What is Jurisprudence?

Definitions by:
Austin, Holland, Salmond
Jurisprudence is the study of theory of law.
In Latin Jurisprudentia- Knowledge of Law.
Legal theorists speak of nature of law, of legal reasoning, legal systems and of legal
institutions.
Modern jurisprudence began in the 18th century and was focused on the first principles of
the natural law, civil law, and the law of nations.
Three primary schools of thought in general jurisprudence.
Natural law is the idea that there are rational objective limits to the power of legislative
rulers. The foundations of law are accessible through human reason and it is from these laws of
nature that human-created laws gain whatever force they have.
Legal positivism, it holds that there is no necessary connection between law and morality and
that the force of law comes from social domination or heirarchy.
Legal realism argues that the real world practice of law is actual law;
what legislators, judges, and executives do is what is law.
Jeremy Bentham is known as Father of Jurisprudence.
Bentham distinguished:
1. Law as it is
Expositorial Approach
Command of Sovereign.
2. Law as it ought to be
Censorial Approach
Morality of Law.
Utalitarianism:
How much pleasure or pain does the law bring?
Man is a pleasure seeker.
Laissez-faire: Minimum interference of law in economic life of the citizen.
Austin said - law is command of sovereign.
Legal Positivism:- separates moral rules from positive law.

law is command issued by the soverign

commands are backed by threats of sanctions

a sovereign is one who is habitually obeyed

Criticism of Austin
1.
State enforces law, anything enforced does not become law.
2.
Laws in primitive societies without clear soverign.
Hollands DefinitionAnalytical - Positive laws.
1.
General rules for people enforced by a state.
2.
Study the form and not the implementation. What law intends to achieve is what is
law.
3.
How positive law is applied is not the concern of Jurisprudence.
4.
Jurisprudence is not concerned with the actual material contents of law but only with its
fundamental conceptions.Therefore, itis a Formal Science.
5.
It is product of intellectual enquiry.

6.

Formal Science deals only with purposes, methods and ideas of the basis of the legal
system.
7.
Holland is concerned only with the form and not the intricacies.
Criticizism:
Focus is on form or essence, but practice is affected by actual conditions, social life,
and human relations in a society.
Salmond- He said that Jurisprudence is Science of Law of the land or civil law.
He divided Jurisprudence into two parts:
1. Generic- This includes the entire body of legal doctrines.
2. Specific- This deals with the particular department or any portion of the doctrines.
Specific is further divided into three parts:
1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought to be.
It deals with the ideal of the legal system and the purpose for which it exists.
Criticism - Gave the structure and failed to provide any clarity of thought.
Conclusion- Thus, we can safely say that Jurisprudence is the study of fundamental legal
principles.
Scope of JurisprudenceSystematic study of laws and their impact on society.
Specific and general study allows for development of civilized society.
Significance and Utility of the Study of Jurisprudence
1.

Jurisprudence contribute to the development of legal, political and social school of

thoughts.
2.
Establish fundamental principles of law.
3.
Define legal objectives. Make laws simple and more effective. Not long and
unimplementable. Also allow them to change over time with Society.
4.
Study context of laws in details and their actual implementation. Taking notes of
developments in society. Like Internet.
5.
Guides in ambigous legal terminology and expression.
6.
Provides rules of interpretation.
7.
Jurisprudences role is Normative that deals with the improvement of law in prevailing
socio-economic and political philosophies.
Relationship of Jurisprudence with other Social Sciences
1. Jurisprudence and Sociology Its Normative. Influence of law on society and social welfare.

2. Jurisprudence and PsychologyPsychology has a close connection with Jurisprudence.

Eg. Criminological Jurisprudence. Study, motive behind a crime, criminal personality, reasons
for crime etc.
3. Jurisprudence and EthicsWhat is Ideal Human Behaviour?
a. Moral Code - Establish laws based on Ethical Principles and Natural Law.
b. Positive Moral Code- to establish principles of Equality, Freedom, etc. in the light of public
opinion.
c. Ethics are used to criticize laws and develop new ones.
4. Jurisprudence and Economics- Economics studies mans efforts in satisfying his wants and
producing and distributing wealth. Jurisprudence adds legal aspect to it.
Like Benthams attitude of Laissez Faire, and Minimum interference in economic life.
5. Jurisprudence and HistoryStudy of past and laws. Past Laws, their drawbacks. Social and historical significance of present
laws.
6. Jurisprudence and PoliticsA politically organized society, regulates lifes of its citizens using laws. Its a mutual relationship.

INTRODUCTION
Laws of Nature are eternal and immutable.
Universe is governed by reason, or rational principle; all humans have reason. Thru reason we
can derive laws for Societies to reach their true potential.
Natural law derived thru reason is useful to create fair laws. It is different from Moral Code. But
there is overlap (thesis).
Inheritence and Marriage are not natural, but moral codes exist.
Natural Law Theorists: A positive law that violates natural law is not true law.

John Lockes natural rights" - human beings are free and equal.
Everyone has right to wellbeing and property (natural rights).
We may give up rights only for common good.
Natural laws protects from totalitarianism and established Human Rights.
Natural Law Theory
(Definition)
Natural law is the unwritten law, a body of moral principles, common to all. Derived thru
reason. They act as reference for Positive Laws.
We conform to Natural law for the good of society.
(Conceptual Naturalism)
Analyze the concepts of law and legal system. Establish if law and morality are related.
The legal positivists deny any relation.
(Classical Natural Law Theory)
Positive Law cannot conflict with the natural law;
Law incorporates Moral Principles and Natural Law. But human beingscreate laws. We have
discretion in creating law which is limited by moral norms.
Criticism.

Unjust laws are enforced.

Moral code helps reform of law. (it is not law itself)

Implementation loopholes.

Universal laws not possible.

Nature cannot be basis. Eg. Family Planning.

judicial scrutiny of laws.

Natural Law is cornerstone of Positive Law
Natural Law Ideas in English Law
Parliament is supreme in England. But, principles of natural justice help understand and criticize
legislative laws.
Natural law influences English law as guiding principles.
Quasi-contract is based on natural law principles.
QC - creates an obligation upon a non-contracting party to avoid injustice and to ensure
fairness.
The principles of justice, equality and good conscience are based on natural law ideas.
Natural Law and the Supreme Court of India
The Supreme Court observed that the aim natural justice is to secure justice in areas not covered
by law ie to supplement it.
It includes:
1.
2.

No one shall be a judge in his own cause(nemo debet esse judex propria causa).
No decision shall be given against a party without affording him a reasonable
hearing(audi alteram partem).

In Maneka Gandhi v. Union of India, the Supreme Court invoked Article 21 of

Constituition directly against legislative action which had sanction of law.
Article 21 States:- No person shall be deprived of his life or personal liberty except according to
procedure established by law.

Analytical jurisprudence
H. L. A. Hart most influential, history goes back Jeremy Bentham.
Analytical jurisprudence is not legal formalism (the idea that legal reasoning can be modelled.
Analytic jurisprudence is neutral towards legal systems.
It rejected natural laws - of what law is and what it ought to be.
David Hume - Separate the normative.
"What is the law?
Legal positivism is the dominant theory.
the essence or nature which is common to all laws.
distinguish law from non-law.
analyze the concepts of law and legal system.
1.
to track linguistic usage;
2.
to stipulate meanings;
3.
to explain what is important or essential about a class of objects; and
4.
to establish an evaluative test for the concept-word.
Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project in
contemporary legal theory. Conceptual theories of law can be divided into two main headings:
(a) those that affirm there is a conceptual relation between law and morality and (b) those that
deny that there is such a relation. Nevertheless, Ronald Dworkins view is often characterized as
a third theory partly because it is not clear where he stands on the question of whether there is a
conceptual relation between law and morality.
All forms of natural law theory subscribe to the Overlap Thesis, which is that there is a
necessary relation between the concepts of law and morality. According to this view, then, the
concept of law cannot be fully articulated without some reference to moral notions. Though the
Overlap Thesis may seem unambiguous, there are a number of different ways in which it can be
interpreted.
The strongest form of the Overlap Thesis underlies the classical naturalism of St. Thomas
Aquinas and William Blackstone. As Blackstone describes the thesis:

This law of nature, being co-eval with mankind and dictated by God himself, is of course
superior in obligation to any other. It is binding over all the globe, in all countries, and at all
times: no human laws are of any validity, if contrary to this; and such of them as are valid derive
all their force, and all their authority, mediately or immediately, from this original (1979, p. 41).
In this passage, Blackstone articulates the two claims that constitute the theoretical core of
classical naturalism: 1) there can be no legally valid standards that conflict with the natural law;
and 2) all valid laws derive what force and authority they have from the natural law. On this
view, to paraphrase Augustine, an unjust law is no law at all.
Related to Blackstones classical naturalism is the neo-naturalism of John Finnis (1980). Finnis
believes that the naturalism of Aquinas and Blackstone should not be construed as a conceptual
account of the existence conditions for law. According to Finnis (see also Bix, 1996), the
classical naturalists were not concerned with giving a conceptual account of legal validity; rather
they were concerned with explaining the moral force of law: the principles of natural law
explain the obligatory force (in the fullest sense of obligation) of positive laws, even when
those laws cannot be deduced from those principles (Finnis 1980, pp. 23-24). On Finniss view
of the Overlap Thesis, the essential function of law is to provide a justification for state coercion.
Accordingly, an unjust law can be legally valid, but cannot provide an adequate justification for
use of the state coercive power and is hence not obligatory in the fullest sense; thus, an unjust
law fails to realize the moral ideals implicit in the concept of law. An unjust law, on this view, is
legally binding, but is not fully law.
Lon Fuller (1964) rejects the idea that there are necessary moral constraints on the content of
law. On Fullers view, law is necessarily subject to a procedural morality consisting of eight
principles:
P1: the rules must be expressed in general terms;
P2: the rules must be publicly promulgated;
P3: the rules must be prospective in effect;
P4: the rules must be expressed in understandable terms;
P5: the rules must be consistent with one another;
P6: the rules must not require conduct beyond the powers of the affected parties;
P7: the rules must not be changed so frequently that the subject cannot rely on them; and
P8: the rules must be administered in a manner consistent with their wording.
On Fullers view, no system of rules that fails minimally to satisfy these principles of legality can
achieve laws essential purpose of achieving social order through the use of rules that guide
behavior. A system of rules that fails to satisfy (P2) or (P4), for example, cannot guide behavior
because people will not be able to determine what the rules require. Accordingly, Fuller
concludes that his eight principles are internal to law in the sense that they are built into the
existence conditions for law: A total failure in any one of these eight directions does not simply
result in a bad system of law; it results in something that is not properly called a legal system at
all (1964, p. 39).
Opposed to all forms of naturalism is legal positivism, which is roughly constituted by three
theoretical commitments: (i) the Social Fact Thesis, (ii) the Conventionality Thesis, and (iii) the
Separability Thesis. The Social Fact Thesis (which is also known as the Pedigree Thesis) asserts
that it is a necessary truth that legal validity is ultimately a function of certain kinds of social

facts. The Conventionality Thesisemphasizes laws conventional nature, claiming that the social
facts giving rise to legal validity are authoritative in virtue of some kind of social convention.
The Separability Thesis, at the most general level, simply denies naturalisms Overlap Thesis;
according to the Separability Thesis, there is no conceptual overlap between the notions of law
and morality.
i. The Conventionality Thesis
According to the Conventionality Thesis, it is a conceptual truth about law that legal validity can
ultimately be explained in terms of criteria that are authoritative in virtue of some kind of social
convention. Thus, for example, H.L.A. Hart (1996) believes the criteria of legal validity are
contained in a rule of recognition that sets forth rules for creating, changing, and adjudicating
law. On Harts view, the rule of recognition is authoritative in virtue of a convention among
officials to regard its criteria as standards that govern their behavior as officials. While Joseph
Raz does not appear to endorse Harts view about a master rule of recognition containing the
criteria of validity, he also believes the validity criteria are authoritative only in virtue of a
convention among officials.
ii. The Social Fact Thesis
The Social Fact Thesis asserts that legal validity is a function of certain social facts. Borrowing
heavily fromJeremy Bentham, John Austin (1995) argues that the principal distinguishing
feature of a legal system is the presence of a sovereign who is habitually obeyed by most people
in the society, but not in the habit of obeying any determinate human superior. On Austins view,
a rule R is legally valid (that is, is a law) in a society S if and only if R is commanded by the
sovereign in S and is backed up with the threat of a sanction. The relevant social fact that confers
validity, on Austins view, is promulgation by a sovereign willing to impose a sanction for
noncompliance.
Hart takes a different view of the Social Fact Thesis. Hart believes that Austins theory accounts,
at most, for one kind of rule: primary rules that require or prohibit certain kinds of behavior. On
Harts view, Austin overlooked the presence of other primary rules that confer upon citizens the
power to create, modify, and extinguish rights and obligations in other persons. As Hart points
out, the rules governing the creation of contracts and wills cannot plausibly be characterized as
restrictions on freedom that are backed by the threat of a sanction.
Most importantly, however, Hart argues Austin overlooks the existence of secondary meta-rules
that have as their subject matter the primary rules themselves and distinguish full-blown legal
systems from primitive systems of law:
[Secondary rules] may all be said to be on a different level from the primary rules, for they are
all aboutsuch rules; in the sense that while primary rules are concerned with the actions that
individuals must or must not do, these secondary rules are all concerned with the primary rules
themselves. They specify the way in which the primary rules may be conclusively ascertained,
introduced, eliminated, varied, and the fact of their violation conclusively determined (Hart
1994, p. 92).
Hart distinguishes three types of secondary rules that mark the transition from primitive forms of
law to full-blown legal systems: (1) the rule of recognition, which specif[ies] some feature or
features possession of which by a suggested rule is taken as a conclusive affirmative indication
that it is a rule of the group to be supported by the social pressure it exerts (Hart 1994, p. 92);
(2) the rule of change, which enables a society to add, remove, and modify valid rules; and (3)

the rule of adjudication, which provides a mechanism for determining whether a valid rule has
been violated. On Harts view, then, every society with a full-blown legal system necessarily has
a rule of recognition that articulates criteria for legal validity that include provisions for making,
changing and adjudicating law. Law is, to use Harts famous phrase, the union of primary and
secondary rules (Hart 1994, p. 107).
According to Harts view of the Social Fact Thesis, then, a proposition P is legally valid in a
society S if and only if it satisfies the criteria of validity contained in a rule of recognition that is
binding in S. As we have seen, the Conventionality Thesis implies that a rule of recognition is
binding in S only if there is a social convention among officials to treat it as defining standards
of official behavior. Thus, on Harts view, [the] rules of recognition specifying the criteria of
legal validity and its rules of change and adjudication must be effectively accepted as common
public standards of official behaviour by its officials (Hart 1994, p. 113).
iii. The Separability Thesis
The final thesis comprising the foundation of legal positivism is the Separability Thesis. In its
most general form, the Separability Thesis asserts that law and morality are conceptually distinct.
This abstract formulation can be interpreted in a number of ways. For example, Klaus Fer
(1996) interprets it as making a meta-level claim that the definition of law must be entirely free
of moral notions. This interpretation implies that any reference to moral considerations in
defining the related notions of law, legal validity, and legal system is inconsistent with the
Separability Thesis.
More commonly, the Separability Thesis is interpreted as making only an object-level claim
about the existence conditions for legal validity. As Hart describes it, the Separability Thesis is
no more than the simple contention that it is in no sense a necessary truth that laws reproduce or
satisfy certain demands of morality, though in fact they have often done so (Hart 1994, pp. 18182). Insofar as the object-level interpretation of the Separability Thesis denies it is a necessary
truth that there are moral constraints on legal validity, it implies the existence of a possible legal
system in which there are no moral constraints on legal validity.
Though all positivists agree there are possible legal systems without moral constraints on legal
validity, there are conflicting views on whether there are possible legal systems with such
constraints. According to inclusive positivism (also known as incorporationism and soft
positivism), it is possible for a societys rule of recognition to incorporate moral constraints on
the content of law. Prominent inclusive positivists include Jules Coleman and Hart, who
maintains that the rule of recognition may incorporate as criteria of legal validity conformity
with moral principles or substantive values such as the Sixteenth or Nineteenth Amendments
to the United States Constitution respecting the establishment of religion or abridgements of the
right to vote (Hart 1994, p. 250).
In contrast, exclusive positivism (also called hard positivism) denies that a legal system can
incorporate moral constraints on legal validity. Exclusive positivists like Raz (1979) subscribe to
the Source Thesis, according to which the existence and content of law can always be determined
by reference to its sources without recourse to moral argument. On this view, the sources of law
include both the circumstances of its promulgation and relevant interpretative materials, such as
court cases involving its application.

Ronald Dworkin rejects positivisms Social Fact Thesis on the ground that there are some legal
standards the authority of which cannot be explained in terms of social facts. In deciding hard
cases, for example, judges often invoke moral principles that Dworkin believes do not derive
their legal authority from the social criteria of legality contained in a rule of recognition
(Dworkin 1977, p. 40). Nevertheless, since judges are bound to consider such principles when
relevant, they must be characterized as law. Thus, Dworkin concludes, if we treat principles as
law we must reject the positivists first tenet, that the law of a community is distinguished from
other social standards by some test in the form of a master rule (Dworkin 1977, p. 44).
Dworkin believes adjudication is and should be interpretive: judges should decide hard cases by
interpreting the political structure of their community in the following, perhaps special way: by
trying to find the best justification they can find, in principles of political morality, for the
structure as a whole, from the most profound constitutional rules and arrangements to the details
of, for example, the private law of tort or contract (Dworkin 1982, p. 165). There are, then, two
elements of a successful interpretation. First, since an interpretation is successful insofar as it
justifies the particular practices of a particular society, the interpretation must fit with those
practices in the sense that it coheres with existing legal materials defining the practices. Second,
since an interpretation provides a moral justification for those practices, it must present them in
the best possible moral light. Thus, Dworkin argues, a judge should strive to interpret a case in
roughly the following way:
A thoughtful judge might establish for himself, for example, a rough threshold of fit which any
interpretation of data must meet in order to be acceptable on the dimension of fit, and then
suppose that if more than one interpretation of some part of the law meets this threshold, the
choice among these should be made, not through further and more precise comparisons between
the two along that dimension, but by choosing the interpretation which is substantively better,
that is, which better promotes the political ideals he thinks correct (Dworkin 1982, p. 171).
Accordingly, on Dworkins view, the legal authority of a binding principle derives from the
contribution it makes to the best moral justification for a societys legal practices considered as a
whole. Thus, a legal principle maximally contributes to such a justification if and only if it
satisfies two conditions:
1.
the principle coheres with existing legal materials; and
2.
the principle is the most morally attractive standard that satisfies (1).
The correct legal principle is the one that makes the law the moral best it can be.
In later writings, Dworkin expands the scope of his constructivist view beyond adjudication to
encompass the realm of legal theory. Dworkin distinguishes conversational interpretation from
artistic/creative interpretation and argues that the task of interpreting a social practice is more
like artistic interpretation:
The most familiar occasion of interpretation is conversation. We interpret the sounds or marks
another person makes in order to decide what he has said. Artistic interpretation is yet another:
critics interpret poems and plays and paintings in order to defend some view of their meaning or
theme or point. The form of interpretation we are studying-the interpretation of a social practiceis like artistic interpretation in this way: both aim to interpret something created by people as an
entity distinct from them, rather than what people say, as in conversational interpretation
(Dworkin 1986, p. 50).

Artistic interpretation, like judicial interpretation, is constrained by the dimensions of fit and
justification: constructive interpretation is a matter of imposing purpose on an object or practice
in order to make of it the best possible example of the form or genre to which it is taken to
belong (Dworkin 1986, p. 52).
On Dworkins view, the point of any general theory of law is to interpret a very complex set of
related social practices that are created by people as an entity distinct from them; for this
reason, Dworkin believes the project of putting together a general theory of law is inherently
constructivist:
General theories of law must be abstract because they aim to interpret the main point and
structure of legal practice, not some particular part or department of it. But for all their
abstraction, they are constructive interpretations: they try to show legal practice as a whole in its
best light, to achieve equilibrium between legal practice as they find it and the best justification
of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of
legal practice (Dworkin 1986, p. 90).
Indeed, so tight is the relation between jurisprudence and adjudication, according to Dworkin,
that jurisprudence is no more than the most general part of adjudication; thus, Dworkin
concludes, any judges opinion is itself a piece of legal philosophy (Dworkin 1986, p. 90).
Accordingly, Dworkin rejects not only positivisms Social Fact Thesis, but also what he takes to
be its underlying presuppositions about legal theory. Hart distinguishes two perspectives from
which a set of legal practices can be understood. A legal practice can be understood from the
internal point of view of the person who accepts that practice as providing legitimate guides to
conduct, as well as from the external point of view of the observer who wishes to understand
the practice but does not accept it as being authoritative or legitimate.
Hart understands his theory of law to be both descriptive and general in the sense that it provides
an account of fundamental features common to all legal systems-which presupposes a point of
view that is external to all legal systems. For this reason, he regards his project as a radically
different enterprise from Dworkins conception of legal theory (or jurisprudence as he often
terms it) as in part evaluative and justificatory and as addressed to a particular legal culture,
which is usually the theorists own and in Dworkins case is that of Anglo-American law (Hart
1994, p. 240).
These remarks show Hart believes Dworkins theoretical objectives are fundamentally different
from those of positivism, which, as a theory of analytic jurisprudence, is largely concerned with
conceptual analysis. For his part, Dworkin conceives his work as conceptual but not in the same
sense that Hart regards his work:
We all-at least all lawyers-share a concept of law and of legal right, and we contest different
conceptions of that concept. Positivism defends a particular conception, and I have tried to
defend a competing conception. We disagree about what legal rights are in much the same way
as we philosophers who argue about justice disagree about what justice is. I concentrate on the
details of a particular legal system with which I am especially familiar, not simply to show that
positivism provides a poor account of that system, but to show that positivism provides a poor
conception of the concept of a legal right (Dworkin 1977, 351-52).

These differences between Hart and Dworkin have led many legal philosophers, most recently
Bix (1996), to suspect that they are not really taking inconsistent positions at all. Accordingly,
there remains an issue as to whether Dworkins work should be construed as falling under the
rubric of analytic jurisprudence.

Austin - father of Analytical School owes much to Bentham.

- Laid down the foundation of Positivism.
Definition of Law:Codified language which stipulates desired behavior from the subjects is law, when the codified
language is promulgated on the voilition of the Soverign.
Soverign passes law he wishes. Law is applicable on his subjects and law is able to draw the
desired behavioral outcome.
Utilitarianism:Law frees person from restraint on freedom. Free individuals promote welfare. ThusLaissez
Faire.
Man seeks pleasure and shuns pain. Legislator must study this to write laws. Laws should bring
greatest happiness to maximum people. Utility is tendency of a thing to prevent evil or procure
good.
Bentham departed from justice and morality.

departs from Natural Law

legal positivism - investigative science.

Criticism:

pleasure and pain analysis poor substitute for ethics. (justice)

legislators cant convert pleasure - pain to law.
mans behavior and desires in society are complex.
how to balance community interests v/s persons interest

Founder of Analytical School or Analytical Positivism

Laws are of Nature or made by God. (Divine Laws)
And
Man made Laws:Positive Morality or Improper Laws :rules by undeterminate body. like International Law.

Proper Laws:Commands of the soverign. Jurisprudence applies on Positive Laws. By politically superior on
politically inferior.
Soverign is determinate rational being or body.
Command duty and sanction
Commands create duty for citizen.
Sanctions ensure commands are obeyed.
Definition:- Law includes improper law. Law is a rule set by a person for others, having power
over them.

JOHN AUSTIN:

father of English jurisprudence and the founder of the analytical school.

Professor at university of London ( early ninteenth century)
work i. the province of jurisprudence determined
ii. a plea for the constitution
AUSTIN THEORY OF LAW:
four main features of Positive Law: Command : It is a type of command.
Sovereinity : It is laid down by a political sovereign.

 Sanction

: It is enforceable to sanction || penalty for disobedience.

Duty

: It is Duty of subject (politically inferior) to follow.

Command of the sovereign is law.

Law is strictly diverged from justice.
Laws strictly so called are Commands (General) set by a Sovereign (Supreme) for subjects.
These commands are called proper laws or positive law.
Power of a superior.
Politically Superior (Sovereign) enjoys power over politically inferior i.e ability to punish
(sanction) him for disobedience of laws.
The soverign is a determinate source.
Four kinds of Law in Two categories:I. Law of Godi. Divine Laws
II. Human lawsii. Laws properly so called are - Positive law
iii. Positive morality:- Laws improperly so calledrules of clubs , law of fashion, laws of natural science, International Law etc.
Misciv. Laws by metaphor
(laws of nature, laws of animal or human instinct)

Only general commands are Laws.

Scope of Jurisprudence

Positive Laws or Laws properly so called (Command of Sovereign)

Positive Laws are:
a. Man made Laws.
b. Source is determinate to person or body.
c. Different from Positive Morality.
Scope of Jurisprudence extends to following Exceptions :
Declaratory or explanatory laws
Laws to repeal law
Laws of imperfect obligation
CRITICISM OF AUSTIN THEORY OF LAW:
LAW existed BEFORE state:
1. Laws existed before determinate political authority established.
2. Laws existed before mechanism of enforcement.
GENERALITY OF LAW:
1. Legislation is becoming specific.
Laws NOT a Command.
1. Laws for empowerment of people.
2. English law (much of) is creation of Courts not Legislature.
SANCTION
1. Sanction is not the only motive for obedience. Deference, sympathy, fear and reason too.
2. Willingness of the people to obey needed in Modern Society.
3. Force (Sanction) can be used only against a few.
4. Law is enforced on account its validity. It does not become valid merely by enforcement.
eg. International law, etc.:

NOT APPLICABLE:
1. International law is not the command of any sovereign, yet it is considered to be law.

2. Constitutional law of country defines the power of various organs of the state including
legislature.
3. Hindu, Mohammed and the Canon law.
These laws came into existence long before the state began to perform legislative functions.

DISREGARD OF ETHICAL ELEMENTS

by Salmond:
PURPOSE OF LAW
1. Theory of sovereignty ignores the purpose of law.
2. Circular reasoning. Law is law since it is Law

SALMOND ON AUSTINS THEORY OF LAW

1. Eliminates all elements except that of force.
2. Missed the ethical element in law. eg. justice.
3. Not Law are laws.
MERITS OF THEORY
1. Clear and simple definition of law.
2. Separating law from morality. Morality then - used to criticize laws.
3. Defined source of law. Law is created and enforced by the state and is responsible for it.

Roman Law of 15th - 16th century.

- oldest in Europe.
Eighteenth Century Rationalism
- individualism: his rights.
- system of government: Rule of Law (no king)
- rule by code (law): by deliberation
- Quest for Universal Natural Law
New Classes in Society
- free labour class: skill them to work
- rise of nationalism
- free class of citizens
Codification in Germany
- Enactment of Law by legislature
- Lay Legal Principles
(Thibaut)
Main Features of Historical School:-

Savigny - General Consciousness of a People as Source of Law

His work - i. Law of Possession ii. History of Roman Law
Law as National Character
Volkegeist -Law, language, custom and governance - Inseperable.
Development of Law Spontaneous to Jurists:
Law is Found - Not made: unconscious and spontaneous growth.
Law - not Universal - Local to People - to Volkgeist
Custom - Preceeds Legislation and Superior to it
Legislation last stage of Law making - after custom (source) - lawyer (
mouthpiece) - and jurist

representative -

Criticism of Savigny
Inconsitency about Adopting Laws & National and Universal Laws
Volkgeist - Popular Consciousnes - not only source of law: Culture and Laws are alive and can
gain greatly from one another.
Customs - Not Popular Consciousness: Powerful minority dictates customers too. eg. Slaves
Juristic Pessimism: Not - Active role of jurists and legal reformers for principled society.
Contributions
Against Natural Law Theories: Against universal and timeless. A revolt of fact against fancy.
Main Thesis holds: A nations legal system is influenced by its people.
Nationalist Socialist - Volkgeist in the hands of Hitler and the like created destruction.
Influence on Germany & European legal systems continued.
Seed for Evolutionary and Sociological Theories.

Contribution of Historical School:

1. Study of legal history: Past laws, customs and culture.
2. Peoples feeling of right agasint dead letter of statute: Formal criteria of law are subordinate
to cultural evolution.
3. Warning against hasty legislation: relation between legislation and tradition.
Analytical School v/s Historical School
1. AS: Law is command of the Sovereign. Its made at the rulers free will.
HS: Law is found not made. Organic and unconscious growth.
2. AS: Law owes its existence to State. Law comes after State.
HS: Law existed before any state. State enacts these laws.
3. AS: Legislation is the source of law.
HS: Custom is the source of law.
4. AS: Custom has no place in law.
HS: Law is based on Custom. Custom is superior.
5. AS: Law is upon the desire of the ruler.
HS: Law conforms to popular consciousness. It cannot violate it.
6. AS: Legal reform thru legislation.
HS: It discourages creative legal reform.

Henry Maines: Historic Comparative Method:

Comparated historic laws and instituitions which led to his theory of Evolution of Law.
His work:
i.) Ancient Law

ii.) Village Communities iii.) Early History of Institutions

iv. Dissertation of early law and customs

Stages of Development of Law
i. Law by ruler: under divine inspiration.
ii. Customary Law: Commands of ruler become customs or customary

laws.

iii. Law under priests: Weaker and more distributed than divine ruler.
iv. Codification: Lastly written legislation.
v. Development by - Legel fiction, equity and legislation: Progressive societies develop laws by
legal fiction to evolving society. Equity are sacred principles enshrined which enable legal
fiction. Legislation is direct process of law enactment.
Status to Contract:
Shift from Social Status to Contractual Status. Rights and obligations of individual depend only
on contract based on free negotiations. Labour, women, former slaves, were free to negotiate
contracts. Society moved from Status to Contract.
Criticism:
Curtailments on individual freedom of negotiation.
Collective bargaining: between employers and employee associations
Minimum wages: for industrial & members of working class.
Standard Contracts for essentials: Rate of water, electricity fixed by (public) enterprises.

Retrogression: Totalitarian states curtail individual freedoms for state objectives.

Contribution of Maine
Improved historical School: Elaborated relation between community and the stages of
development of law.
Comparative study - legislation: Studied widely, and created rational framework of
understanding them.

or Vienna School by Hans Kelson.

- establishing framework in light of World War I
- narrowed scope of Jurisprudence
- Grundnorm and Law as Hierarchy of Norms
- need for International Law
- jus naturalie
- Advocates Positive Law, like Austin.
law for what is, not what ought to be.
science of law. and nothing else.
independence of law from moral law, nature, and other sciences.
Law as System of Legal Norms:
- unity in diversity of norms.
it as Theory of Positive Law

Hans Kelsen - Vienna School of Jurisprudence

Background: Europe - World War 1 ending - beginning of 20th Century
- Written Constitutions adopted in Europe.
- Positive Law: moves away from Natural Law, Moral Law, and other Social Sciences.
- Grundnorm & Hierarchy of Legal Norms
- Legal Norms: Facts interpreted strictly in the light of this. No other association.
- Law as Normative Science: If one breaks law then, one ought to be punished - instead of
Commands.
- Validity of Grundnorm & Dynamic creation of law thereof: Validity, Nature and Origin of
Grundnorm is outside scope of jurisprudence. Detailed law ensues after establishment of
Grundnorm.
Pure Theory and Analytical School
- Both put Positive law over Moral Norms
- Conditions and sequence (PT) instead of Law as Command (AS)
- Laws and legal principles in hierarchy (PT) instead of free and independent (AS)
Essentials of Kelsons Theory
i. Reduce Chaos to unity.
ii. Legal theory as science of what law is, not what - ought to be.

iii. Law as Normative Science

iv. Effectiveness of norms - out of scope.
v. Create formal heirarchy of legal norms.
vi. Prescribed punishment when violations occur. Not law as General Command.
Implications of Pure Theory
- Law and State as same entity
- Public and Private Law on equal footing
- Natural and Juristic person are legally same.
- No Individual Rights: Criminal Law - state acts against accused. Rights are someone elses
duties, the state enforces duties.
- International Law: Does not fit inspite of effort by Kelson; Various legal systems do not follow
from grundnorm of International Law; War are not sanctions;
Criticism
- Grundnorm is vague:
- Impurities:
- Grundnorm in legal systems is impure; Constitution as grundnorm is collection of legal
principles and lacks unity of pure theory; Backdoor entry of impurity.
- Building heirarchy from Grundnorm is subjective hence introduces impurity; To derive
further norms and interpretation of principles depends on personality of person, and hence its
impure; human factor.
- (admittedly) Questionable practical significance.
- Natural law ignored.
- International Law: Weakest point.
Contribution
- Legal Personality: juristic and natural person
- Public and Private Law: grundnorm as source of both
- State and Law coincide
- new direction to Positivism: Theory moves beyond command of the sovereign
- scope of jurisprudence seperated from social studies; sociological school had increased scope
to all aspects of social life. Focused strictly on study of law.
- law as it is, punishment as ought to be for violations. Takes laws on facevalue to be derived
from normative heirarchy, and study of punishments that ought to be, in context of a legal norm.

Reformation of Analytical Postivism.

- Historical School and Analytical School brought together.
- Social acceptance (custom) predominates in primitive societies. (HS)
- Organized Authority predominates developed societies. (AS)
- As society develops:
- Forms of recognition, change and adjudication are systematised
- Centralisation of authority, articulation of procedures for execution of
- Legal System exists when:
- General public displays legally valid behavior.
- Officials accept rule of change and adjudication.
- International Law:
- a system of minimal rules for binding parties (country) by treaties.
- detachment from sanctions.
Contribution
- detachment of sanctions from Law (international)
- clarification on general framework of legal theory

law

- comprehensive and constructive

Definition:
Study of Law in Action, Experience of it. And contributing factors.
Law is decision of court. Feeling of justice, experience of it.
Contributing factors: i. human bias ii. social bias iii. validity of law
Scandinavians focused on theoretical aspect. Americans focused on practical.
American School:
Origin traced to Holmes and Gray:
- Pragmatism: No lofty ideals. Basic ground research. Cause and effect.
Supreme Court final authority to interpret and judge its validity.
- Law as what judge declares: (by Gray)
- non-logical factors
- personality and personnel views
- Badman cares only what the judge will decree.
Jeromy Frank (US Judge)
- Certainity of law is a myth:

- Law is constructive work at hands of Lawyers and Judges.

Llewellyn
- law as means to a social end.
- law and society in flux.
- law as is, narrow scope, effects, reality.
- Specific co-relations of situations-facts (not legal principles)
Scandinavian School:
Hagerstrom & Olivecrona:
- actual use and first principles
- law as relationship between society and member: courts as place of interaction
- experience of justice: feeling of justice served
- legal principles interaction with society
Characterstics of Realist School:
- Research includes: Case Laws, personality of judge (and jury), pre- legislation
activities, legislation, activities of administrative bodies and other courts.
- emphasis on social effects of law
- law is ilfe, in organised society
- law as directives for courts
American v/s Scandinavian Realism:
American Realism:
- pragmatism and behaviorism of functional law
- law in action, law in experience

- decision of court as centre of law

not accepting, that most law never reaches the courts
Scandinavian Realism:
- a philosophical critique of metaphysical foundations of law
- rejects down to earth approach of American Realists
- abstract discussion of first principles
Criticism:
- undermine importance legal principles
- court decisions predictable
- law in action is outside courts too
- local not universal approach
Contribution:
- comprehensive: all factors leading to court decision.
- opportunity for ground realities to prevail over rigid law
- scientific principles to make law: rational, articulate and objective
Realist school resembles Sociological School of jurisprudence.

Effect of Society and Law on each other. Relation between individual, state and society
Duguits Social Solidarity Principle:
- interdependence in society for fulfillment of needs.

- law to enables this Social Solidarity

Implications:
1. attack on sovereignty; minimization of state:
- State is like any other human organisation
- legislator gives expression to judicial norm formed by social group
- State however expands: militarily, public sectors, taxation, law enforcement
- State actually best institution for social welfare
2. public law and private law, exist at same level for social solidarity - exchange of services and
co-operation
3. no private rights:
- essence of law for individuals is duty (not right).
- focus on society not individual.
Criticism:
i. Social solidarity, specific case of Natural Law
ii. Vague expression: left for judges.
iii. Provides for what law ought to be.
iv. State infrastructure and potential as solution.
v. Collective personality denied: Both to State and group.
Contribution:
i. theory of justice, theory of natural law derived from sociology
ii. unintended contribuition to Soviets and Nationalists

Father of Sociological Jurisprudence:

Iherings Social Utilitarian (~1850)
Law for social utility (Bentham).
Law is:
- guarantee of conditions of life assured by states power, obtained thru constant struggle.
- for Social Purpose or common interest, over individual purpose, by coercion.
- a means of control: punishment as means to social end.
Criticism
Problems not solutions: Points to complications of society, no direction for solution.
Contribution:
- His study of legal systems
- interest as motive; in groups its preponderance towards right
- Coercive character of law; law develops by conscious effort;
- evaluating law in social context
- elastic legal technique; social purpose left free to define. unlike Duguits Social Solidarity

Functional School - Functional aspect of Law. Functioning in society foran objective.

Social effects of law, its history, law in action, legal institutions, functional, wholistic approach.
What is that objective?
satisfy maximum human wants for minimum friction
How do you achieve that?
Social Engineering. Making laws that engineer society. Engineering to perfection using laws.
Society - competing interests. Private interests, Public interests, Social interests.
Private interests:
physical protection, freedom of life and liberty, marriage laws, property rights.
Public interests:
preservation of the state, states protection of social interest
Social interests:
Presevation of peace and security. presereve social and religious institutions. counteracting
moral decrepitude, corruption and gambling. progress in education, trade, freedom of speech.
Jural postulates:
1. protection against intentional aggression of others.
2. own what is earned or discovered legally.
3. promises will be kept.damages restored. (Contracts and Torts)
Criticism:
Engineering - mechanical application in society.

No Ideal scale of values given.

Dynamic feature of societys influence on law ignored.
Contribution:
values are relative
encourages practical field-researach
law in relation to society