MODULE 4: ANALYTICAL POSITIVISM

Fundamentals Questions and Explanations

Introduction and Central Features of Analytical Positivism

Positivism – derived Legal positivism is a school of thought that holds that the only
from Latin term positus legitimate sources of law are written rules, regulations, and
(meaning posit, principles expressly enacted, adopted, or recognized by a
postulate, or firmly affix governmental entity or political institution, including
the existence of administrative, executive, legislative, and judicial bodies. When
something). discussing this idea, the fundamental question is "What is law?"
Is it written down? Where does it originate? Legal positivism is a
theory that attempts to resolve these concerns.
Legal positivism is a legal philosophy that holds that all laws are
nothing more than the expression of the will of whichever power
created them. As a result, no laws may be considered
representations of higher morality or higher principles, to which
people can resort when they disagree with the laws. It is the
belief that law is a social construct. The making of laws is merely
a show of force and a statement of power, not an endeavor to
achieve higher moral or social aims. As a result, from a positivist
standpoint, "legal rules or laws are valid not because they are
based on moral or natural law, but because they are enacted by
legitimate authority and accepted by society as such."
Jeremy Bentham- Theory of Utility and its Merits and Criticisms

Bentham’s Sovereign Any person or assemblage of persons to whose will a whole

political community are (no matter on what account) supposed
to be in disposition to pay obedience; and that in preference to
the will of any other person
Bentham’s Political “Where a number of persons (whom we may style as subjects)
Community, Subjects, are supposed to be in the habit of paying obedience to a person,
or assemblage of persons of a known and certain description
(whom we may call as Governor or Governors), such persons
altogether (subjects and Governors) are said to be in a state of
Political Society”
Attributes of Sovereign powers are indefinite unless limited by express
Sovereignty convention or by religious or political motivations
Law “an assemblage of signs, declarations of volition, conceived or
adopted by the sovereign in a state, concerning the conduct to
be observed in a certain case by a certain person or class of
persons who in the case in question are or are supposed to be
subject to his power”
Bentham’s Utilitarianism Utility and Happiness
The guiding principle of Bentham’s thought was the principle of
utility: human actions and social institutions should be judged
right or wrong depending upon their tendency to promote the
pleasure or happiness of the greatest number of people. A
popular formulation of the principle is “promote the greatest
happiness for the greatest number.”
Bentham himself defined the principle of utility as “that principle
which approves or disapproves of every action whatsoever,
according to the tendency which it appears to have to augment
or diminish the happiness of the party whose interest is in
question.” Bentham was not clear as to whether the principle
referred to the utility of individual actions or classes of actions,
but he was clear “the party whose interest is in question” refers
to “anything that can suffer.” Thus, utilitarianism was the first
moral philosophy to give a significant place to nonhuman
animals.
Utility measures the happiness or unhappiness that results from
a particular action. The net utility measures the balance of the
happiness over the unhappiness or, in other words, the balance
of an action’s good and bad results. To compute the net utility,
we subtract the unhappiness caused by an action from the
happiness it causes. If an action produces more happiness than
unhappiness, a positive net utility results. If it produces more
unhappiness than happiness, a negative net utility results.
When deciding upon a course of action utilitarians take the
following steps. First, they determine the available courses of
action. Second, they add up all the happiness and unhappiness
caused by each action. Third, they subtract the unhappiness
from the happiness of each action resulting in the net utility.
Finally, they perform that action from the available alternatives
which has most net utility.
If all of the available actions produce a positive net utility, or if
some produce positive and some produce negative net utility,
utilitarians perform the action that produces the most positive
utility. If all the available actions produce a negative net utility,
then they perform the one with the least negative utility. In
summary, utilitarians perform that action which produces the
greatest balance of happiness over unhappiness from the
available alternatives. Thus, the first key concept of utilitarianism
is that of maximizing utility or happiness. It is important to note
that computations of the net utility count everyone’s happiness
equally.
Consequences of moral actions
The second key concept of utilitarianism is that we judge moral
actions by the consequences they produce. The only thing that
counts in morality is the happiness and unhappiness produced
by an action. In other words, according to utilitarianism, the ends
justify the means. It does not matter how you do it, as long as
you increase the net utility. In most cases, as we have already
mentioned, the action that utilitarians recommend mimics the
recommendations of other moral theories. For instance, given
the choice of telling Sue that she looks beautiful or terrible, we
would usually maximize utility by telling her the former.
Similarly, given the choice of granting or denying her request for
a loan, we would usually maximize utility by granting her
request. However, if she will probably use the money to buy
drugs, become intoxicated and then beat her children, we should
deny her request. On the other hand, if Bob will use our money
to feed his children, we should probably loan it to him. We
 should always perform that action that will, most likely, increase
the happiness and decrease the misery of all involved.

Problems with A first difficulty with using happiness as the moral standard is
Happiness that the concept of the net utility implies that happiness and
unhappiness are measurable quantities. Otherwise, we cannot
determine which actions produce the greatest net utility.
Bentham elaborated a “hedonistic calculus” which measured
different kinds of happiness and unhappiness according to their
intensity, duration, purity, and so on. Some say that it is
impossible to attach precise numerical values to different kinds
of happiness and unhappiness. For example, it may be
impossible to assign a numerical value to the happiness of eating
ice cream compared to the happiness of reading Aristotle. Still,
we can prefer one to the other, say ice cream to Aristotle, and,
therefore, we do not need precise numerical calculations to
reason as a utilitarian.
A second difficulty is that it may be impossible to have
“interpersonal” comparisons of utility. Should we give Sue our
Aristotle book or Sam our ice cream? Does Sue’s reading
pleasure exceed Sam’s eating pleasure? There is no doubt that
different things make different people happy. For some, reading
and learning is an immense joy, for others, it is an exceptional
ordeal. But we can still maximize utility. We should give Sue the
book and Sam the ice cream, or if we can only do one or the
other, we make our best judgment as to which action maximizes
utility. Besides, we agree about many of the things that make us
happy and unhappy. Everyone is happy with some wealth,
health, friends, and knowledge. Everyone becomes unhappy
when they are in pain, hungry, tired, thirsty, and the like. We do
not need precise interpersonal comparisons of utility to reason
as a utilitarian.
Despite Mill’s proof of utilitarianism, a third difficulty concerns
doubts about the overriding value of happiness. Is it more
valuable than, for example, freedom or friendship? Would we
sacrifice these for the net utility? We would maximize utility by
dropping “happiness pills” into everyone’s drinks, but this
doesn’t mean we should do it. Shouldn’t individuals be free to be
unhappy? And if we believe this, isn’t that because we think
freedom is a value independent of happiness? We might even
refuse to take happiness pills even if given the choice because
they limit the freedom to be unhappy.
Or suppose we promise to meet a friend but, in the meantime,
some little children ask us to play with them. It may be that
playing with the children maximizes utility. After all, our friend is
popular and will probably make other arrangements after
waiting a while. But maybe we should keep our promise. Maybe
promise keeping or the friendship it engenders are valuable
independent of the total happiness. These examples suggest that
happiness is not the only value.
Most contemporary utilitarians have abandoned the idea that
 happiness is the only value. They have retreated from claims
about absolute values to claims about individual preferences.
(See for example Gauthier’s view.) The type of utilitarianism
which argues that we should maximize an individual’s subjective
preferences is called preference utilitarianism. The problem with
this type of utilitarianism is that some subjective preferences
might be evil.
A fourth difficulty is that utilitarianism considers only the
quantity of utility, not its distribution. Should you give $100 to
one needy person or $10 each to ten needy persons? The second
alternative might be better even if the first one creates the most
utility. Concerns about the total happiness have troubled many
commentators and some have suggested that we consider the
“average utility.” But this version has problems too. Do we want
a society where the average income is very high, say $1,000,000,
but many people live in destitute poverty, or one where the
average income is much lower, say $50,000, but no poverty
exists? In fact, the idea of the welfare state assumes that money
has a diminishing utility it doesn’t benefit the rich as much as the
poor and thus the enforced government transfer of money from
the rich to the poor is justified. But isn’t it possible that
individuals who work hard for their money deserve it, whether or
not forcefully taking it maximizes utility? This analysis reveals
another fundamental difficulty with utilitarianism. Everything is
sacrificed to the net utility. But should all moral acts be judged
by the consequences they produce?

Problem with The most important difficulty for utilitarianism is that it

Consequences emphasizes consequences exclusively. Utilitarians claim that
“the ends always justify the means,” and therefore we can
do anything to maximize utility as long as the consequences are
good. For example, imagine that our neighbor opens our mail
every day before we get home and then meticulously closes and
replaces it with such skill that we cannot tell it has been opened.
He derives great satisfaction from this activity and we never find
out about it. When we are out-of-town and give him the key for
emergencies, he rummages through our mail and personal
effects, carefully replacing them before we return. He finds
these activities immensely pleasurable, we never find out, and
the net utility increases. An act utilitarian says he acts morally.
But isn’t there something wrong here? Should our privacy be
sacrificed to the net utility?
Act utilitarians are willing to sacrifice privacy, rights, or even life
itself to the net utility. Imagine a country sheriff who has been
charged with finding the perpetrator of a recent homicide. The
powerful elite of the town inform the sheriff that if he does not
find the murderer, they will kill the inhabitants of the local
American Indian reservation since they believe an American
Indian committed the crime. The sheriff has no idea who
committed the murder, but he does believe that framing some
innocent individual will avert the ensuing riot which will almost
 certainly kill hundreds of innocent people. In other words, the
sheriff maximizes utility by framing an innocent victim.

Read more at:

https://reasonandmeaning.com/utilitarianism-in-
detail/https://plato.stanford.edu/entries/utilitarianism-history/#JerBen
https://www.lawteacher.net/free-law-essays/jurisprudence/legal-positivism.php

John Austin – Types of Law, Law as Command of the Sovereign; Merits and Criticisms of the
Theory. Application of Austin’s theory in Contemporary Times

Types of Law Austin distinguished between what he called “laws properly so

called” and “laws improperly so called” .

The key to a law “properly so called” lies in the obligation. An

obligation exists when another has the power and purpose of
inflicting an evil on any actor, who fails to conform to the desired
conduct.

Laws “properly called” are subdivided by him into laws set by

God, Divine Laws, and Laws set by men to men, acting as their
political superior. To every law set by men to men, acting as their
political superior. To every law set by men he applied the term
“positive law” or “law simply and strictly so called” so as to
distinguish them from the laws of God.

Positive laws” are the subject-matter of jurisprudence. Separate

from all these are laws set by men to men neither as political
superiors, nor in pursuance of rights conferred upon them by
such superiors. They are still laws “properly so called” because
they are commands, but Austin distinguished them from positive
law by giving them the term “positive morality”.

Laws “improperly so called” consist in the first place of “Laws by

analogy”, i.e., law set and enforced by mere opinion, also
somewhat confusingly termed as “positive morality”- “positive”
so as to distinguish them from the Laws of God, “morality” so as
to distinguish them from positive law or law strictly so called.

separation of law from The separation thesis is the contention that ‘there is no
morals necessary connection between law and morality’. A ‘connection’
means any sort of relation to social power, social rules, and
morality. The term ‘morality’ is more complex as it includes valid
and positive morality. The thesis however, only applies to
positive morality. It therefore rejects the ‘natural law’ view that
there must be moral tests for law and disregards the opinion of
those ‘consensus sociologists’ who suppose that all legal system
reflect the spirit, traditions or values of their communities.
COMMAND As to what is the core nature of law, Austin’s answer is that laws
(“properly so called”) are commands of a sovereign. He clarifies
the concept of positive law (that is, man-made law) by analyzing
the constituent concepts of his definition, and by distinguishing
law from other concepts that are similar:

• Commands” involve an expressed wish that something

be done, combined with a willingness and ability to
impose “an evil” if that wish is not complied with.
• Rules are general commands (applying generally to a
class), as contrasted with specific or individual
commands (“drink wine today” or “John Major must
drink wine”).
• Positive law consists of those commands laid down by a
sovereign (or its agents), to be contrasted to other law-
givers, like God’s general commands, and the general
commands of an employer to an employee.
• The “sovereign” is defined as a person (or determinate
body of persons) who receives habitual obedience from
the bulk of the population, but who does not habitually
obey any other (earthly) person or institution. Austin
thought that all independent political societies, by their
nature, have a sovereign.
•

Criticisms In many societies, it is hard to identify a “sovereign” in Austin’s

sense of the word (a difficulty Austin himself experienced, when
he was forced to describe the British “sovereign” awkwardly as
the combination of the King, the House of Lords, and all the
electors of the House of Commons). Additionally, a focus on a
“sovereign” makes it difficult to explain the continuity of legal
systems: a new ruler will not come in with the kind of “habit of
obedience” that Austin sets as a criterion for a system’s rule-
maker.

As regards Austin’s “command” model, it seems to fit some

aspects of law poorly (e.g., rules which grant powers to officials
and to private citizens—of the latter, the rules for making wills,
trusts, and contracts are examples), while excluding other
matters (e.g., international law) which we are not inclined to
exclude from the category “law.”

More generally, it seems more distorting than enlightening to

reduce all legal rules to one type. For example, rules that
empower people to make wills and contracts perhaps can be re-
characterized as part of a long chain of reasoning for eventually
imposing a sanction (Austin spoke in this context of the sanction
of “nullity” on those who fail to comply with the relevant
provisions. However, such a re-characterization misses the basic
purpose of those sorts of laws—they are arguably about granting
power and autonomy, not punishing wrongdoing.
 Also read Gun point criticim

Read more
https://plato.stanford.edu/entries/austin-john/

Hans Kelsen – Pure Theory of Law, Grund Norm; Merits and Criticisms of the Theory, Application
of Kelsen’s Theory in Contemporary Times

Distinction between Theory of Law

Theory of Law and Law
The theory of Law must be distinguished from the law itself.
There is no logic in natural phenomena, but a theory of nature,
which purports to take account of them, must be logically self-
consistent. In the same way, the law itself consists of mass
heterogeneous rules, and the function of a theory of law is to
organize them into a single ordered pattern.

The Theory of law should be uniform, ie it should be applicable

at all times and in all places. Kelsen thus advocated general
jurisprudence.

A theory of law must deal with law as actually laid down, not as
it ought to be –thus Kelsen is a positivist

Law

Kelsen distinguishes propositions of science and proposition of

law. The former is denoted by an IS for example whenever an
apple is parted from the tree, in the abdsence of support it falls
to ground. So proposition of science deals with what does
happen or IS.

Proposition of law only deal with what OUGHT to occur, eg if a

person commits theft, he OUGHT to be punished. Knowledge of
law means knowledge of OUGHTS. That means before
committing theft the thief should know the consequences of it if
he is convicted.

Kelsen defined law as- "the depsycholised command, and

described it as Normative science, as distinct from natural
sciences, which are based on cause and effect, such as law of
gravitation."

Pure Theory of Law A THEORY OF LAW must be free from ethics, politics, socio0logy,
history etc. It must be in other words pure. Not that Kelsen
 denied the importance of other disciplines but his argument was
that theory of law should be free from all these.

Kelsen do not say that law should be free from the influence of
these disciplines but the theory of of law should be. If the theory
of law is not pure it cannot have general/universal relevance
Grund Norm Kelsen's pure theory of law is based on the pyramidical structure
of the hierarchy of norms which derives their validity from the
basic norm, which has been termed as "Grundnorm".

According to Kelsen a legal system should be dynamic in nature

in which fresh norms are constantly being created on the
authority of an ORIGINAL or BASIC NORM which he calls as
GRUND NORM. Based on this grund norm a hierarchy of further
norms are created to deal with specific scenarios in a dynamic
society.

1. This theory was aimed at reducing the chaos and

confusion created by the supporters of natural law
theory.
2. The pure theory of law deals with the knowledge of what
law actually is, and it is not concerned with what law
ought to be.
3. The theory considers law as a normative science and not
as a natural science.
4. Kelsen's theory of law is a theory concerned with Norms,
and not the effectiveness of legal norms.
5. It is a formal theory confined to a particular system of
positive law as actually in operation.

Criticisms • Excludes all reference to social facts and needs of

society, and therefore the theory has been found lacking
in sociological foundation.
• Grundnorm according to Kelsen itself is a hypothesis or
fiction, so how then other norms having their basis on
Grundnorm have legal ground?.
 • According to FRIEDMANN, Kelsen's theory of law
provides no solutions for ideological differences, which
was an important cursor for legal norms at such time,
and even now.

Contemporary Read
Relevance https://www.jstor.org/stable/43953347?seq=10

MODULE 6: SOCIOLOGICAL SCHOOL

Introduction and General Features of Sociological School

The main subject matter of sociology is Society. Sociology is the study of

society, human behaviour, and social changes. 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.
Sociological school of law focuses on studying the law in practice with relation
to the society. They lay emphasis on actual social conditions and situations
which require the help of the law.

The idea of Sociological School is to establish a relation between 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.

The 1. Sociological School of Law lays emphasis more on the functional aspect
characteristics of law rather than its abstract content.
of Sociological 2. They consider law as a social institution essentially interlinked with
school of law: 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 the
court’s rulings and decisions with a realistic approach of law.
5. The sociological jurists have greater concerns when it comes to the
functioning and working of the law rather than the nature of the law.
Ihering Ihering was an sociological jurist known for his monumental work ‘spirit of the
law’. He was against the theory of individuals welfare and favours the factor
that social interest of society must have a priority over an individual’s interest
and the purpose of the law is to protect the interest of society, that is why his
 theory is known as ‘Jurisprudence of Interest’ which emphasizes on the
sociological aspect of Sociological School of Law. He described the law in
following aspects:

1. Law as a result of Constant Struggle: Ihering pointed out that the social
struggle gives birth to law and the role of law is to harmonize the conflicting
interests of individuals for the purpose of protection of interest of society. He
gave importance to living law which develops with the struggles of society.

2. Law as a means to serve Social Purpose: According to him, the ultimate goal
of the law is to serve a social purpose. It is the duty of the state to promote
social interests by avoiding various clashes between social and individual
interests. According to him, “law is coercion organized in a set form by the
state”, which means that he justified coercion by the state for the purpose of
social welfare.

3. Law as one of the means to control society: Law alone is not a means to
control society, there are some other factors also like climate, etc. Like
Bentham, Ihering favours the interest in the achievement of pleasure and
avoidance of pain but for the society, that’s the reason that Ihering theory is
also known as the theory of “Social Utilitarianism”.

So, according to the Ihering, the social activities of individuals can be controlled
by the state by means of coercion, reward and duty for achieving social control
for the welfare of society. Friedman said that “Ihering was declared as the
father of modern sociological jurisprudence because of his concept of law as
one of the important effective factors to control social organisms.”
Eugen Ehrlich Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of
law is the study of law from the sociological perspective. Ehrlich considered
society as a main source of the law. And by society, he means “association of
men”. Ehrlich had written that “Centre of gravity of all legal developments is
not in legislation or judicial decisions but in society itself.” He argued that
society is the main source of law and better source of law than legislation or
judicial decision.
Law is to be Found in Social Fact: The central point in Ehrlich's thesis is that
the law of community is to be found in social facts and not in formal sources of
law. He says:" At present as well as at any other time the centre of gravity of
legal development lies not in legislation, nor in juristic science, nor in judicial
decision, but in society itself.

'Living Law' is the Facts that Govern Social Life: Ehrlich believed in the
spontaneous evolution of law in the context of existing society. According to
him, law originates from existing institutions of marriage, domestic life,
possession, contract, inheritance, etc. They govern society through living laws.
By living laws, he means that extra-legal control which governs/regulate the
social relations of man. In his opinion, the centre of gravity of legal
development in the present times or in the past lies neither with the juristic
science, nor in judicial decisions, but in society itself. His living law is the law
which dominates social life even though it has not been known in the form of
enactments or decisions of courts. So, the scope of living law is under than the
statuary law of the state. For example, there may be some enactments
 enforced in the sense that courts may apply them in the decisions in any issue
but a community may ignore the enacted laws and lives according to the rules
created by their mutual consent, like dowry system in India.
Leon Duguit 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’s 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 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.

Importance of Duguit’s theory:

1. Over emphasis 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.

Roscoe Pound 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. He treated the 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 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

Individual/ Private Interest:

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.

Domestic relations of a person such as a husband and a wife, parents and

children, etc. are protected by Personal Law. The interests of the property,
succession, contractual relations, testamentary relations, etc. are protected by
Property Laws.

Public Interest:

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.
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 fulfil all
the needs of society as a whole for the proper functioning and maintenance of
it. Interest in the preservation of general peace, health, the security of
transaction’s, preserving social institutions like religion, politics, economic.

Interest in preservation of peace and health.

Preserving social institutions of religion, politics and economics. Preserving

certain prohibiting acts like prostitution, gambling, etc. Conservation of social
and natural resources.
 General progress including economic, political and cultural areas. E.g.- Freedom
of Trade and Commerce, Speech and Expression, etc. Interest to make a
political, physical, social and economic life to promote personality.

Jural Postulates by Roscoe Pound:

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 civilized society, man must be able to assume that others will not
commit any intentional aggression on him.
2. In a civilized 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 civilized society, man must be able to assume that those with
whom they deal as a member of societies will act in good faith.
4. In a civilized 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 civilized 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 civilized life and with the changes in society, the jural postulates
may emerge or originate in society.

Criminal: An interest in protection from any intentional aggression. For

Example, Assault, Wrongful restraint, Battery, etc.

Law of Patent: An interest in securing his own created property by his own
labour and hard work. E.g., agricultural land, any music or artistic things.

Contract: The interest in making the contract and getting of reasonable remedy
or compensation when his right violates.

Torts: Protection against Defamation and unreasonable injury caused by the

negligent act of another person.

Strict Liability: Similarly, in case Ryland Vs. Fletcher Protection of our interest if
the injury caused by the things of another person. It is the duty of other people
to keep his/her things with his/her boundary and should look after that thing
to avoid injury to other people.
Sociological Sociological jurisprudence in India can be seen in many laws and enactments in
Jurisprudence India. In India, Sociological Jurisprudence has been adopted in the Indian
with Indian Constitution. Part III of The Constitution of India solely deals with the
 Perspective: Fundamental Rights of the citizen and people of this country wherein the
citizens and the people are provided with certain rights. These rights are
provided by recognizing the public and private interest of the individual.
Further, there are several cases wherein the concept of Sociological
Jurisprudence has been mentioned and has been taken into consideration
while delivering the judgment.

For details read https://www.ebc-india.com/lawyer/articles/88v1a2.htm

Also refer to cases at

https://www.casemine.com/search/in/sociological%2Bschool%2Bjurisprudence

MODULE 7: The realists movement

Refer to the points discussed in the class on the central features of the school, distinction between
American realism and scandinevian realism.

Also read the contributions of scholars like Oliver Holmes (Prediction Theory/Badman Theory) ;
Jerome Frank (scepticism, Father Complex Theor, ) and also Carl Llewwllyn (Law Jobs Theory)