Module 2- schools of law

08 August 2023 10:50

What is school?
School of thought is a principle or body of principles accepted as authoritative and advocated by one or more scholars
belonging to specific discipline.
→ Different people have different ideas about law. Everyone try to explain the meaning, nature and functions of law in
their own perspective.
→ Thus we have different theories, schools and approaches to law.

Different schools
→ Historical school of law
→ Sociological school of law
→ Analytical school of law
→ Philosophical school of law
→ Legal realism
→ Natural law theory

Historical school:
→ Law is the outcome of a long historical development of society. It is because the origin of law is from the social
customs, conventions, religious principles, economic needs and relations between people.
→ Law is the product of forces and influences of the past. The origin of law is based on the general consciousness of the
people. It started from the very beginning of the society.
→ Law is not the command of the sovereign.
→ New laws are bought into existence only from past experiences.

→ Savigny is the father of historical school. According to him 'law is the product of times, germ of which like the germ
of state exists in the nature of men being made for society and which develop s from this germ various forms,
according to the environing influences which play on it.

→ He considered the peculiar system of law to be a reflection of the 'spirit of the people'. He called it VOLKSGEIST.
As per this theory law is based on the general will of the people.

→ Law grows with the growth and strengthens with the strength of the people and finally dies as the nation loses its
nationality.

→ Edmund Bruke- importance of tradition as a guide of social change. Law is the product of general process. It is a
dynamic organ which changes and develops according to the suitable circumstances of the society.

→ Puchta(disciple of Savigny)- in order to make the theory of Savigny more logical, he made some improvements to it.
Law was the manifestation of common conscience. The idea of law came due to the conflict of interests between
individual will and general will and this automatically gave rise to state.

→ Sir Henry Maine(Anthropological approach) he made a comparative study of legal systems and traced the course of
their evolution. Law develops to four stages:

• command of ruler acting under divine inspiration

• commands crystallise into customs(customary law)
• knowledge and administration of customs into the hands of minority(religion)
• phases of codes(revolt of majority)-era of codification
• (Hindu code of Manu, Solon's Code, Hebrew's code twelve tables in Rome, codes of Hammurabi etc.,

If a society does not have any progress beyond fourth stage, it's a static society. Progressive societies like Romans and the
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If a society does not have any progress beyond fourth stage, it's a static society. Progressive societies like Romans and the
nations of modern Europe progressed beyond the code. It is due to the conscious desire to improve and develop.

3 Agents of legal development

→ Legal fiction - any assumption which conceals or effects to conceal the fact that a rule of law has undergone alteration,
its letter remaining unchanged, its operation being modified.
→ Equity (court of chancery)- a body of rules existing side by side of the original common law, founded on distinct
principles and claiming incidentally to supersede the common law.
→ Legislations- direct and systematic method of law making.

Sociological school of law: (external concept)

→ Law comes into play only when in a community or society and not individually.
→ The relationship between individual, society and the state have been changing. There were revolutions and political
changes. It resulted in balancing the welfare of society and the individual.
→ The approaches made from this point of view are called sociological approaches.
→ It is the functional view of law. It considers man in association and not man as an individual. Law is a social function,
an expression of human society concerning the external relations of its individual members.
→ Sociological approach of jurisprudence was an outcome of a political shift from laissez faire to welfare state.
→ Its aim is to test law as a given social phenomenon and lastly judging law by its social utility.

August Comte is the founder of sociology. According to him, men were associated in groups and there arises impulses to
establish law and government. He was against individualistic view. According to him, society is like an organism (scientific
positivism).

Emily Durkheim: law is the measuring rod of any society. Law reproduces the principal forms of social solidarity.

social solidarity

mechanical solidarity organic solidarity

found in homogenous societies rest on functional interdependence
produced by division of labour

Mechanical solidarity: societies with mechanical solidarity tend to be small with a high degree of religious commitment,
and people in mechanical society oftentimes have the same jobs and responsibilities thus indicating a low division of
labour. In other words, it is not very complex society =, but rather one based on shared sentiments and responsibilities.

Organic solidarity: societies characterized by organic solidarity, on the other hand, are more secular and individualistic due
to the specialization of each of our tasks. Organic solidarity is more complex with a higher division of labour.

Herbert spencer (organic theory of society): by the help of ethnographical and anthropological materials, Spencer found
that society resembles individual organisms. There are four sources of law:
→ Divine laws- quasi religious sanction
→ Injunctions od deceased leaders
→ Will or predominant man
→ Collective opinion of the society
He differentiated divine origin law and human origin law

sanctioned by ruler sanctioned by social interest

→ He was against the traditional concept of state, sovereignty and law. He is the founder of social solidarity principle.
→ Interdependence of people increased in the modern days and it increased the knowledge of man and mastery over
physical world. So now man cannot live without depending on others. Interdependence is not a theory, but a fact.
→ State is merely an organization of men and there is no special status or privilege for it.
→ Idea of sovereignty is meaningless. All powers are limited by the rest of social solidarity. Man should not injure social
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→ Idea of sovereignty is meaningless. All powers are limited by the rest of social solidarity. Man should not injure social
solidarity, he must promote it.
→ State is a human organization and its duty is to ensure social solidarity. State is sovereign power, but has limits.
Natural rights are anterior to the state. Thus state should respect and guarantee it. Same time there are limitations to
protect rights of all.
→ He disbelieved in all powerful state. He supported division of labor, decentralisation and group government. He was
against the arbitrary actions of central government.

IHERING:
→ Gave importance to utility.
→ Function of law is protection of interests.
→ Law is the sum of the conditions of social life in the widest sense of the term as secured by the power of the state
through the means of external compulsion.

Roscoe Pound(Social engineering theory) :

Law is social engineering whose task is to accelerate the process of social ordering by making all efforts to avoid conflicts
of interests of individuals in society.

→ His thoughts were formed by a constant confrontation of sociological problems, philosophical problems, problems of
legal history and problems of legal history and problems of working of American courts.
→ This multiplicity of centres of interest and points of departure aided pound to broaden and clarify the very vast
perspective of legal sociology and to develop gradually its different aspects.
→ Law is the body of knowledge and experience with the aid of which a large part of social engineering is carried on.

→ In order to fulfill desires of human beings, there aroused a conflict of desires.

→ It is not possible to fulfill all such desires. So the desires of maximum human beings should be fulfilled for the welfare
of the society.
→ Law is to control human conduct. Law is social engineering, which means a balance between the competing interests in
the society in which applied science are used for resolving individual and social problems
→ He compares lawyers to engineers. It is their duty to build a structure of society as possible, which requires maximum
wants with minimum usage of resources.

Interests:
• Individual interest
→ Personality: freedom of will, honour and reputation, privacy and belief and opinion.
→ Domestic relations: parents, children and husband and wife.
→ Interest of subsistence: property, freedom of industry and contract, freedom of association and continuity of
employment.
• Public interest
→ Claim associated in title of a politically organized society or desires looked at the stand point of political life
→ State as a juristic person- claims of politically organized society as a corporation to property acquired and held for
corporate purpose.
→ State as a guardian of social interest- environment, territorial waters, sea shore, public employment etc.,
• Social interest
→ Desires and thoughts in terms of social life and generalized as claims of social groups.
→ Social interest in the general society: general safety, general health, peace and order, security of acquisition and security
of transaction.
→ Social interest in security of social institutions: domestic institutions, religious institutions, political institutions and
economic institutions
→ Social interest in general morals: in civilized societies the conducts offensive to general moral sentiments are to be

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→ Social interest in general morals: in civilized societies the conducts offensive to general moral sentiments are to be
taken care of. For example, prostitution and gambling.
→ Social interest in conservation of social resources: conservation of natural and human resources, sustainable
development.
→ Social interest in general progress: economic progress, political progress, cultural progress.
→ Social interest in individual life: self-assertion, opportunity and condition of life.

Means to secure interests: legal power, remedial machinery- punishment, redress and prevention.

JURAL POSTULATES: basic assumptions upon which the society's order rests. New interest will emerge when society
changes. Pound found a set of underlying values which he called jural postulates of a civilized society. The citizens of
civilized society are entitled to assume postulates.
→ Others will not commit intentional aggression upon them
→ He can appropriate for his own use what he has created by his own labor and what he has acquired under existing
economic order.
→ That those with whom they deal, will act in good faith.
→ That others will act with due care and will not cast upon him an unreasonable risk of injury.

Added 3 more postulates in 1942.

→ Security as a job holder.
→ Society will bear burden of supporting him when he becomes aged.
→ Society as a whole will bear the risk of unforeseen misfortunes.

When society changes new postulates will be added. It is the guideline for civilized life. It is applicable to legislators as well
as judges.

Philosophical school of law:

→ The philosophical school deals with the purpose of law and the justification for the coercive regulation of human
conduct by means of law.
→ Law is the means by which individual will is harmonized with the general will of the society by delimiting the sphere
of permissible free activity of each individual.
→ It is concerned with the relation of law to certain ideals which law is meant to achieve.(Justice is the ideal)
→ It investigates the purpose of law and measure the manner in which that purpose is achieved.

Law is a product of human reason. It is neither an arbitrary command nor creation of historical necessity but it is a
product of human reason.

Hugo Grotius (Father of philosophical jurisprudence):

→ He favored natural law (derived from social nature of man)
→ Law is the agreement of mankind concerning certain rules. It indicates that rules originated in right reason.
→ De jure belli et Pacis- the law of war and peace (book by Hugo Grotius)

Immanuel Kant
→ Law is the means by which individual will is harmonized with general will of the society.
→ Ethics related to man's spontaneous acts while law deals with all those acts to which man can be compelled.
→ Law is the aggregate of the conditions under which the arbitrary will of one individual may be combined with that of
another under a general inclusive law of freedom.
→ Law should contain an element of justness, so as to be acceptable. Legislation is acceptable only when it represents the
united will of the people.
→ Function of the state is the maintenance of law and order and the administration of justice. People have the freedom to
criticize the government but not resist it.
→ He emphasized the importance of international law.

Fichte
→ He deduced legal theory from the inherent self-consciousness of the reasonable man.

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→ He deduced legal theory from the inherent self-consciousness of the reasonable man.
→ Legal relationship is a part of mutual personal relations. He supported free individuality.
→ There is a moral duty to respect other's liberty. Unless it is done, law gives a right of compulsion to enforce my
fundamental right. Elementary rights of individuals must be protected by state.
→ Law must realize Justice and state must be Rechtsstaat(legal state).

Relation between individual and state:

→ Fulfilment of civic duties individual becomes a member of state(voting).
→ Law limits and assure limits of individual.
→ Outside civic duty individual is free.

He also supported international law.

Hegel
→ He favored freedom of will. The purpose of law is to reconcile the conflicting egos in society.
→ According to him "what is reasonable is real and what is real is reasonable"
→ State and law are the products of evolution. Legal institutions are expressions of free human mind.
→ State is an organism in which the life of parties are embodied. It is not an authority from outside.
→ Individual should realize his true individual self. State is a freedom

3 aspects of state

universal particular individual

(law) (applies law to special ones) (monarch)

→ He was against the separation of powers(it leads to dissolution of state). He rejects democracy and universal franchise.
→ State is not the common will but the rational will. He supported monarchy.
→ Law and social life are products of evolutionary dynamic process.
→ Hegel was also probably the first philosopher to think of history itself as a dialectical process, in which reality can be
understood through a three stage dialectic, starting with the indeterminate concept (or thesis) to the determinate
concept(or antithesis) and then to the resolution (or synthesis). Hegel saw "Geist"(the absolute mind or spirit)
developing through history, with each period having a Zeitgeist (spirit of the age). Hegel's theory of dialectic was the
inspiration for the dialectical materialism of Karl Marx and Marxism.

Thesis: original statement of an idea.

Anti-thesis: an argument to challenge previous thesis
Synthesis: a new argument from existing sources. Resolve the apparent contradictions between thesis and anti-thesis.

Analytical school of law: (imperative school, positive school, English school, Austinian school)
→ John Austin is the father of Analytical school.
→ It is called positive school because it considers law as it is and not as it ought to be
→ It is called imperative school because it treats law as the command of the sovereign.
→ This school is prominent in England, so it is called English school.
→ The central idea of this school is "law as it exists", ie., regardless of good or bad and past or future.
→ The purpose of analytical school is to analyse the first principles of law without reference to historical origin or
development and its validity.
→ It considers law as the command of the sovereign. It give emphasis on legislation as a source of law.
→ It regards law as a closed system of pure facts from which all norms and values are excluded.

Austin
→ 'Law is a rule laid down for the guidance of an intelligent being, by an intelligent being having power over him'
→ Law is the command of sovereign, backed by sanctions.
→ Austin distinguished law into two
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→ Austin distinguished law into two
LAW
law properly so called law improperly so called
commands not commands

Law properly so called could be of two types, law of god(divine law) and law by humans. Law by humans is further
divided into two categories; law set by political superior to political inferiors(positive law) and law by superior to
inferior(positive morality)

Law improperly so called is also divided into two types; law by analogy and law by metaphor. Law by analogy is opinions
or sentiments of an undetermined body of men. No obligation to follow these laws. Example: International law(positive
morality). Law by metaphor is law of nature or scientific laws. Already existing and proved.

Elements of law
1. Command: commands are expressions of desires given by superiors to inferiors. The essential components of
command are:
• duty- the obligation to comply with the command.
• Right- the capacity to direct another to act or to forbear from doing a particular act.
• Sanction- are the consequence of not following through with the command.

2. Sovereign: if a determinate human superior, not in habit of obedience to a like superior receive habitual obedience
from the bulk of a given society, that determinate human superior is sovereign in that society, and the society is a
society political and independent.
→ The sovereign must receive obedience from the bulk of the society.
→ Obedience must be habitual and permanent.
→ Occasional obedience is not enough - obedience must be free and voluntary- perfect obedience is not necessary-
general measure of obedience is sufficient.

→ Sovereign must be superior in the society

→ Two kinds of superiority- natural and positive.
→ Superior must be a determinate person or body of persons.
→ Superior must be common to entire society
→ Superior must be independent
→ Superior must preside over a political society.

3. Sanctions: an evil or punishment attached to a command. It is the method of coercion to enforce the command not
leaving the citizen free to decide whether to obey the law, but to make obey even if he dislikes it.

HLA HART: criticisms to Austin: analytical naturalism

→ Commands backed by sanctions is not true in case of all laws.
→ Law maker is also bound to follow the laws.
→ He was against the idea of habitual obedience.
→ The unlimited powers of sovereign cannot be seen in legal systems.
→ Social rules have an internal(morality, ethics, values) and external aspect.

HLA HART'S OPINIONS

→ In his book concepts of law, he defined legal system "legal system is a system of rules which are social in nature
because firstly they regulate the conduct of member of society and secondly, they derive from human social practices"
→ He supported non-legal rules i.e., morality, customs, values etc.
→ Hart says that the purpose of human being is to survive in the society and for an effective survival, it is essential that
the elements of morality and human reasoning should be a part of the legal process.
→ According to hart, for law to be effective, there should be minimum content of morality and natural law in law.

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→ According to hart, for law to be effective, there should be minimum content of morality and natural law in law.

Hart's concept of law

social rules social habits

pattern of behaviour in a society can be
controlled through social rules

conventions obligations
laws/treaty in England
moral obligations law

primary secondary

Social rules: Set or pattern of behaviours expected to be followed by everyone as a member of society.

Primary law: those rules which impose 'duty' on a member of society, basic rules, what to do and what not to do. For
example; criminal law and torts.

Secondary law: power conferring laws- secondary rules are those rules which confirm 'powers' like contract, marriage, will,
delegated legislation - power to make law.

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