STUDY MATERIAL FOR VII SEMSETER 5 YEAR B.A., LL.B. & III SEMESTER 3 YEAR LL.B. COURSE SUBJECT: JURISPRUDENCE Course Contents: UNIT- Meaning and Nature of “Jurisprudence’- Purpose and value of Jurisprudence- Schools of Jurisprudence: Natural Law, Imperative Theory, Legal Realism, Historical School, Sociological School 0 seamed vith one SeamerUNIT-II Functions and purpose of Law, Question of Law, fact and discretion- Justice and its Kinds- Civil and Criminal Administration of Justice- Theories of Punishment and Secondary functions of the Court. UNIT-IT Sources of Law: Legislation, Precedent and Custom- A Comparative study UNIT-IV Legal Concepts: Rights and Duty, Kinds, Meaning of Right in its wider sense; Possession: Ideas of Ownership, kinds of Ownership, Differences between Possession and Ownership; Nature of Personality, Status of the Unborn, Minor, Lunatic, Drunken and Dead Persons. UNIT-V Liability: Conditions for imposing liability- Wrongful act: Damnum Sine Injuria, Ca rea, intention, malice, negligence and recklessness, strict liability, vicarious liability, obli JURISPRUDENCE ig and Nature of ‘Jurisprudence’- Purpose and value of Jurisprudence- Schools of Jurisprudence: Natural Law, Imperative Theory, Legal Realism, Historical School, Sociological School. 0 seamed vith one SeamerIntroduction to Jurisprudence: Law is not a new concept for the human society. Since from the time immemorial we find its existence in one form or the other. Law has now become a necessary evil, even though it curtail my freedom, limits my move but still I want law to be there so that I may enjoy my right in a society. We cannot assume human society in absence of law. Law introduces balance in society and help in maintenance of public order and security. Concept of law changes as per the society in which it is operating and develops along with society. Jurisprudence is the science, study and theory of law. It includes principles behind the law that makes the law. Scholars of jurisprudence are called as “Jurists” or legal theorists. Modern jurisprudence began in the 18 century and was focused on the first principle of natural law, civil Jaw and the law of nations. Jurisprudence- Its Nature, Meaning, Definition & Scope > Nature of Jurisprudence: ‘The word “Jurisprudence” is derived from a Latin word jurisprudential, which in its widest sense, means “knowledge of law’ or skill in law. The Latin word “Juris” means “Law” and “Prudentia” means skill or knowledge. Thus jurisprudence signifies knowledge of law and its application. In this sense it covers the whole body of legal principles in the world. The history of the concept of law reveals that jurisprudence has assumed different meanings at different times. It is therefore, difficult to attempt a singular definition of the term. It has a long history of evolution beginning from classical Greek period to 21% Century modern jurisprudence with numerous changes in its nature in various stages of its evolution. During the formative era of the common law in England, the term ‘jurisprudence’ was being used in a comprehensive sense to include the study of various series of law. However, in the early decades of the 19" Century with the theories propounded by Bentham and his disciple Austin, the term ‘jurisprudence’ acquired a definite meaning. Later, Austin concerned himself mainly with the formal analysis of the English law and its related concepts, which still continues to be the basic contents of English jurisprudence. > Meaning and Definitions of Jurisprudence: 3 © semved wth Ot ScannerJurisprudence, in its limited sense, means the general principles upon which actual rules of Jaw are based. It is concerned with rules of external conduct which persons are constrained to obey. Therefore, jurisprudence is that science which imparts to us knowledge about “law”. In short, jurisprudence may be considered to be the study and systematic arrangement of general principles of law. In other sense, jurisprudence may be regarded as the philosophy of law dealing with the nature and function of law. The study of jurisprudence as a separate branch of knowledge started with the Romans. For them, jurisprudence meant ‘knowledge of law’ The term “jurisprudence” has meant different things at different times. The definitions of jurisprudence as given by some of the eminent jurists may be stated as follow According to Ulpian, the celebrated Roman jurist defined jurisprudence as “the observation of things human and divine, the knowledge of the just and the unjust’ According to Gray “jurisprudence is the science of law, the statement ans systematic arrangement of the rules followed by the courts and the principles involved in those rules” According to Salmond “jurisprudence is the science of the first principles of the civil law’. According to John Austin “jurisprudence is the philosophy of positive law”. He was the first jurist to make jurisprudence as a science. By the term “positive law” he meant ‘jus positivum’, that is law laid down by a political superior for commanding obedience from. his subjects. According to Holland “jurisprudence is the formal science of positive law” According to Dr. Allen “jurisprudence is the scientific synthesis of the essential principles of law According to Roscoe Pound “jurisprudence is the science of law using the term law in the judicial sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice” Scope of Jurisprudence: © sewned wth Xt ScannerThe exact scope of jurisprudence has been a subject of the keenest controversy Jurisprudence is an investigation of an abstract and theoretical nature of law. It deals with the essential principles of law and legal system. It does not constitute a set of rules. It is not derived from authority and itis without practical application. It comprises philosophy of law. Its object is not to discover new rules but to reflect on the rules already know: As stated earlier, the scope of jurisprudence has widened considerably over the years. It is ‘generally believed that the scope of jurisprudence cannot be circumscribed. Broadly speaking, jurisprudence includes all concepts of human order and human conduct in State and Society. In other words, anything that concerns order in the state and society will be within the domain of jurisprudence. ‘Commenting on the scope of jurisprudence, Justice. P.B.Mukarjee observed, “Jurisprudence is both an intellectual and idealistic abstraction as well as behavioral study of man in society. It includes political, social, economic and cultural ideas. It covers the study of man in relation to state and society. Jurisprudence is a science in so far as it deals with the knowledge of the law and legal principles. Jurisprudence is an experimental study of legal ideas and ideals and social philosophy and political ideology in form and content, nature and function which make it a living and dynamic discipline, Functionally speaking, it is a technique of methodology to devise, design and identify such pressing demands or problems which require solution with the parameters of law and other social norms. It, therefore, follows that jurisprudence comprises philosophy of law and its object is not to discover new rule but to reflect on the rules already known. Contents / Subject Matter of Jurisprudence: The subject-matter of jurisprudence, then, is law and law alone. Itis the science of positive or actual law. Jurisprudence tells us what is law; how it is came into existence; why it came into being, how it works, how it develops and whether it tends, In other words, jurisprudence tells the © semved wth Ot Scannernature and elements of law, the source of law, the purpose of law, and the application of law. In short, jurisprudence studies the genesis, the growth, the function and the end of positive law, There are divergent views regarding the exact contents of jurisprudence. But it has been generally accepted that sources, legal concepts and legal theory constitutes the main premises of the study of jurisprudence, 1. Sources: it is well known that the basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of legal authority behind these sources. Therefore, they obviously form the content of jurisprudence. Under this head matters such as customs, legislation, precedent as a source of law. Pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc... are included in this. . Legal Concept: another area which concerns jurisprudence is the analysis of legal concepts such as rights, property, ownership, possession, obligation, acts, negligence, legal personality and the related issues. Jurisprudence tries to bring out a more comprehensive picture of each concept as a whole. The study of these abstract legal concepts furnishes a background for better understanding of law in its various forms, Legal Theory: besides the sources and the forces operating behind them and various legal concepts, legal theory also constitute on e of the main components of jurisprudence, Legal theory is concemed with law as it exists and functions in the society, and manner in which law is created and enforced as also the influence of social opinion and law on each other. Thus, legal theory seeks to co-relate law with other disciplines such as religion, philosophy, ethics; polities etc... and pursue its study in a wider socio-legal perspective. Itis therefore, necessary that while analyzing legal concepts, an effort should also be made to present them in the background of social developments and changing economic and political attitudes. Importanee/ Utility/Values of Jurisprudence: 1, Jurisprudence has a Practical Applicability: There is a general confusion about practical utility of jurisprudence as a subject. It is often alleged that jurisprudence being abstract and theoretical subject, is devoid of any © semved wth Ot Scannerpractical utility. Jurisprudence is a theoretical subject but also has a practical and educational value. It seeks to rationalize the concepts of law which enable us to solve the different problems involving intricacies of law. Jurisprudence has a great Educational Value: The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and formalism and trains them to concentrate on social realities and the functional aspects of law. It is not the form of law but the social function of law which has relevance in modem jurisprudence. Law has to take a note of the needs of the society and also of the advances in the related and relevant disciplines of law such as sociology, economics, philosophy, psychiatry etc. Jurisprudence Removes Complexities of La ‘The ever renewed complexity of human relations calls for an increasing complexity of human relations calls for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible. It constructs concepts and makes law more ‘manageable and rational. In other words, it serves to render the complexities of law more ‘manageable and rationale and in this way this can help to improve practice in the field of law. Jurisprudence Answers the New Problems: It helps the people to look around them and realize that answers to new legal problems must be found by a consideration of the present social needs. Jurisprudence is the Grammar of Law: It is the grammar of law. It is a law what grammar is to language. Jurisprudence might be called abstract law. Its function is to set forth a scientific and orderly view of fundamental principles, ideas, conceptions and methods of law, which have been variously realized in different systems of law. It throws light on the basic ideas and the fundamental principles of law in a given society. Thus jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. This is why it has been characterized as “the eye of law” Jurisprudence Trains the Minds: It trains the mind to solve the difficult legal provisions in legal way. Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the Legislature by providing the rules of interpretation. It also furnishes them opportunity to 7 © semved wth Ot Scannerpinpoint the lacunae, shortcomings and defects in the laws framed by the legislature and improvise them through their judicial interpretation. 6. Jurisprudence is Useful in Art of Pleading and Legislation: It helps the legislatures and the lawyers, the proper use of legal terminology. It relieves them to the botheration creation of defining again and again certain expression Inter- Relationship of Jurisprudence with other Social Science: Jurisprudence is closely inter-related with other social sciences since all of them are concerned with human behavior in society. With the development of social sciences in modern times, the approach to jurisprudence has radically changed and more emphasis came to be placed on the study of factual legal behavior. ‘Jurisprudence and Ethi Ethics as a branch of knowledge deals with human conduct and lays down the ideals of human behavior. It is closely related to morality and public opinion which are dynamic concepts varying from place to place, from time to time and from people to people. What may be a rule of morality at one time may not necessarily remain so all the time and it may even become a bad moral conduct in time to come. Jurisprudence is concemed with positive morality since law is considered as an instrument to regulate human conduct in society. Positive morality does not depend on ideal behavior or good actions but it requires a coercive force for maintaining public conscience. There is a separate branch of jurisprudence called the ethical jurisprudence which seeks to lay down the standards of ideal for human conduct in terms of law for the maintenance of public conscience. ‘Jurisprudence and Psychology: Psychology as a branch of knowledge is concerned with the working of human brain or mental faculty. Since jurisprudence and law are necessarily concerned with human action and it is the human mind which controls human action, the inter-relation between psychology and jurisprudence need not be over-emphasized. The psychology of the offender is also one of the crucial factors in deciding the nature of punishment of the © semved wth Ot Scannerconvicted person. The moder reformative techniques of punishment such as probation, parole, indeterminate sentence, admonition, pardon etc. are essentially deviced for the treatment of offenders according to their psychological traits, That apart, the legal concepts such as negligence, intention, motive, mensrea recklessness, rashness etc., pertain to the faculty of mind and, therefore, they form a part of study of psychological traits ‘Jurisprudence and History: It is difficult to appreciate the present law and legal system without probing into its past historical evolution. Therefore, there is a close inter-connection between history and jurisprudence. History consists of the study of past events in their proper perspective. Thus in order to understand the constitutional jurisprudence of a country it is necessary to look into its past constitutional history. It may therefore, be concluded that the study of different branches of law essentially requires their study in the historical perspective without which its knowledge would remain incomplete. ‘Jurisprudence and Sociology: Sociology also includes the study of a part of law to some extent. For example, criminology is one of the inter-disciplinary studies related to both sociology and law. Again, jurisprudence includes within its compass the sociology of law, that is the practical functioning of law in the society. Further, sociology as well as the study of jurisprudence is concerned with regulation of human conduct in society. Therefore, the two are intimately connected. It must however, be noted in this context that lawyers approach to law is different from that of a sociologist’s attitude towards law. The former looks it from point of view enforceability and obedience by the people while latter concentrates on studying how these rules actually govern the behavior of individual in the society. Jurisprudence and Economies: Economics being a science of money and wealth and jurisprudence a science of aw, both are intimately co-related, Economics deals with production and distribution of wealth for satisfying the wants of the people. It is one of the major factors responsible for the incidence of crimes. There are many laws which seeks to regulate economic activities of mankind. To name only few, the laws relating to banking, companies, negotiable instruments, foreign exchange regulation, consumer protection, ceiling of land and wealth, © semved wth Ot Scannerpayment of wages, bonus, insurance, debts etc. are intended to regulate one or the other economic activity of man in the society. The ultimate aim of economics as well as jurisprudence is to improve the standard of life of the people for the welfare of the community as a whole, Law acts a means to achieve this end Jurisprudence and Politi Jurisprudence is linked at one end with philosophy and at the other end with political theory. Political science deals with the principles governing the governmental organization, State is politically organized society which makes law for good governance of the people. Politicians who are representatives of the people form the Legislature which is the law-making organ of the Government. This amply reflects on the relationship of jurisprudence ie. science of law with politics. SCHOOLS OF JURISPRUDENCE/CLASSIFICA TION OF JURISPRUDENCE Different schools of jurisprudence have come into existence because law-its genesis growth, function and end has been conceived differently by different eminent jurists at different epochs of human civilization. Jurisprudence is studied by different methods, the terminology of which is determined by the particular emphasis desired. A more satisfactory schools or classifications of jurisprudence are as follows:- Natural Law School Analytical School Historical Schoo! Philosophical School Sociological School Realistic School. 1. NATURAL LAW SCHOOL Introduction: ‘The natural law philosophy occupies an important place in the realm of politics, law, religion, and ethics from the earliest times. It has plated the role of harmonizing, synthesizing © sewned wth Xt Scannerand promoting peace and justice in different periods and protected public against injustice, tyranny and misrule. Meaning and Definition of Natural Law: Natural Law known as “Higher Law” or the “Law of Nature” is the oldest as well as the most modern as it has been continually dominating the entire basis of politics, law, religion and social philosophy. It is written by the fingers of nature in the hearts of mankind. The entire history of natural law reveals an attempt by jurists to provide the concept and content of natural law in order to meet the subjective conditions of human existence and to solve the contemporary social problems of their times. Natural law in common sense means the law that is largely unwritten and consists of principles of ‘ought’ as revealed by the nature of man or reason or derived from God It is emanated from some supreme source other than any political authority. Blackstone observed: “The natural law being co-existent with mankind and emanating from God Himself, is superior to all other laws. It is binding over all the globe in all countries and at.all the times and no man-made law will be valid if it is contrary to the law of nature” ‘The natural law philosophy dominated in Greece during 5" B.C. when it was believed that itis something external to man. Socrates, Plato and Aristotle also accepted that postulates of reason have a universal force and men are endowed with reason irrespective of race or nationality. The concept of natural law has been differently interpreted by writers at different times. Some of them contend that natural law consists of ideals which guide legal development and administration while others characterize it as quest for perfect law deducible by reason. The supporters of natural law theory believe that there is a basic element in law which prevents a total separation of “law as it is’ from the “law as it ought to be It would thus be seen that 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 depending on the needs of the developing legal thought. But the greatest attribute 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 is independent of convention, legislation or any other institutional devices. © semved wth Ot ScannerAccording to Dias and Hughes “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 state or its agencies, According to Cohen, natural law is not a body of actual enacted or interpreted law enforced by courts; itis 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. According to Italian jurist Del Vecchio, “natural lav is the criterion which permits us to evaluate positive law and to measure its intrinsic justice”. According to Stoies, it is Divine Law (jus divinum), the command of God imposed upon man, Their philosophy was that man should live according to nature and that since the distinctive feature of man’s nature was his endowment with reason. According to Cicero, natural law is the Law of Reason, by which the world is governed and which is addressed to and perceived by the rational nature of man, According to Aristotle, natural law is the “unwritten law”. (jus no seriptum) According to Hobbes and Locke, natural law was concerned rather with man’s rights, and sought to derive from the characteristics of human nature certain natural or fundamental rights. Natural law theory has tried to meet the paramount needs of successive ages throughout history, and an account has been given of the ways in which it supported power or freedom from power according to the social need of the time. Natural law shows us the need to study law in the context of other disciplines in particular, it makes us aware of the way in which moral goals enter the law and play a part in its administration and adjudication of cases. ‘The Importance of Natural Law: Natural law is the result of the desire of wise and just men to seek ideal justice. Out of natural law have evolved principles of law and legal systems which are common throughout the world from a practical stand point, natural law might seem to offer advantages. First, as an antidote to legal rigidity, it could provide flexibility, allowing rules of law to be changed from what they 2 © semved wth Ot Scannerare to what they ought to be, on the ground that the law always is what it ought to be. Secondly, the natural lawyers” terminology, natural law is claimed, would weaken the authority of unjust and immoral laws. Natural law has influenced the church; natural law has imbibed its principles of positive law, rooting off from positive law what may not be consonant with natural justice; natural law has been and is a very potent source on international law and contributes to its development. In conclusion we may assert that natural law occupies an important and essential part in values. 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 ideal source of law with invariant contents. The chief characteristics features of natural law may be briefly stated as follow: 1. Itis basically a priori method different from empirical method, the former 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 to find out the cause and reasons in relation to the subject-matter. It symbolizes physical law of nature based on moral ideals which has universal applicability at all places and times. . It has been often used either to defend a change or to maintain status quo according to needs and requirement of the time. The concept of ‘rule of law’ in England and India and ‘due processes’ in USA are essentially based on natural law philosophy. Historical Evolution of Natural Law: The content of natural law have varied from time to time according to the purpose for which it has been used and the function it is required to perform to suit the needs of the time and circumstances, Therefore, the evolution and development of natural law theory has been through various stages which may broadly be studied under the following heads: 1. Ancient Period (530-470 B. © semved wth Ot Scanner> Heraclitus (530-470 B.C.) The concept of natural law was developed by Greek philosophers around 4" century B.C. Heraclitus was the first Greek philosopher who pointed at the three main characteristics features of law of nature namely, (i) destiny, (i) order, and (iii) reason. He stated that nature is not a scattered heap of things but there is a definite relation between the things and a definite order and rhythm of events. According to him, ‘reason’ is one of the essential elements of natural law. The instability and frequent changes in the early small city states of Greece made legal philosophers to think that law was meant to serve the interests of those who were in power and the people are incessantly struggling for a better life. Socrates (470-399 B.C.) ‘The name of Socrates occupies a prominent place among the stoic philosophers of the ancient time, He was a great admirer of truth and moral values. He argued that like natural physical law, there is a natural moral law. It is because of the “human insight’ that a man has the capacity to distinguish between good and bad and is able to appreciate the moral values. Thus according to Socrates, ‘virtue is knowledge’ and ‘whatever is not virtuous is sin’. To him, justice may be of two kinds, namely, (i) natural justice, and (ii) legal justice, The rules of natural justice are uniformly applicable to all the places but the notion of legal justice may differ from place to place. Thus natural law is a specie of law which is universal and immutable and uniformly applicable to all the persons at all the places and times, However, Socrates did not deny the authority of the positive law but he pleaded for the necessity of natural law for security and stability of the community, Plato (427-347 B.C, Socrates’ disciple Plato carried further the natural law philosophy through his concept of ideal state which he termed as Republic. He contended that only intelligent and worthy person should be king. He argued that justice lies in ordaining man’s life through reason and wisdom and motivating him to control his passion and desires. In his republic, Plato emphasized the need for perfect division of labour and held, “each man ought to do his work to which he is called upon by his capacities”. In other words, every person should mind his own work and not unnecessarily meddle with other’s work. According to Plato, 4 © semved wth Ot Scanner“the laws of States are a pale shadow of an absolute ‘idea’ of perfect laws against which man-made laws may be measured. Aristotle (384-322 B.C.) Stoic had widened the meaning and scope of natural law which no longer remained a mere knowledge of universal and ultimate laws but extended to man’s insight which enabled him to appreciate the absolute eternal moral rules. Aristotle came out with a more logical imerpretation of the natural law theory. According to him, a man is a part of nature in two ways. Firstly, he is a creation of God, and secondly, he possesses insight and reason which enable him to articulate his actions. He defined natural law as “reason unaffected by desires’. It embodies the basic principles of justice and morality which have universal validity independent of time and place. Medieval Period: ‘The period from 12" century to mid-fourteenth century is generally reckoned as the “medieval age’ in the European history. This period was dominated by the Christian Fathers propagated for establishing the superiority of Church over the State. They used natural law theory to propagate Christianity and to establish a new legal order and political ideology based on morals and theology. The Christian saints especially Ambrose, St. Augustine and Gregory propagated a view that Divine law was superior to all other laws. According to him, all laws are either divine or human. Divine laws are based on nature while human Jaws on custom. It is the divine nature of the natural law which makes it binding overruling all other laws. Saint Thomas Aquinas (1225-1274) ‘Among the theologicians of the medieval period, the name of Thomas Aquinas deserves a special mention. He is considered to be the representative of the natural law theory of his age. In his view, social organization and State are natural phenomenon ‘St-Aquinas pointed out that man can control his own destiny to a considerable extent but he is subject to certain basic impulses such as impulse of self-preservation, reproduction of his species, bringing up children etc, for improving his future and attainment of perfection St. Thomas Aquinas gave a fourfold classification of laws, namely, (i) Law of God or External Law; (ii) Natural Law which is revealed through “reason”; (iii) Divine Law or the Law of Scriptures: (iv) Human Laws which we now called “Positive law”. The natural 15 © semved wth Ot Scanneraw, on the other hand, is only an imprint of the eternal law and therefore, it cannot be absolutely perfect, as it changes with the changing circumstances and needs the society He asserted that natural law is the foundation of human law, that is, the positive law and no positive enactment which is counter to natural law can survive long, Renaissance Period: The period of renaissance in the history of development of natural law may also be called the modern classical era which is marked by rationalism and emergence of new ideas in different fields of knowledge. General awakening among the masses coupled with new discoveries of science during the 14" and 15ht centuries shattered the foundation of established values. The natural law theories propounded by Grotius, Locke, and Rousseau revolutionalised the existing institutions and held that ‘social contract’ was the basis of the society. Hobbes used natural law theory to perpetuate reactionary movement and justify status quo for the preservation of peace and protection of individuals from perpetual conflict and chaos. In short, with the renaissance and the rise of humanism the natural law became open to rational inquiry free from its former religious trappings. Hugo Grotius (1583-1645) Hugo Grotius was a great statesman, philosopher and jurist of his time. He was a Dutch scholar and a staunch supporter of renaissance and reformation, He propounded the theory of functional natural law in his Laws of War and Peace (1625) and formulated the principles of international law which were equally applicable to all States both, during war and peace. He referred these principles relating to law of nations as natural law. He departed from St. Thomas Aquinas’ scholastic concept of natural law and ‘reason’ and held that natural Jaw was not merely based on ‘reason’ but on ‘right reason’, ive., ‘self supporting reason’ of man Grotius firmly believed that man by nature is peace-loving and desires to live according to dictates of reason. He therefore, treated “natural law as immutable which cannot be changed by God himself”. He considered divine law as the grandmother, natural Jaw the parent and positive law as the child, Thus, he placed natural law at a higher footing as compared with the positive law. > ‘Thomas Hobbes (1588-1679) © semved wth Ot ScannerHobbes’ theory of natural law was based on natural right of self-preservation of person and property. He made use of natural law to justify the absolute authority of the ruler by endowing him power to protect his subjects. Thus he completely denounced the religious and metaphysical character of natural law. Thomas Hobbes propounded his theory of social contract relating to evolution of the State. According to Hobbes, prior to ‘Social Contract’, man lived in chaotic condition of constant fear. The life in the state of nature was “solitary. poor, nasty, brutish and short” Therefore, in order to secure self-protection and avoid misery and pain, men voluntarily entered into contract and surrendered their freedom to some mightest authority that could protect their lives and property. Hobbes used natural law theory to support absolute authority of the ruler. In his famous work Levithan which appeared in 1651, he observed that law is dependent upon the sanction of the sovereign. In his opinion, “Government without sword are but words, and of no strength to secure a man at all. John Locke (1632-1704) John Locke had witnessed the Glorious Revolution of 1688 and the wave of individualism in England which greatly influenced the political and legal theories in Britain at that time. He therefore, came out with a new interpretation of the social contract rejecting Hobbes’ earlier concept of state of nature, He stated that the life in state of nature was not as miserable and except that the property was insecure. In order, to ensure proper protection of property, man entered into the ‘social contract’ surrendering only a part of his rights, and not all the rights contemplated by Hobbesian theory. Thus the natural rights of man such as right to life, liberty and property remained with him only the right to maintain order and to enforce the law of nature was surrendered by him, Thus Locke emphasized on the protection of three main rights, namely, right to life, liberty and property which were inalienable and necessary for the well being of the individual It may be stated that Locke's idea of social contract was founded on new secular approach to natural law whereby the power of the government was conceded on trust by the people to the rulers and any infringement of the conduct by the rulers was treated as a breach of the people’s fundamental natural rights which justified revolt against the government. > Jean Jecques Rousseau (1712-1778) © semved wth Ot ScannerThe changed circumstances and political upheavals of the 18" century brought about a radical transformation in the political-legal ideology of the thinkers of that time, Rousseau gave a new interpretation to ‘social contract’ and ‘natural law’ to suit the new situations. He pointed out that ‘social contract’ is not a historical fact as contemplated by Hobbes and Locke, but it is merely a hypothetical conception. Prior to the so called ‘social contract’ the life was happy and there was equality among men. People united to preserve their rights of freedom and equality and for this purpose they surrendered their rights not to a single individual i.e., sovereign, but to the community as a whole which Rousseau termed as ‘general will’, Therefore, State and Law is the product of General Will of the people and not of ‘reason’ as proclaimed by the 17" century legal philosophers. The essence of Rousseau’s theory of General Will was that while the individual parts with his natural rights, in return he gets civil liberties such as freedom of speech, equality, assembly etc. Immanuel Kant (1724-1804) ‘The natural law philosophy and doctrine of social contract was further supported by Kant and Fichte in 18 century. They emphasized that the basis of social contract was ‘reason’ and it was not a historic fact. Kant drew a distinction between natural rights and the acquired rights and recognised only the former which were necessary for the freedom of individual. He favoured separation of powers and pointed out that function of the State should be to protect the law. Kant’s philosophy destroyed the foundation of natural law theories towards the end of 18" century which suffered a death blow at the hands of Bentham in the early 19" century because of his theory of hedonistic individualism. Kant propounded his famous theory of Categorical Imperative in his classic work entitled Critique of Pure Reason. Decline of Natural Law Theory due to 19" Century Positivism ‘The natural law theory suffered a setback in the wake of 19" century developments and. pragmatic approach to law by the positivists. The industrial revolution and scientific discoveries hhad created an environment which was not conducive to natural law philosophy. The doctrine of laissez faire which favoured minimum interference of the State in the economic and political activities of individuals was weakening the power and authority of the sovereign which could be 18 © semved wth Ot Scannerrestored only by a stable deterministic legal theory instead of fluid and reflex theories of natural law. Bentham called it a “simple non-sense” since absolute equality and absolute liberty were repugnant to the existence of the State. The doctrines propagated by Austin and Bentham completely divorced morality from law. The historical researches concluded that social contract was a myth, All these developments shattered the very foundation of the natural law theory in 19" century. Critical Appraisal of Natural Law Theory A brief survey of the natural law theories would reveal that the concept has been used to support different ideologies from time to time. It has been used to support absolutism, individualism and has even been used by revolutionists to overthrow the government, The contribution of natural law philosophy to the development of law and legal system is by no means Jess important. The natural law principles of justice, morality and conscience have been embodied in various legal systems. Natural law being regulated by law of nature is inevitable and obligatory whereas man-made positive laws are arbitrary and contingent. Natural law is not variable since it emanates from ‘human reasoning’, which is known for its uniformity and general acceptance ‘Natural law also helped in denouncing the divine authority of the Church. It generated a favourable climate for reformation, renaissance and provided a sound foundation for fundamental human rights. Despite the merits of natural law philosophy, it has been criticized for its weaknesses on the following grounds: 1. The moral proposition, ie, ‘ought to be” may not always necessarily conform to the needs of the society. For instances, it is natural form men to beget children, as it is for trees to bear fruit. But the factual position may be different since many countries including India, may like to restrict the growth of their population by resorting to family planning devices. While, on the other hand, no one would ever like to restrict the growth of fruits on trees. Therefore, giving birth to children may be a natural phenomenon but it may not always be considered as obligatory moral duty of men to conform to this conduct, The concept of morality is a varying content changing from place to place; therefore, it would be futile to think of universal applicability of law. For example, one society may 19 © semved wth Ot Scanneradhere to monogamy while another may permit plurality of, marriages. Again, adultery is an offence in India whereas in Britain, it is merely a civil wrong. The rules of morality embodied in natural law are not amenable to changes but the legal rules do need a change with the changing needs of the society. Legal disputes may be settled by law courts but the disputes relating to morality and law of nature cannot be subjected to judicial scrutiny, and even if they are challenged in a court of law, the correctness of the verdict may always be questioned since it is based on subjective discretion of the judge. ‘Though apparently law and morality may appear to be in conflict with each other, the fact, remains that in order to decide whether a particular law is “just” or ‘unjust’, it has to be tested on the basis of the principles of morality. Despite the above shortcomings, it cannot be denied that natural law has played a crucial role in shaping the law. Its significance lies in the fact that an unjust law may not last long and it is bound to lose public support and in absence of obedience by the people, it is bound to wither away sooner or later. 2. ANALYTICAL SCHOOL Analytical school of was established in the beginning of 19" century. The major premise of analytical schoo! of jurisprudence is to deal with law as it exists in the present form. It seeks to analyse the first principles of law as they actually exist in a given legal system. Jermy Bentham is the founder of Analytical school of law. h, for the first time, utilized the analytical method to study law in place of abstract method of natural law school. it was Austin who excluded absolutely from his analysis the abstract thinking and he is known as the father of Analytical school of law. ‘The exponents of analytical school of jurisprudence consider that the most important aspect of law its relation to the State, They treat law as a command emanating from the sovereign, namely, the State. This school is neither concerned with the past of the law nor with the future of it, but they confine themselves to the study of law as it actually exists. It is for this reason that this school is also termed as the Positive School of Jurisprudence. Bentham and Austin are considered to be the fore runners of this school in England; hence, it is also sometimes known 20 © semved wth Ot Scanneras the Austinian School of Jurisprudence. The other exponents of analytical school are Holland, Sir John Salmond, Sheldon, Amos, Markby etc. The school received encouragement in United States from distinguished jurists like Gray, Hohfeld and Kocourck and in the European continent from Kelson, and others. ‘Salmond terms the analytical jurisprudence as ‘systematic jurisprudence’ and C.K. Allen as ‘imperative jurisprudence. The purpose of analytical jurisprudence is to analyse, without reference either to their historical origin or development, or to their ethical significance or validity, the first principle of law. It begins with concrete facts of the law. It deals with the systematic exposition of the legal systems. It places emphasis on legislation as a source of law. It regards law as a closed system of pure fact from which all norms and values are rigidly excluded. It views law as a command. Background of Analytical School of Jurisprudence: Factors which led to the development of analytical positivism are as follows: 1. Reaction against Natural Law School: Analytical school or positivist notion was established as a reaction against natural law thinking which was very prominent upto 18" century. Analytical school rejected the idea of reason, morality or human will and attempted to study law systematically by analyzing the legal concept. 2. Impact of Progress in Physical Sciences: Scientific method became very common for studying all social sciences. Law was not an exception to this general wave and analytical school was established to study law in a scientific way. This school studied law by a posteriori method which tried to analyse the actual law in a scientific manner. 3. Political Factors: Analytical school was established to justify the power of the ruling monarch against that of other agencies e.g. Pope, feudal lords etc, The rise of analytical positivism coincided with the displacement of the ecclesiastical order by modern nation states. Basic Approach of Analytical Positivism: 1. Lawis the product of a State. Analytical jurists regard law as something made consciously by law makers, whether legislative or judicial an © semved wth Ot ScannerConcentration on positive law. i.e. Law as it is. They preter to be concerned only with ‘the pure fact of law Logic is main instrument for studying law. Ethical aspects do not come under the provision of law and jurists are not concerned with ethics; and Statutes are the main source of law ie. statues are the main origin from which rules of human conduct come into existence. JERMY BENTHAM (1748-1832) Jermy Bentham heralded 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. Bentham was the son of s 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. Jermy Bentham’s Views on ‘Law’ and ‘Legal Positivism’: English law as itexisted at the end of the 18" century, when Bentham was still in his youth, had developed almost in a haphazard way as a result of customs or modes of thought which prevailed at different period. The laws which were then in existence were not enacted with any definite guiding principles behind them, The law of England, like that of most countries of contemporary Europe, had grown out of occasion and emergency. it is for this reason that it is often said that in England law had in fact grown, rather than been made. Jermy Bentham defined law “as an assemblage of signs declarative of a violation conceived or adopted by the Sovereign in a State, conceming 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; such violation trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those conduct is in question’ Bentham was a tireless campaigner of reform and instead that prior to reform there has to be a thoroughgoing classification of law as itis. He was a champion of codified law and of English © semved wth Ot Scannerlaw reform which in his view was in chaos in those days, He advocated that there should be no reform in substantive law without reforming its structure through a process of analysis. Bentham’s Utilitarianism: Bentham as an individualist believed 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, the right aim 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’ Around 1830, Benthamite utilitarianism had become the most popular creed of English legislative reforms. The good or evil of an action should be measured by the quality of pain and pleasure resulting from it. The task of government according to Bentham, was to promote happiness of society by furthering enjoyment of pleasure and affording security against pain. He was convinced that if individuals comprising society were happy and contented, the whole body politic would enjoy happiness and prosperity. Bentham believed that happiness of the social order is to be understood in the objective sense and it broadly includes satisfaction of certain needs, such as need to be fed, clothed, housed, etc, According to him, happiness changes its significance in the same way as the meaning of happiness also undergoes change with the changes in societal norms. As stated earlier, Bentham desired to ensure happiness of the community by attaining four major goals, namely, (1) Subsistence, (2) Abundance, (3) Equality, and (4) Security for the Citizens. Therefore the function of law must be to meet these ends ie. to provide subsistence, to produced abundance, to favor equality and to maintain security. Of these four ends of legal regulation, security was of foremost importance to him as it was related to protection of honour, property and status of a person. © semved wth Ot ScannerJohn Stuart Mill agreed with Bentham’s view regarding utilitarianism which is also called the doctrine of hedonism or theory of pain and pleasure. He advocated that doctrine of utility in terms of pain and pleasure was altruistic rather than egoistic since the ideal was “the happiness of all concerned” Bentham’s contribution to legal theory and legislation is so great that his period is known as the Bentham Era’ in the legal history in England. He introduced legal positivism and treated legal theory as a science of investigation which should be approached through scientific method of experimenting and reasoning. Criticism Against Bentham: Bentham’s theory of Utilitarianism has been criticism on many counts: 1. Theory of utilitarianism is that pleasure and pain alone cannot be the final test of the adequacy of law. Bentham’s theory suggests that interests of an unlimited number of individuals shall be conducive to the interest of the community. This, in other words, means that freedom of enterprise will automatically lead to greater equality. But when put to actual practice, itis just the reverse of it resulting into inequality. Bentham advocated that law should be made exclusively by legislation which was supposed to remove inroad to individual's freedom and provide him opportunities for development of the self. But in later times it was found that legislation was used to restrict individual's freedom in economic matters. John Austin was born in 1790 in England, He joined army and served as an army officer for the five years until 1812, He was called to the Bar in 1818 after his graduation, He devoted his attention to equity, draftsmanship and legal practice. He joined as professor of law in the newly founded Benthamite University College in London. He was elevated to the chair of jurisprudence in the University of London in 1862. In 1883, he was appointed as a member of the first Criminal Law Commission but soon resigned. He also resigned Professorship in 1835 in despair due to insufficient fees. In 1836, Austin was appointed as one of the commissioners to require into the 24 © semved wth Ot Scannergovernment and administration of Malta and, thereafter, remained abroad till 1848. He died in 1859 and his works were later published by his wife Sarah Austin in 1861 Austin’s Analytical Positivism Austin is considered to be the “father of English Jurisprudence’, He confined his study only to the positive law and applied analytical method for this purpose. By Positive Law, Austin meant Laws Properly So Called” as distinguished from morals and other laws which he described as Laws Improperly So Called’ which lack force or sanction of the State. Austin described positive law as ‘the aggregate of rules set by man as politically superior to men as politically inferior subjects. He attributes (1) Command, (2) Sanction, (3) Duty, and (4) Sovereignty as the four essential attributes of positive law. It was Austin who for the first time treated jurisprudence as a science of law concerned with analysis of legal concepts- their exposition, examination and comparison in a scientific manner in order to determine their scope and extent in a given politically organised society. the major thrust in Austinian positive law was therefore, on separation of law from morals, “Law as a Command of Sovereign Imperative Law” Austin’s positive law has three characteristic features: (1) It is a type of Command (2) itis laid down by a Political Sovereign and, (3) Enforceable by a Sanction. A typical example is “the Road Traffic Law, which could be described as a command laid down by the sovereign under the Indian legal system i.e. the parliament, and enforceable by penalties for violation. > Commands: Requests and wishes are expressions of desire, while commands are expressions of desire given by superiors to inferiors. Officers command their subordinates but not otherwise. The relationship of superior to inferior consists in the power, his ability to punish for disobedience. The power and purpose to inflict penalty for disobedience are the very essence of a command. The person liable to the penalty is under a duty to obey it. The penalties for disobedience are the essence of a command, Command Duty and Sanction are inseparably connected. So every law is a command, imposing a duty, enforve3d by a sanction, However all the commands are not law, it is only general © semved wth Ot Scannercommand, which obliges to a course of conduct, is law. Austin however, accepted that there are three kinds of laws which are not commands. They are- Declaratory or Explanatory Laws:- These are not commands because they are already in existence and are passed only to explain the law which is already in force. Laws of Repeal:- Austin does not treat such laws as commands because they are in fact the revocation of a command. Laws of Imperfect Obligation:- They are not treated as command because there is no sanction attached to them. Austin holds that command to become law, must be accompanied by duty and sanction for its enforcement. Sovereigns: To Austin a sovereign is any person or body of persons, whom the bulk of a political society habitually obeys, and who does not himself habitually obey some other person or persons. Definition of sovereignty is to stress the fact that law is only law if it is effective and this it can only be by being generally obeyed. Sanction: A sovereign without the means of enforcing obedience to his commands would have little hope of continuing to rule. Law stands in need of sanctions. Law to the positivist is something for the citizen to obey, not as he pleases but whether he likes it or not, and this it cannot be without some method of coercion. Sanctions then are a logical part of the concept of law; they consist of the penalties inflicted on the orders of the sovereign for the violation of the law-in other words of institutionalized punishments, Summary of Austin Theory: To sum up, Austin’s approach emphasizes the following: 1. A legal system is to be takes as it is (positive law) and it is to be resolved into its fundamental conception: Analysis of any legal system is to be done on the basis of logic not on the basis of ethical or historical element; Laws are the product of a state and all laws are thus, the commands of a sovereign; Positive law and ideal law must be kept distinct. Law cannot be defined by reference to any ideal or justice. The science of jurisprudence is concerned with the positive laws without regard to their goodness or badness; International law, according to Austin is not a true law as there is no sanction behind by the sovereign, and © semved wth Ot Scanner6. There are some common principles of law available in mature legal systems of the world. Those principles are to be taken into consideration for analyzing law Criticism against Austin’s Imperative Theory of Law: Austinian theory of law and analytical positivism has been criticized by jurist like Bryce, Olivercona and others. Bryce characteristics Austin’s work as full of errors which hardly has any significance in juristic thought. Austin’s theory has been criticized on the following grounds: Austin’s view that ‘law is the command of sovereign is not supported by historical evolution of law when customs played a significant role in regulating human conduct. Further, customs still continue to be a potent source of law even after the coming into existence of the State Austin’s theory does not take notice of laws which are of a permissive character and confer privileges. Judge- made law has no place in Austinian conception of law although the creative function of judiciary as a law-making agency has been accepted in modern times all over the world. Austin does not treat international law as ‘law’ because it lacks sanction. Instead, he regards international law as mere positive morality. This view of Austin if hardly tenable in the present time in view of the increasing role of international law in achieving world . The Swedish jurist Olivercona has denounced Austin’s theory of law because of its over- emphasis on ‘command’ as an inevitable constituent of law. In modem progressive democracies law is nothing but an expression of the general will of the people. Therefore, command aspect of law has lost its significance in the present democratic set-up where people’s welfare is the ultimate goal of the state Perhaps the greatest shortcoming of the Austin’s theory is that it completely ignores the relationship between law and morality. Law can never be completely divorced from ethics or morality which provide strength to it. The legal concepts such as ‘right’, ‘wrong’, ‘duty’, ‘obligation’ etc. themselves suggest that there is some ethical or moral element present in them, Austin’s view that itis sanetion alone which induces a person to obey law There are many other considerations such as fear, deterrence, sympathy, reason etc. which 7 © semved wth Ot Scannermay induce a person to obey law. The power of the state is only the last force to secure obedience of law. While bringing out distinction between positive law and positive morality. Austin opined that the former was set by a political superior called the sovereign. But it was criticized that the sovereign could well be bound by a duty towards his subjects. sR JOHN SALMOND (1862-1924) Sir john Salmond was bor in England on 3"! December, 1862. He was a legal scholar and a public servant as also judge in New Zealand, Salmond graduated from the University of Otatio in 1882 with Bachelor’s degree and a Master's degree. He migrated from New Zealand in 1876 He came to study law in University of London and returned to New Zealand. In 1882 he joined as Professor of Law in South Australia, He, however, returned to New Zealand in 1906 to occupy the founding Chair of Professor of Law in Victoria University College in 1907. Salmond was appointed as Judge of the Supreme Court of New Zealand in 1920 and worked in that capacity until his death on 19" September 1924. Salmond authored three books which are considered as his classic works and unique contribution to the field of law and jurisprudence. These are (1) Jurisprudence & Legal Theory, (2) Law of Torts, and (3) Principles of Law of Contract. Salmond defined jurisprudence with reference to a particular positive legal system. According to him, jurisprudence is the science of the first principles of civil law. The term ‘civil law" denotes the law of a State as administrated by Courts and includes statutes, customs and judicial precedents. He agreed with both Austin and Holland that jurisprudence is a science which involves systematic study of essential principles of national legal system. He differs from Austin in delinking law from political sovereign and correlating it with Courts of Law. Salmond was against attributing jurisprudence generality or universality and held that the “juriprudentia generalis” is not the study of legal systems in general, but the study of general principles of a particular legal system, HLL.A. HART (1907-1992) Herbert Lionel Adolphus Hart was born in 1907. He practiced at the Chancery Bar and, thereafter, worked as a Professor of Jurisprudence in Oxford during 1952-68. Then he joined as © semved wth Ot ScannerPrincipal of Bransnose College, Oxford. He rejected Austin’s theory of analytical positivism and expounded his legal theory based on the relationship between law and society Hart’s Conception of Law According to Hart, law is a system of two types of rules the union of which provides key to the science of jurisprudence. These rules, he called as ‘primary’ and “secondary” rules. Rejecting ‘Austin’s view that law is a command. H.L.A. Hart emphasized that primary rules are duty- imposing while secondary rules confer power and the union of the two is the essence of law. The primary rules which impose duty upon individuals are binding because of the popular acceptance such as rules of kinship, family, sentiments etc, These being unofficial rules, they suffer three major defects, namely, (1) uncertainty, (2) Static Character, and (3) Inefficiency. Besides, there is no agency for deciding about these rules. The secondary rules which are power conferring enable the legislators to modify their policies according to the needs of the society. In fact they seek to remedy the defects of the primary rules. HLL.A. Hart's Rule of Recognition The concept of law according to hart is a system of rules and the rules are the sole basis of a legal system. According to hart legal system is nothing but a combination of primary and secondary rules. Prof. Hart's positivism explains the existence of law with reference to the rules of recognition binding force of which depends upon its acceptance. The validity of law is based on the basis of rule of recognition which is similar to Austin’s conception of sovereign. According to him, rule of recognition is the sole rule in legal system whose binding force depends upon its acceptance. For example, whatever is enacted by Parliament is rule of recognition. Again, the various constitutional laws which constitute rule of recognition are rules of positive law which are binding on citizens, officials, legislatures, Courts and various other governmental agencies. Rule of recognition is kind of secondary rules which validates a legal system and which is central, foundational and essential to every legal system. Hart describes rule of recognition as a foundation of a legal system. Hart describes rule of recognition as a foundation of a legal system. Legal system has faced the difficulty due to the uncertainty of the primary rules, so Hart has made 29 © semved wth Ot Scannera solution to this problem by providing a new secondary rule which has a binding effect named as “Rule of Recognition”. The rule of recognition removes the uncertainty of primary rules. Rule of Recognition is a rule which points out how to recognize a particular rule as a legal rule. Thus, it could be seen that H.L.A. conception of positivism centered round the following considerations:~ (1) He accepted law as a command as advocated by Bentham and his disciple Austin; (2) He believed that analysis of legal conception is worth pursuing as distinguished from mere sociological and historical inquiries. (3) The judicial decisions were to be deduced from pre-determined rules without resource to social aims, objectives, policy or morality. (4) Moral judgments cannot be defended by rational argument, evidence or proof and (5) The law as itis actually laid down has to be kept separate from law as it ought to be. Functions of Rule of Recognition: 1. To establish a test for valid law in an applicable legal system. 2. To confer validity to everything else in applicable legal system. 3. To unify all the laws in the applicable legal system, According to Hart, Rule of Recognition is the foundation of a legal system and it is accepted by both private persons and authoritative criteria for identifying the primary rules of obligation. In modern legal system where there are too many sources of law the rule of recognition because complex, so it includes constitutional enactments and precedents. He accepted that morality is a necessary condition of society and the law has a function to ensure that morality of society does not disintegrate. But he further added that “law's function is only the last line of defence; other attempts to preserve the accepted morality should come from within the society itself e.g., through education, the mass media, HANS KELSON (1881-1973) Hans Kelson was another jurist from Austria, who has the credit of reviving the original analytical legal thought in the 20" century through his “Pure Theory of law’. He was born in 1881 in Prague in Austria and was a Professor of Law at Vienna University. He was also the Judge of 30 © semved wth Ot Scannerthe Supreme Constitutional Court of Austria for ten years during 1920-1930. Theory of Law which is considered to be Kelson’s unique contribution to legal theory Kelson’s Theory of Pure Science of Law: Kelson did not favor widening the scope of jurisprudence by co-relating it with all social sciences and rigorously insisted on separation of law from politics, sociology and all other extra- legal disciplines. Like Austin Kelson divested moral, ideal or ethical elements from law and wished to create a ‘pure’ science of law devoid of all moral and sociological considerations. But he rejected Austin’s definition of law as a command because it introduces subjective considerations whereas he wanted legal theory to be objective. Thus Kelson’s pure theory of law is a theory of positive law based on normative order eliminating all extra legal and non-legal elements from it. He believed that a theory of law should be uniform, Kelson’s theory of pure science of law which is also known as Theory of Interpretation was a reaction against vicious ideology which was corrupting the legal theory and the jurisprudence of a totalitarian state. He nomenclatured his theory as “Pure Science of Law” because science to be called rational, must stand in a two-fold relation to its object. Kelson claimed that his pure theory was applicable to all places and at all times. It must be free from ethics, politics, sociology, history, ete. though he did not deny the values of these branches of knowledge. He only wanted that law should be clear of them, Law as Normative Science: Kelson described law as a ‘normative science’ as distinguished from natural sciences which are based on cause and effect such as law of gravitation, The laws of natural science are capable of being accurately described, determined and discovered in the form of “is’ which is an essential characteristic of all natural sciences. But the science of law is knowledge of what law ought to be. Like Austin, Kelson also considers sanction as an essential element of law but he prefers to call it ‘norm’, Thus according to Kelson, ‘law is a primary norm which stipulates to call it ‘norm’. It is called positive law because it is considered only with actual and not with ideal law. According to Kelson norm (sanction) is a rule forbidding or prescribing a certain behavior. For © semved wth Ot Scannerhim, legal order is the hierarchy of norms having sanction and jurisprudence is the study of these norms which comprise legal order. ‘The ‘Grundnorm”: Norms are regulations setting forth how persons are to behave and positive law is thus a normative order regulating human conduct in a specifie way. Kelson’s pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm which he termed as *“GRUNDNORM’. Grundnorm is a basic norm/ fundamental norm which determine the content and gives validity to other norms derived from it. Thus all the norms derive their validity from the basic norm. The validity of basic norm cannot be objectively tested, instead it has got to be presumed or pre-supposed. Kelson recognised that the Grundnorm need not be same in every legal order, but it must be necessarily there. It may be in the form of written constitution or the will of the dictator. Kelson considers Grundnorm as a fiction rather than a hypothesis. 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 is otherwise called Grundnorm is however, independent of any other norm being at the apex. The process of one norm deriving its power from the norm immediately superior to it, until itreaches the Grundnorm has been termed by Kelson as ‘concentration’ of the legal system. In his view the basic norm is the result of social, economic, political and other conditions and it is 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. Kelson characterized law as a technique of social organization. It is not an end but is s specified means, as an apparatus of compulsion to which there adheres no political or ethical values. According to him, “law is not an eternal sacred order, but a compromise of battling social forces” and, therefore, “the concept of law has no moral connotations whatsoever.” As a necessary consequence of the extra- jural origin of the Grundnorm, it loses its applicability when a new Government comes into power overthrowing the existing Government by revolution © semved wth Ot Scannerjent Features of Kelson’s Theory of Pure Science of Law ‘The pure of law as propounded by Kelson is founded on certain basic assumptions which may be summarised as follows: 1. The theory is aimed at reducing chaos and confusion created by the supporters of natural law philosophy. . Pure theory of law deals with the knowledge of what law is, and it is not concerned about what law ought to be. . The theory considers law as a normative science and not a natural science. |. Kelson pure theory of law is a theory of norms not so much concerned with the effectiveness of the legal norm. . It is formal theory confined to a particular system of positive law as actually in operation, ism of Kelson’s Theory Kelson theory of law suffers from certain glaring defects. It excludes all reference of social facts and felt needs of the society, thus his pure theory of law is without any sociological foundation, Kelson’s assertion that all the norms excepting the basic norm are pure, has no logical basis. ‘The theory is found to be based on hypothetical considerations without any practicability It is not possible to divest law from the influence of political ideology and social needs. He does not consider justice and morality as essential attributes of law. Kelson theory provides no solution for the conflict arising out of ideological differences, His theory rejects the element of justice as a mere emotion which is indeed not true. Kelson’s account of legal dynamics is inadequate. It ignores the purpose of law. Kelson pure theory of law also suffers from methodological short-comings. He ignores the fact that the action of the authority enforcing law to be valid, has to be in accordance with the procedure. © sewned wth Xt ScannerDespite of these shortcomings, Kelson’s contribution to legal theory cannot be ignored. His main contribution lies in that, he attempted to break away with the traditional natural law theory ‘on the one hand and legal positivism on the other hand. 3. HISTORICAL SCHOOL OF JURISPRUDENCE Historical School is a branch of Law, which studies law from the past history. It says that Jaw is based on the General Consciousness of people, The consciousness started from the very beginning of the society. There was no person like sovereign for the creation of law. The law in the ancient times was based mainly upon simple rules, regulation, custom, usages conventions etc, These things were later on developed by the jurists and lawyers, These things were later on converted into set form of law. The Historicists believe that the law originates with society. The exponents of the Historical School of Jurisprudence take social institutions in their sequence with primary to primitive legal institution of the society. Thus this school does not attach importance to relation of law to the State. But given primacy to the social institution in which the law develops itself. The task of Historical School of Jurisprudence is to deal with the general principles governing the origin and development of law and with the influence that affect the law. Historical jurists banished ethical consideration from jurisprudence and rejected all creative participation of Judge and the Jurist or the Law- Giver in the making of Law. They propounded the view that all universal ideal principles to which positive law must conform were not principles of morals but principles of customary actions. They could be traced not by reasoning but by historical study. It would, therefore, be seen that the historical school of jurisprudence ‘emerged as a reaction to legal theories propounded by analytical positivists and the natural law philosophers. The credit of laying down foundation of Historical School of Jurisprudence in france goes to Montesquieu through his classic work ‘spirit of law’ published in 1748, He held that law should be adopted to suit the people for whom they are framed keeping in view the degree of liberty. Further the historical school of jurists was founded by Friedrich Karl von Savigny (1779-1861), Its central idea was that a nation's customary law is its truly living law and that the task of jurisprudence is to uncover this law and describe in historical studies its social provenience, Causes of Coming of the Historical School of Jurisprudence: © semved wth Ot ScannerThe Historical school is just opposite to the Analytical school in 18th and 19th century, the concept of individualism came into existence. Due to this concept the revolutions came like French revolution, Russian revolution etc, At that time Savigny, montasque, Barke, Hugo were the writers who said that law is the general will of the people or law is based upon common people and the feelings of the common people, Law develops like the language and manners of the society. So Jaw has a natural character. Law has no universal application. It differs from society to society and state to state. In the same way the languages differ from society to society and locality to locality. Montasque has said, “Law is the creation of climate, local situations and accidents.” According to Hugo hag, “Law develops like language and the manners of the society and it develops according to suitable circumstances of the Society. The necessary thing is the acceptance and observance by society. According to Burke, “Law is the product of the General process. In this sense it is dynamic organ which changes and develops according to the suitable circumstances of society. ‘The Basic Tenets of Historical School can be summarized as: 1. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding alegal dispute. Itviews law asa legacy of the past and product of customs, traditions and beliefs prevalent in different ‘communities, It views law as a biological growth, an evolutionary phenomena and not an arbitrary, fanciful and aificial creation. [Law isnotan abstract set of rules imposed on society but has deep roots in socal and economic factors and the attitude ofits past and present members of the society The essence of law is the acceptance, regulation and observance by the members of the society. Law derives its legitimacy and authority from standards that have withstood the test of time. The law is grounded ina form of popular consciousness called the Volkgeis. Law develops with society and dies with society Custom is the most important source of law. SAVIGNY (1779-1861) ‘Savigny is considered as the main expounder or supporter of the historical school. He traced the development of law as a evolutionary process much before Darwin gave his theory of 35, © semved wth Ot Scannerevolution in the field of biological sciences in 1861. Friedrich Karl von Savigny was bom at Frankfurt (Germany) in 1779. He was educated at the universities of Marburg and Gottingen and was a Professor of Civil Law in the University of Landshut. He was then appointed as a Professor at the newly formed University of Berlin in 1810. Savigny firmly believed that all laws grows the growth and strengthen with the strength of people and dies away as the nation loses it nationality. > VOLKSGEIST AS A SOURCE OF LAW According to Savigny, the nature of any particular system of law was the reflection of the spirit of the people who evolved it”. This was later characterized as the Volksgeist by Puchta, Savigny’s most devoted disciple. Hence, ina simple tem, Volksgeist means the general or common ‘consciousness or the popular spirit of the people. Savigny believed that law is the product of the general ‘consciousness ofthe people and a manifestation of ther spirit. The basis of origin of law is to be found in Volksgeist which means people’s consciousness or will and consists of taditions, habits, practice and beliefs ofthe people, ‘The concept of Volksgeist in German legal science states that law can only be understood as a ‘manifestation ofthe spirit and consciousness of the German people. As already discussed, his theory served as aa waming against hasty legislation and introduction of revolutionary abstract ideas on the legal system unless they mustered support of the popular will, Volksgeist. Savigny’s central idea was that law is an expression of will of the people. It doesn’t come from deliberate legislation but arises asa gradual ‘development of common consciousness of the nation. The essence of Savigny’s Volksgeist was that a nations legal system is greatly influenced by the historical culture and traditions ofthe people and growth ‘flaw istobe located in their popular acceptance. Since law should always confirm tothe popular consciousness ic. Volksgeist, custom not only precedes legislation but s also superior toit, To him, legal system According to this theory, law is based upon the general will or free will of common people. He says that law grows with the growth of nations increases with it and dies with the dissolution of the nations. In this way law is national character or consciousness of people. In other words, according to this theory law is based will or free will of common people. He says that law grows with the growth of nation, A law which is suitable to one society may not be suitable to other society. In this way law has no universal application because it based upon the local conditions local situations, local circumstances, local customs, elements etc, Al these things effect law and make it suitable to the society. 36 © semved wth Ot ScannerTo followers of Savigny the identification of law with custom and tradition and the Volksgeist, or genius peculiar to a nation or folk, generally meant a rejection of rationalism and natural law; a rejection of the notion of law as the command of the state or sovereign, and therefore a disparagement of legislation and codification; and a denial of the possibility of universally valid rights and duties and of the individual. The basic premise of the German Historical School was that law is not to be regarded as an arbitrary grouping of regulations laid down by some authority. Rather, those regulations are to be seen as the expression of the convictions of the people, in the same manner as language, customs and practices are expressions of the people. The law is grounded in a form of popular consciousness called the Volksgeist. Laws can stem from regulations by the authorities, but more commonly they evolve in an organic manner over time without interference from the authorities, The ever-changing practical needs of the people play a very important role in this continual organic development. The main features of the Savigny’s theory are: Law has a national character. Law is based upon the national conditions, situations, circumstances, custom etc. Law is pre historic: means law is found and is not made, the jurists and the lawyers make it into set form. Law develops like language and manner of the society. In ancient society law was not in a natural stage or no in a set form. Later on with the development of the society the requirements and the necessities of the society increased. Due to this it was necessary to ‘mould law in a set form, Criticism of Savigny’s Theory: Savigny’s theory has been criticised on the following grounds:- 1, Inconsisteney in the Theory :- Saveging asserted that the origin of law is in the popular consciousness, and on the other hand, argued that some of the principles of Roman law were of universal application. Thus, itis a clear cut inconsistency in his ideas. Volksgeist” not the Exclusive Sources of law :- There are many technical rules which never existed in nor has any connection with popular consciousness. © semved wth Ot ScannerCustoms not Always Based on Popular Consciousness:- Many customs are adopted due to imitation and not on the ground of their righteousness. Sometimes customs completely opposed to each other exist in different parts of the same country which cannot be said to be reflecting the spirit of the whole community. Savigny Tgnored Other Factors That Influence Law:~ The law relating to trade unions is an outcome of a Jong and violent struggle between conflicting interests within a society. ‘Many Things Unexplained :- Legal developments in various countries show some uniformity to which he paid no heed, i.e. What is national and what is universal Juristic Pessimism:- Savigny encouraged juristic pessimism. Legislation must accord with popular consciousness. Such a view will not find favor in modem times. No legal system would like to make compromise with abuses. People are accustomed to it Conclusion: From the facts mentioned above we have gone behind to see the history of the society to check that what was the position of law in the ancient time. How and in what form law was prevailing in the society? To find the solution of the questions the supporter of Historical school found that law is the general consciousness of the common people or itis the free will of common people on which law developed and converted into a set of form of law. Differences between Analytical and torical School: Historical school in its ideal condition would require an accurate record of the history of all legal systems as its material whereas analytical school requires only the existing legal systems. Its aim is to show how a given rule came to be what it is whereas analytical school answers ,why it is what it is? It uses evolutionary history and hundreds of legal systems as its subject-matter whereas analytical school examines the available subject-matter, its structure, and rules in order to reach its principles and theories by analysis. [R HENRY MAINE (1822-1888) INTRODUCTION © semved wth Ot ScannerTn continuation of our study of the historical school of jurisprudence, we will focus on the works of Henry Maine. Maine’s contribution to historical jurisprudence is so great that he is labeled as ‘Social Darwinist’ for he envisaged a social order wherein the individuals are finally liberated from the feudalistic primitive bondage. Sir Henry Maine took his education in the University of Cambridge and joined as Professor of Civil Law in that University in 1847. He worked in the capacity until 1854. He was the Law member of the Central Legislative Council in India during 1863- 1869 as a successor of Lord Macaulay. He studied ancient law of India and draw a comparison between Indian law and comparative jurisprudence in Oxford from 1869-1877. ‘Thereafter, he held the distinguished post of the Master Trinity Hall, Cambridge, until shortly before his death in 1888. Maine’s View on Development of Law: Sir Henry Maine, through his comparative researches came to a conclusion that the development of law and other social institutions has been more or less on an identical pattern in almost all the ancient societies belonging to Hindus, Romans, Hebrew and German communities. Most of these communities are founded on patriarchal pattern wherein the eldest male parent called the pater familias dominated the entire family including all its male and female members, children and slaves as also the property. The word of the pater familias was law to them, which they were supposed to follow. There were, however, some communities which followed matriarchal pattern in which the eldest female of the family was the central authority to manage all the affairs of the family. It is because of his kinship, namely blood relationship with the family that a person acquired a status. Thus the law of person was to be determined on the basis of his status, Thus the law of person was to be determined on the basis of his status. In ancient societies, the slave, servant, ward, wife, citizen etc, all symbolized statuses which the law recognised in the interest of the community. ‘Maine’s deep knowledge of early society resulted in his emphasis on man’s deep instincts, ‘emotions and habits in historical development, According to him, law can be understood as a late stage in a slow-evolving pattern of growth. He believes there are three stages in legal development in early societies ~ law as the personal commands and judgments of patriarchal rulers; law as custom upheld by judgments; and law as code. In the first stage, absolute rulers dominated. It was 39 © semved wth Ot Scannerthe age of the divine rights of kings, where the king could do no wrong. System of ruler ship was absolutist and draconian, There were no principles governing governance; only the whim and caprice of the king reigned. Recall Austin’s commander, who was above the law, and whose ‘commands must be obeyed by inferiors. The second stage is heralded by the decline of the power and might of patriarchal rulers. In their place, the oligarchies of political and military rulers emerged. ‘Movement of Progressive Societies from Status to Contract: Maine is also known to have commented on ‘status’ and ‘contract.’ He said that “the movement of progressive societies has hitherto been a movement from status to contract.” In explaining this statement, Maine said that in early times an individual’ position in his social group remained fixed; it was imposed, conferred or acquired. He just stepped into it, He accepted such fate as he found it. He could do nothing about it. Later on, however, there came a time when it was possible for an individual to determine his own destiny through the instrumentality of contract. No longer was anything imposed on him from external forces; he was now in charge: from slavery and serfdom, from status determined at birth, from master servant relationship to employer- employee contract. The morale is that society moves from status to contract. In ancient law, (status inheritance) was of the essence but in modem society it is consideration (contract). Reversal of Trend from Contract to Status: It must, however, be stated that with the advance of time and due the impact of industrialization, urbanization and modemization, new problems of poverty, unemployment, hunger, ignorance, disease etc. have cropped up giving rise to inequality between individuals and groups within the society. Consequently, there came a counter-current of reversal from contract to status in the life time of Maine himself, It was realized that idea of freedom of contract between powerful capitalist and starving labour class led to catastrophic consequences resulting in exploitation of workers. Many statutes have been enacted to improve the service conditions and bargaining capacity of workers in order to free them from the unscrupulous industrialists and capitalists, With the increasing role of the State in a welfare State, it has assumed the functions of a regulator to secure a social order based on justice, equality, liberty and fraternity. The Constitution of India seeks to promote economic interest of weaker sections of society and ensure them social justice. These progressive welfare measures have forced upon the individual worker a new kind of 40 © semved wth Ot Scannerstatus where he does not bargain individually but does so collectively through associations or unions. With the changing role of the States, its functions have also radically changed. Now there is greater interference of the State in the individual's activities. Thus it would be seen that there hhas been a shift of trend from contract to status in modern times. It must, however, be pointed out that perhaps Sir Henry Maine himself was conscious of the fact that the movement of progressive societies from status to contract may prove detrimental to the interest of individuals and they might have to fight for their rights and liberties collectively in groups. Static and Progressive Societies ‘Maine further propounded that for the purpose of the development of law, society can be categorized into two: static society and progressive society. Static or stationary societies did not move beyond the concept of code-based law. In this society, reference to the code answered all legal questions. According to Maine, members of the society were lulled into the belief in the certitude of code and were, therefore, unwilling to reform the law. On the other hand, progressive societies were to be found in Western Europe. These societies were dynamic and amenable to legal reform. They brought about the development and expansion of legal institutions. In the development of law in progressive societies, Maine identified the characteristic use of three agencies — legal fictions, equity and legislation. Legal fictions are mere suppositions aimed at achieving justice by overcoming the rigidities of the formal law. According to Maine, legal fictions help to ameliorate the harshness of the law. A classical example he gave was the institution of the Roman fiction of adoption. He called equity a secondary system of law. It claimed a superior sanctity inherent in its principles which exist side by side with the law. In many cases, it could displace the law. Recall again the conflict between common law and equity. Legislation represents the final development of the law. It is an institution through which various laws in the society are reduced into writing or codes. Criticisms of against Sir Henry Maine Theory: ‘Maine is criticized for oversimplifying the nature and structure of early society for the following reasons: Early society does not show an invariable pattern of movement from the three- stage development of law — from personal commands and judgments of patriarchal rulers through Jaw as custom upheld by judgments to law as code. The so-called rigidity of the law has repeatedly aL © semved wth Ot Scannerbeen challenged by contemporary anthropologists who are of the opinion that primitive peoples were adaptable and their laws flexible. Also, there were matriarchal societies just as there were patriarchal societies. Furthermore, it has been observed that status does not necessarily gravitate to contract. Rather, the opposite development has been possible, For example, social welfare legislation in advanced countries is status-based. In the US, ‘affirmative action,” a policy that is predicated on Afro-Americanism, is status- based. Also, in Canada, the status of a single mother is recognized in law. Conclusion Sir Henry Maine brought his knowledge of earlier societies to bear on legal development. His approach re-affirms the utility of history in understanding today and tomorrow. However, in his study of static and progressive societies, he tended to take too much for granted. This is evident in the fact that there are very few societies that can be strictly categorized as static or progressive. What you are most likely going to find is a bit of this, a bit of that, or a hybrid. Finally, we conclude by saying that although Maine lived up to his historical commitment, he overlooked the dynamics that have characterized societies across ages. 4, PHILOSOPHICAL SCHOOL OF JURISPRUDENCE, Various Factors influenced the emergence of philosophical school of jurisprudence. The philosophers like Aristotle and Plato considered law as a product of reasons, ethics, morality etc, which was the only practical means or methods to achieve justice in society. They were of the pinion that “As law being based on ‘reason’ cannot be isolated from ethics”. It was on 16" century that law was separated from religion and theology and assumed an independent status as natural Jaw through philosophical approach. Many jurists from Germany and France looked for a new legal philosophy which could prevent stagnation of law and create conditions favourable for its study growth so as to meet the complexities of the contemporary society. It was realized that law, in order to command respect from society, must have an element of ethical value so that it may achieve the ideals for which it was meant. This new school of thought is called as the ethical or philosophical school of jurisprudence, This school is known as Ethical School of Jurisprudence. The chief exponents of this school are Francis Bacon, Hobbes, Locke, Blackstone, Immanuel Kant, Hegel, Hugo Grotius and Jean 42 © semved wth Ot ScannerJack Rousseau. According to the exponents of this school, legal philosophy must be based on ethical values so as to motivate people for an up-right living. The essence of ethics deals with the principles of morality which moulds mans conduct enabling him to distinguish between right and wrong to maintain social order. According to this school, the purpose of law is to maintain law and order in society and legal restrictions can be justified only if they promote the freedom of individuals in society. The ethical school of jurisprudence expounds the first principle of law as it ought to be. It is neither concerned with the historical past nor with the analytical present, but with the future of law as it ought to be. ‘The salient feature of the ethical jurisprudence may briefly be stated as follows:- 1. The concept of justice has a philosophical or ethical content and law and justice are closely inter- related concepts. Law is a means to attain the ends of justice. Thus law is only an instrument towards the fulfillment of the objective of justice; Ethical school of jurisprudence concerns itself with the manner in which the law ful purpose of attainment of justice; 3. It seeks to differentiate between the spheres of law and justice; 4. It attempts to highlight the ethical significance of legal conceptions. ‘The ethical or philosophical school of jurisprudence considers law as the means by which individual's will is harmonised with the general will of the community. The proximate object of jurisprudence is to secure liberty to the individual for the attainment of human perfection. Hugo Grotius, Kant, Hegel and Schelling are considered to be the main exponents of the ethical or philosophical schoo! of jurisprudence. IMMANUEL KANT (1724-1804) Immanuel Kant held that the ethics and law are not one and the same thing. According to him, ethics relates to man’s spontaneous acts while law death with all those acts to which man can be compelled. Ethics thus deals with the inner life of the individual; law on the other hand regulates his external conduct. In his view, “Law is the total of the conditions under which the personal wishes of man can be reconciled with the personal wishes of an another man in accordance with a general law of freedom. According to him, “the freedom of man to act according to his will and the ethical postulates are mutually co-relative because no ethical postulate is possible without man’s freedom of self determination”, He distinguished morality from law and contended that, morality is a matter of 43 © semved wth Ot Scannerinternal motive of the individual whereas, whereas legality or law is a matter of action in conformity with an external standard set by the law. Thus he deduced the definition of law and observed “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”. Thus he considered ‘Compulsion’ as an essential element of Jaw and a right is nothing but a power to compel. According to him legislation could be effective only when it represents the united will of the people. He upheld freedom of speech as a pre- requisite of a good government. The citizens should have the freedom of criticizing the government but they should never seek to resist it. He believed in the universal world order and equality and freedom of States. He, however, wanted that international law to be effective must have an international authority superior to the member States HEGEL (1770-1831) Hegel carried further Kant doctrine of freedom of will. In his opinion, the purpose of making law is to reconcile the conflicting egos in society. The society has always been changing and so has the law to meet the exigencies of time. All laws must conform to dynamic change in society for the purposeful attainment of human perfection According to Hegel, State is the synthesis of family and civil society. It is the unity of universal principle of family and the particular principle of civil society. He emphasized 3 kinds of functions of State 1. Universal (Formulations of Laws) Particular (Application of Laws) 3. Individual (Embodied in the Monarch) Thus he was opposed to democratic state and universal franchise. According to him, the State is not the embodiment of the common will or the will of the majority, but of the rational will Monarch being an embodiment of the individual function of the State, hereditary monarchy is justified as a philosophical necessity. Hegel’s most important contribution to legal philosophy is the development of the idea of evolution, He contended that various manifestations of social life including law are the product of an evolutionary process. This process operates itself in form of thesis, antithesis and synthesis. The ‘human spirit sets a thesis which becomes a leading idea of a particular time. In course of time, a wave of objections and criticism generates against this popular idea. 4a © semved wth Ot Scanner5, SOCIOLOGICAL SCHOOL OF JURISPRUDENCE, Sociological school of jurisprudence emerged as a result of synthesis of various juristic thoughts. ‘The exponents of this school are considered law as social phenomenon. They are mainly concerned with the relationship of law to other contemporary social institution. They insist that the jurist should focus their attention on social purposes and interest served by law rather than on individuals and their abstract rights. According to this school, the essential characteristics of law should be to respect mmon interaction of men in social groups, whether past or present, ancient or modern. ‘The main concern of sociological jurists is to study the effect of law on society on each other. They treat law as an instrument of social progress. Many authorities contended that sociological jurisprudence originated as a reaction to rigid legal positivism which completely relied on the coercive power of the state and completely rejected the morality and justice as irrelevant in human science. It was also opposed to historical school’s undue insistence on past customs, traditions and values, which had blocked the growth and development of law. ‘The supporters of sociological school of jurisprudence linked law with other social sciences and treated it as a combination of psychology, philosophy, economics, political science, sociology etc. in their view, law is concerned with its effect on society and therefore, it would be erroneous to treat it as a mere command ot Gods will or the peoples conscience. Main Characteristic Features of Sociological School of Jurisprudence: The practical objectives of sociological jurisprudence have been formulated by Pound as follows + 1. A study of the social effects of legal institutions, legal precepts and legal doctrines, of the law in action as distinct from the law in books. A sociological study as an essential preliminary step in lawmaking. ‘A study to ascertain the means by which legal rules can be made more effective in the existing conditions of life, including the limits of effective legal action, An attempt to understand the actual growth of the law by a study of the judicial methods and modes of thought of the great judges and lawyers. A sociological legal history of the common law, for studying the past relations of law to then existing social institutions. Individualization of the application of legal rules so as to take account of the concrete circumstances of particular cases. © semved wth Ot ScannerPound has compared the sociological jurisprudence with other schools of legal thought and notes the following characteristics of adherents to the sociological school: they pursue a ‘comparative study of legal phenomena as social phenomena and criticize these with respect to their relation to society. In particular they (1) Consider the working of the law rather than its abstract content; (2) Regard law as a social institution which may be improved by human effort and endeavor to discover and effect such improvement; (3) Lay stress upon the social ends of law rather than sanctions; (4) Urge that legal precepts be used as guides to socially desirable results rather than inflexible molds; and (5) Their philosophical views are diverse, usually positivist or some branch of the social- philosophical school, Developmental Stages of Sociological Jurisprudence: There was a need for the fresh approach to the study of law in terms of pressing needs of the society. This led to the emergence of Sociological School of Jurisprudence, which began from Auguste Compte, Dean Roscoe Pound and finally culminates into Realist school of the 20" century. The major stages through which the sociological jurisprudence evolved and developed may briefly be stated as follows: (1) Empirical Scientific Approach to Law: Auguste Compte said to be the founder of the sociological jurisprudence who made a beginning to what has been known as ‘scientific positivism’. His approach to law was empirical based on experience and observation. He rejected philosophical and historical school. He denounced hypothetical consideration in the perception of law and based his study of law on empirical observation in an effort to establish co-relation between law and society. (2) The Impact of Darwinian Evolutionary Theory: The next stage in the development of sociological jurisprudence has been called as the “biological stage’ because of the influence of the Darwinian’s Evolutionary theory. Social phenomenon as a biological process adapting itself to the changing needs of the progressive society. It is through the instrumentality of law that the conflicting interests of the members of society are reconciled and the various groups are held within their bounds in the interest of the society as a whole, © semved wth Ot Scanner