The Functional/ Sociological School

The sociological school of jurisprudence is largely a product of the 20th century. Its approach to the analysis of law differs from that of the other schools in that it is concerned less with the nature and origin of law than with its actual functions and end results. The proponents of sociological jurisprudence seek to view law within a broad social context rather than as an isolated phenomenon distinct from and independent of other means of social control. They are concerned with practical improvement of the legal system and feel that this can be achieved only if legislation and court adjudications take into account the findings of other branches of learning, particularly the social sciences. The American jurist Roscoe Pound was a prominent figure in the school of sociological jurisprudence. This philosophical approach to law stresses the actual social effects of legal institutions, doctrines, and practices. It examines the actual effects of the law within society and the influence of social phenomena on the substantive and procedural aspects of law. The fundamental tenet of this school is that we cannot understand what a thing is unless we study what it does. If the judge entirely ignored questions of social interests, of expediency and practical convenience, however, any system of law would become unendurable. To Pound law is more than a set of abstract norms or a legal order- it is also a process of balancing conflicting interests and securing the satisfaction of the maximum of wants with the minimum of friction. Pounds view is relativistic, for he emphasized that the jurist as such has no divine charter to determine the ends which law should purse but can only tentatively affect compromises valid for his time and generation because they are based not on absolute ideals but on the views held by that particular community at the moment. He denied that just legal results would be produced by logical deductions from axiomatic premises about the laws of economics or the structure of society and pointed out that such axioms reflected more a judge's individual biases than they did universal truths. In place of this discredited formalism that masked conservative political prejudices, Pound called for what he termed a sociological jurisprudence. Such a judicial outlook would recognize that law is not an autonomous collection of selfcontained and self referential rules. Instead, the judge would seek enlightenment from disciplines outside law, including the political and social sciences. Judges would become more sensitive to the actual impact of legal doctrine. They would strive for an equitable application of law to reach just results in particular cases. The left wing of this school is frequently termed the realist school. The realists, however, emphasize the element of uncertainty in law and the part played by the personal characteristics of the judge. Sociological jurisprudence is often regarded as an early expression of the movement known as Legal Realism, but there were significant differences between the two. Realists like Karl Llewellyn, while acknowledging their debt to sociological jurisprudence, found

themselves engaged in mutual criticism with Pound, who was skeptical of the premises of Realism. Law is defined not as a set of logical propositions but in terms of official action. Law in action may be very different from law in books. Law is what courts (or other officials) do, not what they say. Until a court has passed on certain facts, some realists argued, there is no law on the subject yet in existence.

Analytical School
Analytical jurisprudence is a method of legal study that concentrates on the logical structure of law, the meanings and uses of its concepts, and the formal terms and the modes of its operation. It draws on the resources of modern analytical philosophy to try to understand the nature of law. It is not concerned with the past stages of its evolution or its goodness or badness. The purpose is to analyze and discuss the law of the land as its exists today. H. L. A. Hart was one of the most influential writers in the modern school of analytical jurisprudence. Most philosophers emphasize that jurisprudence must study the relationship between law and justice, but Kelsen wishes to free the law from the metaphysical mist with which it has been covered at all times by the speculations on justice or by the doctrine of ius naturae (natural law). He is thus a philosopher in revolt from the tendencies to thich philosophy has led so many writers. He desires to create a pure science of law, stripped of all irrelevant material. So the jurist, if he is to be scientific, must study the legal rules abstracted from all social conditions. Kelsen refuses to define law as a command, for that introduces subjective and political considerations and he wishes his science to be truly objective. Law does not attempt to describe what occurs but rather to prescribe certain rules, to lay down standards of action which men ought to follow. If X breaks the criminal law, then he ought to be punished. The sole object of study for jurisprudence is the nature of the norms (or standards) which are setup by law. But Kelsen does not take Austins step of defining law as a command of the sovereign. Law and state are really the same thing envisaged from different aspects. If, however, we cannot adopt the easy method of defining law in terms of the state, by what can we distinguish a rule of law? Nor can we define law in terms of justice, for many rules may be unjust. The sphere of jurisprudence, then, is a study of the nature of the hierarchy of norms, the validity of each norm depending on its being laid down in accordance with a superior norm until we reach the initial hypothesis which jurisprudence can only accept and cannot hope to prove.

Kelsens claim that he has created an impartial and universal science is justified, but are we not left with the dry bones of the law deprived of the flesh and blood which give them life? The great value of his work is its critical force. Kelsen is correct in showing that law is a weapon that may be used to affect many ends. But, in order to maintain the air of impartiality, Kelsen regards a outside the scope of jurisprudence all discussion of natural law, and all examinations of the source whence the judge draws his rules when there is nor authority in point. This leaves the science of law very pure, but deprives it of all interesting contact with life itself. The objection to Kelsens pure science of law is that if the premises are rigidly followed, the result is too formal to be service to jurisprudence; if the jurist goes beyond his premises, the method is destroyed. Kelsens method does not even give us a true picture of law, for jurisprudence must go beyond the formal hierarchy of norms to study the social forces that create law. In 1832 Austin cleared away much dead wood, and a century later Kelsen with critical acumen exposed many fallacies. But the aim of the pure science of law is a narrow one, and it must be complemented by other and broader approaches.

Philosophical/Ethical School
(Law as it ought to be) According to this school, the purpose of law is to maintain law and order in society and legal restrictions can be justified only if they promote the freedom of the individual in society. The ethical school of jurisprudence expounds the 1st principle of law- as it ought to be. The salient features of ethical jurisprudence may be broadly be stated as follows: 1. The concept of justice has a philosophical or ethical content and law and justice are closely inter-related concepts. Law is a means to attain the end of justice. Thus law is only an instrument toward fulfillment of objective of justice. 2. Ethical school of jurisprudence concerns itself to the manner in which the law fulfills its purpose of attendant of justice. 3. It seeks to differentiate between the spheres of law and justice. 4. It attempts to highlight the ethical significance of legal conceptions. Kant(1724-1804) Hegel(1770-1831) Law= regulates external actions Ethics= regulates internal actions, morality, a spontaneous act, conscience According to Kant, ethic relates to mans spontaneous acts, while law deals with all those acts to which a man can be compelled. Ethics thus deals with the inner life of the individual- Law on the other hand, regulates his external conduct.

Kant, emphatically pointed out that an organized societyshould not exercise compulsion, to make man virtuous, but compulsion should be exercised only to regulate his external conduct. In his view, Law is the sum total of the conditions under which the personal of a man can be reconciled with the personal of another man in accordance with a general law of freedom. Kant pointed out that the law to be acceptable to people in general should have within it an element of justness. According to him, legislation could be effective only when it represents the united will of the people. He upheld freedom of speech as a pre-requisite of a good government.

Historical School
The historical school dates from the 19th century, as a reaction against natural-law ideas. Its principles were first clearly defined in 1814 by the German jurist Friedrich Karl von Savigny. The latest school, the comparative, of which the leading early exponents were the German legal scholar Rudolf von Jhering and Albert Hermann Post, represents a widening of the field of investigation. Each national law is studied historically and the various national systems are compared at similar stages of development. As a result of this process, not only may the normal course of legal development be discovered, but that which is universal and human may be separated from that which is particular to a single nation or to a special stage of development. Then, as Jhering hoped, it may eventually become possible to write a history of the law of the world. Among the leading British and American writers on comparative law were James Barr Ames, Oliver Wendell Holmes, Jr., Henry Maine, Frederick William Maitland, and Sir Frederick Pollock. Historical jurisprudence came to prominence during the German debate over the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence, Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because the traditions, customs and beliefs of the German people did not include a belief in a code. The Historicists believe that the law originates with society.