Theories

Synonymous name of jurisprudence

Legal system
Origin and development of law
Sources of
1. Natural law theory – Divine source, Hugo Grotius (Universal Law/
2. Positive law theory - law made by supreme sovereign body
3. Legislation
4. Historical school – custom
5. Functional school – function of law very important
6. Legal realism
7. Analytical school of law

1. Natural law theory

“Law as a dictate of reason” – by Aristotle
Personification
“Human Law which is at Variance (in contradiction) with natural law is no really law at all but
merely an ____________ of it”
Valid law or just law = positive law + natural law

Lex Injusta non est: unjust law is no law

Natural law theory

Natural Justice
Dealing with human nature
 Stoic philosophy - living simple life, similar to Gandhian lifestyle. Originated in 3 rd and 4th
Cent. BC. Famous stoicist was Zeno. Man should lead with dictate of nature. Aristotle –
law is a dictate of human reasons
Led to development of natural law theory.
 Social contract theory in 16th cent
 Formation of analytical school.
 In 18 and 19th cent. Philosophical school, sociological school
 Emergence of Austin’s positive law theory- introduction to Legislation
 Natural law is based on morality.
 Justice morality and values are the pillars of natural justice
 Reason and common sense basis of natural law
 Natural law is common to all states
 Unjust law is no law
 W. Friedman: the importance of NLT lies in providing two ideal
1. A universal order governing all men
2. The inalienable rights of the individuals
3. PNJ- Principles of Natural Justice-
Notice,
audi ultrum partem,
Nimo judex incausea sua: no one can be a judge in his or her case,
Procedure must be just fair and reasonable

NLT is providing peace and harmonisation

Ancient period: till 5th cent. BC to 11th cent. AD
Medieval Period: 12th – 14th cent. AD
Hugo Grotius
Modern jurists
Dias and Huge: the y________________ have de_____________ which derived its validity from
its own inherent values differentiated by its living and organic property , promulgated
Coher: natural law is A WAY of looking at thing and provides for a humanistic approach and
embodies within a host of ideas morality, justice, reason, good conduct, equality, liberty, ethics
and

Criticism:
Salmond: needs merely provide a series of blank cheques with no amount at all.
Natural law has not maintained distinctions between law and morality
Natural lawyers believed that there are universal principles applicable throughout the world
Natural law theory encourages disobeying laws
Natural law theory is static and unchanging
Merits/characteristics features:
1. The supporters of the theory believed that institutions of slavery, property, states
redesigned the evil desires and they are not creature of law. Therefore we require the
natural law. Source of law and obedience must be observed.
2. Law is the greatest binding force both for those who govern and governed. (divine law)
3. St. Augustine stands on the threshold of ancient and medieval philosophy and theology
4. He explained about 4 kinds of law namely: eternal law, natural law, divine law and
temporal law
5. Hugo Grotius
Divine law as a grandmother
 Natural law as a parent
Positive law as a child
Social contract theory
Thomas hobb (1588-1679) He explained the need for civilized society in the form of an absolute
ruler and obedience from the citizens. He influenced Austine and Jeremy Bentham.
John Lock (1632-1704) He witness English glorious revolution of 1688. He explained that the
purpose of state and obviously law was to uphold and to protect natural rights. He pleaded for
constitutionally limited govt.
Gin Jacks Rousso (1778) He coined the concept of general will. Government should provide
Freedom and equality of the individuals.
Medieval era: supreme law
Emanuel Kant’s contribution
Inherent rights (human rights) acquired rights part of UDHR

Modern era (18th and 19th Cent.)

Emergence of concept of State
David Hume
August Comte

Priori method
Posteriori method

Theory of justice
prof. Rawl

Lon fuller (1902-1978) supporter of Modern natural law theory

Role of reason very important
Morality of duty and morality of aspiration
He gave a concept of Inner morality
Requirements:
They should be published (prospective)
There should be no abuse of retrospective law
Rules must be easily understandable
Rules must be practicable
Should not be inconsistent with rule of law
There should be no difference between establishment and promulgation of rule

H. L. A Hart’s theory of rule

(He is a positivist; he sometimes called as semi positivist as he sometimes adopted NLT)
John Phinis:
Life, knowledge, performance, appreciation of beauty, practicability, sociability and

Analytical school
Jeremy Bentham (17____ and Austin (1859) – founders of Positive law
Jeremy Bentham – Father of codification, Bentham’s theory of utility ‘law should be used in
such a way the maximum happiness with maximum people is achieved. Expository
jurisprudence’,

Analytical approach is a result of reaction to the natural law

Social Changes due to technological innovations, society, etc gave emergence to analytical
thinking

Positive law
Science of positive law
1. Command of sovereign body
2. Obey
3. Sanction
Posited law – put forward as fact or as a basis for argument. Put in position; place.
Therefore leads to positivism
Positive law
Difference between ‘is’ and ‘ought’ (law and morality)
Is – present, observe, practical, empirical
Ought – future, how it should be
Jeremy Bentham – born in England.
Contributions:
1. Father of codification
2. Utilitarianism (utilitarian concept, rights of individuals
3. Prison reformation
His Books ‘limits of jurisprudence determined’, ‘a fragment on government’, ‘an introduction
to the principles of morals and legislation’ (emphasis on individuals), ‘theory of legislation’
 Jurisprudence is dealing with Positive law
 Jurisprudence is a vanishing point of international law
 According to Bentham function of law is to emancipate (to free from restraint, control,
or the power of another especially) the individuals from the bondage and restrain upon
his freedom
 The right aim of the legislation is carrying out the principle of utility
 To promote of the greatest happiness of greatest number of people