Jurisprudence is a study and knowledge of the law that explains its creation, enforcement, and purpose. For a better understanding and contemplation of law, we have to interpret the origination and theories behind it.
The term ‘Jurisprudence’ derives from a Latin term Juris Prudential which means the ‘Knowledge of law’. However, the General Jurisprudence can be divided into two categories, which include the ‘Analytic Jurisprudence’ and ‘Normative Jurisprudence’. The Analytic Jurisprudence talks about the questions as to ‘What is the law?’ while the Normative Jurisprudence talks about questions such as ‘What is the purpose of the law?’ The best answer to these questions can be answered under the five main schools of Jurisprudence which includes:
- Philosophical school or Natural law
- Analytical school
- Historical school
- Sociological school
- Realist school
In this article, we will discuss these schools of Jurisprudence, along with their leading jurists.
Philosophical school or Natural law
Natural law is the moral theory of jurisprudence and often states that laws should be on the basis of ethics and morals. This law also states that law should focus on what is ‘correct’. In general, Natural law is a philosophy of law that focuses on the laws of nature.
The philosophical concerns itself mainly with the connection of law to specific thoughts which law is intended to accomplish and to explore the reasons for which a particular law has been established. The eminent law specialists consider the law as neither a discretionary order of a ruler nor a concerning the making of recorded need. To them, the law is the result of human reason and its motivation is to hoist and praise human identity.
The natural law hypothesis propounded by Grotius, Locke, and Rousseau altered the current organizations and held that ‘social contract’ was the premise of the general public. Hobbes utilized natural law hypothesis to propagate reactionary development and legitimize business as usual for the safeguarding of harmony and insurance of people from never-ending struggle and disarray. Thus, the views of Scholars represent the ‘Philosophical thought’ of the School itself.
Hugo Grotius, a Dutch national and a Republican philosopher was regarded as the father of the philosophical school of jurisprudence. In his famous work ‘The Law of War and Peace’, Grotius stated that natural law springs from the social nature of man and the natural law as well as positive morality, both are based on the nation of righteousness. Natural justice is justice indeed with the truth. The rules of human conduct emerge from the right reason and they receive public support of the coercive force of the state but the census of public disapprobation. Grotius also promoted the concept of “Just War” as a war that was required by natural, national, and divine law under certain circumstances. He developed a series of rules for the “right conduct” of war, based on the principle that actions in war should “serve the right.” Grotius also wrote De Jure Praedae, one chapter of which, defending free access to the ocean for all nations, was reprinted and widely circulated under the title Mare Liberum.
John Locke is among the most influential political philosophers of the modern period. In the Two Treatises of Government, he argued that people have rights, such as the right to life, liberty, and property that have a foundation independent of the laws of any particular society. Locke claimed that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Locke also defends the principle of majority rule and the separation of legislative and executive powers. He additionally protects the guideline of dominant party rule and the division of administrative and official forces.
Jean Rousseau believed modern man’s enslavement to his own needs was responsible for all sorts of societal ills, from exploitation and domination of others to poor self-esteem and depression. Rousseau believed that good government must have the freedom of all its citizens as its most fundamental objective. The Social Contract in particular is Rousseau’s attempt to imagine the form of government that best affirms the individual freedom of all its citizens, with certain constraints inherent to a complex, modern, civil society. Rousseau recognized that as long as property and laws exist, individuals can never be as utterly free in present-day society as they are in the condition of nature, a point later reverberated by Marx and numerous other Communist and rebel social thinkers. Nonetheless, Rousseau unequivocally had confidence in the presence of specific standards of government that whenever authorized, can bear the cost of the individuals from society, a dimension of opportunity that at any rate which approximates the opportunity appreciated in the condition of nature.
Analytical School, also known as Imperative School or the Austenian School is one of the four main schools of jurisprudence. The Analytical School is propounded by Jeremy Bentham and John Austin. The analytical school defines the ‘Relation of law with the state’.
In the book ‘Limits of Jurisprudence defined’, Jeremy Bentham says that the state is the amalgamation of Maximum happiness and Maximum Liberty. He means that if people will be liberal and free to do and choose whatever they want, hey will be attaining the utmost happiness and they will consequentially deliver the best to the society and the state. He wanted to prevail the concept of the greatest happiness of the greatest number of people and he did so by testing of law. The testing of law works on the principle of utility. The operation of the principle of Utility works on an operation.
Its operation starts with understanding the concept of pleasure and pain. What gives them a pleasure to the people and the pleasure gave would be labeled as good and the pain consumed by the people will be the evil. The pleasure approves the operation and the pain disapproves of the operation of the test.
The pleasure and the pain can be quantified by the Utilitarian calculus, which consist of 7 factors:
According to Bentham, the only thing between humans and their freedom is the hurdles or the obstacles in between them, which are restricting them from achieving what humans want. He believes in the Laissez Faire state, where the man is free as the literal meaning of ‘Laissez-Faire says that let a man be free’.
Austin is known as the father of the Analytical School. In his book ‘Province of Jurisprudence defined’, he defines law as the rules defined for the guidance of the intelligent beings by another intelligent being having power over him. In other words, the law is the rules which discern the rights and the wrongs by a man to fellow men. Additionally, the law is a command of a sovereign by the sanction.
LAW > RULES > WRONG/RIGHT
Historical School of Jurisprudence
The Historical School of Jurisprudence talks about the relation of the law with society. The society’s laws and customs collectively become the law of the state. A society has particular needs and wants which are directly proportional to the behavioral pattern of the society.
Montesquieu was the first jurist of Historical School. In his famous book, ‘Spirit of Law’, he said that law must keep pace with the changing society.
The second jurist of the Historical School is Savigny. Before understanding Savigny, we need to understand what happened in Germany during 1800. Germany was divided into 41 kingdoms during that time and entering into each territory brought different laws and then many things including commerce, market, etc. had changed as well.
That time was the time of the French revolution and the citizens were generating the feeling of Nationalism and patriotism towards the country. Anton Thebo contemplated making the law of Germany. He wanted to make a particular law in Germany, applicable only in Germany. He started making pamphlets and gave the idea of making courts and tried to have a unified code for the German nation.
Savigny criticized and slammed this theory. Savigny was also called the Roman law expert. His theory was the VOLKGEIST theory. This theory propagated the idea of the General Will of the General people and that the law is the direct result of the society and its people and their behavior. He underscored that Law has a national character.
For instance: Indians have a particular national character and they demand a need for the society that cannot be imposed on any other country or person. The Law of a nation will be created according to the needs of the society and the law is having a direct relationship with the culture of a society.
Henry Maine was the third jurist of the Historical School. He had a legal fiction back in his mind. He said that every progressive society makes the laws for their respective society in advance and it is a mark of a progressive society to do so. He gave the Status to Contract theory.
In every traditional society, the rights and obligations of the people were defined according to their status. The lower and higher caste people used to have their own respective rights and obligations. This division of rights and obligations was according to the status of the person. The Contract theory deals with the law-making in the transformative way, so that there can be free negotiations between the society.
The fourth jurist of the Historical School happened to be Puchta. According to him, neither society nor the state can make laws. He believes that a society has a lot of people and they carry their own self-interest as well. The state and society create a general will in front of them, so if there happens to be a clash between the general will and self-interest, the people don’t know what to do. According to him, if the general will and the interests of the people will clash, then only the state will intervene in the law and regulate.
The Sociological School talks about the relation between the law and sociology. According to the jurists of this school, the law is a social phenomenon owing to the reason that law has an impact on society. Law understands the society according to its needs and its relation with the society. This School was developed during the late 19th and early 20th century, which is the same as the time, when the laissez-faire state was introduced as well. During that time, the individual interests of society started to evolve.
The Jurists associated with the Sociological school are: –
Ehrlich – According to him, the main source of origination of the law is society. He gave the emphasis on the statement ‘Men in association’. He gave the term ‘Living Law’.
Living law because the law is originated from society and not from courts or the legislations.
Rosco Pound – Rosco Pound gave the term of social engineering. According to it, people use experiments to make new inventions. We shall use the law to curb the menace of society. Law shall contain harmony among society. It has to balance society. It as to balance both the needs i.e. individual interest and social interest.
E.g. Article 19
Neither freedom nor restrictions can be given importance. Maximum happiness and minimum friction are to be attained.
He tried to explain the working of social understanding and the guidelines issued for it. He clubbed them and made 5 postulates and those 5 postulates were to be followed and considered as an insight.
- There shall be no aggression and if there is an instigation for the aggression, criminal law would be introduced.
- Law of patents for safeguarding the rights of the creative intellect.
- There shall be a fulfillment of promises and for that purpose, there shall be a law of contracts.
- If anybody commits a mistake, he will get an opportunity to rectify the mistake and that will be known as the law of torts.
- If anybody brings any hazardous substance in his territory or in the territory of any other person, he shall be facing strict liability.
The main intention behind bringing these laws is that Society is always different, but the law’s objective is always the same i.e. to harmonize the law and society.
Auguste Comte – August Comte is the founder of the sociological school. He had an organic theory. According to him, society is the same as an organism. It can grow if assisted and nurtured with scientific nourishing.
Dugout – Dugout is one of the prominent jurists of the Sociological school. He is inspired by Comte and Durkheim. He talked about common and individual interests. Their diverse interests. Society’s prominent interest is the inter-dependence of men and it is called social solidarity.
Law’s objective is social solidarity. Law has a right to perform its duty and that duty is to perform social solidarity. It would not be called a law if it doesn’t promote social solidarity.
Rudolph Van Inhering – Rudolph Van Inhering tried to club the sociological and analytical school. He is also called the father of modern sociological school. He emphasized protecting the social interest. He says that the interests of a person are protected by the State.
In a battle between the individual Interest and Social Interest, the social interest would be protected for the welfare of the state and it’s the duty of a state to protect the social interest.
Judgements of the law are affected by a lot of human emotions. This school is known as Realist School because the law is considered as a reality while looking at this school. This school focuses on the judgements of the authority judges and their mind-set. This school is based on the perspective of the lawyers and judges and the implementation of their thought process. This school is an experience of justice for different humans and it considers the perspectives of both the parties in a case as to what is their opinion on justice.
Realist School was originated in America and Europe’s Scandinavia in the 1880s. There were a plethora of judgments during 1890 in America and the light was thrown on the Judgements and the cases and the perspectives behind the judgements.
The next important question was the role of judges in the important judgments and cases. The doctrine of precedents was introduced in this school and in this doctrine, the Judgements shall follow the hierarchy of the courts. For Instance, if the Supreme Court delivers a judgment with their own knowledge and their liberal ideas, the subordinate courts shall follow the judgments.
American Realism – The father of American Realism is John Gray and Oliver Wendell Holmes. The other jurists of this school were Jeremy Frank and Levellyn.
John Gray and Oliver Wendell Holmes focussed on the Liberal Ideology and they can be explained by the example of an Indian Judge, Justice D.Y Chandrachud. Justice Chandrachud gave the landmark judgments on the Right to Privacy, Adultery and the famous Section 377 or the NAAZ foundation case. According to them, any judgements are influenced by many factors and it is the responsibility of a prudent and reasonable judgment of a liberal mind-set to deliver t judgments in a way to instill the idea of liberalism in our society and stay unbiased from any sort of Communalism or the Biasedness.
The question put by Oliver Wendell Holmes was to why people understand the law? They understand the law to discern between right and wrong. He coined the term ‘Bad Men’. The Bad Men according to him think about what the judges feel and what is going to be decided in the courts. They do not care about the other aspects, but about the decision in courts. Law, according to him is not just logic and facts, but the experiences gathered to conclude a statement of the problem and deliver a prudent judgment. It also includes the belief of judges and their mindset applied.
Jeremy frank – In his book of ‘Law and the modern mind’, Jeremy Frank states that, legal certainty is a myth and there is no certainty of what would be the outcome of every wrong done, as it contains a lot of variables and constraints, left out for different interpretations. He contemplates and what Judges and Lawyers do and shall do. They apply legal facts and reach the judgement. However, what if the facts are wrong and so shall be the judgement. There is absolutely no guarantee that judges would be understanding the facts word by word and there will be a flawless judgment every time. It is always the duty of lawyers and judges to follow the background of the law and the law is a constructive work in the hands of lawyers and judges and they shall do it independently and without any imposition.
During the 1990s liberalization was at a peak and many policies changed and the law was a means for a social end. You can formulate the law according to the need of changes in society. They shall work parallel and there should be one common solution.
Realist school helps not just in law but in understanding ideology and perspectives.
The Schools of Jurisprudence give us the idea of how the society, law, and the need of the law originated and how gradually the law was amended according to the needs of society and people. The Schools of Jurisprudence assist us to understand our purpose of existence as well, for we contribute to society in our own ways and we have been doing the same for ages. The contributing factors for the establishment of a successful and a working society need the consent of people for the law they are following. Once the psyche of human nature and society is comprehended, the rule of law follows.
(This article has been written and submitted by Mr. Prakhar Agnihotri during his course of internship at B&B Associates LLP. Mr. Agnihotri is a fourth year law-student at University of Petroleum & Energy Studies, Dehradun, Uttrakhand.)