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ANALYTICAL SCHOOL AND PURE THEORY OF LAW

o Introductory
o Analytical Jurisprudence – Meaning
o J. Bentham
o Hart's Contribution to Positivistic Jurisprudence
o Hart's Dual System of Law
o Rule of Recognition-a neo Austinian Sovereign
o Internal Aspect of Law

o Analytical School-Indian Situation

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o Pure Theory of Law

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Analytical Jurisprudence (which Sir John Salmond terms K 'SystematicJurisprudence' and C.K. Allen as
'Imperative Jurisprudence' is that approach of method which considers law as a body of actual interrelated
principles and not merely a haphazard selection of rule inextricably interwoven with a transcendental Law of

Nature. It seeks to define all laws,M classifyalllaws,discover the essential features of every law and get a
yardstick by which all laws can be measured. It mainly aims at reconstructing a scientifically valid system by
analysing legal concept on the basis of observation and comparison by reducing law into a logical fashion. Such

an approach A towardslaw is described Analytical Jurisprudence. C.K. Allen, however, maintains that since
jurists of this School consider law as an imperative or command emanating from a politically independent
sovereign so the approach of these jurists may be described as Imperative School of Jurisprudence. Analysis of

legal rules, concepts and ideas through empirical or scientific method is commonly K describedAnalytical
Jurisprudence. Similarly, legal analysis and examination of man-made law-of the law as it is or as it actually exist
(posited) is known as Positivism. It is mainly Bentham and Austin, who laid the foundation of analytical
positivism in modern legal theory.

J. Bentham
Jeremy Bentham is one of the greatest analytical jurists of all time who discarded, rejected and even ridiculed
natural law not law at all but merely a so-called law as it was not emanating from the sovereign. It is not
Austin but Bentham who is the actual father of English Analytical Jurisprudence. Thus with Bentham came
in England the advent of positivism, sovereignty, command duty and sanction-the basic elements of
Analytical Jurisprudence which were subsequently borrowed by John Austin. It was Jeremy Bentham who
defined law as a command of the sovereign-an idea which he had taken from Hobbes. As a great social an
legal reformer he wanted to clarify the then existing English law which was shrouded by common law,
natural law, equity and' fiction, judge-made law and moral law. In order to reform law he viewed law in terms
of ends or purposes i.e. utility. Therefore, all laws were to be tested in terms of man's greatest happiness. In
his book 'Limits of Jurisprudence Defined' Bentham enunciated the concept of law in terms of utility
emanating from the sovereign. These two concepts that law is the command of the sovereign and law is to
promote individual pleasure and decrease pain were masterly analyzed by him much before Austin took
both these ideas from Bentham. He adopted from Bentham the concept of positive law in the nature of
command and made it the kernel of his jurisprudence. He took the other part also, i.e. the theory of utility.
But rejected this concept on the ground that it has nothing to do with positive law. Austin thereby identified
the theory of utility with the theory of natural law or law of God and, therefore, rejected it on the ground of its
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being unscientific. Describing the theory of utility as science of legislation Austin was of the view that it has
nothing to do with science of jurisprudence.

Bentham's philosophy of law created two schools-the pure analyst interested in the analysis of positive law
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and the theological writers interested in the ends or purposes of law which it should serve. It was a disaster
for English jurisprudence that Bentham's work was not taken in its entirety. This disaster was created by
Austin who viewed law without social purposes or goals in its barren and isolated fashion. Many of the
modern jurists consider Austin 'as the father of analytical jurisprudence. But it was much before Austin that
Bentham had adopted and refined' the analytical approach in discovering the good laws from those which
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were inconvenient and unnecessary. It is, therefore, Bentham who should be rightly designated as the real

father of analytical jurisprudence.

Hart's Contribution to Positivistic Jurisprudence
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There is a century gap between legal theories of John Austin and Professor H.L.A. Hart. John Austin's model
of positivism conditioned by anti-natural law scientific theories and Jeremy Bentham's legal thinking
emanated in his Lectures on Jurisprudence in the Universal of London finally concretized in Province of
JurisprudenceDetermined. In 1832 H.L.A. Hart, Professor of Jurisprudence in the University of Oxford
produced his monumental work The Concept of Law in 1961 highlighting the various difficulties and
inadequacies besetting Austin's theory of Jurisprudence. The concept of law is thus a critical evaluation of
the development of positivism in law from John Austin to Hart. Indeed Professor Hart has been careful to
exclude all the defects from which John Austin's jurisprudence has been suffering and thereby has enunciated
a much reformed and socially oriented positivistic theory of law.

Hart's Dual System of Law

Hart has been anti-Austinian who has rejected the Austinian model as it is exclusively based on the triology
of command, sanction and sovereign which Austin described as 'key to the science of Jurisprudence'. Such
pattern, says Hart, is exclusively applicable to criminal pattern of law and is inapplicable to modern legal
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systems. Hart's analysis of legal system is quite elaborate and sociological and not merely a kind of
command or orders of gunman or gangster. In place of Austin's monolithic legal structure Hart provides a
dual system of law consisting of two types of rules which he describes as primary and secondary rules.
Primary rules are those which lay down standards of behaviour and are rules of obligation-that is the rules
which impose duties. The Secondary rules, on the other hand, are such rules which specify the rules in which
primary rules may be ascertained, amended, rescinded and enforced. The addition of secondary rules to a set
of primary rules is, says Hart, 'a step forward as important to society as the invention of the wheel'. It is this
step which Hart dec1ares14 as 'the step from pre-legal into the legal world'. The combination of primary
rules of obligations and the secondary rules of recognition, says Hart, is the 'Key to the science of
Jurisprudence'. Thus it is the union of primary and secondary rules which constitute the core of the legal
system and can be justly regarded as the 'essence' of law.

Rule of Recognition-a neo Austinian Sovereign

According to Hart the regime of primary rules suffer from doubt or uncertainty U as to the question

S about what

the rules of community are or what is their exact scope. The remedy for uncertainty is the introduction of what Hart calls the rule of recognition which authoritatively settles what the rules are or
what their scope is. The rule of recognition provides the criterion for identifying the valid law. It is the rule of recognition which provides the standard to distinguish things which are law and
which are not law. This rule of recognition is analogous to Austin's sovereign. Rules of recognition like Austin's sovereign just exist, while the latter die

the former fade away (into disuse). 'The M ruleofrecognition' K Hartconcludes 'exists only as a complex

but normally concordant practice of the courts, officials and private persons in identifying the law by reference
to certain criteria. Its existence is a matter of fact'. As it is not possible to question the legal validity of the

commands of an Austinian sovereign, neither can we question the legal validity of Hart's rule of recognition. A
In short, the rule of recognition is Hart's important feature of positivistic theory of law in the twentieth
century.

John K Austin's Command Theory of Law

Jurisprudence- Normative V. Analytic

Positive Law v. Non-Positive Law (e.g. Divine Law)

Laws properly so-called V. Laws not properly so-called (e.g. rules of honour & etiquette)

Political Superior (sovereign) v. Non-Political superior (e.g. school yard bully & Professor)

Laws

(Determinate Source/Rule/General Command/Sanction/Oblige/Obligation-Duty)

God Sovereign Other Human Being

(Divine Law) (President of NHL (i.e. “the count”)
 University senate)
Command
General vs Particular
Rule
Positive Law

Non- Laws within the Province of Jurisprudence (appear to be laws but are
not) 1. Declaratory Laws
2. Laws to Repeal Laws
3. Imperfect Laws S
Laws that appear not to be Commands, and hence not laws (but are laws)
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1) Laws granting rights
2) Customs

Sovereign: M
General commands are habitually obeyed by the bulk of Kthe population; not in the habit of obeying any
other
determinate human person(s)

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Hans Kelsen's Introduction to Pure Theory of Law
The two editions of Kelsen's book were separated by twenty-six years, and the second edition (1960) was almost
twice the length of the first in the detail of its presentation. The original terminology which was

introducedK inthefirstedition was already present in many of Kelsen's writings from the 1920s, and were
also subject to discussion in the critical press of that decade as well, before it was first published in 1934.

The Pure theory of Law as a Theory of Positive Law

On page one, paragraph one of Pure Theory of Law, Kelsen introduces his theory as being a theory of
positive law. This theory of positive law is then presented by Kelsen as forming a hierarchy of laws
which start from a Basic Norm or Grundnorm where all other norms are related to each other by either
being inferior norms, when the one is compared to the other or superior norms. The interaction of these
norms is then further subject to representation as a static theory of law (Kelsen.s chapter 4) or as a
dynamic theory of law (Kelsen's chapter 5).
Law and Morals in the Pure Theory of Law
Kelsen's strict separation of law and moralswas an integral part of his presentation of the pure theory of law.
The application of the law, in order to be protected from moral influence or pilitical influence, needed to be
safeguarded by its separation from the sphere of conventional moral influence or political influence. Kelsen
did not deny that moral discussion was still possible and even to be encouraged in the sociological domain of
intersubjective activity. However, the static operation of the pure theory of law (see section below) was not
to be subject to such influences as presented by Kelsen in Chapter Two of the second edition of this book.
Law and Science
For Kelsen, in Chapter three of Pure Theory of Law, law was defined as the application of norms to its function for the state. Science was generally the domain of the causal understanding of epistemological data and its primary logical and causally oriented technique was to be distinguished from the normative reasoning as was to be found int eh pure theory of law.

The Static aspect of law U

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As mentioned above, in Chapter Four of his book, Kelsen distinguished the static theory of law from the dynamic theory of law (see discussion below). the stati theoryoflawrepresented the law as a hierarchy of laws where the individual laws were related the one to the other as either being inferior, the one to the other, or superior with respect to each other. This hierarchical theory was largely adopted from Adlof Merkl's reserch in the structural aspects of the lawwhileKelsenwas still in Vi

Chapter six of Pure Theory of Law has Kelsen present his celebrated identity theory of law and state. This is

Kelsen's highly functional theoryofthe state and the law as representing the same entity. It is not to be
confused with the sociological domain or the cultural domain of inter subjective activity. Nor is it to be confused
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with the political or even the religious domain of inter subjective interaction among individuals.

State K Law and International Law

In Chapter Seven, Kelsen presents his disucssion of the interaction of state law and international law as
these are especially guided by the understanding of political sovereignty. For Kelsen, the assessment of
international law is that it represents a very primitive from of law in distinct contract to the highly
developed forms of law as may be found in individual nations and states. As a result, Kelsen emphasizes
that international law is often prone to the conduct of was and severe diplomatic measures (blockade,
seizure, internment, etc.) as offering the only corrective measures available to it in regulating the
conduct between nations. For Kelsen, this is largely inevitable due to the relative primitiveness of
international law in contemporary society.
Legal Orders
For Kelsen as for other Central European contempararies, norms occur not singly but in sets, termed
'orders'. The ordering principle of an order of moral norms, and of an order of natural law, if one could
exist- wold be logical, as deduction. From the general norm 'do not kill other human being, it follows
deductively that A must not he maintains, is not, or not centrally, like a 'static order. An order of positive
law. 'dynamic', in that its ordering principle is authorisation. Each relatively 'higher' norm authorises
someone (an individual or an organ, primarily of the state) to create further and relatively 'lower' norms.

Basic Norm (Grundnorm).

Kelsen assumes, however, that the scientific representation of a positive-legal order, as a hierarchy of legal

propositions, must have a guarantor of unity. This guarantor cannot be other than a component ofthe
representation, hence legal proposition. Being a legal proposition, it counts as a representation of an actual norm.
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So Kelsen calls it, elliptically, a 'basic norm (Grundnorm), A basic normis'presupposed' in legal science for
each order of positive law, to make it possible to understand that material as an order of positive law. this norm is
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simply that 'the historically first constitution is to be obeyed'. That constitution may have
become established by custom or by revolution: the jurist does not evaluate the

circumstances. K

HISTORICAL SCHOOL

Founding of Historical School in G Germany also the historic conception of law was taken up and developed
in the latter part of the eighteenth century by Herder in his work 'Ideas on the Philosophy of the History of Human
Race'. This heralded the advent in 19th century of German Historical School represented by forerunners of

Savigny, Schelling (1775-1854), A andHugo(1768-1844) both of whom rej a natural theory of law and
advocated law in fact, independently of legislation which develops itself as suited to the need and circumstances of
each community. The essence of law, according to Hugo, is its observance, acceptance by the people-

because K itsharmonywith the paramount sentiments and practices of the people. Law is not a declaratory of
moral principles of reason or of human nature. It is declaratory of principle of progress and growth discovered by
human experience of administering of justice. As Sir Frederick Pollock puts it, 'The historical method is nothing
else than the doctrine of evolution applied to human societies and institutions'. However, of the greatest German
jurists of Historical School the name of Friedrich Karl Von Savigny (1770-1861) is remembered conspicuously as
the unrivalled and unchallenged founder of Historical Jurisprudence. He was the 'Darwin' of Historical School of
Jurisprudence. His last published work appeared only six years before
The Origin of Species (1860) and was still alive when Darwin's work appeared. The theory of evolution was
thus not new which Savigny had already propounded. Savigny, therefore, ushered the beginning of Historical
School-his doctrines regarding law were represented in his famous pamphlet 'On the Vocation of Our Age for
Legislation and Jurisprudence 1814'. The 'Vocation' appeared at a critical moment in the historyL

of the German States-the fate of Germany was still uncertain being decided at the Vienna Congress of
1815. There was uncertainty in Germany about German State with its legal diversities and the problem
of political unification. These and other factors created a chain of reaction in the minds of German legal
philosophers resulting in the founding of Historical School. The factors which led to its growth in
Germany and elsewhere may be summarized below:
1. It was a reaction against the a priori notions of natural law philosophy. The philosvphers hitherto
measured all situations and problems by referring them to an idealized picture of social order
without studying law in relation to social growth and legal development.
2. The natural law thinkers had thought of law which was always the same static and unchangeable.
They failed to see the law which had grown and developed from the past.

3. The natural law philosophers believed in ideal principles of law as revealed by reason.
history, traditions, customs, habits and religion as true basis of law.
S Itdidnotlook to

4. The Historical School was a reaction against the French Revolution U whichitselfwas a product of
natural law philosophy with its gospel of liberty, equality and fraternity of men and nations. In Germany a
movement grew up which was romantic, irrational and strongly nationalistic in character
and which found its expression in art, literature, history, political theory and law. Nations now

started revolting against Nature.

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K 1.SAVINGY'S

produced ab extra by an action of a wise law giver or by some inventive or master spirited people.
2. Law of a nation, therefore, according to Savigny, is not the product of reason or command or will of
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the Sovereign but the instinctive sense of right possessed by every race or community. In other
words, law is a product of 'internal silently operating forces'.
3. Law as such is found and not made. It is to be found in popular faith, common convictions, customs,
traits, habits, traditions which in course of time grow into legal rules.
4. Like the language, the manners and the constitution of anation, all law is exclusively determined by
the nation's peculiar character which is otherwise called the Volksgeist or spirit of the people.
5. Law cannot be universal or general in character. It is always peculiar, particular, limited-its nature

Kand character depending upon the peculiar, traditions of each people. Law of a nation, likes its
language, manner and Constitution is peculiar to a people. Law grows with the growth and
strengthens with the strength of the people and finally dies as the nation loses its individuality.
6. Savigny, therefore, favoured customary law over legislations. As such he gives more importance to
jurist than legislator the former representing the national spirit, i.e., Volksgeist.
 7. Savigny believed in the unbreakable continuity of law from the past to the present and future also. A
law of a nation cannot be different from its past customs and traditions on which the existing and
even future law can be based.
8. Savigny considered law an inextricable part of society. He viewed law as a part of social process
and development which arises from silent forces which are not directed by arbitrary and
conscious intention but operate in the way of customary law.

Savigny-Criticism
Savigny while advocating the role of evolution and growth in the development of law his approach towards
law was vitiated in the following manner:
1. He laid excessive emphasis upon the unconscious forces which determine the law of a nation and
ignored the efficacy of legislation as an instrument of deliberate, conscious and planned social
change. In modern developing societies like India legislation is being created, enacted and used as an
important instrument of social change and social reform. As he underestimated the importance of
legislation and took a pessimistic view of human power for creation of law to bring about social

2. Savigny emphasized the national character of law. While advocating national character of law he
entirely rejected the study of German Law and took inspiration from Roman Law.
3. Volksgeist itself is an abstract idea as indeterminable and vague as the natural law itself.
change so he is criticized for his 'juristic pessimism'. S

1. Themistes
Development

The earliest notions connected with the conception of law are contained in the Homeric words Themis (the
Goddess of Jus tice) and Themistes are the awards pronounced by judge as divinely dictated to him.
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The K nextstagewasreached A whentheoffice of the king or judge was usurped by the councils of chiefs. The priests became the depositories of law who circumscribed the king's power and claimed the sole monopoly of knowledge. Therefore, the priestly class attempted to preserve the customs of the race or caste intact. Since the art of writing had not been invented so customs of the community became law for the people who were united by blood relationship. Thus we notice a particular important phenomena Maine's theory of legal development conception of customs emerging posterior to that Themistes or judgments.

Themistes are not laws but judgements or 'dooms'. The king happened to be the administrator of judgments-
of course he was not the maker of law as the Themistes were divinely inspired by Goddess of Justice.
2. Custom
3. Era of Codes:
From a period of customary law the next stage is the era of early codes following the discovery and diffusion
of the art of writing: Most important codes of the era were Twelve Tables of Rome. Manu's Code which were
mixture of moral, religious and civil laws. The separation of law from morality and religion is a later
development. However curiously enough law and state became more military and political in the West; while
they became more religious in the East. Codes thus provided a definite, secure and positive basis of law
against the frauds of the priestly class.

Progressive and Non-Progressive Societies

When primitive law has once been embodied in Codes, there is an end to its spontaneous development.
Hence onward if there are changes in law they are effected deliberately and from without with a
conscious desire for improvement. A new era begins after epoch of Codes. A distinction between
stationary and progressive societies begins to make itself felt. According to Sir Henry Maine the
difference between stationary and progressive societies is one of the great secrets of history. The
stationary condition of the human race is the rule; the progressive an exception.

is narrowed. The agencies by which law is brought into harmony with society are three legal fictions,

equity and legislation-properly in that order.

In progressive societies social necessities and opinions are in advance of the law. The S U
lawisstableand societies are progressive. The happiness of people depends on the degree of promptitudewith which the gulf

A legal fiction signifies any assumption which conceals or affects to conceal the fact that a rule of law has
undergone alteration its letter remaining unchanged its operation being modified. Legal fictions satisfy the
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desire for improvement but at the same time they do not offend the superstition, fear and dislike of change.

At a particular stage of social development they are invaluable Kexpedients of social progress for
overcoming
the rigidity of law.

Equity
Equity belongs to a more advanced stage than fictions. The interference with the law is open and avowed. It is a
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body of law existing by the side of the original civil law, founded on distinct principles claiming

incidentally

Legislation
K tosupersede the civil law by virtue of a superior sanctity inherent in those principles.

Legislation is the last instrumentality of social change. It derives its authority from an external
body or persons. Its obligatory form is independent of its principles.

Status to Contract
According to Maine the movement of progressive societies has been uniform in one respect. In the stationary
societies family is the legal unit, the pater familias as its head and other members-wife, children, slaves,
cattles dependent on the head of the family and subject to his power. Except the head of family no one has
the power to enter into contracts. The relationship between father and other family members are based on 10

status or position and not on contract. The son, the female, the slave has only status in the family. In the
progressive societies, however; along with legal development there is a marked change towards the
growth of individual rights. There is a disintegration of family and dissolution of family dependency and
the individual becoming the unit of which civil law takes account. In Western Europe status of slaves
was abolished and it was superseded by contractual relation of master and servant. The tutelage of female
and children also ceased to exist in relation of husband and parents. As compared to primitive non-
progressive societies-the individual in the progressive societies became a free willing and free thinking
one with all powers to enter into contract. From this Maine concluded: ........................ the movement of
the progressive societies has hitherto been a movement from status to contract”.

MKUS
KA
11
 SOCIOLOGICAL SCHOOL
INTRODUCTION

Ihering-1818-1892
Social Interest Theory
Leon Duguit 1859-1928: Law as a Social Fact
Law exists without and above State
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Social Solidarity
Theory of justice
Other Jurists
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Roscoe Pound 1870-1964
(1) Law and Society:
(2) Law-Reconciler:
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(3) Law and Social Interests:
Means to Achieve Ends
Theory of Justice
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Social Engineering
Modem Realists
Sociological School and Indian Position
Legislation and Social Goals-Judicial Engineering in India

INTRODUCTION

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Sociological approach A tothestudyof law towards the end of the nineteenth century did not emerge in isolation.
It was a reaction against the formal and barren approach of the analytical jurists and the pessimistic
approach of the historical jurists: There was a dire need to study law not in mere abstraction, but in its
functional and practical aspects. Further, on account of economic and social conflicts towards the beginning
of twentieth century led to growing disbelief in the eternal principles of natural law which had hitherto
placed an ideal of harmony before the individual. These various approaches appeared as a clog in the way of
legal reform, social change and economic justice. The theory of inalienable natural rights was now being
considered as an expression of outmoded laissez-faire philosophy. This led the States to expand the
dimension of their activities to such matters as health, insurance, education, old age security and other forms
of social and economic aspects of welfare. Hence a new approach towards the study of law in relation to its
ends, purposes and functions for, ordering and regulating relationship between individuals and groups
ofindividuals emerged which is described as the sociological jurisprudence.
Among the foremost writers who made an attempt to apply scientific methods to social phenomena was
Auguste Comte (17981851). He is known as the founder of sociology as a science. He laid stress upon
empirical methods such as observation and experiment for the study of society. It is the task of sociology to
provide methods, tools and a basis for a purposeful and realistic appraisal of social phenomena which
interact in society. Darwin, Herbert Spencer and Bentham in a way directly or indirectly applied law to man
in society. Particularly Bentham's theory of utility, i.e., the greatest good of the greatest number has been
utilised by the sociological jurists for legal reform, social progress and general welfare. It would be useful to
dilate upon the contributions made by important jurists towards the growth and development of the
Sociological School of Jurisprudence.

Ihering-1818-1892

Rudolf Von Ihering is one of the greatest German jurists who has been described U as 'the

father of modern
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sociological jurisprudence'. He rejected the analytical and historical jurisprudence as 'jurisprudence of concepts'.
He considers law as an instrument of serving the needs of individuals in society. Therefore, the theory of causal

relationship applicable in natural world cannotbeapplicable to human nature. According to him 'human
conduct is determined not by a 'because' but by a 'for' by a purpose to be effected. In substance, therefore, he says,
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law has to be studied in terms of purposes or interests which law serves.

In his work Law as a Means to an End M ,Iheringcametothe conclusion that the dominant motivation in the exercise of human will is notion of purpose. This he calls the law of purpose. According to Ihering human will is primarily directed A towardsfurtherance of individuals purposes. In realization of individual purposes there is bound to be a conflict between social interest and each individual's selfish interests. He, therefore, tries to reconcile the individual interest with that of society. So law is only an instrument for serving the needs K ofsociety-itspurposes and interests. The State, therefore, must apply methods which promote such social interests which are inherent in every individual. To reconcile the conflicting interests of society vis-a-vis individual, state employs the methods of reward by

enabling economic wants to be satisfied and also the methods of coercion. For instance, economic wants of man must be satisfied. Therefore, society in larger interest puts such social controls which may reduce the quantum of profits. This can be done both by means of reward or by coercion which is called law. Law is a coercion organized in a set form by the State. The success of legal process is to achieve a proper balance between social and individual interests. It is thus through the two impulses Coercion and Reward that society compels individuals to sub- ordinate selfish individual interests to social purposes and general interests. The natural impulse of Duty and Love, i.e., the egoistical instincts of sacrifice and service also makes man to subserve social ends. Therefore, law according to Ihering is nothing but a means to an
end-an instrument of social control-balancing of individual

interests with that of society. Regulation through law of human activities the service of general
community is its chief raison d'etre

Leon Duguit 1859-1928: Law as a Social Fact

The French jurist Leon Duguit carried forward the belief that scientific progress can be accelerated by
individual behaviour in order to satisfy common social needs and interests. As to Durkheim division of
labour was pre-eminent factor of social cohesion to Duguit it was the establishment of social cohesion as
an indisputable fact beyond ideology, beyond religious or metaphysical speculation………..The
constant realisation of social fact which is simply inter-dependence of individuals could at last replace
ideological quarrels by observable facts.
Like Ihering, Duguit also rejected the prevailing notion of State, Sovereignty, law as a command S orasan

exercise of free human will and the theory of natural right of man as subjective U andunrealconcepts based on
fictions or hypotheses. According to him the basis of law is the fact of social and natural interdependence of individuals and groups upon
each other. As such law is based and dependent on certain social facts or reality which impels men who have common needs, who have
different capacities and talents to subserve each other by common exchange of services. This is the fact and not an assumption that the
individuals think and act on the full realization of the idea that individual good can be furthered only on the furtherance of community good
or collective interest. Individual interest without public good is no interest but an

abstraction of subjective satisfaction. M Inotherwords, K accordingtoDuguit, there is not and cannot

be opposition between individual and those of collective interests, that of interest of one with the interests of all.
Generally speaking interests of all and each one are complimentary and completely coincide with individual
purposes, that making use of the expression of Karl Marx 'The free development of each one is the condition of

free development A ofall'.Therefore, law is independent of State or sovereign, etc. and is based on coincidence
of individual and social interests.

Social K Solidarity

Duguit puts forth in definite and clear terms that law arises of the facts of social existence. Therefore, if man
wishes to live and act in society he must act in conformity with the social law of solidarity. Solidarity is not a
rule of conduct, it is a fact-the fundamental fact of all human society. In other words solidarity is neither a
charity nor fraternity. These are moral duties. It is a fact. It means that in fact men are 'solidary' with one
another, that is, they have common needs which they can only satisfy in common, that they have different
capabilities and different needs which they can satisfy by exchange of needs and division of labour. This
solidarity or mutual interdependence is the product of social reality of social life. As such it is the duty of one
and all to conform his conduct according' to the fact of social solidarity. It is a coincidence of purposes and
facts-the unhappiness of one affects all, the happiness of one profits all. He says, 'Man must so act that he
does nothing which may injure social solidarity upon which he depends, and more positively, he must do all
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which naturally tends ,to promote social solidarity'.

Solidarity, thereby, lengthens the life of the individual in the community and lessens his sufferings. For men
have never lived alone they live always in company with others. The community of sentiments unite men-the
similarity of desires, needs is the basis of the union of all humanity. On this basis Duguit attacks the theory
of natural rights because of excessive individualism. He emphasises on the concept of duty which is the basis
of cooperation and rejects abstract concept of ribI1t which is the source of conflict.

In this sense he is anti-Marxist. Man can promote his individuality by increasing his sociability by
exchange of needs and wants.
The writings of Ehrlich (1862-1920), Max Weber, and Huntington Cairns U S
madeasignificant impactinthe evolution of social basis of law and legal institutions. Among them Ehrlich especially observed that the

centre of gravity of legal development lies not in legislation, nor in juristic, nor in judicial decision but in
society itself. Thus the real source of law is not the State or Sovereign but the society itself. Ehrlich as such
emphasizes the need of carefu1study of social facts for exploring the correct basis of legal rules. The living
law of a society can be ascertained from the actual behaviour of a people. The living law, therefore, cannot
be discovered from outside the society or from the Sovereign as was conceived by the jurists of analytical
M
jurisprudence. The statutory law or judicial decisions have only evidentiary value to prove the existence of

living law in society.

Roscoe Pound 1870-1964
K
A
Dean Roscoe Pound is one of the greatest American jurists who is styled as the father of modern American
Sociological Jurisprudence. His Readings on the History and System of the Common law, the Spirits of
Common law, law and Morals, Interpretation of Legal History etc., are the most original outstanding works

in the K
sociology of law, and some part of Ihering's theory of interest and made law more than a set of abstract
norms but a social process of controlling, adjusting and compromising the various conflicting interests of
fieldoflegalphilosophy yet produced in the United States. Pound' took some part of Ehrlich's

individuals along with social good. Law, therefore, according to Pound was not for its own sake but for the
avowed object to satisfying human needs, wants, interests and purposes.
The need of purpose oriented definition of law by Pound is obvious. Pound was the child of his times.
During his era in the twentieth century American society was expanding commercially and materially. There
was an endless wealth due to scientific, technological innovations and unlimited material resources. The
basic problem, therefore, was how to control and distribute the wealth so produced. This could be resolved
by applying social sciences to the problems of man in society. Hence, law became an instrument of social
control for satisfying the just claims, interests and desires of the individuals. This approach of Pound
wasatonce opposed to previous approaches of the analytical and philosophical jurists-the latter
conceived law as something abstract not concerned with ends of law, etc. For Pound law without its
purpose or end would be a mental exercise in abstraction only. Law, therefore, as described by Ihering
and Ehrlich should be studied with reference to society-society being the centre and circumference of
law and its various purposes. For the sake of convenience and clarity Pound's theory of Sociological
Jurisprudence can be studied in the following way:

Law and Social Interests:

According to Pound law is not concerned with abstract concepts like rights and duties. It is neither an

claims or wants or demands need social recognition and acceptance at a particular place and time. This is to
assertion of individual rights nor fulfillment of individual duties. It is rather concerned with satisfaction of

individual or social needs, wants, claims and interests. It is the task of sociological jurists
As to just claims or demands it is an evaluative proposition depending upon values of a society-for such interests
S tofindoutwhat

can be satisfied without law and through law also.

be found out on the basis of social surveys and concrete factual information
and claims.
U of just social needs

the interests according to their primacy M K

andurgency ,find outthemeansforsecuring interests and to ta ke in v iew the wider values of socie ty , etc. Thus all the interests are to be so adjusted as it may result in maximum satisfaction. Pound classifies the various interests:

Law, therefore, has to recognize just interests-individual, public and social and has to evolve a practical line
of action within which each type of interests should be allowed to function and satisfied by law. In this
respect law has to prescribe limits, determine the scope as well as subject matter of interests, catalogue all

(a) Individual Interests: These are claims, demands or desires from the point of view of each individual as such.
These are concerned A with:
(1) Personality: Such interests are· concerned with (a) the physical person, (b) freedom of will, (c)
honour and reputation, (d) privacy and (e) belief and opinion.

(2) Domestic relations: They are concerned with interests of individual in domestic relationship and that of
society in such institutions as family, marriage, divorce.
K
(3) Interest of substance: These include interests of property, freedom of industry and contract, freedom
of association, etc.
(b) Public interests: These are claims or demands or desires asserted by individuals from the point of
view of political life. These are two in number: (1) Interests of State as a juristic person. They include
(a) the integrity, freedom action and honour of State's personality (b) claims of politically organised
society as acooperation to property acquired and held for corporate purposes. (2) Interests of State as
guardian of social interests.
(c) Social interests: Social interests are claims or demands or desires involved in social life in civilized
society and asserted its title of that life. It is not uncommon to treat them as the claims of the whole social
group as such. Pound classified the social interests into six groups:

(1) Social interest in general security: These include safety from aggression both internally and externally;
general health, peace and order; security of transactions and security of acquisitions protection of property.

(2) Social interest in the security of social interests: These include domestic relations, religious
institutions, political institutions and economic institutions.

(3) Social interest in general morals: It is concerned with protection of the moral sentiments of the
c9mmlmity. It covers such laws concerning prostitution, drunkenness, gambling, begging, obscene
literature, etc. S
U
(4) Social interest in conservation of social resources: For instance, these may include physical resources
like utilization and conservation of forests, oil, water and other resources. It also includes protection of
human resources such as protection of infants, lunatics, idiots, juvenile delinquents and also of poor and
weaker sections of society:

freedom and use of property without restriction, (b) Political: It includes free speech, free press, freedom of

(5) Social interest in general progress: It may be of three

free competition,
K types: (a) Economic: free. trade,

(6) Social interest in individual life: Individual self assertion, physical, mental, economic; individual
opportunity, physical, cultural, social and economic; individual conditions of life-a minimum wages, etc.

association and cultural freedom, etc. M

Means to Achieve Ends A
For Pound the above catalogue of various legally recognized interests of individuals, groups and society

interact K uponeachother. Law, therefore, creates devices, machinery and means to reconcile these
conflicting interests. True it can be said that interests can be achieved with or without law. However,
according to Pound in a democratic State-it is the task of the lawyers, judges and law-, administrators to
weigh each interest in accordance with the needs and values of society and realise each of them through law.
Lawyers and judges, therefore, adjust social interests through law to avoid social tension and economic
conflict, changes in society should be brought about through law. For the values of a society are not static so
the law must recognize new values which press for recognition.

Theory of Justice
Pound is more interested in satisfaction of social needs and promotion of social justice than assertion of legal
rights. Law, therefore, should not be studied in relation to abstract concept but as an instrument of
socialjustice. For instance, Pound recognised the right of the weaker sections of society for greater social
stability, economic security and general welfare, etc. The various laws concerning minimum wages, old
age pension, social insurance, social security and guarantee of decent living, etc., are measures to further
the social goals and ends of society.

Social Engineering
For Pound law is not so much a social science as technology and the analogy of engineering is applied to
social problems. For a practical and functional working of law in society, it must be based on actual
information, statistics and briefs like the mechanical engineering which also depends upon a number of
scientific factors for the production of goods needed by the community. So the law must be concerned with

its purposes and techniques to achieve the set purposes paying no or little attention to conceptual S
notions of
law, legal rights, sovereignty, etc.

REALIST SCHOOL

S
Introduction
American Realist School: Holmes' view
Gray's view

Frank's view

U
The Scandinavian Realist School
Comparison of Scandinavian and American Realism
Basic Tenets of the Realist School

Introduction

The Realist approach to law is a part

approach. That is why it is sometimes called as the

M of the sociologicalK
left wing of sociological or functional school. It differs from sociological school in that this school neither studies
the social effect of law nor it starts with any a priori like balance of interests or social engineering, rather it

concentrates A onascientificobservation of law in its making and working. There are mainly three reasons for
the establishment of the realist· school of law. Firstly, it was established as a reaction against sociological jurists
who were emphasizing the social effect of law. Secondly, it was established to ignore the

theory K
ofinterestasgiven by Ihering and the theory of Social Engineering as advocated by Pound. Thirdly,
this school was established to point out the importance of Courts and importance of the Judges-the human factor
in the judges and the lawyers.

There are two trends of the Realist School. One is the American Realist School, another the Scandinavian
Realist School. American realism is the product of a pragmatist and behaviourist approach to social
institutions; practising lawyers or law teachers have developed it with a characteristic Anglo-American
emphasis on the work of courts and judicial behaviour, as a corrective to the philosophy of analytical
positivism which dominated Anglo-American jurisprudence in the nineteenth century. They have stressed
law in action, law as experience, as against legal conceptionalism. Holmes, Gray and Jereme Frank are the
main supporters of the American Realist School. Scandinavian realism is a philosophical critique of the
metaphysical foundations of law. They have put forth a philosophical justification. Olivercrona,
Lundstedt,Ross and Hagerstrom are the main exponents of the Scandinavian Realist School.

American Realist School: Holmes' view

Both in his writings and in his long tenure as Judge of the Supreme Courts, Holmes played a fundamental
part in bringing about a changed attitude to law. His emphasis on the fact that the life of the law was
experience, as well as logic, and his view of law as predictions of what the court will decide stressed the
empirical and pragmatic aspect of law. Holmes published a paper in 1897 in which this great judge put
forward a novel way of looking at law. If one wishes to know what law is, he said, one should view it through
the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. The
traditional description of law is that it consists of rules from which deductions are made. He says, "But if we take
the view of our friend, the bad man, we shall find that he does not care straws for the action or deduction, but that
he does want to know what Massachusetts of English Courts are likely to do in fact. I am much of his mind. The
prophecies of what the courts will do in fact and nothing more pretentions are what I mean by the

Law”. S
U
Another important pioneer of American realist School was Gray,whomade a distinction between law and
sources of law. The former is what the judges decide. Everything else, including statute, are only sources of law
K
until interpreted by a court. He defined 'the law' as follows : “The law of the state or of any organised body of

men is composed of the rules whichthecourts,that is, judicial organs of that body lay down for the
determination of legal rights and duties”. He said of statutes that, “the courts put life into the dead words of the
M
statute. Other sources include expert opinion, customs and public 'policy'.

In his book titled 'Law A andtheModern Mind (1930)' Frank explained his theory of law and jurisprudence. His entire thesis is centered on one point viz. Law is uncertain, certainty of law is a legal myth. To say in other words K hismainattackwas originally directed at the myth of achieving certainty through legal rules. Frank insists that there are two groups of realists, “rule-sceptics” as he calls them, who regard legal uncertainty as residing principally in the “paper” rules of law and who seek to discover uniformities in actual judicial behaviour and “fact skeptics” who think that the unpredictability of court decisions resides primarily in the elusiveness of facts. The former he suggests, make the mistake of concentrating on appellate courts, whereas it is to the activities of trial courts that attention needs most to be

20
directed. To this statement Lloyd remarks, “No doubt there is force in this contention, for it is familiar enough to find that nice points of law often dissolve away before decisions “on the facts”, quite apart from the fact that the majority of cases involve no disputed law at all. Also, the facts may affect the actual decision as to the law, since courts often “wrench” the law in order to make it fit what they conceive to be the merits of a case, not always with adequate regard to the wider implications of their decision. But at the same time it is difficult not to feel that Frank m
over elaborated case about what in essence has never been far from the thoughts of the legal profession,
viz., that you can never anticipate with certainty which way a court or jury will jump on issues of facts,
and that innumerable factors combine to promote such uncertainty and to render it ineradicable”.

Basic Tenets of the Realist School

1. It is the combination of positivist and sociological approaches. As in positivism, the law is seen
as it is and not as it 'ought' to be. It also emphasises the importance of some aspects of society.
2. The entire emphasis of this school is centered around the judge, the law is what judges decide.
3. The approach is empirical.
4. Law is what courts do and not what they say.

5. Doctrine of prudent is the main source of law. S

KAMKU

21
 LEGAL THEORY AND NATURAL LAW

LAW AS THE DICTATE OF REASON: NATURAL LAW

Criticism
Conclusion
S
II. IMPERATIVE THEORY OF CIVIL LAW OR THE AUSTINIAN THEORY
U
Criticism answered
Criticism answered
Conclusion

III. LAW AS THE PRACTICE OF THE COURT

K
(Legal Realism)
Criticism
M
IV. LAW AS A SYSTEM OF RULES
(Hart's analysis of law; Kelsen's theory of legal system)
A
Hart's analysis and Austin's theory compared
Kelsen's theory of Legal System
K
V. LAW AS A SYSTEM OF SYNTHESIS
(Sethna's Synthetic School)

THE FUNCTION AND PURPOSE OF LAW:

JUSTICE, STABILITY AND PEACEFUL CHANGE

Judicial Process and Reasoning

LEGAL THEORY
The primary purpose of legal theory is to define law. There have been several theories of law. These different
theories often look at law from various points of view.
22
- LAW AS THE DICTATE OF REASON: NATURAL LAW
According to the Natural Law Theory, there are objective principles, which depend on the essential nature of
the universe, and which can be discovered by natural reason. From the point of view of the ordinary human
being, law is only true law so far as it conforms to these fundamental rights. According to this theory, there
are certain objective and absolute principles of morality as justice which are the basis of law. These
principles can be ascertained by human reason and common sense. Positive law, i.e. man made law, has to
conform to these fundamental principles. To the extent positive law is inconsistent with the principles of
natural law, it dies not claim obedience.
The roots of this theory are to be found in the philosophies of the ancient Greek philosophers. This theory is
also responsible for much of the legal and political thinking of the middle ages. As Bodenheimer rightly
remarks, “Noother philosophy moulded and shaped American thinking and American institution to such an
extent as did the philosophy of natural law in the form given to it in the seventeenth and eighteenth
centuries”.
U
S
The attractions of this theory are evident. Much too often, ordinary laws fall short of the ideal, and men
have always felt the need of an appeal from positive law to some higher standard. And, it is precisely
such a standard that is provided by natural law, which with its battle-cry “lex injusta non est lex” (unjust
law is no law), has served to criticize and restrict positive law.
Another great use of this theory is that it rejects ethical relativism. Ethical relativism considers morality as a

product of history and convenience, while M natural law affirms

objective and absolute

K the existence of certain

values.
This theory prosides to find common moral ground in different religious and different outlooks. The Greek
Stoic Philosophers asserted that man should live according to nature. The essential characteristic of human nature

was his reason. A Therefore,heshould live according to the dictates or reason. In the Medieval times, the
function of natural law was primarily to prescribe man's functions and duties. But later philosophers, such as
Hobbes and Locke, made use of the Doctrine of Natural Law of purposes of asserting man's rights

and K freedoms.

Conclusion
Though there has been quite a bit of criticism of the natural law doctrine, yet the doctrine has been
revived to a large extent in the 20th century, when totalitarian doctrines rejecting all human moral values
became a challenge. To meet them, humanity naturally had to revert to a certain kind of natural law.
This could be seen in the trials of the war criminals at Nuremburg, and also formed the basis of the
Charter of United Nations, and the Universal Declaration of Human Rights.
In the words of Dr. Friedmann, “The most important and lasting theories of natural law have undoubtedly
been. inspired by two ideals-of a universal order governing all men, and of the inalienable rights of the
23
individuals”. It can be said 'to-day that natural law has influenced the Church; it has modified and
restricted the principles of positive law; it has imbibed its philosophy in the constitutions of several
countries, and it has been a very potent source of international law. Tomorrow, it may lead the countries
of the world to accept the concept of world law.

II. IMPERATIVE THEORY OF CIVIL LAW OR THE AUSTINIAN THEORY

Almost diametrically opposed to the theory of natural law is the imperative theory of law, which found
its most forceful expression in the works of Austin. This important theory is also called the Positivist
Theory of law.

a sovereign authority; and (iii) it has a sanction behind it. A typical illustration would be the English Road

According to Austin, positive law has three main features: (i) It is a kind of a command; (ii)

is laid down by
S
Queen in Parliament (laid down by the sovereign authority of England), and its violations are met with penalties
it

(sanction).

Traffic Act. This Act lays down certain rules which have to be followed (command),
passed by the
U it has been

“But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or

K
sovereign in the character of a political superior, that is to say,adirectorcircuitou's command of a monarch or
sovereign to a person or persons in a State of subjection to its author.”
According to the imperative theory of' civil law, civil law is, essentially and throughout its whole compass,

nothing but imperative law. According M tothistheory,civil law consists of. the general commands issued
by the State to its subjects, and enforced through the agency of Courts of law by the sanction of physical force.
The speciality of this theory is that it construes laws to be commands issued by the State and enforced by the
sanction of its physical force.

In a case decided by A theSupremeCourt (Raj Kapoor v. the State, (1980) 1 S.C.C. 43), Justice Krishna Iyer
examined the connotation of the term “law”, and observed as follows:

K “Jurisprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of
the community's cultural norms, not the State's regimentation of aesthetic expression or artistic creation.”
 One might generally accept that there are certain rules of law which are in the nature of a
command, - but this theory maintains that all laws are in the nature of a command. This theory is
not acceptable to many jurists. The following are the main criticisms levelled against it.

Moral criticism
Though Salmond rejects the historical criticism, yet he appreciates the inadequacy of the imperative theory of
civil law. He observes: “It is onesided and inadequate - the product of an incomplete analysis of
historicaconceptions.” His main criticism against the imperative theory is that it disregards the moral or
ethical elements in law. This theory ignores the intimate relation between law and justice. Salmond
points' out that, the end of law is justice. Any definition of law without reference to justice is evidently
inadequate. Law is not right alone, or might alone, but the perfect union of the two. It is justice speaking,
to men by the voice of the State. As the imperative theory excludes the ethical elements in law, it cannot
be accepted as a complete definition of law.

Permissive laws
Salmond further points out that the defect of the imperative theory of civil law cannot be cured even if an

commands. For example, there are permissive laws and procedural laws. These are, by no stretch of
ethical element is added to the - definition of the law as given by the imperative theory. Salmond points out

that the imperative theory does not accommodate a number of rules of law which are not S inthenatureof
not a command, or the law which says that hearsay is no evidence is not a command. Therefore, Salmond concludes
that, though there is a large element of truth in the imperative theory of civil law it is inadequate and incomplete.

imagination, in - the nature of commands. For example, a law which says

not wrongful is
U that a certain act is

Attempts to meet Salmond's criticism-Authority of Law 6 K

There are some writers who try to meet Salmond's criticism, that there are rules of law which are procedural and

permissive and, therefore, not in M thenatureofacommand. These writers maintain that these procedural
rules may not be commands addressed to the citizens, but they are commands addressed to the Courts. The
procedural law demands that the Court must act in a particular way under particular circumstances.

But this criticism isA easilymetbySalmond. It may be true to say that procedural laws are commands
addressed to the inferior Courts, but so far as the final Court of Appeal is concerned, the existence or procedural
law depends on the interpretation given by such final Courts. For example, there is no way of
correcting K
theSupreme Court of India, if the Supreme Court of. India were not to follow" a particular
procedural rule. In the last analysis, the laws, depend on the interpretation given by the Courts, and the judges
obey the law, not because they are ordered to do so, but because they wish to obey it. Therefore, there is no force
which compels a superior Court to obey procedural law. Consequently, procedural law cannot be considered as a
command to the Courts.

Conclusion
To conclude, it can be said that one cannot accept Austin's theory if it maintains that all law emanates
from the command of the Sovereign. However, if the theory lays down that most law comes from, and
requires the sanction of, the Sovereign, the theory may be accepted.
The
Again, from a formal point of view, Austin's theory is, on the whole, forceful, and the various criticisms
considered above do not shake it off its foundation.

III. LAW AS THE PRACTICE OF THE COURT

(Legal Realism)
One version of legal realism was the one propounded by Salmond, who pointed out that all law is not made
by the legislature. In fact, he argued that, in England, much of it is made by the law courts. However, all laws,
however made, are recognised and administered by the Courts. Therefore, if a rule is not recognised by the
Courts, it is not a rule of law. Thus, according to Salmond, it is to the Courts, and not to the legislature, that we
must go if we wish to ascertain the true nature of the law. Accordingly, he defined law as the body of
principles recognised and applied by the State in the administration of justice, as the rules recognised
and acted upon by the Courts.

It should be noted that a statement of Law is seldom treated as a prediction U which a Counsel submits before a
(1) Legal situations which are not predictions

Court. He is not forecasting what the judge will decide, but he is asking what the judge should decide. Further, a· judicial decision is not a prediction of what a higher Court would do, but it is a judgment as to what the law now is. Similarly, a Legislature is not predicting what will be done, but it lays down what shall be done.
S
(2) The theory represents a. fraction

Though the realist view may be true to some extent in those situations when a new principle of law is
M of the situation K
parties adhere to it.
evolved, yet it should be noted that most of our law is settled and stabilised. It should also be noted that several

points of law A neverreachaCourt, for the simple reason that the principle of law is so clear that the
Thus, it is argued that the creative days of the judge is now a thing of the past. It is argued that today the law is so

complete, K
before them.
thatthetask of the judges is the more-or-less automatic task of applying settled laws to the; cases

However, this criticism is not without an answer. Legal Jules are still not as certain as was once imagined,
and the element of choice still faces a Court of law. To take just one example, in England, the unlawful and
intentional killing of a human being is the common law crime of murder. But, what would be the position if
X intentionally inflicts a mortal wound on Y, and then, mistakenly thinking him to be dead, throws his body
into a lake, with the result that Y dies, ·not from the wound, but by drowning? Would this amount to murder?
Until 1954, the English law had no answer to this problem, when these facts were before the Courts in Thabo
Mali v. R. (1954 1 AU E.R. 373), in which case the Court had to further develop the English law of murder.
number of power-conferring rules.

Legal rules, as defined above, must be distinguished from rules of games, clubs, and societies, and moral
rules, which are also observed with a sense of obligation. The first difference between moral rules and other
rules (including legal rules) is that the latter can be amended and can be subject to adjudication. While
morality can neither be amended by an authoritative body; nor is it susceptible to the process of adjudication.

Another connected theory is that of the Austrian jurist, Hans Kelsen, the great jurist, who was
responsible for the framing of the Austrian Constitution.
Kelsen advocated the “pure” theory of law. He called it pure, because the theory describes' only the law,
S
excluding everything that is strictly not law. It seeks to lay down what is the law, - and not what the law ought
to be.
U
Kelsen was of the view that, to be acceptable, any theory of law must be “pure”, that is, logically self-
supporting,- and not dependent on any extraneous factors, i.e. not influenced by factors like natural law
or sociological or political or historic influences.

Kelsen considered the systematic character of the legal system K

toconsistinthe fact that all its rules or norms
are' derived from the same basic rule or rules, which he has called grundnorms. Where there is a written

constitution, as in India or the United M States,thebasicgrundnorm will be that the constitution ought to be
obeyed. However, where there is no written constitution, as in England, Kelsen postulates that we must look to
social behaviour for the grundnorm. The English legal system, according to him, is based on several such basic
rules, such as the theory of parliamentary supremacy, the binding force of precedents, and so on. Such basic rules

are very important A toanylegal system; they are to a legal system what axioms are to, geometry; they
constitute the initial hypothesis from which all other legal propositions are derived.

Hart's K viewdiffersfrom that of Kelsen's, inasmuch as Hart refuses to look upon such rules as
hypothesis. According to Hart, the basic rules of a legal system do not consist of something which one has to
assume or postulate. Rather, it is itself a rule accepted and observed in a particular society. According to
Hart, although the rule of parliamentary sovereignty in England cannot be derived from any other rule of
English law, yet it is more than a merely hypothesis, - it is a customary rule of English law, followed in
practice and looked upon as a standard which has to be complied with.

V. LAW AS A SYSTEM OF SYNTHESIS

(Sethna's Synthetic School)

The Synthetic School of Jurisprudence was founded on 21st July 1955, by Dr. M. J. Sethna, the learned
28
author of “Jurisprudence”. Jurists are today now more and more attracted to Dr. Sethna's ingenious
concept of Synthetic Jurisprudence.
According to Dr. Sethna, jurisprudence should be, at the same time, analytical, historical, comparative
and sociological. In the words of the learned author, “There should be an amalgam of principles derived
from the social studies; and jurisprudence should suggest changes for the better, with the march of time
and the onward progress of society”.

An interesting illustration of the product of the school is the MindBehaviour Theory of Negligence (also
referred to as the Subjective-Objective Theo'ry of Negligence), which is discussed in Chapter XV.
Similarly, the definition of the term law also can be synthetic. This school defines law, in its widest sense, as follows: “Law, in its widest sense, means and involves any uniformity of behaviour, a constancy of happening or a course of events, rules of action, whether in a phenomena of nature or in the ways of rational human beings.”

Civil law, according to this, school, is “all that body of principles, decisions and enactments approved or passed by
the legally constituted authorities in a State, for regulating the rights, obligations and liabilities of the citizens in

relation to the State, as also inter se, and

obedience to the Sovereign authority in the State.” In other words, an ideal civil law seeks to secure the greatest
K enforcedthrough the machinery of the judicial process securing

good of the largest number in the body politic.

Synthetic thinking also enables one tolinkupthevarious theories of punishment, which might otherwise
appear chaotic and conflicting. “Not analysis alone, but rather synthesis, has enabled the outlook of
M
interdependence, so far as the theories of punishment are concerned.”

Natural law theory is A

oneoftheoldesttheories amount all the theories. Thus these laws are popularly said to be god K madelaws.it is said to be emanated from supreme source as observed by many jurist and philosophers. Legal thinkers have expressed diverse views on behalf of natural law. Natural law philosophy dominated the Greece during 5th century BC when it was believed it was eternal to man. Sophist calls it as an order of things embodies reason.

Development of natural law theory :-

A brief discussion on natural law theory shall be presented in the historical order to give an idea of the
various ideologies that it tried to establish from time to time and its effect on law. Natural law theories
may be broadly divided into four classes:-

a) Ancient period b) Medieval period c) Period of renaissance d) Modern period

29

Ancient Period :
The concept of natural law theory was developed by Greek philosophers around 4th century BC and laid
down the essential features.
Heraclitus: was the first Greek Philosopher who pinted three main characteristics of natural law namely,
destiny, order and reason. He stated that nature is not scattered heap of things but there is a definite relation
between things and a definite order and rhythm of events. According to him “reason” is one of the essential
elements of the natural law. The instability and frequent changes in the early small states of Greece made
legal philosophers to think that law was meant to serve the interest of those who were in power and the
people are continually struggling for better life. This unstable political condition gave birth to idea of
natural law.

Sorates said that like natural physical law there is a natural law. Man possesses U insight which reveals to him
Socrates :

the goodness and badness of things and makes him to know the absolute and eternal moral rules. This human insight is
S
the basis to judge the law. Socrates did not say ifthepositivelaw is not in conformity with moral law it would be K
disobeyed. According to him it was rather appeal of insight to obey it and perhaps that was why he preferred to drink
poison in obeyance to law than to run away from the prison.

M
Socrates disciple plato carried further Aristotle:
thenaturallawtheory further through his concept of ideal state which he termed as republic. He contented that only intelligent and worthy person would be king. He argued that justice lies in ordinating A K
meanslifethrough reason and wisdom and motivating him to control his passion and desires. In his republic Plato emphasize the need for perfect division of labour and held that each men oath to do his work which he is calledu pon by his capacities. According to plato law of states are a pale shadow ofanabsoluteidea of an perfect laws against which man made law m be meas

According to him man is a part of nature in two ways first he is the part of the creature of god and second he
posses active reason by which he can shape his will. By his reason men can discovered the eternal principles
of justice the men's region being the part of nature the law discovered by reason is called natural justice.
Aristotle defines natural justice as that which everywhere has the same force and that not exist by the people
thinking this or that. So far as its relation which positive law or legal justice is concern, he said that legal
justice in that which is originally indifferent but when it has been laid down is not indifferent.
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Rome :
The theory expanded by Stoics had a great influence on the contemporary roman legal system. The
romans did not confine their study or natural law theory merely to theoretical discussion but carried it
further to give it a practical shape by transforming their rigid legal system into cosmopolitan living law.

Medieval Period
This period starts from 12th century to mid 14th century in the European history. This period was dominate
by ecclesiastical doctrines which the Christian fathers propagated for establishment of church over the
states. The Christian saints especially Ambrose, St. Augustine and Gregory propagated a view that divine
law was superior to all other laws. According to them all laws are either divine or human. S
U
St. Thomas aquin as defined the law as 'an ordinance of reason for the common good made by him who has
the care of the community and promulgated through reason” he classified law as:- (I)Law of God ro
external law, ii) Natural law revealed through reason, iii) Divine law or law of scriptures, (iv) Human
laws which we now called positive law.
Period of Renaissance K
This period in the history of development of natural law may also be called the modern classical era
which is marked by rationalism and emergence of new ideas in different fields of knowledge. General
awakening among the masses coupled with new discoveries of science during the 14th and 15th
centuries shattered the foundation of the established values.

Hugo Grotious :-
He propounded the theory f functional natural law and formulated the principles of international law which

A
M
were equally applicable to all states both during was and peace and he is considered as the founder of modern

internationals K law.He therefore treated “Natural Law as immutable which cannot be changed by god himself”

Thomas Hobbes :
Hobbes theory of natural law was based on natural right of self preservation of person and property. He made
use of natural law to justify the absolute authority of the ruler by endowing him power to protect his subject.

Rousseau :
Social contract is not a historical fact but hypotehtical construction of reason. The essence of Rousseau
theory of general will was that while the individual parts with his natural rights, in return he gets civil
liberties such as freedom of speech equality, assembly etc. His natural law theory is confined to the freedom

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and liberty of the individual. For him, state, law, sovereignty, general will etc are interchangeable terms,.
his theory is considered to be the forerunner of the modern jurisprudential through and legal theory.

Locke:
He pub emphasis on right to life, limberly and property which is inalienable rights and necessary for the
well being of the individual. He said that there should not be any law contravening the above rights.

Modern Period :
The natural law theory received a set back in the wake of 19th century pragmatism. The profounder of

repugnant to the existence of the state. The doctrines propagated by Austin and Bentham completely
nalytical positivism, notably Bentham and Austin rejected natural law on the ground that it was ambiguous

and misleading. Bentham called it a simple nonsense since absolute equality and absolute
in 19th Century. Letter in te 21st century there was revival of natural law school where jurist like Stammler,
Fuller and finnis had made their contribution towers the revival of this school.
S libertywere
divorced morality from law. All these developments shattered the very foundation
law theory
U of the natural

Natural Law theory and its influence in Indian laws relating

case laws relating to it:
K tofundamentalrights (Article 14, 19 and 21) and

In Indian laws especially in Indian constitution M therehasbeen a largely impact of natural law theory. The
articles like Article 14, 19 and 21 has been widen widely interpreted in the Indian scenario especially be the
Indian judiciary. This could be found through the case law.

Now if one analyzes A Stammlersfourpoint principle with special reference to “principles of respect” : 1) the
content of the person's valuation must not be against the arbitrary will of another. Thus in this case the natural law
theory has been applied by Indian Judiciary.

In theK caseofManekaGandhi V/s Union of Indian the meaning and content life and personal liberty
under article 21of Indian constitution came up for consideration and the supreme court held that the law
established by the state should be just fair and reasonable.

If one nanalyses the judgement one would find reference of LOCKE”s theory whereby the natural rights
of man such as right to life, liberty and property remained with him. So in Meneka Gandhi case also the
natural law theory principles could be evolved.

To guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles
of the democratic state based on rule of law. The popular Habeas Corpus case ADM Jabalpur V/s Shivakant
Shukla is one of the important cases when it comes to rule of law. In this case the question was whether
there was any rule of law in india part form article 21. This was in context of suspension of enforcement
of Art. 14, 21, and 22 during the

Proclamation of emergency the answer is even in absence of article 21 f constitution the right to life and
liberty of a person could bot be deprived without authority of law Without such sanity of life and liberty
the distinction between lawless society and one governed by laws would cease to have meaning.

Moreover the fundamental rights conferred under Indian constitution have a large base in natural law theory.
Almost all the fundamental rights conferred under Indian constitution relates to natural law as all the
S
fundamental right are the basic rights of human being which the natural law theory tries to confer upon the
society since age of Greeks.

Conclusions:
U
Apart from its criticism the use of natural law has been prevalent since ages, even in the present legal system the
natural law is used extensively. The modern judical system have been founded on the British Pattern the fine
principles of equality, justice and good conscience K andnaturaljusticeoccupy an importance in Indian law.
The higher values of universal validity, righteousness, duty, service to mankind, sacrifice, non-violence etc were
already incorporated in ancient legal system. The principles of natural law are embodied in dharma referred to

duties of man towards M gods,sages,manand lower animals and creatures. It has been characterised as a
belief in conservation of moral values.

KA

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