reason was the foundation of all these
principles. The natural law principles of this era also have certain
characteristics. This theory proceeds with the belief that a social contract is the
basis of society.
Theories of Social Contract:
Social contract theory determines a state of nature, with various philosophers

describing their state of nature. In simple terms, the state of nature is the
condition before entering into a contract, whatever may be the situation people
entered into a contract either with themselves or with a single person under
where philosophers are very important to understand the development of natural
law during the Renaissance period. These philosophers are:
I. Thomas Hobbes
28
II. John Locke

III. Rousseau
Thomas Hobbes:
Hobbes State of nature:
Under his state of nature, man lived in a chaotic state, according to him; in the
state of nature man's life was fear and selfishness. It was solitary, dirty, cruel
and short.
Hobbes Contract:
Under the prevailing conditions, the people entered into a contract, under which
they handed over all their rights to one person, to relieve their suffering. The law
of nature can be traced to the reason which says what a man should or should
not do. Man has a natural desire for security and order, this can only be achieved
by establishing a superior authority which must be a commanding authority. He,
therefore, advises the sovereign that he must command with natural law.
John Locke
Locke's perspective on the state of nature was completely different from

Hobbes's. He also interpreted natural law differently. Locke was in favor of
individualism and therefore, for him, natural law meant giving individuals more
power than sovereign. Locke's state of nature was a golden age for humans, but
as society grew and people began to establish the concept of property, people
became insecure about their wealth.
It was for the purpose of protection of property that man entered into a
social contract. Under this contract, he did not surrender all his rights, but only
a part of them. All these rights were surrendered to maintain order and enforce
the law of nature. Natural rights such as freedom, property and right to life were
to be maintained by man.
Locke stood for individual liberty and advocated that the powers of the
sovereign are not unlimited. According to Locke, the person has the right to
protest against the sovereign if he is unable to protect the rights of the
individual, then individuals also have the right to overthrow the current
government. According to him, a person's rights to freedom, property, and life
are basic natural rights and the sovereign must realize these rights and make a
decision, taking into account the rights described above.
Rousseau Rousseau’s state of nature:

29
Under Rousseau, natural law and social contract received a new interpretation.
For him, a social contract is a hypothetical construction of reason. Before the
social contract, man lived a happy life, there was equality among men.
Rousseau’s Contract
According to Rousseau, humans entered into a contract for the protection of

rights of equality and freedom, they delegated their rights not to one person, but
to the whole community, which Rousseau states as common will.
Theory of General Will:
According to Rousseau, it is the duty of a person to obey the general will because
in this way he is following his own will. The government and laws made must
conform itself with the general will and if they are not able to so that they could
be overthrown, in short, Rousseau stood for the interest of the community, rather
than the interest of the individual, for his natural law theory Stood for equality
and freedom of men.
4. Modern theories:
Nineteenth-Century:
Twentieth Century:
mainly for the following reasons: a. It emerged as a backlash against legal
theories that exaggerated the importance of positive law. b. It was felt that
abstract thinking was not completely redundant. c. Positivist theories failed to
solve problems created by changed social conditions. d. It also led to the revival
of the ideologies of fascism and natural law theories, because at that time during
the two world wars, the world witnessed the great destruction of human life and
property and the principles of natural law were approached to achieve peace.
30
Conclusion: A special study of the principles of natural law reveals one thing
that the concept of natural law has changed from time to time. It has been used
to support almost every ideology whether it is absolutism or individualism. It has
also inspired various revolutions. Natural law has also influenced the
development of positive law. The study of law will be incomplete if it fails to meet
its ends, with natural law principles focused on achieving the ends of the law.
Hence it can be said that natural law principles are embedded in the legal
system of almost every country.
In India the constitution gives certain fundamental rights like the right to life,
right to equality etc, all these rights are also based on the principles of natural
law, not only this the principle of natural justice is also based on the principles of
natural law. In the end, it could be said that the natural school of law has made
a great contribution to the legal jurisprudence of the world including India.
11. State the contributions of St Thomas Aquinas and Stammler to the

Natural Law School.
Ans.-
St Thomas Aquinas:
Natural Law
Aquinas is often described as a natural law theorist. While natural law is a

significant aspect of his moral philosophy, it is a subject of considerable dispute
and misunderstanding. Of course, this is not the place to adjudicate competing
interpretations of Aquinas’s view. Yet recent philosophers have noted that too
many expositors distort Aquinas’s view by treating it independently of his
metaethics and his theory of virtue (see for example MacIntyre, 1990: 133-135;
Hibbs, 2001: 94). While a detailed analysis of natural law and its varying
interpretations would require a separate study, the present article hopes to
sketch Aquinas’s view in a way that is sensitive to other aspects of his thought.
What is the natural law? We might attempt to answer this question by

considering both the meaning of the term “law” as well as the law’s origin. On
Aquinas’s view, a law is “a rule or measure of human acts, whereby a person is
induced to act or is restrained from acting” (ST IaIIae 90.1). Elsewhere, he
describes a law as a “dictate of practical reason emanating from a ruler” (ST
IaIIae 91.1). At a very general level, then, a law is a precept that serves as a
guide to and measure of human action. Thus whether an action is good will
depend on whether it conforms to or abides by the relevant law. Here we should
recall from an earlier section that, for Aquinas, a human action is good or bad
depending on whether it conforms to reason. In other words, reason is the
31
measure by which we evaluate human acts. Thus Aquinas thinks that the laws
that govern human action are expressive of reason itself (ST IaIIae 90.1).
Now we will address the law’s origin. According to Aquinas, every law is
ultimately derived from what he calls the eternal law (ST IaIIae 93.3). The
“eternal law” refers to God’s providential ordering of all created things to their
proper end. We participate in that divine order in virtue of the fact that God
creates in us both a desire for and an ability to discern what is good (he calls this
ability the “light of natural reason”). According to Aquinas, “it is this
participation in the eternal law by the rational creature that is called the natural
law” (ST IaIIae 91.2; Cf. 93.6). On this view, natural law is but an extension of
the eternal law. For by it God ordains us to final happiness by implanting in us
both a general knowledge of and inclination for goodness. Note here that the
natural law is not an external source of authority. Nor is it a general deontic
norm from which more specific precepts are inferred (McInerny, 1993: 211-212;
Hibbs, 1988: 61-62). As Aquinas understands it, the natural law is a
fundamental principle that is weaved into the fabric of our nature. As such, it
illuminates and gives us a desire for those goods that facilitate the kind of
flourishing proper to human beings (ST IaIIae 94.3). This point deserves further
discussion.
According to Aquinas, human beings have an innate habit whereby they reason
according to what he calls “first principles.” First principles are fundamental to
all inquiry. They include things like the principle of non-contradiction and law of
excluded middle. These principles are indemonstrable in the sense that we do
not acquire them from some prior demonstration. To put the matter another
way, they are not facts at which we arrive by means of argument or reasoning.
They are the principles from which all reasoning proceeds. And while we do not
derive them from some prior set of facts, a moment’s reflection would show that
they nevertheless provide the conditions for intelligible inquiry. In short, human
reasoning does not establish the truth of first principles, it depends on them.
The natural law functions in a way that is analogous to the aforementioned

principles. According to Aquinas, all human actions are governed by a general
principle or precept that is foundational to and necessary for all practical
reasoning: good is to be done and evil is to be avoided. This principle is not
something we can ignore or defy. Rather, it is an expression of how practical
thought and action proceed in creatures such as ourselves. Whenever we
deliberate about how we should act, we do so by virtue of a natural inclination to
pursue (or avoid) those goods (or evils) that contribute to (or deter us from) our
32
perfection as human beings. The goods for which we have a natural inclination
include life, the procreation and education of offspring, knowledge, and a civil
social order (ST IaIIae 94.2). Whether there are additional goods that are
emblematic of the natural law will depend on whether they in fact contribute to
our rational perfection.
A caveat is in order. While we naturally desire goods that facilitate our

perfection, excessive passion, unreasonable fear, and self-interest can distort the
way we construe those goods (ST IaIIae 94.6). For example, sexual pleasure is a
natural good. Yet excessive passion can corrupt our understanding of what sex’s
role ought to be in our lives and lead us to pursue short-term sexual pleasure at
the expense of more enduring goods. Also, self-protection is a good to which we
naturally incline. Yet unreasonable fear may deter us from acting for the sake of
goods that trump personal safety. Poor upbringing and the prejudices of society
can further undermine a proper view of what human fulfillment consists in.
Whether we can make competent judgments about what will contribute to our
proper fulfillment depends on whether we have the requisite intellectual and
moral virtues. Without those virtues, our intellectual and moral deficiencies will
forestall our rational perfection and the attainment of our final end.
Rudolf Stammler
A pioneering attempt to create a modernized natural law philosophy based on a

priori reasoning was made in Germany by Rudolf Stammler (1856-1938). As a
philosophical disciple of Kant, he was convinced that human beings bring to the
cognitive perception of phenomena certain a priori categories and forms of
understanding which they have not obtained through the observation of reality.
Stammler taught that there exist in the human mind pure forms of thinking
enabling men to understand the notion of law apart from, and independently of,
the concrete and variable manifestations in which law has made its appearance
in history.
Stammler, however, departed from his master Kant by breaking the notion of
law down into two components: the concept of law and the idea of law. Kant had
defined law as the aggregate of the conditions under which the freedom on one
could be harmonized with the freedom of all. Stammler pointed out that this
formula was faulty because it confused the concept of law with the idea of “right”
or just law. The concept of law, he said, must be defined in such a manner as to
cover all possible realizations and forms of law in the history of mankind.
Stammler believed that he had found such an all-embracing definition of law in
the following formula” “Law is the inviolable and autocratic collective will”. A
number of different elements are contained in this formula. Law is the collective
33
will, that is, a manifestation of social life. It is an instrument of social co-

operation, not a tool for the satisfaction of purely subjective desires of individuals
devoid of community value.
Furthermore, law is an expression of a collective will which is autocratic and

sovereign. The rules of law, once they have been established, claim a compulsory
force. They are binding irrespective of the individual citizen’s inclination to
follow them. This fact, said Stammler, distinguishes law from customs and social
conventions, which constitute mere invitations to the citizens to comply with
them and do not purport to be absolutely compulsive. Finally, the rules of law
contain an element of inviolability. This means that, as long as they are in effect,
they are strictly binding not only upon those who are subject to them but also
upon those who are entrusted with their creation and enactment. Herein,
according to Stammler, lies the difference between law and arbitrary power. We
are confronted with the latter when a command is issued which the holder of
power does not regard as an objectively binding regulation of human affairs, but
merely as a subjective gratification of a present desire or impulse without
normative force.
From the concept of law Stammler distinguished the idea of law. The idea of law
is the realization of justice. Justice postulates that all legal efforts be directed
toward the goal of attaining the most perfect harmony of social life that is
possible under the conditions of the time and place. Such a harmony can be
brought about only by adjusting individual desires to the aims of the community.
According to Stammler, the content of a rule of law is just if it is conductive to
harmonizing the purposes of the individual with those of society. The social ideal,
as Stammler sees it, is a “community of free-wailing men”. The term “free” as
used in this formula, does not denote an act of volition which is directed by the
subjective and selfish desire of an individual; in accordance with Kantian
terminology, a free act is one that is objectively and rationally justified from the
point of view of the common interest.
Stammler pointedly emphasized that his social ideal could serve merely as a
formal method for determining whether the content of a specific law was just, it
could not be used as a universal substantive standard for passing judgment on
the “rightness” of concrete enactments.12 Stammler’s formula has in fact been
decried as essentially empty in content. It cannot be denied, however, that
Stammler, in contradiction to his own methodological premises, did derive some
absolute postulates of “right law” from his social ideal. In any attempt to realize
it, he wrote, the legislator must keep four fundamental principles in mind:7
1. The content of a person’s volition must not be made subject to the arbitrary
power of another.
34
2. Every legal demand must be made in such a manner that the person obligated
may remain his own nearest neighbor (retain his self respecting personality).
3. A member of the legal community cannot be excluded from it arbitrarily.
4. A power of control conferred by law can be justified only to the extent that the
person affected thereby may remain his own nearest neighbor (retain his self-
respecting personality).
What do these “principles of respect and participation”, as Stammler called

them, mean in substance? They mean that each member of the community is to
be treated as an end in himself and must not become the object of the merely
subjective and arbitrary will of another. No one must use another merely as a
means for the advancement of his own purposes. “To curb one’s own desires
through respect of another, and to do so with absolute reciprocity, must be taken
as a principle in the realization of the social ideal”. This notion of a community of
free men treating each other as ends in themselves is close to the Kantian idea of
law, but differs from it in two respects. First, the community of individuals takes
the place of the free individual as such; this means that Stammler’s formula is
somewhat less individualistic than Kant’s. Second, Stammler’s formula in its
abstractness leaves more room for variety and diversity in positive law than
Kant’s natural law definition. “There is not a single rule of law”, said Stammler.
“the positive content of which can be fixed a priori”. In his view, two legal
systems with widely varying rules and principles of law may both be in
conformity with his social ideal.This ideal does not embody a concrete system of
natural law but represents merely a broad yardstick by which the justice or
injustice of positive rules of law may be tested. It is, at the most, a “natural law
with a changing content”. With the eternal and immutable law of nature of the
classical period it has very little in common.
35
Unit-II
Analytical Legal Positivism
1. "Law is the command of the sovereign backed by sanction." Discuss

the above statement. Also explain the relationship among command,
duty and sanction. 25
Ans.-
Austin ‘s Analytical Positivism
Austin ‘s definition of law: -Austin is the father of English jurisprudence he

confined his only to the positive law. Austin defined law as “A rule laid down for
the guidance of an intelligent being by an intelligent being having power over
him. He also stated that “Law is the command of the Sovereign”. Austin believed
that in the society, subjects are bound by the command issued by the sovereign
from time to time.
Classification of law: - According to Austin law are two type –
1) Laws properly so called
2) Laws improperly so called
1) Laws properly so called: - These laws are commands which are backed by
sanctions of the state, are called law properly so called. Law properly so called is
the positive law, which means law “as it is” rather than law “as it ought to be”
with which he is not at all concerned. It is divided in two part. A) Laws of God
B) Human laws
A) Laws of God: -these are the laws which are made by God for men.
B) Human laws: -These are the laws which are made by one human being for
other human beings. They may be further divided into two parts. a) Positive
Laws b) Other Laws
a) Positive Laws: - These are the laws set by political superiors as such, or
by men not acting as political superiors but acting in pursuance of legal
rights conferred by political superiors, only these laws are the proper
subject matter of jurisprudence.
b) Other Laws: - Other laws is known as positive Morality, other laws
which are not set by political superiors or by men in pursuance of legal
rights. This class includes International Law.
36
2) Laws improperly so called: -These laws are not commanding and thus, are
not backed by sanctions. These laws are not obligatory.
Austin’s Imperative Theory of Law or Analytical Positivism: -This theory

is known as Positive theory of law, Command theory, Imperative theory of law.
Austin opined that only positive law is the proper subject matter of the study of
jurisprudence. He defined” the jurisprudence is the philosophy of positive law.
Positive law has four element-
1) Sovereign
2) Command
3) Sanction
4) Duty
1) Sovereign: - Law is the command of sovereign which obliges a person or

persons to a course of conduct. Sovereign means ,such a person who is superior
,nobody can interfere. He is the supreme, irresistible, absolute and uncontrolled
authority. There are some importance salient features of sovereignty :-
a) Indivisibility
b) Illimitability
c) Essentiality
d) Inalienability
2) Command :-A command means a wish or desire conceived by a rational being

to another rational being who shall do or forbear .it is an evil to proceed from the
former to be incurred by the latter in case of non -compliance and it is an
expression or intimation of will by word or otherwise Command are two type
a) General Command
b) Particular or specific Command
a) General Command: - A general command is a law or rule where it is obliges

generally to acts so forbearances of a class. All command is not law, it is only the
general command.
b) Particular Command: -It is particular when it obliges to a specific

individual act.
3) Sanction: -Sanction is an evil which will be incurred if a command is

disobeyed and is the means by which a command or duty is enforced. It is wider
sense of punishment. A reword for obeying the command can scarcely be called a
sanction.
37
4) Duty: -when the party commanded and threatened is under an obligation to

obey it. It is called duty. Thus, in Austin’s theory duty and command are co-
relative and fear of sanction is the motive for obedience of such command i.e law
.The chief characteristics of positive law are Sovereign Command ,Duty and
Sanctions .
Criticism of Austin’s Imperative Theory of law:-
1) Sovereign is not the only source of law.

2) Law is older than state.
3) Customs overlooked.
4) No place for judge -made law.
5) Law is not always shaped in the form of a command.
6) All command are not laws.
7) International law is not a law.
8) Over Emphasis on logic.
9) This theory is Artificial.
10) Conventions is not law.
Contribution of Austin s theory:-
In spite of the various criticism Austin” s theory, Salmond says that his theory of
law contains an important element of truth in as much as it rightly recognizes
the essential fact that civil law is the product of the state and depends for its
existence on the physical force of the state exercised through the agency of
judicial tribunals. the credit goes to Austin for opening an era of new approach to
law .Austin was intimate with great thinkers and philosophes of his time like
Bentham and Mill .Austin told true meaning of law and legal terms .his stand
was to expel from the mind all ethical notions while considering the nature of
“positive law”. He gave a new life of theory of natural law. He is the father of
English jurisprudence. Austin was first who distinguished between law and
justice. Salmond and Gray further improved upon his theory and considerable
modified the analytical positivist approach. Gray remarked: if Austin went too
far in considering the law as always procced in from the state he conferred a
great benefit on jurisprudence by bringing out clearly that the law is at the
mercy of the state.
Conclusion: - Austin, s theory proved as a guide for latter jurist. Therefore, we

can say that Austin made a very significant to jurisprudence. His theory was
very practical and logical basis. The merit of Austin “s theory of law lies in its
simplicity, consistency and clarity of exposition.
38
2. Explain the characteristic features of analytical positivism

mentioning some of the contributions of John Austin. How far
positivism is applicable in India? 10+ 10+5=25
Or
Discuss the characteristic features of analytical legal positivism. Also,

explain the classification of law given by Austin. 13+ 12=25
Or
Discuss the features of Analytical Legal Positivism referring to the

contributions of John Austin. 25
Ans.-
INTRODUCTION : The main features/essential characteristics of

Analytical School of Jurisprudence are as under:-
The jurists of analytical school consider that the most important aspect of law is
its relation to the State Law is treated as an imperative or command emanating
from the state. For this very reason this school is known as the Imperative
school.
The exponents of this school are concerned neither with the past nor with the
future of law but with law as it exists, i.e. ‘ as it is (positus). For this reason this
school is termed the positive school. Its founder is John Austin who was the
professor of jurisprudence in the University of London. He is also considered as
the father of English jurisprudence. He studied the Roman Law in Germany.
There he was that Roman Law is very systematic and scientific whereas English
Law is not systematic and scientific. So he tried to make English law in well
manner. For this purpose he wrote a book ‘Province of English Jurisprudence’. In
this book he difined English law and made it in a systematic way.
Austin said that only positive law is the subject matter of jurisprudence. He
separated both the morals and the religion from the definition of the law. Prior to
Austin the law was based upon customs and morals but Austin reduced all
things from the definition of law. He divided law into two parts :
(i) Law propriety so called

(ii) Law impropriety so called.
It further divided into two parts :
(1) Law of God (Divine Law) (II) Law of Men ( Human Law) Law of God is also
called divine law. It is a law set by God for human beings on earth. Men also
39
make law of men is made by men, so it is called human Law. This law makes a
relationship between persons and the Law. This law is imposed upon persons
and is made by persons. Human law is further divided into two parts :
(I) Positive Law

(II) Positive Moral Law Positive Law is main subject of jurisprudence.
This classification can be seen as under :
LAW
(A) Law propriety so called (B) Law impropriety so called
A.1) Law of God A.2) Law of Men
A.2.i) Positive Law A.2.ii) Positive moral Law
Law of analogy law by Metaphor Law impropriety so called:-
There are certain laws, which are called impropriety laws e.g. Divine Law, Moral
Law and religious Law. But his law is not the subject of jurisprudence. This law
is concerned only with the administrations of jurisprudence. The law is the
subject matter of jurisprudence.
Analytical school of jurisprudence deals with the following matter:
(I) An Analysis of the conception of civil law.

(II) The study of various relations between civil law and other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property, contracts, persons, acts
and intention etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss ‘Command Theory’. He says that, “Law is the
command of sovereign.” Sovereign here means a politically superior body or a
determinate person or determinate body of persons like king of council. The
command of these persons shall be the law in the country. This law must be
obeyed by certain persons. If it is not obeyed hen the order of these persons shall
not be law. It means there must be politically inferior persons. If the command is
disobeyed then the political superior should have the power to punish, those
persons who have disobeyed the law.
CHARACTERISTICS OF COMMAND THEORY

40
From the above facts we find that the following characteristics of Analytical
School :
(I) Sovereign (II) Command (III) Duty (IV) Sanction Power.
SOVEREIGN: Means the political superior person or a determinate person or

body of person or intelligent persons. This may be compared with the kind or the
head of state in monarchy system and parliament in democracy system.
COMMAND:- There must be some order of the Sovereign. This order may be
oral or written. The Sovereign which is followed by force, is called command.
DUTY:- This command must be followed by some persons, it means the political
inferior persons who are under the control of Sovereign, are under a Duty to
follow the order of the Sovereign.
SANCTION:- There must be sanction or the power of force behind the command
of Sovereign and it there is no force or sanction then such command shall not be
law. The sovereign must have power to punish those who do not obey this
command. In this way the above mentioned things are essential then it will be
the law. But Austin excluded some commands from the concept of the law. These
are :
(I) Explanatory Law :- If there is a command for the explanation of already

existed law command shall not be the law.
(II) The Repeal Law : I there is a command for the repealing of already existed
law then the second command shall not be law. AUSTIN LAW (AUSIN’S
METHOD) Austin adopted analytical method which excluded all types of morals
and religion from Law. His school is also called analytical school or imperative
school. Imperative means force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticised the command theory of Austin on the following
ground :
1. Customs ignored:-
Analytical school is based upon the law. According to Austin the law does not
include customs but we see that customs are a very important part of the society.
There were customs by which the society and later on state came into existence.
In state also customs played an important role in the administration of justice.
Even in the modern times the customs play an important role in the formation of
law. So we cannot ignore customs from law.
41
2. Precedents ignored:- Precedent means the decisions of the court, which are
also called as judge made laws. Judge made laws because these laws were not
the command of the Sovereign. These laws were not enforceable at that time, so
he excluded these laws from his concept of the law.
3. Conventions Ignored:-There are certain conventions or methods, which are

observed or followed by the coming generation. These conventions or methods
later on take the form of law. The become law afterwards by their regular
observance. In England the base of English Law is conventions, which is very
popular in the World. So we cannot ignore conventions. But Austin did not
include conventions in his concept of law.
4. International Law Ignored:- Austin did not include international law in

his law. According to his law there is no Sovereign for enforcing the
international law. But in modern days we cannot exclude international law from
the field of law because it plays an important role in maintaining peace and
society at international level. In other words it is also a form of municipal law of
civil law.
5. Command Theory is not suitable:- It is not easy to understand the

‘Commands Theory’ for common persons. It is not necessary that all should be
enforceable or all common person should be considered as law. Only those
commands which are related with law and order, should be law. It is difficult to
separate those commands from others by the common people or persons. So this
theory is not suitable in modern times. It is also an artificial theory having no
sense in the modern world.
6. Only Power Is Not Necessary:- According to the ‘Command Theory’, law

can be imposed only with the help of power, But we have the result of the tyrants
or forced rules which were thrown away by the people of French Revolution, of
Panamaeto. Law can be enforced even without power, it they are suitable to the
society.
7. Moral Ignored:- The Command Theory has also excluded morals from the
field of law. But we have observed that morals have also an important role in the
formation of law. We cannot ignore morals from law because laws are meant for
the society and such laws must be according to the feelings of society. The
feelings of society are based upon morals. So we can’t ignore morals from the
field of law.
CONCLUSON :-In this way he theory of command has been criticised and
which is not considered as suitable in the modern time. But we also can’t ignore
the contribution of Austin for giving he meaning of law in a systematic way. He
give the concept of law in scientific manner. This views became the base for the
42
coming writers, jurists and philosophers. So we can say that Austin contributed
a lot in the field of jurisprudence.
3. Write note on the following: -12½+12½=25
(a) Jeremy- Bentham’s contribution to Jurisprudence.
Ans.- Jeremy- Bentham’s contribution to Jurisprudence
Jeremy Bentham (1748-1832)
Jeremy Bentham was born in 1748 in Landon. He was the son of a wealthy
London Attorney. His genius was of rarest quality. He was a talented person
having the capacity and acumen of a jurist and a logician. He started a new era
in the history of legal thought in England. He is considered to be the founder of
positivism in the modern sense of the term. John Austin is regarded as the father
of analytical or positive school. however, it was actually Jeremy Bentham who
was true founder of this school. Austin was inspired by Bentham, and on many
points, his arguments are just a para-phrasing of Bentham’s theory. Dicey
described Bentham ‘s ideas about individualism, law and legal reforms in his
book “Law and Public Opinion in 19th Century. Bentham was opposed to natural
theory of law and he co-related law with sovereignty and utility. In this theory of
Legislation Bentham define the main functions of law as being: -
b) To provide subsistence
c) To aim at abundance
d) To encourage equality
e) To maintain security
There are some books: -
 The limits of jurisprudence defined 1782.

 Introduction to the principles, morals and legislation.
 Theory of punishment and rewards 1811.
 A tritiease on jurisprudence evidence 1813.
 Paper on codification and public instruction 1817.
Bentham’ Analytical Positivism:-
Bentham came in England the advent of positivism, sovereignty ,command ,duty

and sanction .this is the basic elements of Analytical jurisprudence which were
subsequently borrowed by John Austin .It was Jeremy Bentham who defined
,law as a command of the sovereign, an idea which he had taken from Hobbes.
Bentham was a reformer and he was a strong believer in social progress. He was
the staunch critic of the natural law. He believed in logical and scientific
principle of Utility. he defined utility as the hedonistic calculus of pleasure and
43
pain, which can measure the efficacy of every law, like other measurable things.
The doctrine of pleasure and pain acquired highest place in his theory of legal
and social reforms .so Bentham ‘theory is called Utilitarian School.
Bentham ‘s Utilitarianism
Bentham ‘legal philosophy is called utilitarian individualism, He was an

individualist, He said that the function of law is to emancipate individual from
the bondage and restraint upon his freedom he supported the economic principle
of “Laissez-faire”. which meant minimum interference of the State in the
economic activities of individuals Bentham propounded the principle of
utilitarianism. According to this theory, that the main object of legislation is the
carrying out of the principle of utility, in other words the proper end of every law
is the promotion of the greatest happiness of the greatest number. Bentham
defined utility as the property or tendency of a thing to prevent some evil or
procure some good, According to him, the consequences of good and evil are
respectively pleasure and pain.
(b) Austin's concept of law
Ans,-
AUSTIN’S CONCEPTION OF LAW
Austin’s most important contribution to the legal theory was the substitution of
the command of the sovereign i.e., the state, for any ideal of justice in the
definition of law. Law in the common use means and includes things which can’t
be properly called ‘law’. Austin defined law as a rule laid down for the guidance
of an intelligent being by an intelligent being having power over him.
The substitution of the command of the sovereign by Austin led him to write at a
time when England was actually in dire need of vast legislative reforms. There
was no school of jurisprudence which could share in the handiwork, whereas full
confidence was reposed in the power and wisdom of parliament as a legislative
assembly. In these circumstances, it was not strange that he should have
adopted sovereignty as his principle to build on this a science of jurisprudence
sufficient to subserve the requirements of the people. Law is thus, strictly
divorced from justice and instead of being based on the ideas of good and bad, is
based on the power of a superior. This inevitably associates Austin with Hobbes
and other theorists of sovereignty, but it was left to Austin to follow up this
conception into the ramifications of a modern legal system.
4. What do you understand by analytical legal positivism in the Indian

context? Also, highlight the contribution of John Austin towards
analytical positivism.
44
Ans.-
ANALYTICAL POSTIVISM – INDIAN PERSPECTIVE
Analytical positivism (given by Austin, Kelson and Hart) which dominated the
English Legal system for more than a century was mainly founded on three basis
assumption or principles:-
(i) Sovereign or Grundnorm as the law making authority;

(ii) Emphasis on law ‘as it is’, or positive law and exclusion of morality;
(iii) Insistence on sanction which was a coercive force behind enforcement
of laws.
In other words, we can say that analytical positivism presupposes that sovereign
or the law maker is over and above the law and the law is solely based on
coercion or force and it has nothing to do with the concepts of morality, justice or
ethics.
1. Ancient Indian Jurisprudence:-
If we analyse the analytical positivism of the English Legal system to the ancient
Indian jurisprudence we can say that it was contradictory to the analytical
positivism of English legal system.
(i) According to Austinian positivism, sovereign being the law maker, is

considered superior to law. But in ancient Indian legal system, law is
given the highest place by which the subjects as well as the king or ruler
were equally bound.
(ii) Further, analytical positivism provides that law has nothing to do with
the morality or ethics. But in ancient Indian jurisprudence law namely,
dharma has a prime place and the King or the ruler was to
rule according to dharma. The dharma consisted in observance of truth,
non-violence and rightful code of moral conduct which hold or
sustains the men together in harmony and establishes social solidarity.
Thus, it would be seen that the law, morality and religion were co-
existing concepts unlike analytical positivism of Austin which
completely divested the notions of morality and justice from law.
(iii) The element of ‘sanction’ found expression in the ancient Indian legal
system by way of danda which meant punishment. According to great
ancient law giver Manu, it is the fear of danda which makes people to
follow dharma. However, the King had to exercise this power
of danda according to dharma and in case he does not follow the path of
dharma then he may also be punished.
45
Kelson’s theory of Grundnorm, fits into the legal philosophy of ancient India inso
far as the Indian jurists considered dharma as the Grundnorm as it didn’t derive
its validity from the king and the king is also subordinate to the dharma.
2. British Rule:-
The advent of British rule in India brought about radical changes in the then
existing legal system. Sir Henry Maine, the author of Ancient Law, criticised
ancient Indian jurisprudence as ‘an idealistic imagination’. Further
Macaulay gradually introduced the notions of British juristic concepts
through equity, justice, and good conscience and brought about codification of
laws. These codified laws were akin to the Austinian concept of positive law
having the element of certainty, effective enforcement and sanction. As the
British king in Parliament was the supreme sovereign authority to make laws
for the governance of India and the King was above the law enacted for India.
The Indian legislature had no authority to change the law. The subjects were
bound to obey these laws. Thus, all characteristics of positive law, namely,
command, duty, sanction, sovereign etc. were present in the legal system
introduced by British rulers in India. So it can be said that the analytical
positivism found its place in the Indian legal system during the British period.
3. Post Independence Period:-
After the independence, the Constitution of India was drafted which came into
force on 26th Jan. 1950. It can be termed as Grundnorm as per the
Kelson’s theory because all the statutes and legislative enactments derive
their validity from the Constitution of India whose validity lies in its whole
hearted acceptance by the People of India without any exception. In fact, it is
presupposed to be valid.
It must be stated that the positivism in post-independence Indian law

differs from Austinain conception of analytical positivism. While
positivism in post-independence era seeks to establish harmonious
construction between ‘is’ and ‘ought’, that is, it does not ignore the
element of justice or morality from the law, but in case of Austinian analytical
positivism, there is no place for these elements, i.e., morality and justice. Best
examples of taking note of morality and justice in interpreting law is the cases
of Keshavananda Bharti v. State of Kerala (1973 SC), Minerva Mills v.
Union of India (1980 SC) etc. in which the Supreme court adopted the approach
harmonious construction in deciding the cases involving conflict between
fundamental rights and directive principles of state policy. However, there are
other cases where the Supreme Court adopted the rigid positivistic analytical
approach, e.g., in the case of Tilkayat Shri Govindlaji Maharaja v. State of
Rajasthan (1963 SC), the court held that the fir man of a ruler is law by which
46
subjects were bound legally without any exception. (this view is similar to
the Austinian supremacy of sovereign as law maker). Similarly, in the case of
Re Kerala Education Bill (1958 SC), the Court declined to look beyond
the enacted fundamental rights and didn’t think it necessary to take into
consideration the sociological conditions which impelled the legislature to pass
such law (Kerala education bill).
Refer above Answer No. 1 & 2
'Kelsen's Pure theory of law'
1. Discuss theory of Law propounded by Kelson with its . merits and

demerits. 25
Or
Explain Kelson's Pure, theory of Law with its merits and demerits. 25
Or
Explain 'Kelsen's Pure theory of law'. Also discuss how purity of the
'Pure theory' is challenged and dangers in modern jurisprudential
development. 25
Or
Discuss the main features of the ‘Pure Theory’ of Law. How it resembles
with Austin’s command theory. Critically examine the view of Kelson
given under pure theory of Law?
Introduction:- The Pure Theory of Law is given by Kelson. This theory is also
known as “Vienna School” because Kelson is the productor of Vienna University.
This theory resembles with Austin’s command theory because in Kelson’s theory
there must be sanction behind law. Austin gave it the name of command theory
and Kelson gave it the name of grandnorm theory. Kelson is affected by local
conditions, natural condition and international condition. After studying all
these conditions he gave this theory of Law, which is known as pure theory of
law and grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson there are Ist world was
which destricted the property of human beings at international level. So he gave
power to the international law and avoiding the destructions of the world.
Secondly during that time many countries adopted written constitution. So
47
Kelson also get influenced from these written constitutions and gave his own
theory which is based on grandnorms.
Grandnorm Grand means great and norm means Law, So it means a great law
the superior authority from which law comes out. He compared the grandnorm
with written constitution. According to him written constitution is the highest
authority in the country which is known as grandnorms. In England the
Parliament is a grandnorm, in USA written constitution is grandnorms and in
India too written Constitution is grandnorm. State is not above the grandnorm.
Sovereignty also liven in grandnorm. Accoding to Kelson law is a motive nor
science, it means science of norms. In laws only those rules are taken which are
related with legal aspects. Any others like moral rules, religious rules, ethical
rules do not come under the concepts of grandnorm. Here Kelson is equal to
Austin. When he excludes morals relation or ethics from the field of law.
System of Normative Rules:- System of normative rules was Hierarchy. In

hierarchy system there is one highest authority and all other are lower
authorities. This highest authority was grandnorm which was in the form of
written constitution and other authorities are below the constitution. The source
of power in a state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind it. This force lies
in the grandnorm. If this legal norm is not obeyed then one person will be
punished for it. He also says that at this time international law is immature. It
is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has the formation of

grandnorm according to local conditions. The duty of jurists is to interpret the
grandnorm in their own language. They are not concerned with the goodness or
badness of the grandnorm. They are not concerned with the origin of the
grandnorm. In this way the grandnorm is the main source of all the laws in the
country.
Elements of Pure Theory:- Kelson gave his view under this theory about
State, sovereignty, public and private law, public and private rights,
international law private and juristic law.
Feature of Kelson’s theory:
1. Grandnorm as a source of law:- Grandnorm is the source of all laws.

Grandnorm is in the form of written constitution. Any such body, which contains
rules, or any such legal system in a country.
2. No difference between law and state:- Kelson says that there is no

difference between law and State between because they get power from the same
48
grandnorm. Law comes from the grandnorm and the state also comes from the
grandnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a politically

superior person which keeps controls over the politically inferior persons. But
Kelson says that the power of sovereign lies in the people. So the Sovereign is not
separate and superior from the people of the country.
4. No difference between public law and private law:- The public law is
related with the state and the private law is related with the individuals as
Kelson says that there is no difference between public law and private law. The
law which creates a contract between individuals is called private law.
5. Supremacy of internationally laws:- The main prupose of Kelson was to

decrease the tension at world level because there was Ist world war which
destroyed millions of persons and property. He also said that the internaiton law
is in primitive stage or immature stage. It means it is in developing stage. One
day will come when international law will get equal to that of municipal law. So
this is also enforceable.
Merits of the Pure Theory of Law
(1) Kelson recognized International Law as a law

(2) Pure theory of law is best for peaceful change
(3) It makes the most refined development of analytical positivism
(4) Kelson's concept of legal system is clear original and striking
(5) Kelson has explained that no law can prevail country to grundnorm or
constitution
(6) Kelson's Pure Theory of Law is considered to be the most outstanding theory
of law
Demerits of Kelsons Pure theory law
(1) Grund norms vague And confusing-

(2) Purity of nerve cannot be maintained
(3) Natural law is ignored
(4) Supremacy of international law
(5) No practical significance
Criticism of Kelson’s theory:- In-spit of having good concept of pure theory

given by Kelson some of the criticism faced by him, which are as under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not clear. It

cannot be applied where there is no written constitution. The base of grandnorm
in the form of positive norms or the rules based only on legal order is not clear.
49
The rules, which are not linked with morals ethics. Customs and religion are not
the norms. But we can not ignore the role of these norms in the development of
law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of

international law. But even upto now we see that is no force behind international
law.
c. No difference between state and law:- this point is also criticised by various
writers. Law as a separate thing from the State. State is body is law in, which
law is a rule that regulates the state.
d. Difference between public law and private law:- Kelson says that there is no
different between public law and private law. Which is also not right in the
modern days.
e. Customs and Precedents ignored:- He also customs as a source of law while we

see that customs are the source of all laws.
Conclusion:- Although Kelson has been criticised from various angles yet he
had contributed a lot in the development of the society. Thus the concept of
grandnorm gave power to the public at large as well as at national level. His
main purpose was to stop destruction of any world war. This can resemble to
Austin also Kelson is also limited with the law.
Hart's positivism
2. Write notes on the following
(a) Primary rules
(b) Secondary rules
3. What do you understand by Hart's positivism? Discuss his

contributions to analytical legal positivism in the development of law
Ans.-
H.L.A Hart’s Theory of Law: -
Primary & Secondary Rules
Professor Herbert Lionel Adolphus Hart (H.L.A.Hart) is an influential legal

professor. Hart revolutionized the methods of jurisprudence and the philosophy
of law. He authored ‘The Concept of Law’ and made major contributions to
political philosophy.[3] He is regarded as the leading contemporary
representative of British positivism. From his book it shows that he is a
50
linguistic, philosopher, barrister and a jurist. To Hart, law is system of rules.

According to him: “Where there is law, the human conduct non-optional or
obligatory.”[4] Thus idea of obligation is at the core of a Rule. Rules of obligation
are supported by great social pressures because they are felt necessary to
maintain the society. To Hart, concept of law is equivalent to the legal system.
Hart mentioned that rules of law fall into different logical categories that have
distinct legal and social functions. He distinguished primary rules from
secondary rules or duty imposing rules from power conferring rule. Primary
rules are rules meant to guide the conduct of the individuals and other legal
persons and secondary rules are rules about how primary rules are to be created
and recognized. The example of duty imposing rules are rules of Income Tax Act,
Wealth tax Act, etc. which requires that taxes must be paid. The examples of
power conferring rules are power to enter into a contract, make will etc. These
may be used or ignored.
Concept of “Rule”
Law can be analysed in terms of rules which is largely based on Hart’s theory of
law. According to him, rules are concerned not with what happens but with what
is to be done. Rules are imperative or prescriptive rather than indicative or
descriptive. Rules have a certain independence or selflegitimating character.
Rules are different from commands. Commands normally call for one unique
performance whereas rules have a general application and demands repeated
activity. In some cases rules are constitutive and define the activity in a question
like rules of a game while in others they regulate activities which would take
place in any case whether the rules existed or not like rules of grammar, of
morals and of law. Rules of game, club, and societies share the feature of rule of
law
in so far as these are of formal nature, are open to amendment by bodies

authorized for this purpose, and some sort of adjudicating process is also found
when there is any difficulty as to meaning or the application of these rules. As
against these rules of morality or law are not amenable to legislative alteration
and are not resolvable by adjudication. Legal and moral rules both are invitum.
Obedience to them is non-optional. Rules of game and club apply only within
limited context, to players during the game. Law and morals are concerned with
much broader aspects of life. Rules of games are not compulsory; withdrawal and
resignation are permanent possibilities. In case of morals, there is no such choice
and this is largely true of law also. Thus according to Hart, ‘Law consists of rules
which are of broad application and non-optional character, but which are at the
same time amenable to formalization, legislation and adjudication.’
Kinds Of Rules Rules are of two kinds:·

51
Primary Rules
Secondary Rules
Primary rules regulate the behavior of man in the society. These rules either
grant rights or impose obligations on the members of the society. Example:-
Rules of criminal law forbidding murder, robbery, rash driving are primary
rules, tort rules, the individual right to freedom of speech ,the provisions of
contracts that define the primary obligations of the parties, the environmental
law rule that forbids discharge of toxic substances in rivers and streams etc.
Secondary rules are those that stipulate how and by whom the primary rules
may be formed, recognized modified or extinguished. Example: - Contract law
rules that enable parties to form contracts, the rules that allow testators to
create a will, the constitutional rules that confer legislative powers on Congress,
the statute that authorizes the Supreme Court to promulgate rules of practice
and procedure for the federal courts.
Hart's basic idea is quite simple. Primary rules are rules of conduct; they
tell you what your are legally obligated to do (or refrain from) and what
consequences attach to obedience or disobedience. Thus, the criminal law rules
that prohibit theft, forbid certain conduct and provide for penalties for violating
the prohibition. Technically, the class of secondary rules includes everything
except primary rules. For example, secondary rules are legal rules that allow for
the creation, extinction, and alteration of secondary rules; secondary rules are
power-conferring rules. Thus, contract law empowers individuals and firms to
make contracts; contracts themselves are usually collections of primary rules.
More precisely, primary rules are rules that govern conduct, and secondary rules
are rules that do not. Thus, the distinction between primary and secondary rules
is just a bit different than the difference between duty-imposing and power-
conferring rules: duty-imposing rules impose duties, whereas power-conferring
rules confer power. This leaves open the possibility that some rules can regulate
other rules, but do so by imposing duties. For example, a secondary rule might
impose a duty to legislate in a certain way or a prohibition on certain kinds of
rule creation. One of the really nifty things about Hart's introduction of the
distinction between primary and secondary rules was his account as to why
secondary rules are important. We can certainly imagine a system in which there
were primary rules, but no secondary rules. This would be a system of customary
law. Certain actions would be required; others would be taboo. But there would
be no mechanism by which the set of obligations could be changed. Of course,
customary law need not be completely static. It is possible that customs might
gradually change over time, but this process would require a change in social
norms. It could not be legislated. Secondary rules enable relatively more rapid
52
legal change at a lower cost. Moreover secondary rules enable individuals to

create customized primary rules that govern their private relationships or
privately owned resources.
Difference In Gist
 Under primary rules, human beings are required to do or abstain from

certain actions; secondary rules are in a sense parasitic upon or secondary
to the first.
 The primary rules bind people whether they like or not, wish or not;
secondary rules bestow facilities upon them for realizing their wishes.
 Primary rules are essential for social life whereas secondary rules are
necessary for the development of a legal system.
Conclusion & Criticism Made On The Rule Theory
The view of Lord Lloyd is that Hart’s description of a developed legal system in
terms of a union of primary and secondary rules is undoubtedly of value as a tool
of analysis of much that has puzzled both the jurists and the political theorists.
Professor Hart himself seems to recognize that his legal system is not necessarily
as comprehensive as he appears to indicate since he suggests that there are
other elements in a legal system, and in particular the “open texture” of legal
rules as well as the relationship of law to morality and justice. Lord Lloyd asks
the question whether it is possible to reduce to reduce all the rules of the legal
system to rules which impose duties and to rules which confer powers. This is an
over-simplification of a point. It can be said that many of the so called rules of
recognition do not so much confer power but specify criteria which are to be
applied in particular cases, such as the rules of procedure and evidence. It is
doubtful whether all the so-called secondary rules can properly be treated as a
unified class. Professor Hart concedes that a full detailed taxonomy of the
varieties of law still remains to be accomplished.
According to Hart, the rule of recognition is a secondary rule, but the view of
Prof. Dias is that it looks more like the acceptance of a special kind of rule than a
power. Hart’s concept is based on the distinction between rules creating duties
and rules creating powers on a legal system is constituted by their union, but the
view of Dias is that it is questionable whether such a sharp distinction can be
drawn. The same rule can create a power plus a duty to exercise it, or a power
plus a duty not to exercise it.
According to Dias, Hart’s avowed positivism in relation to his concept of law is

open to criticism. Hart says that the acceptance of a rule of recognition rests on
social facts, but he does not concern himself with the reasons why, or the
53
circumstances in which, it comes to be accepted. Social and moral considerations

may set limits on a rule of recognition at the time of acceptance.[14]
Thus from the conclusion and from the detailed study, the hypothesis of the
researcher has proved to be partly correct and partly wrong. The researcher
assumed that primary and secondary rules are totally different which proved to
be absolutely right and the researcher also assumed that the theory of Hart was
accepted by the other jurists, but many jurists have criticized it and given totally
different opinions which can be read in the conclusion.
4. "Law is the union or combination of primary and secondary rules.

Who said this and which school of jurisprudence does he belong to?
What did he mean by 'rules of recognition'? Explain elaborately. 6+
19=25
Ans.-
HLA Hart – Positivism
Hart primarily deals with the following:
 Law and coercion

 Law and morality
 Nature of rules (Primary & Secondary)
He criticizes Austin’s command theory for being an external viewed imperative

model of law disregarding the internal element of obedience He also criticizes
Austin’s theory for limiting laws to consist of commands backed by sanction. He
talks about power conferring laws such as laws of the contract which do not t in
Austin’s theory. He makes a case that people do not obey law because of threat of
sanction but because of people’s acceptance of it being binding in nature. Eg:- A
gunman who robs a banker by giving him threat of shooting in case of
noncompliance is not making law despite it being a command backed by
sanction. It is in such situation the Austin’s theory fails.
Rules and Obligations
Hart’s theory is different from that of Austin as it distinguishes the different

kind of obligations. He uses linguistic phrases ‘under an obligation’ and being
obliged to explain the difference. In the gunman example, when the gunman
asks banker to give away the money to the gunman, the banker is not under an
obligation to give the money but is being obliged to do so. Similarly, if one jumps
red light even if knowing the fact that he won’t be ned the obligation to stop
won’t go away despite the absence of sanction and the person will remain under
an obligation to follow trafc rules. (The obligation to follow rules persists even in
54
absence of sanction) Thus, in Hart’s model rules are followed not because of a
sanction but because of society’s acceptance of the rule being binding. The idea of
a rule implies an obligation. Hart distinguished rules of law other miscellaneous
rules such as rules of grammar and rules of social etiquette. Eg: People attending
church on Sunday is a habit and cannot be considered as a law. He considers
rules which generate pressure but short fall of physical sanctions as moral
obligations but if they do exert physical sanctions, they can be considered
primitive or rudimentary kind of law imposing legal obligations.
External and internal aspects
External Aspect of a rule is a statement of observed fact. Internal Aspect of a

rule is a sense of obligation to follow the rule. For example, an alien on earth
might simply stop at red light without having a sense of obligation to follow the
rules but a person who follows trafc rule in his country follows them because he
understands the need of trafc safety and thus has an obligation to follow the
same.
Primary and secondary rules of obligation
Primary rules are those rules of law which impose basic duty on individuals.
They determine what people ought and ought not to do and thereby create
obligations which people of a society need to follow. Eg:- Penal Code, Family
Code Secondary rules are those rules of law which governing the creation and
operation of the primary rules. Secondary rules are power conferring rules in a
way that they check the validity of primary rules. These rules lead to
establishment of judiciary, executive and legislature. As per Hart, a developed
legal system must have both primary and secondary rules. In absence of
secondary rules, legal system will be a primitive one and suffer from the
following:- o Absence of authoritative means to remove ambiguity in meaning
and application of laws o Primary rules of obligation are relatively static o No
authority for dispute resolution
Rule of Recognition
Rule of recognition is the ultimate criterion for verifying the validity of both
primary and secondary rules. In most of the countries’ constitution is the
ultimate rule of recognition. Hart’s theory of a developed legal system demands
the following:- o primary rules that are considered valid by the rule of
recognition are generally obeyed by citizens o rule of recognition is accepted by
ofcials as the standard of ofcial behaviour
Rule of recognition can change through peaceful or violent means. Change in

rule of recognition need not necessarily affect primary rules. Eg:- When India
55
gained independence from Britain, British laws found to be consistent with

constitution remained in power.
Hart on International Law
Despite the absence of the authoritative rule of recognition in international law

Hart considers it to be law properly so called. Hart justies this claim on his belief
that law can exist without a legal system.
He also asserts this claim on the grounds that International law rules resemble
the primary rules of obligation in a primitive society. They are law because
sovereign states consider them as obligatory and use them to press their claims
and to evaluate and criticise the conduct of other states.
Criticism of Austin
Austin’s theory does not take into account power conferring laws such as laws of
contract. Austin’s theory does not differentiate rules from habits. Rule requires
internal acceptance for obedience of rile unlike a habit. Austin theory does not
take into consideration the secondary rules. Austin theory considers the
sovereign’s power to be unlimited while Hart’s theory does not require the same.
Sovereign’s power could be limited to certain areas and if sovereign exercises its
power outside its power then that is not law as sovereign did not had the power
itself to go beyond its scope.
56
Unit-III
Historical School
1. Discuss elaborately the contributions of Henry Maine to the

Historical School of Jurisprudence.
Or
Discuss the contributions of Sir Henry Marne to the Historical
School of Jurisprudence. 25
Or
Discuss the contributions of Henry Maine to the Historical school of
jurisprudence. Also explain its shortcomings.
Ans,-
Sir Henry Maine was a British comparative jurist and historian. He is famous
for the thesis outlined in his book Ancient Law that law and society developed
‘from status to contract.’ He was a Cambridge Apostle. Shortly afterward, he
accepted a tutorship at Trinity Hall. In 1847, he was appointed a regius
professor of civil law, and he was called to the bar three years later, he held this
chair till 1854. Meanwhile, in 1852 he had become one of the readers appointed
by the Inns of Court.
Stages of Development of law:
1. Law made by the ruler under divine inspiration :
In the beginning, the law was made by the command of the king believed to be
acting under the divine inspiration of Goddess of justice. Who was above the law
and whose commands must be obeyed by the inferiors.
2. Customary Law:
In the next stage, the oce of the King or Judge was inspired by the heads of the
councils. Priest became a repository of law which circulated the King’s power and
claimed the sole monopoly of knowledge. Therefore, the priest class tried to
preserve the customs of race or caste intact. Since the art of writing was not
invented, the customs of the community became law for those who were united
with blood relations. In this way, we notice a special event. The concept of
custom is a development of the theory of Maine emerging behind the themesters
or judgments.
3. Knowledge of law in the hands of Priests:

57
In the next phase of the development of the law, in order to implement and
execute the law inspired by the Priest class, the King’s right claimed to be
learned in law as well as in religion. The priest class claimed that they
remembered the rules of customary law because the art of writing was not
developed till then.
4. Codification:
Then comes the era of codification marks the fourth and perhaps the final stage
of development of law. With the discovery of the art of writing, a section of
scholars and jurists came forward to condemn the authority of the priests as law
givers. He advocated the codification of the law to make it accessible and easy to
know. It broke the monopoly of the Priest class in matters of administration of
law. The most important codes of the era were Rome’s Twelve Tables, Codes of
Manu which were a mixture of moral, religious and civil laws, Twelve Tables in
Rome, Attic Code of Solomon, Hebrew Code, Codes of Hammurabi etc.
According to Henry Maine societies are two types;
Progressive Societies and Static Societies.
Progressive Societies:
According to Henry Maine, those societies which go beyond the fourth stage as
developing their laws, by new methods are called progressive
societies. Progressive societies develop their laws by the three methods namely;
Legal Fiction, Equity, and Legislation.
Static Societies:
According to Maine, when the primitive law has been embodied in a code, there
is an end to its spontaneous development and such communities or societies
which do not modifying or go beyond the fourth stage are called static societies
Criticism
Pollock while criticising Maine's view says 'his theory is limited to laws of
property only because personal relations e.g., marriage, minor's capacity etc. are
still matters of status not of contract. In totalitarian states there has been a
strong shift to the status again. In these countries a contract is allowed which is
in any way not in consonance with the state plan or is otherwise harmful to the
society. Moreover individual freedom of contract is curtailed by social legislations
e.g., fixing of maxi1num working hours and minimum wages, laying down rules
regarding compensation and other conditions of service. The thesis of Maine
denying-the title of conscious legislation is disproved by intense and still
58
unabated legislative activity which provides conscious direction and many a time
reverses the deeply rooted trends in society.
In spite of these defects, Maine's status to Contract' doctrine has been upheld by
many jurists. As Bodenheimer1 puts it, 'this doctrine is no mean to his
outstanding contribution to jurisprudence. He has enshrined our knowledge and
understanding of legal history in several respects.'
2. Discuss the characteristic features of Historical School of

Jurisprudence with its relevant merits and demerits. 25
Or
Illustrate the characteristic features of " Historical School with it,

relevant merits and demerits. 25
Or
What do you understand by historical school? Discuss the characteristic

features of the school with reference to von Savigny and Henry Maine.
25
Ans.-
The Historical School of Jurisprudence talks about the relation of the law with
society. The society’s laws and customs collectively become the law of the state. A
society has particular needs and wants which are directly proportional to the
behavioral pattern of the society.
Historical School of Jurisprudence describes the origin of law. This school argues
that the law was found not made. The main source of law is Kings Judgment,
Customs and habits. Jurists like Montesquieu, Savigny, Sir Henry Maine, and
Georg Friedrich Puchta are the supporter of the Historical School of
Jurisprudence
Distinctive characteristics of Historical School of Jurisprudence-
The rise of Historical school of jurisprudence may be traced to many causes. The
first is the reaction against the unhistorical assumptions of the natural law
theorists. Secondly, the attempt to find legal systems based on reason without
reference to past or existing circumstances was revolutionary in execution. The
culmination elf it was the French Revolution. Thirdly, the French conquests
under Napoleon aroused the nationalist Europe. Fourthly, the French also
spread the idea of codified law, and as a reaction to anything, which French
carried with them an aversion to the code was the result.
59
The term "Historical jurisprudence" is usually associated with the particular

movement in legal thought of which Savigny is its famous exponent and Maine is
its supporter.
The followings are the important characteristics of the Historical

School of jurisprudence
(1) Law is found, not made. A pessimistic view of the power of human action. The
growth of law is essentially unconscious and organic process; legislation is,
therefore, of subordinate importance as compared with custom.
(2) As law develops from a few easily grasped legal relations in primitive
communities to the greater complexity of law in modern civilization, popular
consciousness can no longer manifest itself directly, but comes to be represented
by lawyers, who formulate the technical legal principles. Legislation follows as
the last stage; the lawyer is, therefore, a relatively more important law making
agency than the legislator.
(3) Laws are not of universal validity or application. Each people develops its
own legal habits, as it has its peculiar language, manners and Constitution.
Savigny insists on the parallel between language and law. The VOLKSGEIST
i.e., the will of the people or consciousness of the people which manifests in
customs, tradition or habits of a particular mode of behaviour for a particular
occasion signifies itself in the law of the people it is therefore essential to follow
up the evolution of the VOLKSGEIST by the legal historical research. According
to Savigny, "law grows with nation, increases with it and dies at its dissolution
and is a characteristics of it".
Savigny deprecated the admiration bestowed upon the then codifications of law
in Prussia, Austria and France. Savigny was inspired by his profound study of
Roman law, whose development was to him the model of wise juristic guidance
moulding the law through gradual adaptation for centuries before the corpus
juris gave the final form of codification. This explains Savigny's preference for
the jurist rather than the legislator as the medium of legal progress. A somewhat
strained blend of Savlgny's two convictions, first, that legal science is better than
legal reform and second that popular consciousness is the source of all law, is his
contention that, in advanced civilization, the jurist represents and formulates
popular consciousness.
The main tenets of Savigny's theory can be summarized as follows :
(a) Law has an unconscious organic growth, it is neither found nor artificially
made.
60
(b) The basis of law is to be found in VOLKSGEIST which' means people's

consciousness or will, and consists of traditions, customs, habits, practices and
beliefs of the people.
(c) Law is not universal in nature, it varies with people, time and needs of the
community.
( d) Since law should always conform to popular consciousness (VOLKSGEIST)

custom, not only precedes legislation but is superior to it.
(e) With the growing complexity of law, the popular consciousness is represented
by lawyers who are nothing but mouthpiece of the popular consciousness.
The founder and the chief exponent of the English Historical school of law was
Sir Henry Maine. He was strongly influenced by Savigny's historical approach to
the problem of jurisprudence, but he went beyond Savigny in undertaking broad
comparative studies of unfolding legal institutions in primitive as well as
progressive societies.
3. Write notes on the following :

(a) Social Engineering
(b) Social Solidarity
4. What are the contributions of Von Savigny and Maine to the
Historical School of jurisprudence? Discuss in detail.
Ans.- Refer above Answer No 1&2
5. Discuss Savignys coribibution to historical school with its merits
and demerits.
Ans.-
Savigny was one of the most respected and influential German jurists in the
19th century and known as the pioneer of the Historical school of law through
his concept of Volksgeist (Spirit of people). He was born on February 21, 1779, in
Frankfurt, Germany. He studied at the Universities of Marburg and Gottingen
and obtained a deeper knowledge of the Roman law during his lifetime. He
worked as a Professor of The University of Berlin in 1810. He was also appointed
as the Prussian Minister of Justice in 1848. His major works are:
1. Law of Possession (das recht des bestiges), 1803,

2. The History of Roman law in Middle ages in six volumes, 1818-31,
3. System of Modern Roman law, 1840-49,
4. Contracts, 1853.4
What is Volksgeist?
61
Volksgeist is the concept of law propounded by the Savigny. The term Volksgeist
is made by the two word Volks means people and geist means their common will.
It means Volksgeist means the law is a common will of the people (spirit of the
people). In a simple sense, Volksgeist is a general and common perception of the
people or the spirit of the people. The main idea of Savigny behind this theory
was that law is an expression of the will of the people and it doesn’t come from
the deliberate legislation and it develops as the consciousness of the nation
arises. The core of Volksgeist was that a legal system of a nation is mainly
influenced by the historical culture and traditions of the people and its growth
was located in their acceptance.
Jurisprudential study of the theory:
As mentioned above, Savigny believed that the evolution of law can only be made
by taking account the past consideration and without doing that it creates more
amounts of confusion rather to solve it. According to Savigny, the origin of law
lies in the Volksgeist. For the purpose of this, he made a whole new school
known as the Historical school of Jurisprudence.
Theory of Savigny can be explained in the following heads:
1. Law prevails basically in society:
According to the Savigny, the law is the product of the people’s life living in a
particular society and it is the outcome of a culture of a society. It embodies the
whole history of a nation’s culture and reflecting inner convictions that are
rooted in society’s common experience. The Volksgeist gradually drives the law
to develop over the course of history. Thus, according to Savigny, a thorough
understanding of the history of people/society is necessary for studying the law
accurately.
2. Law develops like a language
Savigny stated that law develops like a language. He said that law is a national
character and develops like a language in the nation, which not only binds people
with belief and opinion in a group but also grows with the development of
society. The development of both elements goes hand in hand. It has no different
existence, which follows them but considers as a one being. History is proof that
law is developed according to the pre-existing manners in society and approved
by the national character, like language.
3. Law is a continuous and regular process:
Law is a continuous and unbreakable process bound by the common culture and
beliefs of society, not the product of the day. It develops by the regular and the
62
continuous process of society. Customs and usages in society are given common
consent to be followed by the society in the beginning and the people follow them
without any hesitation, insured willingly and those not follow become solitude in
the society and finally, all have to become common and this the thing takes the
shape of law on the society.
4. Savigny’s opinion for codification of law:
Savigny was against the codification of the law. He thinks that the development
of the law should be on the basis of the historical knowledge and not by the
arbitral legislation.
5. The initial development of law is natural and later on it is

developed by jurists:
He stated that in the early stages law develops naturally/spontaneously

according to the internal needs of the people but after people reached a certain
level of civilization, different kind of national activity developing the law
accordingly.
Savigny's Contribution
Savigny's contributions.- Savigny is considered by many to be the greatest

jurist of 19th century. Ihering said that with the appearance of Savigny’s
earliest work 'Das Rhect des Bestizes’ in 1803 modern appearance of
jurisprudence was born
His theory a reaction against natural law theories: Historic development

of law.- His theory came as a powerful reaction against 18th century ‘rationalism
and principles of natural law’, the advocates of which tried to establish a legal
theory of universal application without any consideration of time and place.
‘Prof. Allen rightly says that ‘the historical movement in jurisprudence may be
called the revolt of fact against fancy’. The view that the source of law is the
instinctive sense of right possessed by the community negative the conception of
the unitary sovereign whose command is law. He made the ‘juristic world
perpetually conscious of the iceberg quality of law, with its present pinnacle
concealing and denying the hidden nine-tenths of its past. The only defect with
the theory was that it exaggerated this aspect.
His main thesis still unimpaired.- The great truth that the theory of
Volksgeist contains is that a nation’s legal system is greatly influenced by the
culture and character of the people. Savigny was mainly occupied with how law
becomes and whether it tends, or what the conscious effort can make it to tend,
and his thesis respect still substantially hold good.
63
Theory in hands of National Socialists.- It was the misfortune of this theory that
national socialists used the doctrine of Volksgeist for an entirely different
purpose. To them, nation means a racial group and the function of the law was to
keep it pure and to protect it. This view led to the passing of most ruthless and
brutal laws against the Jews in Nazi Germany.
Savigny’s influence very wide.- The theory of historical school, later on,
influenced many jurists. It was after Savigny that the value of the historical
method was fully understood. Apart from his followers in his own country and in
the Continent, his method was followed in England by Maine, Vinogradoff, Lord
Bryce, and many others who made studies of various legal systems on historical
lines and purged them of many of the exaggerations of Savigny'~ theory and
traced the course of evolution of law in various societies. Pollock, Maitland,
Holdsworth and Holmes in their works pointed out that the course of
development of Common Law was determined by social and political conditions
of particular time.
Seeds of Evolutionary and Sociological theories : Warning against hasty

legislation.-The view that law is closely connected with the people and it closely
evolves contained the germs of future sociological theories. That is why Savigny
is called by some as Darwinian before ‘Darwin and a sociologist before ‘Darwin
and a sociologist before sociologists’. After Savigny, Ehrlich stressed the
importance of the study of 'living law’, which, he said, is different from the dry
skeleton of law, that is, law, in its formal shape. Savigny sounded a note , of
warning against hasty legislation and the introduction of revolutionary ideas
and aspirations based on abstract principle. His influence in Germany was great
and the codification was delayed for a long time.
Criticism
As already discussed, a uniform and precise definition of law is far from reality,
and Savigny’s Volksgeist is not an exception. It has also some criticisms by other
jurists, which are as follows:
1. Volksgeist not always law:
Dias says that many institutions like slavery have originated not in Volksgeist
but in the convenience of a ruling oligarchy.
2. Not clear who the volk are and whose geist determines the law:
It is also not clear, who the volk are and whose geist determine the law nor it is
clear whether the Volksgeist may have shaped by the law rather than vice-versa.
3. Inconsistency of the theory:

64
Savigny, on the one hand, emphasized the national character of law but on the
other hand, he recommended the method of Roman Law to be adopted for the
modern conditions. Hence there is inconsistency in the theory of Volksgeist.
4. Volksgeist is not an exclusive source of law:
According to the Savigny, Volksgeist is the only source of law in society, but it is
not correct. Lord Lloyd also said that Savigny underrated the significance of
legislation for modern society. As far as society is developed the law is also to be
developed in the society by legislation also.
5. Other law influencing factors ignored:
Savigny in his theory ignored other factors that helped to originate law. He
totally ignored the judge's function to create the law. Paton states that the
creative work of the judges and jurists were treated rather too lightly by
Savigny.
6. It was unfortunate that the doctrine of Volksgeist was used by the National
Socialist in Germany for an entirely different purpose which led to the passing
brutal laws against the Jews during the regime of Hitler in Germany.
Conclusion:
As per the above-mentioned matter, it can be said that Savigny in his theory
deliberately focused on his theory of Volksgeist on which of his research was
depending upon. In his theory, he says that law is derived from the customs,
tradition and rules of the community and spirit of the people are important in
the creation of the law and the role of the sovereign is very less. He thinks that
by deep and careful study of the customs, the true essence of the law developed.
Although, the theory of Savigny was not sufficient for making law and was
criticized by many jurists as stated above, but despite all these criticisms,
Savigny became the founding stone of the beginning of modern-day
jurisprudence.
In the end, we conclude that for better governance of the society, the
legislators should develop the law on the basis of the customs and tradition of
the people, The sovereignty of the legislation and on any grounds. Because then
only the law can be developed more efficiently and effectively.
Sociological School
65
1. Discuss the characteristic features of sociological jurisprudence.

Also explain the contribution of Roscoe Pound In the field of
sociological jurisprudence. 10+15=25
Or
Elaborate the characteristic features of sociological school of
jurisprudence with reference to the contributions of Duguit and
Roscoe Pound.
Or
What are the characteristics of Sociological School of
Jurisprudence? Discuss the theory of interests laid down by Roscoe
Pound. 15+10-25
Or
Explain the characteristic features of sociological School of

Jurisprudence with reference to the contribution of Roscoe Pound.
Or
Explain the characteristic features of the Sociological School of
Jurisprudence with reference to the contributions of Roscoe Pound.
Or
Explain the characteristic features of sociological school of
jurisprudence.
Or
"Sociological Jurisprudence is the latest major trend in legal theory”
Elucidate the above statement referring to the contribution of
Roscoe Pound. 2 5
Or
Discuss the meaning of social engineering with reference to Roscoe
Pound’s contribution to Sociological School of Jurisprudence. Also,
highlight Duguit's concept of social solidarity.
Ans.-
The main subject matter of sociology is Society. Sociology is the study of society,
human behavior, and social changes. And jurisprudence is the study of law and
legal aspect of things. The Sociological school of Jurisprudence advocates that
the Law and society are related to each other. This school argues that the law is
a social phenomenon because it has a major impact on society.
The main feature of Sociological school of law:
1. Sociological School of Law is emphasis more on the functional aspect of law

rather than its abstract content.
66
2. They consider law as a social institution essentially interlinked with other

scientists and the direct impact of the law on society with its formation
according to social needs.
3. Sociological School of Law completely neglects positivism i.e. the command
of sovereign and also historical jurisprudence.
4. Sociological jurists describe the perception of the law in different ways like
the functional aspect of law or defining the law in terms of courts rulings
and decisions with a realistic approach of law.
The main exponents of sociological jurisprudence are: Montesquieu, Auguste

Compte, Albert Spencer, Ihering, Ehrlich, Duguit, Roscoe Pound etc. The French
thinker Auguste Compte is regarded as founding the father of the sociological
school of law.
August Comte (1798-1857) was a French Philosopher. The term “Sociology” was
first used by the Comte and he described Sociology as a positive science of social
facts. He said that Society is like an organism and it could progress when it is
guided by Scientific Principles. Thus, he makes great efforts to use the law as a
tool by which human society maintains itself and progresses.
After Comte, many Writers and Jurist tried to connect the society and law
together. And tried to find a link between law and sociology.
Meaning of Sociological school of Jurisprudence
The idea of Sociological School is to establish a relation between the Law and
society. This school laid more emphasis on the legal perspective of every problem
and every change that take place in society. Law is a social phenomenon and law
has some direct or indirect relation to society. Sociological School of
Jurisprudence focuses on balancing the welfare of state and individual was
realized.
In the words of Ehrlich, “At the present as well as at any there time, the centre
of gravity of legal development lies not in legislation, nor in the juristic decision,
but in society itself. ”
Sociological School of Jurisprudence studies the relationship between the law

and sociology. Every problem or concept has two different aspects. One is
sociological view and other is a legal aspect. For example Sati.
Legal and Sociological aspect of Sati
Sati was the ancient Indian practice of burning the widow on her husband’s
funeral pyre.
The legal aspect:

67
Sati Pratha was first abolished in Calcutta in 1798. A territory that fell under
the British jurisdiction. A ban on Sati was imposed in 1829 in the British
territories in India. In today’s time, the practice of Sati is banned under the
Prevention Of Sati Act (1987) which makes it illegal to force or encourage anyone
to commit Sati.
The sociological aspect
In today’s era of escalating feminism and focus on equality and human rights, it
is difficult and amiss to digest the ruthless Hindu practice of Sati. Indeed, the
practice is outlawed and illegal in today’s India.
BASIC TENETS OF SOCIOLOGICAL SCHOOL
Following are the basic tenets or characteristics of the sociological school.
2. Sociological jurists regard the working of the law rather than the abstract
content of the authoritative precepts.
3. Sociological jurists regard the law as a social institution, which may be
improved by intelligent effort. Hence it is the task of the jurists to find out the
best means of furthering such efforts.
4. Sociological jurists lay stress upon the social purposes which the law serves
rather than upon sanctions.
5. Sociological jurists look on legal institution and doctrines and precepts
functionally. They regard the form of legal precepts are a matter of means
only.
6. According to this school, the main function of law is to fulfil the needs if
society. Social requirements are accomplished by law. Law is also a social
instrument for maintaining law and order in the society.
Jurist of the Sociological School of Jurisprudence
Roscoe Pound (1870-1964)
Pound was an American Legal Scholar. His view is that law should be studied in
its actual working and not as it stands in the book. He was one of the most
leading and important jurists who developed American sociological jurisprudence
is a systematic manner. His major works are:
1. Spirit of the common law.

2. An introduction to the philosophy of law.
3. Interpretation of legal history.
4. Law and morals.
5. The formative era of American law.
6. Administrative law.
68
7. Social contract through law.

8. The task of law.
He treated law as a means of affecting social control and his contribution to

jurisprudence is great.
The functional aspect of the law.
Roscoe Pound gave stress on the functional aspect of law. He defines law as
containing the rules, principles, conceptions and standard of conduct as a
developed technique of social engineering. The main function of law is to satisfy
the maximum number of people. Not only this function but also to reconcile the
conflict in the interest of individuals and society.
Theory of Social Engineering
Roscoe Pound gives the theory of Social Engineering in which he compared

lawyers with the Engineers. Engineers are required to use their engineering skill
to manufacture new products. Similarly, social engineers are required to build
that type of structure in the society which provides maximum happiness and
minimum friction.
According to Pound, “Law is social engineering which means a balance between

the competing interests in society,” in which applied science is used for resolving
individual and social problems.
Social Engineering is the balancing the conflicting interest of Individual and the
state with the help of law. Law is a body of knowledge with the help of law the
large part of Social engineering is carried on. Law is used to solve the conflicting
interest and problems in society.
He mentioned that everybody has its own individual interest and considered it
supreme over all other interest. The objective of the law is to create a balance
between the interests of the people. For Example, Article 19 of the Indian
Constitution provides ‘Rights to speech and expression’ but on the other side,
State put some restriction on this right. And when the conflict arises between
Individual right and State’s restriction, then the law comes to play its part. And
solve the conflict between the interests.
He describes that there are various kinds of interests in society and the main
task of law is to make all possible efforts to avoid conflict between them. Thus,
courts, legislature, administrators and jurists must work with a plan and make
efforts to balance these three categories: Public, Private and Social Interests.
Interest Theory
69
Roscoe Pound in his interest theory mentioned the three kinds of interest. To
avoid the overlapping of the interests, he put boundaries and divide the kinds of
interests.
Individual/ Private Interest
1. These are claims or demands involved from the standpoint of the

individual life which consists of interest of personality, interest in
domestic relations and interest of substance. The individual’s interest is
known as private interest like physical integrity, reputation, etc. and
they’re protected by the law of crime, torts and Contract Law, etc.
2. Domestic relations of a person such as a husband and a wife, parents and
children, etc. are protected by Personal Law.
3. The interest of the property, succession, contractual relations,
testamentary relations, etc. are protected by Property Laws.
Public Interest
1. These are the claims or desires asserted by the individual from the
standpoint of political life which means every individual in a society has a
responsibility towards each other and to make the use of things which are
open to public use. Main public interest is interest in the preservation of
States.
2. Administration of trust, charitable contracts, protection of the
environment, regulation of public employment, etc. are being protected by
the States.
Social Interest
These are the claims or demands in terms of social life which means to fulfill all
the needs of society as a whole for the proper functioning and maintenance of it.
Interest in the preservation of general peace, health, security of transaction’s,
preserving social institutions like religion, politics, economic.
1. Interest in preservation of peace and health.

2. Preserving social institutions of religion, politics and economics.
3. Preserving certain prohibiting acts like prostitution, gambling, etc.
4. Conservation of social and natural resources.
5. General progress including economic, political and cultural areas. For e.g.-
Freedom of Trade and Commerce, Speech and Expression, etc.
6. Interest to make a political, physical, social and economic life to promote
personality.
Jural Postulates by Roscoe Pound

70
According to Roscoe Pound, every society has certain basic assumptions for
proper order and balance in society. These assumptions are implied and not in
expressed form and are called as Jural Postulates of the legal system of that
society. These assumptions of man related to the reference for what they want
from the law or legal system or we can say that it is the expectation of a man
from the law. He has mentioned five kinds of jural postulates:
1. In a civilised society, man must be able to assume that others will not
commit any intentional aggression on him.
2. In a civilised society, man must be able to assume that they must control
for beneficial purposes. E.g.- control on whatever they discover or create by
their own labour.
3. In a civilised society, man must be able to assume that those with whom
they deal as a number of societies will act in good faith.
4. In a civilised society, man must be able to assume that the people will act
with due care and will not cast unreasonable risks of injury on others.
5. In a civilised society, man must be able to assume that certain people must
restrain from doing harmful acts under their employment and agencies
which are otherwise harmless to them.
So, these Jural Postulates are a sort of ideal standards which law should pursue
in society for civilised life and with the changes in society, the jural postulates
may emerge or originate in society.
POUND’S CONTRIBUTION
Pound's Contribution theory free from dogmas: He points out the

Pound's responsibilities of the judge and the lawyer.- Pound's contribution
to jurisprudence is great. He takes a middle way avoiding all exaggerations. He
speaks of values but says they are relative. He emphasises 'engineering but does
not forget the task of maintaining of balance. His approach is experimental. does
Pound's theory stands on a practical and firm ground and it has inspired great
practical field-work. His emphasis on studying the actual working of legal rules
in the society, the importance of social research for good-law malting and
pointing out the great constructive function which the law is to perform are very
valuable contributions to Jurisprudence. He points out the responsibility of the
lawyer, the Judge and the Jurist and gives a comprehensive picture of the scope
and field of the subject. Pounds influence on modern legal tl1ought is great and
the study of the subject is being undertaken under the light of his theory.
Other Sociological jurists and legal theories

71
It is perhaps not possible to discuss all the sociological Jurists and their theories
in this book. In modern times, social relations are owing more and more complex.
The concept of state and its relation with individuals have undergone a drastic
change. New interpretations are being given to these changes some under the
influence of various political theories ·and others on the basis of a partial picture
of law. Some of the modem theories are not more than an analysis of the legal
systems of the countries in which they have been propounded. Some have
classified these jurists as Nazi, Fascist, Soviet or Communist, or American. The
technical and complicated machinery of tl1e administration of municipal law ·
and the increasing importance of International Law has also given birth to 11ew
theories which we shall discuss separately under the headings 'Realist School'
and 'Pure Theory of Law' and 'Communist Theory' in some detail.
Leon Duguit (1859-1928)
Leon Duguit was a French Jurist and leading scholar of Droit Public (Public
Law). He was greatly influenced by the Auguste Comte and Durkheim. He gave
the theory of Social Solidarity which explain the social cooperation between
individuals for their need and existence. Duguit’s theory was based upon
Auguste Compte statement that “the only right which man can possess is the
right towards his duty.”
Social Solidarity
Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents
the strength, cohesiveness, collective consciousness and viability of the society.’
Leon Duguit’s Social Solidarity explain the interdependence of men on his other
fellow men. No one can survive without the depending on other men. Hence the
social interdependence and cooperation are very important for human existence.
The objective of the law is to promote Social solidarity between individuals. And
Leon Duguit considered that law as bad law which does not promote social
solidarity.
Further, he also said that every man had the right and duty to promote social
solidarity.
For Example, in India, the codified laws are followed by everyone. Hence, it
promotes Social Solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW
1. Mutual Inter dependence : In society all persons are depending upon

each other. Individual cannot fulfill his ambitions alone.
72
2. No difference between state & society: State and society are a group of
persons. Main purpose of the society is to save the people. This
responsibility is also lies upon the state. So state does not have a special
status or above status from people. State should make law for the welfare of
the people.
3. Sovereign and will of people: Sovereign is a politically superior person.
Duguit says that sovereign is not superior to people. The sovereign of a state
lives in people or in the will of people.
Importance of Duguit’s theory:
1. Over emphasises was given on duties rather than rights.

2. The direction towards mutual cooperation among individuals in society.
3. Law as an instrument of social solidarity to promote justice.
Duguit's Contribution
Duguits influence great; His idea of justice is in social terms Later
jurists took inspiration from him.- Despite defect and weakness in Duguit's
theory, his contribution and influence were great. His approach is very
comprehensive and sincere. Though his theory ultimately becomes a theory of
natural law, or a theory of justice, what we find in it is perfectly in social terms
and derived from social facts. He shaped a theory of justice out of the doctrines of
sociology. Many later jurists, though proceeding from different premises, reached
similar conclusions as Duguit had reached (especially about the state, right and
public and private law.) National socialists and Soviet jurists both adopted many
of the principles from Duguit's theory but interpreted it in such a way as to suit
their purpose or took only such part of the theory which supported their
activities. Inspired by Duguit's emphasis on the importance of 'group' many later
jurists such as Hauriou and Renard propounded Institutional theory'. Though
Duguit's theory holds good hardly on any point, he is credited for his original and
comprehensive approach which inspired many jurists to propound new theories.
Gierke (1841-1921); His main thesis that group has a real personality; He
was a German jurist. He is known mainly for his theory of reality of group
personality'. But this theory makes a sociological approach to law also. He made
a study of legal history with special attention to associations or groups as a social
and legal phenomena. He traced the course of social and legal development and
its relation with the practice of associations. His main thesis is that as a social
and legal entity, group has a real personality. This personality is not a
concession by the State or is subject to recognition by it. His view of the organic
conception of the community and simultaneous development of social and legal
institutions is a contribution to sociological thought.
73
UNIT-IV
Realist school
1. "Realist movements concentrate on decisions; law only on official

action." Critically analyze the contributions of Jerome Frank and
Llewellyn in the field of American Realism. 25
Ans.-
THE REALIST MOVEMENT- LEGAL REALISM
Legal realism implies that judicial decisions must conform to socio-economic

factors and questions of policy and values. In America we have the Realist School
of jurisprudence. This school fortifies sociological jurisprudence and recognises
law as the result of social influences and conditions, and regards it as judicial
decisions.
K. N LLEWELLYN
Karl Llewellyn, in his earlier writings was a spokesman for orthodox realist
theory. He argued that the rules of substantive law are for less importance in the
catula practice of law than had hitherto been assumed. “The theory that rules
decide cases seems for a century to have fooled, not only library-ridden recluses,
but judges.” He proposed that the focal point of legal research should be shifted
from the study of rules to the observance of the real behaviour of the law
officials, particularly the judges. “What these officials do about disputes is, to my
mind, the law itself.”
This last statement, however, was withdrawn by Llewellyn in 1950. In his more
recent writings, he has placed a somewhat greater stress on the importance of
normative generalization in law, pointing out that the rule part of law is “one
hugely developed part” of the institution, but not the whole of it. He has also, in
keeping with the postulates of sociological jurisprudence, sought to explore the
relations and contacts between the law and the other social sciences, coming to
the conclusion that the lawyers as well as the social scientists have thus failed to
make an “effective effort at neighborliness.”
K. N Llewellyn concentrated rather on the uncertainty in the actual operation of

the rules in appellate courts- he wished to make a sustained and realistic
examination of the best practice and art of the best judges and their judging and
he had, in a major work attempted just such a study.
74
In America, sociological jurisprudence has developed an extreme wing under the

name of the Realist School. The sociological method has brought legal science
into intimate relation with the facts of social life and made jurists recognise law
a product of social forces.
Llewellyn, one of the exponents of the realist movement, has set forth the
following points as the cardinal features of American realism;
1. Realism is not so much a new school of jurisprudence as a new methodology

in jurisprudence.
2. Realists regard law as dynamic and not as static. They regard law as
serving certain social ends and study any given cross-section of it to
ascertain to what extent these ends are being served.
3. Realists, for the purpose of observation of the functioning of any part of the
legal system accept a ‘divorce of is from ought”. This means that the ethical
purposes which, according to the observer, should underlie the law, are
ignored and are not allowed to blur the vision of the observer.
4. Realism emphasises the social effects of laws and of legal decisions.
Another leading realist was Frank (1889-1957) who was known as a

“constructive legal sceptic.” Mr. Justice Cardzo, in his “The Nature of the
Judicial Process”, points out that law never is, but is only about to be. Even
existing decisions may be overrules. Law is not something certain- not what the
judges have said, but what they will do.
JEROME FRANK: FATHERS’ 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 an aura of
security, and although he attributed great prominence to this factor. He offered
75
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.
2. "The prophecies of what the courts will do in fact and nothing more
pretentions are what I mean by law." Oliver Wendell Holmes. Explain
the above with reference to the American Realist Movement in the
field of legal science.
Ans.-
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 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
76
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 Stonecalls the realist movement a ‘gloss’ on the
sociological approach.[6]
Justice Holmes (1841-1935)
Oliver Wendell Holmes J. is famous for his “bad man’s theory” which looked at
law from a criminal’s perspective. Law, according to him, is meant for the
potential criminals or the “bad man”. He took note of the various denitions of law
based on principals of ethics, morality and natural law and rejected all of them
stating that the bad man only cares about what the courts will do if he commits
certain acts. Such predictions or “prophecies” regarding the actions of the courts
is known as the law. He believed in the complete separation of law and morals.
He was interested in studying law “as it is”.
Legal history, according to him, should only be studied to analyze the relevance
of certain historical laws in contemporary times. His denition of law as
‘prediction’ resulted in the increased importance of litigation and lawyers in the
eld of law. His approach towards law can be said to be empirical and pragmatic.
Through his literary works and the writings as a judge of the Supreme Court of
America, Holmes brought about a signicant amount of change in the overall
attitude towards the law.
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.”
3. Discuss the main features of American Realism as outlined by

Jerome Frank and Llewellyn. 12½+12½=25
Ans.-
77
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.
KARL N. LLEWELLYN:
A LAW JOBS THEORY:

78
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:-

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.

79

In this regard Jerome Frank has given theFathers’ Symbol Theory. The child
anthropology, sociology, economics, politics etc[12]. 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
80
purposive ‘ought’, but only predictions of judicial behavior analogous to the laws
or science.
4. What do you mean by American legal realism? Discuss its

characteri1tics in detail.
Ans.-
AMERICAN REALIST SCHOOL OF JURISPRUDENCE
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.
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 AND DEFINITION OF THE AMERICAN REALISM:
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-
81
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”.
BASIC FEATURES OF REALIST SCHOOL:
There are certain principal features of realistic jurisprudence as outlined by Karl

Llewellyn and Prof. Goodhart:

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
82
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.
5. Discuss the contributions of Holmes and Jerome Frank in the field of

American legal realism. 25
Ans.-
See the above answer No. 1 & 2
6. Discuss the contribution of Frank and ' Llewellyn in the field of

American legal realism with its merits and demerits.
Ans.-
KARL N. LLEWELLYN: A LAW JOBS 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:-

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’.[9] 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[10]:
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.
83
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.

In this regard Jerome Frank has given theFathers’ Symbol Theory. The child
84

anthropology, sociology, economics, politics etc[12]. 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 THE AMERICAN REALIST SCHOOL TO

JURISPRUDENCE: Merits
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[13].
CRITICISM OF AMERICAN REALIST SCHOOL: Demerits
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
85
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.
7. Explain the main tenets of Realist movement. Also, distinguish

between American Realism and Scandinavian Realism.
Ans.-
Basic Tenets of the Realist School :
1 .It is the combination of positivist and sociological approaches. As in

positivism, the law is seen as it is and not as it 'ought' to be. It also emphasises
the importance of some aspects of society.
2. The _entire emphasis of this school is centered around the judge, the law 1s
what Judges decide. 3. The approach is empirical.
4. Law is what courts do and not what they say.
5. Doctrine of prudente is the main source of law.

86
Comparison of Scandinavian and American Realism
(1) The Scandinavian Realists share with sociological jurists like Pound a
weakness for a priori assertions, while at the same time insisting on the use for
basing the law on the needs of social life. But the Scandinavians link this
attitude with varying degrees of hostility to conceptual thinking, which they
stigmatize as metaphysical or ideological. The American Realists, on the other
hand, are not much interested in general theorising about law and although they
may share with the Scandinavians the feeling that rules do not decide cases,
they do not altogether reject the normative aspect of legal rules.
(2) American Realists are mainly interested in the practical working of the
judicial process whereas the Scandinavians are more concerned with the
theoretical operation of the legal system as a whole.
(3) Although the Scandinavians are the most extreme of empiricists, it is

the Americans who primarily stress the need for factual studies in working out
proper solutions for legal problems.
(4) The Scandinavian movement, for all its positivism, remains essentially
in the European Philosophical tradition, whereas the American bears many of
the characteristics of English empiricism.
There are some major differences between Scandinavian Realist and

American Realist School. But some similarities in approach can also been I seen
in this two approaches. Both movements are radical and iconoclastic in their
purpose and this attitude is reflected primarily in their respective attitudes to
legal rules. According to John D. Finch1 Scandinavian treat the notion of a valid
rule as something which exists in the imagination only. The American realists
emphasise the impraticablility of describing the judicial process or of predicting
its outcome, solely in terms of legal rules. Thus the Scandinavians concern
themselves primarily with the character of legal rules, while the Americans
examine the content of law and the interaction of rules, policies and principles
within a legal system. A common tendency is to minimise the normative
character of law and to investigate legal problems by means of the methodology
of the physical or empirical sciences.
Law and morality
8. Distinguish between law and morality. Also dwell upon Hart-

Dworkin debate on law and morality.
Ans.-
87
Difference between Law and Morality:
(1) There is a marked distinction between law and morality. The first point of
difference is that laws are enforced by the state whereas canons of morality are
followed at the call of institution. If one disobeys the commands of law or violates
the laws, he is liable to be punished by the state but if one fails to observe the
scruples of morality, he is not liable to be awarded physical punishment. The
severest punishment that can be awarded to a person for not observing the
scruples of morality is his social boycott.
(2) Morality is concerned with both internal and external affairs of man whereas
law is concerned only with the external affairs of man. Hence, law punishes only
those persons who violate laws by their external actions. For example, law
punishes a person only when he-commits a theft or dacoity or murder or any
other physical crime.
Law cannot punish a person for telling a lie or for abusing some-one. Telling lies,
condemning someone, showing disgrace to others, being ungrateful and many
other internal actions of man are sins but they are not crimes.
(3) There are many things which are not illegal according to law but are
unacceptable to morality. For example, telling lies, showing disgrace to others,
feeling greedy, being ungrateful and not helping the poor, are not against the
spirit of law.
Not only this, sometimes the adoption of immoral policies by the state for the
cause of common welfare is not illegal in the eyes of laws. Machiavelli
maintained that even the immoral practices are legal, if they are applied for the
benefit of the state.
(4) Similarly, there are many things which are illegal in the eyes of the state but
are acceptable to morality. For example, it is not a sin not to keep to the left or to
drive the vehicle fast in the market. The fact is that the canons of morality are
concerned with the moral duties whereas the laws of the state are concerned
with the legal duties.
(5) Another point of distinction between law and morality is that laws are certain
and universal and they are universally applicable to all citizens whereas the
canons of morality are quite uncertain.
Not only this, many time’s different races have different canons of morality in a
society. For example, a large number of people think it immoral to eat meat and
drink wine. But at the same time, there are people in India who think it quite
moral to eat meat and drink wine.
88
(6) The government should, at rst, arouse the moral sentiment of the people and
then enforce the laws. The laws which are not based on the sentiment of morality
are less effective and less permanent.
For example, Sharda Act is quite ineffective these days. In the end, we can say
that morality cannot be thrust upon the state. And it is also clear that law
cannot cover all the ground of morality. “To turn all moral obligations”, says
MacIver, “in legal obligations would be to destroy morality”. “There is thus a
legal conscience as well as a moral conscience, and they do not always coincide”.
Dwell upon Hart-Dworkin debate on law and morality.
“The moment now seems opportune to step back and ask whether the
Hart/Dworkin debate deserves to play the same organizing role in the
jurisprudential curriculum of the twenty-first century that it played at the close
of the twentieth. I am inclined to answer that question in the negative, though
not, to be sure, because I can envision a jurisprudential future without Hart’s
masterful work at its centre. Rather, it seems to me – and, I venture, many
others by now – that on the particulars of the Hart/Dworkin debate, there has
been a clear victor, so much so that even the heuristic value of the Dworkinian
criticisms of Hart may now be in doubt.”
Hart-Dworkin Debate
Before we can look at the issue’s surrounding the question concerning the
Hart/Dworkin debate or anything can be discussed the first thing to be
addressed is who Hart was, and who Dworkin is and what the subject matter
concerns.
Professor Hart was one of the most important legal and political philosophers of
the twentieth century. A valuable starting point of Hart is from ‘Positivism and
the Separation of Law and Morals’, where he states there are five main views
that seem to be associated with legal positivism;
That Laws are commands of Human Beings.
That there are no necessary connection between law and morals.
That a legal system is a closed logical system in which correct decisions may be
deduced from predetermined rules by logical means alone.
That the analysis of legal concepts is worth pursuing, distinct from sociological
and historical enquiries and critical evaluation.
That moral judgments cannot be established as statements of fact.

89
Certain jurists are described as positivists and these include Hart, Bentham,
Austin and Kelsen. They were seen as the most seemingly influential within
jurisprudential theory of law, but each of these writers not only pose different
questions , but each of their methods of enquiry and objectives are as different as
the features they tend to share. Legal positivism concentrates its attention on
what law is, not on what its substantive content should be, nor on what useful
things can or could be done with it.
Jurisprudence is the study of the nature of law, one of the main questions that
may occur in a person’s mind is ‘what is law?.’ John Austin made this question a
focus of his attention and in the late ninetieth century Austin’s views were
established as a dominant force within English legal thinking, and his work
within jurisprudence has been regarded in the Anglo-American tradition as the
leading work in opposition to the natural law theory.
Austin’s notion of law, as orders backed by threats of sanctions, with the

fundamental legitimacy of the legal system resting on a general ‘habit of
obedience’, was so simplistic that it would have been difficult not to improve on
it. His legal positivism sees the issue of laws reducing to the issue of who sets the
rule or command and how it is enforced. This has been criticised (including
principally by Hart) as “the gunman situation writ large”. Austin most certainly
did not set out to arrive at an analysis of law conterminous with the bully-boy
situation . He was, however, dissatisfied with much of the fairly vacuous and
impenetrable material which was being taught and in British universities.
Austin’s was seen as a back-to-basics approach to the analysis of law.
Austin himself was a disciple of Bentham and both Austin and Bentham
represent the classical school of English legal positivism, which are often
regarded as misguided. Bentham sought to subject the common law to the cold
light of reason, he attempted to demystify the common law and to expose what
actually lay behind the mask . The law itself at the time was a perplexing
network of technical rules created by lawyers and judges, which seemed to serve
their own interests.
Bentham devoted a significant portion of his onslaught against the common law
tradition to the theory of common law and the extent to which the theory itself
differed from actual practice. In the eighteen century the common law was
considered to be an expression of immemorial custom and long standing practice
which embodied natural reason.
For Bentham the law lay quite simply in codification and he stated that once the
law was codified “ a man need but open the book in order to inform himself what
the aspect borne by the law bears to every imaginable act that can come within
the possible sphere of human agency” .
90
A number of points have been made concerning both Austin and Bentham, but
Kelsen was seen by some as being the least understood of legal theorists . He
insisted on the separation of law and morals. His “pure” theory of law had
become as important as Hart’s theory and to some represents a significant
strand of modern legal positivism. The ‘pure’ theory is a profound statement
about the way in which he states the law should be understood, he argues that it
should be conceived to be a system of ‘ought’s’ or ‘norms’, but he also
acknowledges that the law consists not merely of norms, but is made up of legal
norms and legal acts as determined by those norms. By ‘norms’ Kelsen meant
that something ought to be or ought to happen, especially that an individual
ought to have behaved in a specific way.
Joseph Raz another legal theorist argues that the identity and existence of any
legal system can be tested by reference to three elements; sources, efficacy and
institutional character. He states that law is therefore autonomous and can be
identified without recourse to morality. Raz says the existence of every law and
its content can be determined by a factual enquiry about conventions,
institutions and the intention of the participants within the legal system. Law
always concerns facts, it is never about moral judgements, and some therefore
see Raz as a Hard Positivist. He believes that the law is authoritative and it
guides behaviour in a way that morality cannot do, the law asserts its primacy
over all other codes of conduct and is the ultimate source of authority.
Although Hart was a positivist, he did acknowledge that it was a far cry from the
largely coercive picture of law painted by his predecessors. He believed that law
is a social phenomenon and can only be explained by reference to the actual
social practices of a community . Hart says there is a necessity for rules that
protect property and persons, but despite this view he did not say that law is
derived from morals or that there are any conceptual relationship between the
two.
Hart wanted to advance legal theory by providing an analysis of the distinctive

structure of legal systems and a better understanding of the differences between
law, morality and coercion.
Hart tells us within his book The Concept of Law, there are certain matters that
influence human behaviour and he divides these into two categories, social
habits and social rules. Hart maintains that a legal system, in contrast to a set of
unrelated laws, consists of a union of primary rules of obligation and secondary
rules of which the most important he believes is the ‘rule of recognition’. Primary
91
rules are ones that actually tell people to do things or not to do something, they
lay down duties. Secondary rules are concerned with the primary rules in that
they lay down the ways in which primary rules may be introduced, can be varied
or can be abandoned.
Hart believes the secondary rules are very important in any society as an
attempt to analyse the law in terms of a single type of rule would be distorted, so
the secondary rules attempt to cure failing within primary rules. He argues the
most important feature of the secondary rules is the ‘rule of recognition’, as
through this rule, conduct can be regulated even if there are some moral
disagreements. Wherever such a rule of recognition is accepted, both private
individuals and officials are provided with authoritive criteria for identifying
primary rules of obligation. Thus Hart believes that the basis of any legal system
is where the primary rules are identified by the secondary rules of recognition.
Furthermore Hart in distinguishing primary rules of obligation from the

secondary rules he takes the position that there is at least one type of law that
imposes an obligation , which tells citizens that they must not do this or that
they must do it, which raises the question of what an obligation with respect to
legal rules actually mean .
In developing his theory of a legal system, Hart rejects both the strictly formalist
view and the rule-scepticism movement and in doing so he strikes a compromise,
he accepts that laws are indeed rules, but also recognises that for a judge to
arrive at a decision, they have a wide discretion and he is driven to this
conclusion by virtue of the rule of recognition.
Dworkin’s opinion is demonstrated by the use of his interpretive theory and that
is once the law is identified (pre-interpretive stage), he states that it should then
be justified (interpretive stage), for example a crime of burglary is justified by
the moral need for the person to protect his/her property. He states that a legal
theory does not merely identify the rules of the legal system, but it interprets
them and allows them to be evaluated.
A starting point of Dworkin’s philosophy of law might sensibly be regarded by

some as an attack on Hart’s model of rules. For Hart has an understanding of
what the law is and what the law should be. Dworkin says this is unacceptable
as law consists not merely of rules, but a court when it has to decide on a hard
case will draw on moral or political standards, principles and policies in order to
reach the appropriate decision.
Dworkin’s criticism concerning Hart’s theory of legal positivism has been seen in
many articles since its appearance in Dworkin’s ‘The Model of Rules I’ Dworkin
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argues; the continually changing nature of law means that it should be analysed
in terms of justice, legal principles and morals, not just plain facts.
The sequence of the debate has been Hart’s Concept of Law, published in 1961,
then it was Dworkin’s criticism of Hart’s thesis Law’s Empire, published in 1986.
Hart’s response to Dworkin is contained within the Postscript of the second
edition Concept of Law, which was published in 1994. The principle difference
between the two writers is that Hart, at the point where the law is incomplete, in
that it provides no answer to a question, then the judge can exercise his
discretion in reaching a solution to fill the gap, thereby creating new law.
Dworkin says the law never runs out, the answer is always there to be found and
if the judge applied his mind to the matter fully a clear winner can be found .
There are a number of core issue’s around the debate, for example does the law
contain principles as well as rules, or does it concern whether judges have
discretion in hard cases. Dworkin claimed that the dispute between himself or
rather his ideas and Hart was whether the law itself is a model of rules, even
though Hart never actually claimed that law was simply a made of just rules, as
in his postscript he claimed that the use of the word ‘rule’ did not claim that the
legal system comprised of an ‘all or nothing’ standard.
Hart’s doctrine concerning judicial discretion is not predicated on a model of

rules, but rests on a picture of law, that privileges social acts of authoritative
guidance. A legal rule for Hart is a standard that has been identified and
selected as binding on the specific society, by a social act, whether that is from
an individual directive, a judicial decision, legislative enactment or a social
custom.
The debate does not just concern issues as to the existence of judicial discretion,
the foundations of rules, the function of law itself and the nature of any legal
interference are other main topics, as well as the subject concerning Law and
morality. The critique offered by Dworkin on legal positivism in 1967 differs from
what he wrote in 1986, therefore the debate itself was seen as an evolving issue.
Dworkin criticises Hart’s rule of recognition as he believes that it is not possible

to claim that there is criteria that determines what is ‘law’ and what it is not.
This can be seen when there is a disagreement amongst judges within case law.
Dworkin’s argument is that Hart’s rule of recognition is based on content, due to
its source and linguistic merits, rather than because of what it actually aims to
achieve. He states there is no rule of recognition which distinguishes between
legal and moral principles and a judge in a hard case must therefore appeal to
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principles, which include his own conception of what is the best interpretation of
the network of political structures and decisions within his community.
Hart follows an approach based on understanding, not merely on the actions that
occur, but also in the meanings those actions have to the participants in the
practices being studied, but without making any moral judgements, therefore his
account is descriptive as it is morally neutral.
Dworkin explains his theory by reference to hard cases that arise in the court
and which have a large degree of uncertainty as to the outcome, owing to the fact
that there is no pre-existing rule governing the relevant case. A case showing
this is Riggs v Palmer in which a grandson murdered is grandfather in order to
benefit under the will. Since the will itself was valid, there was at the time no
law to say the grandson could not inherit, but the court held that because of the
legal principle saying that no-one should be permitted to profit from his own
fraud or take advantage of his own wrong, the grandson was therefore disbarred
from the inheritance.
Dworkin uses the above case to illustrate his believe that Hart has forgotten the
importance of principles and in many cases the judges regard themselves as
bound by the laws of the land, even though there is no rule that is clearly
applicable to the case in question. Hart within his postscript claims this is an
example of a principle winning in competition of a rule, but he states that this
shows that rules themselves do not have an ‘all or nothing’ character as they can
be brought into conflict with principles that may outweigh them.
Another example of principles outweighing rules can be seen in Henningsen v

Bloomfield Motors , where the court was asked to hold a car maker liable for
injuries sustained as a result of defective manufacturing, even though the
plaintiff signed a contract wavering liability. There was no explicit rule
concerning the signed waiver, but the court held for the plaintiff. The court used
a number of legal principles to support its decision and ‘in a society such as ours
the motor manufacturer is under a special obligation in connection with the
construction, promotion and sale of his vehicles’ [28] . The court believed these
were more important, that it outweighed contrary principles, such as those that
support the freedom to contract. No court before the Henningsen case applied the
principle that car manufacturers were subject to a greater standard of care.
Dworkin claims that law is concerned not only with what has been established,
and the rules relating to the laws themselves, but also with principles. He states
that unlike rules, principles have the dimension of weight or importance and
when two principles lead to different conclusions, the judge must take into
account the relative weight of each. Where rules do not have this, if two rules
94
conflict, then only one can be valid and which one, will be decided on another
rule, which may be the rule laid down by a higher court.
He describes principles as a standard that is to be observed, not because it will

secure a economic, political or make a social situation desirable, but because it is
a requirement of fairness or some dimension of morality.
Although principles are at times well established by judicial precedent, they are
also at times not established until there is an adjudication of ‘hard cases.
Dworkin defends his concept of legal principles with intent and vigour in ‘The
Model Of Rules’, but his position emerges much more clearly in his article ‘On
Not Prosecuting Civil Disobedience’ , where his opposition to legal positivism is a
kind of conundrum for philosophy of law. He is able to demonstrate that the
rules approach of Hart to certifying valid positive law does not take into account
the presence of principles within jurisprudence, it seems to appear in his article
that principles play a role by some judges, when arriving at their decision,
interpreting their reasoning and justifying their claim.
Hart’s response to this must take into account that he sees law as an institution
within a larger social system, which he believes is a form of rule-making, rule-
applying and rule enforcing behaviour. The rules do appear to have a connection
to morality, in origin and on occasion through interpretation, but Hart explains
this overlap by his introduction of the ‘rules of recognition’.
Dworkin criticises Hart in many points, but he says Hart’s descriptive theory of
law is misguided as it cannot satisfactory take into account the insider’s
viewpoint of the law , which he believes is essential in understanding the legal
system. He states that a theorist should speculate as if he were a participant in
the practice. Dworkin therefore is saying that the most valuable theories of law
are the interpretive ones. Hart believes Dworkin’s central objections seem to be
that any legal theory must take account of the internal perspective of the law
and that no adequate account can be provided by a descriptive theory as their
viewpoint is not one of a participant, but of an external observer.
Hart argues that there is nothing in the project of descriptive jurisprudence to

preclude a non-participant external observer from describing the ways in which
the law can be viewed from such an internal point of view. A descriptive legal
theorist may understand and describe the internal perspective of the law without
actually adopting it.
Hart states that there are no necessary conceptual connection between the
content of law and morality and there can be legal rights and duties, which have
no moral justification whatever. Whereas, Dworkin rejects this in favour of the
view that there must be some form of prima-facie moral grounds for assertions of
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the existence of legal rights and duties. So for him legal rights must be
understood as a species of moral rights, this is a crucial element in his legal
theory and he states that the opposed positivist doctrine belongs to ‘the peculiar
world of legal essentialism’ , in which they just give pre-analytical legal rights
and duties without any kind of moral ground or force. Hart says legal rights and
duties are the point at which the law with its coercive resources respectively
protects individual’s freedom and restricts it or confers on individuals to them
the power to avail themselves of the law’s coercive machinery. ‘So whether the
law itself, is good or bad, just or unjust, rights and duties demand attention as
focal points in the operations of the law, which Hart believes is extremely
important to human beings and it is independent of moral merits’ .
For Hart the ‘rule of recognition’ is a social rule and therefore established by the
conduct of those who also accept the rule as a justification for disparaging those
who fail to observe it . Dworkin claims that this feature within Hart’s theory
commits him to the proposition that the ‘rule of recognition’ may be uncertain
within some particular points of the law itself. He also argues that if judges are
divided about what they must do, if subsequent parliaments try to repeal an
entrenched rule, then he states that no rule can govern any decision. Hart denies
this and regards The Concept of Law as an explanation and description of the
distinguishing characteristics of law from other systems of social rules, with the
main ingredient being his ‘rule of recognition’.
Dworkin says what ought to be if coercion is to be justified and what at its best
actually happens in his own society, whether it be consciously or unconsciously
and how judges decide or try to decide on hard cases, his defect seems to be his
failure to provide a sufficient answer concerning the question on whether the
duty of constructive interpretation applies irrespective of the evil of a regime of
which a judge can find themselves a part of. Hart is telling us what any legal
system is, but his defect lies in his assertion that all legal systems, at all times,
hard cases are decided by judges having the discretion that he ascribes to them.
For Dworkin, Hart’s rule of recognition cannot include substantive moral

standards among its criteria of law, this has been denied and has been stated as
being misunderstood and arises mainly through Dworkin overlooking the fact
that, in both hard and easy cases, judges share a high degree of common
understanding about the criteria that determines whether a rule is actually a
legal rule or not.
Looking at the actual question within this piece of work, and the concerns
relating to the Hart/Dworkin debate, one can actually say it is slightly deceiving
as it tends to suggest that it was only Hart and Dworkin that were involved in it.
In fact Hart himself never directly responded to Dworkin’s theory during his
96
lifetime, even though he did criticize some of Dworkin’s positive proposals , it

was left to others to defend. But who actually wins the debate, I believe no-one
as they both have a different starting point and they talk past each other.
While Hart’s theory is probably the dominant view among analytically inclined
philosophers of law, it is also the subject of competing interpretations together
with persistent criticisms and misunderstandings. Many others have argued on
both sides including Joseph Raz, Jules Coleman, Harold Granville, John Finnis,
Hans Kelsen, Lon Fuller and Kenneth Himma to name but a few.
With regard to Brian Leiter’s view that there is a clear winner, I believe this to
be untrue, neither party has conceded (in respect of Hart now this would be
impossible) and due to the number of other jurists that have argued on both
sides of the debate, it seems that this argument will continue and in the future
will probably evolve due to new followers in each camp.
Case
Henningsen v Bloomfield Motors 32 N.J. 358, 161 A.2d 69 (1960) discussed in

Dworkin, Taking Rights Seriously, 25-26 Riggs v Palmer 115 NY 506, 22 NE
188 (1889)
9. Write notes on any two of the following : · 12½x2=25

(a} Law and morality
(b) Hart-Fuller controversy
(c} Hart-Derelin debate
10. Write an essay on law and morality highlight the relationship

between the two.
Ans.-
Law and morality:
Ever since law has been recognized as an effective instrument of social ordering
there has been an ongoing debate on its relationship with morality. According to
Paton, morals or ethics is a study of the supreme good. In general, morality has
been defined to include: all manner of rules, standards, principles or norms by
which men regulate, guide and control their relationships with themselves and
with others.
Both, law and morality, have a common origin. In fact, morals gave rise to laws.
The State put its own sanction behind moral rules and enforced them. These
rules were given the name law.
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In the words of Hart the law of every modern State shows at a thousand points
the influence of both the accepted social morality and wider moral ideal. Both,
law and morality have a common object or end in so far as both of them direct
the actions of men in such a way as to produce maximum social and individual
good. Both, law and morality are backed by social or external sanction.
Bentham said that legislation has the same center with morals, but it has not
the same circumference. Morality is generally the basis of law, i.e. illegal
(murder, theft, etc.) is also immoral. But there are many immoral acts such as
sexual relationship between two unmarried adults, hard-heartedness,
ingratitude, etc. which are immoral but are not illegal. Similarly, there may be
laws which are not based upon morals and some of them may be even opposed to
morals, e.g. laws on technical matters, traffic laws, etc.
Morals as test of law: several jurists have observed that law must conform to
morals, and the law which does not conform to morals must be disobeyed and the
government which makes such law should be overthrown.
Paton said that if the law lags behind popular standard, it falls into dispute, if
the legal standards are too high; there are great difficulties of enforcement.
Morals as end of law: According to some jurists, the purpose of the law is do
justice.
Paton said that justice is the end of law. In its popular sense, the word justice is
based on morals. Thus, such morals being part of justice become end of justice.
The end which the preamble of our constitution tries to achieve is the morals.
Prologue
No distinction in ancient times: in the early stages of the society there was any
distinction between law and morals. In Hindu law, the prime sources of which
are the Vedas and the Smritis, we do not find such distinction in the beginning.
However, later on, Mimansa laid down certain principles to distinguish

obligatory from recommendatory injunctions. In the West also the position was
similar. The Greeks in the name of the doctrine of natural rights formulated a
theoretical moral foundation of law.
The Roman jurists in the name of natural law recognised certain moral
principles as the basis of law. In the middle Ages, the Church became dominant
in Europe. The natural law was given a theological basis and Christian morals
were considered as the basis of law.
THREE ANGLES OF RELATIONSHIP BETWEEN LAW AND MORALS

98
1. Morals as the basis of law:- There is no distinction between law and morals
in the early stages of society. All the rules originated from the common source
and sanctioned by supernatural fear. State picked up those rules important for
the society and enforced those rules which were known as law. Thus law and
morals have a common origin but diverge in their development. All laws should
be moral but all morals cannot be law. There are number of legal rules which are
not based on morals, some of them are opposed to morals. Morals do not make a
person vicariously liable whereas law makes a person vicariously liable on the
principle who can bear the liability.
2. Morals as test of law:- In human life morals occupy an important place.

Greeks and Romans hold that law must confirm the morals. In Rome law was
made to confirm to natural law which was based on certain moral principles.
During middle ages, the Christian Fathers maintained that law must confirm to
Christian morals. Same was the position in 17th and 18th centuries. In modern
age a law is valid even if it is not in conformity with morals. Paton writes that if
law lags behind popular standard, it falls in to disrepute; if the legal standards
are too high, there are great difficulties of enforcement. (A Textbook of
Jurisprudence)
3. Moral as end of Law: - Jurists defined law in terms of justice. The aim of law
is to secure justice which is very much based on morals. In Sanskrit the word
Dharma also implies justice. Analytical school holds that study of the end of law
is beyond the domain of jurisprudence. Sociological jurists consider the study of
end of law very important as law has some purpose i.e the welfare of the society.
The conflicting interests of the society should be weighed and evaluated on the
principle of minimum friction and waste. If people ask why they should obey law
the answer is, it is in the welfare of the society.
4. Moral as Part of law: - Law and morals are distinguishable, but moral is an
integral part of law. Morality is “secreted in the inter-stices” of the legal system
and inseparable from it. Positivists insist that once the rule is laid down, it does
not cease to be law. Prof. Hart says that some shared morality is essential if any
society is to survive. Moral enters the arena of law in the name of justice, equity
and good conscience. Morals act as restraint upon the power of the legislature.
All human conduct and social relations cannot be regulated and governed by law
alone. Many relations are left to be regulated and governed by morals and law
does not interfere with them. Moral makes the law perfect. Paton gives an
example of marriage. In marriage, so long as lave persists, there is little need of
law to rule the relations of husband and wife but solicitor comes through the
door as love flies out of the window. (A Textbook of Jurisprudence) Sociological
approach insists on END to be persuaded by law. In international sphere
brutalities committed forced the people to turn back to morals and standard and
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values are established to be followed by nations. If law is to remain closure to the

life of the people, it cannot ignore morals. When law fails, society and nations
surrender to the morals. Moral sooths the burning hearts and bring peace in the
society- the very object of United Nations Organization.
11. Discuss the relationship between Law and Morals. Highlight the distinction
between the two.
Ans.-
Relation Between Law and Morals
In the preceding paragraph the points of distinction between law and moral have
been discussed, but due to these points of distinction between the two, it should
not be gathered that they are opposed to each other and there is no relationship
between the two. Really speaking, they are very closely related to each other. In
considering the relationship between law and morals much will depend on how
one denes law. Analytical, Historical, Philosophical and Sociological jurists all
have defined law in their own way and these definitions materially differ from
each other.
A study of the relationship between law and morals can be made from three
angles:
1. Morals as the basis of law.

2. Morals as the test of (positive) law.
3. Morals as the end of law.
(1) Morals as the basis of law: As observed earlier, in the early stages of the
society no distinction was made between law and morals. All the rules originated
from the common source, and the sanction behind them was of the same nature
(mostly supernatural fear).
When state came into being, it picked up those rules which were important from
the society point of view and the observance of which could be secured by it. The
state put its own sanction behind these rules and enforced them. These rules
were called law. The rules which were meant for some supreme good of the
individual (in the metaphysical sense) and the state could not ensure their
observance continued in their original condition. These rules are known as
morals.
Thus, law and morals have the common origin but in the course of development
they came to differ. Therefore, it could be said that law and morals have a
common origin but diverge in their development. As the law and morals have
come from the common stock, many rules are common to both. For example, to
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kill a man or to steal, are acts against law and morals both. It is on this ground
that, sometimes, law is said to be minimum ethics.
Queen v. Dudley and Stephen case:
Though law and morality are not the same, and many things may be immoral
which are not necessarily illegal, yet the absolute divorce of law from morality
would be a fatal consequence. The principles laid down in Queen v. Dudley and
Stephen (14 Q.B.D. 273) are worth mentioning in this connection. In that case
three seamen and a boy, the crew of an English yacht, were cast away in a storm
on the high seas and were compelled to put into an open boat belonging to the
said yacht.
They had no food and no water in the boat and in order to save themselves from
certain death, they put the boy to death and fed on the boy body, when they were
picked up by a passing vessel. They were tried for the killing of the boy and jury
returned a special verdict.
The case came before a bench of five judges of Queen Bench Division.
Coleridge C.J. (the other four judges concurring) observed:
To preserve one life is generally speaking a duty, but it may be the plainest and
highest duty to sacrifice it. War is full of instances in which it is man duty not to
live but to die. The duty in case of ship wreck, of a captain to his crew, of the
crew to the passengers, of soldiers to women and children.....
These duties impose on men the moral necessity, not of the preservation, but of
the sacrifice of their lives for others, from which in no country, least of all it is to
be hoped in England will men ever shrink, as indeed, they have not shrunk. It is
not correct, therefore, to say that there is any absolute or unqualified necessity
for preserving one life. It is not needful to point out the lawful danger of
admitting the principle which has been contended for;
 Who is to be the judge of this sort of necessity?

 By what measure is the comparative value of lives to be measured?
 Is it to be strength, or intellect or what?
It is plain that the principle leaves to him who is to profit by it to determine the
necessity which will justify him in deliberately taking another life to save his
own. In this case the weakest, the youngest, the most unresisting, was chosen.
Was it more necessary to kill him than one of the grown-up men?
The answer must be, No..

101
So spoke the Fiend, and with necessity. The tyrant plea excused his devilish
deeds.
It is not suggested that in this particular case the deeds were devilish, but it is
quite plain that such a principle, once admitted might be made the legal cloak for
unbridled passion and atrocious crime. There is no safe path for judges to tread
but to ascertain the law to the best of their ability and to declare it according to
their judgment and if in any case the law appears to be too severe to individuals,
to leave it to the sovereign to exercise that prerogative of mercy which the
Constitution has entrusted to the hands fitted to dispense it.
It must not be supposed that in refusing to admit temptation to be an excuse for

crime it is forgotten how terrible the temptation was; how lawful the suffering;
how hard in such trials to keep the judgment straight and the conduct pure.
We are often compelled to set up standards we cannot reach ourselves, and to lay
down rules which we could not ourselves satisfy. But a man has no right to
declare temptation to be an excuse, though he might himself have yielded to it,
or allow compassion for the criminal to change or weaken in any manner the
legal definition of crime.
Grove J. while concurring added
If the two accused men were justified in killing Parker, then if not rescued in
time two of the three survivors would be justified in killing the third, and, of the
two who remained, the stronger would be justified in killing the weaker, so that
three men might be justifiably killed to give the fourth a chance of surviving.
Thus, the principle is that no man has a right to take another life to save his
own (Common wealth v. Holmes).
Recently Supreme Court of India held that in case of conflict of fundamental

rights of two individuals the decision is to be made on the basis of morals.
In this case, the appellant's blood sample was found to be HIV (+). On account of
this disclosure the appellant proposed marriage to one A which had been
accepted, was called o. The appellant sued the hospital for damages on the
ground that the doctors violated their duty to maintain confidentiality as well as
his right to privacy. This was contested on the ground that the disclosure of the
health conditions of the appellant to, the girl to whom he was proposed to be
married was protected under the right to life of the girl which includes the right
to a healthy life.
The court held: As a human being A must also enjoy, as she obviously is entitled
to, all the human rights available to any other human being. This is apart from,
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and in addition to, the fundamental right available to her under Article 21. This
right would positively include the right to be told that a person, with whom she
was proposed to be married, was the victim of a deadly disease, which was
sexually communicable.
Since right to life includes right to lead a healthy life so as to enjoy all the
faculties of the human body in their prime condition, the respondents, by their
disclosure that the appellant was HIV(+), cannot be said to have, in any way,
either violated the rule of confidentiality or the right of privacy.
Moreover, where there is a clash of two Fundamental Rights, as in the instant

case, namely, the appellant right to privacy as part of right to life and A right to
lead a healthy life which is her Fundamental Right under Article 21 the right
which would advance the public morality or public interest, would alone be
enforced through the process of court, for the reason that moral considerations
cannot be kept at bay and the Judges are not expected to sit as mute structures
of clay in the hall known as the courtroom, but have to be sensitive, in the sense
that they must keep their fingers firmly upon the pulse of the accepted morality
of the day. (Mr. X v. Hospital Z, (1998) 8 SCC 296)
However, it does not mean that morals are the basis of all the legal rules. There
are a number of legal rules which are not based upon morals and some of them
are even opposed to morals. Morals will not hold a man vicariously liable, one
liable for the act of another, where the person made liable is in no way blame
able. In the same way, in cases where both the parties are blameless and they
have suffered by the fraud of a third, law may impose the loss upon the party
who is capable of bearing it but such a course will not be approved by morals.
(2) Morals as the test of law: It has been contended by a number of jurists,
since very early times, that law must conform to morals. This view was
supported by the Greeks and the Romans. In Rome, law to some extent, was
made to conform to â€˜natural law which was based on certain moral principles
and as a result jus civil was transformed into jus gentium
Most of the ancient jurists expressed their views in a spirit of compromise and
attached sanctity to legal rules and institutions. They said that law, even if it is
not in conformity with morals, is valid and binding. During the Dark Ages,
Christian Fathers preached forcefully that law conform to Christian morals and
said that any law against it is invalid. In the 17th and the 18th centuries, when
the natural law theory (which was based on certain morals) was at its highest, it
was contended that law (positive law) must conform to natural law.
103
They said that any law which does not conform to natural law is to be disobeyed
and the government which makes such law should be overthrown. It was this
theory which inspired the French Revolution.
In modern times, such views that law must conform to morals and if it is not in
conformity with morals, it is not valid and binding are no longer heard. However,
in practice to a great extent law conforms to morals.
Generally, law cannot depart far from the morals due to many reasons. The law
does not enforce itself. There are a number of factors which secure the obedience
of law. The conformity of law with morals is a very important factor. There is
always a very close relation between the law and the life of a community, and in
the life of the community morals have got an important place.
Paton rightly observes that: if the law lags behind popular standard it falls
into disrepute, if the legal standards are too high; there are great difficulties of
enforcement.
(3) Morals as the end of law: Morals have often been considered to be the end
of law. A number of eminent jurists have defined law in terms of, justice. They
say that the aim of law is to secure justice. Justice in its popular sense is very
much based upon morals.
In most of the languages of the world, the words used for law convey an idea of
justice and morals also. According to analytical jurists, any study of the ends of
law falls beyond the domain of jurisprudence. But sociological approach
considers this study as very important. It says that law has always a purpose; it
is a means to an end, and this end is the welfare of the society.
According to this utilitarian point of view, the immediate end of law is to secure
social interests, that is, to secure harmony of claims or demands. It means that
the conflicting interests (in the society) should be weighed and evaluated and the
interests who can bring greater benefit with the least sacrifice should be
recognized and protected.
Thus, this all becomes a question of choice. In making this choice and in
weighing or evaluating interest, whether in legislation or judicial decision, or
juristic writing, whether we do it by law making or in the application of law, we
must turn to ethics for principles.
Morals are an evaluation of interests; law is or at least seeks to be

delimitation in accordance therewith.
12. Discuss the relations between law and morality. Also highlight Hart-
Fuller debate on law and morality. 25
104
Or
Write an essay on Hart-Fuller controversy on law and morality. 25
Or
Write an essay on the relationship of law and morality referring to
the contribution of various Jurists. 25
Or
Discuss the relationship between Law and Morals refering to the views
of H. L. A. Hant and Lon Fuller.
Ans.-
THREE ANGLES OF RELATIONSHIP BETWEEN LAW AND MORALS:
1. Morals as the basis of law:- There is no distinction between law and morals
in the early stages of society. All the rules originated from the common source
and sanctioned by supernatural fear. State picked up those rules important for
the society and enforced those rules which were known as law. Thus law and
morals have a common origin but diverge in their development. All laws should
be moral but all morals cannot be law. There are number of legal rules which are
not based on morals, some of them are opposed to morals. Morals do not make a
person vicariously liable whereas law makes a person vicariously liable on the
principle who can bear the liability.
2. Morals as test of law:- In human life morals occupy an important place.

Greeks and Romans hold that law must confirm the morals. In Rome law was
made to confirm to natural law which was based on certain moral principles.
During middle ages, the Christian Fathers maintained that law must confirm to
Christian morals. Same was the position in 17th and 18th centuries. In modern
age a law is valid even if it is not in conformity with morals. Paton writes that if
law lags behind popular standard, it falls in to disrepute; if the legal standards
are too high, there are great difficulties of enforcement. (A Textbook of
Jurisprudence)
3. Moral as end of Law: - Jurists defined law in terms of justice. The aim of
law is to secure justice which is very much based on morals. In Sanskrit the word
Dharma also implies justice. Analytical school holds that study of the end of law
is beyond the domain of jurisprudence. Sociological jurists consider the study of
end of law very important as law has some purpose i.e the welfare of the society.
The conflicting interests of the society should be weighed and evaluated on the
principle of minimum friction and waste. If people ask why they should obey law
the answer is, it is in the welfare of the society.
105
4. Moral as Part of law: - Law and morals are distinguishable, but moral is an
integral part of law. Morality is “secreted in the inter-stices” of the legal system
and inseparable from it. Positivists insist that once the rule is laid down, it does
not cease to be law. Prof. Hart says that some shared morality is essential if any
society is to survive. Moral enters the arena of law in the name of justice, equity
and good conscience. Morals act as restraint upon the power of the legislature.
All human conduct and social relations cannot be regulated and governed by law
alone. Many relations are left to be regulated and governed by morals and law
does not interfere with them. Moral makes the law perfect. Paton gives an
example of marriage. In marriage, so long as lave persists, there is little need of
law to rule the relations of husband and wife but solicitor comes through the
door as love flies out of the window. (A Textbook of Jurisprudence) Sociological
approach insists on END to be persuaded by law. In international sphere
brutalities committed forced the people to turn back to morals and standard and
values are established to be followed by nations. If law is to remain closure to the
life of the people, it cannot ignore morals. When law fails, society and nations
surrender to the morals. Moral sooths the burning hearts and bring peace in the
society- the very object of United Nations Organization.
HLA Harts’ view
Hart is a positivist, so he does not believe that there is a necessary connection

between law and morality. While he does acknowledge that there is a close
relationship between law and morality, and does not disagree that the
development of the law has been immensely influenced by morality. However, he
does not believe that they are interdependent on each other. As such he feels
that a line should be drawn between what law should be, and what law ought to
be. The fact of the matter remains, that a law does not stop being law due to
moral criticism of it. Hart believes that officials should display truthfulness
about the law by concentrating on what it says rather than focusing on what one
desires it to say. According to Hart the law consists of primary and secondary
rules. Primary rules art duty imposing rules on the citizens and have a legal
sanction. Secondary rules are power conferring laws that describe how laws
should be recognised, adjudicated or changed. Hart says these rules form the
heart of the legal system and the rule of recognition is the glue that binds the
legal system as a whole. So, Hart advocates that conformity to a certain moral
standard is not required for a legal system to exist. Hart acknowledges that law
and morals are bound to intersect at some point, for instance where a case comes
up where the wording of the relevant statute is not sufficient to give effect to the
purpose of the law (professor hart refers to these as problems of the penumbra),
Hart says that such cases can be solved by way Judicial interpretation. A
106
decision can be made about what the law ought to be, and moral factors play a
crucial role in deciding such hard cases.
Fullers’ view
Fuller is a naturalist, and he sees laws as a way of achieving social order by

regulating human behaviour through laws. He believes that our legal systems
are derived from the norms of justice which have a moral aspect. He argues that
for a law to be valid, it must conform to a certain moral function test. These are
the eight desiderata set out by Fuller; (I) Rules (ii) published (iii) prospective (iv)
intelligible (v) not contradictory (vi) possible to comply with (vii) reasonably
stable through time (viii) followed by officials. Fuller implores law makers to
take into consideration each of the above before determining whether a law is
valid. Fuller goes further to explain morality by categorising it in two; Morality
of aspiration and morality of duty. Morality of aspiration suggests a desired
norm of human conduct that promotes his/her best interest. Morality of duty
describes the standards people follow to ensure smooth functioning of society.
Other forms of morality discussed by Fuller are “Internal morality of law” and
“External morality of law”. the former is concerned with procedure of law making
while the latter focuses more on substance rules of law which are applied in
decision making fuller rejects the positivist approach to law and argues that
society’s goals can be achieved by other means rather than relying solely on law.

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Jurisprudence LLB 301

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JURISPRUDENCE

LLB- 3rd Semester Notes

Paper Code: LLB-301

1. “Modern jurisprudence trenches deeply on the field of Social

According to Paton, modern jurisprudence is mostly based on social sciences and

Holland regarded jurisprudence as the formal science of favorable laws. He

Jurisprudence is a broad subject, and its utility cannot be undermined. It has a

The researches in jurisprudence contribute to the development of society by

Jurisprudence also contains educational value. It aids in the logical analysis of

Utility and Importance of Jurisprudence

Many times it is said that jurisprudence being an abstract and theoretical

3. It is considered as a secondary or subsidiary subject but has a high value in

4. Holland observed, “the ever-renewed complexity of human relations call for

5. The study of jurisprudence helps students, interns, and all practicing

2. “Jurisprudence in indispensably related with other social sciences.”

Relation of Jurisprudence with other social sciences

Jurisprudence is studying law, law is regulating the conduct of individuals and

Jurisprudence and Sociology

Jurisprudence is concerned with legal rules that actually exists, however,

Jurisprudence and Politics

Politics studies the principles responsible for the governmental organization.

Jurisprudence and Ethics

Ethics is the science of human conduct. It projects an ideal human behavior, in

Therefore, both of the science are interrelated.

Due to the close relationship and interdependency of these sciences, there

Jurisprudence and Psychology

Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is

Jurisprudence and Economics

Economics is the science of wealth and jurisprudence is the science of law.

Economics studies the production and distribution of wealth and law is

Furthermore, economics aims at improvement of the standards of human lives

Therefore, there is a close relationship between the two.

Jurisprudence and History

History is the scientific narration of the past events, whereas, jurisprudence is

Owing to its importance, there developed a separate branch of jurisprudence,

3. Jurisprudence is a certain type of investigation into law, an

Jurisprudence is the name given to a certain type of investigation into Law, an

Philosophical Jurisprudence-Exponents of this school of jurisprudence were

Analytical Jurisprudence.-Those thinkers of jurisprudence who regard law as

Historical Jurisprudence.- Writers of Historical Jurisprudence take the social

Sociological Jurisprudence:-The sociological jurisprudence is chiefly

This classification of jurisprudence provides a rough classification of ideas and it

4. Define Jurisprudence. Discuss the nature and scope of

There is no universal or uniform definition of Jurisprudence since people have

Jurisprudence- Latin word ‘Jurisprudentia’- Knowledge of Law or Skill in

-Bentham is known as Father of Jurisprudence. Austin took his work further.

1. Examination of Law as it is- Expositorial Approach- Command of

J. Stone also tried to define Jurisprudence. He said that it is a lawyer’s

Austin- He said that “Science of Jurisprudence is concerned with Positive Laws

This has two aspects attached to it:

1. General Jurisprudence- It includes such subjects or ends of law as are

Salmond’s Criticism of Austin

Holland’s Criticism of Austin

Holland’s Definition- Jurisprudence means the formal science of positive

Salmond- He said that Jurisprudence is Science of Law. By law he meant law of

1. Generic- This includes the entire body of legal doctrines.

It is concerned with the legal history and its development

Criticism of Salmond- Critics says that it is not an accurate definition.

Keeton- He considered Jurisprudence as the study and systematic

general principles of law. According to him, Jurisprudence deals with the

Roscoe Pound- He described Jurisprudence as the science of law using the

Dias and Hughes- They believed Jurisprudence as any thought or writing

Conclusion- Thus, we can safely say that Jurisprudence is the study of