Vous êtes sur la page 1sur 6

Class 3 Various Schools & their Jurists

Analytical Philosophical Sociological


School School school

Kant Fichte hegal. Schilling


August comte Jhering Duguit roscoe
JERMY BENTHAM Kelson Austin Spencer ehrich pound
Individual Pure (General)
UTILITArian Theory Realist School
Historical
School
Llewellyn Jeronie frank Holmes Max Weber
Ludwig Leon Petrazycki
Montesquev Savigny puchta Henry maine Gumplowiz Heck,Francois Geny
hugo (volksgeist) Individual (anthropological) Gray Thurman Arnold
Burke General will historical compulsion Natural school

Ancient Darkages Medieval reformists Modern


Greeks Roman St. Augustine Thomas Acquinas Grotius,Locke, Stammler,Rawls,Finnis,Fuller
Aristotle, Heraclytus Stoics Hobbes & Rousseau Kohler,Hall,Cahn & Northrop
& Socrates
Difference b/w schools of Jurisprudence
Basis of difference Analytical School Historical School Sociological School Philosophical School Natural School

1. Tool of Study Analysis Empirical Observation Societal Processes Human Intellect & Action Analogy with Natural
Reasoning
2. What is Law Norms & Code of Conduct Human behaviour Channelization & Balancing of Balance b/w intellect & action Reason Based Human
Societal Processes Conduct
3. Why to Study Reform in law /Stability Reform in light of Morality Reform in light of
Human Reasoning

4. Which Law should be Studied Present existing Law Existing law in light of past Past, Present & Future Law Future Future

“Jurisprudence addresses the questions about law that an intelligent layperson of speculative bent - not a lawyer- might think particularly
Interesting. What is law ? ……… Where does law come from ? ……… Is law a science or a humanity, or neither ? …….. A practicing lawyer or
a judge is opt to think questions of this sort at best irrelevant to what he does, at worst naive, impractical, even childlike (how high is up?)”

Richard A. Posner,The Problem of Jurisprudence 1(1990)


Analytical school

GENERAL Hans Kelson

Normative ground Minimum pure Depsychologised


Analytical Imperative theological Hierarchy Norm efficacy Theory command
School school school
English school

Jeremy Bentham hla Hart

Utilitarian Reform Hedonistic Max. pleasure Code of Primary & Analytical


Individualism in law Calculus to max. people Conduct Secondary Ruler Naturalist

John austin Morality Human Reason

State Law ‘Ought Positive Common


Superior & proposition” morality Theory
Inferior beings Sovereign Command Sanction
General Command Special Command

3
Natural school

Greeks Roman Darkages Medieval reformists Modern


Aristotle & Socrates Stoics St. Augustine Thomas Acquinas Grotius,Locke, Stammler,Rawls,Finnis,Fuller,
Hobbes & Rousseau. Kohler,Hall,Cahn & Northrop
The main concern was state(Gov.) Law different Church was A slight reforms was They all said God &
has got absolute power, but state from Theology dominating done.They too said state are different &
action are controlled by Human (Religion) upon state. our ultimate purpose human activity should
Reason. ‘Divine Command’ is Reality is God.For be completely separated
King is the Agent the first time after God.They have given
of God. Greek & Roman secularism.

They were complete absolutist, but to some extent, they were individualist also.The said God and State are two different entity, though they do not denied
the presence of God, i.e., they were not atheist.Grotius has taken State out of Religion and that many of them are influenced by the idea of Justice also.

Greek Heraclytus talked about Human Reason being one of the essentials of Human existence.

Socrates talks about stability and security in the political order.He says that man has got an insight according to which he is able to think of the absolute &
eternal moral rules.He can accordingly mould his behavior on the principles of goodness, justice and morality.

Aristotle - Man has got acuter reason.According to this reason, he is able to shape his will.Human reason will result into the existence of the Principles of
Natural Justice in the social order.Aristotle was a believer of absolutism.He suggested that whatever is the command of the sovereign/government,
it should be obeyed, but at the same time,Government/Sovereign command should be reformed on lines of Human Reason.

The Stoics - According to this group, the religion has no role to play in law, all law should be in accordance with a universal reason.

St. Augustin - According to him, religion & God is the only reality &,therefore, nothing in the Society which is not in line with religion or unification with
God will be allowed.All Human Organizations are futile and a sin.

Thomas Acquinas - According to him, unification with God is a reality but not the only reality, rather there are certain other requirements of man/men and
manhood behave in a particular manner according to this reason.Thomas Acquinas to that extent liberalized law from religion, but he did
not give up the theological essence of social life.
The reformists - According to Grotius, law should be separated from religion.Human reason is a self-supporting logical and practical human reason.He was the supporter of stable
political order and also absolute power of the state.Absolute power has to be seen within the broad confines of morality and Justice and Human reason.He also says that man enters into
a social contract with the sovereign giving up all his rights to the sovereign for the purpose of administration.

Hobbes - He also follows the same line as Grotius.

Locke - On one point, he was different from Grotius and Hobbes, he said that “All the Rights are not given by the man/men to the Sovereign, rather certain Rights
are retained.

Rousseau - According to him also, people do not give all their rights to the sovereign they rather deposit their rights to the community itself and the administration
of those rights will be done by the community itself.

Modern Natural School :


Kohler is also called a neo-Hegelien.Hegel is a philosophical jurist.According to him, law is the standard of conduct which in consequence of the inner impulse urges
man towards a reasonable form of life.He also says that “Legal Interpretation should not be materialistic, it should rather take into account the requirements of
moral as well cultural advancement of the society.He talks about the maximum level of moral content in the law.Law is an instrument to promote the
materialistic pleasure.Thus Kohler has talked about two kinds of advancement of society :
1. The materialistic advancement
2. The philosophical and the moral advancement

Finnis - According to him, Natural law is a set of principles based upon the Rules of Human Reasoning and practical reasonableness in order to shape the human life
and human community.

Rawls - He give the ‘Theory of Justice’ and wrote an Essay ‘Political liberalism’.According to him, there are three aspects of Justice : -
1. Maximization of liberty with only as much of restrain as is required to protect the liberty itself.That so much limitation must not be put over liberty that it
(limitation) diminishes/destroys the liberty itself.
2. Equality of liberty and social benefits to all.He has given the principle of inequality also.However, in the Principle of equality, he also gives the Principle of
Inequality, i.e. ‘Giving equality to all men might still not result into the benefits reaching the least well - off people in the society in such a case unequal
treatment has to be given to such people in order to promote them’.
3. Equality of opportunity to all people in the society.
(A) He defined liberty as absence of constraints (Limitation).
(B) He is a supporter of the Theory of Kant.
(C) He is said to have given a new version of the social contract theory.He combined social contract theory with liberty.
Fuller - He has talked about morality of duty and morality of aspiration (desire).Law and morality are necessarily co-related.However, morality as it is found in the
society is different from the morality as it ought to be.Law is purposive system.There are eight characteristic of inner morality of Law :
1. Legal system should have definite rule.
2. The Rules must be properly publicized.
3. There should not be a misuse of the Doctrine of Retrospective legislaton.
4. The Rules must be framed in such a manner that they can be understood easily.
5. The Rules must be practicable - must be feasible in practice.
6. The newly created rules must not be contrary to the existing rules.
7. The Rules should/must be framed in such a manner that they can be amended when required.
8. The Rules framed should be actually administered.
Other than these eight rules, Fuller also gave a new area of Study named as EUNOMICS.
According to Fuller, Eunomics is the theory or study of good order and workable arrangements.

Other Modern Natural Jurists


Stammler - He was a follower of Kant.According to him, man has got a cognitive faculty (Capable of thinking) according to which he shapes his ideas and the human
mind is free to think without being affected by anything.
He developed his thought/ideas upon the real events of life according to his intellectual concept.According to stammmler, any attempt at making law is
always an attempt at making just law.Law is always aimed/oriented towards justice.
Kant has also given a very important role to justice and morality in his theory.Stammler also defines justice, “Justice is the harmony between wills and purposes in the broad framework of the social life”.
According to Stammler, any attempt to attain a just law in the society will have the following four fundamental principles-
1. A person’s will should not be subjected to arbitrary power.
2. Every legal demand must be made in such a manner that the person from whom ted he demand is made does not loose his self - respect.
3. A member of the legal community cannot be excluded from it arbitrarily.
4. A power of control conferred by law can be justified only to the extent that the person affected (Effected by that power retains his basic self - respect)
remains his own neighbour.

Cahn - He is connected to the American Realist movement, but he is a natural jurist.He talks about the rational element of administration of Justice.According to him, the problems of Justice should be
approached from their negative rather than their positive side.He says “Human intuitive ethical responses to practical fact situation”.He talks about finding out what would be unjust in the society which is
easier to find out.By removing that unjust from the society justice will be attained. He defines Justice to be a process of remedying (removing) injustice from the society.

Jerome Hall - He talks about the question of rationality and morality of law.According to him, law is a distinctive coalescence (fusion) of form, value and fact.He has been a critic of
legal positivism.He has supported ‘Integrated Jurisprudential’ approach in which analytical studies should be combined together with social studies.

Northrop - He talks about the possibility of developing an evaluative science of law.Hall and Nothrop are supporters of combined study without any bias towards any school.