Schools of Jurisprudence

The Word Jurisprudence is derived from a latin word jurisprudentia, which means knowledge of law or skill in law. The latin word ‘juris’ means law and ‘prudentia’ means skill or knowledge. Thus jurisprudence in simple way mean the knowledge of law and its application.

considering the growth of society the jurisprudence got much more development which laid down the systematic and scientific approach on application of laws, so thus jurisprudence can be termed as a way of people in the society in respect with legal theory and be aware of rights and duties of the citizens

the indian jurisprudence came into existence from the ancient concept called ‘dharma’ , means being sense of discipline of citizens in the society. As the time marched towards the progess of indian society and india became a democratic republic

According to keeton, jurisprudence means the study and scientific synthesis of general principles of law

According to Austin, jurisprudence is the philosophy of positive law and divided jurisprudence into 2 parts – i) General Jurisprudence and ii) Particular jurisprudence 

General Jurisprudence : General jurisprudence is the study of universal legal principles, which encompasses the universal principles of legal systems. It includes subjects or ends of law that are common to all systems, such as the concepts of rights and duties, ownership, possession, and personality

Particular Jurisprudence : The study of a specific legal system that currently exists or once existed in a particular country or group of countries. It is also known as particular expositorial or national jurisprudence. For example, the study of property law in india is regarded as particular jurisprudence

Schools of Jurisprudence

to provide subsistence, produce abundance, favour equality and to maintain security, the security as concerned as most importance aspect in this regard.
Hence according to bentham, the pleasure and pain were given utmost importance rather than morality

Bentham theory was criticised on mainly 2 factors i.e.., the minimum interference of the state in public activities, here the power or authority of the state was limited in public activities which may indirectly sometimes result in evil consequences and secondly, the theory of pleasure and pain can’t be the only factor to measure the greatest happiness of the greatest number.

Austin’s View

John Austin was considered as ‘father of english jurisprudence’. He proposed a theory called Analytical Positivism or Imperative theory of law
Austin was the first exponent who treated jurisprudence as ‘science of law’ 

Analytical Positivism or Imperative theory of law

Austin in his theory mentioned positive law which mean laws imposed by the state, according to him positive law is distinguished from morality, in his writing austin completely ignored the concept of morality.

Austin described positive law as aggregate of rules set by man as politically superior to politically inferior, to achieve positive law he proposed 4 essential concepts those are 1) sovereign (supreme) , 2) command , 3) duty and  4) sanction (punishment), he stated that sovereign carries a supreme power from politically superior to politically inferior with a command to obey the duty, failing which give rise to sanction i.e., punishment. Hence it is clear that command and duty are treated as co-extentive with that of sanction i.e punishment 

Exceptions to this theory 

Declaratory or Explanatory Laws

commands does not imply to those which are already being in force or already being declared.

Laws of Repeal 

commands does not apply if case of revocation of command

Laws of imperfect obligation 

in order to make command a law, austin stated that it must be combined with duty and sanction (punishment) 

Criticism of Austin’s theory :

1. As per austin theory, he ignored the importance of customs which plays an vital role even today as source of law

2. There is no concept for judge made law as per austin, judge made laws now a days became a efficient role in smooth functioning of judiciary as they fit for the modern generation

3. austin gave more importance for the command as it became an unrealistic approach in present times

4. as stated above, austin completely ignored the concept of morality, law will not survive without morality as the right and wrong must be exposed

5. sanction (punshiment) is not the only way to obey the law. there are other factors such as fear, deterrence, sympathy etc..,

6. according to austin, the rules set by politically superior as to politically inferior was criticised because the mere fact it that the superior can’t command a duty to inferiors as there were being certain regulations laid down

B. Historical School

unlike analytical school, the historical school does not emphasis on law to its relation with state. According to the exponents of historical school the law has developed itself unlike there is no such legal institution or state envolved in development of law but gave more focus on social institution in development of law, it was opined that the law was developed by the human conscience
under historical school – Montesquieu, Von Savigny, george puchta and sir henry maine stood as major exponents of this school

Montesquieu 

Montesquieu laid down his principles in his work called ‘spirit of laws’ which was published in 1748 in france, according to him, there is no such legal institution in development of law, but rather the development of law was by the social surroundings and by the biological environment. he opined that there was no good or bad in law, but entirely depends on the political and social conditions and environment that prevailed in the society, he said that the laws must meet the standards of the people for whom they were made

Von Savigny

the theory of Volksgeist was profounded by von savigny and defined volksgeist theory as a source of law

Volksgeist as source of law : 

savigny proposed this theory, under this theory the development of law is stated below 

1. Law develops like language : 

savigny stated that law grows as the society develops, as the people of common convictions, customs, faiths and beliefs are considered as whole as like the law is also considered as a national character. there is no separate existence for law, language and custom as the people tend to follow.

2. Development of law is spontaneous, then the jurist developed it :

savigny pointed that the law developed spontaneously according to the needs of the society such as civilisation, national activities and so on and at later stages the law was further taken to next level by the jurist who expertise the field. At the early stages of development was by human consciousness and later gained more technical aspect by the jurist.

3. Opposed to codification of german law : 

savigny never believed in codification of laws, inspite he believed that lawyers and jurist are the true representatives rather than legislators confined to law making.

4. Law is unbreakable process : 

the evolution of law was confined with the human consciousness, hence he declared that law is always evolves with respect to traditions, customs and culture of the people.

5. Roman Law : 

he opined that roman law as an inevitable tool for the development of system of law in germany.

criticism on savigny theory :

1. savigny was always against the codification of law, which is widely accepted in the modern legislation 

2. according to savigny the development of law is through human consciousness which can’t be determined as the primary source 

3. under this theory customs are given importance but many customs in the society prevailed to exploit others such as slavery etc..,

4. this theory helped many nations to promote their own ideologies, but the bitter fact is that it gave rise to fascism

George Puchta 

george puchta was considered as discipline of von savigny, he pointed that neither state nor people are the source of law, but the considered that general and individual will are the results of existence of the law, he worked on savigny theory and presented it in more logical form, hence his contribution is considered to be more logical

Sir Henry Maine

sir henry maine works on historical jurisprudence is so great and hence declared as ‘social Darwinist’ , he opined that the individual is treated liberated from the feudalistic primitive bondage.

sir henry maine improved savigny legal theory and explained inter-relationship between society and law and recognised the role of legal fictions, equity and legislation in evolution of law, while savigny focused on roman law and applicability in germany 

Four Stages of Development of law 

1. Divine Law :

Law originated from the goddess of justice

2. Customary Law :

under this stage, the customs were considered as source of law, henry stated that ‘custom is to society what law is to state’

3. Priestly class :

under this stage, the enforcement of law was laid under the king. the priestly class memorised the rules of customary law because the art of writing had not developed till then.

4. Codification :

the last stage of development of law is codification, here the art of writing was developed and the law were made easily knowable. Manusmriti can be considered example for this stage.

As per henry’s view, the law is embodied in a code, there is an end to its development such societies are called static society, but when there is an constant development of law in a society, then such society is named as progressive societies. In such societies there are 3 methods of development of law, they are – Legal fictions, equity and legislation

A. Legal Fictions : Legal fictions change the law to fit the changing in the society, in his opinion, legal fiction plays a vital role in developing the law to suit the complex and complicated situations in the society

B. Equity : Equity is the conscience of human being, the main aim is to remove defects in the existing law in the england, thus this equity serves as the supplement to the common law

C. Legislation : as we all knew that the legislation is the effective tool for law making and it is considered as systematic approach in making changes to the existing law or in making new laws.

C. Philosophical or Ethical School 

According to exponents to this school, legal philosophy is based on ethical values for being right in the society, these ethical values deals with principals of morality which distinguish the good and bad in the society.

according to this school, reason for law is to maintain law and order and impose legal restrictions can be justified only if they promote freedom of individuals in the society. This school emphasis on the ‘law as it ought to be’. The Main object of this school is to promote the liberty of individuals to attain the human perfection

Features of this school :

1. Law and Justice are inter-related, hence the final agenda of law is to attain the concept of justice

2. The main purpose of this school is to attain the justice

3. This school differentiates the concepts of law and justice

4. this school significances the ethical importance of legal concepts

the main exponents of this school is hugo grotius, Kant, Hegel and Schelling

Hugo Grotius

Hugo Grotius is considered as father of Philosophical jurisprudence and founder of modern international law. hugo was a dutch national and republican philosopher, in his work ‘Law of War and Peace’, hugo stated that natural law was drawn from social nature of man and natural law as well as positive morality based on concept of being right. According to Hugo, Law could be binding on individuals as well as states inter-se was the law of nature.

Grotius is believed that morality as necessary tool in natural law, which prevents individuals from intervene from others and fulfils the promises made to others and impose punishment who violates.

Immanuel Kant

Kant in his metaphysical method said that ethics and law are not inter-related, he states the ethics as inner life and where as the law regards as external conduct. Kant opined that the society must not impose restrictions on man virtuous, must make compulsion on their external conduct. hence kant considered ‘complusion’ as a essential element of law.

Kant in his work, ‘Metaphysical Elements of Justice’ stated that justice cannot be defined, as it depends upon the conditions,place,social values, etc.., and regarded as justice as ‘to follow the law is to be just’ and justice depends upon what is lawful.

Hegel

Hegel further developed the kant’s theory called doctrine of freedom of will, In his opinion the state is the combination of family and civil society and it is the formula for individual’s freedom in the universal and hegel described that there are 3 kinds functions of state namely – Universal, Particular and Individual Aspect.

Universal function deals with the formulation of laws whereas the particular deals with application of such law and finally individual aspect especially states that lies with head of the state.

hegelian philosophy can be described as evolution of law specially in connection with india, the law has began to evolve post independence from time to time, to ensure the human rights and promoto socio-economic justice. The liberty, quality, fraternity and human dignity being the core elements of true democratic state. 

Joseph Schelling 

Schelling stated that the law is the means of individual will is harmonised with the general will of the community, the harmony can only be achieved by limiting the freedom of other individual.

the core aspect of the exponents of this school is that 1. jurisprudence is to attain the human perfection and 2. to secure liberty to individuals.

the main principals of this school opined that the law is discovered by the human reason and the system of law should be based on the reason, but this was treated as defect in philosophical school.Hence the exponents are philosophical school cannot be accepted by the exponents of historical school.

D. Sociological School

sociological school can’t be said with the scope of defined writing, its a blend of various juristic thoughts.the main characteristic of this school is that the interactions of man in the social groups, irrespect of past or present and ancient or modern.They considered law as social phenomenon.

According to supporters of this school, the law is mixture of various science like philosophy, psychology, sociology, political science, economics..etc.., and they treated law as a effective solution for social and individual problems.

Features of this school :

1. This school emphasis on functional aspect rather than abstract aspect, hence this school is known as functional school of jurisprudence

2. The law is combination of various sciences like philosophy, psychology, sociology..etc.., and hence its functionality, scope and utility need to be understood

3. This school ignores the analytical and historical school concepts

4. jurists of this school, differ on law perfection while some jurists prefer functional aspect of law while other rely on court ruling and their decisions.

under sociological school – montesquieu, auguste, Spencer and Roscoe pound were considered as main exponents.

Montesquieu

Montesquieu was the first who opined that law is influenced by social conditions and legal institutions. In his Book ‘spirit of law’ he stated the laws of a nation should be determined from the characteristics, climatic condition, quality of a soil, commerce, manners and customs.

Though not being the propounder of this school, Montesquieu is considered as fore-runner of this school as he acknowledged the importance of history is understand the structure of the society.

Auguste Compte

Auguste is considered as founding father of this school, as he was the first jurist to mention the word ‘sociology’. His scientific approach to study sociology termed as ‘scientific positivism’ 

He further pointed that human can’t be isolated as social being and his social activities are always driven by law and government, so therefore the society should be focused.

Hebert Spencer

Spencer was considered as english sociological thinker, who opined that the development of society from simple to modern. Hebert spencer considered 4 sources of law..i.e., divine laws, injuctions of past leaders, will of ruler and opinion of society.

spencer in his theory, law is regarded as product of biological factor which pointed that principal of survival of fittest. According to Hebert Spencer framed 2 stages in evolution of society, the first stage of evolution of society is of wars, clashes and complusions and whereas the second stage of evolution deals with development, peace, freedom and liberty. The Doctrine of Laissez faire is stated by spencer.

Roscoe Pound

Pound regard this school as functional aspect and thus it is termed as law in action.According to pound the law is a tool to give maximum satisfaction to the individuals with minimum confrontation.

He considered sociological jurisprudence as experimental jurisprudence and aimed at application of law to social activities of life.

Pound is considered as leading and influentical jurist in respect with sociological jurisprudence,he is also known as father of american sociological jurisprudence.

According to pound the sociological jurisprudence can be studied as following 

1. Functional Aspect

As pound emphasis this school of jurisprudence as functional because the real function is law is to reconcile the conflicting interests of individuals in the society and hence termed as ‘social engineering’

2. Social Engineering

As stated above, the law termed as social engineering, that it should maintain interests of society and provide maximum satisfaction with minimum conflicts.

according to pound the interests can be divided into – public interests, private interests and social interests 

Public Interest

In this regard, the state should act as guardian of social interests like protection of natural environment, administration of trusts, regulation of public employment..etc

Private Interest

this include, interest of individuals like protection against the crimes, torts, contracts..etc and also the interest of martial life like divorce, maintenance.. so on and finally the interest of property related like succession, testamentary disposition and so on

Social Interest

social interest like peace, general health, religion, political and economic institutions, natural resources, protection of economically weaker sections, freedom of trade and commerce, freedom of speech and expression and so on should legally protected.

3. Jural Postulates

To support maximum satisfication there need to minimize the conflicting interest in the society, so in order to evalute such conflicting interest certain assumptions were drawn by pound and termed as Jural Postulates. In 1919 pound described 5 jural postulates.

Jural Postulate I – under this, men must be able to assume that others will commit no intentional aggression on others.

Jural Postulate II – under this, men must be able to assume that men have control for beneficial purposes.

Jural Postulate III – men must be able to assume that to those whom they deal with will act in good faith.

Jural Postulate IV – Men must be able to assume that those whom involve in course of conduct without considering the unforeseen risk on others.

Jural Postulate V – Maintain things or employ agencies, harmless in their use but harmful in normal actions. 

Criticism on Pound’s Theory

Though greatest contribution given by pound on sociological jurisprudence and on functionality of law in society, inspite there are certain drawbacks on his theory 

Engineering – the use of term engineering, denotes the society as factory, besides factory as a fixed asset or property, but the law is always changing phenomenon since its inception

Classification of interest – Pound classification of interest is marked as danger to rely on, as the these are changing phenomenon and later pound accepted this criticism by Dr.Friedmann