Different schools of jurisprudence

The different approaches or theories regarding jurisprudence have led to the formation of
different schools of jurisprudence. The different schools of jurisprudence are:

Philosophical school
The philosophical school of jurisprudence mainly focuses on the aim what the law intends to
achieve. It tries to decode the reason behind the establishment of the legal system.

Historical school
The historical form of school mainly focuses on the customs, traditions, ethics, etc followed
by people from the immemorial time. The origin of the historical school of jurisprudence is
believed to be the evolution of law since long back. Savigny is known as the father of the
historical school of jurisprudence.

Realist school
The origin of the realist school is in American jurisprudence. The realist school mainly focuses
on the practical view rather than abstract ideologies. It is more concerned about what the
court may do rather than ideologies present behind the general rules of law.

Sociological school
This form of school tries to analyze the expressions of people, the laws of society, and the
relation between law and society.

Analytical school
The origin of the analytical school of jurisprudence dates back to the 19th century. The
emergence of this school is from civil law. This form of school is based upon the positive
approach towards law. This form of school emphasized the laws “as it is”.

Natural School
The natural law theory reflects on perpetual quest for absolute justice. It adapts with the
society to meet the new changes of the transient society. Natural law theory means which is
inherent in the nature of the man i.e. which comes naturally. It is not made by man but only
discovered by him whereas other laws are created, evolved, modified and altered by man.
Analytical School

John Austin is the founder of the Analytical School. He is considered as the father of ‘English
Jurisprudence’.

Austin’s Definition of Law

He confined his study only to positive law. By positive Law, Austin meant ‘laws improperly
so called’ as distinguished from morals and others as ‘Law properly so called’ which lack force
or sanction of the State. He excluded the consideration of goodness or badness and said there
is no place for ideal or justness in law. He defined law as “a rule laid for the guidance of
intelligent being by an intelligent having power over him.” Austin studies the law as it is
(positus) rather than law as it ought to be. He also distinguishes positive law from positive
morality which is devoid of any legal sanction. The major thrust in Austinian positive law was
therefore, on separation of law from morals. It is also known as Imperative School as it
believes that law is the command of the sovereign.

Law

Laws properly so called law improperly so called

Law of god Human Laws Laws by analogy, Laws by metaphor,

As laws of fashion i.e. laws of gravity

Positive laws (or laws Laws not set by men,

Strictly so called) set by as political suprerior,
Political superior to political inferior, or or in pursuance of a legal right
By private persons in pursuance of legal
Right.
Positive morality

According to Austin, only positive law is the subject matter of study of jurisprudence. “The
matter of jurisprudence is positive law: Law simply and strictly so called: or law set by political
superiors to political inferiors”. The central feature of Austin’s theory is of course the motion
of law as command of the sovereign. Anything that is not command is not law. And only
commands emanating from sovereign are positive law.

Characteristics of Positive Law

(1) Law is command- According to Austin, ‘Laws properly so called’ are the species of
commands. Therefore, a command obliges a person to act in a certain way with the
threat of displeasure if the rule is not obeyed.
 (2) Sanction - Sanction is the evil or displeasure which will be incurred if a command is
disobeyed and is the means by which a command is enforced. Hence, sanction is the
very essence of a command.

(3) Duty - As the law proceeds from a superior, so the inferiors are under an obligation
to obey.

(4) Sovereignty - Every positive law is set by a Sovereign person or a sovereign body to a
member or members of independent political society i.e. when it receives habitual
obedience from the politically independent society.

Exceptions to the Austin’s Definition of law

According to Austin, there are three kinds of laws which, though not commands, may be
included within the purview of law by way of exception:-
(i) Declaratory laws, i.e. the ones passed only to declare or explain the laws already in
force though not commands are considered as law.
(ii) Laws to repeal law – these are not commands but are rather the revocation of a
command.
(iii) Laws of imperfect obligation - These laws have no sanction attached to them.

From the above, it is clear that in Austin conception of law such motion as justice or
morality have no place i.e. law is the power of superior and carries no ethical values. He made
a scientific study of law. According to him, jurisprudence is concerned with the law as it is and
not as it ought to be.

Criticism of Austin’s Theory

Austin theory has been criticized by a number of jurists like Bryce, Olivecrona and others.
Bryce commented that Austin’s work as full of errors which hardly has any significance in
juristic thought. The main points criticism against Austin’s theory are as follows:
(1)Customs overlooked- According to Austin, laws are the command of sovereign;
thereby he overlooked the importance of customs in the evolution of law as is supported by
historical facts. Even after the coming into existence of the state, customs continued to
regulate the conduct. So, customs are the part of jurisprudence but Austin ignored them.
(2) Permissive character of law ignored - Austin theory does not take notice of laws which
are of a permissive character and confer privileges, eg. The Bonus Act, or the law of wills etc.
(3)No place for judge made law - Austin ignored the fact that the judiciary can also create
law, i.e. apart from being the interpreter and protector, judiciary is also a law making agency;
which has been accepted in modern times but overlooked by Austin.
(4)Command over emphasised - The Swedish Jurist Olivecrona has denounced Austin’s
theory of law because of its over emphasis on ‘command’ as an inevitable element of law. In
a democratic setup this view is not acceptable as law is regarded as an expression of the
general will of the people.
(5)Relationship between law and morality overlooked - Austin stated that law is devoid
of morality, it cannot be polluted by introducing the elements of natural law like justice, good
conscience and equity. Therefore, he believed in complete divorce of law and morality.
Commenting on the inter-relationship between law and morality, Dr. Jethro Brown observed,
even the most despotic legislator cannot think of or act without availing himself of the spirit
of his race and time. The legal concepts such as ‘right’, ‘wrong’, ‘duty’, ‘obligation’ etc.
themselves suggest that there is some ethical or moral element present in them.
(6)Sanction alone is not the means to induce obedience- According to Austin, it is
sanction alone which includes the man to obey law but it is not correct. There are many other
considerations such as fear, deference, sympathy, reasons etc. which may induce a person to
obey law. The power of State is only the last force to secure obedience of law.
(7) International Law as mere morality - Austin treated International Law under positive
morality. According to him, the main ingredient of law i.e. sanction is lacking in international
law. But this will not deprive it from being called law. Today, international law is very much
considered as law. Hence, Austin excluded a very important branch of law from the study.
Despite criticism against Austin’s concept of law, the credit of heralding a new era in the
English legal thought goes to Austin.
(8) It is Artificial:- The view that law is ‘command of the sovereign’ suggests that as if the
sovereign is standing just above and apart from the community. The State is sovereign and
law is nothing but general will of the people. Therefore, law cannot be said to be a command.

Criticism
Amos observed that a positive law, as Austin shows, must be legally binding though it may be
unjust. HLA Hart held that it created a situation where law obligates subjects and threatens
them with physical coercion compelling the subjects to obey it even if it is most unjust or
unfair.
Analytical school is neither concerned with the past nor with the future, but confined the
study to the law as it actually exists.
JEREMY BENTHAM
Jeremy Bentham is considered to be the founder of positivism in the modern sense of the
term. Though Austin is considered to be the father of analytical or positivist thought but he
owes much to Bentham and on many points his propositions are merely the ‘para-phasing’ of
Bentham’s theory. Bentham pleaded for codification of laws and he was opposed to judge-
made law.
The contribution of Jeremy Bentham to the English Law reforms can be summarized
thus:
1) Firstly, he determined the principles on which reforms should be based.
2) Secondly, he determined the method i.e. the mode of legislation, by which reforms
should be carried out in England.

Bentham’s Views on Law: He favoured codified law. Bentham distinguished expositoral

jurisprudence (i.e. what the law is) from censorial jurisprudence (i.e. what the law ought to
be).
Jeremy Bentham defined 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; such volition trusting for its accomplishment to the expectation
of certain events which it is intended such declaration should upon occasion be a means of
bringing to pass, and the prospect of which it is intended should act as a motive upon those
whose conduct is in question".
He believed that every law may be considered in the light of eight different aspects:-
1. Source (law as the will of Sovereign).
2. Subjects (may be persons or things).
3. Objects (act, situation or forbearance).
4. Extent (law covers a portion of land on which acts have been done).
5. Aspect (may be directive or sanctional).
6. Force.
7. Remedial state appendages.
8. Expression.

Individualism, utilitarianism: Bentham’s legal philosophy is called ‘utilitarian individualism’.

Bentham emphasized that the function of law is to emancipate the individual from the
bondage and restraint upon his freedom. For him, if a man is free, can look after his welfare
himself. According to this theory, the right aim of legislation is the carrying out of the principle
of utility. He advocated that doctrine of utility in terms of pain and pleasure. Thus, in
economic activity, he supported the doctrine of ‘laissez faire’ i.e. least state interference. He
was an individualist in this sense but he was also an utilitarian. According to him, the end of
legislation is the ‘greatest happiness of the greatest number’. The purpose of law is to bring
pleasure and avoid pain. He pleaded for codification and condemned customs and judge
made law.
Hedonism Theory:- pleasure and pain:- Bentham proceeded from the axiom that nature has
placed mankind under governance of two sovereign masters i.e. pleasure and pain. They
alone point out to us what we ought to do and what we should refrain from doing. The good
or evil of an action should be measured by the quality of pain and pleasure resulting from it.
The task of government according to Bentham, was to promote happiness of society by
furthering enjoyment of pleasure and affording security against pain. He was convinced that
if individuals comprising society were happy, their would be happiness and prosperity.
Bentham believed that happiness of the social order is to be understood in the objective sense
and it broadly includes satisfaction of certain needs, such as need to be fed clothed, housed,
etc.
Bentham desired to ensure happiness of the community by attaining four major goals,
namely, (1) To provide subsistence. (2) To produce abundance, (3) favour equality, and (4)
security for the citizens
Bentham's perception of justice is based on system of values and each society has its own
different set of values, i.e. morals. The individuals living in the society have to conform to the
set values or norms and rationalise his conduct or behaviour accordingly. If they do not, there
would be conflict of interest. If there is no conflict of interest, there would be no need for
justice.

Criticism against Bentham:

1) Friedman while criticizing Bentham says that he overestimates the powers of the
legislator and underestimates the need for individual discretion and flexibility in
application of law.
2) His theory fails to balance individual interest with the interests of the community.
3) Bentham’s hedonistic calculus i.e. law should be such which gives pleasure and avoid
pain cannot be the test judge the validity and adequacy of law.
4) According to him, legislation should provide individual freedom and provide him
opportunities for his self-progress but in later times, state regulated every human
activity and was used to put restriction on human activities in economic matters also.

Bentham’s influence: Despite the shortcomings of Bentham's theory of utilitarianism,

his legal reforms ushered a new era in the history of legislation in England, and indeed,
legislation has now become one of the most popular methods of law-making. Bentham
devoted his entire life to the improvement in the quality of law and life with a view to
promoting happiness of the people. Austin owes much to Bentham who was later crowned
as ‘father of English Jurisprudence’.

HANS KELSON

The ‘Pure Theory of Law was propounded by Hans Kelsen. Like Austin, Kelson diverted moral,
ideas or ethical elements from law and wished to create a ‘pure science of law’ devoid of all
moral and sociological considerations. He also discarded the notion of justice as an essential
element of law because many laws, though may be not just, but may still continue as law.
Thus, kelson’s pure theory of law is a theory of positive law based on normative order
eliminating all extra legal and non legal elements from it.
According to Kelson law is ‘normative science’ i.e. law is hierarchy of norms. He stated that
there is a grundnorm i.e. the Supreme norm from which other norms draw their validity. His
grundnorm is analogous to Austin’s concept of sovereign without which law cannot be
obligatory and binding.
According to Kelson "norm (sanction) is a rule forbidding or prescribing a certain behaviour'.
For him, legal order is the hierarchy of norms having sanction and Jurisprudence is the study
of these norms which comprise legal order. He distinguishes moral norm with legal norm. For
example, moral norm says that "one shall not steal but since it has no punitive
consequence, it lacks coercive force but if it is to be reduced in form of legal norm, it would
say, if a person steals, he ought to be punished by the competent organ or State". This
'ought in the legal norm refers to the sanction to be applied for violation of law.
Law norms are different from the norms of science as they are “IS” while the law norms are
“ought”. It is the ‘ought’ character which provides normative character to law.
Example: The command of a gangster to handover to him a certain sum of money has the
same subjective meaning as the command of an income tax official, namely that the individual
at whom the command is directed ought to pay something. But only the command of the
official has the meaning of a valid norm (i.e. objective meaning) binding upon the individuals
because the act of officials is authorised by law.

The Grundnorm
Kelson's pure theory of law is based on pyramidical structure of hierarchy of norms which
derive their validity from the basic norm which he termed as 'Grundnorm. Thus Grundnorm
or basic norm determines the content and gives validity to other norms derived from it. Kelson
has no answer to the question as to wherefrom the Grundnorm or basic norm derives its
validity. Thus while all norms derive their validity from the basic norm (Grundnorm), the
validity of basic norm cannot be objectively tested. instead. it has got to be presumed or pre-
supposed, Kelson, however, considers Grundnorm as a fiction rather than a hypothesis.
Pyramid of Norms
Kelson considers legal science as a pyramid of norms with Grundnorm (basic norm) at the
apex. The subordinate norms are controlled by norms superior to them in hierarchical order.
The process of one norm deriving its power from the norm immediately superior to it, until it
reaches the Grundnorm. Thus the system of norms proceeds from downwards to upwards
and finally it closes at the Grundnorm at the top.
For example:- a statue or law is valid because it derives its legal authority from the legislative
body, the legislative body in its own turn derives its authority from a norm i.e. the
Constitution. As to the question from where does the Constitution derives its validity there is
no answer and, therefore, it is the Grundnorm according to Kelsonite conception of pure
theory of law.

Salient Features of Kelson's Theory of Pure Science of Law

1) The theory is aimed at reducing chaos and confusion created by the supporters of
natural law philosophy.

2) Pure theory of law deals with the knowledge of what law is, and it is not concerned
about what law ought to be.

3) The theory considers law as a normative science and not a natural science. Kelson's
pure theory of law is a theory of norms not so much concerned with the effectiveness
of the legal norm.
 4) It is formal theory confined to a particular system of positive law as actually in
operation.

Characteristics of Grundnorm
According to Kelson, in every legal system there is always a ‘Grundnorm’. Grundnorm is not a
particular norm. In one legal system, it may be constitution while in the other it may be
Parliament or the king or crown etc. For Example: In Britain the ‘Grundnorm’ is Crown in
Parliament and in U.S.A it is the constitution.

Implications of Kelson’s Theory Pure Science of Law

• According to Kelson, law and State are not different but they are in fact one and the
same.
• Likewise, there is no difference between public and private law. Kelson also denies
any legal difference between natural and juristic personality. For him, all legal
personality is artificial and derives its validity from grundnorm.
• He does not believe in the existence of individual rights and asserts that “legal duties”
are the essence of law. In his view legal right is merely the duty as viewed by the
person entitled to require its fulfilment.

Criticism
• Lacks sociological foundation:- He excludes all references of social facts and felt needs
of the society. Thus his pure theory of law is without any sociological foundation.

• No Logical base of Grundnorm/ The purity of norms cannot be maintained:- Kelson's

assertion that all the norms excepting the basic norm (Grundnorm) are pure, has no
logical basis. One really fails to understand as to how subsequent norms which derive
their authority from the Grundnorm can be pure when the grundnorm itself is based
on a hypothesis that it is an outcome of the combination of various social and political
factors and circumstances in a given situation. Commenting on this point Julius Stone
has sarcastically remarked, "we are invited to forget the illegitimacy of the ancestor in
admiration of the pure blood of the progeny",

• Justice and morality ignored:- He does not consider justice and morality as essential
attributes of law. Kelson's theory provides no solution for the conflicts arising out of
ideological differences. Law cannot be completely divorced from ethics and morality
which gives it a honourable place in the society.

• His ‘Grundnom’ vague and confusing: For the successful application of Kelsen’s theory
the discovery of the grundnorm is a condition precedent but it is very vague and
confusing and difficult to trace it out. The historical jurists criticized his theory by
saying that in any other source such as ‘Grundnom’ Kelsen seems to have given his
thesis on the basis of the written constitutions.
• Rule of ‘Minimum of Effectiveness’: Kelsen says that a grundnorm is valid if it
qualifies the test of minimum of effectiveness’. But in reality it is not so. People throw
 the law which is not acceptable to society sooner or later. His theory is based on
hypothetical consideration without any practicability. It is not possible to divest law
from the influence of political ideology and social needs.

H.L.A. HART
Though H.L.A. Hart favoured analytical approach to law for a better understanding of law but
he criticized the analytical approach of his predecessors in his classical work ‘The Concept of
Law’. He rejected Austin’s theory of analytical positivism and expounded his legal theory
based on the relationship between law and society. Thus, his notion was different from his
predecessors because he believed that law, coercion and morality are related having social
implications.
Hart’s Conception of Law: According to Hart, law is a system of two set of rules the union of
which provides key to the Science of Jurisprudence. He termed these rules as ‘primary’ and
‘secondary’ rules.
Primary Rules: Hart emphasized that primary rules are duty imposing that is why they are
also known as primary rules of obligation.
Secondary Rules: Secondary rules confer power also known as secondary rules of recognition.
Characteristics of Primary Rules: Primary rules impose duty upon individuals, so are binding
because of the popular acceptance such as rules of kinship, family sentiments etc. These are
unofficial rules so suffer from defects like:
(1) Uncertainty (2) Inefficiency and (3) Static character
Social acceptance is sanction behind them.
Characteristics of Secondary Rules: Secondary rules are power conferring so they enable the
legislators to modify their policies according to the needs of the Society.
The secondary rules are dependent on primary rules, primary rules impose duties, which are
concerned with actions involving physical movements or changes whereas the secondary
rules which confer public or private powers which lead to creation or variation of duties or
obligation. Social acceptance predominates in primitive societies and organised authority
predominates in more developed societies. This distinction is expressed in terms of contrast
between primary rules of obligation and secondary rules of recognition.

Rule of Recognition
Hart’s positivism explains the existence of law with reference to the rule of recognition
binding force, which depends upon its acceptance. The validity of law is to be tested on the
basis of rule of recognition which is similar to Austin’s conception of sovereign.
For example:- various constitutional laws which constitute rule of recognition are rules of
positive law which are binding on citizens.
Hart’s Views on Law and Morality
H.L.A. Hart does not denounce the role of natural law in his positivism. Unlike Austin and
Kelson, Hart contends that it is necessary for law and morality to have certain element of
natural law as a logical necessity. As a member of society, individuals feel morally bound to
abide by these rules both as a matter of duty and obligation. Thus, law and morality are
complementary and supplementary to each other. In his view, there are four attributes of
morality, namely. (1) importance, (2) immunity from deliberate change, (3) voluntary
character of moral offences; and (4) forms of moral pressure which separate it from etiquette,
custom and other social rules. The rules of sexual behaviour provide the best example of
morality.
Criticism

• Dworkin denounces Hart's view of law as a union of primary and secondary rules and
exclusion of morality from law. He drew a distinction between 'rules' and 'principles
and pointed out that a legal system cannot be conceived merely as an aggregate of
rules but it has to be based on certain solid principles and policies.
• Lon Fuller has also criticised Hart's theory which holds that there is no law other than
the rules of recognition.
Historical School – Savigny, Puchta, Henry Maine
Historical School concentrates on evolution of law from the primitive legal institution of the
ancient times. Historical jurists banished ethical consideration from jurisprudence and
rejected all creative participation of Judge and Judge or law giver in the making of law. In this
law was viewed as a legacy of past and product of customs, traditions and beliefs prevalent
in different communities.

Friedrich Karl Von Savigny

Savigny was the main exponent of this historical interpretation of law and is considered to be
the propounder of historical jurisprudence. He traced the development of law as evolutionary
process much before Darwin gave his theory of evolution in the field of biological sciences.
That is why he is known as ‘Darwinian before Darwin’. He wrote “Law grows with the growth
and strengthens with the strength of the people and finally dies as the nation loses its
nationality”. Therefore, all law according to him is the manifestation of this common
consciousness. Law is found or discovered not made. It can’t be made artificially like the
invention of an object. Law is found on the basis of consciousness, customs and beliefs of the
people.

Volksgeist as a Source of Law: According to Savigny, Law is a product of the people’s

life, it is a manifestation of its spirit. Law is a product of the general consciousness (Volksgeist)
of the people. Therefore, he strongly felt that CODIFICATION OF German Law was not
desirable for its smooth development at that time. This eventually delayed codification of
German Law for another fifty years. Savigny’s contribution to the development of historical
school may briefly be stated as follows:
1. Law develops like language: Savigny stated that law has a national character and it
develops like language and binds people into one because of their common faiths,
beliefs and convictions. He states that law grows with the growth of the society and
gains its strength from society itself and finally it withers away as the nation loses its
nationality. Law, language, Customs and government have no separate existence from
the people who follow them. Law grows with nations, increases with it, and dies at its
dissolution and is a characteristic of it.

2. Early development of law is spontaneous: thereafter developed by jurists: According

to Savigny in the initial stages of development, law develops spontaneously according
to the principles of internal necessity. He professed that any law making should
therefore follow the course of historical development. He stated that custom not only
precedes legislation but it is superior to it. When the law grows, it is taken up by
specialists such as jurists, linguists, anthropologists, scientists etc for further study. At
its earliest stage, it was founded on general consciousness of the people but as it grew
and developed, it assumed the complex and technical form of law.
 3. Savigny was opposed to codification of German Law: Savigny was not totally
against codification of laws. Since Volksgeist i.e. common consciousness had not
adequately developed at that time, therefore, codification would have hindered the
evolution and growth of law. He emphasised that codification of German law without
having jurists of sufficient genius and adequate expertise in Roman law would not
serve the desired purpose as Roman law formed an integral part of the German legal
system at that time. He considered lawyers and jurists as true representatives of the
popular consciousness rather than the legislators whose role is limited to law-making
only. He opined that German law could be codified at a later stage when the
unification of Germany takes place and there is one law and one language throughout
the country.

4. Admiration of Roman Law: While emphasizing volkgeist i.e. people’s spirit or as the
essence of law, Savigny justified the adoption of Roman Law in the texture of German
Law. Savigny's admiration for Roman law was, however, criticized by Professor
Eichhorn as he wondered how a foreign law could be a true Volksgesit (popular will)
of the German people. Prof. Eichhorn was totally against Roman law and wanted
German law to be relieved from its influence. On the other hand, Savigny and his
followers were opposed to the expulsion of Roman law from Germany.

5. Law is a continuous and unbreakable process.-Tracing the evolution of law from

Volksgeist, namely, people's spirit or consciousness. Savigny considered its growth as
a continuous and unbreakable process bound by common cultural traditions and
beliefs.

The main tenets of Savigny’s theory can be summarised below:-

(1) Law has an unconscious organic growth.
(2) The basis of law is to be found in Volksgeist which means people's consciousness or
will, and consists of traditions, customs, habits, practices and beliefs of the people.
(3) Law is not universal in nature but like language, it varies with people, time and needs
of the community.
(4) Since law should always conform to popular consciousness i.e. Volksgeist, custom not
only precedes legislation but is superior to it.
(5) With the growing complexity of law, the popular consciousness is represented by
lawyers who are nothing but the mouthpiece of the popular consciousness. It is for
this reason that lawyers and jurists are more important than legislators in the process
of development of a legal system.

Savigny’s Contribution to Juristic Thought

1. Savigny’s Contributions: Savigny is considered by many to be the greatest jurist of 19th
century.
2. His theory a reaction against Natural Law: Savigny’s theory came as a powerful
th
reaction against 18 Century ‘rationalism’ and ‘principles of natural law’, the supporters of
which tried to establish a legal theory of universal application without any consideration of
time and place. Savigny always professed that law like language has a national character.
3. His main thesis still unimpaired: Savigny was mainly occupied with the thought that law
originates from the common consciousness of the people and which still holds good in the
modern democratic legal systems.
4. Theory in hands of National Socialist: Unfortunately, the theory of Volksgeist has been
used for entirely a different purpose by the National Socialist. To them nation means a racial
group and the function of the law was to keep it pure and to protect it. This led to the passing
of most ruthless and brutal laws against the jews in Nazi Germany.
5. Savigny’s influence very wide: Savigny who was the chief exponent of Historical School
influenced many jurists. Apart from his followers in his own country, his method was followed
in England by Maine, Vinogradoff, Lord Bryce and many others.
6. Warning against hasty legislation:Savigny sounded a note of warning against hasty
legislation and introduction of revolutionary ideas and aspiration based on abstract principle.
CRITICISM OF SAVINGNY’S THEORY OF VOLKSGIEST

(1) Undue importance to Roman Law/ Inconsistency in the theory:-. There are certain
inconsistencies which are apparent in Savigny's theory. He emphasised the national character
of law but at the same time suggested a model by which Roman law could be adopted and
accepted as the law of Germany. Savigny's undue importance to Roman law has been bitterly
criticised by Eichhorn, Beselor and Gierke and it was because of their intervention that
German Code was drafted in subsequent years.
(2) ‘Volksgiest’ is not the only source of law: Savigny's assertion that popular consciousness
is the sole source of law is not wholly true. The theory of Volksgeist overlooks the impact of
other sources of law such as legislation, precedent etc. in the evolution of law.
(3) Evil Customs/ Customs are not always the base: Savigny's view that customs are always
based on the popular consciousness is also not acceptable. Many customs such as slavery,
bonded labour etc. originated to accomplish the selfish interests of those who were in power.
They are adopted because they are being blindly followed and continued for a long time and
not because they are righteous and have the support of popular consciousness.
(4) Roscoe Pound’s criticism/ Juristic pessimism: Roscoe Pound criticised Savigny's theory as
it hindered legal reforms and modernisation of law in the name of Volksgeist. Criticising
Savigny's legal theory, Pound observed that no legal system would like to stick to the
prevalent abuses and baneful customs only because people are accustomed to them. Like Sati
system. Legislation cannot be made on wrong customs.
(5) Anti- codification attitude:- His anti-codification attitude thwarted the growth of German
law for several decades.
(6) Ignored other factors that influence law:- He was so occupied with the source of law that
he overlooked the other sources of law like creativity of judges and contributions of Jurists.
For example:- the law relating to trade unions is an outcome of a long and violent struggle
between conflicting interests within the society.
(6) Last but not the least: Savigny’s Volksgeist helped many nations in promoting their own
ideologies. Thus, Nazi twisted it by giving a racial colour, the Marxists used it giving economic
interpretation of history and Italy used to justify fascism.

Henry Maine
Sir Henry Maine made very valuable contribution to legal philosophy by way of historic
comparative method. His contribution to historical jurisprudence is so great that he is labelled
as ‘Social Darwinist’ for he envisaged a social order wherein the individual is finally liberated
from the feudalistic primitive bondage.
Maine's Views on Development of Law
• Sir Henry Maine believed that historical research served as a useful tool to make the
present more understandable.

Maine’s theory of evolution of law

Maine made a comparative study of legal institution of various communities and laid down a
theory of evolution of law. According to him, the evolution and development of law can be
traced through four stages.
Stages of development of law:
(1) Divine Inspiration - In the beginning law originated from themes which mean the
goddess of justice. It was then believed that while giving commands and pronouncing
judgments the king is under the divine inspiration of God.
(2) Customary law - The continuous application of such commands led to uniform
practice which crystallized into customary law to be followed by primitive societies. Maine
underlined the importance of custom by saying that ‘custom is to society what law to State’.
(3) Knowledge of law in the hands of priests - In the third stage due to the weakening of
original authority the king the authority to enforce and execute law was usurped by the
priestly class who claimed themselves to be learned in law as well as religion. The priestly
class memorized the rules of customary law because the art of writing had not developed till
then. They applied and enforce the customary law.
(4) Codification - The era of codification marks the fourth and perhaps the last stage of
development of law. Now law is promulgated in the form of code. This broke the monopoly
of priestly class in matter of administration of law.

Determination on the basis of status

• Sir Henry Maine, through his comparative researches came to a conclusion that the
development of law and other social institutions has been more or less on an identical
pattern in almost all the ancient societies belonging to Hindu, Roman, Anglo-Saxon,
Hebrew and Germanic communities.
 • Most of these communities are founded on patriarchal pattern wherein the eldest
male parent called the pater familias dominated the entire family including all its male
and female members, children and slaves as also the property.
• Other was matriarchal pattern in which the eldest female of the family was the central
authority to manage all the affairs of the family. It is because of his kinship, namely
blood relationship with the family that a person acquired a status. Thus the law of
person was to be determined on the basis of his status.
• An aggregation of families constituted Gens which in turn led to the formation of
tribes. A collection of tribes formed the community which Maine termed as
commonwealth. The individual member of the family had no individual existence than
his status as a son, wife, servant etc. as the case may be. Similarly, servants and slaves
had no rights earlier.

Movement of Progressive Societies from Status to Contract

• With the march of time the institution of pater families withered away and now rights
and obligations were dependent on individual contracts and free negotiations
between persons.
• In other words, now the individual could take final decisions himself without
depending on headman of the family.
• The Benthamite doctrine of individual's freedom freed slaves from the bondage of
their master. This freedom of individual in economic field has been called as doctrine
of laissez faire
• It also lead to emancipation of women from the domination of males.
• Improvement in the condition of labour and workers etc. evidences that there has
been a shift of emphasis from status to contract in modern times.
• The rights and duties of an individual are not determined by status rather he is free to
determine his own rights i.e. he has the freedom to enter into a contract. This has led
to the disintegration of status and emergence of contractual relations between
individuals.

Reversal of trend from contract to status

• With industrialisation, urbanisation and modernisation, new problems of poverty,
unemployment, hunger, ignorance, disease etc., have cropped up giving rise to
inequality between individuals. There was exploitation of workers. and groups within
the society. This led to the emergence of Trade Unionism, the workers now formed
their associations and instead of individual freedom of bargaining their wages and
facilities, their trade unions had the power of group bargaining. That apart, several
labour welfare legislation such as the Minimum Wages Act, Factories Act, Trade
Unions Act, Workmen's Compensation Act, Employees Liability Act, Industrial Disputes
Act, Payment of Bonus Act, Bonded Labour (Abolition) Act, Contract Labour
(Regulation) Act, etc. this improved the service conditions and bargaining capacity of
workers. Consequently, there came a counter current of reversal from contract to
status in the life time of Maine himself. The Constitution of India seeks to promote
economic interest of weaker sections of Society and ensure them social justice." These
progressive welfare measures have forced upon the individual worker a new kind of
 status where he does not bargain individually but does so collectively through
associations or unions.

Law's Development through Legal Fiction, Equity and Legislation

Progressive and Non-Progressive Societies
• According to Henry Maine, when a primitive law is embodied in a Code, there is an
end to its spontaneous development and such communities are static societies. The
societies which continue development of law are called progressive societies by
Maine. There are three methods by which progressive societies develop their laws.
They are (1) Legal fictions, (2) Equity, and (3) Legislation

1. Legal fictions.-Legal fictions change the law according to the changing needs of the society
without, however, making change in the letter of law. Maine defines 'legal fiction" as "any
assumption which conceals or effects to conceal the fact that a rule of law has undergone
alteration, its letter remaining unchanged, its operation being modified". For example, the
fiction that incorporated bodies are treated as legal persons in the eyes of law having rights
and obligations like living persons, that a Hindu idol is a legal person. The English maxim, the
King is dead, long live the King furnishes one of the best illustrations of legal fiction.

2. Equity.-Equity consists of those principles which appeal to the conscience of human being.
These principles were invoked to remove the defects existing in the common law in England.
The rigidity of common laws judges forced people to approach the King for justice. The King
entrusted the task of administration of justice to Chancellor who was also the Head of the
Exchequer. Though not learned in law, the Chancellor helped in administration of civil justice
through the principles of justice, equity and good conscience. Thus Henry Maine defines
equity as, "a body of rules existing side by side of the original common law, founded on
distinct principles and claiming incidentally to supersede the common law by virtue of a
superior sanctity inherent in those principles.
The common law at that time suffered from three main defects, namely. (1) absence of
remedy in certain cases: (2) inadequacy of remedy; and (3) excessive formalism. These defects
were sought to be removed by three jurisdictions of equity law namely.
For example:- The origin of the concept of trust, appointment of receiver to administer the
property of the deceased etc, the remedies of specific performance of the contract, injunction
etc., the examination of witnesses on commission, set off (i.e., settling different claims of
same parties to litigation in a single suit) etc. are some of the instances of auxiliary jurisdiction
of equity which sought to mitigate the rigours and rigidity of common law due to complexity
of procedure. Thus, it is evidently clear that equity came to supplement the common law and
not to supersede it.
3. Legislation:- Legislation is the most effective method of law-making. It is considered to be
the most systematic and direct method of introducing reforms through new laws. The power
of the Legislature to make laws has been widely accepted by the courts and the people all
over the world.
Criticism of Maine’s theory
1. Theory no longer holds good reversal of trend from contract to status – Now the
workers instead of individually promoting their cause, negotiated through associations called
trade unions which had the power of group bargaining. Apart from these a lot of social
legislation has been passed which have fixed maximum working hours and minimum wages
and have laid down the rules regarding compensation and other conditions of service.

2. Changes in the Concept of functions of the state - In modern times, the contracts
between the government and the society have been standardized i.e. individuals cannot
change the terms of these contracts.
3. No place for the theory in totalitarian states - Maine’s theory is not applicable
universally. It holds good in case of capitalist countries which have transformed into socialist
states. But in totalitarian regimes, Maine ascertain about status to contract has no
application. In these countries no contract is allowed which is in any way not in consonance
with the state plan or is otherwise harmful to the society.

Contribution of Maine:-
• Improved upon the theory of historical school.
• Comparative study:- he studied the legal systems of various communities and laid
down a comprehensive theory of the development of law.
• Inspired later jurists.

Georg Friedrich Puchta

Puchta was Savigny's disciple and has been acknowledged as a staunch supporter of the
historical jurisprudence.

Puchta’s Theory:-

• In his view, neither the State nor the people alone are a source of law but law comes
into existence as a result of conflict between general and individual will. In the conflict
between general will and individual will, the state came into existence. And find out
the midway to resolve the conflict.
• He contended that by nature men always like to live in perfect unity, both spiritual as
well as physical.
• Unanimity among the members of society on certain basic issues constitutes their
general will. But self-interest of man results into a conflict between his individual will
and the general will and law came into existence for resolving these conflicts.
• The State, through the instrumentality of law restrains the individual from exceeding
the limits of his free will.
• Thus it is the State which regulates human conduct to implement General will
sacrificing individual interest.
• The main contribution of Puchta to the historical jurisprudence is that he improved
upon Savigny's theory and presented it in a more logical form.
• Puchta’s investigations on the popular origin of law convinced him that customary law
was the most genuine expression of the common conviction of the people, and for
this reason, far superior to legislation. He considered explicit legislation useful in so
far as it embodied the prevailing national customs and usages.
• The main concept of Puchta’s ideas was that “neither the people nor the state alone
can make and formulate laws”. Both State and individual are the sources of law.
• Despite some points of distinction Puchta and Savigny, he improved the views of
Savigny and made them more logical.
Sociological Jurisprudence

• The exponent of this school considered law as a social phenomenon. The attention
should be on social purposes and common interaction of men in social groups. The
main concern of sociological jurists is the effect of law and society on each other.
• It emerged as a reaction to rigid positivism that law is based solely on coercive power
of State and rejected pursuits of morality and to historical school’s undue importance
on past customs, traditions and values which blocked the growth.
• Major stress was on functional aspect of law.
• They consider law as a social institution having a direct impact on the society and
uphold the view that law is designed on the basis of human experience in order to
meet the needs of the society.

Four Developmental Stages of Sociological Jurisprudence

The prevailing social order and economic conditions generated rift and tensions between
different sections of society. Therefore, there was need for a fresh approach to the study of
law in terms of pressing needs of the society as the preceding dogmatic approach had failed
to deliver the goods. This led to the emergence of the sociological jurisprudence which began
from Auguste Compte, brought to the fruition by Dean Roscoe Pound and finally culminated
into Realist School of the twentieth century. The major stages through which the sociological
jurisprudence evolved and developed may briefly be stated as follows:

(1) Empirical Scientific Approach to Law - Auguste Compte is said to be the founder of the
sociological jurisprudence who made a beginning to what has been known as 'scientific
positivism'. His approach to law was empirical based on experience and observation and
rejected philosophical and historical school. He based his study of law on empirical
observation in an effort to establish co-relation between law and society.
(2) The Impact of Darwinian Evolutionary Theory -The next stage in the development of
sociological jurisprudence has been called as the 'biological stage' because of the influence of
the Darwin's evolutionary theory. It was asserted that law must evolve and adapt itself to the
changing needs of the progressive society.
(3) Impact of Psychological Theories -According to Dean Roscoe Pound, the third stage of the
development of sociological school is the psychological stage. Thus it was realised that
psychological aspect of law has a close bearing on the functional aspect of law.
(4) Unification Stage. The last stage of development of sociological jurisprudence consists of
unification of sociological method with other social sciences. It was realised that different
social sciences represent different aspects of human society. Therefore, they are
supplementary and complementary to each other.
Roscoe Pound:-
1 ) Emphasis on Functional Aspect of Law:
✓ Roscoe Pound’s approach to sociological jurisprudence was different in the sense that
he attempted to cover social-life as a whole unlike his predecessors who considered
law as the main subject of study and society as merely subsidiary to it. Pound laid
greater stress on functional aspect of law. That is why his approach has been termed
as "functional school" by some writers.
✓ He defined law as containing "the rules, principles, conceptions and standards of
conduct and decision as also the precepts and doctrines of professional rules of art."
According to him, the end of law, is to satisfy a maximum of wants with a minimum of
friction or confrontation.
✓ Elaborating the functional aspect of law, Roscoe Pound stated that the function of law
is to reconcile the conflicting interests of individuals in the community and harmonise
their inter-relations. He termed this as 'social engineering'.
✓ Pound tackled the problem of interests in terms of balancing of individual and social
interests. It is through the instrumentality of law that these interests are sought to be
balanced. As Justice Cardozo rightly remarked. "Pound attempted to emphasise the
need for judical awareness of the social values and interests".

2. Pound's Theory of Social Engineering:

Roscoe Pound conceived 'social engineering' as a tool through which all possible efforts be
made to avoid conflicts of interest of individuals in the society. Thus courts, legislators,
administrators and jurists must work with a plan and make an effort to maintain a balance
between the competing interests in society. He enumerated the various interests which the
law should seek to protect and classified them into three broad categories, namely,
1. Private interests,
2. Public interests, and
3. Social interests.

1. Private Interests.-These include

A. Individual's interests of personality, namely, interests of physical integrity, reputation,
freedom of volition and freedom of conscience. They are safeguarded by laws of
crimes, torts, contracts, constitutional law, etc.
B. The interests of domestic relations of persons such as husband and wife, parent and
children, marital life as also the individual's private interests.
C. The interests of property, succession, testamentary disposition, freedom of
contractual relations, association etc. are also included in the category of private
interests.
(ii) Public interests.-The main public interests according to Roscoe Pound
A. Interests in the preservation of the State as such: and
B. State as a guardian of social interests such as administration of trusts, charitable
endowments, protection of natural environment, territorial waters, sea-shores,
regulation of public employment and so on.

(iii) Social interests.-The social interests which need legal protection are
A. Interests in the preservation of peace, general health, security of transactions etc.
B. Preserving social institutions such as religion, political and economic institutions etc.
C. Interests preserving general morals by prohibiting transactions which are against
morality such as prostitution, drunkenness, gambling, etc.
D. Interests in conservation of social resources, e natural resources, reformation of
delinquents, protection of economically weaker sections of the society.
E. Social interests in general progress including economic, political and cultural
expression, progress. For example, freedom of trade and commerce, freedom of
speech and encouragement to arts and promotion of higher education etc.
F. Interests which promote human personality by enabling a person to live political,
physical, cultural, social and economic life to suit his taste and improve his personality.
However, there is overlapping of interests here and there. Pound himself accepted that the
various interests of individuals in a society can only be broadly classified and they cannot be
placed in water-tight compartments.

3. Jural Postulates of Roscoe Pound

In order to evaluate the conflicting interests in due order of priority. Pound suggested five
jural postulates which are as follows:
Jural Postulate I: In civilized society men must be able to assume that others will commit no
intentional aggression upon them (this relates to criminal law).
Jural Postulate II: In civilized society men must be able to assume that they may control for
beneficial purposes what they have discovered and appropriated to their own use, what they
have created by their own labour and what they have acquired under the existing social and
economic order (This relates to law of patents).
Jural Postulate III: In a civilized society men must be able to assume that those with whom
they deal as a member of the society will act in good faith (This relates to law of contract) and
hence:-
• Will fulfil their promises according to the expectations which are attached to the moral
sentiments of the community and will restore everything which have come to them
by mistake.
Jural Postulate IV: In a civilized society men must be able to assume that those who engage
in some course of conduct will act with due care not to cast an unreasonable risk of injury
upon others (This relates to law of Torts).
Jural Postulate V: In civilized society men must be able to assume that those who maintain
things likely to get out of hand or to escape and do damage, then those things should be kept
within their proper bounds. (This relates to the rule of strict liability).
Thus, the postulates of Roscoe Pound provide guidelines for righteous and civilised life
and also seek to strike a synthesis between reality and idealism in the community.

Sociological jurists insist upon eight points:

(1) Study of the actual social effect of legal institution, legal precepts and legal doctrines;
(2) Sociological study in preparation for law-making;
(3) Study of the means of making legal precepts effective in action;
(4) Study of juridical method;
(5) A sociological legal history; study of the social background and social effects of legal
institutions, legal precepts, and legal doctrines, and of how these effects have been brought
about;
(6) Recognition of the importance of individualized application of legal precepts-of reasonable
and just solutions of individuals cases;
(7) In English-speaking countries, a Ministry of Justice;
(8) That the end of juristic study, is to make effort more effective in achieving the purposes
of law.

Pound enlists the problems of Jurisprudence today as under :

1. The valuing of interests;
2. The relation of law to administration;
3. The limits of effective legal action;
4. The means of informing judges, jurists and law-makers as to the social facts involved
in legislation and in the judicial finding, shaping, and application of legal precepts;
5. Improvement in the form of the law-'restatement', codification.¹ It will appear that the
study and programme proposed by Pound is nothing more than an experiment which
he himself states it to be. That is why Prof. Allen has described Pound's approach as
Experimental Jurisprudence."

Pounds Contribution:
✓ Interest as the main – subject matter of law: Pound’s theory focuses on interests of
the individual and society and the function of law must be to evaluate the various
interests and to secure the best interest along with striking a balance between stability
and change.
✓ He gave a practical approach and concentrates mainly on actual functioning of the
society.
✓ Pound’s theory free from dogmas: Pounds contribution to jurisprudence is great. He
speaks of various many interests but at the same time he says that they are relatives.
 He emphasizes on evaluation of interests i.e. social engineering but at the same time
does not forget the task of maintaining a balance between social stability and social
change.
✓ He points out the responsibilities of the judge and the lawyer: According to Pound,
the judges and the lawyer have an important role in making social research for good
law-making and emphasizes on studying the actual working of legal rules in the
society.
It appears that that study and programme proposed by Pound is nothing more than
an experiment. That is why Prof. Alter has described Pound’s approach as is Experimental
Jurisprudence”.

Criticism of Roscoe Pound

✓ Use of the term ‘engineering’ which equates society to a factory like mechanism as
society is changing and dynamic whereas the latter is more or less static.
✓ As per Dr. Allen, Pound confined his study only to wants and desires ignoring individual
freedom.
✓ Pound’s theory of interests has no significance in the society which has diverse
interests because of linguistic, ethnic and religious barriers. Moreover, these are
changing conceptions, which depends on changing political and legal system.