Introduction & Schools of jurisprudence
An Introduction of Jurisprudence
Author: Zainul Rizvi
The word “jurisprudence’’ is derived from a Latin word jurisprudentia, which means ‘Knowledge of law’. Thus jurisprudence signifies knowledge of the law and its application, It covers the whole body of legal principles in the world. In England during the formative era, the term ‘jurisprudence’ was being used in a generic sense to include the study of various facets of law. It also means elucidation of the general principles upon which actual rules of law are based. Therefore it is the science which imparts to us knowledge about “law”. Jurisprudence is the study and scientific synthesis of general principles of law[1] The Indian jurisprudence owes its origin to the ancient concept of Dharma which is considered the best way to discipline one’s mind. The practice of Dharma enables a citizen to explain a sense of discipline in conducting themselves in society. This eventually brought peace and prosperity to society. The study of jurisprudence as a separate branch of knowledge started by the Romans but in the modern sense the meaning of jurisprudence given by Romans is too vague and general, With the advancement of time there was a radical change in social conditions and human behavior which resulted in a shift of trend and jurisprudence came to be envisaged in a broader perspective.
Definition of Jurisprudence by various Jurists.
The term ‘jurisprudence’ has meant different things at different times. The variation is due to different methods of inquiry and approach to the study of the subject, e.g Julius Stone has described jurisprudence as “the lawyer’s extraversion’’ which means that jurisprudence involves an examination of percepts, ideas and techniques of the law by a lawyer’s in the light of disciplines other than the law[2].
Cicero – defines jurisprudence as the philosophical aspect of knowledge of law.
Yajnavalkya – ‘Vyavahara’, means those rules which determine the judicial proceedings or controversies in that a sense jurisprudence deals with the principles underlying the rules which applied in deciding the legal controversies judicially[3]
Salmond – defines it as the “science of the first principles of the civil law” Thus according to him jurisprudence deals with a particular species of law, namely civil law or the law of the state. Civil law means laws applied by the courts in the administration of justice
Salmond observed that as the science of law there maybe three kinds of jurisprudence:
- Expository or systematic jurisprudence deals with the contents of an actual legal system as existing at any time whether past or present.
- Legal History is concerned with the legal system in its process of historical development.
- The science of legislation, the purpose of which is to set outlaw as it ought to be. It deals with the ideal future of the legal system and the purpose which it may serve.
John Austin– defines jurisprudence as the” philosophy of positive law”. He was the first jurist to make jurisprudence as a science. He pointed out that science of law means the law as it is and not as it ought to be which he considers as the science of legislation.[4] Austin distinguished law from those of customs and ethical abstract ideas.
SCHOOLS OF JURISPRUDENCE
There are basically five schools of jurisprudence we will discuss these schools along with their leading jurists
- Philosophical school or Natural law.
- Analytical School
- Historical School
- Sociological School
- Realist School.
1. Natural Law- It is known as the law of nature and higher law which occupies an important place in the realm of politics, law, religion, and ethics from the earliest times. Dr. Friedman states that the history of natural law is a tale of the search of mankind for absolute justice and its failure therefore with the change in society notions about natural law have also been changing. In the ancient societies natural law was believed to have a divine origin, In the medieval period it had a religious and super-natural basis but in modern times it has a strong political and legal mooring. The greatest contribution of the natural law theory to the legal system is its ideology of a universal order governing all men and the inalienable rights of the individual[5].
Notable Jurists of Natural Law School
Thomas Hobbes (1588-1679)
Thomas Hobbe’s theory of natural law was based on the natural right of self- preservation of person and property. He propounded his theory of social contract relating to the evolution of the state. According to Hobbes prior to ‘social contract’ man lived in constant fear and in a chaotic condition. The life in the state of nature was “poor solitary, nasty short’’ therefore in order to secure self- protection men voluntarily entered into a contract and surrendered their freedom to the highest authorities who could protect their lives and properties. This led to the emergence of the institution of the ruler which later assumed the form of state. He used natural law theory to support the absolute authority of the ruler. He observed in his famous work Leviathan that law is dependent upon the sanctions of the sovereign. According to him, civil law is the real law as it is commanded and enforced by the sovereign. Therefore from the contentions of the Hobbes theory it can be rightly said according to Hobbes “Rex is Lex ” and King can do no wrong.
John Locke (1632-1704)
John Locke favoured the absolute sovereignty of the state undermining the importance of the individual. He had witnessed the Glorious Revolution of 1688, He therefore came out with a new interpretation of the social contract, rejecting Hobbes’s earlier concept of the state of nature. According to Locke life in a state of nature was not miserable and brutish as stated by Hobbes: instead, it was good and enjoyable except that the property was insecure. In order to secure proper protection of property, man has entered into a social contract surrendering only a part of his rights and not all rights as contemplated by Hobbesian theory. Thus the natural right of men such as liberty, life, and remained with him and only the right to maintain order and to enforce the law of nature was surrendered by him. The function of the state and law was to uphold and ‘protect the natural right ‘of an individual.
So as long as the state fulfills this purpose its laws were valid and binding but when it ceases to do so, the people have full right to revolt and overthrow the government[6]
Locke pleaded for a constitutionally limited government and individual liberty. The doctrine of Laissez-faire also found support in Locke’s theory.
Analytical School
Analytical school of jurisprudence deals with law and it exists in the present form. Its aim is to analyze the first principles of law as they actually exist in a given legal system. The jurists of the analytical school believe that the most important aspect of the law is its relation to the state. They treat law as a command emanating from the sovereign namely, state. This school is also known as Imperative school. The advocates of this theory do not deal with the past of the law nor with the future of it, but they confine themselves to the study of law as it actually exists i.e, positus . This is the only reason that this school is termed as the Positive School of Jurisprudence. Austin, Bentham is considered to be the father of this school in England hence it is also known as the Austinian School of jurisprudence.
Notable Jurists of Analytical School
Jeremy Bentham ( 1748- 1832)
Bentham started a new era in the history of legal thought in England. He is considered to be the founder of positivism in the modern sense of the term Dicey in his famous book ‘Law and Public Opinion’ has sketched Bentham ideas of individualism, law, and legal reforms. He divided jurisprudence into ‘expositional’ and censorial jurisprudence, Expositorial is concerned with the law without any regard to its moral and immoral character. Censorial on the other hand deals with ‘science of legislation’ which means What the law ought to be[7]. Bentham defined law as “an assemblage of signs declarative of a violation conceived or adopted by the Sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or a class of persons. He was the champion of codified, Bentham rejected the natural law theory and co-related law with sovereignty and utility according to Austin natural law as placed mankind under two sovereign masters, namely pain, and pleasure which aloe decide as what man should do or not do. According to Bentham, only those laws could be upheld which promoted four goals of subsistence, abundance, equality, and security. Bentham as an individualist believed that the function of law is to free an individual from the bondage and restraint upon his freedom He founded the principle of utilitarianism. According to this theory, the right aim of the legislation is to carry out the principle of utility. He defined ‘Utility” as the property or tendency of a thing to prevent some evil or procure some good.
John Austin (1790- 1859)
Austin is considered to be the ‘father of English Jurisprudence’. He served in the army and the discipline of army rules can be found in his works. Being impressed by the scientific treatment of roman law he drew inspiration to introduce the same method to the legal exposition of the law in England. He confined his study only to positive law and applied analytical methods. By positive law, Austim meant ‘laws properly so-called’ as distinguished from morals and other laws which he described as ‘laws improperly so-called’ which lack force and sanction of the state. According to Austin four essential attributes of positive law are 1. Command 2. Sanction 3. Duty 4.Sovereignty.
He was the first who treated jurisprudence as a science of law concerned with the analysis of legal concepts. It was Austin who distinguished positive law from positive morality which is devoid of any legal sanction. Austin’s positive law has no place for ideals and justness in law. His positive law was based on the separation of law from morals For him command was “the key to the science of jurisprudence” In his book The Province of Jurisprudence he stated that the chief characteristics of positive law are command, duty, and sanctions[8]. Austin also accepts that there are three kinds of laws which though not commands, but can be included in the purview of law by way of exception they are:-
1.Declaratory laws
2. Laws of repeals
3. Laws of imperfect obligation.
Historical School of Jurisprudence
The historical school emerged as a reaction to legal theories propounded by analytical positivists and natural law philosophers. The aim of historical school is to deal with the general principles governing the origin and development of the law with the influences that affect the law. This school of jurisprudence does not attach importance to the relation of law to the state but gives primacy to the social institutions in which the law develops with itself. Historical jurists believed that law has biological growth and it is not evolved in an arbitrary or erratic manner. The English legal historian Holdsworth states two major factors for the emergence of the historical school of jurisprudence namely : (1) The French Revolution and consequent upheavals, and (2) Darwinian theory of evolution. This view was supported by the Supreme Court of India in Byram Pestonji Gariwala v. Union of India[9].
Realistic School of Jurisprudence
The realists contend that law has emanated from judges therefore law is what courts do and what they say. For them, Judges are real lawmakers. The saying of realists is that judicial decisions are not based on abstract formal law but the human aspects of the judges and the lawyers also have an impact on the court’s decision. According to Friedmann, the mental founders[10] of the Realist movement in America were Oliver Windell Holmes, Gray, Cardozo, and Jermone Frank.
The realist movement in the US represents the latest branch of sociological jurisprudence which concentrates on decisions of law courts.
What exactly Realism means?
In 1930 notable jurists of America Holmes, Cardozo and Gray raised their voice against legal conceptualism and stressed the study of law as it actually operates and functions. Roscoe Pound has defined realism as, “ fidelity to nature, accurate recording of things as they are, as contrasted with things as they are imagined to be, or wished to be or as one feels they ought to be” In other words realism, realism is the antithesis of idealism. Realists consider only judge-made law as genuine law and they do not give any importance to a law enacted by legislatures, They believe ‘certainty of law is a myth’ Realism has revolted against the formalistic attitude of analytical jurist like Austin, Bentham, Stuart Mill, etc who were staunch supporters of British Empirical School[11]. Realists are opposed to the value of legal terminology, for they consider it a tactic method of suppressing uncertainty of law[12].
Notable Jurists of Realistic School
Karl Llewellyn (1893- 1962)
Karl Llewellyn was a Professor of Law at Columbia University. He states that law as a means to a social end and suggested evaluation of the law in terms of its actual effects without giving much importance to formal conceptual rules. He described the law as “what officials do about disputes”. He argued that society changes faster than law and therefore, there is a constant need to examine how law meets contemporary social problems. Karl considered defining law solely in terms of legal rules and traditional legal theory as absurd as there are many other influences that affect the decision of the courts. He was the only one who emphasized on sustained and programmatic evaluation and examination of law through the judicial process in terms of changing circumstances[13].
Oliver Windell Holmes (1841- 1934)
Oliver Windell Holmes discussed law from the point of view of “ the bad man” i.e is a person who was before the court as an accused or wrongdoer. According to him, the judge is to do justice in the case before him and if that required a creative interpretation of existing rules, he should certainly resort to it. Justice Holmes had a long tenure as a judge of the American Supreme Court. He emphasized that “the life of the law has not been logic, it has been experiencing. To quote his words he observed :[14]
That law embodies the story of a nation’s development through many centuries and it cannot be dealt with as it contained only the axioms and corollaries of book mathematics.
Justice Holmes believed that Judges and lawyers are well acquainted with historical, social, and economic aspects of law, and therefore they are in a position to appreciate the practical problems involving cases before them for adjudication. He stated that where there is a gap in the law, Judges are required to take account of precedent.
Sociological School of Jurisprudence
Sociological School of jurisprudence emerged as a result of the synthesis of various juristic thought The exponents of this school are mainly concerned with the relationship of law to other contemporary social institutions. The view of this school is that jurists should focus their attention on social purposes and interests served by law rather than on individuals and their abstract rights. This school treats law as an instrument of social progress. The relationship between positive law and ideals of justice also affects the sociology of law. The supporters of sociological jurisprudence linked law with other social sciences and treat them as a synthesis of psychology, philosophy, economics, political science, etc. According to the law was an applied science employing functional methods of investigation. The main characteristic features of sociological jurisprudence[15] as stated by Roscoe Pound are as follows: The exponents of the sociological school lay greater stress on functional aspects of law rather than its abstract contents.
Sociological School completely discard the abstract notions of analytical positivism which lay- emphasis on command or power aspect of law as the also dead weight of past culture and traditions which constituted the main theme of the historical jurisprudence
The major stages through which the sociological jurisprudence evolved and developed[16] are as follows:
1. Empirical Scientific Approach to Law– Auguste Compte (1789- 1857) was the founder of sociological jurisprudence. The empirical approach is based on experience and observation to establish a correlation between law and society.
2. The Impact of Darwinian Evolutionary Theory-The another stage in the development of sociological jurisprudence has also been called as the ‘biological stage’ because of the influence of Darwin’s evolutionary theory
3. Impact of Psychological Theories- The third stage of development of sociological jurisprudence is the psychological stage. During the latter half of the 19th century, psychology had greatly influenced other social sciences including law.
4.Unification Stage- The last stage of development of sociological jurisprudence consists of the unification of sociological methods with other social sciences. At this time it was realized that different social sciences represent different aspects of human society. They are supplementary and complementary to each other and law cannot be detached from various socio-economic aspects of society as it is an effective means of social control in society.
Eminent Jurists of Sociological School
Montesquieu (1689- 1755)
Montesquieu is known to be the fore-runner of the sociological school of jurisprudence and was a French thinker. In his book The Spirit of Law he emphasized that “ Laws of the particular nation should be determined by its national characteristics and must bear relation to the climate of each country, the principal occupations of the natives, the quality of each soil and above all to the religion of the inhabitants, to their inclinations, riches, manners, and customs”. He was the only jurist to acknowledge the importance of history as the means of understanding the structure of society and drew attention to the role of economic factors.
Rudolph Von Ihering (1818-1892)
Ihering laid the foundation of modern jurisprudence by treating law as one of the important factors to control the social organism. Ihering was educated in Germany. He was a Professor at Basel, Rostock Vienna, According to Ihering:
I. Law has a coercive character
ii. It has only a relative value and
iii. It has to be evaluated in a social context.
After adopting a comparative method of study Ihering came to the conclusion that law develops by conscious efforts. According to him, “the social activities of people are controlled by reward, coercion duty and love”. He concluded that laws were the only way to achieve the end namely, social control. His legal philosophy is therefore known as the “jurisprudence of interests” which works on sociological aspects of the law. He opined that the purpose of law should be to protect the interest of society, In his view, social interest must gain priority over individual interest. He criticized Austinian positivism, Bentham individualism, and Herbert spencer’s biological theory of evolution of law. According to Ihering property was a social as well as an individual institution. Ihering theory is called Social Utilitarianism. He opposed the retributive penal policy and considers punishment as a means to a social end. For him “law is coercion organized in a set form by the state’’
Conclusion
The five schools of jurisprudence had played a very important role in defining law and its functions, Although the contention of various jurists of the different schools, are different but the motive behind their theories is to ‘maintain law’ and the only aim of this jurist is how law can be governed in a better way and justice can be served at large level although the modes of justice and is different. With the advancement in time, the theories of various jurists change as Law changes with time even in the Indian Constitution amendments can be done by the legislature and judges can do the interpretation. The Supreme Court being the third chamber of the parliament can declare any Law unconstitutional if it is inconsistent with fundamental rights and these amendments are done when it is required and also new laws are being introduced as with the emergence of technology as there are crimes being committed by the use of technology. In order to stop these crimes “Cyber Law” has been introduced which defines the punishment of cybercrimes. Reforms have also been made in the Indian Penal Code so that the heinous crimes could be prevented.
Some define Law as a command of the sovereign backed by sanction and some define it as the greatest binding force both for those who govern and the governed[17]. Some state law is what the court has decided in respect of any particular set of facts, prior to such a decision, the opinion of lawyers is only a guess as what the court will decide and this cannot be treated as law unless the court so decides by its judicial pronouncements[18] while the other state it as the outcome of the habits and traditions of the people which they follow voluntarily as a member of community[19]. These habits and customs are acquired through necessity, accident, and other processes.
[1] Keeton C.G.: Elementary Principles of Jurisprudence p. 1-2
[2] Julius Stone: Some Reflections in Jurisprudence ,p.2
[3] Yajnavalkya Smriti Chapter IV , 55.
[4] John Austin (1790-1850). He is described as the father of modern jurisprudence
[5] Friedmann: Legal Theory ,pp, 43-45
[6] Locke’s famous work Two Treatises of Government which appeared in 1776 and became a model for the American Bill of rights, 1776 and inspired the American revolutionaries to fight against the British, consequently leading to American Declaration of Independence in 1776
[7] Dias: Jurisprudence (5th edition 1985) pp. 336-337.
[8] Austin: The province of jurisprudence determined p,9
[9] AIR 1991 SC 2234(2243)
[10] Friedmann: Legal Theory (5th ed)b p. 239
[11] Karl Llewellyn and the Realist Movement (1973) p.9
[12] Leon Green: The Duty Problem in Negligence cases (1928) 28 Columbia Law Review 104
[13] Dias , R.M.W :Jurisprudence (5th ed) Indian Reprint , 1994 p.455
[14] Holmes: The Common Law (1923 Boston) p.1
[15] Roscoe Pound: The Scope and Purpose of Sociological Jurisprudence (1911) 25 Har L., Rev . 489
[16] Roscoe Pound : Jurisprudence Vol. I (1959) P.238
[17] Natural Law Theory
[18] Frank Jerome Realist theory of law : Law and the Modern Mind (1930) p.46
[19] Gustav Hugo (1764-1844) Historical School of Jurisprudence
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