JURISPRUDENCE and THEORIES OF LAW

1. Nature and Scope of Jurisprudence

Jurisprudence, at its core, can be defined as the systematic and theoretical study of law.
Unlike traditional legal studies that focus on the interpretation and application of statutes and
cases, jurisprudence transcends the boundaries of black-letter law. It seeks to explore the
fundamental principles that underlie legal systems, investigating the nature, origin, and
purpose of law itself.

2. Analytical School
Analytical School of Jurisprudence is a significant school of thought in jurisprudence. It was
Austin who played a key role in developing this school, which aims to explain law by
examining its nature, purpose, characteristics and functions. This school traces the history and
philosophy of evolving human ideas regarding law.

3. Historical School
Historical School of Jurisprudence relies on the customs and habits of people, which change
as their needs change. It’s also known as the Continental School of Jurisprudence.

The Historical School rejects the idea that judges create laws or that laws have a divine origin.

4. Hart’s Concept of Law

H.L.A. Hart, building upon Austin's positivism, introduced the concept of legal positivism in
his influential work, "The Concept of Law." Hart defined jurisprudence as an analysis of the
concept of law, differentiating between primary and secondary legal rules. Primary rules,
according to Hart, guide human conduct, while secondary rules empower individuals to
create, modify, or extinguish primary rules.
Hart's jurisprudential perspective introduces a nuanced understanding of the rule of
recognition and the internal and external perspectives of legal officials. The idea of legal
systems as a union of primary and secondary rules provides a framework for analyzing the
complexities of legal phenomena. , engaging with Hart's definition encourages a deeper
exploration of the interplay between legal norms and the mechanisms that sustain legal
systems.
5. Normative Jurisprudence
Normative jurisprudence involves prescriptive, evaluative, and otherwise prescriptive
questions about the law. Here we will examine three key issues: (a) when and to what extent
laws can restrict the freedom of citizens, (b) the nature of one's obligation to obey the law,
and (c) the justification of punishment by law.

6. Kelsen Pure
According to Kelsen, laws are scattered in the society which creates ambiguity in the source
of the law. There are a variety of laws and regulations which have created inequality among
the class. There is a kind of confusion in the legal system. Therefore, Kelsen went to develop
his pure principle of law to achieve uniformity.

According to him a theory of law should be uniform. It should be applicable at all times and
in all places.

7. Savigny
Savigny law is the embodiment or representation of Volksgeist- meaning that it is the pure
spirit of the nation or soul of the people. Customs and Usages were the true spirit of the
people and law must be discovered from such Customs and Usages.
 8. Contribution of Henry Maine
Maine made a comparative study of legal institution of various communities and laid down a
theory of evolution of law. His method was a great improvement upon historical school and
yielded fruitful results. Maine mad every valuable contribution to legal philosophy by way of
historic comparative method.

9. Duguit's Social Solidarity

Duguit's Social Solidarity explain the interdependence of men on his other fellow men. No.
one can survive without depending on other men. Hence the social interdependence and
cooperation are very important for human existence. The objective of the law is to promote
Social solidarity between individuals.

10. Pound Social Engineering

Pound was one of the greatest leaders of sociological school of jurisprudence. He introduced
the doctrine of “Social Engineering” which aims at building an efficient structure of society
which would result in the satisfaction of maximum of wants with the minimum of friction and
waste.

11. Theories of Natural Law

Natural law is the moral theory of jurisprudence and often states that laws should be on the
basis of ethics and morals. This law also states that law should focus on what is 'correct'. In
addition, natural law was found by humans on their disposition of reasoning and choosing
between good and bad.

12. History of Natural Law

It is believed that the Greeks were the first Ancients who discovered the concept of natural
law and developed its essentials. At that time in Greece, there was no political stability which
made jurists think to develop new universal principals that would tackle and control the
arbitrariness and tyranny

13. Transcendental idealism

“Transcendental idealism”, which emphasizes a distinction between what we can experience
that is natural observable world and what we cannot that is “supersensible” objects such as
god and the soul.

14. Social Contract Theories

Social contract theory says that people live together in society in accordance with an
agreement that establishes moral and political rules of behavior. Some people believe that if
we live according to a social contract, we can live morally by our own choice and not because
a divine being requires it.

15. Period of Renaissance

It is marked by rationalism and the emergence of new ideas in different fields of
knowledge. In the period of the Renaissance there were many philosophers propounded their
theories but mainly Hugo Grotius, Thomas Hobbes, John Locke, Jean Rousseau and
Immanuel Kant were propounded natural law theory in the best way.

The Renaissance was a fervent period of European cultural, artistic, political and economic “rebirth”
following the Middle Ages. Generally described as taking place from the 14th century to the 17th
century, the Renaissance promoted the rediscovery of classical philosophy, literature and art.
16. Fuller and Morality of Law
Lon Fuller's jurisprudential outlook, presented in "The Morality of Law," diverges from the
positivist tradition. Fuller focused on the inner morality of rules, emphasizing the importance
of legal principles aligning with human morality. He defined jurisprudence as the study of
legal principles and the ways in which they contribute to the moral order of society.

For a student delving into jurisprudence, Fuller's perspective prompts an exploration of the
ethical dimensions of law. The emphasis on the moral content of legal rules encourages a
critical assessment of the justness and fairness of legal systems. Fuller's definition challenges
students to consider the role of morality in the formulation and application of laws, adding a
layer of ethical complexity to the study of jurisprudence.

17. Grotius & Internation Law

Hugo Grotius reacted to the destruction of Thirty Years War (1618-1648) by advancing a
rival solution to the problem of war. In 1625, Grotius authored De jure bellis ac pacis (Law of
War and Peace) which made a great impact on European affairs. For this work Grotius is
called the father of public international law. In his treatise, Grotius called upon the great
powers to resolve their conflicts by judicial procedures, rather than on battlefield and
specified the legal principles he felt would encourage co-operation, peace and a more humane
treatment of people.

18. Philosophical School

Philosophical School. The philosophical or moral school concerns itself mainly with the
connection of law to specific thoughts which law is intended to accomplish. It tries to explore
the reasons for which a particular law has been established. It isn't related to its recorded or
scholarly substance

19. Social School

The Sociological school of Jurisprudence advocates that the Law and society are related to
each other. This school argues that the law is a social phenomenon because it has a major
impact on society.

The idea of Sociological School is to establish a relation between the Law and society. This
school laid more emphasis on the legal perspective of every problem and every change that
take place in society. Law is a social phenomenon and law has some direct or indirect relation
to society. Sociological School of Jurisprudence focuses on balancing the welfare of state and
individual was realized.

In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of
legal development lies not in legislation, nor in the juristic decision, but in society itself. ”

20. American and Scandinavian Realism

The Realist School of Jurisprudence can be divided into 2 categories for ease of
understanding, namely the-

a. AMERICAN School
b. SCANDINAVIAN School

AMERICAN School
This Realist movement was largely characterized by two major ideologies-

 Law needed to be considered prima facie or on its face value.

 Law needed to be accepted as the culmination of several elements.
American Realist movement gave a greater focus on legal principles, rather than
controversial facts, all of which were beyond the point of adjudication. The Realist
movement of American School was important because it had an approach beyond legal codes
and systems, and extended to social and cultural approaches.

SCANDINAVIAN School
Professor Dias, a jurist, believed that there was no “School” of Scandinavian Realism because
members of this school of thought have far-reaching ideas. They believed that law cannot be
delineated through physical facts alone and subsists through psychological results based on
certain facts.

Scandinavian thought proponents were against any metaphysical speculation regarding law
and were more concerned with the general investigation of the fundamental facts of the
existing legal system.