PAPER – I

JURISPRUDENCE - I
(Legal Theory)
(Paper Code: K-101)
The course shall comprise of the following:
(1) Introduction: Definition, Nature and Scope of Jurisprudence, Importance of the Study of
Jurisprudence

(2) Analytical School: Analytical Positivism – John Austin, Kelsen, and H.L.A. Hart.
(3) Historical School: Frederick Karl Von Savigny, Sir Henry Sumner Maine.
(4) Natural Law School: Classical Natural Law, Revival of Natural Law: Rudolf Stammler and Kohler.
(5) Sociological School: Background and Characteristics, Roscoe Pound’s theory of Social Engineering,
Dugits Doctrine of Social Solidarity.
(6) American Realist School.
(7) Economic Approach of Law: Marxist Approach on Law and State and Its Impact.

1|Page
Meaning and Definition
There is no universal or uniform definition of Jurisprudence since people have different ideologies and
notions throughout the world. It is a very vast subject. When an author talks about political conditions of
his society, it reflects that condition of law prevailing at that time in that particular society. It is believed
that Romans were the first who started to study what is law.
The study of Jurisprudence started among Romans first. The word “Jurisprudence” made from the Latin
term “Jurisprudentia”. It is derived from two words Juris & prudentia. It means the knowledge of law. But
this meaning is vague and general. The great Roman Jurist Ulpian defined Jurisprudence as “the
knowledge of things divine and human, the science of “Just and unjust”.
The term Jurisprudence cannot define exactly and cannot catch it in a straight jacket formula. Still jurists
try to understand and explained the meaning of jurisprudence. Jurisprudence means the study of law,
analysis and speculation of law.
There are many great jurist and philosopher who defined jurisprudence in different opinion.
 According to Ulpian “Jurisprudence is the knowledge of things divine and human, the science of
right and wrong”.
 According to Cicero “Jurisprudence is the philosophical aspect of knowledge of law”.
 Salmond “Jurisprudence is the science of law”. (By law he means the law of the land or civil law)
 According to Laski “Jurisprudence is the eye of law”
 According to Gray “Jurisprudence is the science of law, the statement and the systematic
arrangements of the rules followed by the courts and principles involved in those rules”.
 According to Dr Allen “Jurisprudence is the scientific synthesis of the essential principles of the
law”.
 According to Keeton “Jurisprudence is study and systematic arrangement of general principles of
law”.
 According to pound “Jurisprudence is the science of law”
In simple words we may define Jurisprudence as the study of fundamental legal principles, including their
philosophical, social and historical basis and analysis of legal concept.
Importance of the study of Jurisprudence
1) Jurisprudence is the interesting subject which can compare to any other subject a scientist estimates
about the light and space same as a jurist estimates the nature of law.
2) The study of Jurisprudence Sharps the mind of human because it debates the social matters.

2|Page
 3) There is an educational importance to study jurisprudence. In the field of law Jurisprudence is an
important subject.
4) Jurisprudence is the ‘eye of law’ because it discusses the basic principles of law.
5) In developing society jurisprudence is very important subject because the concept of negligence and
possession came into existence because of need of the society through the jurisprudence.
6) Jurisprudence with the help of legal system administered the justice as well as discovers the new
principles, opinion and demands which are required to establish justice in the current society.
7) Conscious study of social problems and their solution is the achievement of the jurisprudence. Jail
reforms, rights of prisoners, right to live with dignity. P.I.L. is the latest miracle of the Jurisprudence
views.
Nature of Jurisprudence
The growth and development of law in different countries has been simultaneous and under different
social and political conditions. The words used for law in different countries convey different meaning.
The evolution of society being of a dynamic nature, it is very difficult for definition to get an all heads
recognition Modern Jurisprudence trenches deeply on the fields of the social science and philosophy.
The scope the subject has so immensely widened and so much voluminous literature has been produced in
many languages that it has become very difficult to master the subject. The scientific inventions have
brought the people very close to each other and hence it has helped in the universalization of ideas and
thoughts and developing a common terminology. Ancient Indian legal though could not get smooth
course of development. English people came here with a developed system of and imposed it on the
people here. Native laws were named as ‘personal laws’ and they were not studied, analyzed, or
systematized properly’. There is great controversy today relates to the Jurisprudence and method it should
employ. This can be usefully depicted if it is viewed in historical perspective. The confusion of law and
morality continued for a long time in the continent. In England, the earliest treatment of the subject is
found in Hobbes.
Hobbes was aimed to support to monarchy, his propositions are of some help in the study of the historical
development of ‘Jurisprudence’.
Blackstone, a jurist of 18th century, made same contributions to the study of the science of law, but he too
confused it with ‘Justice’ or what the law ought to be.
Bentham tried to shake away these extraneous considerations and made the actual law the subject matter
of his study. Austin heralded a new era in the field of Jurisprudence and many of his propositions still
hold good. He determined the ‘province of Jurisprudence’ according to Austin the science of

3|Page
Jurisprudence is concerned with positive law, with ‘laws strictly so called.’ Jurisprudence has nothing to
do with the goodness or badness of law.
Dias says that there is no proper meaning of the term Jurisprudence. It deals with structure, uses and
functioning of law and legal concepts.Keeton says that Jurisprudence is the study and systematic
arrangement of the general principles of law. Patterson Jurisprudence means a body of ordered
knowledge, which deals with a particular species of law.
In continent law, morality and justice remain undifferentiated
There are three kinds of Jurisprudence-
 Expository or systematic, which deals with the contents of an actual legal system, as existing at any
time, whether past or present.
 Legal history, which is concerned with a legal system in its process of historical development.
 The science of legislation, purpose of which is to set forth law as it ought to be. It deals with the ideal
future of the legal system and with the purpose for which it exists.
Salmond taking the word Jurisprudence in specific sense a division of subject into 3 branches
 analytical

 Historical

 Ethical

In Jurisprudence we are concerned with nature of the legal rules on the underline meaning of legal
concept and on essential features of legal system in Jurisprudence .the study law is a subject of rules and
principles. Other legal concept like duties, persons, possession, ownership, liability, obligation, property,
intention, negligence, etc. in a widely sense Jurisprudence studies entire body of legal principles abstract
concepts and legal doctrine. But in stricter and more specific sense it’s the study of the substratum (a
Latin word) of any particular legal system.
Scope and uses of Jurisprudence
In Jurisprudence, we mainly study the nature of law its source and purpose, and the nature of rights and
duties and other question related to it. Karl Llewellyn says that Jurisprudence is detailed as law and it’s
very exhaustive even more than law. Lord Radcliff says that- Jurisprudence is the part of history,
economics, sociology, ethics and philosophy. Completion of needs of human society and create social
balance are the main objectives of the Jurisprudence so it has very wide scope like any other subjects.
Following are some of the uses of the study of Jurisprudence.
Conclusion-

4|Page
Jurisprudence is the science and philosophy of law which discovers and discusses the new ideas and
present opinion in the field of law for the administration of justice with moral and liberal laws. The study
of Jurisprudence can’t be a closed door in fact it will improve with new impacts and discoveries of social
science.

Analytical law school (Command theory)

Introduction:
Analytical Jurisprudence is a legal theory draws on the resources of modern analytical philosophy to try to
understand the nature of law. Analytic or ‘clarificatory’ jurisprudence uses a neutral point of view and
descriptive language when referring to the aspect of legal system. This was a philosophical development
that rejected natural law’s fusing of what law is and what it ought to be at the starting of 19th century
positivistic thinking was becoming very strong because of the height of natural law theory. Legal
positivism is the dominant theory, although there are a growing number of critics, who offer their own
interpretations. Analytical law school advocates the positivistic law. Positivistic law gives a scientific
opinion. It rejects the idea of reason, morality human will and attempt the law after systematically
analyzing of the legal concepts. Austin is considered as considered as the father of analytical or positivism
but Jeremy Bentham was the founder of this thought. Austin was the students of Bentham who described
this though further actually Bentham first time utilized the analytical method to study law in place of
abstract method to study law. But due to some reasons they cannot published their thought and further this
thought published by H.L.A. hart who was another great jurist in this thought.

Analytical school of jurisprudence deals with the following matter:-

 An Analysis of the conception of civil law.
 The study of various relations between civil law and other forms of law.
 An inquiry into the scientific arrangement of law.
 An account of legal sources from which the law proceeds.
 The study of the theory of liability.
 The study of the conception of legal rights and duties.
 To investigate such legal concepts as property, contracts, persons, acts and intention etc.

Chief exponents:
Bentham

5|Page
 a) Bentham
b) Austin
c) Salmond
d) Holland
e) Hart
1. Jeremy Bentham
Jeremy Bentham (1748-1832) was an English jurist, philosopher, and legal and social reformer. Bentham
was calling natural law ‘Nonsense upon stilted’ Bentham made a sharp distinction between people be
called.
Expositors
Those who explained what the law in practice was, and
Censors
Those who criticized the law in practice and compared it to their notions of what it ought to be.
He is best known for his advocacy of utilitarianism. Bentham’s legal philosophy is called utilitarian
individualism. He was an individualist. According to Bentham function of law is to emancipate the
individual from the bondage and restraint upon his freedom. Once the individual was made free, He
himself shall be looking after his welfare. The purpose of law is to bring pleasure and avoid pain. Law
should be judged by the pleasure and pain. Bentham wants to improvement of law and set the
unmistakable principles for the law framers. According to Bentham natural law or rights is a myth
because it cannot be practical and there is need to new concepts which based on public opinion. But it is
wrong to say that bad law is not a law. Command or order of the legislation/sovereign is a law unless and
until legislation or sovereign not repeals it.
In simple words the command of sovereign is a law whether it is good or bad and there is no space for
the discussion about it. Sovereign is the group of parsons and their will is the will of political society
as well as people.
2. John Austin
Austin (1790-1859) was the student of Bentham who excluded absolute analysis and gone to be father of
analytical law school. He researched on positive law. He leaved the concept of nature law by Hobbes and
the concept of individualism by Bentham. Appropriate law is a command of sovereign and which law is
not a command by sovereign that will be an inappropriate law. Laws are the species of commands. Law is
aggregate of different laws. All laws are rules and mostly control the behavior of human being. These
rules are either directives or passed by social consent. Directive is the guideline to do something or to do

6|Page
nothing and it declare in the forms of command by sovereign. So law is a set of rules which passed by an
intelligent person to other intelligent people who are under his sovereignty.
Austin said that only positive law is the subject matter of jurisprudence. He separated both the morals and
the religion from the definition of the law. Prior to Austin the law was based upon customs and morals but
Austin reduced all things from the definition of law. He divided law into two parts:

Law properly so called Law improperly so called

Divine Law Human Law Law of analogy Law by Metaphor

Positive Law Positive moral Law

Austin has defined the law is hiss ‘Command Theory’. He says that, “Law is the command of sovereign.”
Sovereign here means a politically superior body or a determinate person or determinate body of persons
like king of council. The command of these persons shall be the law in the country. This law must be
obeyed by certain persons. If it is not obeyed hen the order of these persons shall not be law. It means
there must be politically inferior persons. If the command is disobeyed then the political superior should
have the power to punish, those persons who have disobeyed the law.
Characteristics of Command Theory
From the above facts we find that the following characteristics of Analytical School:-
a) Sovereign
b) Command
c) Duty
d) Sanction Power.

7|Page
a) Sovereign: Means the political superior person or a determinate person or body of person or intelligent
persons. This may be compared with the kind or the head of state in monarchy system and parliament
in democracy system.
b) Command: - There must be some order of the Sovereign. This order may be oral or written. The
Sovereign which is followed by force, is called command.
c) Duty: - This command must be followed by some persons, it means the political inferior persons who
are under the control of sovereign, are under a Duty to follow the order of the Sovereign.
d) Sanction: - There must be sanction or the power of force behind the command of Sovereign and it
there is no force or sanction then such command shall not be law. The sovereign must have power to
punish those who do not obey this command. In this way the above mentioned things are essential then
it will be the law. But Austin excluded some commands from the concept of the law.
 Explanatory Law: - If there is a command for the explanation of already existed law command
shall not be the law.
 The Repeal Law: I there is a command for the repealing of already existed law then the second
command shall not be law.
Criticism of Austin’s theory
a) Customs ignored Law is the command of sovereign as Austin says not appropriate theory for
the law. There are different customs in different states which follows as law before the
establishment of any state or sovereign.
b) Law conferring privileges The law which is purely of a permissive character and confers only
privileges, as the will act which lay down the method of drawing a testamentary document so
that it may have legal effect is not covered by Austin definition.
c) Judge made law In Austin’s theory there is no place for judge made law. But there are many
orders of superior court regards as law by inferior /subordinate courts.
d) Conventions (Tradition) According to Austin’s definition conventions of the constitution
shall not be called as law because these are not enforceable by court. But they are law and
subject matter of a study of jurisprudence.
e) Rules set by private person Austin’s view that “positive law’ includes within itself rules set
by private persons in pursuance of legal rights is an undue extension because their nature is
very vague and indefinite.
f) Sanction not the only means to induce obedience According to Austin sanctions induces the
man to obey law but it is not correct. People follow many rules for sympathy, fear, reasons etc.

8|Page
Herbert Lionel Adolph us Hart (1907-1992) was an influential legal philosopher of the 20th
century. He was professor of Jurisprudence at Oxford University. Hart is one of the great jurists
of that time. He belongs to analytical school. HLA Hart was the Principal and Professor in
“Brasenose College Oxford” His theory about the law named as concept of Law. He talks about
the realty. His theory mainly based on primary and secondary rules and also based on the
relationship between law and society. His theory described about two words i.e. Pre-legal world
and Legal world.
H.L.A Hart argued that the law should be understood as a system of social rules. Hart rejected
Kelsen’s views that sanctions were essential to law and that a normative social phenomenon, like
law, cannot be grounded in non normative social facts. Hart revived analytical jurisprudence as
an important theoretical debate in the twentieth century through his book the concept of law.
Hart argued that law is a ‘system of rules’. Rules, said Hart, are divided into primary rules (rules
of conduct) and secondary rules (rules addressed to officials to administer primary rules).
Secondary rules are divided into rules of adjudication (to resolve legal disputes), rules of change
(allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid)
The ‘rule of recognition,’ a customary practice of the officials (especially judges) that identifies
certain acts and decisions as sources of law.
Sir HLA Hart defines Law, “that law is the system of rules, a union of primary and secondary
rules.” He means to say that law is the system of rules and these rules are primary which are
pre-legal rules and secondary which are legal rules and the main based of his theory on the
relationship between Law and Society.”
Relevancy of HLA Hart’s Theory
Sir HLA Hart’s theory “concept of Law “is the most important theory of analytical school.
Because this theory tells us about the old age and for the modern age. In the old age there were
primitive society which did not have any legislature, executive and court. Therefore only custom
and usages which were not allowed to change them by any person.
The theory of ‘concept of law’ tells us about the legal world. In the legal world there is a
legislature which makes the rules and these rules are changed or amended by the executive when
it necessary. There are courts which apply the rules on party. So we can say that in modern age
the law is certain not static in character. Sir HLA Hart also gives the place of Morality in his
theory because the moral have an important role in every legal world and these morals are not

9|Page
changed by passing any Act. We can say that Sir HLA Hart theory, “Concept of Law” has the
most important place in the theory of Analytical School.
Conclusion:- Sir, HLA Hart theory Concept of Law have no conclusion because this theory talks
about both the pre-legal world and the legal world which updates and tells us that how the law
comes. So we can opine that such best and usable theory needs no conclusion as it has its self
conclusion. --------------------------

Law and Morality

Morality Play an important role in the development of law. In the ancient society there was no
difference between law and morals. The Vedas and suteras which are the main ancient sources of
law are based upon morals. In the western society also the position was the same. The legal
system of Greek was also based upon the doctrine of natural rights, which was in fact founded
upon morals. So the Roman law also recognised the doctrine of natural law, which was founded
upon morals. In the middle period also morals were the basis of law. In the 17th and 18th
centuries natural law theories become very popular which were also based upon
morals. However in modern times it was only Austin who discarded morals from law. He said
that law is a command of sovereign. But after him there came the Historical School that
recognized morals as the part of law.
Difference between Law and Morals
When the Austin did not give any place to morals in law then there came a question of the
difference between law and morals. Later on the courts tried to make difference between law and
morals. In the modern times there is clear difference between law and morals. In every
developed and civilized society the following are the differences between morals and laws:-
Morals
1. The morals are concerned with individual and are the laid down rules for the moulding of his
character.
2. Morals are mainly concerned with the internal conduct of the nature of a person.
3. The morals are an end in themselves.
4. The observance of morals is a matter of individual’s conscience.
5. Morals are considered to be universal in nature and value.
Laws

10 | P a g e
1. The laws are mainly concerned with the society as a whole and lay down the rules for
relationship of individual with each other and with the state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils end. The justice is achieved.
4 The observance of law is concerned with duty towards the state.
5 Law is concerned only with a particular state and society which differ from place to place &
from time to time.
RELATIONSHIP BETWEEN LAW & MORALS
In the ancient society there was no difference between laws and morals, but in modern times
various theories of law separate morals from laws so many differences as pointed out above
came into picture. In spite of these differences there is a clear relationship between law and
morals. For this purpose it can be noticed from the following three points:-
1. Morals as the basis of law:- In the ancient society morals were the basis of all laws. All the
rules originate from the common sources i.e. morals. The reason behind them was in the form of
supernatural fear. The state picked up those rules which were necessary for the society of the
state. The state put its own sanctions behind their rules and enforced them and these rules were
called laws. The rules for which the state could not ensure their observance wee known as
morals. Thus laws and morals have common origin. We cannot totally separate law from morals.
Queen v/s Dudley: It was held that moral are the basis of law on the ground of morality, it was
not necessary to kill the boy for saving their lives. One cannot take the law into one’s own
hands. The rule is that none has the power/right to take another’s life to save his own.

2. Morals as the list of law:- It has been argued that the law must conform to morals. It means
the law must be based upon morals and it should not be against morals. The Roman law was
based upon natural law and Christian morals and principles say that any law that is against
morals is invalid. The natural law theories were enforcing which were also according to morals.
In the modern times the laws which are not in conformity with morals are not good
laws. However in practice to a great extent law conforms to morals. Laws cannot depart from
morals due to many reasons. The conformity of law with morals is a very important factor even
in the modern times.
3. Morals as the end of Law: - Sometimes morals are considered as the end f law. Justice in its
popular sense is based upon morals. The word used for law conveys an idea of justice and morals

11 | P a g e
in the same area of law. Sociological school says that law always has a purpose. Law is a means
to get the end. This aim of law is to secure social test of law. This can be done properly in the
contest of socially recognize values which are closely related to morals. Thus ultimately morals
become the end of law. In India the legal system is engaged from the personal laws and local
customs. In addition to this there are certain other factors like public opinion, political, ethical,
social and economical ideas which are directly or indirectly under the influence law.
Conclusion: - So morals also have influence to a great extent in the development of law. Morals
also check the arbitrary powers of the legislature. All human conduct and social relations cannot
be regulated and governed only by law. A considerable number of them are regulated by morals.
Thus we can say that the morals are the very important factor in the development of law. Morals
are basis of law. --------------------------

Pure Theory of Law (Law is a normative science)

Hans Kelsen (1881-1973)

Hans kelsen was an Austrian jurist and legal philosopher. He has been regarded as one of the
most important legal scholars of the 20th century. His pure theory of law aims to described law
as binding norms while at the same time refusing, itself, to evaluate those norms. That is ‘legal
science’ is to be separated from ‘legal politics’ central to the pure theory of law is the nation of a
basic norm (Grundnorm) hypothetical norm, presupposed by the Jurist, from which in a
hierarchy all ‘lower’ norms in a legal system, beginning which constitutional law, are understood
to derive their authority or ‘bindingness’ (boundation).
The Pure Theory of Law is given by Kelson. This theory is also known as “Vienna School”
because Kelson is the productor of Vienna University. This theory resembles with Austin’s
command theory because in Kelson’s theory there must be sanction behind law. Austin gave it
the name of command theory and Kelson gave it the name of grandnorm theory. Kelson is
affected by local conditions, natural condition and international condition. After studying all
these conditions he gave this theory of Law, which is known as pure theory of law and
grandnorm theory.
Concept of pure theory of Law: -
At the time of Kelson there are Ist world was which destructed the property of human beings at
international level. So he gave power to the international law and avoiding the destructions of the

12 | P a g e
world. Secondly during that time many countries adopted written constitution. So Kelson also
gets influenced from these written constitutions and gave his own theory which is based on
grundnorms.
Grundnorms
Grand means great and norm means Law, So it means a great law the superior authority from
which law comes out. He compared the grundnorm with written constitution. According to him
written constitution is the highest authority in the country which is known as grundnorms. In
England the Parliament is a grandnorm, in USA written constitution is grundnorms and in India
too written Constitution is grandnorm. State is not above the grandnorm. Sovereignty also liven
in grundnorms. Accoding to Kelson law is a motive nor science, it means science of norms. In
laws only those rules are taken which are related with legal aspects. Any others like moral rules,
religious rules, and ethical rules do not come under the concepts of grundnorm. Here Kelson is
equal to Austin. When he excludes morals relation or ethics from the field of law.
System of Normative Rules:-
System of normative rules was Hierarchy. In hierarchy system there is one highest authority and
all other are lower authorities. This highest authority was grundnorm which was in the form of
written constitution and other authorities are below the constitution. The source of power in a
state for all bodies is written constitution.
International Law: -
Kelson says that norms have a force behind it. This force lies in the grundnorm. If this legal
norm is not obeyed then one person will be punished for it. He also says that at this time
international law is immature. It is in primitive stage. It is developing.
Nature of Grundnorm:- According to Kelson each country has the formation of grundnorm
according to local conditions. The duty of jurists is to interpret the grundnorm in their own
language. They are not concerned with the goodness or badness of the grundnorm. They are not
concerned with the origin of the grundnorm. In this way the grundnorm is the main source of all
the laws in the country.
Elements of Pure Theory:-
Kelson gave his view under this theory about State, sovereignty, public and private law, public
and private rights, international law private and juristic law. Pure theory of law is found by Hans
kelson leader of the group namely Vienna school in Austria. This approach was the result of
reaction against the natural law, school (law ought to be) and analytical law school (law it is).

13 | P a g e
After the declaration of law as command of sovereign there was a need to distinguish between
sovereign/state and law. Sovereign is supreme because he issues the command and law is a
command because it is bound order by the sovereign. But in concept of command there is fear to
follow it so this was the need to remove that fear and a new concept of law which called as pure
theory of law. In Austria a group (known as Vienna school) has established this thought and
Hens keelson was the leader of that group and founder of the pure theory of law. According to
Hans Kelsen there was a part of natural justice in the command theory of John Austin but Austin
ignored the concept of ‘law ought to be’ keelson used the term of ‘Grundnorm’ which was the
centre point for the clarification between law it is and law ought to be.
Feature of Kelson’s theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all laws. Grandnorm is in
the form of written constitution. Any such body, which contains rules, or any such legal
system in a country.
2. No difference between law and state:- Kelson says that there is no difference between
law and State between because they get power from the same grundnorm. Law comes
from the grundnorm and the state also comes from the grundnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a politically superior person
which keeps controls over the politically inferior persons. But Kelson says that the power
of sovereign lies in the people. So the Sovereign is not separate and superior from the
people of the country.
4. No difference between public law and private law:- The public law is related with the
state and the private law is related with the individuals as Kelson says that there is no
difference between public law and private law. The law which creates a contract between
individuals is called private law.
5. Supremacy of international laws:- The main purpose of Kelson was to decrease the
tension at world level because there was Ist world war which destroyed millions of
persons and property. He also said that the international law is in primitive stage or
immature stage. It means it is in developing stage. One day will come when international
law will get equal to that of municipal law. So this is also enforceable.

Criticism of Kelsan’s Theory-

14 | P a g e
 a) Kelson’s said that all the norms excepting the basic norms have no logical bases. According
to Julius stone we are invited to forget the illegitimacy of the ancestors in the administration
of the pure blood of the progress.
b) He excludes all references of social facts and needs of the society. Thus, his pure theory of
law is without any sociological foundation.
c) The theory is found to be based on hypothetical consideration without any practicability.
d) Lastly, law cannot be completely divorced/exclude from ethics and morality which gives it
an honorable place in the society.
Conclusion-
Kelsen has made an original striking and greatly contribution to jurisprudence. He has
considerably influenced the modern legal theory. He has repeated jurisprudence from all the
other social sciences and liberated the law from the metaphysical myth. At all times it have been
speculations of justice or by doctrine of exponent of the jus natural. In short the credit goes to
keelson for devoting a pure theory of law. .-------------------------------

Historical Law School (Customary law)

Introduction:
The historical school of jurists was founded by Friedrich Karl von Savigny (1779-1861).its
central idea was that a nations’ customary law and this approach derived from the Roman law. In
the starting of 19th century there were two results against the natural law (17th & 18th century)
thought. First was analytical thought in England and second was Historical law school in
Germany. Because there was no place for customs and historical development of law in natural
law school also Historical law school was needed in that time. This approach said that law is
found and not made. Law has a national character. In all societies it is found already established
like their languages, manners and political organizations. The law like language develops with
the life of people. Savigny says that laws grows with a nation, increase with it, and dies at its
dissolution and is a characteristic of it.
Causes of Coming of the Historical School
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 Saveginy montasque, Barke, Hngo were
the writers who said that law is the general will of the people or law is based upon common

15 | P a g e
people and the feelings of the common people. Law develops like the language and manners of
the society. So law 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.

Montasoque 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.

Saveginy: - Saveginy is considered as the main expounder or supporter of the historical school.
He has given the Volkgeist theory. 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 nation’s increases
with it and dies with the dissolution of the nations. In this way law is national character.
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.

Friedrich Carl Van Savigny (1779-1861)-

Introduction:
When savigny advent at that time Napoleon’s rule has vanished/finished in Germany and people
were demanding new code of law. Prof Thibaut was leading to do new codification of law.
Supporters of the new codification convinced to 60th legal thinkers (natural law and Analytical
law). They favored the law which is applicable equally everywhere thoroughly. Savigny said that
law is not a result of will of the legislation, but law is the result of internal silently operating
forces. Law depends on the historical back operating forces. Law depends on the historical back
ground and its sources are public faith, customs and common consciousness of the people.

16 | P a g e
Savigny says that law exists by the national spirit and national spirit is volksgeist. Volksgeist is
the important source of law named by the Puchta (student of Savigny). Savigny says that in the
earlier stages law develops spontaneously according to the principle of internal necessity.
The main views given by Savigny as follows-
a) Law is a matter of unconscious and organic growth. So law is found and not made.
b) Law is not universal in its nature like language. It varies with people and age.
c) . Custom not only precedes legislation but it is superior to it. Law should always conform to
the popular consciousness.
d) The common consciousness is represented by lawyers who formulate legal principles.
Legislation is the last stage of law- making, so lawyer/Jurist is more important than the
legislator.
The main features of the Saveginy theory is :-

 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

1. Inconsistency- One side savigny 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.
2. Volksgeist is not the exclusive source of law- Savigny said that popular consciousness is main
sources of law it is not true. Because some time an alien legal system is successfully transplanted
in another country and sometimes a single personality greatly influences a legal system that is
not a popular consciousness.

17 | P a g e
3. Customs not always based on popular consciousness – Many customs are adopted due to
convenience of a powerful minority i.e. slavery. Sometimes customs exists not on the ground of
their righteousness or any conviction. Sometimes customs completely opposed to each other in
different parts in the same country which cannot be said as popular spirit.
4. Juristic Pessimism- According to Savigny legislation must accord with popular
consciousness but in modern time it is wrong because today’s legislation has much power to
make law.
5. Many things unexplained- He does not explained many things which developed by certain
powerful communities that is in India slavery untouchables etc.
6. He ignored the judge made law- Judges has played an important and creative role in the
function of making law but Savigny’s theory has taken this role very lightly.
Conclusion
From the facts mentioned above we have gone behind to see the history of the society to check
that what the position of law in the ancient time was. 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 it is the free will of common people
on which law developed and converted into a set of form of law.

2. Puchta (1798-1856)
Puchta was a great jurist who was countryman as well as student of Savigny/ his ideas are more
logical and improved. He uses the word ‘right’ in the place of ‘law’. Different laws and legal
system develops a national spirit according to language and customs of the nations. According to
him men always lived in unity but people are different by their behavior and unequal. Self
interest causes a conflict between individual will and general will. This brings out the idea of
law. Then state comes into existence. But neither the people nor the state alone is the source of
law. All laws come to existence by Volksgeist. Popular consciousness ties the people in one
community like common language and religion. According to him customary law is the best
expression of national spirit or Volksgeist so custom so custom is superior to legislation.

3. Sir Henry Maine (1822-1888)

18 | P a g e
Maine was the founder of British historical thought for law. He was the law member in the
council of the Governor General of India between 1861 and 1862. He took the ideas of Savigny
but worked more than Savigny in this field. He proofed that sympathy with the historical study is
not the opposition of codification. He accepted that development is not the synonym of the
advancement and change not always for better change. Nevertheless civilization means by
legislation. If legislation does not bring the civilization then this work shall be done by judges.
He believed that judges do this job by less efficiency so he was less confident with judicial
legislation. Maine divides the society in two kinds’ first static/stable society and secondly
progressive society. Both societies go between the different stages of progression.
These stages are following:
1. Law made by the ruler under divine inspiration – In the beginning law was made by the
commands of the rulers believed to be acting under the divine inspiration.
2. Customary law- In the second stage, the commands emerged as customary law.
3. knowledge of law in the hands of priests- The knowledge and administration of customs goes
into the hands of a Minority, usually of a religious nature, due to the weakening of the power of
Original law makers.
4. Codification- Then comes the era of code now law is promulgated in the form of a code I.e.
I.PC.
Theory of Status to Contract
The movement of the progressive societies has been uniform in one respect. Through all its
course it has been distinguished by the gradual dissolution of family dependency and the growth
of individual obligation in its place. The Individual is steadily substituted for the Family, as the
unit of which civil laws take account. The advance has been accomplished at varying rates of
celerity, and there are societies not absolutely stationary in which the collapse of the ancient
organization can only be perceived by careful study of the phenomena they present. But,
whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations
will be found to have been occasioned through the absorption of archaic ideas and customs from
some entirely foreign source. Nor is it difficult to see what is the tie between man and man which
replaces by degrees those forms of reciprocity in rights and duties which have their origin in the
Family. It is Contract.Starting, as from one terminus of history, from a condition of society in
which all the relations of Persons are summed up in the relations of Family, we seem to have
steadily moved towards a phase of social order in which all these relations arise from the free

19 | P a g e
agreement of Individuals. In Western Europe the progress achieved in this direction has been
considerable. Thus the status of the Slave has disappeared - it has been superseded by the
contractual relation of the servant to his mater. The status of the Female under Tutelage, if the
tutelage be understood of persons other than her husband, has also ceased to exist; from her
coming of age to her marriage all the relations she may form are relations of contract. So too the
status of the Son under Power has no true place in law of modern European societies. If any civil
obligation binds together the Parent and the child of full age, it is one to which only contract
gives its legal validity the apparent exceptions are exceptions of that stamp which illustrate the
rule. The child before years of discretion, the orphan under guardianship, the adjudged lunatic,
has all their capacities and incapacities regulated by the Law of Persons. But why? The reason is
differently expressed in the conventional language of different systems, but in substance it is
stated to the same effect by all. The great majority of Jurists are constant to the principle that the
classes of persons just mentioned are subject to extrinsic control on the single ground that they
do not possess the faculty of forming a judgment on their own interests; in other words, that they
are wanting in the first essential of an engagement by Contract.

The word Status may be usefully employed to construct a formula expressing the law of progress
thus indicated, which, whatever be its value, seems to me to be sufficiently ascertained. All the
forms of Status taken notice of in the Law of Persons were derived from, and to some extent are
still coloured by, the powers and privileges anciently residing in the Family. If then we employ
Status, agreeably with the usage of the best writers, to signify these personal conditions only, and
avoid applying the term to such conditions as are the immediate or remote result of agreement,
we may say that the movement of the progressive societies has hitherto been a movement from
Status to Contract.

Conclusion – Law is found and not made. The growth of law is essentially a conscious and organic
process. Legislation is subordinate to customs. Lawyers are more important law making agency then the
legislation because they are formulate the technical legal principles. Law is not of universal validity or
application. Volksgeist (National spirit) is not exclusive but an important source of law.
------------------------------

Natural Law School (Law Ought To Be)

20 | P a g e
Natural law is the oldest school to define law. The natural school approaches the law for absolute
justice it favors the law as Natural law. It defines the law as natural law means those rule and
principles which are applied by the supreme source (not political or worldly). Natural law theory
asserts that there are laws that are immanent in nature and it is closely associated with morality
and, in historically influential versions with the intentions of God. Natural law is sometimes
identified with the maxim that ‘an unjust law is no law at all.’ Natural law school trying to search
the absolute justice from the beginning and in time of searching this school many times declined
by the society but it till remain its existence and regularly effecting the definition of law. Due to
political and social reasons this school made some changes in its opinion.
In short the rules which have come from God or nature are known as natural law. These are also
named as divine law, law of God, Universal law, unwritten law and law of Nature. It’s an appeal
to absolute justice.
Definition of natural law –
Natural law derived from the Latin word ‘lex Naturalis’ is the set of rules and Principles which
are necessary for the peace and security in the human society. These rules are clearly specified
even god can’t decline/oppose/ ignore these rules. Human being naturally accepts these rules.
Natural law is the prudent/discretion dictate by sole and Nature. It presumes that all the natural
rules are ordered by the will of God. In simple words natural law is any system of law which is
purportedly determined by nature, and thus universal. Many jurists have their different opinion
for the law such as some say that these rules have come from God, some find their source in
nature, and other says that it comes from the reasons so these rules given different name. for
example divine law, moral law, law of nature, natural law, universal law, law of God, unwritten
law etc. We may define law in natural law school in 4 classes follows as-
1. Ancient theories
2. Medieval theories
3. Renaissance (Rebirth) theory
4. Modern Theories
1. Ancient theories
Divine will – From the beginning of this school law defines as the divine law means the will of
the nature and God. In ancient times it was presumed that any king or emperor will make their
policies to protect and developed the people of his jurisdiction because this is the will or order of
the nature and God.

21 | P a g e
Greek-
In Greece law developed with the hypothesis/imagination of ‘Justice’. According to Greek view
justice is the way to completion of the will or order of the nature God. Greek jurists defined law
as a universal principle but person in the mind. They were considered that person who speaks
true and conduct according to nature is always intelligent wise of prudent.
Plato –
Law is a civilization or decorum. Laws is the ways by which human trying to develop since the
time of animalism there are two causes for the law first is human does not known that what is the
best way for social life and second is if human understand that way them their personal interest
resistant/retrain him. Plato says that firstly law can apply by induction/instruction but in case of
its failure there can be take the step of spoliation/ sanction. But there is moral duty of human
being to follow the natural law.
Aristotle-
According to Aristotle man is the part of the nature because man is the creature of the God and
men make his will by active reasons. He emphasized law as the pure preachment which is
naturally capable for the betterment/welfare of the human being. He says that law is reason free
from all passions.
Cicero-
Cicero believed that prudence is the dominant in the world. According to him law is compatible
to the nature and much more prudent; it’s universal, unchangeable and external. A law order to
do the duties and it prohibits doing bad work to change the natural is a sin/guilt.
India (Hindu)-
Law is the command of God. A sense of justice is pervades/include in the whole body of law.
Law owes its existence to God. Law is given in ‘Vedas’ and ‘smritis’. The king executes the law
and He bound by it and if goes against this law. He should be disobeyed.
1. Medieval theories-
The main view of this theory is that law is given by the church. These views are more logical and
systematic. Natural law is a part of divine law. Church is the authority who interprets the law.
Saint Augustine –
He believed that positive law (Man made) is always sub-ordinate to eternal law. Undoubtedly
positive law has sanction but this feature also affected by the eternal law (natural law). All
justice receives from the eternal law. The main aim of the eternal law is guide to the misguide

22 | P a g e
people. The essentials of the eternal law give the base of the positive law and these essentials are
unchangeable. People follow the eternal law morally not in the fear of sanction.
Saint Thomas Aquinas divided law in to 4 parts.
1. Law of God means it is will and prudence of God.
2. Natural law means participation of principles of eternal law in prudent people.
3. Divine law means it is a law declare by God for human society which defined in different
religious book.
4. Human laws mean it made by human for the social welfare and development.
3. Renaissance (Rebirth) Theory – During the middle ages the church remained supreme but
this period was the period of scientific development and new ideas. The new political theories
strongly advocated for the sovereignty of the state. In this time rationalism was the way in the
field of knowledge. Now people want to more protection from the state. It gave birth to the
concept of nationalism. State must have full sovereign this view forces overthrow the dominance
of church. These theories proceed with this view that ‘social contract’ is the basis of the society.
Social contract-
From the beginning man lived in the natural state and they had neither any government nor any
law. The men entered into an agreement (known as pactum unionis) for the protection of their
life and property. That is why society came into existence and Government or Sovereign or ruler
came in to being.
Hobbes-
According to Hobbes before the social contract people were living in chaotic state. In natural
state man’s like was in fear and selfishness and it was solitary, poor, nasty, brutish and short, the
man has a natural desire for security and order which can be achieved by establishing superior
authority. He supports the monarchy and he favored for stable and secure government.
According to Hobbes sovereign should be bound by natural law, it’s not more than a moral
obligation.
Locke-
He interpreted the natural law and social contract in a view way. According to Locke the natural
state was a golden age but property was insecure so men entered into a social contract man
surrendered some rights to state for their protection except the natural rights (right to life, liberty
and property) Government/state and law has to uphold and protect the natural rights these laws
are valid but if it ceases to do that its laws have no validity and Government may be abolish.

23 | P a g e
Rousseau –
According to Rousseau social contract is a hypothetical construction of reasons before the social
contract people were living happy, free and equally so they entered into social contract for
preservation of their rights of freedom & equality. So people surrendered their rights not to
individual-sovereign, but to the community namely general will.
According to Rousseau it is the duty to obey the general will by his own will. The state exists
only for the protection of freedom of equality. He says that human is the best but without law
and justice. He become very dangerous to the society and state is the standard source for better
management of human life.
4. Modern Theories (Revival of Natural Law)
In the 19th century natural law theory suffered by decline. The problem was that new changes
and development were demanding practical solution and now historical research social contract’
is a myth. The historical and analytical approaches to the study of law are the new era in this
field so it’s very difficult for the natural law theory to survive. But it revealed in the end of 19th
century because of the importance of positive law pure positivistic approach failed to solve the
problems created by the changed social conditions. World wars increasing insecurity, declaration
of human rights are the major causes to revival of natural law theory. Now the natural law jurists
change their theories in the present century based on practical solution not on abstract manner.
Kohler – (1849-1919) He was under the influence of Hegelian. He defines law as the standard of
conduct which is consequence of the inner impulses that urges men towards a reasonable form of
life. Legal interpretation should not be materialistic. The society in the course of evolution
advances morally and culturally as well. There is not eternal (Undying/timeless) law.
In his book philosophy of law Kohler postulates the promotion and vitalizing of culture as the
end achieved through the instrumentality of law by culture he means the totality of the
achievement of humanity. The assumption of a Law of Nature, a permanent law suitable to all
times is not correct as it involves the notions that world has already attained the final aim of the
culture. The actual fact is that civilization is changing and progression and law has to adapt itself
to the constantly advancing culture. Every culture should have its own postulates of law to be
utilized by society according to requirement. There is no eternal law or universal body of legal
institution; suitable for all civilization what is good for one stage of culture may be ruinous to
another.

24 | P a g e
Dean Pond writes in his book interpretation of legal theory that Koehler’s formulation of the
jural postulates of the time and place is one of the most important achievements of recent legal
science.
Rudolf Stammler:-
Stammler is a neo –Kantian and his philosophical position is summed up in ‘The Theory of
Justice’. According him, “There is not a single rule of law, the positive content of which can be
fixed a priori.” However he emphasizes on the need for the development of a theory of just law
in addition to the investigation of positive law. The content of a given law can be tested with
reference to the theory of ‘Just Law’.
A law in just if it confirms to the social ideal of bringing about a harmony between the purpose
of the individual and society. The Social Ideal is, “a community of men willing freely.” It
requires the maintenance of the proper interests of every associate and the maintenance of social
cooperation. The first requirement leads two principles;
i) The content of volition must not be left to the arbitrary control of another ;
ii) Juristic claim must not subsist.
The second requirement of Social Corporation leads two principles
1) He who is juristically united with others cannot be arbitrarily excluded from community
2) A power of disposition juristically granted cannot be exclusive except in the scene that
one excluded may still remain his own neighbor.
Stammler develop the application of the principles to the important sphere of juristic life under
the section the practice of just law.
He was much more influence by Positive Law. He says that” all positive law is an attempt at just
law” with regard to will and purpose of the law maker should have the proper understanding and
knowledge of actual social world or social reality. Various a time in his concept he inter
changeable used the word will with the purpose and he conclude that it is the will of the people
which enable them to secure their purpose under social reorganization.
Finnis: Finnis also is a very famous jurist of the present century. He has given the definition and
place to natural law. According to Finnis Natural Law is the set of principles of practical
reasonableness in ordinary human life and human community. He sets up the proposition that
there are certain basic goods for human being. Fennis lists them as under:-
a) Life: - The term life signifies every aspect of vitality in good shape for self determination.
b) Knowledge: Knowledge is a process of knowing of unknown with the help of sense.

25 | P a g e
 c) Sociability of Friendship:- Doing something best for the sake of one’s friend’s purposes,
one’s well being.
d) Role: - It is the expression of a status of human being in practical form such role is
protected and recognized by law.
e) Religion: - Question of the origins of cosmic order and of human freedom and reason
expressed thus this view is a good that even an ethicist can value.
f) Practical reasonableness: - This is the logic expression of the ideas and decision in
practical circumstances. This measurement of just or unjust in a real situation.
Despite the merits of Natural Law philosophy it has been criticized for its weakness on the
following grounds. In other words the demerits of the Natural Law may be read as follows:-
a) Moral proposition i.e. ought to be may not always necessarily conform to the needs of the
society.
b) 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.
c) The rules of morality embodied in natural law are not amendable to changes but legal rules
do need a change with changing of the society.
d) Legal disputes may be settled by law courts but disputes relating to moral and law of nature
cannot be subjected to judicial scrutiny.
Main points of Natural law-
1-The principle rule of law (in India & England) of due process (In U.S.A.) are based on natural
law.
2-It has been used to maintain status Quo.
3- These are moral ideals having universal applicability everywhere.
Natural law in India-
India the legal concepts are adopted from England and it was based upon natural law. In
Principles of tort, Quasi contract, justice, equity and good conscience.
Rules of natural law-
1. Nemo-Judex in causa sua- According to this no man shall be judge in his own cases
2. Audi alteram partem- According to this, judge should hear the both sides.
Conclusion
Natural law theory is regularly trying to find the public interest in different conditions of the
society in this journey natural law theory from the divine law comes to the concept of natural

26 | P a g e
person. The main concept is law is “ought to be’. Law should contain the will of God, security,
cultural encouragement public prosperity, social harmony; equality etc. natural law is the
supreme concept of law in which king and people equally bound to follow it. Natural law theory
become for the establishment of state and personal freedom. Basically natural law theory is
moral and reasonable and it deny to rigid distinction in morality --------------------------

Sociological school (Law is an instrument to satisfy social needs and desires)

Sociological approach is the improved combination of pure theory and historical approach.
Rudolf van Inhering was the founder of sociological school of law. The main concept of this is
school is the school is the effect of law and society on each other. This approach takes law as an
instrument of social progress. The sociological school of jurisprudence is the synthesis not only
of various juristic concepts but also of various other disciplines such as sociology, psychology,
political science & economics. The sociological school of jurisprudence studies the
circumstances which create the legal institutions and the relationship between those legal
institutions & other social institutions which condition the scope and the operation of law. It does
not focus on the ethical content of law.
In this school of thought, law is thought of as a social institution which serves collective social
purposes and interests (as opposed to merely serving individual purposes and interests)
Some jurists have suggested that the relationship between positive law and the ideals of justice
should also be studied by this school since it treats law s an instrument of social progress and by
extension. It makes value judgments.
There is necessary to concerned with the relation between positive law and ideals of justice. The
relation between state, society and individual is changing time to time. In the beginning state was
governed by customs and had social sanctions then became supreme by priests and afterwards
state became powerful secular as a reaction the revolutions and political changes now the
necessity of balancing the welfare of the society and individual was realized. This school came in
existence because of inequality after the industrial revolution. We know that law and society has
very strong relation so health, welfare, education, economic developments are the major works
became in the area of state. So, state has now responsibility of social welfare which can be
possible by social thought of law to improve all the fields of social welfare this school argue that
law should be made by judges and state but that law shall be satisfy the social needs of changing

27 | P a g e
society this school defines the unlimited powers of state or sovereign but it approved the positive
role of state in law making.
The main objects of the schools are following:
1. Law is social scenery

2. Law is not unique but only one norm to control problems

3. The socio-economic problem of the present time cannot be solved by means of the
existing laws.

4. The laws in the books and statutes containing formal rules, legislations and expositions
of particular subject is not where the real law in society is to be found.

5. . The law is not an absolute and static body of rules in themselves but is relative to time
place and society.

6. There is such a thing as ‘social justice’ However, views differ greatly as to what
constitutes social justice and the achievement thereof.

7. . This school emphasized on the social justice but there is controversy between jurists
about the way to achieve social justice.

1. Rudolf Von Ihering (1818-1892)

Ihering was the traditional member of the German historical school and studied but after deep
study he learned that the emergence of law for the social facts. Interest is the base of right. He
rejected the view of the historical school and developed Austinian positivism and combine with
principles of utilitarianism. Thoughts of Ihering are following.
 He stated that the origin of law is the result of constant struggle not easily or peacefully.
Law emerges for the social purpose.
 According to Ihering the individual acts in order to attain something. In every society
there were individual interests as well as group interests. There was also the interest of
the society.
 In the hierarchical position of animals, the man as a social animal enjoys a higher and
more influential position than most. In this regard, the cases of conflict of interest’s vis-à-
vis individuals and between the individual and society can be resolved in a logical
progression with the interest of society.

28 | P a g e
  Law is not unique way to control social organism. It cannot protect and satisfies the
social purposes alone. Law is the only one factor among many other.
 Law is the combination of rules which secures the conditions of social life by state
through coercion.
Criticism of Ihering’s approach-
He fails to provide a scale of values for achieving h is conflict between the ideas of interest and
purpose. He gave very little insight into how this balance could be achieved through observation
and prediction. Some scholars posit that Ihering’s concerned in the origin of laws rather than in
its application. He points out only the problems but not given the solutions for that. Some jurists
says that law protects the ‘will’ not protects the ‘purposes’.
2. Leon Daguit (1859-1928)-
Leon Duguit was the great French scholar and inspired by Durkheim. In Duguit’s view, the state
was not a mythical sovereign inherently superior to all its subjects or even a particularly
powerful legal person, but merely a group of people engaged in public service, the activity
constituting and legitimizing the state. He made a distinction between tax kinds of needs of men
in society. Firstly there are common needs of individual which are satisfied by mutual assistance
and secondly there are diverse needs of individuals which are satisfied by the exchange of
services. Therefore the division of labor is the most important fact of social cohesion. He named
it ‘social solidarity’ with development of free individual activities the ‘social solidarity’ develops
and this fact is necessary for social life.
Duguit’s theory: Social solidarity

The theory of Duguit under sociological school is a social solidarity. Social solidarity means the
greatness of society. Duguit said that there are mainly two types of needs of the society:-
1. Common Needs
2. Adverse Needs.

 Common Needs: - Which are fulfilled by mutual assistance.

 Adverse Needs: - Which are fulfilled by the exchange of services. No one can live
without the help of other. Even a state cannot exist without the help of other state. One
cannot produce all things required for him. So he has to depend upon others. The
dependency is called social solidarity. For this purpose the division of labor is

29 | P a g e
 necessary. Division of labor will fulfill all requirements for the society. This philosophy
or views is called social solidarity.

Essential elements of Duguit Theory of Law

 Mutual Inter dependence : In society all persons are depending upon each other.
Individual cannot fulfill his ambitions alone.
 No difference between state & society: State and society are a group of persons. Main
purpose of the society is to save the people. This responsibility is also lies upon the state.
So state does not have a special status or above status from people. State should make
law for the welfare of the people.
 Sovereign and will of people: Sovereign is a politically superior person. Duguit says that
sovereign is not superior to people. The sovereign of a state lives in people or in the will
of people.

Difference between Public & Private Law

Duguit says that there is no difference between public law and private law because the aim of
both the law is to develop the social solidarity. Pubic law and private law are meant for people.
Public right and private right or people have only duties and not any right. There is no difference
between public right and private right. According to Duguit there is only one right that is to serve
the people. It means person have only duties not rights.

Criticism of Duguit’s Theory

 The theory of social solidarity is vague: - This theory is not clear for a common person.
One cannot gain anything from this theory so this is vague theory.
 Who will decide social solidarity: - Duguit has not given the authority that who will
explain the solidarity because Duguit did not recognize sovereignty. We can imagine that
Judge will explain the standard of social solidarity. But there are no guidelines for the
Judges
 Public law and Private law are not same: - There must be an authority which passes the
law. In Duguit theory there is no place for such authority.

30 | P a g e
  Public right and Private right are also not same: - The right of society is public right
and the right of common people is private right.
 Custom ignored: - Custom is the base of any law but Duguit ignore these customs. In
this way the theory of Duguit is not suitably in modern times.
Conclusion
No doubt Duguit was a sociologist because he gave a lot of development to society. The social
solidarity itself contains the welfare of the people. Duguit said that law should be according to
the social solidarity. Here he discards natural principal but the theory of the social solidarity
itself is based upon natural law, which demands that the people should served properly according
to their needs. In this way Duguit put out the natural law principal from the door and accepted
through the window. However the contribution of Duguit is accepted by many writers and some
of them also adopted this theory.

3. Roscoe Pound (Social Engineering theory)

Roscoe pound (1870-1964) was an American legal scholar and educator. Pound is American
leader in field of sociological Jurisprudence. He is the most systematic writer on sociological
school. He was den of Harvard law school. Pound’s theories lay in the search for the solutions to
the problems of American society at the time. His studies believed in suing the knowledge of the
social sciences as on instrument of bringing about social change. This change was grounded on
control, adjustment of social relations and general troubleshooting. He believed the society must
be made as a prelude to the making, Interpretation and application of laws. According to pound
the purpose of law is to order social relation and satisfies the wants and desires of the society.
This target could be achieved by only constant and consistent study of society. This theory is
called as ‘Doctrine of social engineering.’
Social Engineering –
The social structure demands the maximum satisfaction with minimum friction and waste just as
a civil engineering makes building dams etc. as good as possible with minimum wastage. Law is
a social instrument to satisfy social wants, the claims and demands involved in the existence of
civilized society. Pound tried to study legal history to know the changing demands of the human
as well as society. Because pound said that after the knowledge of legal history human can
satisfies and securing the social interests, claims desires etc. through social control. It is

31 | P a g e
efficacious social engineering. Social engineering means a balance between the competing
interests in society. The jurist must work with a plan. He should study the actual social effects of
legal institution and legal doctrines, study the means of making legal rules effective, sociological
study in preparation of law, making, study of judicial method, a sociological legal history and the
individuals cases.
In short social engineering is the method to balance the interests of each individual. Pound
defines on interest as a demand, desire or an expectation which human beings either individually
or as a group seek to achieve. He went further to classify these interests into:
Individual interest-
The ‘individual interest’ is the claims, demands, desires and expectations that are purely
individualistic in nature. As such, individual interest could be said to be an interests of substance,
personality, domestic relations, honour reputation, privacy, physical person, belief opinion and
so on.
Public interest-
‘Public interest’ refers to the claims, desires or expectation of the individual looked at from the
stand point of the state an example is property acquired by the state.
Social interest-
In ‘social interest’ most of the issue stated under individual life is the same except that this is
held in a social context. Also, there is the social interest of state in the general health etc. of
society. There is also the social interest in morals, religion and so on. The object of the exercise
is to balance these interests against each other by the jurists. However, there may be difficulties
when interests of different classes are in conflict e.g. the individual interest against public
interest this ‘balancing ‘has mostly highlighted the fact that law was a potent instrument for
social progress and this is called social engineering.
Criticism of pound’s theory-
- Pound’s analogy of engineering has been said to be inept. This is because engineering
was done with skilled ambience and it was possible to predict waste and stress as well as
the quantity. This was not the case with law. At any rate, law and society changed too
consistently for such a description.
- He assumed that interests were there for the law to recognize and protect. This is untrue
as a lot of the times. It was the law courts that created the interest for the first time.

32 | P a g e
 - The determination of interests cannot be done in mathematical form. It only depends on
the standard with which the interest is determined.
- Balancing interests in law is not the same thing as balancing two objects.
Theory of ‘social engineering’ stands on a practical ground and inspired a great practical field
works His emphasis on studying the actual working of legal rules in the society. He pointed out
the responsibility of the lawyer, the judge and the jurist and guides a comprehensive picture of
the scope and field of the subject. ----------------------------------
Realist school (Judge made law)
Legal realism is a school of legal philosophy that is generally associated with the legal thought in
the United States and it is based on judge made law.
Justice Oliver Wendell homes were the main follower of his school. Legal realism was a view
popular with some Scandinavian and American writers. Legal realism is its challenge to the
classical legal claim that legal reasoning was separate and autonomous from moral and political
discourse. This movement named realist because this approach study law as it is in actual
working and its effects. It rejects traditional definition of law. It demonstrates the law is judge
made and judicial discovered. Sometimes it may be called as a branch of sociological
jurisprudence but it differs from the sociological school because it’s little concerned with the
ends of law. The law should be understood and determined by the actual practices of courts, law
offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned
treatises. The essential tenant of legal realism is that all law is made by human beings and thus, is
subject to human foibles, frailties and imperfections. There are some reasons for emergence of
this approach:-
1. It is established as a reaction against sociological jurists who were emphasizing the social
effects.
2. It was established to ignore the ‘theory of interest’ as propounded by the Ihering and the
theory of ‘social engineering’ given by pound.
3. To point out the importance of courts and importance of judge the humor factor in the judge
and lawyer. The most important factor is seems to have led to the realist school is the
organization of judiciary in United States. . Realist approach is influenced by the pragmatic
philosophy which origin in America.

33 | P a g e
Origin of the thought- Holmes and Gray are two great jurists in whom the virtues of realist
approach are obtained. According to Gray, law is what the judges declare.
Object of Realist approach-
1. Law is a flowing material which derives from the court of law
2. Law is an instrument for achieving the social targets so law is not a target itself.
3. Social progress should faster according to progress in law.
4. Realist tried to temporary separation between ‘law it is’ and ‘law ought to be’ to study law.
5. Realists want to conclude the effect of the law.
6. Realists emphasizes to strong, proper and planned attack on legal problems.
Oliver Wendell Holmes, Jr. (1841-1935) was an American jurist and john chip man Gray
(1839-1915) was also an American scholar of property law and professor at Harvard law school.
They were great jurist with realist approach.
Gray has defined law as ‘What the judges Declare’; He emphasized the fact that the personality
and the personal views of a judge play an important role in decisions.
According to Holmes- We must look at ‘law in action’ as opposed to the doctrinal analysis of
‘law is books’ He argued that law is a system of reasons because of deduction from principles of
ethics. The theory is the most important part of the dogma of law. The study of law is a rational
system which is based on history. Thus it is very necessary for judge as well as lawyer to know
the history of law and after that law should be interpreted by the court.
Jerome Frank-
Jerome Frank (1889-1957) was a legal philosopher who played a leading role in the legal realism
movement and a judge of the United States court of appeals. His work presents a very close
examination of judicial process and is full of practical illustration. According to frank law is
what the court has decided for particular facts. Lawyer gives only the idea to the courts but
unless the court will not decide the matter that idea cannot be a law. Law is uncertain and
certainty of law is a myth. It’s not right /proper for the lawyers and judges to follows the myth of
legal certainty in the name of ‘precedent’ because the facts of every individual case are different.
So, he argued that there should be a balance to develop the law in consonance with the
advancement of civilization.

Karl Llewellyn

34 | P a g e
Karl Nickerson Llewellyn (1893-1962) was a prominent American jurisprudence scholar
associated with the school of legal realism. According to Llewellyn realism means a movement
in thought and work about law. It is a duty of jurists to examine how the law meets contemporary
social problems ;for the purpose of study, realism makes a temporary separation between ‘is’ and
‘ought’ it means that what the law is and how it works. He concentrates more on what courts and
people are actually doing.
Llewellyn has given some following characteristics of realist movement-
1. There is no realist school, realism means a movement in thought and work about law.
2. Realism means a conception of law and any part of the law is to be examined for its purpose
and effect.
3. Realism assumes a temporary divorce of the ‘is’ and ‘ought’ for the purpose of study law. It
means examine that what the law is and how it works.
4. Realism distrusts traditional legal rules and concepts.
5. Realism emphasized on the evaluation/calculation of the effect of any parts of the law.
Economic interpretation of laws
Function of judiciary is interpretation of law. Judicial activism is a dynamic process of judicial
outlook in a changing society.
According to Black law dictionary- Judicial activism is a judicial & philosophy which
motivates judges to depart from the traditional precedent in favor of progressive and new social
policies.
In recent years, law making has assumed new dimensions through judicial activism of law
courts. The judiciary has adopted a healthy trend of interpreting law in social content. Hitherto,
the rigidity of the locus standee rule deprived the poorer sections of the society from approaching
the courts for enforcement of their fundamental rights against the rich and affluent class of
society. Now the public interest litigation has liberalized the locus standee rule to such an extent
that it has opened new vistas for the redressal of social problems. It must be stated that the
strategy evolved through judicial activism has come to be known as ‘public interest Litigation’ in
western countries though Dr Upendra Baxi, prefers to call it as social action litigation for the
reason that the problems which are brought before the courts under pubic interest litigation relate
to a much wider spectrum of social justice needing extra ordinary remedy to undo them. Some of
the problems effectively tackled through pubic interest litigation write relate to convicted
prisoners and under trials Bounded laborers, unorganized workers pavement dwellers,

35 | P a g e
environmental pollution, personal liberty, atrocities on women and inhuman treatment of
children etc. The public interest activists demand extra ordinary remedies through ‘Public
interest Litigation’ writs without seeking recourse to conventional lawyering or the adversarial
court procedure.
Origin of Public interest litigation-
Public interest litigation originated from united state where it has been firmly established around
1965. In England, it started in the name of citizen action wherein any citizen could file a write
against public authorize for the cause of common man. In India, the beginning of public interest
litigation jurisprudence is reckoned from late seventies when locus standee rule was given a
decent burial in the famous Judges Transfer case, in this historic case justice Bhagwati, inter alia
observed.
‘where a legal wrong or legal injury is caused or threatened to a person or determinate class of
persons and such person or determinate class of person is by reasons of poverty, helplessness or
disability of socially or economically disadvantaged position, unable to approach the court for
relief, any member of the public can maintain an application for an appropriate direction, order
or writ in the High court under article 226 and in case of any fundamental right of such person or
determinate class of persons, in this court (i.e. the supreme court) under article 32 seeking
judicial redress for the legal wrong or injury caused to such person or determinate person.’
The public interest litigation has now come to stay as a major strategy for justice to weaker
segments of society. It’s not only confined to fundamental rights but also seeks to redress any
legal wrong or injury actually caused or threatened.
Epistolary jurisdiction of the Supreme Court and the high court’s has added new dimensions to
the scope of public interest litigation in India. Under this jurisdiction even ordinary letters and
newspaper cutting have been treated as writ petition and the courts have initiated suo motu action
against the erring authorities. The judges of the Supreme Court, notably justice P.N. Bhagwati
and justice Krishna Iyer championed the cause of judicial activism to promote social justice by
liberalizing the locus standee rule.
Social and Economic Justice
The constitution of India, in its preamble speaks of justice – social economic and Political the
principles of equality before law or equal protection of law contained in Article 14 impose an
obligation on the state to provide even handed justice to all alike. Article 39-A inserted by
constitution (42nd Amendment) act, 1976, provides for legal aid and assistance to poor and

36 | P a g e
indigent litigants the purpose of these constitution mandates (Art 41 of the constitution also
directs the state to make public assistance in cases of unemployment, old age sickness etc.) is to
protect the neglect and down trodden poor and indigent against the onslaughts of the more
powerful and elite section of society and provide them an opportunity of getting justice through
free legal aid cells. In other words, No one should be deprived of his right to move a court of law
because of poverty or any other social disability.
The origin of the concept of legal aid can be traced back to the historic magna carta of 1215.
Thereafter with the subsequent socio economic developments, many welfare schemes were
introduced. Free legal aid to poor and down trodden to provide them access to justice was also
one of the social service oriented schemes which received attention of legal luminaries. A
resolution was passed by the human rights conference held in Tehran in 1968 under the auspices
of the United Nations which emphasized the need for free legal aid and assistance to poor and
indigent for the protection of their human rights and safeguarding their fundamental freedoms.
The legislation for free legal aid and assistance to poor and indigent persons also existed in
United Kingdom as early as 1948.
Article 14(3) of the international convenient a civil and political right provides that right to legal
counsel is an integral part of guaranteed civil right. Taking inspiration from these efforts of the
united nation many western countries established legal aid clinics to provide legal assistance to
the needy poor. An international legal aid association was also established for this purpose. Some
countries set up conciliation board to mitigate the rig ours of adversarial litigation.
In India, the beginning of the legal aid movement can be traced back to the appointment of
justice Bhagwati committee by the government of Bombay in 1949 to examine the feasibility of
providing free legal aid to indigent and socially disabled persons. The committee made important
recommendations and pointed out that the provision relating to pauper suit contained in order 33,
rule 1 of C.P.C. Were inadequate to meet the requirements of the poor litigants as they only
provided exemption from the court fees and not the other legal expenses in a suit.
The Government of India, in 1952 directed all the state governments to provide legal aid and
assistance to all those under trials whose offences were punishable with imprisonment exceeding
five years. In view of the apathy shown by the state government in this regard the centre issued
similar directive again in 1958.
The law commission in its 14th report of the law commission of India emphasized the need for
setting up legal aid agencies all over the country to redress the economic inequalities and provide

37 | P a g e
assistance to indigent litigants. On the basis of this report, an elaborate legal aid scheme was
drafted in 1960 and was sent to the states for their consideration. The states however, expressed
their inability to adopt the scheme for financial reasons. The matter was raised in the conference
of the law ministers of the states in 1962 but to no avail. The schemes therefore, remained in cold
storage for the next eight years.
The legal services authorities act, 1987 is intended to avoid law’s delays and enable people
participation in judicial administration through Lok adalats which in a sense is an expansion of
public interest litigation in rural areas. It has helped speedy disposal of family disputes, divorce
cases, motor accident claims insurance cases in shortest possible time.
Lok adalats are morally obliged to ensure that compressions forming the basis of their decision
are founded on solid principles of justice and parties do not suffer injustice in the populist wake
of getting the dispute settled on account of their innocence or ignorance. In the working of a Lok
adalat the public opinion (Lok) aspect and the through deliberation (Adalat) aspect should be
judiciously blended and balanced, especially in view of the fact that the decision of Lok adalat
are non appeal able.
Section 20 (1) of the legal service authority act, 1987 provides that the court in which a case is
pending may transfer it to lok adalat for settlement when the parties to the case have made a joint
application indicating their intention to compromise the matter.
The supreme court in its historic decision in Hussainara Khatoon Vs state of Bihar which was
followed by a subsequent decision in Kadra Phadia Vs state of Bihar observed that free legal aid
and assistance is a right implicit in the mandate contained in Art 21 relating to protection of life
and liberty of persons section 110 of the code of criminal procedure provides that a magistrate or
a judge is under an obligation to provide a defense council to the accused in pursuance of the
mandate contained in article 21 of the constitution. In its decision in M.H. Haskot Vs state of
Maharashtra the supreme court interpreted the constitutional provision contained in Art 14, 19
(g), 21 and 22 in such a way that they may create awareness among the people about the urgency
of legal aid to poor and indigent persons. The court laid down the following guidelines for legal
aid and assistance to the convicted persons or those who’s right to life or personal liberty is
seriously jeopardized –
1. A copy of the judgment should be made available free of cost to the accused who is sentenced
to a term of imprisonment. The copy should be made available to the convicted person soon after
pronouncing the judgment.

38 | P a g e
2. The jail administration must make adequate arrangement for providing legal assistance to the
prisoner who wants to file an appeal or a review application against his conviction.
3. The court should make the services of a lawyer available to an accused that is unable to
engage a legal counsel due to poverty or paucity of financial resources.
4. The legal counsel so appointed for the help and assistance of the accused should be paid
adequate fees by the state.
The public interest litigation, the legal aid scheme and Lok adalats, token together have brought
about revolutionary changes in the Indian legal system. They have transformed the concept of
social justice into a reality in the Indian society. In the welfare state of today, individual action
has been closely subjected to state control. Distributive justice require that each one in the
country should receive justice in an even handed manner justice is the principal and legitimate
end of law and the law cannot command respect if it is divorced from justice. This is the cardinal
principle and philosophy underlying any ideal judicial system. This purpose shall be
accomplished if our law courts strive to dispense justice within the framework of the general
welfare of the people as a whole.
The main object of the institution of Lok adalat is amicable settlement of disputes between the
parties by mutual consent and to ensure speedy disposal of cases with minimum procedural
formalities as justice P.N. Bhagwati formerly the chief justice of India rightly observed. ‘Until
now the litigation parties had to bang the doors of law courts for justice, now under the lok adalat
system, the justice is taken to the doors of the parties.
Presently, Lok adalats are functioning successfully in the state of Maharastra, Gujarat, Kerala,
Andhra Pradesh, Madhya Pradesh, Delhi etc. These adalats dispose of a variety of cases
including civil, criminal, and matrimonial and maintenance cases. The cases involving land
revenue disputes and motor accidents are also speedily disposed by special Lok Adalat held for
this purpose. -----------------------------
Marxist Theory of Law
Karl Marx and Friedrich Engels
Both of them are considered to be the founders of the greatest social and political movement
which began in 19th century and flourished in 20th century as a political philosophy in Eastern
Europe which is the erstwhile Soviet Union and influenced all the decolonized colonies of the
world. Tenets of their ideology are practiced in China’s Political Philosophy.

39 | P a g e
Marx’s view of state and law was co-terminus with the understanding of society and social
process. Marx’s originality of thought lies in the fact that he synthesized almost entire
philosophical thought from Aristotle to Hegel.

The sociological understanding of the society led Marx to pronounce that the desired system
should be a Communist Society based on rational planning, co-operative production and equality
of distribution and most importantly, liberated from all forms of political and bureaucratic
hierarchy.
Marx condemned and rejected the state and money as Bourgeois concept. He believed that the
proletariat has a historical mission of emancipating the society as a whole. For him, law seemed
to be nothing more than a function of economy without any independent existence.
Following is his classification of society into various classes:
1. The capitalists
2. The Wage Labourers
3. The land owners
He said that the conflict between various classes of the society will eventually have to be
resolved. The resolution of the conflict will take place in the shape of a Proletarian revolution.
Once this revolution takes place, it will seize the power of the state and transform the means of
production in the first instance into State property. The earlier state of exploitation and
representative of class antagonism will be replaced by a state truly representative of society as a
whole which means taking possession of means of production in the name of society. This would
be at the same the last independent act of the State.
The interference of the State in social relations becomes superfluous in one’s sphere after a point
of time and then ceases off itself. The government of persons is to be replaced by a different
administration that would direct the process of production. However, the Proletarian revolution
in order to reach the stage of Communism shall have to pass through various stages.
a) . Establishment of a Proletarian Dictatorship which is essential to convert the capitalist
modes of production into the Proletariat mode of production.
b) Stage of Nationalization of the property and all the capital modes of production.
c) Stage of Socialism as the property is in common ownership, the society at large shall be
responsible for the production and distribution of goods.

40 | P a g e
The production of goods in common ownership, the distribution of commodities will have to
follow “from each according to his ability to each according to his needs”.
However, inequalities will remain and hence, the need to distribute the goods will become
inevitable. The ultimate stage is that of Communism and this state he imagined in his work.

He said that the Communist society will have to develop and emerge from capitalist society and
in respects, it is bound to carry with it some marks of capitalist society.
“Accordingly the individual producer will receive back what he gives to society, after
deductions for government, education, and other social charges. He will give society his
individual quota of labour. For example: the social working day consists in the sum total of
individual working days; the individual labour time of the individual producer is the part of
the social working day which he contributes; his share thereof. He will receive from society a
certificate that he has performed so much work (after deducting his work for social funds),
and with this certificate he will draw from the social provision of articles of consumption as
much as a similar quantity of labour costs. The same quantity of labour as he will give to
society in one form he will receive back in another.... The right of producers will be
proportionate to the work they will perform: the equality will consist in the application of the
same measure: labour." Higher Communist State- Concept of power and labour gets
vanished. After production force increases, then there will be all round development of
individual. This we get from “Communist Manifesto”. In higher form of communist state after
enslaving subordination of the individual to the division of labour and anti-thesis between
mental and physical labour has vanished after labour has become not only a means of life but
life’s prime want, after the productive forces have also increased with the all-round
development of individual. And all the springs of the co-operative wealth flows more
abundantly”.
He further believed that the concept of state is a super structure in a capitalist state to organize
and uphold class oppression. The bureaucracy and the executive in a state are for the managing
common class and struggle waged by the society against each other. Law is not based on will but
once the bourgeois state is overthrown by a proletariat, the proletariat state would come into
existence. This state would be representative of social will of all the classes. The nexus between
safeguarding the private property by a capitalist state will be replaced by a proletariat state which

41 | P a g e
has nationalized all the private property. However, it is interesting to note that the state and
statecraft remains an important and integral in the proletarian society.
Evgeny Pashukanis
He tried to remove the gloss on law and Marxism as experimented by the Marxist state. He
believed that proletariat law practised in erstwhile Soviet Union needed alternative general
concepts to reinforce Marxist theory of law. He believed that power is collective will as the ‘rule
of law’ realized in the bourgeois society is to the extent that the society is represented by a
market.
Karl Renner
He authored “The institutions of private law and their social functions”. This work of his utilized
the Marxist theory of sociology to develop a separate theory of law. He believed that the
Socialists and Marxists have failed to understand that new society as such societies have pre-
formed in the womb of the old and that is equally true for law as well. According to him, the
process of change from one given order to another is automatic.
Renner confessed that the concept of property in terms of Marx has not remained the same today.
The property whether in socialism and capitalism has not remained an instrument of exploitation
rather the natural forces of change have put property into various restrictions be it tenants,
employees or consumers. However, he also said that the power of property remains whatsoever
the political character of the state may be.

42 | P a g e