"Jurisprudence" taken from a Latin word "Jurisprudentia", 'Juris' and 'prudentia'.

Jruis' means law

and 'Prudentia' means knowledge. Latin word Jurisprudentia- Knowledge of Law or Skill in Law.
Jurisprudence, therefore, literally means knowledge of law and its application.
Nature: Jurisprudence in its nature is entirely /different subject from other social sciences. The
reason for this is that it is not codified but a growing and dynamic subject haying no limitation on
itself. Its inquiry system is of different status from other subjects. Every jurist does not base his
study on the rules made but tries to understand their utility after due deliberation. Thus,
jurisprudent has no limited scope being a growing subject.
There is a difference of opinion about the nature of Jurisprudence. It is called both Art and
Science. But to call it science would be more proper and useful. The reason for this is that just as
in science we draw conclusions after making a systematic study by inventing new methods. In
the same way, jurisprudence is concerned with the fundamental principles of law and systematic
and scientific study of their methods.
Scope: Broadly speaking, Jurisprudence includes all corrects of human order and conduct in
State and Society.
According to Justice P. B. Mukherjee, "Jurisprudence is both an intellectual and idealistic
abstraction as well as behavioural study of man in society. It includes political, social, economic
and cultural ideas. It covers that study of man in relation to State and Society.
Jurisprudence involves certain types of investigations into law, an investigation of an abstract,
general and theoretical nature which seeks to lay the bare essential principles of law and legal
systems. Elaborating the point further, Salmond observed, "In jurisprudence we are not
concerned to derive rules from authority and apply them to problem; we are concerned rather to
reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the
essential features of legal system." This makes the distinction between law and Jurisprudence
amply clear. Thus, whereas in law we look for the rule relevant to the given situation, in
jurisprudence we ask, what is for a rule to be a legal rule, and what distinguishes law from
morality; etiquette and other related phenomenon. It, therefore, follows that jurisprudence
comprises philosophy of law and its object is not to discover new rules but to reflect on the rules
already known.
Utility: Often said that J. being an abstract and theoretical subject, is not of any practical use.
Not correct to say so.
1. This subject has its own intrinsic interest and value because this is a subject of serious
scholarship and research; researchers in Jurisprudence contribute to the development of society
by having repercussions in the whole legal, political and social school of thoughts.
2.
Jurisprudence also has an educational value. It helps in the logical analysis of the legal concepts
and it sharpens the logical techniques of the lawyer. The study of jurisprudence helps to combat
the lawyers occupational view of formalism which leads to excessive concentration on legal rules
for their own sake and disregard of the social function of the law. 3. The study of jurisprudence
helps to put law in its proper context by considering the needs of the society and by taking note
of the advances in related and relevant disciplines. 4. Jurisprudence can teach the people to look
if not forward, at least sideways and around them and realize that answers to a new legal
problem.
5. Jurisprudence is the eye of law and the grammar of law because it throws light on
basic ideas and fundamental principles of law. Therefore, by understanding the nature of law, its
concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in knowing
the language, grammar, the basis of treatment and assumptions upon which the subject rests.
Therefore, some logical training is necessary for a lawyer which he can find from the study of
Jurisprudence.
6. Jurisprudence helps the judges and lawyers in ascertaining the true meaning
of the laws passed by the legislators by providing the rules of interpretation. Therefore, the study
of jurisprudence should not be confined to the study of positive laws but also must include
normative study i.e. that study should deal with the improvement of law in the context of
prevailing socio-economic and political philosophies of time, place and circumstances.
7.
Professor Dias said that the study of jurisprudence is an opportunity for the lawyer to bring
theory and life into focus, for it concerns human thought in relation to social existence.

Analytical
Law is creation of state

Historical
Law id found and not made. It is self existent

Without sovereign, there can be no law

The hall mark of law is enforcement by the
sovereign
Law rests upon the force of politically
organised society
Law rests upon the force of politically
organised society
Judges should confine themselves to
interpreting the law
Emphasis is an empirical a priori method

Law is antecedent to the state and it existed even

before states came into existence
Law is independent of political authority and
enforcement
Law rests on social pressure
In construing a statue judges should consider teh
history of legislation in question
Typical law is custom
Emphasis is on comparative method

ANALYTICAL SCHOOL OF JURISPRUDENCE:

Bentham: He is considered to be the actual
founder of positivism. He determined, first, the principles on which reforms should be based,
second, method i.e. mode of legislation, by which reforms should be carried out.
- Defined
law as an assemblage of signs declarative of a violation conceived or adopted by the Sovereign
in a State.
- Distinguished expositorial jurisprudence (i.e. what the law is) from censorial
jurisprudence (i.e. what the law ought to be)
-Rejected the theory of Natural Law and
correlated law with sovereignity and utility. In his view, nature has placed mankind under two
sovereign masters namely, pain and pleasure, which alone decide as to what a man should do or
not do. This is termed as hedonic calculus or principle of utility. Only those laws can be
upheld which promote subsistence, abundance, equality and security.
- Every law may
be considered in light of 8 different aspects source of law + subjects + objects + extent +
aspect + force or sanction + remedial state + expression
Theory of Pain and Pleasure/ Doctrine of Hedonism: - Supported the economic theory of
laissez-faire min. interference of State in economic activities of individuals.
- He
propounded the theory of Utility i.e. greatest happiness of the greatest number.
Nature has placed mankind under two sovereign masters i.e. pleasure and pain. They alone
decide what we should and what we should not do.
-The ultimate object of law is to bring
pleasure and avoid the pain. For example:- constructions of roads, hospitals, educational
institutions etc.
- Happiness of the community can be ensured by attaining four major goals
1. Subsistence 2. Abundance 3. Equality 4. Security for the citizens
- Morality is not an
essential attribute of law -Pleaded for codification of laws and was opposed to judge-made law
Benthams views on justice His perception of justice is based on system of values and each
society has its own different set of values, i.e., morals. The individuals living in society should
conform to these values or norms and regulate their conduct accordingly, else there would be
conflict of interest. If no conflict of interest, no need for justice.
Criticism: 1. Overestimating power of legislator - Underestimates the need for individual
discretion and flexibility in the application of law.
2. Theory fails to balance between individual
interests and interests of the community. 3. Pain and pleasure alone cannot be the final test for
adequacy of law
Austins Theory: Father of English jurisprudence. Austin distinguished Positive Law from Positive
Morality which is devoid of any legal sanction
Positive Law- These are the laws set by political superiors as such, or by men not acting as
political superior but acting in pursuance of legal rights conferred by political superiors. Only
these laws are the proper subject matter of jurisprudence.
Positive Morality- Other laws which are not set by political superiors (set set by persons who
are not acting in the capacity or character of political superiors) or by men in pursuance of
legal rights. This class includes international Law.
Austins Imperative Theory of Law
Defined law as rule laid for the guidance of intelligent beings by an intelligent being having
power over him. 1. Laws set by God for men 2. Laws made by men for men.
He strongly believed that law is the sovereigns 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.i.e.Four essential attributes of law: 1.Command 2.Sanction 3.Duty 4.Sovereignity.
Command are of two kinds 1. General and 2. Particular.
General Command - A general command is a law or rule where it obliges generally to acts or
forbearances of class.
Particular Command - It is occasional or particular when it obliges to a specific individual act or
forbearance.
Three kinds of laws which though not commands are included in purview of law, exceptions:
1. Declaratory or Explanatory Laws Already in existence. Passed to explain the law already in
force. 2. Laws of Repeal not command as revocation of a command 3. Laws of imperfect
obligation not command because sanction attached to them.
Criticism: Customs overlooked + Permissive character of law ignored + no place for judge made
law + treats international law as morality + command over-emphasized + inter-relationship

between law and morality completely ignored + sanction alone not the means to induce
obedience + Indivisibility of sovereignty criticized

HLA Hart: Law is the system of two types of rules the union of which provides key to the science
of jurisprudence. These are called primary and secondary rules. 1. Primary rules impose
duty upon individuals and are binding because of popular acceptance, such as, rules of kinship,
family sentiments, etc. Unofficial rules and suffer from 3 major defects uncertainty + static
character + inefficiency. There is no agency for deciding about these rules. International Law
According to Hart, in the contemporary world international law is the conspicuous illustrations of
a system of primary rules. 2. Secondary rules - confer powers which enables legislators to
modify their policies according to the needs of the society. They actually remove defects of the
primary rules.
Rule of Recognition Sole rule in a legal system whose binding force depends upon its
acceptance. Eg. Whatever is enacted by British queen in parliament becomes rule of recognition,
various constitutional laws which are binding on citizens, govt. agencies, etc.
Harts conception of positivism centered round following considerations - 1. Accepted
law as a command as advocated by Bentham and Austin 2. Believed that analysis of legal
conceptions are worth pursuing as distinguished from mere sociological and historical enquiries.
3. Judicial decisions to be deduced from pre-determined rules without recourse to social aims,
objectives, policy or morality 4. Moral judgements cannot be defended by rational argument,
evidence or proof 5. The law as it is actually laid down (positum) has to be kept separate from
law as it ought to be.
Harts views on law and morality - Necessary for law and morality to have certain element of
natural law as a logical necessity. Law and morality are complementary and supplementary to
each other. Four attributes of morality importance + immunity from deliberate change +
voluntary character of moral offences + forms of moral pressure which separate it from etiquette,
custom and other social rules. Eg. Rules of sexual behavior
"Doctrine of Stare Decisis - This means 'to stand by precedent and not to disturb the settled
point of law". When a point of law has been decided once, it becomes precedent and it must not
be departed from in subsequent cases. In other words, the judges have to follow the past
decisions as model with the help of which they should decide the case on hand. The 'Doctrine of
Stare Decisis' is not fully applicable in India. The supreme court is not bound by its-own earlier
decisions; so also the High courts are not bound by their earlier decisions. But to say this is to
utter
a
technicality
because in actual fact the judge; are most reluctant to depart from earlier decisions. The
Supreme Court has laid down that except for compelling reasons, it will not depart from its earlier
decisions.
Kelsons theory of pure science of law: 1. Separation of Law from Other Social
Sciences and Morals - Kelsons pure theory of science No correlation between jurisprudence
and other social sciences - politics, sociology, metaphysics and all other extra-legal disciplines Like Austin, divested law from moral, ideal, social, ethical elements
- Unlike Austin, discarded
command and justice from law
2. Described, law as a normative science distinguished from
natural science which are based on cause and effect such as law of gravitation. Law of natural
science can be accurately described, determined, discovered (is i.e. das sein) Science of law
knowledge of what law ought to be (das sollen) i.e. normative character e.g A theft ought
to be punished. Thus, positive law because stipulates sanction. Positive law concerned with
actual not ideal law. Considers sanction essential element calls it norm. Norm is a rule
forbidding or prescribing certain behaviour.
3. 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'. The Grundnorm or basic norm determines the
content and gives validity to other norms derived from it. Kelson, however, considers Grundnorm
as a fiction (cant be objectively tested) rather than a hypothesis.
4. Pyramid of Norms
Kelson considers legal science as a pyramid with 'Grundnorm' at the apex. The subordinate norms
are controlled by norms superior to them in hierarchical order. The 'Grundnorm is however,

independent of any cither 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
downwards to upwards and finally it closes at the Grundnorm at the top.
Essential Features of Kelson's Theory: 1. Aims to to reduce chaos and confusion created by
natural law philosophy.
2. Deals with knowledge of what the law is', not of what the law 'ought to be.
3. The law is a
normative not a natural science.
4. Theory is Theory of norms, not concerned with the
effectiveness of the legal norm.
5. Formal theory, confined to a particular system of positive
law as actually in operation.
Criticism: 1. Without social foundation. 2. assertion that all norms except basic norm are pure
has no logical basis (when Grundnorm not pure, how can norms deriving their validity from it can
be pure) 3. Based on hypothetical considerations without practicability not possible to divest
law from social needs
4. No solution for conflicts arising out of ideological differences.
5.
Kelsons account of legal dynamics is inadequate. It ignores purpose of law.
6. Suffers from
methodological shortcomings. 7. Kelson maintained that Grundnorm imparts validity as long as
the total legal order remains effective. This does not hold good when judiciary of a State
refuses to accept the legality of an usurper who assumes power by force. (Jilani v. Government of
Punjab)
American Realist School: The realist movement is a part of the sociological approach and
is, sometimes, called the 'left wing of the functional school'. It casts light on the realities. The
founder of this school is J. Holmes and the supporters are Prof. Gray, Liewellyn and Frank. It
differs from the sociological school in respect of the fact that it is little concerned with the
ends of law. It concentrates on a scientific observation of law in its making and working. This
movement is named as 'realist' because this approach studies law as it is in actual working
and its effects.

There are certain principal features of realistic jurisprudence as outlined by Karl

Llewellyn and Prof. Goodhart:
1. There has to be a conception of law in flux and of the judicial creation of law.
2.Law is
a means to social ends and every part of it has constantly to be examined for its purpose
and effects, and to be judged in the light of both and their relation to each other.
3.Society
changes faster than law and so there is a constant need to examine how law meets
contemporary social problems.
4.Realists believe that there can be no certainty about law
and its predictability depends upon the set of facts which are before the court for decision.
5.They do not support formal, logical and conceptual approach to law because the Court
while deciding a case reaches its decisions on emotive rather than logical ground.
6.They lay greater stress on psychological approach to the proper understanding of law as it
is concerned with human behavior and convictions of the lawyers and judges.
7.Realists
are opposed to the value of legal terminology, for they consider it as tacit method of
suppressing uncertainty of law.
8.The realists introduced studies of case law from the
point of view which distinguished between rationalization by a judge in conventional legal
terminology of a decision already reached and the motivations behind the decisions itself.
9.The realists also study the different results reached by courts within the framework of the
same rule or concept in relation to variations in the facts of the cases, and the extent to
which courts are influenced in their application of rules by the procedural machinery which
exists for the administration of the law.
Criticism: 1. The realist approach to jurisprudence has evoked criticism from many quarters.
The critics allege that the exponents of realist school have completely overlooked the
importance of rules and legal principles and treated law as an assemblage of
unconnected court decisions. Their perception of law rests upon the subjective fantasies and
life experience of the judge who is deciding the case or dispute. Therefore there cant be
certainty and definiteness about the law. This is indeed overestimating the role of judges in
formulation of the laws. Undoubtedly, judges do contribute to lawmaking to a certain extent
but it cannot be forgotten that their main function is to interpret the law.
2.Another

criticism so often advanced against realists is that they seem to have totally neglected that
part of law which never comes before the court. Therefore it is erroneous to think that law
evolves and develops only through court decisions. In fact a great part of the law enacted by
legislature never comes before the court.
3.The supporters of realist theory undermine
the authority of the precedent and argue that case law is often made in haste, without
regard to wider implications. The courts generally give decisions on the spot and only rarely
take time for consideration. They have to rely on the evidence and arguments presented to
them in court, and do not have access to wider evidence such as statistical data, economic
forecasts, public opinion, survey etc.
4.Realist school has exaggerated the role of human
factor in judicial decisions. It is not correct to say that judicial pronouncements are the
outcome of personality and behavior of the judges. There are a variety of other factors as
well which has to take into consideration while reaching his decisions.
5.The realist theory
is confined to local judicial setting of United States and has no universal application in other
parts of the world like other schools of jurisprudence.
Contribution: approached law in positive spirit and demonstrated futility of theoretical
concepts of justice n natural law. Opposing positivist's views, realists hold that law is
uncertain and indeterminable in nature, therefore certainty of law is myth. A Frank Jerome
said that Realist school has to liberate judges from enslavement of unduly rigid legal
concepts and exorted them to take into consideration ground realities of social facts while
deciding the cases. As per Friedman, it is an attempt to rationalize and modernize the law
both administration of law and material of legislative change by utilizing scientific method
and taking into account the factual realities of social life

HISTORICAL SCHOOL: study the orgin, development and systematized change in law and legal

concepts. study of mutual relations of state and law is made in Historical perspective. According to it,
law is found, not made. Law is based on customs and usages. Savigny: German jurist Fredrich Karl
Von Savigny - founder of Historical School of Jurisprudence. The main propositions of his theory of law
are as under:
1. Source of Law is Volksgeist: Savingny was of the opinion that law is a product of the people's
lifeit is a manifestation of its spirit. Law has its source in the general consciousness (Volksgeist) of
the people. According to Savigny, a law made without taking into consideration the past historical
culture and tradition of community is likely to create more confusion than solving the problems
because law is not an "artificial lifeless mechanical device." Thus, the origin of law lies in the popular
sprit of the people which Savigny termed as Volksgeist.
2. Law Develops Like Language and has a National Character: Law has a national character
and it develops like language and binds people into one whole because of their common faiths,
beliefs, and convictions. He pointed out that "law grows with the 'growth of the society and gains its
strength from the society itself and finally it dies away as the nation loses its nationality." Law,
language, customs and government have no separate existence from the people who follow them.
Common conviction of the people makes all these as a single whole. The central theme of Savigny's
historical jurisprudence may be summarised as under: "The organic evolution of law with the life and
character of the people develops with the ages, and in this it resembles language. As in the latter,
there can be no instant of rest, there is always movement, and development of law is governed by
the same power of internal necessity as simple phenomena. Law grows with a nation, increases with
it, and dies at its dissolution and is a characteristic of it."
3. Early Development of Law is Spontaneous; thereafter Jurists develops it: In the earlier
stages law develops spontaneously according to the internal needs of the community but after the
community reaches a certain level or civilization, the different kinds of national activities, hitherto
developing as a whole, bifurcate in different branches to be taken up for further study by specialists
such as jurists, linguists, anthropologists, scientists etc. Law has to play a duel role, namely, as a
regulator of general national life and as a distinct discipline for study. The former may be called the
political element of law while the latter as a jurisitc element but both have a significant role in the
development of law. The history of Roman law furnishes the best illustration of these processes.
4. Savigny's View on Codification of Law: Although Savigny not totally against codification of
laws. He, however, opposed the codification of the German law on the French (Napoleonic Code )
pattern at that time because Germany was then divided into sevn.il smaller states and its law was
primitive immature and lacked uniformity. He said that German law could be codified at a later stage
when the unification of Germany takes place and there is one law and one language throughout the
country. Since Volksgeist i.e. common consciousness had not adequately developed at that time,
therefore, codification would have marred the evolution and growth of law.
5. Law is a Continuous and Unbreakable Process: Tracing the evolution of law from Volksgeist,
Savigny considered its growth as a continuous and unbreakable process bound by common
cultural traditions and beliefs. It has its, roots in the historical processes which should constitute the
subject of study for the jurists. According to him, codification of law may hamper its continuous
growth and, therefore, it should be sorted to when the legal system has fully developed and
established.
6. Admiration for Roman Law: While emphasizing Volksgeist as the essence of law, Savigny
justified adoption of Roman law in the texture of German law which was more or less diffused in it. He,
therefore, located Volksgeist in the Romanised German customary law. He considered Roman law as
an inevitable tool for the development of unified system of law in Germany.
Contribution: greatest 'German' jurist of 19th Century. He was a teacher in the university of Berlin
and later in 1819 was appointed as chairman of Saw also His famous works (i)The Law of Possession
(ii) History of Roman Law in Middle ages and (iii) The system of modern Roman law testify his genious.
It is book named "Das Rhect des Besitzes" was published in 1903 which is considered to be the best
book on Roman law. He is the founder of historical Savigny's theory of Historical School came as a
powerful reaction against I Kill century 'rationalism' and principles of natural law.
Criticism: 1.Certain inconsistencies, emphasised national character of law but same time suggested
a model by which Roman law could be adopted and accepted as law of Germany. Located origin of law
in volksgeist that is popular conscience but same time asserted certain customary principles of roman
law had universal applications. 2.His theory of law is ve, obscure n suffers from narrow secretarian
outlook. Against codification of law which is most accepted forms of modern law and this attitude
thwarted growth of German Law. 3.His assertion that popular consciousness is soel source of law is

not wholly true. Theory of Volk. Overlooked impact of other sources of law as legislation etc. in
evolution of law. So many areas which would hv bn left without legal rules because there never
existed popular consciousness about them 4.Customs r always based on popular consciousness not
acceptable. Many customs as slavery, bonded labour originated for selfish interest of those in power.
5.(Pound) Hindered legal reforms & modernisation of law in name of Volk. Overlooked creative role of
law by introducing legal reforms. 6.Not against codification but approach to codification pessimistic n
cold as it could never solve problems likely to arise in future
7.S's Volk helped many nations to
pervert it for promoting their own ideologies. Nazi twisted it giving racial colour, Marxists used it
giving interpretation of history and italy used it to justify fascism.
Maine's Views on the Development of Law: Maine, through his comparative researches came
to the 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 (In v 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. Thus, slave, servant, ward, wife, citizen etc., all
symbolised -statutes which the law recognised in the interest of the community.
Pater familiar (lowest unit) of primitive communities - Family Group gens Tribes community
(commonwealth)
Movement of. Progressive Societies from Status to Contract: According to Maine with the
march of time the institution of pater familias withered away and now rights and obligations were
dependent on individual contracts and free negotiations between persons. This led to
disintegration of the family system and emergence of contractual relations between individuals.
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 individual. Freedom of
individual in economic field called as Doctrine of Laissez Faire whihc struck a blow to notion of
status as bais of laws. These changes in the pattern of societies led Maine to conclude that
'movement of progressive societies has hitherto been from status to contract.
Reversal of Trend from Contract to Status: With the advance of time and due to the impact
of industrialization, hunger, ignorance, disease etc., have cropped up giving rise to inequality
between individuals and groups within the society. Consequently, there came a counter-current of
reversal from contract to status in the time of Maine himself. It was realised that idea of freedom
of contract between powerful capitalist and starving labour class led to catastrophic
consequences resulting into exploitation of workers. This resulted into the emergence of Trade
Unionism. The workers now formed their associations and instead of individual freedom of
bargaining their wages and facilities, their trade unions had the power of group-bargaining. That
apart, several labour welfare legislations such as the Minimum Wages Act, Factories' Act, Trade
Unions Act, Workmen's Compensation Act, Employees Liability Act, Industrial Disputes Act, Bonus
Act etc. were enacted to improve the service conditions and bargaining capacity of workers in
order to free them from the unscrupulous industrialists and capitalist. With increasing role of
state in a welfare state, it functions as a Regulator to secure social order based on justice,
equality, liberty and fraternity.
Contribution: Maine studied ancient law of India-and drew a comparison between the Indian
Law and the Laws of Modern Western Societies. Among other works of Maine, his books entitled
'Village Communities', 'Early History of Institutions', 'Dissertation of Early Law and Custom',
deserve special mention.
4 stages of development of law: 1.Divine Law: law origin from Themes i.e. Goddess of
Justice. King waas acting under her inspiration. Themestes (award) to be executed by king
2.Customary Law: recurring application of judgement leads to uniform practice which
crystallised into customary law 3.Priestly class as sole repository of customary law: king's
power usurped by Preistly class, they memorised, applied and enforced customary law

4.Codification: last stage, art of writing, denounced authority of priest as law givers, advocated
codification. E.g. Ancient Hindu code of Manu, Hebrew Code, Solons Attic Code
Methods of Developing Laws: 1. Legal Fictions: changes law as per changing society needs.
Maines-any assumption whihc conceals or effects to conceal teh fact that a rule of law has
undergone alteration, its letter remaining unchanged, its operation being modified. Stoneswaddling clothes of legal chaneg. Device to extend new rules to old situations. e.g. 'the king is
dead, long live the king 2.Equity: consists of principles appealing to conscience of human
being. Maine- Body of rules existing side by side of original common law, founded on distinct
principles and claiming incidentally to supersede common law by virtue of a superior sanctity
inherent in those principles. origin track back to 19 th century. Common law 3 defects i.e.
absence of remedy in certain cases; inadequacy of remedy; excessive formalism. Sought to be
removed by 3 jurisdictions of equity law i.e. Exclusive Jurisdiction; Concurrent Jurisdiction;
Auxiliary Jurisdiction. Concept of trust, appointment of receiver to the property of decussated fell
under Exclusive Juris. N provide relief to divorced woman and rights of inheritance of child of
deceased. Remedies to specific contract i.e. injunction etc. under concurrent juris. providing
adequate relief & examination of witness on commission etc. under auxiliary juris. Sought to
mitigate rigidity of common law due to complex procedure.
3.Legislation: most effective
method. Most systematic n direct method for reforms. Power of legislature to make laws widely
accepted by courts and people over world. Most powerful instrument of legal reform and so great
is its superiority over other methods of evolution of law that tendency of advancing civilisation is
ot acknowledge its exclusive claim and to discard other sources as relics of infancy of law.

SOCIOLOGICAL SCHOOL
Characterstic features - 1. Lays greater stress on functional aspect of law rather than its
abstract contents. According to them law cannot be insulated from social complaxities and
practical problems of life. 2. Considers law as a social institution interlinked with other
disciplines viz. philosophy, psychology, political science, economics, sociology etc. which
have a direct impact on the society. 3. Completely discards analytical positivism which lays
over-emphasis on demand and historical jurisprudence which is based on past culture and
traditions. 4. Defines law in terms courts rulings and decisions, thus adopting realistic
approach to law.
Developmental stages : 1. Empirical Scientific approach to law Auguste Compte,
founder of sociological jurisprudence, gave theory of scientific positivism. His approach was
empirical and based on experience and observation. He denounced all hypothetical
considerations in the perception of law and based his study on empirical observation to
establish correlation between law and society. He says that as human understanding widens,
law takes shape to suit the needs of the society in 4 stages i. primitive - theological men
explain things by reference to supernatural forces such as moon, sun, etc. and believe that all
human affairs are controlled by God (ii) medieval God theory and forces of nature are
personified (iii) metaphysical all hypothetical considerations are discarded (iv) modern
scientific stage emphasis on empirical observation. 2. Impact of Darwinian Evolutionary
Theory Also called Biological Stage because of impact of the Darwins evolutionary theory.
Herbert Spencer explained social phenomenon as a biological process adaption itself to the
changing needs of the society. He asserted that law must evolve and adapt itself to the
changing needs of the society.
3.Impact on Psychological Theories:3rd stage as per Pound. During later half of 19th
century and first qtr, of 20th, psychology influenced other social science including law. Gierke
denounced orthodox approach of historical school which overemphasized on metaphysical
approach to law and highlighted importance of group personality for securing collective
interests. So it was realized that psychological aspect of law has close bearing to functional
aspect.
4. Unification Stage: Last stage is unification of sociological method with other social
sciences. Different social sciences present different aspects of human society. So they
supplementary and complementary to each other and as such law also can't be detached
from various socioeconomic aspects of society since it is an effective means of social control
in the society. Law is a mean of social control understood in total setting of society, it seeks
to regulate human conduct and aims at reconciling the conflict of interests.
Rudolph Von Ihring
He 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.
He opposed the doctrine of individualism, as he considered it incompatible to cause of social
justice. Therefore he was a great critic of Austinian positivism, Benthamite individualism and
Herbert Spencers biological theory of evaluation all of them being divorced from social
realities.
His philosophy is therefore known as philosophy of interests which emphasises sociological
aspects of law.
Main tenets of his theory : 1. Law is a result of constant struggle Origin of law is found
in social struggles. According to him role of law is to harmonise conflicting interests of
individuals in the interest of the society as a whole. He therefore rejected the view that law
evolves like language and gave importance to living law. 2. Law is to serve a social purpose
The ultimate end of law is social purpose and not individual purpose or interest. It is the duty
of the state to promote social interest by avoiding clash between individual and social
interest. 3. Law alone is not the means to control the society There are other conditions
such as, climate, topography, etc. wherein law does not intervene. However, certain aspects
of social life, such as, taxes, revenues, can only be controlled and regulated by law. 4. Like

Bentham defines interest in terms of pleasure and pain. Therefore his theory is called
social utilitarianism. 5. He is opposed to retributive penal policy.
Criticism 1. In suggesting that function of law is to reconcile social interests, he points the
problem, but does not give any solution. 2. Law protects will and not the purpose.
Leon Duguit
Doctrine of Social Solidarity Based on the fact that interdependence of man is the
essence of the society. No individual can fulfill all the necessities of life by himself and
therefore depends on others for his needs. Same applies to law. Law is a rule which men obey
not be virtue of any higher principle but because they have to live as members of society.
He rejected the traditional notions of rights, sovereign, state, public and private law, legal
personality as fiction and unreal because they were not based on social reality. His thrust was
on mutual cooperation and inter-dependence between individuals, groups and societies
according to the principle of division of labour for the purpose of social cohesion.
Purpose of law To serve and secure social solidarity which is duty oriented as it expects
individuals to perform their obligations a member of the community. i.e. exhorts everyone to
perform his duties to the society which would help development of co-operation and social
solidarity.
Theory of Justice Justice is fulfillment of social needs and obligations. Law should promote
social solidarity to attain max. good of the whole society. State regulations should aim at
social and economic justice for common good.
Views about state and its functions Rejected notion of state and sovereignty, theory
was scientific and pragmatic. Minimization of state functions and decentralization of state
power. State is merely expression of will of people.
Duguits legal philosophy
1. Rejects the doctrine of State sovereignty and considers state merely as an expression
of the will of the individuals who govern.
2. Unity of State is not consistent with the collectivist associations
3. Law is an embodiment of duties which an individual has to perform being a part of the
society for furtherance of social solidarity.
4. Emphasis on interdependence of men as a member of the community
5. There are 3 formative laws : respect for property, freedom of contract and liability for
fault which achieve validity when approved by the people. Public opinion is thus
expression of social solidarity.
6. No distinction between public and private law as purpose of all laws is to attain social
solidarity. He denied existence of rights and held duty as core of law to attain public
good.
7. He contemplates gradual withering away of the State and its replacement by group of
associations which are engaged in the service of society.
Duguits contribution 1. Denounced omnipotence of State which led to despoticism and
totalitarian rule. 2. Rejected notion of natural rights of men which made individual hostile to
larger interests of the society. Over-emphasis on duties rather than rights to attain greater
inter-co-operation between individuals of a society. 3. Used law as an instrument to promote
justice 4. By rejecting notion of state sovereignty, he subordinated the states to the social
needs and asserted that all state actions are to be tested by the Courts with reference to
social solidarity. i.e. acknowledged superior role of judiciary.
Criticism 1. Excludes all metaphysical considerations from law and it is itself based on the
ideal of natural law. It si alleged that he let natural law out through the door and let it come in
by window. 2. Does not lay down the fundamentals to which law must confirm, confuses to
distinguish between what law is and what law ought to be. For him, anything which does not
encourage social solidarity is no law at all. 3. He favored min. state interference completely
ignoring the complexities of modern social life and interdependence in society also
necessitates greater intervention of state in regulating human behavior. 4. His doctrine of
social solidarity is vague. After all who would decide whether a particular act or rule is in

furtherance of social solidarity or not? If it is decided by judges, then impact of their personal
evaluation would come, which is not good, since they have their own limitations and
convictions.

POUND:
Roscoe Pound's Theory of Social EngineeringThe main propositions of Pound's theory
are
1. Pound Concentrates on the Functional Aspect of Law: Pound concentrates more on
the functional aspect of law, that is why some writers name his approach as 'functional
school', For Pound, the law is an ordering of conduct so as to make the goods of existence
and the means of satisfying claims go round as far as possible with the least friction and
waste. According to him, the end of law should be to satisfy a maximum of wants with a
minimum of friction.
2. The Task of Law is Social Engineering: Pound's main thesis is that the task "of law is
'social engineering', He says"For the purpose of understanding the law of today, I am
content with a picture of satisfying as much of the whole body of human wants as we may
with the least sacrifice. I am content to think of law as a social institution to satisfy social
wants, the claims and demands involved in the existence of civilized societyby giving effect
to as much as we may with least sacrifice, so far as such wants may be satisfied or such
claims given effect to by an ordering of human conduct through politically organized Society.
3. 'Social Engineering' Means a Balance Between the Competing Interesting
SocietyBy 'social engineering' Pound means a balance between the competing interests in
society, He entrusts the jurist with a commission. He lays down a method which a jurist
should follow for 'social engineering'. He should 'study the actual social effects of legal
institution and legal doctrines, study the means of making legal rules effective, sociological
study in preparation of law-making, study of judicial method, a sociological legal history and
the importance of reasonable and just solutions of individual cases.' He himself enumerates
the various interests which are to be protected by the law. He classifies them under three
headsPrivate interests, Public interest and Social interests. These interests are protected by
law.
PRIVATE INERESTS: Such as interest of physical integrity, reputation, Freedom of volition
and freedom of conscience. They are safeguarded by law of crimes, contracts.
PUBLIC INTERESTS: Main public interests are preservation of the State, State as a guardian
of social interests such as Administration of trusts, charitable endowments, protection of
Natural environment, territorial waters, seashores, Regulation of public employment and so
on.
SOCIAL INTERESTS: Preservation of peace, general health, preserving of Social institutions
such as religion, political and Economic institutions, general morals, promotes Human
personality, cultural and economic life.
Private, Public and Social Interests Pound says that interests are the chief subject-matter of
law. He divides interests mainly into three groups Public, Social and Private. The main
public interest according to him are the interest of the state as a juristic person and secondly
interest of the state as the guardian of social interest.
Jural Postulate-I In civilized society men must be able to assume that other will commit
no intentional aggressions upon them.
Jura! Postulate-II In civilized society men must be able to assume that they may control
for beneficial purposes what they have discovered and appropriated to their own use, what
they have created by their own labour, and what they have acquired under the existing social
and economic orderly.
Jural Postulate-III In civilized society men must be able to assume-that those with whom
they deal in the general intercourse of society will act in good faith.
INTERESTS AS THE MAIN SUBJECTMATTER OF LAW: Pounds theory is that interests are
the main subject matter of law and the task of law is the satisfaction of human wants and
desires. It is the duty of law to make a valuation interests in other words to make a selection
of socially most valuable objectives and to secure them.To concluding the theory, Pound says
that the aim of Social Engineering is to build an efficient structure of the society as far as
possible which involves he balancing of competing interests.

CRITICISM AGAINST POUNDS THEORY :i. Engineering not a happy word: It suggests a
mechanical application of the principles to social needs but really the word engineering is
used by Pound metaphorically to indicate the problems which the law has to face. ii.
Classification of interests not useful: Freidmann doubts the value of classification of
interests and the value of such classification. iii. Ihering & Bentham concludes the theory
of Pounds that, such classifications greatly helps to make legislature as well as the teacher
and practitioner of law conscious of the principles and values involved in any particular issue.
It is an important aid in the linking of principle and practice.
POUNDS CONTRIBUTION: Social Engineering stands on a practical and firm ground. He
points out the responsibility of the lawyer, the judge and the jurists and gives a
comprehensive picture of the scope and field of the subject.
Marxist/ Economic Theory of Law (Communist Theory of Law): Propounded by Karl Marx
(KM) and Engel. Undergone changes since Russian Revolution of 1917 and later half of 20 th
century.
KM in "Communist Manifesto" pointed out that history of all hitherto existing society is nothing
but history of class struggle. Social and economic development of society is outcome of classstruggle b/w dominant & suppressed classes of society. In earlier stages, it existed in form of
privileged class and slaves which subsequently changed to class struggle b/w feudal lords and
serfs. With evolution and development of trade, commerce & industries, this class struggle
transformed into a clash of interest b/w capitalists n working class i.e. 'haves' & 'have nots'
It considers law as an instrument of suppression its main function being to secure power
relationships. It is essentially meant to further the ends of economically dominant class of society
at expense of proletariate i.e. suppressed class.
He classified society into various classes: 1.Capitalists 2. Wage Labourers 3. Land Owners
Conflict b/w various classes of societies will be resolved. Resolution of conflict will take place in
shape of Proletarian Revolution. Once revolution takes place, it will seize power of state and
transform means of production in first instance into state property. The earlier state of
exploitation and representative of class antagonism will be replaced by a state truly
representative of society as a whole which means taking possession of means of production in
the name of society. This would be at the same the last independent act of state.
The interference of state in social relations becomes superfluous in one's sphere after a point of
time and then ceases off itself. The government of persons id to be replaced by a different
administration that would direct the process of production. However, proletarian revolution in
order to reach the stage of Communism shall have to pass through various stages:
1. Establishment of Proletarian Dictatorship which is essential to convert capitalist modes of
production into the proletarian mode of production. 2. Stage of nationalization of teh property
and all capital modes of production 3. Stage of socialism as the property is in common
ownership, the society at large shall be responsible for the production and distribution of goods.
The production of goods in common ownership, the distbn. of commodities will have to follow
"from each according to his ability to each according to his needs." However inequalities will
remain and hence, need to distribute good will become inevitable. The ultimate stage is that of
communalism and this state he imagined in work called 'Critique of the Gotha Program'.
Based on Propositions:1. Law is essentially one form of politics and two are inseparable. 2. Law
& state closely related but law exhibits relative autonomy from the state. 3. Law in legal form
replicates the revailing economic relations. 4. Law has in it a coercive element and manifests the
State's monopoly of the means of coercion. 5. Contents & procedure of law reflect the interest of
dominant class or the power block. 6. Law is ideological and provide legitimation for inherent
values of dominant class.
KM believed that State and Law are bound to wither away sooner or later, because with abolition
of classes, the power of the State would disappear.