Leon Duguit (1859-1928) im Leon Duguit was a French jurist who made substantial contribution to the sociological jurisprudence in early twentieth century. He was a Professor of In those days Astro Hungarian Empire consisted of a number of gaces, namely, Germans, Czzchs, Siovaks, Croats, Serbs, Solvenes, Jews, Ploes, Hungarians, Russians, Rumanians. 16 Friedmann Legal Theory (1967) p. 288. Friedmann, LM. : Dilemmas of Law in the Welfare State, (1986) p. 26.constitutional law in the University of Bordeaux for many years. During his time individualism was rumbling in Europe giving way to collectivism in which Stete’s role extended to public service.*¥ The reflection of collectivist ideologies could be found in the writings of Durkheim, Piaget, Max Weber et. Duguit was much influenced by Auguste Compte’s theory of law a a fct which denounced individual rights of men and subordinated them to socal interest Compte pleaded that ‘the only right which man can possess is the right always to do his duty’. This formed the basis of Duguits’ legal theory Duguit was also influenced by Durkheim's work ‘Division of Labour in Society" which was published in 1893, Durkheim made a distinction between two kinds of needs of men in society. Firstly, the common needs of individuals which are satisfied by mutual assistance, and secondly, the diverse needs of individuals which are satisfied by exchange of services. Therefore, the division of labour is the most important fact which Duguit called as ‘social solidarity (Docisine of Social Solidarity)Duguit’s theory of/social solidarity was sed interdependence of man is the essénce of society) Every individual has his-exsience owing to his membership of the socit) Each | individual cannot procure the necessities Of He By Titel Thertore, cach in | is tumhas fo depen! on other for his needs. fhe allimate end oF al Raman | | activities is To ensure the interdependence of men. (Duguit further stated’that (| law also serves the same end. He pointed out that law'is a rule which men obey "| not by virtue ofany higher principle but because they have to live as membesr | “Brae leo the traditional notions OF rights, SoverGigh- stale-puBIE and priate, legal personality as ficion and unreal becwase Wey were ra | based on social reality,\His entire thrust was on_mutual co-operation and | [ ft tween individuals, groupS and societies according to the principle of division of labour for the purpose of social cohesion. cure and serve Social Solidarity ‘According fo Duguit the essence of law is to serve and secure social | solidarity which is duty oriented as it expects individuals to their | ebligations as a member of the community. There is-thersfase ao scope‘ | natural or private rights, Thus Duguit stated that law con : stated that law consists of duty which is ithe basis of co-operation and rejects the abstract concept of right which the i AA fate Scenic. nother words, Dugit exhorts every one to perform his dis to fe socity would help development of co-operation and social For Duguit, law is not a bod Society is to do his duty. Law is es LIM” needs and obligations, According eet ilment of sc Taw must seek to promote soc Th Jala Sone Por of tm 88} p. + Law.SOCIOLOGICAL SCHOOL, 7 (Golidarty s0 a8 to attain maximum good of the society asa whole, State (M) regulations should be directed towards achieving the ends of social and | economic justice for common good. He considers ‘justice’ as a social reality its roots being in the society itself and not in the will of the sovereign, ‘Je Duguit’s views about the State and its funetions.—Duguit rejects [hypothetical notions about the State and sovereignty and built his own theory {which was pragmatic and scientific in character. He attacked State | sovereignty and held that State is in no way different from other human (0 organisations and therefore, its activities should be judged from the point of ~~ \wiew of social solidarity and common good of society. He favoured ‘minimisation of State functions and decentralisation of State power. He tended that legislators do not make law but merely give expression to / judicial norms formulated by the consciousness ofthe social group. Duguit firmly lieved that the State exists for performing the functions which prom Social solidarity and not for the exercise of sovereignty. \Duguit’s Legal Philosophy Duguit denounced traditional conceptions of state, sovereignty and law and preferred to interpret these institutions from the point of view of society. According to him, the outstanding feature of society was ‘interdependence of men’. Social interdependence was the inevitable characteristic of human existence which necessitated active co-operation between people. Duguit called this as ‘social solidarity’. Thus, his legal philosophy centered round the doctrine of social solidarity, which may briefly be summarised as follows!9 L_~ 1. He rejects the doctrine of state sovereignty and considers state merely as an expression of the will ofthe individuals who govern 2. The unity of State is not consistent with the collectivist associations. 3. Law is only an embodiment of duties which an individual is supposed to perform as a part and parcel of the social organisation for furtherance of social Solidarity. Law forbidding racial segregation promotes social solidarity 4. The sole emphasis of Duguit was on interdependence of men as a member | of the community. 5, There are three formative laws, namely, respect for property, freedom thenttact and liability for fault which achieve validity when approved by | MePeople. Public opinion is thus expression of social solidarity. meant Chez is no distinction between public andl private law as all laws are | tights ana tive, the end of social solidarity. Duguit denied the existence of | eld duty’ as the core of aw to attain public good. 7. He replacemnaey briemplates gradual withering away of the State and its” \ society,“ °Y 8FOUP of associations which are engaged in the service of "8. Leena 9 Leon = DB The Law ad he Site (1917) 31 Har Law Review 1(Maine )1822-1888) Maine made very valuable contribution to legal philosophy by way of historic comparative method. He was an erudite scholar of law. He started his career as Regius Professor of Civil Law in the University of Cambridge at an early age of twenty five. Ho was Law Member in the Council of the Governor General of India between 1861 and 1869. This provided him an opportunity for the study of Indian legal system. From 1869 to 1877 he occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. After that he held the distinguished post of the Master of Trinity Hall, Cambridge. ‘Ancient Law’, ‘Village ‘Communities’, ‘Early History of Institutions’, ‘Dissertation on Early Law and Customs’, are the important contributions made by him to legal thought and legal philosophy. UStages of development of Law © << _uxTaw made by the ruler under divine inspiration—In the beginning, law was made by the commands of the rulers believed to be acting under the divine inspiration, as the inspiration by Themistes in the Homeric Poems. ‘ustomary Law.—In the second stage, the commands crystallise into customary law. jowledge of law in the hands of priests—The knowledge and administration of customs goes into the hands of a minority, usually of @ religious nature, due to the weakening of the power of original ser makers Pie is the third stage. \Ay Codification.—Then comes the era of codes. Now law is Promulgated in the form of a code, as Solon’s Attic Code, or the Twelve Tables in RomeBasic Features of Realist School | “= L mM Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case before them. In strict sense of the term, realists define law as generalised | prediction of what the courts will do. The main characteristic features of | realist jurisprudence as stated by Goodhart are as follows :— | | 41) Realists believe that there can be no certainty about law as its | | predictability depends upon the set of facts which are before the court for decision. \ _£) They do not support formal, logical and conceptual approach to law | because the Court while deciding a case reaches its decision on ‘emotive’ rather than logical grounds. | 43) They lay greater stress on psychological approach to the proper \ understanding of law as it is concerned with human behaviour and convictions | of the lawyers and Judges. | | \@ Realists are opposed to the value of legal terminology, for they ' | consider it as tacit method of suppressing uncertainty of law.t | USS They prefers to evaluate any part of law in terms of its effects 5AeOUH ng We pte oe \#Roscoe Pound (1870-1964) | ° Roscoe Pound was born in Lincoln Nearaska (New Jersey) in 1870. He was an auxiliary Judge of the Supreme Court of Nebraska for a short period of two 20. Friedmann : Legal Theory (1967) p. 328. 21. Reuschlein Harold Gill : Jurisprudence, its American Prophets (1971) p. 113, 22, Friedmann : Legal Theory (1967) p. 329. 23, Newman, R.A. : Essays In Honour of Roscoe Pound (1977) p. 113.Vc) _ The contribution of Roscoe Pound {o /sociological jurisprudence}may be R P0°'Shidied under the following heads — _ACEmphasis on Functional Aspect of Law : Roscoe Pound added new dimensions to sociological school of jurisprudence. His approach to sociological jurisprudence was different in the sense that he attempted to a_whole unlike his predecessors who considered law as the main subject of stu society is merely subsidiary to it. Pound Taid- greater stress on Tanctional aspect of law. This is why his approach has been termed as ‘functional school’ by some writers." He defined law as containing “the rules, principles, conceptions and standards af conduct and decision as also the precepts and doctrines of professi ”. He thus Brana waza eas Ora aeteloped echrtove ss ec aroendone nas a ‘social engINGSINg The Ghd of low accondur to te to satisfy a 4 num of wants with a minimum of friction or confrontation, Elaborating the functional aspect of law, Roscoe Pound stated that the function of law is to reconcile the conflicting interests of individuals in the community and harmonise their inter-relations. He termed this, as ‘social engineering’. _2-Pound's Theory of Social Engineering : (Flovoe Pound conceived law as a ‘social engineering’, its main task being to accelerate the process of social ordering by mateeall si void conflicts of interest of TndiWigUaTe Te The soe Tra esas 88d adminigfrators_and jurists must work wih Sam efor to 24, Paton G.W. +A Text-Book of Jurisprudence (4th ed, pz.POEUN SUHUUL 101 maintain a balance between the competing interests in society) He enumerated 7 fala tre whit the Taw should seek to protect and classified them intolthree broad categorich, namely, (AJ Private interests, ¢2) Public interests, and (3) Social interests 2 _GYPrivate Interests.—These include— Ly ___{a}Mhdividual’s interests of personality, namely, interests of physical integrity, reputation, freedom of volition and freedom of conscience. They are safeguarded by laws of crimes, torts, contracts, constitutional law,25 etc —4(6)'The interests of domestic relations of persons such as husband and wife, Parent and children, marital life as also the individual's private interests. —-(e) The interests of property, succession, testamentary disposition, freedom of contractual relations, association etc. are also included in the category of private interests. _Ait Public interests.—The main public interests according to Roscoe Pound are— (@) Interests in the preservation of the State as such; and ) / basic assumptions which may be summarised as follows :— g chaos and confusion created by the 1. The theory is aimed at reducin; | — supporters of natural law philosophy. | 2. Pure theory of law deals with the knowledge of what law is, and itis not concerned about what law ought to be. 3. The theory considers law as a(normative science and not a natural science. 4. Kelson’s pure theory of law is {theory of norms hot so much concerned with the effectiveness of the legal norm:—_——— * ) (The’Grundnorm’ | - =——Kelson’s pure theory of law is based on pyramidical structure of hiera, of norms which derive their validity ‘Grundniorm”. Thus Grundnorm ot b; validity to other norms deri: a er to the question as to wherefrom the Grundnorm or basic norm derives its validity. He considers it to be a meta-legal question in which jurist need not intrude. Commenting on this Point, Julius Stone rightly comments that just as Austin’s sovereign in a Particular society is a mere starting point for his legal theory, so also basic norm has to be accepted as a hypothetical starting point or fiction which gives a legal system coherence and a systematic form. Thus while all norms derive their validity from the basic norm (Grundnorm), the validty of basic ‘norm cannot be objectively tested, instead, it has got to be presumed or pre- supposed, Kelson, however, considers Grundnorm as a fiction rather than a hypothesis. chy asLZ Pyramid of Norms‘ Lm ® (Kelson considers legal science as a pyramid of norms with Grundnorm (basic norm) at the apex. The subordinate norms are controlled by norms superior to them in hierarchical order, ‘The basic norm which is otherwise called Grundnorm ig however, independent of any other norm being at the apex. The Process of one norm deriving its power from the norm immediat ‘until it reaches the Grund been termed by Kelson as ‘concretisation’ of” Thus the system of norms proceeds from downwards to upwards and finally it closes at the Grundmorm at the top. The Grundnorm isd / taken for granted as a norm creating organ and the creation of it cannot be demonstrated scientifically nor is it required to be validated by any other norm. For example, a statue or law is valid because it derives its legal authority from the legislative body, the legislative body in its own turn derives its authority from a norm i.e. the Constitution. As to the question from where does the Constitution derives its validity there is no answer and, therefore, it is the Grundnorm according to Kelsonite conception of pure theory of law. In his view the basic norm is the result of social, economic, political and other conditions and itis supposed to be valid by itself. The legal order as conceived by Kelson receives its unity from the fact that all manifold norms of which the legal system is composed can be traced back to a final source. This final source is the basic norm or the Grundnorm which he defined as "the postulated ultimate rule according to which the norms of this order are established and annulled, receive or lose their validity.” 2 mM Ze img ‘Kelson characterised law as a technique of social organisation) It is not an ‘end but is a specified means, as an apparatus of compulsion to which there — adheres no political or ethical value. Ke cording to him, “law is not an eternal | forces” and, therefore, "the loses its applicability when a new Government comes into power overthrowing, the existing Government by revolution. In that event the courts are confronted with the problem whether to continue applying the ‘laws’ of the overthrown regime even though they are no longer effective or to apply the laws introduced by the new revolutionary government which are lacking legitimscy. There is no ely superior toit,...] a : i ~ -c Kelson’s theory of pure science of law which is also known os Theory of Interpretation was a reaction against vicious ideology which was corrup’ the legal theory and the jurisprudence of a totalitarian state./He /< . eneclatured his theory as "Pi law" because science to be cal SS rational, must stand in a two-fold relation to its object, viz., it determines the conception of the object and establishes its real while Tatter is practi elson_claimed that his pure theory was applicable to all places and at all times. It must be free from ethics, politics, sociology, history, etc. though he did not deny the value of these branches of knot ofthese branch He only wanted that law should be clear of them. ,apes Lo Implications of Kelson’s Theory Pure Science of Law /{>) 4 — _ Kelson’s pure theory of law covers a wide spectrum of legat Concepts such —\ as State, sovereignty, private and public law, legal personality, rights and /- —~) duty etc. a According to Kelson law and State are not different but they are in fact one | and the same. Likewise, there is no difference between public and private law. | Kelson also denies any legal difference between natural and juristic | personality. For him, all legal personality is artificial and derives its | “| validity from grundnorm. He does not believe in the existence of individu: rights and asserts that “legal duties” are the essence of law. In his view legal right is merely the duty as viewed by the person entitled to require its __ fulfilment.