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SCHOOLS OF JURISPRUDENCE
ANALYTICAL SCHOOL
Introduction: Jurisprudence in its technical sense is divisible into three main branches This division is based on certain basic assumptions about 'law' characterised by jurists belonging to each school which distinguishes them from those of other schools. The scope of jurisprudence has widened considerably during the 19th century because of the felt necessities of the time. In the modern age it has been treated as a science of social control of human conduct, hence a comprehensive basis of classification of jurisprudence into different schools according to the legal philosophy propounded by the advocates of these school, has become all the more necessary. Different approaches to the treatment of jurisprudence are represented by its various schools of thoughts. Salmond preferred to divide jurisprudence into three major schools which he called as (1) Analytical school (2) Historical school; and (3) Ethical school. These divisions correspond to legal exposition, legal history and science of legislation ie. dogmatic, historical and ethical aspects of jurisprudence There is no unanimity of opinion regarding desirability of the grouping of essential themes concerning nature of law into different schools. Some jurists have justified this division or grouping in the interest of uniformity and indentifying law into definite categories or branches which are called 'schools of jurisprudence while others have denounced such disintegration of jurisprudence into different 'schools' which would perpetuate 'over-lapping and atomisation' Analytical School The major premise of analytical school of jurisprudence is to deal with law as it exists in the present form. It seeks to analyse the first principles of law as they actually exist in a given legal system. The exponents of analytical school of jurisprudence consider that the most important aspect of law is its relation to the State. They treat law as a command emanating from the sovereign, namely, the State This school is therefore, also called the imperative school. The advocates of this school are neither concerned with the past of the law nor with the future of it, but they confine themselves to the study of law as it actually exists i.e. positus. It is for this reason that this school is also termed as the Positive School of jurisprudence. Bentham and Austin are considered to be the fore runners of this school in England, hence, it is also sometimes known as the Austinian School of jurisprudence. The other exponents of analytical school are Holland,2 Sir John Salmond, Sheldon, Amos, Markby etc. The school received encouragement in United States from distinguished jurists like Gray, Hohfeld and Kocourck and in the European continent from Kelson, Korkunov and others. Bentham rejected the theory of Natural Law Like Thomas Hobbes, Bentham also rejected the natural law theory and co-related law with sovereignty and utility. He was a critic of natural law philosophy and called it 'nothing but a phrase and even went to the extent of calling Blackstonian natural rights as a sheer 'non-sense upon stilts. In his view, nature has placed mankind under two sovereign masters, namely, pain and pleasure which alone decide as to what man should do or not do. This he termed as hedonic calculus, which later came to be known as his principle of utility. According to Bentham, only those laws could be upheld which promoted four goals of subsistence, abundance, equality and security. Bentham's Utilitarianism:
Bentham as an individualist believed that the function of law is to emancipate individual from the bondage and restraint upon his freedom. He supported the economic principle of laissez-faire' which meant minimum interference of the State in the economic activities of individuals. Bentham propounded the principle of utilitarianism. According to this theory, the right aim of legislation is the carrying out of the principle of utility. In other words, the proper end of every law is the promotion of the greatest happiness of the 'greatest number'. Bentham defined 'utility' as 'the property or tendency of a thing to prevent some evil or procure some good". According to him, the consequences of good and evil are respectively '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 and contented, the whole body politic would enjoy 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. According to him, happiness changes its significance in the same way as the meaning of happiness also undergoes changes with the changes in societal norms As state earlier, Bentham desired to ensure happiness of the community by attaining four major goals, namely, (1) subsistence, (2) abundance, (3) equality, and (4) security for the citizens. Therefore, the function of law must be to meet these ends Le to provide subsistence, to produce abundance, to favour equality, and to maintain security. Of these four ends of legal regulation, security was of foremost importance to him as it was related to protection of honour, property and status of a person. He pointed out that individual liberty, though a highly important branch of security, must sometimes yield to consideration of general security. In his opinion, it is not liberty but security and equality which should form the main objective of legal regulation. Bentham never questioned the desirability of economic individualism and property. He firmly believed that people's right to property must be respected for the welfare of the state. Society should encourage private enterprise so as to promote opportunities for subsistence and abundance. Bentham rejected natural rights and recognised no limitations on Parliamentary sovereignty. John Stuart Mill agreed with Bentham's view regarding utilitarianism which is also called the doctrine of hedonism or theory of pain and pleasure. He advocated that doctrine of uality in terms of pain and pleasure was altruistic rather than egoistic since the ideal was "the happiness of all concerned." Therefore, justice implies an urge to retaliate for a wrong i.e. rebel against injury. Thus, for Bentham, pleasure and pain were the ultimate standards on which a law was to be judged. It is for this reason that consideration of morality had no place in Bentham's utilitarian approach. Bentham pleaded for codification of laws and he was opposed to judge-made law. Criticism against Bentham: Bentham's theory of utilitarianism has been subjected to criticism on many counts. According to Friedmann, it suffers mainly from two weaknesses. Firstly, in an affort to blend materialism with idealism: Bentham underestimates the need for individual discretion and flexility in the application of law overestimating the power of the legislator. Secondly, his theory fails to balance individual interests with the interests of the
he strongly believed that law is the sovereign's command carrying with it threat of evil which is called sanction, and the party commanded and threatened is under an obligation (or duty) to obey it. Duty and command are co-relative and fear of sanction (punishment) is the motive for obedience of such command, i.e. law. Austin, however, accepts that there are three kinds of laws which, though not commands, may be included within the purview of law by way of exception. They are
- Declaratory or Explanatory laws: These are not commands because they are already in existence and are passed only to explain the law which is already in force.
- Laws of repeal: Austin does not treat such laws as commands because they are in fact the revocation of a command.
- Laws of imperfect obligation: They are not treated as command because there is no sanction attached to them. Austin holds that command to become law, must be accompanied by duty and sanction for its enforcement. Criticism of Austin's Imperative Theory of Law Austinian theory of law and analytical positivism has been criticised by jurist like Bryce, Olivecrona and others. Bryce characterises Austin's work as full of errors which hardly has any significance in juristic thought. Austin's theory has been criticised on the following grounds:-
- Customs overlooked - Austin's view that 'law is the command of sovereign' is not supported by historical evolution of law when customs played a significant role in regulating human conduct. Further, customs still continue to be a potent source of law even after the coming into existence of the State.
- Permissive character of law ignored - Austin's theory does not take notice of laws which are of a permissive character and confer privileges e.g. the Bonus Act, or the law of Wills etc.
- No place for Judge made law – Judge made law has no place in Austinian conception of law although the creative function of judiciary as a law-making agency has been accepted in modern times all over the world.
- Austin's theory treats International law as mere morality - Austin does not treat international law as 'law' because it lacks sanction. Instead, he regards international law as mere positive morality.19 This view of Austin is hardly tenable in the present time in view of the increasing role of international law in achieving world peace.
- Command over-emphasised - The Swedish Jurist Olivecrona has denounced Austin's theory of law because of its over-emphasis on 'command' as an inevitable constituent of law. In modern progressive democracies law is nothing but an expression of the general will of the people. Therefore, command aspect of law has lost its significance in the present democratic set-up where people's is the ultimate goal of the state. It is unrealistic to think that sovereign in modern times is something separate from the community and is capable of giving arbitrary commands. The fact is that sovereign is an integral part of the community and in making of laws, he is guided by public opinion.
- Inter-relationship between Law and Morality completely ignored - Perhaps the greatest shortcoming of the Austin's theory is that it completely ignores the relationship between law and morality Law can never be completely divorced from ethics or morality which provide strength to it. The legal concepts such as 'right', 'wrong', 'duty', 'obligation etc. themselves suggest that there is some ethical or moral element present in them. Commenting on 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."
- Sanction alone is not the means to induce obedience - Austin's view that it is sanction alone which induces a person to obey law, is not correct. There are many other considerations such as fear,
deterrence, sympathy, reason ele which may induce a person to obey law. The power of the state is only the last force to secure obedience of law.
- Indivisibility of sovereignty criticised - While bringing out distinction between positive law and positive morality, Austin opined that the former was set by a political superior called the sovereign According to him, the sovereign could not be under a duty because his being under a duty would impliedly mean that there is another sovereign above him. But Jethro Brown has contended that the sovereign could well be bound by a duty towards his subjects. Erskine Holland (1835-1928) [OPTIONAL] Holland characterized jurisprudence as the 'formal science of positive law which are recognised as having legal consequences. He pointed out that jurisprudence is not a science of legal relations a priori, (as they ought to have been followed) but it is a posteriori, that is, the law which has been actually imposed by the state as a positive law Holland rejects the Austinian division of jurisprudence into 'general' and particular, because he treats jurisprudence as a science and a science can never be particularised. On the analogy of geology as a science, he supported the theory of general jurisprudence which has universal validity like any other branch of science. Professor Dias has, however, disagreed with Holland's comparing jurisprudence with Geology on the ground that the substance and forces of law are not the same everywhere.20 Law being a social institution, varies according to the varying traditions, values and structure of the society. Buckland has also criticised Holland for not accepting the 'particularity', of the jurisprudence and comparing it with science of geology. Law according to Buckland is like the science of biology which is capable of constant growth and change with changing times. Salmond and Jethro Brown have also criticised Holland for his rejection of particular jurisprudence. Salmond says that general jurisprudence is not the study of legal systems in general but the study of general principles of a particular legal system. Sir Salmond (1862-1924) Salmond defined jurisprudence with reference to a particular positive legal system. According to him, jurisprudence is the science of the first principle of civil law. The term 'civil law' denotes the law of a State as administered by Courts and includes statutes, customs and judicial precedents. He agreed with both Austin and Holland that iurisprudence is a science which involves systematic study of essential principles of national legal system. He differs from Austin in delinking law from political sovereign and correlating it with Courts of law was against attributing jurisprudence generality or universality and held that the jurisprudentia generalis is not the study of legal systems in general, but the study of general principles of a particular legal system. Hart's Conception of Law According to Hart, law is a system of two types of rules the union of which provides key to the science of jurisprudence. These rules, he called as 'primary' and secondary rules Rejecting Austin's view that law is a command, HLA Hart emphasised that primary rules are duty-imposing while secondary rules confer power and the union of the two is the essence of law. The primary rules which impose duty upon individuals are binding because of the popular acceptance such as rules of kinship, family sentiments etc. These being unofficial rules, they suffer from three major defects, namely, (1) uncertainty. (2) static character, and (3) inefficiency. Besides, there is no agency for deciding about these rules.
claims be more realistic and scientific in interpreting and applying law in a given society. There is no place for hypothetical assumptions based on thoral considerations in positivist's approach. Taylor in his treatise The Conception of Morality in Jurisprudence has stated that morality emanates from natural law whereas law emerges from absolute obligation, morality exists in abstract form whereas law exists in concrete form, though both have a separate existence but they are components of a single phenomenon. Morals are modified and adjusted with changes in society, whereas law, which is characterised as an inert normatively, needs outside force of the state to be set in motion When individual moralities begin to clash due to changing norms of the society, it calls for enactment of a law to lay down common standards of behaviour. Therefore, genetically morality and law are complementary. Friedmann also observed that there cannot be and there never has been-a complete separation of law and morality According to him, there is a distinct interaction between law and morality but this by itself does not permit a law to be rejected on the ground of its morality, Reconciling the is/ought controversy and positivist's obsession with "law as it is, R. W. M. Dias observed that those who assert law as it is, and not as it ought to be, do not deny the value of the latter, that is moral aspect of law, but only contend that the two should be kept apart, Positivism flourished in the Benthamite and Austinian period in Britain when social conditions had become stable and the necessity of projecting a rigid separation between 'what law is and what law ought to be occasioned only when social conditions were in turmoil. 32 Thus, positivism represents the intellectual reaction against naturalism and need for respect for law to maintain order in society. Hans Kelson (1881-1973) - Question Kelson's Theory of Pure Science of Law Kelson did not favour widening the scope of jurisprudence by co- relating it with all social sciences and rigorously insisted on separation of law from politics, sociology, metaphysics and all other extra-legal disciplines. It is quite often said that Kelson's pure theory of law tried to rescue jurisprudence from vague mysticism and thus it was in a way revival of John Austin's 19th century analytical jurisprudence Like Austin, Kelson divested moral, ideal or ethical elements from law and wished to create a 'pure' science of law devoid of all moral and sociological considerations. But he rejected Austin's definition of law as a command because it introduces subjective considerations whereas he wanted legal theory to be objective. He also discarded the notion of justice as an essential element of law because many laws, though not just, may still continue as law. He defines science as a system of knowledge or a 'totality of congnitions' systematically arranged according to logical principles. Kelson's grundnorm is analogous to Austin's concept of sovereign without which law cannot be obligatory and binding. 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. He believed that a theory of law should be uniform. Kelson's theory of pure science of law which is also known as Theory of Interpretation was a reaction against vicious ideology which was corrupting the legal theory and the jurisprudence of a totalitarian state. He nomeneclatured his theory as "Pure Science of law" because science to be called rational, must stand in a two-fold relation to its object, viz., it determines the conception of the object and establishes its reality. The former is theoretical while latter is practical. Kelson claimed that his pure theory was applicable to all places and at all times. It must be free from ethics, politics, sociology, history, etc. though he did not deny the value of these branches of knowledge. He only wanted that law should be clear of them. Law as Normative Science Kelson described law as a 'normative science' as distinguished from natural sciences which are based on cause and effect such as law of gravitation. The laws of natural science are capable of being accurately
described, determined and discovered in the form of 'is' (das sein) which is an essential characteristic of all natural sciences. But the science of law is knowledge of what law ought to be (das-sollen). It is the 'ought' character which provides normative character to law. For instance, if 'A' commits a theft he ought to be punished. Like Austin, Kelson also considers sanction as an essential element of law but he prefers to call it 'norm' Thus according to Kelson, 'law is a primary norm which stipulates sanction'. It is called positive law because it is concerned only with actual and not with ideal law. (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," 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 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. He considers it to be a meta- legal question in which jurist need not intrude. Commenting on this point, Julius Stone rightly comments that just as Austin's sovereign in a particular society is a mere starting point for his legal theory, so also basic norm has to be accepted as a hypothetical starting point or fiction which gives a legal system coherence and a systematic form. Thus while all norms derive their validity from the basic norm (Grundnorm), the validty 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. The Supreme Court of Pakistan in State v. Dosso , had also upheld the Kelsenite theory of effectiveness and validity of revolutionary government which had come into power by overthrowing the legitimate Government and destroying the previous Constitution. However, this decision was subsequently over ruled by the Supreme Court (of Pakistan) in Jilani v. Government of Punjab , rejected the authority of the revolutionary government by overthrowing the existing regime. The same history repealed again in Pakistan in 2007 when the Military General Parvesh Musharraf removed the Nawaz Sharif's popular Government in 2007 by military coupe d'etrat and assumed reigns of Pakistan as its President repudiating the Constitution to suit his own dictatorial military government. The present conflict (March-April 2013) between North and South Korea has also put the grundnorm of the Government of that country in jeopardy. These instances clearly shows that Kelsenian grundne m during the revolutionary change has to be determined by the political and extra- legal expediency in the context of the prevailing situation and changed conditions. Kelson recognised that the Grundnorm need not be same in every legal order (State), but it must be necessarily there. It may be in the form of a written Constitution or the will of the dictator 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 basic norm which is otherwise called Grundnorm is however, independent of any other norm being at the apex. The process of one norm deriving its power from the norm immediately superior to it, until it reaches the Grundnorm has been termed by Kelson as 'concretisation' of the legal system. Thus the system of norms proceeds from
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" Thirdly, the theory is found to be based on hypothetical considerations without any practicability. It is not possible to divest law from the influence of political ideology and social needs. He does not consider justice and morality as essential attributes of law. Fourthly, as stated by Friedmann, Kelson's theory provides no solution for the conflicts arising out of ideological differences. His theory rejects the element of justice as a mere emotion which is indeed not true. Law cannot be completely divorced from ethics and morality which gives it a honourable place in the society. Fifthly, Kelson's account of legal dynamics is inadequate. It ignores the purpose of law. For example, while considering the validity or otherwise, of a particular enactment, the courts do take into account the prevailing custom or the motives of the legislature and try to co-relate it with the social purpose which the Act seeks to achieve. They take into consideration the competing interests which may not necessarily be purely legal. Sixthly, Kelson's pure theory of law also suffers from methodological short-comings. He ignores the fact that the action of the authority enforcing law to be valid, has to be in accordance with the procedure and therefore, it becomes necessary to probe into the content of law. Mere use of force would not validate a law. Kelson's normative system being one-sided remains indifferent to the content of norms. Seventhly, Kelson maintained that Grundnorm imparts validity as long as the "total legal order remains effective. But this does not hold good when judiciary of a State refuses to accept the legality of a usurper who assumed power by force and is deposed sooner or latter because of his legal order cannot be said to be effective. Thus, in Jilani v. Government of Punjab , the Supreme Court of Pakistan declared the usurpers of State power as illegal as they were unlawful ab initio notwithstanding effectiveness. This decision amply illustrates that Kelson drew no distinction between effectiveness of legal order which the subjects are compelled to obey due to fear and force of the usurper of State power and effectiveness of a democratically accepted ruler whose legal order willingly obey. HISTORICAL SCHOOL OF JURISPRUDENCE The exponents of the historical school of jurisprudence take social institutions in their sequence with primacy to primitive legal institutions of the society. Thus the school does not attach importance to relation of law to the State but gives primacy to the social institutions in which the law develops itself. While the analytical school pre-supposes the existence of a well developed legal system, the historical school concentrates on evolution of law from the primitive legal institutions of the ancient communities. The task of historical school is to deal with the general principles governing the origin and development of law and with the influences that affect the law. Such inquiries are distinguishable as an anthropological approach to the evolution and development of law. Historical jurists banished ethical considerations from jurisprudence and rejected all creative participation of Judge and Jurist or law-giver in the making of law. They propounded the view that all universal ideal principles to which positive law must conform were not principles of morals but principles of customary action.
Back-drop: Vico in Italy, Montesquieu in France, Burke in England and Hugo and Herder in Germany heralded a new era in the development of legeal theory and viewed law as a legacy of the past and product of customs, traditions and beliefs prevalent in different communities. The historical jurists believe that law has biological growth and it has not evolved in an arbitrary and erratic manner. According to Sir Henry Maine, Montesquieu (1689-1755)2 was the first jurist who adopted historical method of pursuing the study of legal institutions and came to the conclusion that" laws are the creation of climate and local situations". He did not probe further into the relationship between law and society but pointed out that law must keep pace with the changing needs of the society. Hugo (1768-1844), pointed out that law, like language and habits of the people, forms itself and develops as suited to the circumstances. The essence of law is its acceptance, regulation and observance by the members of the society. Montesquieu (1689-1755) The credit of laying down foundation of historical school of jurisprudence in France goes to Montesquieu through his classic work Spirit of Laws published in 1748. He attributed evolution and development of law to the effect of cause and effect in a given social surrounding and biological environment. He held that laws should be adopted to suit the people for whom they are framed keeping in view the degree of liberty which Constitution desires to grant to its people. According to him, there is nothing like good or bad in law, as it essentially depends on political and social conditions and environment prevailing in the society. While he was opposed to natural law, he laid the foundation of comparative and sociological jurisprudence. Savigny (1779-1861) The forerunners of Savigny, notably, Schelling and Hugo had rejected natural law theory which believed that law is based on an abstract principle of human reason. They supported the view that law is a historical perception which evolves according to customs, traditions, culture and sentiments of the people. 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 a evolutionary process much before Darwin gave his theory of evolution in the field of biological sciences in 1861. Volksgeist as a Source of Law Savigny firmly believed that law is a product of the general consciousness of the people and a manifestation of their spirit. Therefore, 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. According to Savigny, a law made without taking into consideration the past historical culture and tradition of community is likely to create more confusion rather than solving the problems because 'law' is not an 'artificial lifeless mechanical device. The origin of law lies in the popular spirit of the people which Savigny termed as Volksgeist. Savigny's contribution to the development of historical school may briefly be stated under the following heads:- Law develops like language - Savigny pointed out that law has a national character and it develops like language and binds people into one whole because of their common faiths, beliefs and convictions. According to him, law grows with the growth of the society and gains its strength from the 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.
Criticism against Savigny's Theory of Law: Savigny's theory has been opposed by his critics on several grounds, the main among those are as follows:-
- 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. Again, he located origin of law in the Volksgeist, that is popular conscience but at the same time asserted that certain customary principles of Roman law had universal application. 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.
- It is often alleged that Savigny's theory of law is negative, obscure and suffers from narrow sectarian outlook. He was against codification of law which is one of the most accepted forms of modern progressive legislation. This anti-codification attitude of Savigny thwarted the growth of German law for several decades.
- 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. There are many areas which would have been left without legal rules because there never existed any popular consciousness about them.
- Again, 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.
- Roscoe Pound has criticised for his juristic pessimism. Savigny's theory 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. Savigny, therefore, overlooked the creative role of law by introducing legal reforms. As Prof. Porkunove rightly pointed out, Savigny's theory "does not determine the connection between what is national and what is universal".
- Though Savigny was not against legislative reform by way of codification of laws, but his approach towards codification was rather cold and pessimistic because in his view codification could never solve all the problems that are likely to arise in future and imperfect code would create more problems by perpetuating follies's underlying it, he firmly believed that codification should be preceded by a progressive scientific study of law after taking into consideration the historical evaluation of the particular law.
- Last but not the least, Savigny's Volksgeist helped many nations to pervert it for 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 it to justify fascism. Puchta (1798-1856) Puchta was Savigny's disciple and has been acknowledged as a staunch supporter of the historical jurisprudence. 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. He traced the origin of human race from biblical account and analysed the growth of law in its historical perspective. 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 agreed with his teacher Savigny that the genesis and unfolding of law out of the spirit of the people was an invisible process. He observed, "what is visible to us is only the product, law, as it has emerged from dark laboratory in which it was prepared and by which it became real." His 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. Henry Maine Maine's Views on Development of Law One peculiar feature of historical method in the context of study of law is that it is not confined to pure law. Even though the material directly under study may be legal, the factual material that comes to light may transcend the exclusive legal field. It is so, because social and legal factors cannot always be reduced to water-tight compartments. Any appraisal of the precise reason for a particular law necessitates special attention to the effect of relevant social, physical, demographic and ideological variables. This view finds support in the writings of Sir Henry Maine who believed that historical research served as a useful tool to make the present more understandable. 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. The word of the pater familias was law to them, which they were supposed to follow. There were, however, some communities which followed 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. In ancient societies, the slave, servant, ward, wife, citizen etc. all symbolised statuses which the law recognised in the interest of the community. According to Maine pater-familiar constituted the lowest unit of primitive communities. A few families taken together formed the Family- Group which consisted of union of families. 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. It was in this manner that early primitive societies evolved, their relationship being regulated by the law of status which was also called as law of persons. Obviously, the individual member of the family had no individual existence than his status as a son wife, servant as the case may be Similarly. servants and slaves had no rights in the early law 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 fr negotiations between persons This led to disintegration of the family system and emergence of contractual relations between individuals. 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 and now they could have rights and obligations like any other person. Thus emerged a free society with freedom of individual in
individual level and encouraging it on collective basis through associations, firms, unions etc Thus it would be seen that there has been a shift of trend from contract to status in modern times It must, however, be pointed out that perhaps Sir Henry Maine himself was conscious of the fact that the movement of progressive societies from status to contract may undergo a change with the passage of time when unrestricted freedom of contract may prove detrimental to the interest of individuals and they might have to fight for their rights and liberties collectively in groups. This is the reason why Maine qualified his statement by using the word hitherto, signifying that until then the movement of progressive societies was from status to contract thus leaving options open for a change in future time to come and incidently, in his own time he witnessed a transformation of society which brought reversal of trend from contract to status with the increasing role of State in the individual activities. A perusal of the history of development of various communities would reveal that the trend as observed by Maine has not been uniform all over the world. Maine's theory certainly holds good in case of capitalist countries which have transformed into socialist States. But Maine's assertion about status to contract has no application in totalitarian States where the freedom of contract is narrowed down to the lowest limits and there is authoritarian rule. Four Stages of Development of Law The supporters of historical school of jurisprudence have traced the evolution and development of law through four major stages. They are as follows:-
- Divine Law : In the beginning law originated from Themes, which meant the Goddess of Justice. It was generally believed that while pronouncing judgments the King was acting under the divine inspiration of Goddess of Justice. Themestes were the awards pronounced by Goddess of Justice (themes) to be executed by the king as a custodian of justice under divine inspiration. Thus the king was merely the executor of judgment of God. The dooms of Anglo- saxsons pertain to this category of judgments or commands.
- Customary Law: Next, the recurring application of judgments led to uniform practice which crystallised into customary law to be followed in the primitive societies. The importance of customs as a source of law has been underlined by Sir Henry Maine when he observed that 'custom is to society what law is to State'.
- Priestly class as a sole repository of customary law - In the next stage of development of law, the authority of the King 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 memorised the rules of customary law because the art of writing had not developed till then. They applied and enforced the customary law.
- Codification - The era of codification marks the fourth and perhaps the last stage of development of law. With the discovery of the art of writing, a class of learned men and jurists came forward to denounce the authority of priest as law-givers. They advocated codification of law to make it accessible and easily knowable. This broke the monopoly of priestly class in matters of administration of law. The ancient Hindu Code of Manu, Hebrew Code, Solon's Attic Code, Twelve Tables in Rome, the Codes of Hammurabi etc. are some of the examples of such law Codes. Vinogradoff The analysis of historical jurisprudence will remain incomplete without the mention of Vinogradoff's contribution to this school. He emphasised that law is not a command of the State but it is an expression of the general will of the people. According to him, Maine's expression of status to contract does not hold good in communities following collectivist ideology wherein the doctrine of collective bargaining through organised associations and unions predominates for ushering economic rights. It must, however, be noted
that Maine himself had acknowledged that his status to contract dictum referred only to primitive progressive communities and not the well developed societies. Vinogradoff also underlined the need for greater emphasis on comparative method of the study of law in modern socialistic pattern of societies which envisage the establishment of a welfare state. According to him, comparative process aids unification of laws and diversities can be conveniently changed into uniformities. Thus comparative law process provides a sound foundation for the enactment of unified laws. SOCIOLOGICAL SCHOOL Sociological school of jurisprudence has emerged as a result of synthesis of various juristic thoughts The exponent of this school considered law as a social phenomenon They are mainly concerned with the relationship of law to other contemporary social institutions They insist that the jurists should focus their attention on social purposes and interest served by law rather than on individuals and their abstract rights /According to this school, the essential characteristic of law should be to represent common interaction of men in social groups whether past or present ancient or modern. The main concern of sociological jurists is to study the effect of law and society on each other. They treat law as an instrument of social progress. The relation between positive law and ideals of justice also affects the sociology of law. The supporters of sociological jurisprudence linked law with other social science disciplines and treated it as a synthesis of psychology, philosophy, economics, political science, sociology, etc Law, according to them, was an applied science employing functional methods of investigation and analysis for solving the social and individual problems in their view, law is concerned with its effect on society and therefore, it would be erroneous to treat it as a mere command or God's will or the people's conscience. The functional role of law and its effect on society constitute the basic philosophy underlying sociological jurisprudence. As Dean Roscoe Pound rightly pointed out, "the sociological jurists look more for the working of law than for its abstract content. The main characteristic features of sociological jurisprudence as stated by Roscoe Pound are as follows: (1) The exponents of sociological school lay greater stress on functional aspect of law rather than its abstract contents. In their view, law cannot be insulated from the social complexities and objectives and practical problems of life. (2) They consider law as a social institution essentially inter-linked with other disciplines bearing 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 Law is in fact a synthesis of philosophy, psychology, political science, economics, sociology etc. and has to be understood in terms of its utility, purpose, effect, practices and functions. (3) Sociological school completely discards the abstract notions of analytical positivism which lay over emphasis on command or power aspect of law as also the dead weight of past culture and traditions which constituted the main theme of the historical jurisprudence. (4) Sociological jurists, however, differ in their approach to the perception of law. Some prefer to adopt a pragmatic empirical recourse to study the functional aspect of law while others emphasise on defining law in terms of to law. For instance, Holmes has defined law in terms of judicial prediction through the verdicts of law courts whereas Roscoe Pound treats law as an instrument for the adjustment of human conditions to the social forces operating in a given society.
as such law also cannot be detached from various socio-economic aspects of the society since it is an effective means of social control in the society. The propounders of sociological jurisprudence, therefore, believe that law cannot be detached from various socio-economic forces operating in the society. For them, law is a mean of social control to be understood in the total setting of the society, it seeks to regulate human conduct and aims at reconciling the conflict of interests. Main Exponents of Sociological Jurisprudence The main exponents of the sociological jurisprudence which has been characterised as "interest oriented, interest loaded and interest directed" were Montesquieu, Auguste Compte, Herbert Spencer, Rudolph Ihering, Eugen Ehrlich, Leon Duguit, Francois Geny, Dean Roscoe Pound, etc. In United States, Justice Oliver Windell Holmes and Benjamin Cardozo, the distinguished American Judges of the U.S. Supreme Court were also inspired by Dean Pound's sociological theory of law. They contributed to the development of American sociological jurisprudence as a reaction to the formalistic attitude of analytical jurisprudence and against traditional concepts of natural rights. Montesquieu (1689-1755) Montesquieu was a French legal thinker who is considered to be the fore- runner of the sociological school of jurisprudence He was first in point of time to perceive the influence of social conditions on law and legal institutions. In his book, The Sprit of Law, L'Esprit des bois), he emphasised that "laws of a particular nation should be determined by its national characteristics and must bear relation to the climate of each country, the quality of each soil, the situation and extent, the principal occupations of the natives and above all, to the religion of the inhabitants, to their inclinations, riches, commerce, manners and customs. Therefore, though not a propounder of sociological jurisprudence, Montesquieu's name deserves mention as a fore-runner of this school of thought He acknowledged the importance of history as a means of understanding the structure of society and drew attention to the role of economic factors. Auguste Compte (1786-1857) The noted French legal thinker and philosopher Auguste Compte is regarded as the founding father of science of sociology because he was the first to employ the term 'sociology to connote an independent discipline He applied scientific method to the study of sociology which has been termed as scientific positivism According to him, society, like any other organism can progress when it is guided by scientific principles. These principles should be formulated by observation and experiment of facts and all other metaphysical. considerations should be excluded from its purview. He further pointed out that man cannot live in isolation as he is essentially a social being and all his impulses originate from his social life which are to be regulated and controlled by law and the government Therefore, it is the society and not the 'individual which should be the focal point of law The legal theory of Auguste Compte greatly inspired Durkheim and later the great sociological jurist Leaon Duguit founded his theory of social solidarity taking inspiration from these legal thinkers. Rudolph Von Ihring (1818-1892) Ihring’s monumental work, Spirit of Law was published in four volumes. Later, he published his principal work which was translated as 'Law As Means To An End in 1913. In this work he criticised the notion of individual freedom and liberty as advocated by Kant and Bentham as they had divorced legal theory from social realities. He thus opposed the doctrine of individualism, which in his view was incompatible to the cause of social justice. Ihring opined that social interest of the society must gain priority over individual interest and the purpose of law should be to protect the interest of the society. Exposing the absurdities and weaknesses of individualism, which had made the individual as the focus of moral political and legal order,
Ihring condemned it as being anti-social and incompatible to the claims of social justice. Thus, he was a great critic of Austinian positivism, Benthamite individualism and Herbert Spencers biological theory of evolution of law all of them being theories which were divorced from social realities. His legal philosophy is therefore, known as the ‘jurisprudence of interests’ which emphasises on sociological aspects of law. The main tenets of Ihring's jurisprudence of interests may briefly be stated under the following heads:
- Law is result of constant struggle - Ihring pointed out that the origin of law is to be found in social struggles. He accepted that the role of law is to harmonise conflicting interest of individuals for the purpose of protection of the interest of the society as a whole. He rejected the philosophical view that law evolves spontaneously like language and thus he gave importance to living law which was later developed by his disciple Eugen Ehrlich. The legal philosophy of Ihring greatly influenced the American sociological school which eventually culminated into Realist School of Jurisprudence
- Law is to serve a social purpose - Ihring considered law as a means to an end. The ultimate end of law is social purpose and not the individual purpose or interest. It is the duty of the State to promote social interest by avoiding a clash between the individual and social interest. He even justifies coercion by the State for the purpose of protection of the social interest. For him, "law is a coercion organised in a set form by the State
- Law alone is not a means to control the society - Ihring made it clear that law alone was not the means to control the social organism. There are some other conditions such as climate, topography etc wherein law need not regulated and controlled exclusively by the intervention of law, such as raising of taxes and revenues. Like Bentham, Ihering also defines 'interest' in terms of pleasure and pain, that is, pursuit of pleasure and avoidance of pain may be called as 'interest'. It is mainly for this reason that Ihering's theory has been called as "social utilitarianism". He considers punishment as a means to a social end. He is opposed to retributive penal policy. Supporting coercive element in law, Ihering observed that "law is the sum total of the conditions of life in the widest sense of the term, as secured by the State's power through the means of external compulsion." Criticism against Ihering's Theory Ihering's legal theory has been criticised for two reasons. Firstly, in suggesting that the function of law is to reconcile the conflicting interests, he is pointing out the problem, but does not come out with any solution to it. Secondly, the main criticism against Ihering's theory of purpose is that law in fact protects 'will' and not the 'purpose’. The true position as per Ihering is that law is a process to achieve a proper balance between social and individual interests, Thus, law has a purpose to promote social interest and as such there can be no law which does not owe its origin to a definite purpose. Eugen Ehrlich (1862-1922) Ehrlich was a Professor of Roman law at the University of Czernowitz in Austria. Like Savigny, he believed in spontaneous evolution of law but he did not hang on the past but conceived law in the context of existing society and thus evolved his theory of 'living law’. According to him, the institutions of marriage, domestic life, inheritance, possession, contract etc. govern the society through living law which dominates the human life. By 'living law he meant extra-legal controls which regulate social relations of men. In his opinion, the centre of gravity of legal development in the present time or the past, lies neither in juristic science nor in judicial decisions, but in society itself. Thus he considers living law wider in scope than the statutory law enacted by the State. For example, there may be some enactments in force in the sense that a court may apply the provisions thereof if they are called in question, but frequently, a community ignores that enacted law and lives according to rules created by mutual consent. The Indian dowry system provides the best
