Analytical Legal Positivism

 relation of law with that of a State

 to deal with the law as it already exists
 is the sovereign’s direction
 In the nineteenth century, the analytical school rose to prominence.
 If morals are included in the concept of law, the law will no longer be
objective.
 Legislations, court precedents, and customary laws are the most
important legal sour
 ces.
 Austin is considered as a father of the Analytical school.
 he positivist movement began at the turn of the nineteenth century,
according to Professor Dias. It was a reaction to a priori thought, which
turned away from the reality of actual law in an attempt to uncover the
universal validity principle in nature or reason.
 It aimed to keep value concerns out of jurisprudence and limit the
discipline’s scope to the investigation and dissection of positive legal
orders
 The Analytical school was dominant in England and therefore also
came to be known as the English school. It is known as the Austinian
school because it was founded by John Austin.
 The Analytical school views law as a sovereign’s mandate
 It emphasised the importance of legislation as a source of law.

 Purpose of the Analytical school of jurisprudence

 The purpose of Analytical jurisprudence is to examine the foundational
principles of law without regard to their historical origins, evolution,
ethical importance or validity.

 According to Salmond, a book of analytical jurisprudence will deal with

an analysis of the concept of law, an examination of the relationship
between civil law and other forms of law, an analysis of the various
constituent ideas of which the complex idea of law is made up, such as
State, sovereignty, and administration of justice, an account of legal
sources from which law proceeds, as well as an investigation of the
theory of legislation, and so on.

Function of the Analytical school of jurisprudence

 The Analytical school’s fundamental objective is to provide legal
principles in a clear and methodical manner that is relevant to a larger
and more developed legal system.

Significance of the Analytical school of Jurisprudence

Analytical Jurisprudence’s significance stems from the fact that it
provided clarity to legal reasoning. It gave us a vocabulary that was
clear, precise, and scientific.

Founder and advocates of the Analytical school of jurisprudence

• : Jeremy Bentham
• Father : John Austin
• Chief Exponents : Holland, Salmond, Pr H.L.A. Hart, Prof. Gray, Prof. Allen, Prof.
Vinogradoff

BENTHAM
 sovereignty and command are central principles
 The contrast between social desirability and logical necessity was
recognised by Bentham.
 He also accepted divided and partial sovereignty while debating the
legal constraints that the sovereign authority may face. In general,
sanctions play a less important role in Bentham’s theory than they
do in Austin’s. Even if simply supported by religious or moral
consequences,
 Bentham also advanced a critique of the common law as the
exclusive domain of the professional elite, lawyers and judges, in
which often obscure and technical language was used to keep the
law shrouded in mystery from the perspective of ordinary citizens,
all in the service of perpetuating the myth.
 Bentham contrasted expositorial jurisprudence (that is, what the law is)
from censorial jurisprudence (that is what the law ought to be). His
definition of law is “law is an assemblage of signals, affirmations of
intention conceived or chosen by a sovereign in a State.” While supporting
the economic idea of laissez-faire (minimum government intervention in
people’s economic activity), he advocated for utilitarianism which signified
that ‘the legitimate purpose of every legislation is the advancement of the
greatest pleasure of the greatest number.’ Bentham defined utility as “the
property or tendency of a thing to prevent some evil (‘pain’) or procure
 some good (‘pleasure’).” According to him, the role of legislation should
be to achieve these goals, namely, to provide sustenance, produce
abundance, promote equality, and preserve security

John Austin and his sayings

Law should be rigorously examined and evaluated, and the principle
underlying it should be discovered’ and limited his research to Positive law

 he used the terms “analytical,” and “positivism,” to describe the

school he formed, therefore, the Analytical school of jurisprudence
is also known as Analytical Legal Positivism.
 Austin defined law as “a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him”.
 He was the persucur of pure science of law
 Law is strictly divorced from justice

Law = command + sanction + sovereign

 thereby intending to say that “law is the mandate of a sovereign,
ordering his subjects to do or refrain from specific actions. If the
command is not followed, there is an implied threat of
punishment”.
 A command, according to Austin, can be specific (directed to a
single individual or group of people) or universal (issued to the
whole community and informing classes of acts and forbearances,
they are often referred to as ‘continuous orders’). A specific
command is effective when the individual or group being
commanded obeys it whereas a general command is successful
when the majority of a political society obeys it on a regular basis.
 According to Austin ‘if a definite human superior not in the habit of
obedience to a similar superior gains habitual obedience from the
mass of a given society, that determinate superior is the sovereign
in that society’. As a result, the fact of obedience is the foundation
of sovereignty. The sovereign’s power is unrestricted and
indivisible (there is no separation of powers). The sovereign is not
constrained by any legal restrictions or their own laws.
 Customs are not taken into account in Austin’s definition.
 Only the legal systems of civilised nations may become the
legitimate subject matter of jurisprudence, according to Austin’s
conception of law as the “command of the sovereign,” because the
sovereign can only execute their orders with an efficient
administrative apparatus in such societies.
Criticism of Austin’s theory
Austin’s thesis is questioned since punishment isn’t the only way to
get people to obey. The concentration on punishment as a mark of
law in Austin’s theory obscures and distorts the true nature and
purpose of law in a community.

He dismisses law as a man-made construct, ignoring its

characteristic of organic growth.

In modern times, the law is nothing more than the people’s

collective will.

According to Austin’s positive law, there is no place for ideals or

justice in law, because “the existence of law is one thing, its merit
and demerit another.

A law that actually exists, is a law, even if we happen to dislike it

or if it differs from the text by which we regulate our approval or
disapproval.” Austin’s approach disregards laws that are
permissive and grant privileges (eg the Bonus Act, Law of Wills).

In India, for example, it is impossible to find a single sovereign

who can be said to have unrestricted and absolute power to
establish laws. The concept of command, according to Duguit, is
inapplicable to modern social/welfare law, which does not order
individuals but confers advantages, and which binds the State
rather than the person.

comparison of Bentham and Austin’s propositions

1. Betham’s definition of sovereignty was open-ended, avoiding the
constraints of indivisibility and illimitability. He was able to
accommodate the division of authority across organs, as in a
federation, or division in specific sectors, as well as authority
constraints and self-bindingness.
2. Bentham had a larger understanding of the law than Austin, and the
former avoided the absurdity of “law properly so-called.”
 3. Bentham’s sanction was both broader and less significant than
Austin’s. Even if they are justified by moral or religious sanctions, laws
are laws. They might even be accompanied by awards.
4. Bentham didn’t have to use “sanction by nullity.” His theory had a flaw
in the imperative basis, but it was so much larger and less rigid than
Austin’s that he was able to accommodate permissions up to a degree.
He avoided the fiction of ‘tacit command.’

BREIF

Jeremy Bentham

 Coined term international law

 Against the theory of natural law
 Pleaded for codification of law
 Supporter of Individual and Market freedom
 Greetest good for greatest no has to be provided.

Utilatarin Theory- Property of a thing to prevent some evil and procure some
good.

Concept of utlity has to be taken into consideration while making the law

3 Conditions of Principle of utlity

1. Clear and Precise

2. Single and sufficient
3. Moral Calculus

Pleasure and Pain

He was against the judge made laws.

Expositiary and Censorial

Sanctions- physical, political, moral and religious.

Positive-

Legal reform

Legislation main source of law

Codification became important

Criticism-

More importance given to power of legislators

Not balance between Individual interest and Social intereets freedom

Limiting the individual freedom is not accepted.

John Austin.

• The importance of his work was the strict delimitation of sphere of Law from
Morality

• Austin’s foremost concern was to determine and characterize the notion of law i.e. –
law properly
law improperly

• The positive law, therefore, remains a distinct and clearly identifiable feature
characterized by four elements- ü Sovereignty

 Command

 Duty

 Sanction

 Every positive law is a set by a sovereign person or sovereign body of

persons, to a member or members of independent political society wherein
that person or body is sovereign or supreme.
 Ignored the significance of customary law

 Failed to cover law conferring privileges only,

 Command implies coercive measures

 Sanction alone can’t induces the man to obey the law

 Ignored judge made laws

 Sovereign power appears the supreme one and as if he is capable of giving even
arbitrary command

 Ignores gradual development of law and treat law as a rubber band whose expansion
rest on Sovereign will
 Does not cover conventions of the constitution

 International law is mere positive morality

CASE – AHEMDABAD WOMEN ACTION GROUP VS UNION OF INDIA

Can muslim personal law can be amended by judicial interference

Personal laws are all the example of state matter policy the Judiciary cannot
interfere in them.

Lakshmikant Pandey v. Union of India (AIR 1984 SC 469)

• Issue: whether a child should be allowed to be

adopted by foreign parents and if so, the
procedure to be followed for that purpose,
with the object of ensuring the welfare of the
child.
Principle: Inter-country adoptions must be
regulated by the Government and no such
adoptions can be carried out without intervention
of the Government.

HISTORICAL SCHOOL OF LAW-

• Indian Young Lawyers
Association vs The State Of
Kerala 2018 (Sabarimala case)
• Vineeta Sharama v. Rakesh
Sharma – 2020
• Joseph Shine v. union of India
• Navtej Johar vs Union of India,
2018
 Law is formulated for the people and by the people’ means that the law
should be according to the changing needs of the people. And
everyone understand their own need better than anyone else.
 The basic source of the Historical School of Jurisprudence is the habits
an custom of people which changes according to their needs and
requirement. It is also called the continental school of Jurisprudence.
 This school rejects the ideas of formation of law by judges and the
origin from some divine relevance.
 That branch of legal philosophy which is termed historical
jurisprudence is the general portion of legal history. It bears the same
relation of to legal history at large as analytical jurisprudence bears the
systematic exposition of the legal system. It deals, in the first
place, with the general principles governing the origin and
development of law, and with the influences that affect the law.
It deals, in the second place, with the origin and development of
those legal conceptions and principles which are so essential in
their nature as to deserve a place in the philosophy of law- the
same conceptions and principles, that is to say, which are dealt
with in another manner and from another point of view by
analytical jurisprudence. Historical jurisprudence is the history of
the first principles and conceptions of the legal system.”
  T THE SCHOOL HAS LOT TO OFFER TO THE SOCIETY IN GENERAL.

Reasons for the Origin of Historical School of

Jurisprudence
 The Historical School believe that law is made from people according to
their changing needs. Habits and customs are the main sources of the
Historical School of Jurisprudence.
The reasons for the emergence of this school are:

 It came as a reaction to the natural school of law.

 Natural school of law believes that the law is originated from some
divine power. Natural law is also called the Eternal law. It exists since
the beginning of the world. It is closely associated with the morality
and intention of God. Indian constitution has some relevance of the
natural law in its articles.

Historical school of Jurisprudence focuses on the formation of law by

people not by some divine origin.

Jurists of Historical School of Jurisprudence

Montesquieu
According to Sir Henry Maine, the 1st Jurist to adopt the historical method of
understanding the legal institution was Montesquieu. He laid the foundation
of the historical school in France. According to him, it is irrelevant to discuss
whether the law is good or bad because the law depends on social, political
and environmental conditions prevailing in society

 Montesquieu concluded that the “law is the creation of the climate,

local situation, accident or imposture”. He was of the view that law
must change according to changing needs of the society. He did not
establish any theory or philosophy of the relation between the law and
society. He suggested that the law should answer the needs of the
place and should change according to time, place and needs of the
people.

Savigny
 Savigny is regarded as a father of the Historical school. He argued that
the coherent nature of the legal system is the usually due to the failure
to understand its history and origin.
 Savigny believes that the law cannot be borrowed from outside. And
the main source of law is the consciousness of the people
 He was of the view that the law of the state grows with the
strengthening of the state nationality and law dies or fade away when
nationality loosens its strength in the state.

Friedmann concludes the Savigny’s theory

 Law is like language which eventually grows.
 Law cannot be of universal validity nor be constructed on the basis of
certain rational principles or eternal principles.
o Savigny argued that law is like the language having its own
national character. So, it can’t be universally applied and varies
according to the people.
 Law is found or discovered not made. It can’t be made artificially like
the invention of an object.
 Law is found on the basis of consciousness, customs and beliefs of the
people.
 Volksgeist means “national character”. According to Savignty’s
Volksgesit, the law is the product of general consciousness of the
people or will. The concept of Volksgeist was served as a
warning against the hasty legislation and introduce the
revolutionary abstract ideas on the legal system. Unless they
support the general will of the people.

Criticism of Savigny’s View

Charles Allen
Charles Allen criticized Savigny’s view that law should be found or based on
the customs. Allen was of the view that customs are not the outcome of
common consciousness of people. But they are the outcome of the interest of
a powerful and strong of a ruling class. For example, slavery which was
recognized and prevailed in certain societies by the powerful classes of
society.

Prof. Stone
Prof. Stone criticized the Savigny and says that he (Savigny) ignored the
efficiency of the legislation and planned law and social change. And over
emphasized on the consciousness of people.

For example, In India, the abolition of Sati and widow’s remarriage are
brought in to change because of powerful and effective legislation.

BREIF

 Law is the subject matter of an organic

evolution.

 Main catalyst for the development of law

is – ‘Internal Necessity’
 Law is a national character and can’t be of
universal application.
  Law varies with people with people and
ages, it can’t be static.
 The main source of law is-
‘General Conscience of people’
 Principle of internal necessity gives rise to
law spontaneously and it is developed by
jurists and lawyer.
 Customs are superior to legislation.
 Legislation is the final step of law making.
 Codification can’t cover all problems
which may arise from time to time,
codification bring the loopholes of law
before the society.
 It is codification and legislation which
according to Savigny, would kill the
organic growth and evolutionary
process of Volkge
ist.

Criticism :
• Savigny considers Volkgiest as the source of law.
Volkegiest – is a complex phenomenon

• It is difficult to determine the general conscience

and its inclination.

• Failed to explain ‘organic evolution’.

• Legislators are also agents of general

conscience .
Positive aspect :
• The greatest contribution of Savigny
has been that he interpreted
jurisprudence and law in
terms of – ‘people’s will’ - i.e. Volkgeist
• Can’t deny his contribution in giving
significance to – ‘free will of people’
Sowed the seeds of evolutionary and
sociological theories in Savigny’s work
because of this he has been called as-
• He is the first jurist to propound the
evolutionary theory of law on the matrix
of history and culture.
Historical School of Jurisprudence describes the origin of law. This school
argues that the law was found not made. The main source of law is Kings
Judgment, Customs and habits. Jurists like Montesquieu, Savigny, Sir Henry
Maine, and Georg Friedrich Puchta are the supporter of the Historical School
of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first
jurist of Historical school. Sir Henry Maine was the jurist of English Historical
School. He was more logical and accept the concept of Codification and
legislation.

Savigny was the father of Historical school. He argued that Law is like
language and have a national character

Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School
of Law. Savigny’s views of Historical school was carried forward
in England by Sir Henry Maine.

he was law member in the Council of the Governor–General of

India b/w 1861 to 1869.

Maine favored legislation and codification of law, unlike Savigny.

Maine describes the development of law in four stages:

 First stage
Rulers are believed to be acting under divine inspiration. And the laws are
made on the commands of the rulers. For example, Themistes of ancient
Greek. The judgment of the king was considered to be the judgment of God
or some divine body. King was merely an executor of judgments of God, not
the law-maker.

 Second stage
Then the commands of King converted into customary law. The custom
prevails in the ruler or majority class. Customs seems to have succeeded to
the right and authorities of the king.

 Third stage
The knowledge & administration of customs goes into the hands of a
minority, Due to the weakening of the lawmaking power of the original law-
makers like Priests the knowledge of customs goes into the hands of a
minority class or ordinary class. And the ruler is superseded by a minority
who obtain control over the law.

 Fourth stage
In the fourth and last stage, the law is codified and promulgated.

Static societies
Societies which does not progress and develop their legal structure after the
fourth stage of development of law are Static society. Static societies don’t
progress beyond the era of codes.

Progressive Society
Societies which go on progressing after the fourth stage of development of
law are Progressive Societies. They develop their laws with the help of these
instruments:

 Legal Fiction
Legal Fiction changes the law according to the needs of the society without
making any change in the letters of the law. Legal fiction harmonizes the
legal order but made the law difficult to understand.

 Equity
According to Maine, “Equity is a body of rules existing by the side of the
original civil law & founded on distinct principles”. Equity helps to remove
rigidity and injustice.
  Legislation
The legislation is the most effective and desirable method of legal change.
Laws will be enacted and became operative officially.

Historical School of Jurisprudence describes the origin of law. This school

argues that the law was found not made. The main source of law is Kings
Judgment, Customs and habits. Jurists like Montesquieu, Savigny, Sir Henry
Maine, and Georg Friedrich Puchta are the supporter of the Historical School
of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first
jurist of Historical school. Sir Henry Maine was the jurist of English Historical
School. He was more logical and accept the concept of Codification and
legislation.

Savigny was the father of Historical school. He argued that Law is like
language and have a national character.

Sir Henry Maine (1822- 1888)

• Maine was largely responsible for the codification of Indian law.
Many legal reforms had been adopted in India largely on Maine’s suggestions.

• As a successor Lord Macaulay Maine served from 1863-1869 as a legal

member of the Central
Legislative Council in India
Stages of Development of law:

1. Law made by the ruler under divine inspiration

2. Customary Law

3. Knowledge of law in the hands of Priests

4. Codification

1. Law made by the ruler under divine inspiration:

 In the beginning, the law was made by the command of the king believed to
be acting under the divine inspiration of Goddess of justice. Who was above
the law and whose commands must be obeyed by the inferiors.

2. Customary Law:

• In the next stage, the office of the King or Judge was inspired by the heads of the councils.

• Priest became a repository of law which circulated the King’s power and claimed the sole
monopoly of knowledge.

• Therefore, the priest class tried to preserve the customs of race or caste intact.

• Since the art of writing was not invented, the customs of the community became law for those
who were united with blood relations. In this way, we notice a special event. The concept of
custom is a development of the theory of Maine emerging behind the themesters or
judgments.
Knowledge of law in the hands of Priests:

• In the next phase of the development of the law, in order to implement

and execute the law inspired by the Priest class, the King’s right claimed to
be learned in law as well as in religion.

• The priest class claimed that they remembered the rules of

customary law because the art of writing was not developed till then.
Codification:

• Then comes the era of codification marks the fourth and perhaps the final stage of
development of law.

• With the discovery of the art of writing, a section of scholars and jurists came forward
to condemn the authority of the priests as law officials.

• He advocated the codification of the law to make it accessible and easy to know. It
broke the monopoly of the Priest class in matters of administration of law.

• The most important codes of the era were Rome’s Twelve Tables, Codes of Manu
which were a mixture of moral, religious and civil laws, Twelve Tables in Rome, Attic
Code of Solomon, Hebrew Code, Codes of Hammurabi etc.
Types of Societies:
• Progressive Societies: According to Henry Maine, those societies which go beyond the fourth
stage as developing their laws, by new methods are called progressive societies.
Progressive societies develop their laws by the three methods namely; Legal Fiction,
Equity, and Legislation.

• Static Societies: According to Maine, when the primitive law has been embodied in a code,
there is an end to its spontaneous development and such communities or societies which do
not modifying or go beyond the fourth stage are called static societies.

• Equity
– According to Maine, “Equity is a body of rules existing by the side of the original
civil law & founded on distinct principles”. Equity helps to remove rigidity and
injustice.

• Legislation
– The legislation is the most effective and desirable method of legal change. Laws
will be enacted and became operative officially.

CASE LAW-

SOCIOLOGICAL SCHOOL OF LAW

o In early time, rules and laws are originated from the only custom
to govern the society which had only a social sanction. Then, the
supremacy of King and priest came. then, after the revolution
and changes, the balance between the individual interest and
welfare of society was realized.
o The main subject matter of sociology is Society. Sociology is the
study of society, human behavior, and social changes. And
jurisprudence is the study of law and legal aspect of things. The
Sociological school of Jurisprudence advocates that the Law and
 society are related to each other. This school argues that the law
is a social phenomenon because it has a major impact on
society.
o August Comte (1798-1857) was a French Philosopher. The term
“Sociology” was first used by the Comte and he described
Sociology as a positive science of social facts. He said that
Society is like an organism and it could progress when it is
guided by Scientific Principles. Thus, he makes great efforts to
use the law as a tool by which human society maintains itself
and progresses.
 Law is a social phenomenon and law has some direct or indirect
relation to society. Sociological School of Jurisprudence focuses on
balancing the welfare of state and individual was realized.
 Sociological School of Jurisprudence studies the relationship between
the law and sociology. Every problem or concept has two different
aspects. One is sociological view and other is a legal aspect. For
example Sati.

The legal aspect:

Sati Pratha was first abolished in Calcutta in 1798. A territory that fell under
the British jurisdiction. A ban on Sati was imposed in 1829 in the British
territories in India. In today’s time, the practice of Sati is banned under the
Prevention Of Sati Act (1987) which makes it illegal to force or encourage
anyone to commit Sati.

The sociological aspect

In today’s era of escalating feminism and focus on equality and human
rights, it is difficult and amiss to digest the ruthless Hindu practice of Sati.
Indeed, the practice is outlawed and illegal in today’s India.

Reason for the emergence of Sociological School of

Jurisprudence

What is Laissez-Faire?
According to the Britannia dictionary, “ Laissez-faire is the policy of minimum
governmental interference in the economic affairs of individuals and society.

Due to Laissez-Faire, all people are giving more importance to the

individual interest and ignored the general interest or state interest
and welfare of the state. The Sociological school came out as a
 reaction against the laissez-faire because sociological school advocates
the balance between the welfare of the state and individual interest.

Montesquieu (1689-1755)
He was of the view that the legal process is somehow influenced by the
social condition of society. He also recognized the importance of
history as a means for understanding the structure of society. And
explained the importance of studying the history of society before
formulating the law for that society.

“law should be determined by the characteristics of a nation so that

they should be in relation to the climate of each country, to the quality
of each soul, to its situation and extent, to the principal occupations of
the natives, whether husbandmen, huntsmen or shepherd, they should
have relation to the degree of liberty which the constitution will bear,
to the religion of the inhabitants, to their inclinations, riches, numbers,
commerce, manners, and customs.”

Eugen Ehrlich (1862-1922)

Sociology of law is the study of law from the sociological perspective.
Ehrlich considered society as a main source of the law. And by society,
he means “association of men”.

He argued that society is the main source of law and better source of
law than legislation or judicial decision.
'Living Law' is the Facts that Govern Social Life: Ehrlich believed in the spontaneous
evolution of law in the context of existing society. According to him, law originates from
existing institutions of marriage, domestic life, possession, contract, inheritance, etc. They
govern society through living laws. By living laws, he means that extra-legal control which
governs/regulate the social relations of man. I

Roscoe Pound (1870-1964)

Pound was an American Legal Scholar. His view is that law should be studied
in its actual working and not as it stands in the book.

Theory of Social Engineering

 Roscoe Pound gives the theory of Social Engineering in which he
compared lawyers with the Engineers. Engineers are required to use
their engineering skill to manufacture new products. Similarly, social
 engineers are required to build that type of structure in the society
which provides maximum happiness and minimum friction.
 According to Pound, “Law is social engineering which means a balance
between the competing interests in society,” in which applied science
is used for resolving individual and social problems.
 He mentioned that everybody has its own individual interest and
considered it supreme over all other interest. The objective of the law
is to create a balance between the interests of the people. For
Example, Article 19 of the Indian Constitution provides ‘Rights to
speech and expression’ but on the other side, State put some
restriction on this right. And when the conflict arises between
Individual right and State’s restriction, then the law comes to play its
part. And solve the conflict between the interests.

Interest Theory
Roscoe Pound in his interest theory mentioned the three kinds of interest. To
avoid the overlapping of the interests, he put boundaries and divide the kinds
of interests.

 Individual Interest
These are claims or demands involved from the standpoint of the individual
life which consists of interest of personality, interest in domestic relations
and interest of substance. Like divorce, domestic violence. reputation

 Public Interest
These are the claims or desires asserted by the individual from the
standpoint of political life which means every individual in a society has a
responsibility towards each other and to make the use of things which are
open to public use. Interest in the preservation of state. Eg protection of
environment reguklation in public employemtn

 Social Interest
These are the claims or demands in terms of social life which means to fulfill
all the needs of society as a whole for the proper functioning and
maintenance of it. Interest in the preservation of general peace, health,
security of transaction’s, preserving social institutions like religion, politics,
economic.

Example- Divorce Legislations are deduced in the confluct between the social
interest and the individual interest since the rights of spouses are being
involved.
Jural Postulates by Roscoe Pound
Roscoe Pound mentioned the five Jural Postulate and mentioned that the
interest mentioned in these jural postulates should be protected and
nourished.

 Criminal
An interest of protection from any intentional aggression. For Example,
Assault, Wrongful restraint, Battery, etc.

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

 Contrac
The interest in making the contract and getting of reasonable remedy or
compensation when his right violate

 Torts
Protection against Defamation and unreasonable injury caused by the
negligent act of another person

 Strict Liability
Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury
caused by the things of another person. It is the duty of other people to keep
his/her things with his/her boundary and should look after that thing to avoid
injury to other people.

Leon Duguit (1859-1928)

Leon Dug

eon Duguit was a French Jurist and leading scholar of Droit Public (Public
Law). He was greatly influenced by the Auguste Comte and Durkheim. He
gave the theory of Social Solidarity which explain the social cooperation
between individuals for their need and existence.
Social Solidarity is the feeling of oneness. The term ‘Social Solidarity
represents the strength, cohesiveness, collective consciousness and viability
of the society.’ Leon Duguit’s Social Solidarity explain the interdependence of
men on his other fellow men. No one can survive without the depending on
other men. Hence the social interdependence and cooperation are very
important for human existence.

The objective of the law is to promote Social solidarity between individuals.

And Leon Duguit considered that law as bad law which does not promote
social solidarity.

Further, he also said that every man had the right and duty to promote social
solidarity.

For Example, in India, the codified laws are followed by everyone. Hence, it
promotes Social Solidarity.

The Sociology of law is the interdisciplinary approach or sub-discipline of

sociology. It views the society from the legal side. And explains the
interdependence of Society and law. Sociology law explains the
interdependence of the law and society.

One can’t formulate better and effective law without looking and studying the
need and structure of society. For the betterment and harmonious society,
we need better and effective laws.

For Example, After the 2012 Delhi gang Rape happened (Nirbhaya Gang
Rape). Rape laws are amended in India.

Sociological Jurisprudence with Indian Perspective:

In India, Sociological Jurisprudence has been adopted in the Indian Constitution. Part III of The
Constitution of India solely deals with the Fundamental Rights of the citizen and people of this
country wherein the citizens and the people are provided with certain rights. These rights are
provided by recognizing the public and private interest of the individual

In the State of Madras vs Champakam Dorairajan3 , the Court held that Article 46, being a directive
principle cannot override the fundamental rights
In Sarla Mudgal v Union of India1 , the court embracing the concept of Sociological Jurisprudence
said that marriage celebrated under one personal law cannot be dissolved by the application of any
other law. This observation matches up with the concept of Pound wherein he said that in case of
conflict between interests, the interest of the same plane will be weighed together. India has
remarkably embraced the concept and principles of Sociological Jurisprudence and that can be seen
by the judgment that is being delivered by the apex Court.

BREIF

– especially to barren legal positivism which had

based law solely on state’s coercive power and
had categorically rejected pursuits of morality
and justice as irrelevant and improper in human
relations.

• Sociologists like- Max Weber and Durkheim-

insisted on the study of law in terms of inter
social needs and relations.
–They blended sociological studies with legal
theory defining law as one of the aspects of
society.

• Jurisprudence is really an applied science, and

–
• no technology has ever succeeded unless it
was based on the findings of a pure science.
• No universal propositions can be laid down
concerning legal concepts or rules because
they differ from race to race.
• If jurisprudence wishes to become scientific, it
must create a science of society.
It is impossible to discover how law operates
unless we have greater knowledge of the
factors that cause change in society and
govern its evolution.

Montesquieu
• It is irrelevant to discuss whether the
law is good or bad because the law
depends on social, political and
environmental conditions prevailing
in society.
• Montesquieu concluded that the
“law is the creation of the climate,
local situation, accident or
imposture”.
• He was of the view that law must
change according to changing needs
of the society.
• He did not establish any theory or
philosophy of the relation between
the law and society. He suggested
that the law should answer the
needs of the place and should
change according to time, place and
needs of the people
• ‘The Spirit of laws’
In this book, he represents his
beliefs in political
Enlightenment ideas and
suggests how the laws are
required to modify according
to the needs of people and
society.
• Sociological jurisprudence, according to
Pound, should ensure that the making,
interpretation and application of laws take
account of social facts.
• Towards achieving this end there should be –
• (a) a factual study of the social effects of
legal administration,
• (b) social investigations as preliminaries to
legislation,
• (c) a constant study of the means for making
laws more effective, which involves,
• (d) the study, both psychological and
philosophical, of the judicial method,
• (e) a sociological study of legal history,
• (f) allowance for the possibility of a just and
reasonable solution of individual cases,

LEON DUGIT (1859- 1928)

• Durkheim’s main point, on which
Dugit built upon, was that he made a
distinction between two kinds of
needs of men in society.
– Firstly, there are common needs of
individuals which are satisfied by
mutual assistance and
– secondly, there are diverse needs
of individuals which are satisfied
by the exchange of services.
•
• Criticism :
• Dugit denies the distinction between
public and private law. Both are to
serve the same end i.e., social
solidarity.

• Dugit has no faith in all powerful

illimitable authority‘sovereign’. He
strongly pleads for the check on the
 state power. His plea is for the
decentralization and ultimately he
develops an idea of syndicalism.
State is also a human organization and it is
no way different from other organizations

 Documents :
– Magna Carta
– Bill of Rights
– UDHR
 Judges :
• Justice V.R. Krishna Iyer,
• Justice P.B. Gajendragadkar
• Justice M.C. Chagla
• Justice P.N. Bhagwati
• Justice Kuldip Singh
• Justice Dr. A.S. Anand
• Golak Nath v. State of
Punjab
Natural School of Law
 Natural school of law is generally regarded as the law of nature, divine
law or the law that is universal and eternal in nature.
 It has been given different meanings at different points of time and
though it is created by man, it is found through the nature of an
individual.
 The central idea of this theory is that there is a higher law based on
morality against which the validity of human law can be measured.
There is a belief that there are certain moral laws that cannot go
against without losing its moral or legal character. If legislation is not
moral it is not law. There is an essential connection between law and
morality in this school of law.

1. Ancient theories
2. Medieval theories
3. Renaissance theories
4. Modern theories

Ancient Theories

Greece
t that time in Greece, there was great political instability and it was thought
by many that law is made only to serve the interest of the strong, but the
same situation made some other jurists think in other ways, they saw this as
an opportunity to develop new universal principles that would tackle and
control tyranny and arbitrariness of government.

Socrates View on Natural Law

In his concept of natural law man has his own insight which makes him know
of the things whether they are good or bad, it is this insight according to him
by which a man is able to inculcate the moral values in him, the only way to
judge the basis of law according to Socrates is man’s insight. Through his
theory, Socrates wanted to ensure peace and stability in the region which
was one of the principle demands of that time.

Aristotle’s view on Natural Law

ristotle’s concept of natural law is different from that of Socrates, he divides
the life of man in 2 parts, first, he says that man is the creature which is
created by God and second he posses the quality of reason by which he can
develop his own will. It is this reason through which one can discover the
principle of natural justice. Aristotle is considered to be the founding father of
natural law school and gave this theory a very solid ground so that it could
develop naturally

Stoics view on Natural Law

Stoics was inspired by Aristotle’s theory and based on Aristotle’s theory
developed his own theory of natural law but made some key changes and
made it more ethical. According to him, the world is governed by reason.
Man’s reason is also a part of this world, therefore when he lives according to
reason he lives according to nature or lives naturally. One of the duties of
man is to obey the law of nature as according to Stoics law of nature is
binding on everyone and positive law must conform to the natural law.

Medieval Theories

Aquinas
moved away from the orthodox interpretation of natural law and gave a
more logical and systematic theory of natural law. Thomas Aquinas defined
law as the obedience of reason for the common good made by him who has
the care of the community and promulgated. He divided the law into four
stages.

1. Law of God
2. Natural law
3. Divine law
4. Human laws

Natural law is that part which reveals itself in natural reason. This is applied
by human beings to govern their affairs and relations. According to Aquinas
positive law must conform to natural law, positive law is valid only to the
extent to which it is compatible with natural law.

Renaissance Theories
 This period saw major changes in all aspects of knowledge, this period
was marked by the emergence of new ideas, new branches of
knowledge and discoveries of science shattered the foundation of
established values.
 Secondly, the developments in the field of commerce led to the
emergence of new classes that wanted more protection from the
states. It gave birth to the concept of nationalism. All these factors
together overthrew the dominance of the church. New theories
supporting the sovereignty of the state started coming up. The reason
was the foundation stone of all these theories.

Theories of Social Contract

Social contract theory presupposes a state of nature, various philosophers
have described their own state of nature. In simple terms state of nature is
the condition before a contract has been entered into, whatever may be the
situation people entered into a contract either with themselves or with a
single person under where philosophers are very important to understand the
development of natural law during the Renaissance period. These
philosophers are:

1. Thomas Hobbes
2. John Locke
3. Rousseau

Hobbes State of nature

Hobbes State of nature

Under his state of nature, man lived in a chaotic state, according to him,
man’s life in a state of nature was that of fear and selfishness. It was
solitary, nasty, brutish and short.
Hobbes Contract
Under the prevailing circumstances, people, in order to get rid of their
miseries, entered into a contract under which they surrendered all their
rights to a single person. The law of nature can be discovered by reason
which says what a man should do or not do. Man has a natural desire for
security and order, this can be achieved only by establishing a superior
authority that must command authority. Therefore he advises the sovereign
that he must command with the natural law.

John Locke

Locke’s State of Nature

Locke’s view on the state of nature was completely different from that of
Hobbes. He also interpreted the natural law in a different way. Locke was in
favor of individualism and therefore for him, natural law meant giving
individuals more power than the sovereign. Locke’s state of nature was a
golden age for man, but as the society grew and people started establishing
the concept of property, people become insecure about their property.

Locke’s Contract
It was for the purpose of protection of property that man entered into a
social contract. Under this contract, he did not surrender all his rights, but
only a part of them. All these rights were surrendered in order to maintain
order and to enforce the law of nature. The natural rights like the right to
liberty, property, and life were to be retained by man.

Locke’s support to Individual Liberty

Locke stood for individual liberty and
sovereign is not unlimited. According
protest against the sovereign if he is
individual, individuals also have a
government.
advocated that the powers of the
to Locke individual has a right to
unable to protect the rights of the
right to overthrow the existing

Modern theories

Nineteenth Century
The decline of Natural Law theories
The 19th century saw the decline of natural law, the natural law theories
reflected more or less the great economic and political changes which had
taken place in Europe. Reason or rationalism was the spirit of the eighteenth-
century thought.

The revival of Natural law theories

During the end of the 19th century, we saw the revival of natural law
theories mainly due to the following reasons:

1. It emerged as a reaction against the legal theories which had

exaggerated the importance of positive law.
2. It was realized that abstract thinking was not completely futile.
3. Positivist theories failed to solve the problems created by the
changed social conditions.
4. The ideologies of Fascism and also led to the revival of natural law
theories, as at that time during the two world wars, the world
witnessed great destruction of human lives and property and
principles of natural law were approached in order to attain peace.

In India the constitution gives certain fundamental rights like right to life,
right to equality etc, all these rights are also based on the principles of
natural law, not only this the principle of natural justice is also based on the
principles of natural law. In the end it could be said that natural school of law
has made a great contribution to the legal jurisprudence of the world
including India.

From Indian Perspective, it has gain a lot more prominence and have been
relied upon the Supreme Court of India and High Courts in their decisions.

IN AK Kraipak V. Union of India the aim of natural justice is ti secure the

justice and prevent the miscarriage of justice 3 natural justice were born 1.
Noone shall be a judge in his own case 2. Resoable hearing ahould be there
3. Quasi judicial proceeedings must be hekd in good faith without bias and
not arbitarailiy and unresoanbly. Which natural rpicnciple has been broken in
which case has to be decided by the facts of the case.

In Maneka Gandhi V Union of India

NATURAL JUSITCE IS GREAT HUMANISING PRINCIPLE INTENDED TO INVEST

IN LAW WITH FAIRNESS TO SECURE JUSITCE . Largely, it has been grown
INTO AFFECTING THE ADMINITRATIVE ACTIONS. The Supreme Court LAID
DOWN EVEN THE PROCEDURE LAID DOWN BY THE LAW MIUST BE JUST AND
FAIR.

BREIF

• Natural law labelled as –

Morality, justice, ethics, right reason, good
conduct, equality, liberty, freedom etc.
• Blackstonegddf bgggffdddscvbgfdnhm, m
m,.,n
nbbgfgfgddgfgggdhdtgbnmkhgfdsaqwerzxcvb
nm : “This law of nature, being coeval with
mankind, dictated by God himself, is of
course, superior in obligation to any other.”
• It is binding over all the globe in all the
countries and at all times no human laws are
of any validity.
• Natural law is a body of laws that is derived
from nature and is sought to be binding on all
human beings.
• Natural law –
– largely unwritten
– it consists of principles of ‘ought’ as revealed by
human nature or reason or derived from God etc.
• There is no unanimity about the definition and
exact meaning of Natural Law.
• In jurisprudence the term ‘Natural Law’ means
those rules and principles which are supposed to
have originated from some supreme source other
than any political or worldly authority.
• It symbolizes Physical Law of Nature based on
moral ideals which has universal applicability at all
places and terms.
• It has often been used either to defend a change or
to maintain status quo according to
needs and requirement of the time.

Natural Law – Nineteenth Century Positivism

• In the 19th century the general environment
was not conducive to natural law.
• The period witnessed the emergence of
Industrial Revolution, great scientific
discoveries laissez faire ideology both in
politics and economy which urgently needed a
certain, stable and deterministic legal theory
instead of fluid and reflex theories of natural
law.
contd…
• Reaction against Positivism: (Twentieth Century –
Natural Law Revival)
However, both the analytical and historical approaches
proved disastrous to the cause of justice, liberty,
freedom and democracy in the 20th century.

Criticism

It is useless :
• It would seem that natural law
jurisprudence is bad in that its
alleged rules have no good uses
and many bad ones.
• The absence of good uses is
evident from the fact that these
rules give to the citizens in
general, and to legislators, judges
and lawyers in particular, no
perceptible help in solving the
 innumerable concrete practical
problems daily confronting them.
It is a Myth:
• Further, natural law is bad because
its rules are not really rules at all; in
fact they are essentially spurious;
they do not exist.
• For what are alleged to be universal
and immutable rules have no actual
universal acceptance but vary as the
consciences and understandings and
customs and normal behavior of its
exponents vary.'
• Or what purport to be absolute and
universal rules are vague and
equivocal abstractions like "do good",
"act honestly", "give each his due",
obey "nature" or "reason", all of
which are devoid of specific practical
content in concrete cases."
It has no lawgiver.
• Further, the natural law rules have no true rule
maker to whom they can be traced and by
whom they are promulgated.
• The Divine Will or Reason, if there is such a
thing, is revealed to no man, and it is arbitrary
to designate as spokesmen for God some
priestly hierarchy or the elite of some despot,
or whatever philosophical school can persuade
people that it has correctly interpreted
"nature" or God's "will" or "reason".
• Natural School of thought and
Realism
Joseph Shine v. Union of India

• The Supreme Court has struck down as

unconstitutional, the 158 year old
Section 497 of the Indian Penal Code,
which criminalizes adultery.
• Questions involved:
1. Whether Section 9 of the Hindu
Marriage Act, 1955 is constitutionally
valid, as long as it curtails the personal
liberty of a spouse?
2. Whether Parliament can legally impose
sexual cohabitation between
unwilling opposite sexual partners
even if it be during matrimony of parties?
Contd…

• It said that the 158-year-old law was

unconstitutional and is violative of
Article 21 (Right to life and personal
liberty) and Article 14 (Right to
equality).
Shreya Singhal vs. Union of India (AIR 2015
SC 1523)
• Section 66A of the Information Technology
Act, 2000 which was introduced in Information
Technology (Amendment) Act, 2008. Since the
amendment, this section has been misused to make
public examples out of innocent, uncomfortable
speech, in order to socially engineer all Indian
netizens into self-censorship.
• Constitutionality of Section 66A of the IT Act and its
draconian nature-Held as ultra vires the
Constitution.
• Natural School of thought and Realism.
Vishakha v. State of Rajasthan, Union of India v.
Association of Democratic Reforms
(2002) 5 SCC 294

• Guidelines by the Supreme Court of India to be

followed at workplace regarding Sexual
Harassment at workplace
• Natural School of thought and Realism
What is Juriprudence

 No universal definition
 Depends upon the political situations that were arising at that
time.
 It was believed that Romans were the the 1st people who
studied the law.
 Jurisprudence means knowledge of law
Bentham was 1st to analyse

Latin word Jurisprudentia

Bentham was the first one to analyze what is law. He divided

his study into two parts: 1. Examination of Law as it is-
Expositorial Approach- Command of Sovereign. 2. Examination
of Law as it ought to be- Censorial Approach- Morality of Law.

Definitions-

Austin- Science of jurisprudence is concerned with studinmg the

positive laws only.. It has nothing to with goodness and badness of
law.
Holland’s Definition- Jurisprudence means the formalB(External Part
only not intricacies) science of positive laws. It is an analytical science
rather than a material science.

7. This definition has been criticized on the ground that this definition is concerned only with the
form and not the intricacies.

Salmond- He said that Jurisprudence is Science of Law. By law he

meant law of the land or civil law. He divided Jurisprudence into two
parts:

Criticism of Salmond- Critics says that it is not an accurate definition. Salmond only gave the
structure and failed to provide any clarity of thought.

Keeton- He considered Jurisprudence as the study and systematic

arrangement of the general principles of law. According to him,
Jurisprudence deals with the distinction between Public and Private
Laws and considers the contents of principle departments of law.

Roscoe Pound- He described Jurisprudence as the science of law.

Dias and Hughes- They believed Jurisprudence as any thought or writing about law rather than a
technical exposition of a branch of law itself.

• Paton : Jurisprudence is “a particular method of the study not

of the law of one particular country but of the general notions
of law itself." Paton is of the opinion that jurisprudence studies
the basic or fundamental principles or general notions of law
itself.

• Allen : Jurisprudence is the scientific synthesis of the essential

principles of law.

• Ulpain : It is the knowledge of things divine and human, the

science of just and unjust.

• Paulus : The law is not to be deduced from the rule but the
rule from the law.

• Julius Stone : It is lawyer’s extraversion.

• Prof. Gray : It is the Science of law. The statement and
systematic arrangement of the rules followed by the courts and
the principles involved in those rules.
Nature of Jurisprudence

• Jurisprudence in its nature is entirely a different subject from other

social sciences.

• The reason for this is that it is

- not codified

- growing and dynamic subject - having no

limitation of itself.

• There is a difference of opinion about the nature of jurisprudence. It is

called both Art and Science.

Practical Applicability:

• Jurisprudence also has its practical applicability. It

seeks to rationalize the concepts of law which
enables us to solve the different problems involving
intricateness of law.
In other words, it serves to render the complexities of law
more manageable and rational and in this way theory can help
to improve practice in the seats of law.
Jurisprudence is the Eye of Law:

• The main function of jurisprudence is to study the origin of law, its development and its
contribution towards society. Law is the only nearest and important aspect in the absence
of which the existence of a peaceful and organised society cannot be imagined.
• Laws are the basis of all nation-activities. The proper existence of State is in obedience of
personal rights and liabilities of people and the conduct of national activities depends on the
existence of solid and perfect law.

• The matters relating to birth, marriages, death, succession etc., are equally controlled
through laws.