Schools of Jurisprudence

• Legal thinkers have used different expressions to

indicate the broader classification of legal science.
Some jurists have used the term 'jurisprudence'
whereas other jurists have termed them as 'schools of
law'.
• ‘School of law' is a more popular expression.

• Some legal thinkers have also used the term ‘theory’.

• The most popular division of different schools of law is
as follows
1. Natural law School
2. Analytical School (Imperative school)
3. Historical School
4. Sociological School
5. Philosophical School
6. Realist School
These schools reflect the development of law at different
stages.
 Natural Law School
• Natural law is that law, which is inherent in the nature of
man or society, is independent of convention, legislation
or other institutional devices.

• Blackstone said, “This law of nature, being as ever with

mankind and dictated by God himself is of course superior
to any other; it is binding over all the globe in all countries;
no human laws are of any validity if contrary to them and
such of them are validly derive all their force and all the
validity mediately and immediately from this original law"
• Dr. Kotaro Tanaka (Sketch of Theory of World Law 1954,
p. 5) said, 'The idea that affirms the existence of
common principles among the people belonging to
diverse nations, races and classes is that of the school
of natural law. It is nothing other than a series of moral
and juridical principles which undergo no change on
the part of societies according to space and time, of
which the content remains always the same, because
deducted from the reason which the creator himself
gave to man".
• Basic tenets of this School
a. Law is related to justice, reason, human nature and
ethics.
b. Rules of human conduct emanate from a supreme
authority and are binding on all men everywhere.
c. Natural law is opposed to written law, the former is wise,
the latter is arbitrary.
d. Nature is an order of things. It demands equality for all
men.
e. Rules of law can be studied on the basis of a priori
method, ie., to accept a thing without an enquiry or
observation.
History of natural law
• Friedmann says "The history of natural law is a tale of
the search of mankind for absolute justice and its
failure".
• Again and again the idea of natural justice has
appeared in some form or another during the last
2,500 years.
• With changing social and political conditions the
notions of natural law have changed. What has
remained constant is the appeal to something higher
than positive law.
• History of natural law can be summarized under
following heads.
1. The Greek period
2. The Roman period
3. The Christian period
4. The Medieval period
5. The Modern period.
• Greek period - Greeks were the first propounders of
natural law principles. They gave a conception of
universal law for all mankind under which all men are
equal and which is binding on all people.
• They stressed the ideas of individual worth, moral duty
and universal brotherhood.
• Main proponents of natural law in this period are -
Socrates, Plato, Aristotle and Zeno
• Roman period - Roman classical writers accepted the
Greek conception of natural law. They classified law of
Rome into three broad categories-
(a) Jus Civile
(b) Jus Genitum
(c) Jus Naturale
• Jus Civile was the civil or the positive law enforceable by
the court to regulate the relationship between the
Roman citizens themselves.
• Jus Genitum was a part of the positive law of Rome, but
much wider in scope than the Jus Civile‘.
• Jus Naturale was the law of nature. It had no legal
validity in the courts, yet it formed the foundation on
which the other two laws were based.
• Jus Genitum and Jus Naturale were based on human
nature, reason and morality, being applied to all
mankind. The former had legal validity in the court and
the latter was not enforceable.
• Christian period - In the end of the Roman era, the
principles of natural law got its place under the
writings of Christian fathers. The most important
among them was St. Augustine.
• Natural law in this period was considered as the will of
God revealed to men by Holy Scriptures. According to
Christian fathers all laws, government and property
were the product of sin and so human laws contrary to
the law of God were to be discarded and ignored.
• The Church as the exponent of divine law could
override the state.
• Medieval period - The theory of natural law was very
popular in the Middle ages. It was St. Thomas Aquinas,
who made the classic attempt to harmonize the
teachings of the church with those of natural laws.
• He emphasized that man's intellect and free will are
the closest image of God in the material universe. The
eternal law governs the world through the will of God
and according to his wisdom.
• Modern period - The Reformation and the rise of the
National state marked the spiritual, social and the
political revolution of the modern age.
• In this period the medieval order broke down and the
supremacy of church and the emperor disappeared,
and liberties of individuals became subject-matter of
the political philosophers.
• The individuals demanded to safeguard, to protect his
personality and interests. The principle of natural law
became the justification for these claims
 Natural law – eastern perception

• Since Vedic time natural law philosophy has been an

integral part of indigenous legal, social and political
system.
• Natural law is also known as a divine law.
• Dharma has been all pervading concept in the natural
law philosophy.
• It has been a liberating force helping man to attain
freedom from bondage, indiscretion and exploitation.
• Hindu Vedic natural law called upon people to strive
for right actions, righteous deeds and doing good to
others. -k/f]ksf/M k'0ofo kfkfo k/kL8gd\_
• The Brihad Aaranyaka Upanishad has summed up the
eternal goals of natural law as follows:
 Lead me from delusion to truth
 Lead me from darkness to light
 Lead me from death to immortality
• Beside Vedas and Upanishads, the Mahabharata and
the Ramayana also embody the principles of universal
truth, morality and justice.
• Lord Buddha advocated the doctrine of enlightenment
and Nirvana. His philosophy was – ahimsa paramo
dharma.
• New natural law – main components:
a) No one shall be a judge in his own cause.
b) Justice should not only be done but seem to be done.
c) No one should be condemned unheard.
 Analytical School
• The theory of natural law lost its significance in the
nineteenth century due to various factors. Important of
those factors were:
i) Impact of scientific methods upon social sciences
including the jurisprudence. A priori v a posteriori
method.
ii) Displacement of religious order by the concept of
modern nation state.
• Analytical school is that approach of method which
considers law as a body of actual interrelated
principles and not merely a haphazard selection of rule
inextricably interwoven with a transcendental law of
nature.
• It seeks to define and classify all laws and discover the
essential features of every law as well as get a yardstick
by which all laws can be measured.
• It is also known as ‘Imperative’ school because it treats
law as the command of the sovereign; and Dias terms
this approach as 'Positivism' as the subject-matter of
the school is positive law.
• This school gained prominence in the nineteenth
century.
• The main proponents of the analytical school are
Bentham, Austin, Holland, Salmond, Kelsen and Hart.
 Jeremy Bentham (1748 – 1832)
• Bentham is said to be the founder of the Analytical
school.
• In his book entitled Limits of Jurisprudence Defined
(published in 1945), he defined law as a command of
the sovereign.
• He analyzed legal principles by the rod of utility and
discarded equity, fiction, natural law which had made
English law vague and unreal.
• Bentham defines law as “an assemblage of signs
declarative of a volition conceived or adopted by the
sovereign in a state, concerning the conduct to be
observed in a certain case by a certain person or
class of persons, who in the case in question are or
are supposed to be subject to his power”.
• He defined sovereign as "any person or assemblage of
persons to whose will a whole political community is to
show (obedience and that, in preference to the will of
any other person)".
• He defined "political community" as - where a number
of persons (whom we may style subjects) are supposed
to be in the habit of paying obedience to a person, or
assemblage of persons of a known and certain
description.
• He also talks about sanction in the form of punishment
or reward.
• Regarding the concept of utility he says before making
law the legislator should take into account the needs
of the people , what is in their advantage and what is
not. This concept promotes “Greatest happiness of
the greatest number of people”.
• As per the utility concept, law should increase
individual pleasure and decrease pain.
• Pleasure and pain are capable of ‘quantification’. To
measure pleasure and pain, Bentham developed a
calculative device known as ‘utilitarian calculus’ that
could measure pleasure and pain on the basis of the
following factors: intensity, duration, certainty,
nearness, fecundity, purity and extent.
• Bentham found and refined the analytical approach in
discovering the good laws from those which were
inconvenient and unnecessary. So, he should be rightly
designated as the father of analytical jurisprudence.
 John Austin (1790 – 1859)
• Austin’s approach towards jurisprudence and law is
found in his work “The Province of Jurisprudence
Determined” published in 1832.
• He separated ‘positive’ law from morality and ethics.
• According to Austin, positive law was the law as it is
(Positus) rather than law as it ought to be.
• His particular concept of law was imperative being the
command of the sovereign. Command implies not only
duty but sanction also.
• His basis of the theory of law rests on three well
defined concepts - sovereignty, command and
sanction.
 Sovereignty - every positive law (or every law properly
so-called) is set by a sovereign person or a sovereign
body to a member or members of independent
political society. A sovereign is a human person or
group of persons who has unlimited power, and
accepted by the bulk of people for determinate
(defined) period.
 Command – law is a command which obliges a person or
persons to a course of conduct. A command embraces: a
wish or desire conceived by a rational being to another
rational being shall do or forbear; and an expression of
the wish by words or otherwise.
 Sanction – is an evil which will be incurred if a command
is disobeyed and is the means by which a command or
duty is enforced.
• Austin gives emphasis to sovereign (not really to people)
and believes that ‘law is law because it is made by the
sovereign and sovereign is sovereign because it makes
the law’.
 Criticism upon Austin’s theory of law
• Historical and sociological jurists say that there was law
long before the origin of State and that law was not a
result of ’command of sovereign’ but of ‘custom,
tradition, religion, public opinion.
• To make law both the ‘State’ and ‘people’ have
significant role. State is not the sole author of law as
the law existed in the communities long before there
was State - Lord Bryce
• The rules which regulated the lives of people were
derived from their immemorial usages and those
rules were administered by domestic tribunals in
families or village communities ( in India) - Henry
Maine
• Austin considers ‘law as a general rule of conduct’ but
that idea is not correct all the times. An Act of
Parliament(legislature) generally deals on the specific
issues as well, such as Kathmandu University Act deals
only with the issues relating to KU not others.
• Likewise the Act made to give effect to specific international
treaty such as Indo/Nepal ‘Trade and Transit Treaty deals only
with trade issues between two countries, and not others.
• Austin says law as a command has to be communicated to
the people who have to obey it. But, this rule is not
universally acceptable.
For examples - Until 1887 laws in Japan were communicated only to
the officials whose duty was to administer them and no one else was
authorized to read the law.
Similarly, in Nepal, during some part of Rana regime the law (Muluki
Ain) was provided only to the officials responsible to administer it
and not to others thinking that those who read law would be clever
and able to cheat and revolt against the regime.
• Austin says ‘law is the command of sovereign’. But all
the laws can not be in the form of command. The law
that ‘confers power to people’ such as giving right to
vote and law relating to sale of property and making
of wills are not commands.
• Delegated laws (rules/regulations) made by
executive/other independent bodies may not be the
(direct) command of sovereign but they are also laws.
• The law is not always and only the mercy of the State.

• Austin’s theory of sovereignty ignores altogether the

purpose of law and seems one sided. It misses the
ethical aspect of law but overemphasizes the
imperative part. – Salmond
 John Salmond
• Law may be defined as the “body of principles
recognized and applied by the State in the
administration of justice”.
• For him ‘law consists of the rules recognized and acted
upon by the court of law”.
• Courts according to him may reject to apply custom as
law.
• Salmond deals with law as it is but law to him is to be
defined not in terms of sovereign but, in terms of
courts. Law is something which emanates from courts.
He says the ‘interpretation of legislation’ may result
into law.
• He considers ‘law is an instrument of justice’.
• He points out that study of jurisprudence which
ignores ethical and historical aspects will become a
barren study.
Main criticisms of Salmond’s theory
• The formulation of law is a major pre-condition for
justice and enforcement by courts.
• In English history, justice used to be mainly dispensed
on the discretion of judges based on maxims of equity,
justice and good-conscience. Body of law and
principles evolved later. So now the law can not be said
only to the body of rules recognized by courts, and
applied.
• Court can overrule the earlier court decisions thereby
changing any rule.
• Salmond opines, purpose of law is to ensure justice,
but purpose ( and function as well) of law is more than
that as to maintain law and order, facilitate social,
economic, political and cultural process of society too.
• Jerome Frank says Salmond’s definition is narrow and
ignores administrative law.
 Hans Kelsen (1881 – 1973)
• Kelsen’s theory of law which is known as the pure
theory of law implies that law must remain free from
social sciences like psychology, sociology or social
history etc.
• Kelsen's aim is to establish a science of law which will
be pure in the sense that it will strictly eschew all
metaphysical, ethical, moral, psychological and
sociological elements.
• Kelsen defines law as an order of human behaviour.
The specific nature of this order consists of (i)
coerciveness, and (ii) this coercive power is derived
solely from the sanctions attached to the law itself.
• Legal theory is science, not volition.
• It is knowledge of what the law is, not of what the
law ought to be.
• Law is a normative science, not a natural science.
• Validity of law depends on the superior norm of
Grundnorm.
• Austin’s sovereign is analogous to Kelson’s Grundnorm
for determining the validity of law.

 Kelsen not Austinian

• Kelasen rejects the concept of state and sovereignty.
• He also rejects Austin’s concept of sanction or fear of
sovereign. For him, sanction is an ingredient of the
norm itself which cannot be separated from the law.
 Criticism of Kelsen
• His conception of 'grundnorm' is vague. Friedmann
says it is a fiction incapable of being traced in legal
reality.
• Sociological jurists have criticized Kelsen’s pure
theory of law on the ground that it lacks practical
significance.
 H.L.A. Hart
• There is a century gap between the legal theories of
Austin and Professor Hart.
• Professor Hart produced his monumental work The
Concept of Law in 1961 highlighting the various
difficulties and inadequacies besetting Austin’s theory
of jurisprudence.
• Hart is regarded as the leading contemporary
representative of legal positivism.
• He gave the following meaning of the term positivism:
a) Laws are commands;
b) The analysis of legal concepts is i) worth pursuing, ii)
distinct from sociological and historical enquiries, and
iii) distinct from critical evaluation;
c) Decisions can be deluded logically from
predetermined rules;
d) Moral judgment cannot be established or defended
by rational argument, evidence or proof; and
e) Law is as it is.
• For Hart the legal system is a system of social rules.
• According to Hart, law is a union of primary and
secondary rules.
• The primary rules lay down standards of behaviour and
are rules of obligation.
• The secondary rules are such rules in which primary
rules may be ascertained, amended, rescinded and
enforced. The secondary rules are of recognition.
• The rule of recognition authoritatively settles what the
rules are or what is their scope.
• It is analogous to Austin’s sovereign.
• Hart objected to Austin's legal framework based on
coercion or sanction.
• According to the Hart, the main thrust of legal system
is to confer power on officials to implement the rule
of law.
• The law is essentially in spirit remedial, and procedural,
embodying principles of minimal natural justice and
morality which were excluded and rejected by Austin.
 Criticisms
• Hart's description of a Iegal system in terms of a union
of primary and secondary rules has puzzled both jurists
and political theorists. – Lloyd
• Dworkin has criticized Hart for representing law as a
system of rules and for suggesting that, at certain
points, the judges use their discretion and play a
legislative role.
• Basic tenets of Analytical School
a) Law is the product of a State. Analytical jurists regard
law as something made consciously by law makers.
b) This school concentrates on positive law i.e. law
as it is.
c) Ethical aspects do not come under the provision of
law and jurists are not concerned with ethics.
d) Statutes are the main source of law i.e. statutes are
the main origin from which rules of human conduct
come into existence.
 Historical School

• The nineteenth century witnessed new historical

situations, new scientific discoveries (Darwin’s
biological theory of evolution), new economic
problems which needed transformations in social
fabric.
• There was an yearning for fresh theories of
jurisprudence, of new methods with reference to
changing needs of society.
• In France, Vico (1688 – 1774) and Montesquieu (1689 -
1755) rejected the concept of law as a body of
abstract, lofty, eternal, speculative and unchanging
principles. They seem to evolve historical conception
or philosophy of history as applied to development of
law.
• Like Analytical (positivism) School, the Historical School
at the beginning of the nineteenth century was
another manifestation of the reaction against the
natural law theories.
• What we learnt in Analytical School:
- A stem away from a priori approach
- Didn’t believe in the concept of Divine law.
- Didn’t believe that law is a universal concept.
- Didn’t believe that law and morality should be
connected.
• Difference between Analytical and Historical School:
- Analytical School describes what is law and what is not
law. The systematic exposition of the legal system.
- Historical School deals with the general principles
governing the origin and development of law, and with
the influence that affects the law. Historical jurisprudence
is the history of the first principles and conceptions of a
legal system. – Salmond.
- Law is just like a language according to historical school,
changes from society to society and keeps on developing
through the time.
• Main proponents of Historical School
- Montesquieu (1689 - 1755)
- Friedrich Karl von Savigny (1770 – 1861)
- Georg Friedrich Puchta (1798 – 1846)
- Sir Henry Maine (1822 – 1888)
 Montesquieu
• Montesquieu is the first jurist who followed the
historical method.
• His Esprit des Lois or Spirit of laws (published in 1748)
is a monumental research into the institutions and laws
of kinds of human society.
• According to him, laws are the creations of climate,
local situation, accident and imposture. He says law
should answer the needs of the community.
 Savigny
• He is universally considered as the founder of historical
school of jurisprudence.
• His doctrines regarding law were represented in his
famous pamphlet ‘On the Vocation of Our Age for
Legislation and Jurisprudence, 1814’.
• The ‘Vocation’ appeared at a time when there was
political uncertainty in Germany.
• According to Savigny, the law was not something that
should be made or altered arbitrarily by a law-maker or
law makers. Law was a product of internal, silently
operating forces.
• Law of nation, therefore, is not the product of reason
or command or will of the sovereign.
• Law as such is found not made. It is to be found in
popular faith, common convictions, customs, traits,
habits and traditions.
• Like the language, law is exclusively determined by the
nation’s peculiar character which is otherwise called
the Volksgeist or spirit of the people.
• Law can not be universal or general in character. It is
always peculiar or particular depending on the
traditions of each people.
• Savigny, therefore, favoured customary law over
legislation.
 Criticism of Savigny’s view
• He laid excessive emphasis upon the unconscious
forces which determine the law of a nation and
ignored the efficacy of legislation. In modern societies,
legislation is being created and used as an important
instrument of social changes and social reform.
• Abolition of sati pratha and slavery, and introduction
of caste-based discrimination Act, etc. are some of the
many examples of social changes brought out by the
legislation.
• Volksgeist itself is an abstract and vague idea as the
natural law.
• He did not encourage law reform including codification
of law.
• Nazis and fascists took inspiration from Savigny’s
theory of Volksgeist.
• However, in the words of Vinogradoff, Savigny’s idea of
Historical School represented a powerful social
doctrine which had sprung into being in Europe’s
struggle against Napoleon’s Empire.
 Puchta
• He is another important exponent of the historical
school.
• His views are similar to Savigny. Basically, he improved
upon the work of Savigny.
• He agreed with Savigny that the genesis of law was the
spirit of the people.
• He said law is a result of conflict between general and
individual will and that is how a State is formed which
delimits the sphere of individual will and finally
develops into a tangible and workable system.
• He also said "What is visible to us is only the product,
law, as it has emerged from the dark laboratory in
which it was prepared and by which it became real".

• He was convinced that customary law was the most

genuine expression of the common conviction of the
people, and was for this reason, far superior to
legislation.
 Sir Henry Maine
• The founder of English historical school of
jurisprudence.
• His important works are Ancient Laws 1861, Village
Communities in the East and West 1871, Lectures on
the Early Law and Custom 1883.
• He studied many legal systems and figured out their
course of evolution. Divided development of law into
four stages:
• Stage 1 – Law is made by the command of the ruler
believed to be acting under divine inspiration.
• Stage 2 - Command crystallizes into customary law.
• Stage 3 - Knowledge and Administration of custom
goes into hands of minority usually of religious nature.
• Stage 4 – Fourth stage is the stage of Codes.
• Static and progressive societies
• Static society – wont develop after the 4th stage. In
those societies, the legal conditions are characterized
by what Maine calls ‘status’, i.e. a person will always be
chained to the family ‘status’ which will be the status
of the ‘pater familias’.
• Progressive society – would develop even after the 4th
stage by means of: legislation.
• Rights and obligations, in static society, are decided on
the basis of ‘status’ whereas in the progressive society,
they are decided on the basis of ‘contract’ (free
negotiation between individual.
• The movement of progressive society has hitherto
been a movement from ‘status’ to ‘contract’.
• Maine’s theory of ‘status’ to ‘contract' does not have
much force in this twenty-first century.
• Basic tenets of historical school:
a) Law is found. It cannot be made.
b) Law like languages grows, evolves and has deep
roots in the social, economic and other factors.
c) Laws cannot be of universal validity nor can
they be constructed on the basis of certain
rational premises or eternal principles.
d) Custom is the typical form of law while
legislation, as a source of law, has a
subordinate place.
e) Historical school studies the past rather than
present evolution of law.
f) It relies primarily on common consciousness
of the people, popularly known as ‘Volksgeist’.
 Sociological School
• There was a dire need to study law not in mere
abstraction, but in its functional and practical aspects.
• Prior to the nineteenth century, matters like health,
social welfare, education, etc. were not the concern of
the State due to the prevalence of laissez faire
philosophy.
• In the nineteenth century, because of the adverse
effects of laissez faire philosophy, States became more
and more concerned with numerous matters related to
human life and welfare.
• Hence a new approach towards the study of law in
relation to its purposes and functions for regulating
relationship between individuals and groups of
individuals emerged which is described as the
sociological jurisprudence.
• Similarly, the emergence of Sociological School was a
reaction against the formal and barren approach of the
analytical jurists and the pessimistic approach of the
historical jurists.
• The chief characteristics of sociological school of
jurisprudence are:
1. Sociological jurists are concerned more with the working of
the law rather than with the nature of law.
2. Sociological School considers law as a social institution
which can be consciously made and also found on the basis
of experience.
3. It synthesizes both the analytical and historical approach to
the study of law.
4. Sociological jurists lay emphasis on social purposes which
the law sub-serves rather than on sanctions.
5. They consider the form of legal precepts as a matter of
means only.
 Main proponents of the Sociological School
• Auguste Comte (1798 – 1851)
• Rudolf von Ihering (1818 – 1892)
• Leon Duguit (1859 – 1928)
• Roscoe Pound (1870 – 1964)
 Auguste Comte
• He is known as the founder of sociology as a science.
• He laid stress upon empirical methods such as
observation and experiment for the study of society.
• He says legitimate object of scientific study is society
itself and not any particular institution of government.
• Men have ever associated in social groups, so can not
live in isolation, and that helped in making of law
• Society is like an organism it can progress when guided
by scientific principles.
 Ihering
• Ihering was one of the greatest German jurists who has
been described as the ‘father of modern sociological
jurisprudence’.
• He rejected the analytical and historical schools as
‘jurisprudence of concepts’.
• He considers law as an instrument of serving the needs
of individuals in society.
 Social interest theory:
• In his work Law as a Means to an End, Ihering came to
the conclusion that the dominant notion to be found
in the exercise of human will is that of purpose.
• According to him ‘ human conduct is determined not
by a ‘because’ but by a ‘for’ by a purpose to be
effected.
• Law is only an instrument for serving the needs of
society , its purposes and interests.
• In society, there is an inevitable conflict between the
social interests and each individual's selfish interests.
To reconcile this conflict, the State employs the
method of reward and coercion, which is called law.
• According to Ihering, law is nothing but a means to an
end – an instrument of social control – balancing of
individual interests with that of society.
• Regulation through law of human activities in the
service of general community is its chief raison d’etre
(reason or justification for existence).
 Criticism
• In the words of Friedmann, "Ihering has not been able
to solve the problem of the conflict between individual
and collective interests. He gives no satisfactory
answer to the question why altruistic utilitarianism
should harmonize with individual utilitarianism".
 Duguit
• Duguit is a distinguished French jurist of the sociological
school.
• Like Ihering, Duguit also rejected the prevailing notion of
State, sovereign, law as a command.
• He believes in a law which is above the individuals and
the State, and rulers and the ruled.
• Law is neither based on State nor on natural rights. Law is
a rule of fact - a rule which men posses not by virtue of
any higher principle, good, happiness or interest but by
virtue or perforce of facts, because they live in society.
• Duguit puts forth in definite and clear terms that law
arises of the facts of social existence.
• Therefore, if a man wishes to live and act in society he
must act in conformity with the social law of solidarity.
• Solidarity is not a rule of conduct, it is a fact of all
human society. These are moral duties.
• Solidarity or cohesion is the principal requisite of the
existence of social life. Solidarity is interdependence
uniting the members of human society.
• Law is the instrument of social solidarity and cohesion.
Because man cannot live apart from society.
• Men have common needs which they can only satisfy
in common, that they have different capabilities and
different needs which they can satisfy by exchange of
needs and division of labour.
• This solidarity or mutual interdependence is the
product of social life. So, it is the duty of all to conform
their conduct according to the fact of social solidarity.
• A man can promote his individuality by increasing his
sociability by exchange of needs and wants.
• The foundation of law is the fact of social solidarity
which seeks to achieve maximum good to all.
• Duguit by insisting law as a product of social life made
an important contribution to the development of
sociological jurisprudence.
 Eugen Ehrlich (1862 – 1920)
• Ehrlich observed that the centre of gravity of legal
development lies not in legislation, nor in justice, nor
in judicial decision but in society.
• Thus the real source is not the State or sovereign but
the society itself.
• According to Ehrlich, society is made by ‘men in
association’.
• He divided law into two types – ‘formal law’ and ‘living
law’.
• Formal law is made by the State authority.
• Living law is made by the ‘men in association’.
• The living law can be ascertained from the actual
behaviour of people.
• The living law, therefore, cannot be discovered from
outside the society or from the sovereign.
• The statutory law or judicial decisions have only
evidentiary value to prove the existence of living law.
• The ‘formal law’ trails behind ‘living law’.
 Pound
• Pound is one of the greatest American jurists who is
styled as the father of modern American sociological
jurisprudence.
• Readings on the History and System of the Common
Law, The Spirits of Common Law, Law and Morals,
Interpretation of Legal History, etc. are his most
original outstanding works in the field of legal
philosophy.
• According to Pound, law was not for its own sake but
for the avowed object to satisfying human needs,
wants, interests and purposes.
• He says law without its purpose or end would be a
mental exercise in abstraction only.
• Pound divided interests into individual, public and
social interests.
• Individual interests cover – i) personality interests such
as privacy, belief and opinion, freedom, honour and
reputation, etc., ii) domestic relations such as family,
marriage, divorce, etc., and iii) interest of substance
such as property, contract, freedom of association, etc.
• Public interests cover – i) integrity, freedom of action
and honour of State’s personality, and ii) interest of
State as guardian of social interests.
• Social interests cover – i) general security such as
general health, peace and order, protection of
property, etc., ii) security of social interests such as
religious institutions, political institutions and
economic institutions, etc., iii) general morals such as
prostitution, drunkness, gambling, begging, etc., iv)
conservation of social resources such as forest, water,
oil, etc., and v) general progress such as free trade, free
competition, freedom of use of property, etc.
• Pound compared the task of lawyer to the engineers.
He stated that the aim of social engineering is to build
a structure of society as possible which requires the
fulfillment or satisfaction of maximum wants with
minimum usage of resources. It involves the balancing
of all competing interests (individual, public and
private). He called this theory as the theory of “Social
Engineering”.
 Jural postulates
• Pound introduces the concept of ‘jural postulates’ as
the method by which interest may be tested and
evaluated so that the conflicts between the various
interests may be resolved. Jural postulates presuppose
legal reasoning about rights and obligations at the
various levels and involve what human beings must be
able to (reasonably) assume in a civilized society.
 Pound has provided 5 jural postulates:
• Men must be able to assume that others will commit
no intentional aggression upon them - (Criminal law).
• People must be able to assume that they can control
things that they have discovered, created or
legitimately acquired - (Property law / Patent law).
• They must be able to assume that those with whom
they deal in the general intercourse of society will act
in good faith – (contract law).
• They must be able to assume that those who are
engaged in some course of conduct will act with due
care not to cast an unreasonable risk or injury on
others – (tort law).
• People must be able to assume that other people will
keep his/her things within his/her boundary and
should look after that thing to avoid injury to other
people – (strict liability).
Pound underlined that the postulates change as they are
relative to the social evolution stages in a particular
society.
 Philosophical School
• According to philosophical school, law is based on reason.
In other words, legal principles should be just, fair and
reasonable.
• Many people say that natural law school and philosophical
school are same.
• But, there is a minor difference. As per the natural law
school: certain laws are immutable and eternal. These laws
are a constant body of permanent truths, unaffected by
human beliefs and attitudes.
• They are also called moral/divine law, law of reason, law of
god)
• The philosophical school removes God out of equation
saying laws should be based purely on reason & logic.

 Proponents of Philosophical school

• Saint Thomas Aquinas (1225 – 1274)
• Hugo Grotius (1583 – 1645)
• John Locke (1632 – 1704)
• Immanuel Kant (1724 – 1804)
• Georg Wilhelm Friedrich Hegel (1770 – 1831)
• Johann Gottlieb Fichte (1762 – 1814)
 Aquinas
• He was a 13th century jurist when religion had a major
role in the society.
• Law used to be heavily influence by the religion.
• Aquinas defines law as "an ordinance of reason for the
common good, made by him who has care of the
community, and promulgated." It means - law is an
ordinance of reason because it must be reasonable
or based in reason and not merely in the will of the
legislator.
• He divided law into four categories:
i) Eternal law (law of God)
ii) Natural law which is revealed through the reason of
man
iii) Divine law (law of scriptures) and
iv) Human law (jus civile)
 Hugo Grotius
• He is considered father of philosophical school because
he is the first person to separate law of reason from
divine law.
• He is also considered father of international law as – he
was one of the first to define expressly the idea of one
society of states, governed not by force or warfare but
by actual laws and mutual agreement to enforce those
laws.
• His famous work – On the Law of War and Peace
• He defined law based on right reason. He believed that
rules of natural law would have validity even if there is no
God. He constructed a system of natural law ‘secular’ and
non-religious.
• He built his legal theory on ‘social contract’. Reason implies
man to seek society.
• According to him, the State originates in contract by virtue
of which each individual surrenders his sovereignty to a
ruler.
• It is the duty of the sovereign to safeguard the citizens
because the former was given power only for that purpose.
 John Locke
• John Locke was an English philosopher, commonly
known as ‘father of liberalism’.
• In his book, Two Treatise of Government (1689), he says
human nature is characterized by reason and tolerance.
• His theory was based on social contract, which was
founded by Thomas Hobbes.
• According to the social contract theory, people transfer
their power to the government expecting that the latter
would protect them. In failing to fulfill peoples’
expectations, the government can be overthrown.
 Kant
• He differentiated law from ethics and proclaimed that
morality cannot be enforced.
• Law, on the other hand, sets forth threats and
penalties in case of its breach.
• He propounded two principles of practical reason –
i) Act in such a way that the maxim of your action can
be made the maxim of an universal law (general
action). This is called ‘categorical imperative’.
ii) An action is right only if it can co-exist with each and
every man’s free-will. This is called ‘principle right’.
 Hegel and Fichte
• Hegel gave the dialectical method/process
• Dialectical method is a discourse between two or more
people holding different points of view about a subject
but wishing to establish the truth through reasoned
methods of argumentation.
• Fichte coined the triad of thesis, antithesis and
synthesis which is a progression of three ideas or
propositions.
 Realist School
• There are mainly three reasons for the establishment of
the realist school of law.
• Firstly, it was established as a reaction against sociological
jurists who were emphasizing the social effect of law.
• Secondly, it was established to ignore the theory of
interest as given by lhering and the theory of Social
Engineering as advocated by Pound.
• Thirdly, this school was established to point out the
importance of Courts and importance of the Judges-the
human factor in the judges and the lawyers.
 Trends of Realist School
• There are two trends of Realist School, the American
Realist School and the Scandinavian Realist School.
• American realism is the product of a pragmatist and
behaviourist approach to social institutions.
• Scandinavian realism is a philosophical critique of the
metaphysical foundations of law.
• O.W.Holmes, Jereme Frank and Hutcheson are the
main supporters of the American Realist School.

• Olivercrona, Lundstedt, Ross and Hagerstrom are the

main exponents of the Scandinavian Realist School.
• Holmes famously said that "the life of the law has not
been logic; it has been experience".
• He also insisted that the most important standpoint
from which to view law was that of the “bad man”.
• Judge Jerome Frank and Joseph Hutcheson claimed
that judges did not look to the law in order to
determine how to decide a case.
• They believed that judges started, after determining
the facts, with a view of the correct outcome and then
looked for cases and statutes and other legal materials
to provide an after-the-fact justification for what they
had already decided.
• While the conventional view was that judges
determined what the facts were and then consulted
the statutes, cases, and other legal materials to find
out what response the law dictated for those facts or
that situation.
• Hutcheson referred to the initial determination by the
judge as "hunch" or as "intuitive".
• Hutcheson and Frank believed that the initial judgment
- the hunch - was based less on cases, statutes and
legal principles than on a host of other factors that the
law officially refused to recognize but that actually
played a great role.
• That non-legal factors that determine judicial
decisions might include, for example, the judge's
political preference, his views about litigants of certain
races or religions, his views about the lawyers, his
overall sense of which outcome would be fairer under
the circumstances, and the makeup his personality.
• Jerome Frank, who coined the term legal realism
emphasized the psychological foundation of judicial
decision making, arguing that a judge's decision may
be influenced by mundane things like what he or she
ate for breakfast.
 Basic Tenets of the Realist School
• It is the combination of positivist and sociological
approaches.
• As in positivism, the law is seen as it is and not as it
‘ought’ to be. It also emphasizes the importance of
some aspects of society.
• The entire emphasis of this school is centered around
the judge, the law is what judges decide.
• The approach is empirical.
• Law is what courts do and not what they say.