Legal Theories

Comparative Public Law

 Definition of Jurisprudence –
• Ulpian – jurisprudence is knowledge of things divine and human, the science
of just and unjust.
• Paulus – the law is not to be deduced from the rule, but the rule from the law
• Holland – Jurisprudence is the formal science of positive law.
• Salmond – Jurisprudence is the science of first principle of civil law.
• Keeton – Jurisprudence is the study and systematic arrangement of the
general principal of law.
• Pound – Jurisprudence is the science of law, using the term law in the juridical
sense, as denoting the body of principles recognized or enforced by public
and regular tribunals in the administration of justice.
Continued….
• Gray – Jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the courts and the
principles involved in those rules.
• Allen – Jurisprudence is the scientific synthesis of all the essential
principles of law.
• Paton – Jurisprudence is a particular method of study, not of law of
one country, but of general notion of law itself. It is a study relating to
law.
• Julius Stone – Jurisprudence is the lawyer’s extra version.
Cont…
• Bentham divided Jurisprudence –
• Expositorial jurisprudence – the scope of it is to determine what the
law is.
• Censorial jurisprudence – its purpose is to decide what the law ought
to be.
• Austin classified Jurisprudence into –
• General
• Particular
 Juristic View of Concept of Law
• The definitions have been given from the perspective of purpose, end,
function of law, content and character of law etc.
• Since, jurisprudence is the study of law –
• law is meant for the society.
• Law does not operate in vacuum.
• Every action of human being is connected with law, it may be in any
sphere.
Continued….
• economic action – taxation matters – VAT, GST, retrospective
liabilities, Orders of the Supreme Court affecting economic rights of
the parties – recently – passing order that COVID-19 test will be free
for all – later on retracting from it. The direction of the government
that all the employers will be liable to pay full salary to the employees
during the period of lockdown.
• social aspect – same sex relations, marriage with a person of one’s
choice, CAA,
• Moral aspect – issues of bigamy, adultery, abortion, surrogacy and
homosexuality.
• Political aspect – constitutional issues – formation of government in
MP, role of Speaker and Governor etc.
 Sources of Law
• Custom
• Precedent
• Legislation
• Subordinate Legislation
 Schools of Jurisprudence

• Natural Law School

• Legal Positivism
• Historical School
• Sociological School
• Legal Realism
 Analytical Positivism
• Jurists – Bentham, Austin, Holland, H.L.A. Hart, Kelsan
• Father of Analytical School – Austin
• Founder of Analytical School – Jeremy Bentham
• Features –
• The Analytical school focuses on the present state of law and not on the past or future.
• That’s why it is said that Analytical School studies law as it exists and not what it ought to
be.
• Since the common feature of the School is that they considered law to have emanated
from the sovereign in the form of a command, it is called Imperative School.
• C.K. Allen described this school as Imperative School.
 BENTHAM
• The English jurist and philosopher Jeremy Bentham (1748-1832) is the
greatest historical figure in British legal positivism. Bentham, the
founder of positivism, should be considered the “Father of analytical
positivism”, and not Austin as it is commonly believed. The debt that
Austin owed to Bentham was enormous, patent and acknowledged.
• He was a champion of codified law.
• Bentham classified Jurisprudence into
• Expositorial jurisprudence – the scope of it is to determine what the
law is.
• Censorial jurisprudence – its purpose is to decide what the law ought
to be.
• Bentham defined law as
• “A law may be defined 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.”
• Bentham supported the principle of laissez faire .
• PLEASURE AND PAIN: Bentham’s notion of pleasure included not only carnal
pleasure but also the more sublime forms of satisfaction gained from intellectual
and spiritual pursuits, noble deeds and self sacrifice.
• Bentham also suggested hedonistic calculus: Bentham was convinced that a
system of law that derives its rules exclusively from the commands of a sovereign
authority, when measured by the yardstick of public utility, is superior to the
common law system.
 JOHN AUSTIN
• Austin applied analytical method- ‘law should be carefully studied and
analysed and the principle underlying therein should be found out’- and
confined his field of study only to the positive law – jus positivism (‘law, simply
and strictly so called’: ‘law set by political superiors to political inferiors’).
• Austin defined law as ‘a rule laid down for the guidance of an intelligent being
by an intelligent being having power over him’.

• Law properly so called

• Law improperly so called
 Law

Laws Properly Laws Improperly

So Called So called

Law of God Human Laws Laws by Analogy Laws by Metaphor

As laws of fashion i.e. laws of gravity

Positive law Laws not set by men,

Laws set by political As political superior or in
Superior for political Pursuance of legal right
Inferior
Positive Morality
 Elements of Positive Law –
According to Austin, positive law comprises the commands of a political sovereign
supported by sanctions on those who disobey. There are three key elements of
this concept of law:
A. a political sovereign,
B. command and
C. sanction
• According to him, “law is the command of a sovereign” requiring his subjects to
do or forbear from doing certain acts.
• Duty and command are correlative and fear of sanction is the motive for the
obedience of such command i.e. law.
Command is of two types –
1. General Command
2. Particular Command
 Features of Sovereign
• Austin’s notion of sovereign is if a determinate human superior not in a habit of
obedience to a like superior, receives habitual obedience from the bulk of the
given society, that determinate superior is sovereign in that society.
• The sovereign is a determinate human superior.
• The sovereign must not only be determinate, it must be human.
• The basis of sovereignty is the fact of obedience. According to Austin, the
sovereign must be illimitable, indivisible and continuous.
 Criticism of Austin –
• Custom ignored –
• Law conferring Privileges –
• Judge made law –
• Conventions –
• Rules Set by Conventions –
• International law –
• Command Theory Untenable – Prof. Olivercona said that a command is not
identical with declaration of will. A command is always an act through which
one person seeks to influence the will of another.
• Sanction is not the only means to induce obedience –
• Relation of law and morale overruled –
 Historical Approach of Comparative Study
• Savigny is considered to be the exponent of the Historical School. Historical approach
was derived from the study of Roman Law.
All law is the manifestation of this common consciousness.
I. The broad principles of the system are to be found in the spirit of the people and
they manifest themselves in customary rules.
II. Law is a matter of unconscious growth.
III. Any law-making should follow the course of historical development.
IV. Custom not only precedes legislation but is superior to it.
V. Legislation should always conform to the popular consciousness.
VI. Law is not of universal application. It varies with peoples and ages.
VII. The Volkgeist cannot be criticised for being what it is. It is the standard by which
laws, which are the conscious product of the will as distinct from popular conviction,
are to be judged. An individual jurist may misapprehend the popular conviction.
 Sir Henry Maine

• Maine made a comparative study of the various legal systems and traced
the course of their evolution. According to him, law develops through four
stages.
• In the beginning, law was made by the commands of the ruler believed to
be acting under divine inspiration.
• In the second stage, commands crystallise into customary law.
• In the third stage, 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.
• The fourth stage was the time of codes. Law is promulgated in the form of
a code, as Solan’s Attic Code or the Twelve Tables in Rome.
Historical School Analytical School
1. Historical School concentrates its attention on the primitive legal 1. Analytical School confines itself to mature legal systems.
Institutions of society
2. Law is found and not made. Law is self-existent 2. Law is an arbitrary command of the sovereign. It is the deliberate
product of legislation.
3. Law is antecedent to the State and 3. If there is no sovereign, there can be no law.
Exists even before a State comes into existence.
4. Law is independent of political authority 4. The hallmark of law is its enforcement by the sovereign.
and its enforcement. Law does not become law merely because of its
enforcement by the sovereign.
5. Law rests on the social pressure behind the rules of conduct which it 5. Law rests upon the force of politically organised society.
enjoins.
6. Law is the rule by which the invisible borderline is fixed within which 6. Law is the command of the sovereign.
each individual obtains a secure and full space.
7. Typical law is custom. “Human nature is not likely to undergo a 7. Typical law is a statute.
radical change and, therefore, that to which we give the name of law
always has been, still is and will forever continue to be custom.”
(Carter)

8. Customs is the formal source of law. It is transcendental law and 8. Custom is not law until its validity is established by a judicial decision
other methods of legal evolution, e.g., precedent and legislation, or Act of the Legislature. It is only a source of law.
derive their authority from custom. At any rate, custom derives. At any
rate, custom derives its binding force from its own intrinsic vitality and
not from judicial precedent or legislation purporting to follow or
legalise it.

9. While interpreting a statute, judges should also take into 9. While interpreting a statute judges should confine themselves to a
consideration its history. purely syllogistic method.
 Sociological Approach
• THE RELATIONS between the individual, society and the State have
been changing and various theories regarding them have been
propounded from time to time.
• In the beginning, society was governed by Customs which had only a
social sanction.
• Then came the supremacy of priests.
• After that, the secular State emerged and dominated all institutions.
• There were revolutions and political changes. There was the Industrial
Revolution.
• The necessity of balancing the welfare of the society and individual
was realised.
• Montesquieu (1689-1755)
• Montesquieu, the French philosopher, was the forerunner of the socio- logical
method. He was the first to recognise and take account of the influence of social
conditions on the legal process.
• According to Auguste Comte, society is like an Organism and it can progress when
it is guided by Scientific Principles which should be formulated by observation and
experience of facts excluding all metaphysical and similar other considerations.
• Herbert Spencer was an English sociological thinker who traced the evolution of
society from simple to the modern complex structure. Thus he gave a scientific
exposition to the organic theory of society. Spencer deduced four sources of law
I. Divine laws having quasi religious sanctions
II. The injunctions of the past leaders
III. The will of the ruler
IV. Collective opinion of the society
 Roscoe Pound
• Theory of Social Engineering —Pound likened the task of the lawyer to
engineering and he repeated that analogy frequently. The aim of social
engineering is to build as efficient a structure of society as possible which
requires the satisfaction of the maximum wants with the minimum of friction
and waste.
• It involves the balancing of competing interests. For that purpose, interests were
defined by Pound as claims or wants or desires (or expectations) which men
assert de facto, about which law must do something if organised societies are to
endure.
• Private Interests
• Public Interests
• Social Interests
 Natural Law Approach
• According to Aquinas, “law is nothing else than an ordinance of reason
for the common good, made by him who has the care of the community,
and promulgated.”
• Aquinas divided laws into four categories viz., law of God, natural law
which is revealed through the reason of man, divine law or the law of
scriptures and human laws.
• Natural law is a part of divine law. It is that part which reveals itself in
natural reason. It is applied by human beings to govern their affairs and
relations.
• The human law or positive law must conform to the law of the
scriptures.
 Realist Approach
• law must be strictly distinguished from morals.
• A lawyer is concerned with what the law is and not with what it ought
to be.
• Holmes was never tired of asserting how “policy” governed legal
development, especially in the form of the “inarticulate” convictions
of those engaged in creating law.
Prof. Gray defined law as what the judges declare. He emphasised the
fact that the personality and the personal views of a judge play an
important role in decisions.