Professional Documents
Culture Documents
• 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.