1. INTRODUCTION

The word ‘jurisprudence’ derived from the Latin word ‘jurisprudentia’ which means knowledge of law. The Latin word ‘juris’ means law and ‘prudentia’ means skill or knowledge. Thus the term jurisprudence signifies knowledge of law and its application. Jurisprudence means the interpretation of the general principles based on which actual rules of law are recognised. Jurisprudence is concerned with the rules of external conduct which people are forced to obey. Some of the notable definitions of jurisprudence as expounded by jurists are as follow:

As per Cicero, “Jurisprudence is the philosophical aspect of knowledge of law.”

According to Salmond, “Jurisprudence is the science of the first principles of civil law.”

According to John Austin, “Jurisprudence is the philosophy of positive law.”

In the views of Holland, “Jurisprudence as the formal science of positive law.”

As per H.L.A. Hart, “Jurisprudence is the science of law in a broader perspective by co-relating law and morality.”

Rosco Pound defines Jurisprudence as “the science of law denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice”.^[1]

Law is the subject matter of jurisprudence since the latter deals with the study of law. Austin thought it is necessary to define law in order to establish the province of jurisprudence. The history of the concept of law discloses that jurisprudence has dissimilar meanings at different periods. Therefore it is difficult to attempt a singular definition of the term.

1. CONCEPT OF LAW

Wherever the concept of law is examined, as it occurs, for example, in mathematics, logic, and the physical sciences, one surrounded by puzzles and confusion. Laws are acknowledged to be very queer things; baffling questions about them arise on every side. Nowhere, however, is the thicket of intellectual difficulties more tangled than it is about the concept of law in jurisprudence. Some of the main questions that require answers are: (1) what is a law? (2) What is the legal system? (3) What are the criteria for good laws? (4) Who or what is the authority behind the law? Many of the troubles and falsehoods which a philosopher of law is appropriate to encounter, initiated by a tendency to confuse two or more of these questions. However, even when he avoids that kind of error, the tasks of determining the precise meaning of these questions and their answers remain formidable ones. H. L. A. Hart, Professor of Jurisprudence in the University of Oxford, discusses these and related problems in his new book^[2]. Hart, being a lawyer, is also a fine philosopher: in short, just the man for the job. Moreover, he has done it exceedingly well. Hart expressed hope that “it may also be of use to those whose interests are in moral or political philosophy or sociology, rather than in law” is amply fulfilled. There is an introductory chapter which explains the “persistent questions” of legal theory, three chapters dealing critically with the views of John Austin, three in which he expounds his positive theory of the law itself, one concerning justice and morality, another on the relationship between law and morals, and a concluding chapter which deals with international law.^[3]

Law can be said to be a principle and regulation established in a particular community by an authority and applicable to its people, whether in the form of legislation or custom and policies recognised and enforced by State authority. In jurisprudence, law is the subject matter.

As per Blackstone, a law in its most general and comprehensive sense signifies a rule of action and is applied indiscriminately to all kind of actions irrespective of gender, caste, language, race, birth, colour, etc.

According to Salmond, the body of principles recognised and applied by the state in the administration of justice.^[4]

There are different types of law such as general law, private international law, conventional law, special law, municipal law, customary law, international law, private law, public law, constitutional law, administrative law, substantive law and procedural law.

The following are said to be the identified sources of law: legislation, custom, precedent, juristic opinion, international convention.

1. CONCEPT OF LAW & SCHOOLS OF JURISPRUDENCE

The schools of jurisprudence has defined law in various aspects. Many jurists have attempted to define the concept of law in clear aspects. The concept of law shall be mentioned in detail under the following schools of jurisprudence. They are as follows:

• Natural Law Theory
• Analytical/Positive School of Jurisprudence
• Historical School of Jurisprudence
• Philosophical/Ethical School of Jurisprudence
• Sociological School of Jurisprudence
• Marxism School of Jurisprudence
• Realist Theory of Law

3.1. NATURAL LAW THEORY

There is no consensus about the definition and exact meaning of Natural Law. The term Natural Law in jurisprudence implies those standards and standards which should have started from some preeminent source other than any political or common specialist. It symbolizes Physical Law of Nature-dependent on moral standards which has all-inclusive relevance at all places and terms. It has regularly been utilized either to safeguard a change or to keep up business as usual as indicated by necessities and prerequisite of the time. For instance, Locke utilized Natural Law as an instrument of progress, however Hobbes utilized it to keep up the present state of affairs in the public arena. The ideas of ‘Rule of Law’ in Britain and India and ‘due process’ in USA are built up dependent on Natural Law.

Natural Law is eternal and unchangeable, as having existed from the commencement of the world. Man does not make natural Law; he only discovers it. Any external agency cannot not enforce natural law. Natural Law is a law which does not have legislation backing. Basically it is an outcome of preaching of the philosophers, prophets, saints etc. and thus it is a higher form of law. Natural Law is also known as Divine Law, Law of Nature, and Law of God. Divine Law implies the order of God forced upon men. Natural Law is likewise the Law of Reason, as being built up by that reason by which the world’s governed, and furthermore as being routed to and seen by the sensible idea of man. It is additionally the widespread or Custom-based Law as being of universal validity, the equivalent in all spots and authoritative on all people groups, and not one thing at Athens.

Ultimately in present day times we think that it’s named as “moral law” just like the declaration of the principles of morality. The Natural Law prevents the probability from claiming any inflexible partition of the ‘is’ and ‘ought’ part of law and accepts that such a detachment is pointlessly causing confusion in the field of law. The supporters of Natural Law contend that the thoughts of ‘justice’, ‘right’ or ‘reason’ have started from the idea of man and the Law of Nature and, hence this perspective can’t be disposed of from the domain of law.^[5]

3.1.1. Heraclitus
The idea of Natural Law was created by Greek thinkers around fourth century. B.C. Heraclitus was the primary Greek logician who pointed at the three principle highlights of Law of Nature, to be specific, (I) destiny, (ii) order and (iii) reason. He expressed that nature is definitely not a scattered heap of things, however there is a clear connection between the things and a definite order and rhythm of occasions. As per him, ‘reason’ is one of the basic components of Natural Law.
3.1.2. Socrates
Socrates has stated that a man can distinguish between good and bad and can appreciate the moral values. This human ‘insight’ is the foundation to review the law. He did not deny the ability of the Positive Law. Socrates pleaded for the necessity of Natural Law for the safety and stability of the nation, which was one of the major need of the age. His apprentice Plato supported the same theory. However, it is in Aristotle that we find a proper and logical elaboration of the theory.
3.1.3. Aristotle
According to Aristotle, man is a part of nature in two means. Firstly, he is a part of the creatures of God, secondly, he possesses awareness and reason by which he can form his will. By this reason, man can determine the eternal norm of justice. The man’s reason being the part of nature, the law discovered by reason is called ‘natural justice’. The Law should be reformed or amended rather than being broken.

3.1.4. Natural Law and Roman law
The Romans did not confine their study simply to theoretical thoughts but carried it to give an applied shape by transforming their rigid legal system into a living law. Natural Law implemented a very constructive influence on the Roman law through separation of Roman law into three divisions namely ‘Jus civile’, ‘Jus gentium’ and ‘Jus naturale’. Civil law called ‘Jus civile’ applied only to Roman citizens. The law which governed Roman people as well as foreigners was said to be ‘Jus Gentium’. Jus Gentium is encompassed of the universal legal doctrines which comply with Natural Law. Later, both these were combined to be known as ‘Jus naturale’.^[6]
3.1.5. Natural Law: Indian Scenario
Hindu legal system is perhaps the most ancient legal system of the world. The Hindus established a logical and comprehensive law at early times. According to the Hindu understanding, Law owes its existence to God. Law is provided in ‘Shruti’ and ‘Smritis’. The king is to execute that law, and he is bound by it, and the king is disobeyed if it goes against this law. The puranas are full of occasions where the kings were dethroned and beheaded when they went in contradiction of the recognised law.
3.1.6. Medieval Period
The opinions of Thomas Aquinas are regarded as a representative of the fresh theory. His society opinions are comparable to Aristotle’s opinions. Law is, according to Acquinas, ‘ an ordinance of reason for the common good produced by him who cared for and proclaimed the community.’ St. Thomas Aquinas classified laws, namely, (1) Law of God or external law, (2) Natural Law disclosed through “reason,” (3) Divine Law or Scripture Law, (4) Human Laws that we now call “Positive Law.” Natural law is component of the law of God. It is that component that in natural reason shows itself. He considered the power of Church to interpret Divine Law. Therefore, it also has the power to give judgment on Positive Law’s goodness.

            3.1.7. Hugo Grotius (1583 – 1645)

In the concept of natural law advocated by Grotius, there is inconsistency. Grotius says a ruler must follow the ‘ natural law ‘ and, on the other hand, he argues that the ruler should not be disobeyed. However, it was evident that Grotius feared the stability of political order and maintenance of international peace which was the need of that particular point of time.
3.1.9. Rudolf Stammler (1856 – 1938)
Stammler described the law as “species of will, other-looking, self-authoritative and inviolable.” For him, the greatest expression of the social existence of man was a just law aimed at preserving individual freedom. According to him, the two basic principles needed for a just legislation were: (1) respect principles, and (2) community engagement principle. The law of nature, he believes, implies ‘ just law ‘ which harmonizes the aims of society. The aim of law is not to safeguard one’s will, but to unify everyone’s objectives.
3.1.10. Kohler
Kohler described the law as “the norm of conduct that emanates from the whole and imposes on the person as a result of the internal impulse that urges people towards a decent type of life.” He claims there is no eternal law, and in the course of evolution the law forms itself as society advances morality and culture.

• ANALYTICAL/POSITIVE SCHOOL

Legal positivism is seen in legal jurisprudence around the globe as one of the most important schools of thought. This theory was created around the 18th and 19th centuries by jurists like John Austin and Jeremy Bentham. Subsequently, influential jurists such as Herbert Lionel Adolphus Hart and Joseph Raz advanced this school of thought.

The above-mentioned jurists have substantial differences of opinion, but the prevalent concept that all the above-mentioned jurists have is to analyse law as it is. Therefore, they have the common objective of helping people understand the law of the land as it is and not as it ought to be. Therefore, the legal positivist school only aims to identify the law as it is laid down by a superior body and not how it should have been.^[7] The major exponents of this school are Jeremy Bentham, John Austin, Holland, Salmond and H.L.A Hart.

• Jeremy Bentham

Jeremy Bentham is said to be the father of the Analytical school of jurisprudence. Bentham rejected the natural law and expounded the principle of utility with scientific accuracy. He partitioned jurisprudence into censorial and expository. The former handles the law as it is, while the latter handles the law as it ought to be. Analysis of censorial jurisprudence by Bentham is indicative of the reality that the effect of natural law had not disappeared entirely. That is why he talked of utility as the governing rule. Bentham believes that law is a product of state and sovereign. As per Bentham’s concept of law, law is an imperative one for which he referred the term ‘mandate’. A law may be defined as an association of sin declarative of a violation 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 supposed to be subject to his power. ^[8]

• John Austin

John Austin, the father of the Analytical School of Jurisprudence, limited the scope of jurisprudence and prescribed its boundaries. As per Austin, analysis is the principal technique of study in jurisprudence. He built on the foundation of expository jurisprudence laid by Bentham and did not concern himself with extra-legal norms. Austin differentiated the science of legislation and law from morals. Austin divided Jurisprudence into general jurisprudence and particular jurisprudence. According to Austin’s opinions, the assessment of positive law is to be achieved through the operation of logic on law without consideration of law, and he stressed that it is difficult to figure out the universal components in law through the operation of logic. Austin’s approach is applicable to a unitary polity based on parliamentary sovereignty. It does not have the relevance to legal systems as in India and the USA.

In common use, Austin defines law, means and includes things that cannot correctly be called ‘ law. ‘Austin described law as ‘ a rule laid down by an intelligent being having authority over him to guide a smart being. Law are of two kinds: Law of God and Human Laws:

This is again divided into two parts: Law of God – Laws set by God for men. Human Laws – Laws which are set by men for men. Human laws of two types can be split into two groups: 1. Positive law; these are the rules set by political superiors as such, or by individuals who do not act as political superiors but act in pursuit of the rules granted by political superiors. Only these statutes are the appropriate matter of jurisprudence. 2. Other Laws; legislation not established by political superiors (set by individuals who do not act in the ability or personality of political superiors) or by individuals pursuing legal rights. The law correctly so-called the positive law relies on the sovereign political power. Therefore, every law is a command according to Austin. So correctly so-called laws are a command species.

Commands are of two types: Las or rules and Occasional commands.
A command is a law or guidelines where it usually requires individuals to act or forbear. It is occasional or particular when it requires action or forbearance from a particular person. Law is a command that imposes a course of behaviour on an individual or individuals. It needs significance and can therefore emanate only from a determinable source or author (a person or individual body). Laws come from superiors, binding and compelling inferiors. Superiors invested with authority: the power to inflict pain or evil on others and thus force them to adhere to their commands.

• Thomas Erskine Holland

Holland is another exponent of the Analytical school of jurisprudence. He followed the footsteps of Austin. He varies from Austin as to how the word positive law is interpreted. According to Holland, all laws are not sovereign’s command; instead, he describes law as rules of internal human action enforced by a sovereign political power.

• John Salmond

There are differences between the predecessors and Salmond. These difference of opinion are as follows:

Salmond gives up the attempt to find the universal elements in law by defining jurisprudence as the science of civil law. As per Salmond there is nothing like universal element in law because it is the science of the law of the land and is thus conditioned by factors which prevail in a particular state.

He deals with law as it is but law to Salmond is to be well-defined not in relation to the sovereign but in terms of the courts. Law is something which originates from courts only.

Salmond did not agree with Austin that analysis of law is done with the assistance of logic only. According to him the study of jurisprudence which disregards ethical and historical aspects will become a barren study.

• L.A. Hart

According to Hart, the law is a system of two types of rules the union of which provides the key to the science of jurisprudence. These rules, he called as ‘primary’ and ‘secondary’ rules. Hart rejects Austin’s view that law is a command and Austin’s command theory failed to encompass the variety of laws.^[9] Hart stated that primary rules are duty imposing while secondary rules confer power and the union of the two as the essence of law. Hart stated that primary rules are those who lay down standards of behaviour and are rules of obligation.^[10] The secondary rules are additional to and concern the primary rules in numerous ways. For instance, they specify the means in which the primary rules may be determined, introduced, rejected or varied, and the manner in which their violation may be finally determined. Hart considers legal system is a set of social rules. These rules are social in two senses: first in that they regulate the conduct of members of societies (they are guides to human conduct and standards of criticism of such conduct, secondly, in that they derive from human social practices).^[11]

• Hans Kelson’s Pure Theory of Law

Kelson’s pure theory of law states that law must remain free from social sciences. Kelson aimed to establish a science of law which will be pure in the sense that it will strictly abstain from all metaphysical, ethical, moral, psychological and sociological elements. According to Kelson law is an order of human behaviour. The theory is summarised as under:

1. The aim of the theory of law as of any science is to reduce chaos and multiplicity and to bring unity.
2. It is knowledge of what law is not of what the law ought to be.
3. Law is a normative, not a natural science.
4. Legal theory is a theory of norms. It is not concerned with the effectiveness of legal order.
5. A theory of law is formal, of the way of ordering changing contents in a specific way.
6. The relations of legal theory to a particular system of positive law is that of possible to actual law.

The theory of Kelson is basically about the concept of norms. For Kelson, an understanding of a hierarchy of norms is jurisprudence. A norm is merely a hypothetical preposition. Jurists like Friedman criticise his idea of norms as the concept of grund-norm is vague. A grund norm derives its efficacy from the fact of its minimum effectiveness. Kelson does not provide the criteria for minimum of effectiveness measurement.

• HISTORICAL SCHOOL

The historical school follows the concept of human-made law. Law is framed for the individuals and by the individuals ‘ means the law should be in line with people’s evolving requirements. The Historical School of Jurisprudence’s fundamental source is people’s habits and customs that change according to their requirements and needs. It’s also called the Jurisprudence Continental School.

The Historical School believes that, according to their evolving requirements, law is created by individuals. Habits and customs are the primary sources of the Historical School. Historical school has emerged as a response against the theories of natural law, according to Dias.^[12] The following are the jurists of the Historical School of Jurisprudence. They are:

• Montesquieu

According to Sir Henry Maine, Montesquieu was the first jurist to embrace the historical method of understanding the legal institution. He laid the foundation for the historical school in France. According to him, it is irrelevant to discuss whether the law is good or bad, because the law depends on the social, political and environmental conditions that prevail in society. Montesquieu discovered “The law generates climate, local situations, accidents or impostures,” He believed that law had to alter according to society’s evolving requirements. He has not established any theory or philosophy of the law-society relationship. He proposed that the law should respond to the location’s requirements and alter according to people’s time, location, and needs. One of Montesquieu’s best-known works was his book “The Spirit of Laws.” He reflects his views in political enlightenment concepts in this novel and indicates how laws are needed to change according to people’s and society’s requirements.

• Friedrich Carl Von Savigny

Savigny is the Historical school’s founder. He asserted that the legal system’s consistent nature is generally due to a lack of understanding of its history and origin. According to him, the law is “a result of moments the germ of which, like the germ of the State, remains in the nature of people as being produced for culture and which grows different types from this germ, depending on the environment of the factors that perform on it.” Savigny thinks that it is not possible to borrow the law from outside. Moreover, the main source of law is the consciousness of the people. He was of the opinion that the law of the state grows with the strengthening of the nationality of the state and that law dies or fade away when nationality loses its power in the state.

Volksgeist means “national character”. According to Savignty’s Volksgesit, The law is the product of the people’s general consciousness. The Volksgeist idea was used as a warning against the hasty legislation and brought the abstract revolutionary thoughts on the legal system unless they supported the people’s general will.  Savigny believed that law should not be discovered from intentional legislation, but should be created and arise from people’s general awareness.

• Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical school was carried forward in England by Sir Henry Maine.

Maine studied the Indian legal system deeply as he was law member in the Council of the Governor-General of India b/w 1861 to 1869. The best things incorporated Maine’s ideas in the theories of Savigny and Montesquieu and he avoided what abstract and unreal Romanticism was. Maine favoured legislation and codification of law, unlike Savigny.

Maine describes development of law:

It is thought that the rulers act under divine inspiration. The laws are also created on the rulers ‘ instructions. For instance, Themistes of Anicent Greek. The King’s judgement was regarded as God’s judgement or some divine body.  King was just an executor of God’s decisions, not the legislator. Then King’s orders became customary law. In the ruler or majority class, the custom prevails. Customs appear to have succeeded the king’s right and officials.

The understanding and administration of customs comes into the hands of a minority, the understanding of customs comes into the hands of a minority class or normal class because of the weakening of the law-making power of the initial lawmakers like Priests. So the ruler is superseded by a minority who obtain control over the law. In the fourth and last stage, the law is codified and promulgated.

• Georg Friedrich Puchta

Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical School of Jurisprudence. Puchta’s ideas were more logical and improved than Savigny’s ideas. He traced the development and evolution of law from the very beginning. His ideas mainly focused on the situation when conflict arises between the general will 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.

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. Contributions:

• Puchta gave twofold aspects of human will and the origin of the state.
• Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and made them more logical.

• PHILOSOPHICAL SCHOOL

The Philosophical School is not concerned with what the actual law of the past and the present is. Their effort is to develop the idea of justice as an ethical principle and consequently to create an ideal system of law.

In the eighteenth century, they put their faith in the law of nature which could be discovered by human reason. In the nineteenth century they engaged themselves in the metaphysical discussions of the existing law and in attempts to create a perfect system of law in codes and legislation.

In the twentieth century, they devoted themselves to social interests and ideals and the formulation of theories of social justice.

The jurists of the Philosophical School have always considered law as an abstraction and based it upon abstract ethical principles of justice. A law, as such, is removed from objectivity whereas it ought to be definite and precise, capable of universal application. Idealism must be mixed with realism. The following are the viewpoints of jurists:

• Hugo Grotius

Hugo Grotius worked as a jurist in the Dutch Republic and laid the foundation for international law, based on natural law. Grotius removed the natural law from the jurisdiction of moral theologians and made it the business of lawyers and philosophers, by asserting their very nature, natural laws were authoritative in themselves, with or without faith in God. He prompted the concept of ‘just war’ as are which was required by natural, national divine law under certain circumstances. He developed a series of rules for ‘right conduct’ of war, based on the principle that actions in a war should ‘serve the right’.

• Jean Jaques Rousseau

Rousseau thought that the enslavement of modern man to his own requirements was accountable for all kinds of social ills, from the exploitation and domination of others to poor self-esteem and depression, Rousseau thought that good government must have as its most basic goal the liberty of all its people. In specific, the social agreement is Rousseau’s effort to imagine the type of government that best affirms all its citizens ‘ individual liberty, with certain limitations inherent in a complicated, contemporary, civil society. Rousseau recognized that as long as property and regulations exist, individuals in contemporary culture can never be as completely free as they are in the state of nature, a point that Marx and many other communist social philosophers echoed later.

• Immanuel Kant

Immanuel Kant is one of the most influential philosophers in the history of western philosophy. He developed his metaphysical method further and held that ethics and law are not the same thing. According to Kant, ethics relates to man’s spontaneous acts while law deals with all those acts to which a man be compelled. Kant states that law regulates man’s external conduct. He stated that compulsion should be exercise man’s conduct. As per him, Law is the total of the conditions under which the personal wishes of man be reconciled with the personal wishes of another man following a general law of freedom. Thus Kant considered compulsion as an essential element of the law, and a right is nothing but a power to compel.

• SOCIOLOGICAL SCHOOL

Auguste Comte (1798-1857) was a French Philosopher. Comte used the word “Sociology” for the first time and defined sociology as a positive social facts science. He said society is like an organism, and when it is guided by Scientific Principles it could advance. Thus, he is making excellent attempts to use the law as an instrument through which human society retains itself and advances.

Sociological School’s concept is to demonstrate a law-society relationship. This school put more emphasis on the legal view of every issue and diversity that occurs in society. Law is a social phenomenon and there is a main or indirect relationship between law and society. The Sociological School of Jurisprudence focuses on balancing the state benefit and the realization of the person. The Sociological School of Jurisprudence examines the law-sociology connection. There are two distinct elements to each request or idea. One is sociological, and the other is legal.

The sociological method of jurisprudence that resulted from the change in the political shift from the doctrine of laissez-faire, the industrial and technological revolution and, finally, the centred historical school. The connection between the law and the social welfare state of the modern century sought to study law as seeking the social source of law and legal institutions, to examine law as a specified social phenomenon, and finally to judge law by its social usefulness.^[13]

• Montesquieu

Montesquieu was a French philosopher, and he paved the way of the sociological school of jurisprudence. He was of the view that the social condition of society somehow influences the legal process. He also acknowledged the significance of history as a means of understanding society’s composition and clarified the significance of studying society’s history before formulating law for that particular society.

In his book ‘ The Spirit of Laws, ‘ he wrote, ‘The features of a country should be determined by the law, so that they should relate to the climate of each country, the quality of each soul, its situation and extent, the main occupations of the natives, whether they are husbandmen, huntsmen or shepherds, the degree of freedom that the constitution will bear on the religion of the residents, their inclinations, wealth, numbers, trade, customs and manners.’

• Eugen Ehrlich

Eugen Ehrlich is regarded as the sociology of law founder. Sociology of Law is the law study from the sociological point of view. Ehrlich saw society as the main source of law, and by society he meant “men’s association.” Ehrlich had written that “the centre of gravity of all legal developments is not in law or judicial decisions but in society itself.” He asserted that society is the primary source of law and a stronger source of law than law or judgment.

• Rosco Pound

Pound was an American Legal Scholar. His view is that law should be studied in its actual working and not as it stands in the book. Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the Engineers. Engineers are required to use their engineering skill to manufacture new products. Similarly, social engineers are required to build that type of structure in the society which provides maximum happiness and minimum friction.

According to Pound, “Law is social engineering which means a balance between the competing interests in society,” in which applied science is used for resolving individual and social problems.

Social Engineering is balancing the conflicting interest of Individual and the state with the help of law. Law is a body of knowledge with the help of law the large part of Social engineering is carried on. Law is used to solve the conflicting interest and problems in society. He mentioned that everybody has its interest and considered it supreme over all other interest. The objective of the law is to create a balance between the interests of the people.

• Leon Duguit

Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law).  Duguit was greatly influenced by Auguste Comte and Durkheim. He gave the theory of Social Solidarity which explain the social cooperation between individuals for their need and existence.

The word ‘ Social Solidarity reflects society’s power, cohesiveness, collective awareness, and viability. ‘Leon Duguit’s Social Solidarity explains men’s interdependence on his fellow men. Without relying on other men, no one can survive.

The law’s aim is to encourage social solidarity among people. Leon Duguit therefore regarded the law to be a bad law that does not encourage social solidarity.  He also said that each individual had the right and obligation to encourage social solidarity. For example, in India, everyone follows the codified legislation. It is therefore promoting social solidarity.^[14]

• MARXISM

Marxist theory of law is mainly related to the doctrines of Karl Marx (1818-1883) and Friedrich Engels (1820 – 1895).  It is historical in part and sociological in part. Marxist theory of law’ differs significantly from other theories and philosophies of law mentioned in the theory of law.  Positivism, in its various forms, is mainly based on current legal institutions on which and from which an assessment of the law and the legal system can be drawn. The primary characteristic of the ‘ socialist legal theory ‘ is that a legal system must be based on Karl Marx’s and his successors ‘ political and economic philosophy.

Karl Marx’s Communist Manifesto, printed in London in 1848, was one of the earliest documents of great importance in the development of communism in general, and of socialist legal theory in particular. The Communist Manifesto’s argument is simple and characterized by the early statement: “The history of all society that exists hitherto is the history of class struggles.”

Since class struggle lies at the base of social conflict and social and economic development, the typical stages of a community’s development must be traced out.  In a primitive stage of the exploitation of men by men there is slavery, an institution nowadays universally condemned.

In rigorous accordance with his carefully developed world outlook, Karl Marx fashioned a theory of law.  The study was, for Marx, a means to an end.  The end was society’s revolutionary transformation.  A comprehension of the nature of social phenomena such as economics, politics, and law would guarantee proper chartering of the route to revolution. Marx said, “Up till now philosophers have merely interpreted the world, the point, however, and is to change it”.  An understanding of jurisprudence demands more than a static analysis.  According to Marx, it must encompass a study of the nature of law within a society in flux.  There are three doctrines in Marxist jurisprudence: dialectical materialism, financial manufacturing legislation, and historical materialism.

Law & State

In order to grasp and comprehend the Marxist notion of State and Law, one must first be acquainted with the Marxist theory of the origins and significance of law and state as described by Engels in his book Origin of Family, Private Property and State (1884). In the beginning, according to Engels, there was a classless society in which all people enjoyed the same position with regard to the means of production; individuals were equal and independent from each other since the means of production were free and available to all. They respected rules of behaviour but these rules were not legal rules because they were based solely on habits and corresponded to present behaviour, neither enforced nor sanctioned by the use of force.

Later, by dividing labour and dividing it into classes, primitive society became socially divided. One of these classes took possession of the means of manufacturing itself, dispossessing the others that it then started to exploit. In moment, legislation and state were born at this movement.  There is a link between these two concepts for the Marxists. Law is a human conduct rule that differs from other behavioural laws because it includes coercion that is the state’s intervention. The State is a social agency that ensures that this principle is respected either by the threat of the use of force. Without a state there is no law, and without law there is no state; state and law are two different words that describe the same thing.

State and law are the outcomes of a particular social financial framework.  They are discovered only at a specific point of their evolution in a certain type of culture. Only when society is split into social classes, one of which exploits the other or others economically, do law and the State appear. In such a situation, the ruling class has recourse to law and the state in order to strengthen and perpetuate its domination.

The law is the instrument which, in the class struggle, safeguards the interests of the ruling class and maintains social inequality for its profit.  It can be defined as that series of social norms which regulate the dominating relationship of the ruling class to the subjugated class, in those areas of this relationship which cannot be maintained without recourse to the oppression wielded by a solidly organised state, and the state itself, is the organization of the exploiting class in order to protect its own class interests.

Human history is mainly the history of class conflict: in other words, it is the ongoing fight of one class or another to capture the means of production and thus develop its dictatorship.  History’s turning points are marked by exploited class wins that turn into the exploiting class.  The emergence of a fresh social class reflects a step forward because it corresponds to a more sophisticated form of production, more in line with technological progress and society’s overall aspirations. However, society will continue to suffer from a fundamental deficiency as long as the means of production stay the property of only a few and so long as there are those who are exploiting and those who are being exploited.

• REALIST THEORY OF LAW

The realist’s movement in United States represents the latest branch of sociological jurisprudence which concentrates on decisions of law courts. The realists contend that law has emanated from judges; therefore, law is what courts do and not what they say. Realist’s exponents state that judges are the lawmakers.

However, modern realism differs from sociological school as unlike the latter, they are not much concerned about the ends of law, but their main attention is on scientific observation of law, and it is actually functioning. The contention of realists is that judicial decisions are not based on abstract formal law, but the human aspect of the Judge and the lawyer also has an impact on court’s decision.

It was around 1930s that some American jurists notably Holmes, Cardozo and Gray raised their voice against legal conceptualisation and stressed on the study of law as it operates and functions. Realists combined analytical positivism and sociological ideologies in their legal approach law and social institutions. Realists uphold only Judge made law as genuine law, and they do not give any importance to laws enacted by legislatures. Realists believe that certainty of law is a myth.

It must be stated that the realist movement in United States owes its origin to pragmatic approach to law in early decades of twentieth century. The progressive legal thinkers denied to accept law as an abstract conception and tried to base it on facts and actions.

According to Goodhart, the main characteristic features of realist jurisprudence are as follows:

1. Realists think there can be no certainty about the law as its predictability depends on the collection of facts to be decided by the tribunal.
2. They do not favour formal, logical, and conceptual legislative strategy.
3. They lay greater stress on the psychological approach to the proper understanding of law as it is concerned with human behaviour and convictions of the lawyers and Judges.
4. The importance of legal terminology is opposed by realists.
5. They prefer to evaluate any part of the law in terms of its effects.

It presupposes that law is intimately connected with the society, and since society changes faster than law, there can never be certain about law. There is no place for idealism in law and therefore, law as it ‘is’ must be completely divorced from law as it ‘ought’ to be.^[15]

 

Oliver Windell Holmes

The noted American Jurist Oliver Windell Holmes discussed law from “the bad man”, i.e., the person who was before the court as an accused or wrongdoer. The concern of the judge is to do justice in the case before him, and if that required a creative interpretation of existing rules, he should certainly resort to it. The judge has to apply the law as he finds it and not to seek to rectify perceived inadequacies by the use of creative interpretation. Holmes asserted that where there is a gap in the law, judges are required to take account of precedent but where this is unclear, he must decide the best way to proceed and the result may be a decision which is in some way innovative, but the fundamental principles are always part of the law.^[16]

Scandinavian Realism

Besides the American realist movement, a simultaneous wave of realism also developed in Sweden. There was, however, one material difference between American realism and the Swedish realistic movement. Pointing out the difference between the two, Dr Allen observed, If American realism is ruling skeptic, Scandinavian realism may be described as metaphysical sceptical.

There is no place for a priori pre-conceptions for which there is no scientific basis. Thus Scandinavian realists discard from law all a priori notions of natural law, abstract conceptions and idealism because they are all purely theoretical precepts without any practical utility. Supporting this contention of Olivecrona, Professor Ross also projected a view that “law in all its forms is a social reality devoid of doctrinal conceptions like morality, idealism, natural law and theoretical (metaphysical) conceptions such as right, duty, sovereignty etc. which formed the core of analytical school of jurisprudence in England.

According to Bodenheimer, Scandinavian Realism differs from the American realist school in two major aspects, namely, (1) it is more speculative in approach to legal problems and (2) it does not devote as much attention psychological behaviour of Judges as the American realists do. However, both adopt an empiricist attitude towards law and life and give more weight to the social effects of law with emphasis on judicial decisions. For Julius Stone, Realist movement is a gloss on the sociological approach to jurisprudence.

Karl Olivecrona

Professor Olivecrona emphasised the study of law as a social fact. According to him, law is nothing but a ‘set of social facts’. He rejected the view that laws are commands or an expression of the will of the state and argued that they are independent imperatives issued by constitutional agencies of the state from time to time and they operate in the mind of the judge while reaching a particular decision. He propagated the view that law is a set of independent imperative prescribed by law agencies such as Courts, Parliament etc. producing a set of social facts based on the application of organised force of the State.^[17]

4. CONCLUSION

The concept of law is still a developing area where it can have various abstracts as per the current scenario. The schools of jurisprudence have provided their views on the concept of law as per their ideologies and thinking. There are various criticisms for the schools by different jurists. Thus concept of law is a difficult concept to be explained as to have a clear definition. Hence the viewpoints of various jurists and their school of thought may be considered for further development of this area and its practical application.

5. REFERENCES

 

1. Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency
2. M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, (Ninth Edition,2014), Thomson Reuters
3. V.D. Mahajan, Jurisprudence and Legal Theory, (Fifth Edition, 2006), Eastern Book Company
4. G.C. Venkata Subbarao, Jurisprudence and Legal Theory, (Ninth Edition, 2019), Eastern Book Company
5. H.L.A. Hart, The Concept of Law, Clarendon Law Series
6. George Pitcher, Review: On the Concept of Law, JSTOR, (August 19^th 2019), https://www.jstor.org/stable/25086885
7. Saurav Bhola, Sociological School of Jurisprudence, ipleaders, (September 14^th 2019), https://blog.ipleaders.in/sociological-school-of-jurisprudence/
8. Saurav Bhola, Historical School of Jurisprudence, ipleaders, (September 12^th 2019), https://blog.ipleaders.in/historical-school-of-jurisprudence/
9. Analytical School of Juisprudence, legalbites, (September 14^th 2019), https://www.legalbites.in/analytical-school-jurisprudence/
10. Pragalbh Bhardwaj & Rishi Raj, Legal Positivism: An Analysis of Austin and Bentham, ijlljs, (September 13^th 2019), http://ijlljs.in/wp-content/uploads/2014/10/Legal-Positivism-An-analysis-of-Austin-and-Bentham.pdf
11. Lakshyander, Natural Law, legalservicesindia, (September 12^th 2019), http://www.legalservicesindia.com/article/519/Natural-Law.html
12. Mahesh Patil, Conceprt of Law, slideshare, (September 12^th 2019) https://www.slideshare.net/maheshjp05/concept-of-law
13. Llewellyn, K.N. Some Realism About Realism, heinonline, (September 14^th 2019) https://14.139.185.174/sslvpn/PT/https://heinonline.org/HOL/Page?public=true&handle=hein.journals/hlr44&div=82&start_page=1222&collection=journals&set_as_cursor=0&men_tab=srchresults

Citations:

^[1] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency, Pg. 3-7

^[2] H.L.A. Hart, The Concept of Law, Clarendon Law Series

^[3] George Pitcher, Review: On the Concept of Law, JSTOR, (August 19^th 2019), https://www.jstor.org/stable/25086885

^[4] Mahesh Patil, Conceprt of Law, slideshare, (September 12^th 2019) https://www.slideshare.net/maheshjp05/concept-of-law

^[5] Lakshyander, Natural Law, legalservicesindia, (September 12^th 2019), http://www.legalservicesindia.com/article/519/Natural-Law.html

^[6] Lakshyander, Natural Law, legalservicesindia, (September 12^th 2019), http://www.legalservicesindia.com/article/519/Natural-Law.html

^[7] Pragalbh Bhardwaj & Rishi Raj, Legal Positivism: An Analysis of Austin and Bentham, ijlljs, (September 13^th 2019), http://ijlljs.in/wp-content/uploads/2014/10/Legal-Positivism-An-analysis-of-Austin-and-Bentham.pdf

^[8] Analytical School of Juisprudence, legalbites, (September 14^th 2019), https://www.legalbites.in/analytical-school-jurisprudence/

^[9] H.L.A. Hart, The Concept of Law, Clarendon Law Series, Chapter 3

^[10] H.L.A. Hart, The Concept of Law, Clarendon Law Series,, Pg. 82-88

^[11] H.L.A. Hart, The Concept of Law, Clarendon Law Series, (‘postscript’), p.249

^[12] Saurav Bhola, Historical School of Jurisprudence, ipleaders, (September 12^th 2019), https://blog.ipleaders.in/historical-school-of-jurisprudence/

^[13] Saurav Bhola, Sociological School of Jurisprudence, ipleaders, (September 14^th 2019), https://blog.ipleaders.in/sociological-school-of-jurisprudence

^[14] V.D. Mahajan, Jurisprudence and Legal Theory, (Fifth Edition, 2006), Eastern Book Company, page no. 605, paragraph 1

^[15] Llewellyn, K.N., Some Realism about Realism, 1931 44 Harvard Law Review. 1222; https://14.139.185.174/sslvpn/PT/https://heinonline.org/HOL/Page?public=true&handle=hein.journals/hlr44&div=82&start_page=1222&collection=journals&set_as_cursor=0&men_tab=srchresults

^[16] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency, Pg.117

^[17] Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, (Seventh Edition,2014) Central Law Agency, Pg. 118-119

 

Author: Ijas Muhammed, Legal Writer at Legal Desire Media & Insights