For our studentsJurisprudence

LawpreneurzJurisprudence

1. Historical School: (How did the law come to be?)

The historical school was founded by Savigny. This school of jurisprudence views law as an evolutionary process and concentrates on the origin, sources and development of law and an interpretation of changes in the legal system. It is based upon past known facts regarding the law. Savigny believes that the law cannot be borrowed from outside. And the main source of law is the consciousness of the people.

The followers of this school argued that law is found not made. The historical school doesn’t believe and support the idea of the natural school of law which believe that the origin of law is from superior authority and have some divine relevance.

The basic source of the Historical School of Jurisprudence is the habits, customs of the people which changes according to their needs and requirement. It is also called the continental school of Jurisprudence.

Jurists like Montesquieu, Savigny, Sir Henry Maine, Georg Friedrich Puchta, Kohler, Hugo are the supporter of the Historical School of Jurisprudence. Montesquieu and Maine are considered as the main propounders of this Historical School.

2. Analytical School: (Legal Positivism)

It deals with the discovery, analysis of the fundamental principles of law, propositions (concepts) upon which an actual legal system is based.

This school is based on the doctrine of Positivism and Utilitarianism Principle. Positivism means that there is no higher law than that created by governments, legitimate or self imposing, and that such law must be obeyed, even if it appears unjust or otherwise at odds with the “natural” law. This doctrine states that the law is expressed or commanded by a political sovereign. The founder of positivism theory is Jeremy Bentham.It puts emphasis on legislation as the source of law and the whole system is based on its concept of law

Utilitarianism Principle: this doctrine states that actions derive their usefulness as means to some end.

The main task of the analytical school is the detailed analysis related to articulation of legal axioms, the definition legal terms and the prescribing of methods allowing one to perceive a legal order within the society.

John Austin is the founder of the Analytical School. Bentham, Austin, Sir William Markby, Sheldon Amos, Holland, Salmond are the major contributors to this Analytical School.

3. Sociological Jurisprudence: (‘What is’ rather than ‘what ought to be’)

Sociological conception of law locates the law in the present-day institutions of its society i.e. What is. The proponents of sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control.

As per sociological jurisprudence, Law is linked with other social science disciplines and treated it as a synthesis of psychology, philosophy, economics, political science, sociology, etc. Law, according to them, was an applied science employing functional methods of investigation and analysis for solving the social and individual problems. The main function of law is to fulfil the needs of the society. Social requirements are accomplished by law and law is a social instrument for maintaining law and order in the society.

The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behaviour, organization, environment, skills, and powers involved in the maintenance of a particular society. They are also concerned with the practical improvement of the legal system. Its data is derived from investigations of the effects of he social phenomena on the legal order.

Some of the main contributors of this school are Roscoe Pound, Duguit, Hobel, cairns, Ahrens.

4. Philosophical Jurisprudence: (Natural Law School, Ethical School)

This school concerns with the relation of law to certain ideals which law is meant to achieve. It seeks to investigate the purpose/ ends for which a particular law has been enacted. It is not concerned with its historical or intellectual content. These ends are identified as maintenance of peace, order, morality and justice in society.

It upholds that beyond and superior to the law made by man are certain higher principles, the principles of natural law. These principles are immutable and eternal. With regard to the highest matter man-made law should be in accord with the principles of natural law. And to the extent that man-made law conflicts with natural law, it lacks validity. Therefore, such conflicting man made laws will not be valid and binding law at all.

The notable jurists of this school are Crotius, Immanuet Kant, Hegel, Pufendorf, Spinoza.

5. Socialist Jurisprudence:

Socialist school studies impact of economics and capitalism upon the laws and the society. It supports communist doctrine and manifesto. Socialist jurisprudence sees law as an instrument of exploitation by bourgeois people against proletariat people. It is used by economic rulers to keep the masses in subjection and exploit them.

Law is not seen as indispensible and hence, the socialist jurists predict that law will be abolished in the end.

Karl Marx, Frederic Engels, Evgeny Pashukanis, Karl Renner, Antoni Gramsci are the supporter of socialist school of jurisprudence.

6. Comparative Jurisprudence:

This involves the examination of doctrines of a variety of legal systems in an attempt to establish areas of similarity and differences.

Maine, Bodin, Ihering are the contributors to this school of jurisprudence.

7. Realist Jurisprudence: (Legal Realism)

This school considers law as judge made and by doing so it puts the court at the center. It contends that positive law cannot be applied in the abstract; rather, judges should take into account the specific circumstances of each case, as well as economic and sociological realities. This theory emphasizes the role of the judge that is it emphasizes that law is made not found, and considers judges as the true law makers.

It is concerned with the act rather than with the ideas and perceptions. Law is therefore seen as what the courts do and not what is merely written in the statute books.

Holmes, Grat, Cardozo, Ross, Hagerstrom are some of the supporters of this school.

8. Political Jurisprudence:

In this school the courts are seen as the political agencies and judges as political actors. Shapiro is the major contributor to this school of Jurisprudence.

9. Synthesis Jurisprudence:

This school combines various school of jurisprudence into one. It tries to synthesise various jurisprudential approach.

Functions and Purpose of Law:

Law should be a dynamic concept i.e. it must change with time and place. Law, in the modern sense, is considered not as an end in itself, but is a means to an end. The end is securing of social justice.

According to Holland, the function of law is to ensure the well-being of the society. Thus it is something more than an institution for the protection of individuals’ rights.

The function and purpose of law according to John Salmond are Justice, Stability and Peaceful Change.

1. Justice:

The object of law is to ensure justice. Law is merely an instrument to achieve justice. Justice in the sense of equality has 2 aspctes i.e. (i) Distributive Justice and (ii) Corrective Justice.

(i) Distributive Justice seeks to ensure fair distribution of social benefits and burden among the members of the community or country. Distributive Justice lies within the realm of the legislature.

It serves to secure a balance or equilibrium among the members of the society i.e. secures summum bonum (the greatest good) of the whole community. It is in this context that social engineering becomes the prime concept of law. Roscoe Pound has enunciated that social engineering is the improvement of the law, in the light of social wants of the time, so that the law may procure the greatest good of the large number in the society. Roscoe Pound attributed four major functions of law, namely: (1) maintenance of law and order in society; (2) to maintain status quo in society; (3) to ensure maximum freedom of individuals; and (4) to satisfy the basic needs of the people.

Distributive Justice is based on the principle that there has to be equal distribution amongst the equal. Reasonable classification is allowed as per Article 14 of the Constitution of India.

(ii) Corrective Justice seeks to remedy the wrong. When distributive justice is infringed, then there is a disequilibrium which needs to be rectified through corrective justice, which is enforced through the courts of law and involves enforcement of the law.

Rule of law is sine qua non for even-handed dispensation of justice. It implies that everyone is equal before law and law extends equal protection to everyone; judges should impart justice without fear or favour and like cases should be treated alike. Thus, corrective justice is a function of the court.

Thus if a person wrongfully takes possession of another’s property, the court shall direct the former to restore it to the latter. This is corrective justice.

2. Stability:

Justice alone is not the only goal of law, the other desirable outcome of law is stability. Unless and until the vast majority of the people think and believe in same values, there cannot be stability.

Uniformity and certainty of rules of law brings stability and security in the social order. Due to uniformity, people can order their behaviour. Therefore, law must be pre declared and there must be no retrospective application of the law. When rules are known beforehand, certainty is infused in people and they can predict the legal consequences of their behaviour.

Uniformity is needed to provide certainty and predictability. That is, where laws are fixed and generalized, the citizen can plan his/her activities with a measure of certainty and predict the legal consequence of his/her conducts.

3. Peaceful Change:

Law must be capable of being changed, modified or altered so as to adapt to social changes. As per Roscoe Pound, Law must be stable yet it cannot stand still. Legal order must be flexible as well as stable.

Law must be flexible and allow for infusing change. The need for stability and the need for change should be balanced by the Judges.

4. Greatest happiness of greatest number:

This utilitarian function of law emanates from the ethical theory held by Jeremy Bentham and John Stuart Mill that the greatest happiness determines the highest moral good.

5. To win acceptance or tolerance of vast majority:

The purpose of winning acceptance and tolerance from a sufficiently large sections of the society renders enforcement possible.

6. Compromise:

The purpose of law is to reconcile the will of h state with the liberty of the citizens. There has to be protection of the interest.

References:

  • 50 Lectures on Jurisprudence by Rohinton Mehta.
  • Jurisprudence by John Salmond.
  • Jurisprudence by Dias
  • Studies in jurisprudence and Legal Theory by Paranjape, N.V.

LawpreneurzDetails of lecture

Sr No. Topics
Lecture 1 Introduction
Lecture 2 Schools of Jurisprudence
Lecture 3 Nature Law Theory
Lecture 4 Austin Theory
Lecture 5 Kelsen Pure Theory of Law
Lecture 6 Harth's Legal System
Lecture 7 Legal Right
Lecture 8 Hohfield's Principle
Lecture 9 & 10 Possession
Lecture 11 Ownership
Lecture 12 Titles
Lecture 13 Liability
Lecture 14 Analysis of Law and Sources of Law
Lecture 15 Interpretation of Statutes
Lecture 16 Negligence
Lecture 17 Obligations
Lecture 18 Law of Procedure
Lecture 19 Legal Personality
Lecture 20 Law of Property

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