UNIT-II
1. Analytical Positivism- Bentham, Austin, H L A Hart’ Kelson
Analytical school of jurisprudence is based on the legal maxim, ‘Ubi civitas ibi lex’ which signifies ‘where there is State, there will not be anarchy’ and therefore, the underlying principle of this school is the relation of law with that of a State. The essential concept of the Analytical school of jurisprudence is to deal with the law as it already exists. Law, according to the Analytical school, is the sovereign’s direction. As a result, analytical schools are also known as imperative schools. In the nineteenth century, the analytical school rose to prominence. It claims that morals are not objective but the law must be objective. If morals are included in the concept of law, the law will no longer be objective. The analytical school takes a ‘positive’ perspective on societal legal issues. The positivists’ main concern is the law that is actually found (positum), rather than the ideal law. Put simply, ideal law is the perfect law for a society or a circumstance whereas law which is actually found concerns logical and welfare thinking in the legislation. Legislations, court precedents, and customary laws are the most important legal sources. This school, which is the most popular in England, establishes the fundamental elements that make up the fabric of law, such as state sovereignty and the administration of justice. While Bentham, Holland, Austin and Salmond are major proponents of this school, Austin is considered as a father of the Analytical school. The present article reflects on the essential aspects related to the Analytical school of jurisprudence.
Austin
As we know, according to Austin, there are three elements in law:
a. It is a type of command
b. It is laid down by a political superior
c. It is enforced by a sanction
He goes on to elaborate this theory. For him, Requests, wishes etc. are expressions of desire. Command is also an expression of desire which is given by a political superior to a political inferior. The relationship of superior and inferior consists in the power which the superior enjoys over the inferior because the superior has ability to punish the inferior for its disobedience. He further said that there are certain commands that are laws and there are certain commands that are not laws. Commands that are laws are general in nature. Therefore, laws are general commands. Laws are like standing order in a military station which is to be obeyed by everybody. He goes on to define who is a sovereign. According to him, Sovereign is a person or a body or persons whom a bulk of politically organized society habitually obeys and who does not himself habitually obey some other person or persons. Perfect obedience is not a requirement. He further goes on to classify the types of laws:
1. Divine Law- Given by god to men
2. Human Law- Given by men to men v a. Positive Laws- Statutory Laws
b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.
Criticism of Austin’s Theory of Law
1. Laws before state- It is not necessary for the law to exist if the sovereign exists. There were societies prior to existence of sovereign and there were rules that were in prevalence. At that point of time, there was no political superior. Law had its origin in custom, religion and public opinion. All these so called ‘laws’ were later enforced by the political superior. Thus, the belief that sovereign is a requirement for law has received criticism by the Historical and Sociological School of Thought. However, the above mentioned criticism is not supported by Salmond. Salmond said that the laws which were in existence prior to the existence of state were something like primitive substitutes of law and not law. They only resembled law. Salmond gave an example. He said that apes resemble human beings but it is not necessary to include apes if we define human beings.
2. Generality of Law- The laws are also particular in nature. Sometimes, a Law is applicable only to a particular domain. There are laws which are not universally applicable. Thus, laws are not always general in nature.
3. Promulgation- It is not necessary for the existence of the law that the subjects need to be communicated. But, Austin thought otherwise.
4. Law as Command- According to Austin, law is the command of the sovereign. But, all laws cannot be expressed as commands. Greater part of law in the system is not in the nature of command. There are customs, traditions, and unspoken practices etc. that are equally effective.
5. Sanction- The phrase ‘sanction’ might be correct for a Monarchical state. But for a Democratic state, laws exist not because of the force of the state but due to willing of the people. Hence, the phrase ‘sanction’ is not appropriate in such situations. Also, there exists no sanction in Civil Laws unlike Criminal Laws.
6. Not applicable to International Law- Austin’s definition is not applicable to International Law. International Law represents law between sovereigns. According to Austin, International Law is simply Positive Morality i.e. Soft Laws.
7. Not applicable to Constitutional Law- Constitutional Law defines powers of the various organs of the state. It comprises of various doctrines such as separation of power, division of power etc. Thus, no individual body of a state can act as sovereign or command itself. Therefore, it is not applicable to constitutional law.
8. Not applicable to Hindu Law or Mohameddan Law or Cannon Law- Personal Laws have their origin in religion, customs and traditions. Austin’s definition strictly excludes religion. Therefore, it is not applicable to personal laws.
9. Disregard of Ethical elements- The moment law is devoid of ethics, the law loses it colour and essence. Justice is considered an end of law or law is considered a means to achieve Justice. However, Austin’s theory is silent about this special relationship of Justice and Law. Salmond said that any definition of law which is without reference to justice is imperfect in nature. He further said ‘Law is not right alone, it is not might alone, it a perfect union of the two’ and Law is justice speaking to men by the voice of the State. According to Salmond, whatever Austin spoke about is ‘a law’ and not ‘the law’. By calling ‘the law’ we are referring to justice, social welfare and law in the abstract sense. Austin’s definition lacked this abstract sense. A perfect definition should include both ‘a law’ and ‘the law’.
10. Purpose of law ignored- One of basic purposes of Law is to promote Social Welfare. If we devoid law of ethics, the social welfare part is lost. Again, this part has been ignored by Austin. Merit in Austin’s Definition Not everything is faulty about Austin’s theory of law. He gave a clear and simple definition of law because he has excluded ethics and religion from the ambit law. Thus, he gave a paramount truth that law is created and enforced by the state.
KELSON (1881-1973) Kelson’s Theory of Pure Science of Law / Pure theory
Kelson was not in favors of widening the scope of jurisprudence by co-relating it with other social sciences. He insisted on separation of Law from politics, sociology, metaphysics and all other extra- legal disciplines. Kelson tried to rescue jurisprudence from vague mysticism and in a way revival of John Austin’s 19th century analytical jurisprudence. Kelson wished to create a pure science of law devoid of all moral and sociological considerations. He rejected Austin’s definition of law as a command because it introduces subjective considerations whereas he wanted legal theory to be objective. He defines ‘science’ as a system of knowledge or a ‘totally of cognitions’ systematically arranged according to logical principles. Keelson’s Grundnorm is analogous to Austin’s concept of sovereign without which, law cannot be obligatory and binding. Keslon’s theory being a theory of positive law is based on normative order eliminating all extralegal and non-legal elements from it. He believed that a theory of law should be uniform. The theory of Hans Kelson, says Dias, has represented a development in two different directions; on the one hand, it marks the highest development to date of analytical positivism. On the other hand, it marks a reaction against the welter of different approaches that characterized the close of the 19th century and the beginning of the 20th century. For Kelson and his followers any such legal idealism is unscientific. He claimed that his pure theory was applicable to all places and at all times. He wanted it to be free from ethics, politics, sociology, history, etc. though he did not deny the value of these branches of knowledge.
LAWS AS NORMATIVE SCIENCE
Kelson described law as a ‘normative science’ as distinguished from natural sciences which are based on cause and effect such as law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered in the form of ‘is’(das seen) which is an essential characteristics of all natural sciences. But the science of law is knowledge of what law ought to be (das sollen). It is the ‘ought to’ character which provides normative character to law. For instance, if ‘A’ commits a theft he ought to be punished. Like Austin, Kelson also considers sanction as an essential element of law but he prefers to call it ‘norm’. Kelson argues his science of law as ‘pure’ and time and again, insists that law ‘properly so-called’ must be put unspotted from elements which merely confuse and contaminate it. It should not be mixed with politics, ethics, sociology and history. By ‘pure theory of law’, he meant it is concerned solely with that part of knowledge that deals with law, excluding from such knowledge everything which does not belong to subject matter of law. He attempts to free the science of law from all foreign elements. It is called positive law because it is concerned only with actual and not with ideal law. For Kelson, legal order is the hierarchy of norms having sanction and jurisprudence is the study of these norms which comprise legal order. THE GRUNDNORM The basis of Kelson’s pure theory of law is on pyramid cal structure of hierarchy of norms which derives its validity from the basic norm i.e. ‘Grundnorm’. Thus it determines the content and gives validity to other norms derived from it. He was unable to tell as to from where the Grundnorm or basic norm derives its validity. But when all norms derive their validity from basic norm its validity cannot be tested. Kelson considers it as a fiction rather than a hypothesis. According to Kelson it is not necessary that the Grundnorm or the basic norm should be the same in every legal system. But there will be always a Grundnorm of some kind whether in the form of a written constitution or the will of a dictator. In England there is no conflict between the authority of the king in Parliament and of judicial precedent, as the former precedes the latter. For example, In England, the whole legal system is traceable to the propositions that the enactments of the crown in Parliament and Judicial precedents ought to be treated as ‘law’ with immemorial custom as a possible third. Keelson says that system of law cannot be grounded on two conflicting Grundnorms. The only task of legal theory for Kelson is to clarify the relation between the fundamental and all lower norms, but he doesn’t go to say whether this fundamental norm is good or bad. This is the task of political science or ethics or of religion. Kelson further states that no fundamental norm is recognizable if it does not have a minimum of effectiveness e.g. which does not command a certain amount of obedience. Producing the desired result is the necessary condition for the validity of every single norm of the order. His theory ceases to be pure as it cannot tell as to how this minimum effectiveness is to be measured. Effectiveness of the Grundnorm depends on the very sociological and political questions, which he excluded from the purview of his theory of law. Pyramid of Norms Kelson considers legal science as a pyramid of norms with Grundnorm at the top. The basic norm (grundnorm) is independent of any other norm at the top. Norms which are superior to the subordinate norms control them. He defines ‘Concretization’ as the process through which one norm derives its power from the norm superior to it, until it reaches the Grundnorm. Thus the system of norms proceeds from bottom to top and stops when it reaches to the top i.e. ‘Grundnorm’. The Grundnorm is said to be a norm creating organ and the creation of it cannot be demonstrated scientifically nor is it required to be validated by any other norm. Thus a statute or law is valid because they receive their legal authority from the legislative body and the legislative body derives its authority from a norm i.e. the constitution. According to him the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.13There is a difference between propositions of law and propositions of science. Propositions of science are observed to occur and necessarily do occur as a matter of cause and effect. Whenever, a new fact which is found not to comply to a scientific law it is so modified to include it. On the other hand propositions of law deal with what ought to occur e.g. if ‘A’ commits theft, he ought to be punished.
Bentham:
One of the main rationales for Bentham establishing the positive law theory was that he thought the system of common law, that was then in use in England in the 17th century, was insufficient and inconsistent. He classified this common law system as ‘dog law’, referring to the way it often applied retrospectively and assimilated it to the way in which we treat animals. He criticized the lack of legal certainty and clarity that the common law system provided. Bentham proposed a system whereby the limits of power and conduct were specifically outlined, and were available for all to see and abide by. He often intertwined his own ideas with the ideas of utilitarianism (i.e. “the greatest good for the greatest number”), which then obviously formed the basis of the scientific approach to the law. His “science of legislation” approach meant that the law had a rigid format, was clear in its terms, and achieved a positive result overall for the subjects of the law, thus satisfying the requirements of the utilitarian aspects of Bentham’s theory. He also identified that human behavior is often governed by two key factors: the desire for pleasure, and the avoidance of pain. It was Bentham that proposed a system of codification of the law, similar to the system of legislation we see in the modern context, where the premise was that it would create a universal set of laws that was easy to understand, and was able to be easily communicated to the public, so they knew what they had to do to obey the laws. It also meant that judges would effectively have their law-making powers reduced or rescinded, meaning they assumed more of an administrative role in the judiciary. Bentham had a similar view of the sovereign, believing that the sovereign is a person or group to whom the people of the society are “in a disposition to pay obedience” to. For Bentham, law had to contain the following factors:
A collection of signs
Which indicate an intention
Which are conceived or adopted by a sovereign in a state
Which describe the desired behavior
Of the people to whom the intention is directed
Which should also provide a motive for those subjects to obey?
This heavily itemized list is similar to that of Austin; however Bentham’s theory came first according to the history books. It shows the much more scientific approach to the law that a positivist tends to take rather than, say, a natural law theorist. Bentham’s rationale for creating such a system was that, as mentioned, judges were much more restricted in their law-making powers. This meant that they were not able to apply any form of morality to their legal arguments, as they were simply bound to apply the law as it was enacted by the Parliament. This further supports the fact that those who follow analytical jurisprudence maintain a strict separation from the law and any social or political factors surrounding it, leaving the debate of merits and demerits to the legislature.
Hart’s concept of law
Professor Hart (1907) is often recognized as the most prominent exponent of British positivism in the modern era. He criticised Austin’s thesis in his noteworthy work “The Concept of Law.” Hart observed that “law consists of norms with a broad applicability and non-optional nature, yet which are susceptible to formalisation, legislation, and adjudication”. He said that law is a collection of social norms (rules derived from social pressure) that take on the form of legal regulations. The term ‘law’ refers to a set of “publicly ascertainable regulations.” According to Hart, the law is the same as a legal system. A ‘legal rule’ is one that establishes a code of behaviour that is followed with the expectation. The law establishes a standard of behaviour, not a demand. This norm is followed not just because there is a sense of duty to do so, but also because others are expected to do so as well. As a result, even though a person cannot be forced to respect the law, he or she is nevertheless considered to have a duty to do so. As a result, the law is more concerned with duty than with coercion. A related concept to a ‘responsibility’ is an obligation.
According to Hart, the concept of duty signifies that a rule is accepted by the people (i.e., it is internalised) rather than habitually obeyed (as defined by Austin). There is a distinction between internal and exterior elements of regulations. The former means “having a responsibility” (without force), whilst the latter entails “being obligated” (under a compulsion). According to Hart, Austin’s predictive theory ignored internal features of rules and only dealt with exterior ones. There are two sorts of rules, according to Hart. The main rule establishes norms of conduct or imposes obligations (for example, international law), whereas the secondary rule determines, introduces, eliminates, or modifies the primary rule. Power-conferring rules, public or private, are the secondary rules (e.g. statutes, constitution). The ‘rules of recognition,’ which give authoritative criteria for determining main norms of duty, are developed from these. The ‘ultimate rule of recognition’ is the last requirement for a legal order’s legality. A legal system’s core is made up of the union of main and subsidiary rules. A civilisation ruled solely by fundamental laws (i.e., a simple primordial society) is inefficient, stagnant, and unpredictable. The legal order must be effective, which means that citizens must follow main norms and authorities must follow secondary regulations. These two requirements are both essential and sufficient for a legal system to exist.Hart created a theory of law in which official behaviour plays a fundamental role. Some of the “puzzles” associated with the concept of legal validity, according to Hart, address the relationship between the validity and efficacy of legislation. When a rule meets all of the conditions set out by the rule of recognition, it is considered to be “valid.” When people follow the rules, they are called to be ‘effective.’ It is not necessary for an ultimate rule of recognition to be legitimate, but it should not be ignored, i.e. it must be effective (officials must obey it).Criticism of Hart’s proponents Some jurists, like Ronald Dworkin and Lon Fuller, have harshly challenged Hart’s idea of law. Dworkin distinguished between ‘rules’ and ‘principles,’ stating that a legal system cannot be viewed just as a collection of rules, but rather as a collection of sound principles and policies. He stated that “a principle is a norm to be followed because it is a necessity of justice, fairness, or another facet of morality.” Fuller felt that the legal system, as a tool for normal human behaviour, should be concerned with both law as “it is” and law as “it ought to be.” Thus, the law cannot be completely divorced from the concept of morality.
Conclusion
The different schools of thought in jurisprudence indicate distinct approaches in handling the subject. The Analytical school of Jurisprudence highlighted the positive approach the needs to be adopted to address legal challenges. The school came with its own sets of pros and cons that the article highlighted, nevertheless one cannot ignore that the school had a lot to offer to society in general.
2. HISTORICAL SCHOOL- Savigny; Puchta; Sir Henry Maine-
Introduction- Jurisprudence is the theory and study of law. It studies the origin and concept of law. Law has a very complex concept. Its understanding varies from people to people. Everyone has a different understanding of the law. For example, a law student and lawyer understand the law as a solution of every dispute. An ordinary citizen understands the purpose of the law is to punish them.
Historical school of Jurisprudence argued that the law is the exaggerative form of social custom, economic needs, conventions religious principles, and relations of the people with society. The followers of this school argued that law is found not made. The historical school doesn’t believe and support the idea of the natural school of law which believe that the origin of law is from superior authority and have some divine relevance.
The concept and meaning of Historical School of Jurisprudence
With the changing needs and nature of persons, the law should be changed. The historical school follows the concept of man-made laws. ‘Law is formulated for the people and by the people’ means that the law should be according to the changing needs of the people. And everyone understand their own need better than anyone else.
The basic source of the Historical School of Jurisprudence is the habits an custom of people which changes according to their needs and requirement. It is also called the continental school of Jurisprudence.
This school rejects the ideas of formation of law by judges and the origin from some divine relevance. In the words of Salmond, “That branch of legal philosophy which is termed historical jurisprudence is the general portion of legal history. It bears the same relation of to legal history at large as analytical jurisprudence bears the systematic exposition of the legal system. It deals, in the first place, with the general principles governing the origin and development of law, and with the influences that affect the law. It deals, in the second place, with the origin and development of those legal conceptions and principles which are so essential in their nature as to deserve a place in the philosophy of law- the same conceptions and principles, that is to say, which are dealt with in another manner and from another point of view by analytical jurisprudence. Historical jurisprudence is the history of the first principles and conceptions of the legal system.”
Reasons for the Origin of Historical School of Jurisprudence
The Historical School believe that law is made from people according to their changing needs. Habits and customs are the main sources of the Historical School of Jurisprudence. According to Dias, Historical school arose as a reaction against the natural law theories.
The reasons for the emergence of this school are:
• It came as a reaction to the natural school of law.
Natural school of law believes that the law is originated from some divine power. Natural law is also called the Eternal law. It exists since the beginning of the world. It is closely associated with the morality and intention of God. Indian constitution has some relevance of the natural law in its articles.Historical school of Jurisprudence focuses on the formation of law by people not by some divine origin.
• It opposes the ideology of the analytical school of jurisprudence.
Analytical school of jurisprudence is also called Austinian School. It is established by John Austin. The subject matter of Analytical school of Jurisprudence is positive law. It focuses on the origin of law the judges, state and legislators. Historical School laid emphasis on the formation of law by people through customs and habits, not by the judges and superior authority.
SAVIGNY'S THEORY OF VOLKSGEIST:
Savigny is regarded as a father of the Historical school. He argued that the coherent nature of the legal system is the usually due to the failure to understand its history and origin. According to him, the law is “ a product of times the germ of which like the germ of State, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing the influences which play upon it.”Savigny believes that the law cannot be borrowed from outside. And the main source of law is the consciousness of the people.He was of the view that the law of the state grows with the strengthening of the state nationality and law dies or fade away when nationality loosens its strength in the state.Friedmann concludes the Savigny’s theory
• Law is like language which eventually grows.
• Law cannot be of universal validity nor be constructed on the basis of certain rational principles or eternal principles.
• Law is sui generis. Savigny argued that law is like the language having its own national character. So, it can’t be universally applied and varies according to the people. He mentioned this in the self-written pamphlets “Vom Berufunserer Zeit für Gesetzgebungand Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence).”
• Law is found or discovered not made. It can’t be made artificially like the invention of an object.
• Law is found on the basis of consciousness, customs and beliefs of the people.Basic Concept of Savigny’s VolksgeistVolksgeist means “national character”. According to Savignty’s Volksgesit, the law is the product of general consciousness of the people or will. The concept of Volksgeist was served as a warning against the hasty legislation and introduce the revolutionary abstract ideas on the legal system. Unless they support the general will of the people.Basically, Savigny was of the view that law should not be found from deliberate legislation but should be made and arises out of the general consciousness of the people.The basis of origin of law is to be found in Volksgeist which means people’s consciousness or will and consists of traditions, habits, practice and beliefs of the people. The concept of Volksgeistin German legal science states that law can only be understood as a manifestation of the spirit and consciousness of the German people. As already discussed, his theory served as a warning against hasty legislation and introduction of revolutionary abstract ideas on the legal system unless they mustered support of the popular will, Volksgeist. Savigny s central idea was that law is an expression of will of the people. It doesn’t come from deliberate legislation but arises as a gradual development of common consciousness of the nation. The essence of Savigny sVolksgeist was that a nation s legal system is greatly influenced by the historical culture and traditions of the people and growth of law is to be located in their popular acceptance. Since law should always confirm to the popular consciousness i.e. Volksgeist, custom not only precedes legislation but is also superior to it. Hence, law wasn’t the result of an arbitrary act of a legislation but developed as a response to the impersonal powers to be found in the people’s national spirit. Laws aren t of universal validity or application. Each people develop its own legal habits, as it has peculiar language, manners and constitution. He insists on the parallel between language and law. Neither is capable of application to other peoples and countries. The Volksgeist manifests itself in the law of the people: it is therefore essential to follow up the evolution of the Volksgeist by legal research. Savigny felt that “a proper code [of law could only] be an organic system based on the true fundamental principles of the law as they had developed over time.” Savigny s method stated that law is the product of the Volksgeist, embodying the whole history of a nation s culture and reflecting inner convictions that are rooted in the society s common experience. The Volksgeist drives the law to slowly develop over the course of history, thus, according to Savigny, a thorough understanding of the history of a people is necessary for studying the law accurately. Savigny in his own words view Volksgeist as, “The foundation of the law has its existence, its reality in the common consciousness of the people. We become acquainted with it as it manifests itself in external acts, as appears in practice, manners and customs. Custom is the sign of positive law.”- Savigny. Hence, Savigny clearly believes that Volksgeist (common consciousness) is the foundation of law. Criticism: As already stated, a uniform definition of law is far from reality, and Savigny sVolksgeist is no exception. The following are the criticisms of Savigny’sVolksgeist:
1. It is not clear who the volk are and whose geist determines the law nor it is clear whether the Volksgeist may have shaped by the law rather than vice-versa.
2. In pluralist societies such as exist in most parts of the world it really seems somewhat irrelevant to use the concept of Volksgeist as the test of validity.
3. He has over emphasized custom and underestimated the role of legislation.
4. It unfortunately gave rise to the extreme nationalism in Germany and other countries. 5. It over emphasizes history rather than present.
Henrie Maine
He introduced the idea that law and society developed "from status to contract." In ancient times, individuals were bound by social status and/or belonging to traditional social castes . On the other side, in the modern world, people were regarded as independent entities, free to make contracts on their own. Maine saw Roman law as the intermediate stage between ancient customs and modern British law. He believed that in ancient times legal bonds were firmly connected with customs rooted in the patriarchal family system. In that system all the goods, including land and the means of production, were the property of a family, and private property was practically non-existent. It was only in more recent times, with the development of settlements and later towns, that society started to apply principles of private property and depend on contract as means of creating larger and more complex relationships.
Maine did not approve of the idea that law actually progressed throughout human history, and that democracy was a superior form of government. Maine had published, in 1885, his work of speculative politics, a volume of essays on Popular Government, designed to show that democracy was not in itself more stable than any other form of government, and that there was no necessary connection between democracy and progress. The book was deliberately unpopular in tone; it excited much controversial comment and some serious discussion. Many believed that Maine particularly resented late Victorian mass democracy, and advocated instead laissez-faire economic individualism. Living for more than seven years in India, Maine came in contact with Eastern ideas, and was able to compare them to Western thought. His Village Communities in the East and the West (1871); Early History of Institutions (1875); Early Law and Custom (1883) compared those two systems of thought, finding numerous similar points. In all these works the phenomenon of societies in an archaic stage, whether still capable of observation or surviving in a fragmentary manner among more modern surroundings or preserved in contemporary records, are brought.
Maine describes the development of law in four stages:
• First stage
Rulers are believed to be acting under divine inspiration. And the laws are made on the commands of the rulers. For example, Themistes of ancient Greek. The judgment of the king was considered to be the judgment of God or some divine body. King was merely an executor of judgments of God, not the law-maker.• Second stageThen the commands of King converted into customary law. The custom prevails in the ruler or majority class. Customs seems to have succeeded to the right and authorities of the king.• Third stageThe knowledge & administration of customs goes into the hands of a minority, Due to the weakening of the lawmaking power of the original law-makers like Priests the knowledge of customs goes into the hands of a minority class or ordinary class. And the ruler is superseded by a minority who obtain control over the law.
• Fourth stage
In the fourth and last stage, the law is codified and promulgated.
Georg Friedrich Puchta
Puchta was a German Jurist. He was a disciple of Savigny and a great jurist of Historical school of Jurisprudence. Georg Friedrich Puchta’s ideas were more logical and improved than Savigny’s ideas. He traced the development and evolution of law from the very beginning. His ideas mainly focused on the situation when conflict arises between general will and individual will. In the conflict between general will and individual will, the state came into existence. And find out the midway to resolve the conflict.The main concept of Puchta’s ideas was that “neither the people nor the state alone can make and formulate laws”. Both State and individual are the sources of law.
Contribution of Puchta
• Puchta gave twofold aspects of human will and origin of the state.
• Despite some points of distinction Puchta and Savigny, he improved the views of Savigny and made them more logical.
Conclusion
Historical School of Jurisprudence describes the origin of law. This school argues that the law was found not made. The main source of law is Kings Judgment, Customs and habits. Jurists like Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the supporter of the Historical School of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first jurist of Historical school. Sir Henry Maine was the jurist of English Historical School. He was more logical and accept the concept of Codification and legislation.
Savigny was the father of Historical school. He argued that Law is like language and have a national character. Law is not universal. While Puchta improved the ideas of Savigny and argued that both state and people are equally important and source of law.
3. Sociological School: Duguit; Ihering; Ehrich; Roscoe Pound-
The sociological questions in jurisprudence are concerned with the actual effects of the law upon the complex of attitudes, behaviour, organization, environment, skills, and powers involved in the maintenance of a particular society. Conversely, sociological jurisprudence is also concerned with the effects of social phenomena on both the substantive and procedural aspects of law, as well as on the legislative, judicial, and other means of forming, operating, changing, and disrupting the legal order. The fact that people in a given time and place hold particular ideas and values, including ideals of justice, is itself a fact the relation of which to law must be studied; but the focus is sharply different from that in the study of theories of justice. Its focus is descriptive, not normative; it is concerned with what is or with what goes on, not with what ought to be or ought to go on. This school is comparatively modern, and it devotes itself to the study of law as a social phenomenon, and tries to examine the consequences of law on homo-sapiens in civilized societies. It deals with the study of social consequences of law and with the observation of social phenomenon. It also studies about crime and punishment in its important branch called Criminology. The jurist's function is to formulate these jural postulates for the civilization of the time and place by observation of the phenomena of a given society and objective synthesis of the principles concerning human conduct which such society presupposes. Under the guidance of these jural postulates, the legislators and judges are to formulate and shape the development of the law.
Roscoe Pound (1870-1964):
Pound was an American Legal Scholar. His view is that law should be studied in its actual working and not as it stands in the book. He was one of the most leading and important jurists who developed American sociological jurisprudence is a systematic manner. He treated the law as a means of affecting social control and his contribution to jurisprudence is great. The functional aspect of the law.
Roscoe Pound gave stress on the functional aspect of law. He defines law as containing the rules, principles, conceptions and standard of conduct as a developed technique of social engineering. The main function of law is to satisfy the maximum number of people. Not only this function but also to reconcile the conflict in the interest of individuals and society.
Theory of Social Engineering:
Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the Engineers. Engineers are required to use their engineering skill to manufacture new products. Similarly, social engineers are required to build that type of structure in the society which provides maximum happiness and minimum friction.
According to Pound, “Law is social engineering which means a balance between the competing interests in society,” in which applied science is used for resolving individual and social problems.
Social Engineering is balancing the conflicting interest of Individual and the state with the help of law. Law is a body of knowledge with the help of law the large part of Social engineering is carried on. Law is used to solve the conflicting interest and problems in society.
He mentioned that everybody has its own individual interest and considered it supreme over all other interest. The objective of the law is to create a balance between the interests of the people. For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and expression’ but on the other side, State put some restriction on this right. And when the conflict arises between Individual right and State’s restriction, then the law comes to play its part. And solve the conflict between the interests. He describes that there are various kinds of interests in society and the main task of law is to make all possible efforts to avoid conflict between them. Thus, courts, legislature, administrators and jurists must work with a plan and make efforts to balance these three categories: Public, Private and Social Interests.
Interest Theory
Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the overlapping of the interests, he put boundaries and divide the kinds of interests.Individual/ Private Interest: These are claims or demands involved from the standpoint of the individual life which consists of interest of personality, interest in domestic relations and interest of substance. The individual’s interest is known as private interest like physical integrity, reputation, etc. and they’re protected by the law of crime, torts and Contract Law, etc. Domestic relations of a person such as a husband and a wife, parents and children, etc. are protected by Personal Law. The interests of the property, succession, contractual relations, testamentary relations, etc. are protected by Property Laws.
Public Interest:
These are the claims or desires asserted by the individual from the standpoint of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use. Main public interest is interest in the preservation of States. Administration of trust, charitable contracts, protection of the environment, regulation of public employment, etc. are being protected by the States.
Social Interest: These are the claims or demands in terms of social life which means to fulfil all the needs of society as a whole for the proper functioning and maintenance of it. Interest in the preservation of general peace, health, the security of transaction’s, preserving social institutions like religion, politics, economic. Interest in preservation of peace and health. Preserving social institutions of religion, politics and economics. Preserving certain prohibiting acts like prostitution, gambling, etc. Conservation of social and natural resources. General progress including economic, political and cultural areas. E.g.- Freedom of Trade and Commerce, Speech and Expression, etc. Interest to make a political, physical, social and economic life to promote personality.
Jural Postulates by Roscoe Pound: According to Roscoe Pound, every society has certain basic assumptions for proper order and balance in society. These assumptions are implied and not in expressed form and are called as Jural Postulates of the legal system of that society. These assumptions of man related to the reference for what they want from the law or legal system or we can say that it is the expectation of a man from the law. He has mentioned five kinds of jural postulates:
1. In a civilized society, man must be able to assume that others will not commit any intentional aggression on him.
2. In a civilized society, man must be able to assume that they must control for beneficial purposes. E.g.- control on whatever they discover or create by their own labour.
3. In a civilized society, man must be able to assume that those with whom they deal as a member of societies will act in good faith. 4. In a civilized society, man must be able to assume that the people will act with due care and will not cast unreasonable risks of injury on others.
5. In a civilized society, man must be able to assume that certain people must restrain from doing harmful acts under their employment and agencies which are otherwise harmless to them. So, these Jural Postulates are a sort of ideal standards which law should pursue in society for civilized life and with the changes in society, the jural postulates may emerge or originate in society.
Criminal: An interest in protection from any intentional aggression. For Example, Assault, Wrongful restraint, Battery, etc. Law of Patent: An interest in securing his own created property by his own labour and hard work. E.g., agricultural land, any music or artistic things. Contract: The interest in making the contract and getting of reasonable remedy or compensation when his right violates. Torts: Protection against Defamation and unreasonable injury caused by the negligent act of another person. Strict Liability: Similarly, in case Ryland Vs. Fletcher Protection of our interest if the injury caused by the things of another person. It is the duty of other people to keep his/her things with his/her boundary and should look after that thing to avoid injury to other people.
Criticism:
1. 'Engineering' Nor a Happy Word; 'Engineering' Ignores an Important Part of Law
2. Classification of Interest not Useful
Ihering: (1818-1892):
Ihering was another sociological jurist known for his monumental work ‘spirit of the law’. He was against the theory of individuals welfare and favours the factor that social interest of society must have a priority over an individual’s interest and the purpose of the law is to protect the interest of society, that is why his theory is known as ‘Jurisprudence of Interest’ which emphasizes on the sociological aspect of Sociological School of Law. He described the law in following aspects:
1. Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives birth to law and the role of law is to harmonize the conflicting interests of individuals for the purpose of protection of interest of society. He gave importance to living law which develops with the struggles of society.
2. Law as a means to serve Social Purpose: According to him, the ultimate goal of the law is to serve a social purpose. It is the duty of the state to promote social interests by avoiding various clashes between social and individual interests. According to him, “law is coercion organized in a set form by the state”, which means that he justified coercion by the state for the purpose of social welfare.
3. Law as one of the means to control society: Law alone is not a means to control society, there are some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the achievement of pleasure and avoidance of pain but for the society, that’s the reason that Ihering theory is also known as the theory of “Social Utilitarianism”.
So, according to the Ihering, the social activities of individuals can be controlled by the state by means of coercion, reward and duty for achieving social control for the welfare of society. Friedman said that “Ihering was declared as the father of modern sociological jurisprudence because of his concept of law as one of the important effective factors to control social organisms.”
Criticism:
1. He Points Out Only the Problems, and not the Solution.
2. Law Protects 'Will' and not Purpose'.
Eugen Ehrlich (1862-1922):
Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study of law from the sociological perspective. Ehrlich considered society as a main source of the law. And by society, he means “association of men”. Ehrlich had written that “Centre of gravity of all legal developments is not in legislation or judicial decisions but in society itself.” He argued that society is the main source of law and better source of law than legislation or judicial decision.
Law is to be Found in Social Fact: The central point in Ehrlich's (1882-1992) thesis is that the law of community is to be found in social facts and not in formal sources of law. He says:" At present as well as at any other time the centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself.
'Living Law' is the Facts that Govern Social Life: Ehrlich believed in the spontaneous evolution of law in the context of existing society. According to him, law originates from existing institutions of marriage, domestic life, possession, contract, inheritance, etc. They govern society through living laws. By living laws, he means that extra-legal control which governs/regulate the social relations of man. In his opinion, the centre of gravity of legal development in the present times or in the past lies neither with the juristic science, nor in judicial decisions, but in society itself. His living law is the law which dominates social life even though it has not been known in the form of enactments or decisions of courts. So, the scope of living law is under than the statuary law of the state. For example, there may be some enactments enforced in the sense that courts may apply them in the decisions in any issue but a community may ignore the enacted laws and lives according to the rules created by their mutual consent, like dowry system in India.
Criticism:
1. Makes no Distinction Between Legal and Other Social Norms:
Leon Duguit (1859-1928)
Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law). He was greatly influenced by the Auguste Comte and Durkheim. He gave the theory of Social Solidarity which explain the social cooperation between individuals for their need and existence. Duguit’s theory was based upon Auguste Compte’s statement that “the only right which man can possess is the right towards his duty.”
Social Solidarity
Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength, cohesiveness, collective consciousness and viability of the society.’ Leon Duguit’s Social Solidarity explain the interdependence of men on his other fellow men. No one can survive without depending on other men. Hence the social interdependence and cooperation are very important for human existence. The objective of the law is to promote Social solidarity between individuals. And Leon Duguit considered that law as bad law which does not promote social solidarity. Further, he also said that every man had the right and duty to promote social solidarity. For Example, in India, the codified laws are followed by everyone. Hence, it promotes Social Solidarity. Importance of Duguit’s theory:
1. Over emphasis was given on duties rather than rights.
2. The direction towards mutual cooperation among individuals in society.
3. Law as an instrument of social solidarity to promote justice.
Criticism:
1. 'Social Solidarity' a Natural Principle
2. Social Solidarity to be Decided by Judges:
3. He Confuses 'is' with 'Ought'
4. He Overlooked the Growing State Activity
5. Inconsistencies in the Theory: Another weakness of Duguit's theory is its inconsistency at several places.
On the one hand, he expresses faith in the biological evolution of society, and on the other hand, he vigorously attacks the idea of collective personality. He denied any personality to state or group distinct from the individuals who constitute it.
Conclusion-
Sociological School of Jurisprudence studies the relationship between and society. It explains the interdependence of law and society. One can’t formulate better and effective law without looking and studying the need and structure of society. For the betterment and harmonious society, we need better and effective laws.For Example, After the 2012 Delhi gang Rape happened (Nirbhaya Gang Rape). Rape laws are amended in India.Every problem in Indian has two aspects, one is legal and other is Sociological aspect. like, the legal aspect of Female Infanticide is in 1795, infanticide was declared to be murder by Bengal Regulation XXI. The British government took steps against the evil of female infanticide and propaganda the same. And its sociological aspect is that nature designed both sexes for the perpetuation of the human races. Gender equality and the empowerment of women were considered one of the eight Millennium Development Goals by the United Nations Population Fund in 2001.Jurists of Sociological School of Jurisprudence are August Comte, Eugen Ehrlich, Roscoe Pound, and Duguit. August Comte was of the view that Society is an organism and it could progress when it is guided by Scientific Principles. While the Eugen Ehrlich argued that the “Society is the main source of law” and Roscoe Pound compared the lawyers with Engineers. And argued that the objective of the law is to solve the conflict between the Individual Interest and State Interest.